Exhibit 4.3
Note Trust Deed
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Westpac Securities Administration Limited
(as Trustee)
Westpac Securitisation Management Pty Limited
(the Trust Manager)
[*]
(Note Trustee)
[*]
(Principal Paying Agent)
Xxxxx Xxxxx & Xxxxxxx
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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Cross Reference Table/1/
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Trust Indenture Act Section Clause
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310 (a)(1) 23.6
(a)(2) 23.1(d)
(a)(3) 23.6
(a)(4) 22.2(b)
(a)(5) NA/2/
(b) 23.6
(c) 23.6, 23.1
NA
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311 (a) 13.1
(b) 13.1
(c) NA
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312 (a) 31.1, 31.2(a)
(b) 31.2(b)
(c) 31.2(c)
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313 (a) 31.3
(b)(1) 31.3
(b)(2) NA
(c) 31.4
(d) 31.3
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314 (a)(1) 31.5
(a)(2) 31.5
(a)(3) 31.5
(a)(4) 11.1(i)
(b) 11.1(j)
(c) 32.1(a)
(d) 32.1(b)
(e) 32.1(c)
(f) 32.1(a)
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315 (a) 13.2(b)
(b) 13.3
(c) 13.2(a)
(d) 13.2(c), (d)
(e) 32.2
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316 (a)(1) 32.3
(a)(2) NA
(b) 32.4
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317 (a)(1) 6.1
(a)(2) 2.5
(b) NA
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318 (a) 32.5
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Page (i)
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Notes:
1. This Cross Reference Table shall not, for any purpose, be deemed to be part
of this deed.
2. NA means not applicable.
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Page (ii)
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Table of Contents
1. Definitions and Interpretation 1
1.1 Definitions and Interpretation 1
1.2 Definitions in Master Trust Deed, Series Notice and Conditions 3
1.3 Incorporation by reference 4
1.4 Interpretation 4
1.5 Determination, statement and certificate sufficient evidence 4
1.6 Document or agreement 5
1.7 Transaction Document 5
1.8 Trustee as trustee 5
1.9 Obligations of the Trustee 5
2. Payments on Class A Notes 5
2.1 Principal amount 5
2.2 Covenant to repay 5
2.3 Deemed payment 6
2.4 Following Event of Default 6
2.5 Requirements of Paying Agent 7
2.6 Certification 8
2.7 Determinations 8
3. Form of, Issue of and Duties and Taxes on, Class A Notes 8
3.1 Issue of Book-Entry Notes 8
3.2 Form of Book-Entry Notes 9
3.3 Definitive Notes 10
3.4 Stamp and Other Taxes 11
3.5 Indemnity for non-issue 11
3.6 Note Register and Note Registrar 12
4. Covenant of compliance 13
5. Cancellation of Class A Notes 13
5.1 Cancellation 13
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5.2 Records 13
6. Enforcement 14
6.1 Actions following Event of Default 14
6.2 Evidence of default 14
6.3 Overdue interest 14
6.4 Restrictions on enforcement 14
7. Proceedings 15
7.1 Acting only on direction 15
7.2 Security Trustee acting 15
7.3 Note Trustee alone entitled to act 16
7.4 Available amounts 16
7.5 Conflict of interests 16
8. Notice of Payment 16
9. Investment by Note Trustee 17
10. Partial Payments 17
11. Covenants by the Trustee and Trust Manager 17
11.1 Covenants by the Trustee and Trust Manager 17
12. Remuneration of Note Trustee 20
12.1 Fee 20
12.2 Additional Remuneration 20
12.3 Costs, expenses 20
12.4 Overdue rate 21
12.5 Continuing obligation 21
13. Note Trustee 21
13.1 Preferential Collection of Claims Against Trustee 21
13.2 Duties of Note Trustee 21
13.3 Obligations of Note Trustee 22
13.4 Notice of Defaults 22
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13.5 Rights of Note Trustee 22
14. Note Trustee's Liability 30
15. Delegation by Note Trustee 30
16. Employment of Agent by Note Trustee 30
17. Note Trustee Contracting with Trustee 31
18. Waiver 31
19. Amendment 32
19.1 Approval 32
19.2 Resolution of Class A Noteholders 33
19.3 Distribution of amendments 33
19.4 Amendments binding 33
19.5 Conformity with TIA 33
20. Class A Noteholders 33
20.1 Absolute Owner 33
20.2 Clearing Agency Certificate 34
21. Currency Indemnity 35
22. New Note Trustees 36
22.1 Appointment by Trustee 36
22.2 Appointment by Note Trustee 36
22.3 Notice 37
23. Note Trustee's Retirement and Removal 37
23.1 Removal by Trustee 37
23.2 Removal by Class A Noteholders 37
23.3 Resignation 37
23.4 Rating Agencies confirmation 38
23.5 Trust Corporation 38
23.6 Successor to Note Trustee 38
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23.7 Eligibility; Disqualification 39
24. Note Trustee's Powers Additional 39
25. Severability of Provisions 39
26. Notices 39
26.1 General 39
26.2 Details 40
27. Governing Law and Jurisdiction 41
28. Counterparts 41
29. Limited Recourse 41
29.1 General 41
29.2 Liability of Trustee limited to its right to indemnity 41
29.3 Unrestricted remedies 42
29.4 Restricted remedies 42
30. Successor Trustee 43
31. Class A Noteholders' Lists and Reports 43
31.1 Provision of information 43
31.2 Preservation of Information; Communications to Class A Noteholders 43
31.3 Reports by Note Trustee 44
31.4 Notices to Class A Noteholders; Waiver 44
31.5 Reports by Trustee 45
32. Trust Indenture Act - Miscellaneous 45
32.1 Compliance Certificates and Opinions, etc 45
32.2 Undertaking for Costs 47
32.3 Exclusion of section 316 47
32.4 Unconditional Rights of Class A Noteholders to Receive Principal and
Interest 48
32.5 Conflict with Trust Indenture Act 48
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33. Consent of Class A Noteholders 48
33.1 General 48
33.2 Special Written Approvals 48
33.3 Requirement for writing 50
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Page (vii)
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Date [*]
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Parties
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1. Westpac Securities Administration Limited (ACN 000 049 472)
incorporated in New South Wales of Level 10, 000 Xxxx
Xxxxxx, Xxxxxx in its capacity as trustee of the Series [*]
WST Trust (the Trustee);
2. Westpac Securitisation Management Pty Limited (ACN 081 709
211) incorporated in the Australian Capital Territory of
Level 25, 00 Xxxxxx Xxxxx, Xxxxxx as trust manager in
relation to the Series[*] WST Trust (the Trust Manager);
3. [*] (Note Trustee), which expression shall, wherever the
context requires, include any other person or company for
the time being a trustee under this deed or trustees of
this deed; and
4. [*] acting through its office at [*] (the Principal Paying
Agent), which expression shall wherever the context
requires, include any successor principal paying agent from
time to time appointed under the Agency Agreement.
Recitals
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A The Trustee has resolved at the direction of the Trust
Manager to issue US$[*] of mortgage backed floating rate
notes due [*] comprising US$[*] Class A Notes, those Class
A Notes to be constituted and secured in the manner
provided in this deed and the other Transaction Documents.
B The Note Trustee has agreed to act as trustee for the Class
A Noteholders under this deed.
IT IS AGREED as follows.
1. Definitions and Interpretation
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1.1 Definitions and Interpretation
The following definitions apply unless the context requires otherwise.
Class A Note Owner means, with respect to a Book-Entry Note, the person who
is the beneficial owner of such Book-Entry Note, as reflected on the books
of the Clearing Agency, or on the books of a person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as
an indirect participant, in each case in accordance with the rules of such
Clearing Agency).
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Clearing Agency Participant means a broker, dealer, bank, other financial
institution or other person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Corporate Trust Office means the principal office of the Note Trustee at
which at any particular time its corporate trust business is administered,
which at the date of the execution of this deed is [address], or at such
other address as the Note Trustee may designate by notice to the Trust
Manager, Class A Noteholders and the Trustee or the principal corporate
trust office of any successor Note Trustee.
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 Trustee, the Trust Manager, the Servicer, any
Approved Seller and any of their Associates;
(b) does not have any direct financial interest or any material indirect
financial interest (other than less than 5% of the outstanding amount
of any publicly traded security) in any person referred to in
paragraph (a); and
(c) is not an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions of any person referred
to in paragraph (a).
Independent Certificate means, in relation to any person, a certificate or
opinion from that person where that person must be Independent, which
opinion or certificate states that the signer has read the definition of
Independent in this deed and that the signer is Independent within the
meaning of that definition.
Issuer Order and Issuer Request means a written order or request signed in
the name of the Trustee by any one of its Authorised Signatories and
delivered to the Note Trustee.
Master Trust Deed means the Master Trust Deed dated 14 February 1997
between the Trustee and the Trust Manager.
Note Depository Agreement means the agreement among Trustee, Note Trustee
and The Depository Trust Company, as the initial Clearing Agency, dated as
of the Closing Date, relating to the Class A Notes, as the same may be
amended or supplemented from time to time.
Noteholders Report means the report to be delivered by the Trust Manager,
on behalf of the Trustee, in accordance with clause 11.1(1) containing the
information set out in Schedule 2.
Officer's Certificate means a certificate signed by any Authorised
Signatory of the Trustee or the Trust Manager on behalf of the Trustee,
under the circumstances described in, and otherwise complying with, the
applicable requirements of section 314 of the TIA.
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Opinion of Counsel means one or more written opinions of legal counsel who
may, except as otherwise expressly provided in this deed, be employees of
or counsel to the Trustee or the Trust Manager on behalf of the Trustee and
who shall be satisfactory to the Trustee or the Note Trustee, as
applicable, and which opinion or opinions shall be addressed to the Trustee
or the Note Trustee, as applicable, and shall be in form and substance
satisfactory to the Trustee and the Note Trustee, as applicable.
Paying Agent means any institution, including where the context permits the
Principal Paying Agent at its office (for so long as required for interest
under the Class A Notes to be exempt from interest withholding tax under
section 128F of the Income Tax Assessment Act 1936 (Cth)) outside of
Australia:
(a) initially appointed as Paying Agent by the Trustee under the Agency
Agreement; or
(b) as may, with the prior written approval of, and on terms previously
approved in writing by, the Note Trustee (that approval not to be
unreasonably withheld or delayed) from time to time be appointed by
the Trustee in relation to the Class A Notes,
in each case (except in the case of the initial Principal Paying Agent)
where notice of the appointment has been given to the Class A Noteholders
under this deed and in accordance with Condition 12.
Responsible Officer means, with respect to the Note Trustee, any of its
officers, including any Vice President, Assistant Vice President, Assistant
Treasurer, Assistant Secretary, or any other of its officers customarily
performing functions similar to those performed by any of them and, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Series Notice means the Series Notice dated [*] between the Trustee, the
Trust Manager, the Note Trustee, Westpac Banking Corporation and the
Servicer.
TIA means the Trust Indenture Act of 1939 of the United States of America,
as amended.
Trust Account means the Collection Account, the US$ Account or any other
account maintained by or on behalf of the Trustee in relation to the Trust.
Trust Corporation means any person eligible for appointment as a trustee
under an indenture to be qualified pursuant to the TIA, as set forth in
Section 310(a) of the TIA, which shall include [Office] for so long as it
complies with such section.
1.2 Definitions in Master Trust Deed, Series Notice and Conditions
(a) Words and expressions which are defined in the Master Trust Deed (as
amended by the Series Notice), the Series Notice and the Conditions
(including in each case by reference to another agreement) have the
same meanings when used in this deed unless the context otherwise
requires or unless otherwise defined in this deed.
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(b) No change to the Master Trust Deed or any other document (including
the order of payment set out in the Series Notice) after the date of
this deed will change the meaning of terms used in this deed or
adversely affect the rights of the Note Trustee or any Class A
Noteholder under this deed unless the Note Trustee has agreed in
writing to the changes under this deed.
1.3 Incorporation by reference
Where this deed refers to a provision of the TIA, the provision is
incorporated by reference in and made part of this deed. The following
terms used in the TIA have the following meaning in this deed.
Commission means the Securities and Exchange Commission of the United
States of America.
indenture securities means the Class A Notes.
indenture security holder means an Class A Noteholder.
indenture to be qualified means the Note Trust Deed.
indenture trustee or institutional trustee means the Note Trustee.
obligor on the indenture securities means the Trustee.
Any other term which is used in this deed in respect of a section or
provision of the TIA and which is defined in the TIA, defined in the TIA by
reference to another statute or defined by or in any rule of or issued by
the Commission, will have the meaning assigned to them by such definitions.
1.4 Interpretation
Clause 1.2 of the Master Trust Deed applies to this deed as if set out in
full and:
(a) a reference to an asset includes any real or personal, present or future,
tangible or intangible property or asset and any right, interest, revenue
or benefit in, under or derived from the property or asset;
(b) an Event of Default subsists until it has been waived in writing by the
Note Trustee;
(c) a reference to an amount for which a person is contingently liable includes
an amount which that person may become actually or contingently liable to
pay if a contingency occurs, whether or not that liability will actually
arise; and
(d) all references to costs or charges or expenses include any value added tax
or similar tax charged or chargeable in respect of the charge or expense.
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.
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1.6 Document or agreement
A reference to:
(a) an agreement includes a Security Interest, Guarantee, undertaking,
deed, agreement or legally enforceable arrangement whether or not in
writing; and
(b) a document includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the extent
prohibited by this deed.
1.7 Transaction Document
This deed is a Transaction Document for the purposes of the Master Trust
Deed.
1.8 Trustee as trustee
In this deed, except where provided to the contrary:
(a) a reference to the Trustee is a reference to the Trustee in its
capacity as trustee of the Trust only, and in no other capacity; and
(b) a reference to the assets, business, property or undertaking of the
Trustee is a reference to the assets, business, property or
undertaking of the Trustee only in the capacity described in paragraph
(a) above.
1.9 Obligations of the Trustee
(a) A reference to the Trustee in each of clauses 3.6 other than the first
sentence, 5, 11.1(i), 11.1(j), 31.1, 31.5 and 32.1 is a reference to
the Trust Manager on behalf of the Trustee and, failing action by the
Trust Manager in accordance with the relevant clause (including any
requirement to take such action within a specified time), the Trustee.
(b) The Trustee shall not be liable for any act or omission by the Trust
Manager where it is acting on behalf of the Trust Manager under sub-
paragraph (a).
2. Payments on Class A Notes
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2.1 Principal amount
The aggregate principal amount of the Class A Notes is limited to US$[*].
2.2 Covenant to repay
(a) The Trustee covenants with the Note Trustee that the Trustee will, in
accordance with the terms of the Class A Notes (including the
Conditions) and the Transaction Documents (and subject to the terms of
the Transaction Documents and the Conditions, including clause 29 of
this deed and Condition 6) on:
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(i) the Maturity Date of the Class A Notes; or
(ii) each earlier date as the Class A Notes, or any of them, may
become repayable (whether in full or in part),
pay or procure to be paid unconditionally to or to the order of the
Note Trustee in [US$ in London] for immediate value the principal
amount of the Class A Notes repayable, or in the case of a partial
payment of the Class A Notes, the principal amount payable, subject to
and in accordance with the terms of the Class A Notes (including the
Conditions).
(b) Subject to clause 2.3 and to the terms of the Class A Notes (including
the Conditions) and the Transaction Documents, until any payment as
well after as before any judgment or other order of a court of
competent jurisdiction the Trustee shall pay or procure to be paid
unconditionally to or to the order of the Note Trustee:
(i) any interest, at the respective rates calculated from time to
time, in accordance with and on the dates provided for in the
Conditions; and
(ii) principal payable at the times and in the amounts as may be
determined in accordance with Condition 5.
(c) The Note Trustee shall hold the benefit of the covenant in this clause
2.2, and all other rights of the Class A Noteholders under the Class A
Notes, on trust for the benefit of the Class A Noteholders.
2.3 Deemed payment
(a) Any payment of principal or interest in respect of Class A Notes to or
to the account of the Principal Paying Agent in the manner provided in
clause 3 of the Agency Agreement shall satisfy the covenant in
relation to the Class A Notes by the Trustee in this clause 2 to the
extent of that payment.
(b) The payment by the Trustee of its payment obligations on each Payment
Date under the Series Notice and the Conditions to the Principal
Paying Agent shall be a good discharge to the Trustee.
(c) The Trustee shall not be liable for any act or omission or default of
the Principal Paying Agent under this deed.
2.4 Following Event of Default
(a) At any time after an Event of Default in respect of the Class A Notes
has occurred, or at any time after Definitive Notes have not been
issued when so required in accordance with the Conditions, the Note
Trustee may:
(i) by notice in writing to the Trustee, the Trust Manager, the
Principal Paying Agent, the other Paying Agents and the Agent
Bank require the Principal Paying Agent, the other Paying Agents
and the Agent Bank under the Agency Agreement either:
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(A) (1) to act as Principal Paying Agent and Paying Agents and
Agent Bank respectively of the Note Trustee in
relation to payments to be made by or on behalf of the
Note Trustee under the provisions of this deed on the
terms of the Agency Agreement except that the Note
Trustee's liability under any provisions of the Agency
Agreement for the indemnification of the Paying Agents
and Agent Bank shall be limited to any amount for the
time being held by the Note Trustee on the trusts of
this deed and which is available to be applied by the
Note Trustee under this deed; and
(2) hold all Definitive Notes, and all amounts, documents
and records held by them in respect of the Class A
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 Notes, to the Note Trustee or as the Note Trustee shall
direct in that notice, other than any documents or records
which the relevant Paying Agent or Agent Bank is obliged
not to release by any law or regulation; and
(ii) by notice in writing to the Trustee require it to make all
subsequent payments in respect of the Class A Notes to the order
of the Note Trustee and not to the Principal Paying Agent and,
with effect from the issue of that notice to the Trustee and
until that notice is withdrawn clause 2.3 shall not apply.
(b) The payment by the Trustee of its payment obligations on each Payment
Date under the Series Notice and the Conditions to the Note Trustee in
accordance with paragraph (b) shall be a good discharge to the
Trustee.
(c) The Trustee shall not be liable for any act or omission or default of
the Note Trustee during the period it is required to make payments in
respect of the Class A Notes to the Note Trustee under paragraph (b).
2.5 Requirements of Paying Agent
The Trustee will cause each Paying Agent to execute and deliver to the Note
Trustee an instrument in which that Paying Agent shall agree with the Note
Trustee, subject to the provisions of this Clause, that such Paying Agent
shall:
(a) hold in trust for the Note Trustee and the Class A Noteholders all
sums held by that Paying Agent for the payment of principal and
interest with respect to the Class A Notes until all relevant sums are
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paid to the Note Trustee or the Class A Noteholders or otherwise
disposed of as provided in this deed; and
(b) immediately notify by telex or facsimile the Note Trustee, the
Trustee, the Security Trustee and the Trust Manager if the full amount
of any payment of principal or interest required to be made by the
Series Notice and Conditions in respect of the Class A Notes is not
unconditionally received by it or to its order in accordance with the
Agency Agreement.
2.6 Certification
For the purposes of any redemption of Class A Notes under Condition 5 the
Note Trustee may rely upon an Officer's Certificate from the Trust Manager
on behalf of the Trustee certifying or stating, the opinion of each person
signing that Officer's Certificate as 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 Trustee 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 that Officer's Certificate shall be conclusive and binding on the
Trustee, the Note Trustee and the holders of those Class A Notes.
2.7 Determinations
If the Trust Manager does not at any time for any reason determine a
Principal Payment, the Invested Amount, the Stated Amount or the Bond
Factor applicable to any Class A Notes in accordance with Condition 5(m),
the Principal Payment, Invested Amount, the Stated Amount and the Bond
Factor may be determined by the Note Trustee in accordance with Conditions
5(i) and 5(m) (but based on the information in its possession) and each
such determination or calculation shall be deemed to have been made by the
Trust Manager, and the Note Trustee shall have no liability in respect
thereof other than as a result of the gross negligence or wilful default of
the Note Trustee.
3. Form of, Issue of and Duties and Taxes on, Class A Notes
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3.1 Issue of Book-Entry Notes
(a) The Class A Notes shall on issue be represented by Book-Entry Notes.
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(b) Each Book-Entry Note must be signed manually or by facsimile by an
Authorised Signatory of the Trustee on behalf of the Trustee and must
be manually authenticated by the Principal Paying Agent.
3.2 Form of Book-Entry Notes
(a) The Book-Entry Notes shall be typed in the form or substantially in
the form set out in schedule 1.
(b) The procedures relating to the exchange, authentication, delivery,
surrender, cancellation, presentation, marking up or down of any of
the Book-Entry Note (or part of the Book-Entry Note and any other
matters to be carried out by the relevant parties upon exchange (in
whole or part) of any Class A Note shall be made in accordance with
the provisions of the relevant terms of the Book-Entry Notes and the
normal practice of the Common Depositary, the Principal Paying Agent
and the rules and procedures of the Clearing Agency from time to time.
(c) The Book-Entry Notes shall be in an aggregate principal amount of
US$[*].
(d) The Trustee shall procure that, prior to the issue and delivery of any
Book-Entry Note, that Book-Entry Note will be authenticated manually
by an Authorised Signatory of the Principal Paying Agent and no Book-
Entry Note shall be valid for any purpose unless and until so
authenticated. A Book-Entry Note so executed and authenticated shall
be binding and valid obligations of the Trustee. Until a Book-Entry
Note (or part of a Book-Entry Note) has been exchanged pursuant to
this deed, it (or that part) shall in all respects be entitled to the
same benefits as a Definitive Note. Each Book-Entry Note shall be
subject to this deed except that the registered owner of a Book-Entry
Note shall be the only person entitled to receive payments 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 Notes representing the Book-Entry Notes. The Trustee
shall, on the date of this deed, deliver or arrange the delivery on
its behalf to the Principal Paying Agent, as agent for the Clearing
Agency, of the Book-Entry Notes. The Book-Entry Notes shall initially
be registered on the Note Register in the name of the Common
Depositary as nominee of the Clearing Agency, and no Class A Note
Owner will receive a Definitive Note representing such Class A Note
Owner's interest in such Class A Note, except as provided in clause
3.3.
(f) Whenever a notice or other communication to the Class A Noteholders is
required under this deed, unless and until Definitive Notes shall have
been issued to Class A Note Owners pursuant to clause 3.3, the Note
Trustee shall give all such notices and communications specified
herein to be given to Class A Noteholders to the Clearing Agency, and
shall have no obligation to the Class A Note Owners.
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(g) Unless and until the Definitive Notes have been issued to an Class A
Note Owner pursuant to clause 3.3:
(i) the provisions of this clause shall be in full force and
effect;
(ii) the Note Registrar, the Trustee, the Trust Manager, each Paying
Agent and the Note Trustee shall be entitled to deal with the
Clearing Agency for all purposes of this deed (including the
payment of principal of and interest on the Class A Notes and
the giving of instructions or directions hereunder) as the sole
holder of the Class A Notes, and shall have no obligation to
any Class A Note Owners;
(iii) to the extent that the provisions of this clause conflict with
any other provisions of this deed, the provisions of this
clause shall prevail;
(iv) the rights of Class A Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Class A Note
Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Note Depository Agreement, unless
and until Definitive Notes are issued pursuant to clause 3.3,
the initial Clearing Agency will make book-entry 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
(v) whenever this deed requires or permits actions to be taken
based upon instructions or directions of Class A Note Owners
evidencing a specific percentage of all Invested Amounts of all
Class A 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 Note Owners and/or
Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial
interest in the Class A Notes and has delivered such
instructions to the Principal Paying Agent.
3.3 Definitive Notes
If:
(a) the Trust Manager advises the Principal Paying Agent in writing that
the Clearing Agency is no longer willing or able properly to discharge
its responsibilities with respect to the Class A Notes or the Clearing
Agency or its successor and the Trust Manager is unable to locate a
qualified successor;
(b) the Trustee, at the direction of the Trust Manager (at the Trust
Manager's option) advises the Principal Paying Agent in writing that
the book-entry system through the Clearing Agency is or is to be
terminated; or
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(c) after the occurrence of an Event of Default, the Class A Note Owners
representing beneficial interests aggregating to at least a majority
of the aggregate Invested Amount of the Class A Notes advise the
Trustee through the Clearing Agency in writing that the continuation
of a book entry system through the Clearing Agency is no longer in the
best interests of the Class A Note Owners,
then the Principal Paying Agent shall notify all of the appropriate Class A
Note Owners and the Trustee of the occurrence of any such event and of the
availability of Definitive Notes to such Class A Note Owners requesting the
same. Upon the surrender of the Book-Entry Notes to the Trustee by the
Clearing Agency, and the delivery by the Clearing Agency of the relevant
registration instructions to the Trustee, the Trustee (with the assistance
of the Trust Manager) shall execute and procure the Principal Paying Agent
to authenticate the Definitive Notes in accordance with the instructions of
the Clearing Agency.
The Definitive Notes will be serially numbered and shall be typewritten,
printed, lithographed or engraved or produced by any combination of these
methods (with or without steel engraved borders), all as determined by the
Authorised Signatories executing such Definitive Notes, as evidenced by
their execution of such Definitive Notes.
Neither the Note Registrar nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions.
3.4 Stamp and Other Taxes
The Trustee will pay any stamp and other duties and Taxes payable in
Australia, the United Kingdom, Belgium, Luxembourg or the United States on
or in connection with:
(a) the execution of the Transaction Documents;
(b) the constitution and original issue and delivery of the Class A 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 Note Owner to
enforce the provisions of the Class A Notes or the Transaction
Documents.
3.5 Indemnity for non-issue
If the Trustee is required to issue, or procure the issue of, Definitive
Notes following an event specified in clause 3.3 but fails to do so within
30 days of delivery to the Trustee of the Book-Entry Notes in accordance
with clause 3.3 then the Trustee shall, subject to clause 29.2, indemnify
the Note Trustee, the Class A Noteholders and Class A Note Owners, and keep
them indemnified, against any loss or damage incurred by any of them if the
amount received by the Note Trustee, the Class A Noteholders or Class A
Note Owners is less than the amount that would have been received had
Definitive Notes been issued. If and for so long as the Trustee discharges
its obligations under this indemnity, the breach by the Trustee of the
provisions
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of clause 3.3 shall be deemed to be cured. The Trust Manager must promptly
advise the Trustee if it becomes actually aware of the occurrence of the
relevant event and the Trustee shall promptly notify the Note Trustee of
the relevant event.
3.6 Note Register and Note Registrar
(a) The Trustee shall keep or cause to be kept the Note Register in which,
subject to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of the Class A Notes and
the registration of transfers of Class A Notes. The Note Registrar
will be responsible for registering Notes and transfers of Class A
Notes as herein provided. The Trustee may, with the consent of the
Note Trustee, appoint another person as Note Registrar. Upon any
resignation or removal of any Note Registrar under the Agency
Agreement, the Trustee with the assistance of and at the direction of,
the Trust Manager shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of the Note
Registrar.
(b) Upon surrender for registration of transfer of any Class A Note at the
office or agency of the Trustee to be maintained as provided in clause
11.1, if the requirements of Section 8-401(a) of the Uniform
Commercial Code of New York (the UCC) are met the Trustee shall
execute and upon its written request the Principal Paying Agent shall
authenticate and the Class A Noteholder shall obtain from the Note
Trustee, in the name of the designated transferee or transferees, one
or more new Class A Notes, in any authorised denominations, and a like
aggregate principal amount.
(c) At the option of the Class A Noteholder, Class A Notes may be
exchanged for other Class A Notes in any authorised denominations, and
a like aggregate principal amount, upon surrender of the Class A Notes
to be exchanged at such office or agency. Whenever any Class A Notes
are so surrendered for exchange, if the requirements of Section 8-
401(a) of the UCC are met the Trustee shall execute and upon its
written request the Principal Paying Agent shall authenticate and the
Class A Noteholder shall obtain from the Note Trustee, the Class A
Notes which the Class A Noteholder making the exchange is entitled to
receive.
(d) Every Class A Note presented or surrendered for registration of
transfer or exchange shall be (i) duly endorsed by, or be accompanied
by a written instrument of transfer in a form satisfactory to the Note
Registrar duly executed by, the Class A Noteholder thereof or such
Class A Noteholder's attorney duly authorised in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar which requirements include
membership or participation of Securities Transfer Agents Medallion
Program (Stamp) or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution
for, Stamp, all in accordance with the Exchange Act, and
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(ii) accompanied by such other documents as the Note Registrar may
require.
(e) No Service charge shall be made to an Class A Noteholder for any
registration of transfer or exchange of Class A Notes, but the Trustee
may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Class A Notes.
(f) The preceding provisions of this section notwithstanding, the Trustee
shall not be required to make and the Note Registrar need not register
transfers or exchanges of Class A Notes selected for redemption or of
any Class A Note for a period of 30 days preceding the due date for
any payment with respect to the Class A Note.
4. Covenant of compliance
--------------------------------------------------------------------------------
The Trustee covenants with the Note Trustee that it will comply with and
perform and observe all material provisions of the Transaction Documents
which are expressed to be binding on it for the benefit of the Note Trustee
or any Class A Noteholder. The Conditions shall be binding on the Trustee,
the Note Trustee and the Class A Noteholders. The Note Trustee is entitled
to enforce the obligations of the Trustee under the Class A 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 Class A Notes).
5. Cancellation of Class A Notes
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5.1 Cancellation
The Trustee shall procure that all Class A Notes:
(a) which have been surrendered for payment, registration of transfer,
exchange or redemption; or
(b) in the case of any Definitive Note, which, being mutilated or defaced,
have been surrendered and replaced under Condition 11,
shall forthwith be cancelled by or on behalf of the Trustee.
5.2 Records
The Trustee shall procure that:
(a) the Principal Paying Agent keeps a full and complete record of all
Class A Notes and of their redemption, payment, exchange or
cancellation (as the case may be) and of all replacement Class A
Notes, issued in substitution for lost, stolen, mutilated, defaced or
destroyed Definitive Notes; and
(b) such records shall be made available to the Note Trustee at all
reasonable times.
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6. Enforcement
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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 Trustee which are permitted
under the Transaction Documents;
(b) enforce the security created under the Security Trust Deed (including
anything set out in clause 8.2 of the Security Trust Deed); and
(c) enforce repayment of the Class A Notes together with accrued interest
and any other moneys payable to the Note Trustee, the Class A
Noteholders or under the Transaction Documents.
6.2 Evidence of default
If the Security Trustee or the Note Trustee takes any action against the
Trustee to enforce any of the provisions of any Class A Notes or this deed,
proof that as regards any Class A Note, the Trustee has not paid any
principal or interest due in respect of that Class A Note shall (unless the
contrary is proved) be sufficient evidence that the Trustee has not paid
that principal or interest on all other Class A Notes in respect of which
the relevant payment is then due.
6.3 Overdue interest
The rates of interest payable in respect of any Class A Note which has
become due and repayable in full and which has not been repaid shall be
calculated at three-monthly intervals, commencing on the expiry of the
Coupon Period for the Class A Note during which the Class A Note became due
and repayable in accordance with the provisions of Condition 4 except that
no notices need be given to Class A Noteholders, in relation to that
interest.
6.4 Restrictions on enforcement
(a) If any of the Class A Notes remain outstanding and are due and payable
otherwise than by reason of a default in payment of any amount due on
the Class A Notes, the Note Trustee must not vote under the Security
Trust Deed to, or otherwise direct the Security Trustee to, dispose of
the Mortgaged Property unless either:
(i) a sufficient amount would be realised to discharge in full all
amounts owing to the Class A Noteholders and any other amounts
payable by the Trustee ranking in priority to or pari passu with
the Class A Notes; or
(ii) the Note Trustee is of the opinion, reached after considering at
any time and from time to time the advice of a merchant bank or
other financial adviser selected by the Note Trustee,
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that the cash flow receivable by the Trustee (or the Security
Trustee under the Security Trust Deed) will not (or that there is
a significant risk that it will not) be sufficient, having regard
to any other relevant actual, contingent or prospective
liabilities of the Trustee, to discharge in full in due course
all the amounts referred to in paragraph (i).
(b) Neither the Note Trustee nor the Security Trustee will be liable for
any decline in the value, nor any loss realised upon any sale or other
dispositions made under the Security Trust Deed, of any Mortgaged
Property or any other property which is charged to the Security
Trustee by any other person in respect of or relating to the
obligations of the Trustee or any third party in respect of the
Trustee or the Class A Notes or relating in any way to the Mortgaged
Property. Without limitation, neither the Note Trustee nor the
Security Trustee shall be liable for any such decline or loss directly
or indirectly arising from its acting, or failing to act, as a
consequence of an opinion reached by it in good faith based on advice
received by it in accordance with paragraph (a).
7. Proceedings
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7.1 Acting only on direction
(a) Subject to paragraph (b), the Note Trustee shall not be bound to vote
under the Security Trust Deed, or otherwise direct the Security
Trustee under the Security Trust Deed, or take any proceedings,
actions or steps under, or any other proceedings pursuant to or in
connection with, the Security Trust Deed, this deed, or any Class A
Notes, unless directed or requested to do so in writing by holders of
at least 75% of the aggregate Invested Amount of Class A Notes and
then only if the Note Trustee is indemnified to its satisfaction
against all action, proceedings, claims and demands to which it may
render itself liable and all costs, charges, damages and expenses
which it may incur by so doing; or
(b) 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 Notes in accordance with this deed relating to the time,
method and place of conducting any proceeding for any remedy available
to, or exercising any trust or power conferred upon it, under this
deed.
7.2 Security Trustee acting
Only the Security Trustee may enforce the provisions of the Security Trust
Deed and neither the Note Trustee nor any holder of a Class A Note is
entitled to proceed directly against the Trustee to enforce the performance
of any of the provisions of the Security Trust Deed, or the Class A Notes
(including the Conditions).
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7.3 Note Trustee alone entitled to act
Only the Note Trustee may:
(a) direct the Security Trustee to enforce or otherwise; or
(b) enforce the provisions of this deed, or the Class A Notes (including
the Conditions),
and no Class A Noteholder is entitled to take any of the above actions or
to proceed directly against the Trustee to enforce the performance of any
of the provisions of this deed or the Class A Notes (including the
Conditions).
7.4 Available amounts
For the purpose of Condition 5(n) the Note Trustee shall not be satisfied
that the Trustee will be in a position to discharge the liabilities
referred in those Conditions unless, either:
(a) the Trustee will have available to it sufficient cash in the
Collection Account and sufficient Authorised Investments which will
mature on or before the relevant Payment Date after making any other
payments or provisions having priority in order of application under
the applicable provisions of the Security Trust Deed; or
(b) [the Trustee has entered into a legally binding contract with an
entity either whose long term unsecured and unguaranteed debt is rated
AA- by S&P, AA- by Fitch and Aa3 by Xxxxx'x or whose short term
unsecured and unguaranteed debt securities are rated A-1 by S&P, F-1
from Fitch where the entity is Westpac, or F-1+ where the entity is
not Westpac and P-1 from Xxxxx'x to provide sufficient cash on or
before the relevant Payment Date to enable the Trustee to discharge
the relevant liabilities.]
7.5 Conflict of interests
The Note Trustee shall, with respect to all the powers, trusts,
authorities, duties and discretions vested in it by the Transaction
Documents, except where expressly provided otherwise, have regard to the
interests of the Class A Noteholders.
8. Notice of Payment
--------------------------------------------------------------------------------
The Note Trustee shall give notice to the relevant Class A Noteholders in
accordance with Condition 12 of the day fixed for any payment to them of
amounts received by the Note Trustee under clause 16 of the Security Trust
Deed. Those payments may be made in accordance with Condition 6 as
appropriate (in the case of Definitive Notes) or in the name of the nominee
of the Clearing Agency by wire transfer in immediately available funds to
an account designated by such nominee to the order of the registered holder
of the Class A Note (in the case of any Book-Entry Note) and payment of
those amounts by the Note Trustee to the Principal Paying Agent for that
purpose shall be a good discharge to the Note Trustee.
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9. Investment by Note Trustee
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Any amount which, under the trusts of this Deed ought to or may be invested
by the Note Trustee, may be invested in the name or under the control of
the Note Trustee in any Authorised Investments and the Note Trustee may at
any time or times vary any Authorised Investments into other Authorised
Investments and shall not be responsible for any loss due to depreciation
in value or otherwise resulting from any Authorised Investments made by it.
10. Partial Payments
--------------------------------------------------------------------------------
In the case of Definitive Notes, on any payment of amounts received by or
on behalf of the Note Trustee under clause 16 of the Security Trust Deed
(other than the payment in full against surrender of a Definitive Note) the
Definitive Note in respect of which such payment is made shall be produced
to the Note Trustee or the Paying Agent by or through whom such payment is
made and the Note Trustee shall or shall cause the Paying Agent to enface
on the Definitive Note a memorandum of the amount and the date of payment,
but the Note Trustee may in any particular case dispense with that
production and enfacement upon an indemnity being given to the Note Trustee
by the recipient of the payment as the Note Trustee considers sufficient.
11. Covenants by the Trustee and Trust Manager
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11.1 Covenants by the Trustee and Trust Manager
Each of the Trustee and the Trust Manager undertakes to the Note Trustee,
on behalf of the Class A Noteholders as follows in relation to the Trust
for so long as any of the Class A Notes remain outstanding (except to the
extent that the Note Trustee otherwise consents).
(a) (Master Trust Deed covenants) It will comply with its covenants in
clause 18, 22 or 29 of the Master Trust Deed (as the case may be).
(b) (Transaction Documents):
(i) It will ensure that it complies with its material obligations
under the Transaction Documents.
(ii) It will use its best endeavours to procure that each other party
to a Transaction Document complies with and performs its
obligations under that Transaction Document.
(c) (Information) Give to the Note Trustee a copy of any information
relating to the Trust that the Note Trustee reasonably requests in
connection with the exercise and performance of its powers and
obligations under this deed.
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(d) (Notify Events of Default)
(i) It will promptly notify the Note Trustee if, to the knowledge of
its officers who are responsible for the administration of the
Trust, it becomes actually aware of the occurrence of an Event of
Default, Trustee's Default, Servicer Transfer Event, Title
Perfection Event or Trust Manager's Default including full
details (to the extent known, without making any enquiry) of that
Event of Default, Trustee's Default, Servicer Transfer Event,
Title Perfection Event or Trust Manager's Default (as the case
may be).
(ii) The Trustee will confirm to the Note Trustee in writing, on each
anniversary of this deed:
(A) whether or not any Event of Default is subsisting of which
it is actually aware; and
(B) any other matter which is required to be notified to the
Note Trustee under the Transaction Documents and which has
not previously been so notified.
(e) (Listing) It will use its best endeavours to:
(i) obtain and maintain the listing of the Class A Notes on the Stock
Exchange (including compliance with the continuing obligations
applicable to the Trustee by virtue of the admission of the Class
A Notes to the Official List of the Stock Exchange) or, if it is
unable to do so having used best endeavours, use best endeavours
to obtain and maintain a quotation or listing of the Class A
Notes on any other stock exchange or exchanges or securities
market or markets as the Trust Manager (with the prior written
approval of the Note Trustee, that approval not to be
unreasonably withheld or delayed) decides and following that
quotation or listing enter into a deed supplemental to this Trust
Deed to effect such consequential amendments to this deed
necessary to comply with the requirements of any such stock
exchange or securities market; and
(ii) procure that there will at all times be furnished to the Stock
Exchange (or to any other relevant stock exchange or securities
market) any information which the Stock Exchange or, as the case
may be, any other such stock exchange or securities market, may
require to be furnished in accordance with its requirements.
(f) (Maintenance of Office or Agency) The Trustee will maintain in the
[office], an office or agency where Class A Notes may be surrendered
for registration of transfer or exchange, and where notices and
demands to or upon the Trustee in respect of the Class A Notes and
this deed may be served. The Trustee hereby initially appoints the
Principal Paying Agent to serve as its agent for the foregoing
purposes. The Principal Paying Agent shall act solely for, and as
agent of, the Trustee and shall not have any obligations
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towards or relationship or agency or trust with any other person in
respect of its appointment under this sub-paragraph (f). The Trustee
will give prompt written notice to the Note Trustee of the location,
and of any change in the location, of any such office or agency. If at
any time the Trustee shall fail to maintain any such office or agency
or shall fail to furnish the Note Trustee with the address thereof,
such surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Trustee hereby appoints the Note
Trustee as its agent to receive all such surrenders, notices and
demands.
(g) (Agent Bank) It will procure that, so long as any of the Class A Notes
remain outstanding, there will at all times be an Agent Bank.
(h) (Change to Paying Agents or Agent Bank) It will give notice to the
Class A Noteholders in accordance with the Agency Agreement and
Condition 12 of:
(i) any appointment, resignation or removal of any Paying Agent
(other than the appointment of the initial Principal Paying
Agent) or Agent Bank;
(ii) any change to any Paying Agent's Paying Office (as defined in
the Agency Agreement); or
(iii) any change to the Agent Bank's Specified Office (as defined in
the Agency Agreement).
(i) (Notices) It will promptly give to the Note Trustee, or ensure that
the Note Trustee receives, two copies of the form of every notice
given to the Class A Noteholders in accordance with Condition 12.
(j) (Annual Statement as to Compliance) The Trustee will deliver to the
Note Trustee, within 120 days after the end of each fiscal year of the
Trust (commencing on [*]), and otherwise in compliance with the
requirements of section 314(a)(4) of the TIA, an Officer's Certificate
stating that:
(i) a review of the activities of the Trustee in respect of the Trust
during such year and of performance under the Transaction
Documents has been made under supervision of the person signing
the Officer's Certificate (the Signatory); and
(ii) to the best of the knowledge of the Signatory, based on the
review referred to in paragraph (i), the Trustee has complied
with all conditions and covenants under the Transaction Documents
throughout the relevant year, or, if there has been a default in
the compliance of any such condition or covenant, specifying each
such default known to the Signatory of the nature and status of
the default.
For the purposes of this clause 11.2(j) compliance shall be determined
without regard to any period of grace or requirement of notice under
the Transaction Documents.
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(k) (Opinions as to Trust Estate) On the Closing Date, the Trustee shall
furnish to the Note Trustee an Opinion of Counsel (who may be of
counsel for the Trustee) either stating that in the opinion of such
counsel the Security Trust Deed and any other requisite documents has
been properly recorded and filed so as to make effective the Security
Interest intended to be created by the Security Trust Deed, and
reciting the details of such action, or stating that in the opinion of
such counsel no such action is necessary to make such Security
Interest effective.
Within 120 days after the end of each fiscal year commencing on [*]
the Trustee shall furnish to the Note Trustee an Opinion of Counsel
(who may be of counsel for the Trustee) either stating that in the
opinion of such counsel such action has been taken with respect to the
recording, filing, re-recording, and refiling of the Security Trust
Deed and any other requisite documents as is necessary to maintain the
Security Interest created by the Security Trust Deed, and 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.
(l) (i) The Trustee (or the Trust Manager on its behalf) shall deliver to
the Principal Paying Agent on each Collection Determination Date
the Noteholders Report for the related Collection Period, with
written instructions for the Principal Paying Agent to forward
the Noteholders Report to each Class A Noteholder.
(ii) Each Noteholder Report shall contain the information set out in
Schedule 2.
12. Remuneration of Note Trustee
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12.1 Fee
The Trustee shall pay to the Note Trustee a fee agreed between them.
12.2 Additional Remuneration
If the Note Trustee gives a notice under Condition 10 or it undertakes
duties which it considers expedient or necessary under this deed, or which
the Trustee requests it to undertake and which duties the Note Trustee, the
Trust Manager and the Trustee agree to be of an exceptional nature or
otherwise outside the scope of the normal duties of the Note Trustee under
this deed, the Trustee shall pay to the Note Trustee any additional
remuneration as they agree.
12.3 Costs, expenses
(a) The Trustee shall also reimburse, pay or discharge all reasonable
costs, charges, liabilities and expenses and any stamp and other Taxes
or duties paid by the Note Trustee in connection with properly
undertaking its duties under the Transaction Documents and in
connection with any legal proceedings brought by the Note Trustee
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to enforce any obligation under this deed or the Class A Notes. The
Note Trustee shall not be reimbursed for any overhead or general
operating expenses incurred by the Note Trustee.
(b) Without prejudice to the right of indemnity by law given to trustees,
to the extent the Trustee is itself entitled to be indemnified, the
Trustee indemnifies the Note Trustee and every other person properly
appointed by it under this deed from and against all liabilities,
losses, damages, costs, expenses, actions, proceedings, claims and
demands incurred by or made against it or him in the execution of the
trusts of this deed or of their powers or in respect of any matter or
thing done or omitted in any way relating to this deed (other than
arising from any breach of trust, fraud, wilful default or negligence
by the Note Trustee or that person).
12.4 Overdue rate
All sums payable by the Trustee under clause 12.3 shall be payable by the
Trustee on the next Payment Date in the order set out in the Series Notice
or (if applicable) the Security Trust Deed and shall carry interest at the
rate of LIBOR from the due date. Any amount payable shall carry interest
at that rate from the due date to the date of actual payment.
12.5 Continuing obligation
Unless otherwise specifically stated in any discharge relating to this
deed the provisions of this clause shall continue in full force and effect
notwithstanding such discharge.
13. Note Trustee
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13.1 Preferential Collection of Claims Against Trustee
The Note Trustee shall comply with section 311(a) of the TIA, excluding
any creditor relationship listed in section 311(b) of the TIA. A Note
Trustee who has resigned or been removed shall be subject to section
311(a) of TIA to the extent required by the TIA.
13.2 Duties of Note Trustee
(a) If an Event of Default has occurred and is subsisting, of which a
Responsible Officer of the Note Trustee has actual knowledge, the
Note Trustee shall exercise the rights and powers vested in it by
this deed and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except while an Event of Default subsists:
(i) the Note Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this deed and no implied
covenants or obligations shall be read into this deed against
the Note Trustee; and
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(ii) in the absence of bad faith on its part, the Note Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Note Trustee and conforming to the
requirements of this deed; however, the Note Trustee shall
examine the certificates and opinions to determine whether or
not they conform to the requirements of this deed.
(c) The Note Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (a) of
this clause; and
(ii) the Note Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved
that the Note Trustee was negligent in ascertaining the
pertinent facts.
(d) Section 315(d)(3) of the TIA is expressly excluded by this deed.
13.3 Obligations of Note Trustee
The Note Trustee represents and warrants that it is duly qualified to
assume its obligations under this deed and has obtained all necessary
approvals required to perform its obligations under this deed.
13.4 Notice of Defaults
(a) If an Event of Default occurs and is subsisting and the Note Trustee
is actually aware of that Event of Default, the Note Trustee shall
mail to each Class A Noteholder notice of the Event of Default within
90 days after becoming so aware.
(b) Except in the case of a default in payment of principal of or
interest on any Class A Note (including payments pursuant to the
mandatory redemption provisions of that Class A 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 Noteholders.
13.5 Rights of Note Trustee
(a) The Note Trustee may conclusively rely on any document believed by it
to be genuine and to have been signed or presented by the proper
person. The Note Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Note Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel. The Note Trustee
shall not be liable for any action it takes, suffers or omits to take
in good faith in reliance on the Officer's Certificate or Opinion of
Counsel.
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(c) No provision of this deed shall require the Note Trustee to expend or
risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any
of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or indemnity satisfactory to it
against such risk or liability is not assured to it.
(d) The Note Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this deed or the
Class A Notes, shall not be accountable for the Trustee's use of the
proceeds from the Class A Notes, and shall not be responsible for any
statement of the Trustee in this deed or in any document issued in
connection with the sale of the Class A Notes or in the Class A Notes.
(e) The Note Trustee may in relation to this deed act on the advice or
opinion of or any information obtained from any lawyer, valuer,
accountant, banker, broker, credit-rating agency, lead manager or
other expert whether obtained by the Trustee, the Note Trustee, the
Trust Manager, the Servicer or otherwise.
(f) Any advice, opinion or information including but not limited to
advice, opinion or information from any lawyer, valuer, accountant,
banker, broker, credit-rating agency or lead manager, whether obtained
by the Trustee, the Note Trustee, the Trust Manager, the Servicer or
otherwise, may be sent or obtained by letter, telex, telegram,
facsimile transmission or cable and the Note Trustee shall not be
liable for acting on any such advice, opinion or information
purporting to be conveyed by any such letter, telex, telegram,
facsimile transmission or cable although the same shall contain some
error or shall not be authentic.
(g) The Note Trustee may call for and shall be at liberty to accept as
sufficient evidence of any fact or matter or the expediency of any
transaction or thing a certificate signed by an Authorised Signatory
of the Trustee or the Trust Manager (as the case may be) and the Note
Trustee shall not be bound in any such case to call for further
evidence or be responsible for any loss that may be occasioned by the
Note Trustee acting on that certificate.
(h) The Note Trustee is at liberty to hold or to place this deed and any
other documents relating to this deed in any part of the world (other
than Australia) with any banker or banking company or company whose
business includes undertaking the safe custody of documents or lawyer
or firm of lawyers reasonably considered by the Note Trustee to be of
good repute and neither the Note Trustee nor the Security Trustee
shall be responsible for or required to insure against any loss
incurred in connection with any such deposit and may pay all sums
required to be paid on account of or in respect of any such deposit.
(i) The Note Trustee shall not be responsible for the application of the
proceeds of the issue of any of the Class A Notes by the Trustee or
any moneys borrowed by the Trustee under any Transaction
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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Document or the exchange of any Book-Entry Note for any other Book-
Entry Note or Definitive Note, as the case may be.
(j) The Note Trustee shall not be bound to give notice to any person of
the execution of this deed or any of the Transaction Documents or any
transaction contemplated hereby or thereby or to take any steps to
ascertain whether any Event of Default has happened and, until it has
actual knowledge or express notice to the contrary, the Note Trustee
is entitled to assume that no Event of Default has happened and that
the Trustee and each other party to any Relevant Document is observing
and performing all the obligations on its part contained in the Class
A Notes and under this deed or, as the case may be, the Security Trust
Deed or any other Transaction Document to which it is a party.
(k) Save as expressly otherwise provided in this deed or the Transaction
Documents, the Note Trustee shall have absolute and uncontrolled
discretion as to the exercise of the discretions vested in the Note
Trustee by this deed and the Transaction Documents (the exercise of
which as between the Note Trustee and the Class A Noteholders) shall
be conclusive and binding on the Class A 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
Noteholders, or any of them, the Note Trustee shall nevertheless not
be so bound unless first indemnified to its satisfaction against all
actions, proceedings, claims and demands to which it may render itself
liable and all costs, charges, damages, expenses and liabilities which
it may incur by so doing.
(l) Any consent or approval given by the Note Trustee for the purpose of
this deed, the Conditions and any Transaction Document may be given on
any terms and subject to any conditions as the Note Trustee thinks fit
and despite anything to the contrary contained in this deed, any
Transaction Document or the Conditions may be given retrospectively.
(m) The Note Trustee shall not (unless and to the extent ordered so to do
by a court of competent jurisdiction) be required to disclose to any
Class A Noteholder or any Mortgagee, any confidential financial, price
sensitive or other information made available to the Note Trustee by
the Trustee or any other person in connection with the trusts of this
deed and no Class A Noteholder shall be entitled to take any action to
obtain from the Note Trustee any such information.
(n) Where it is necessary or desirable for any purpose in connection with
this deed to convert any sum from one currency to another it shall
(unless otherwise provided by this deed or required by law) be
converted at the rate or rates, in accordance with the method and as
at the date for the determination of the rate of exchange, as may be
agreed by the Note Trustee in consultation with the Trustee and the
Trust Manager as relevant and any rate, method and date so agreed
shall be binding on the Trustee, the Class A Noteholders.
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(o) The Note Trustee may certify whether or not any of the events set out
in paragraphs (b) to (e) of Condition 9 or any breach under clause 8
of the Security Trust Deed is in its opinion materially prejudicial to
the interests of the relevant Class A 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 Notes that the
Trustee had, on the due date for payment of the amount of interest in
question, sufficient cash to pay, in accordance with the provisions of
the Series Notice or the Security Trust Deed, all interest (after
payment of all sums which are permitted under the Series Notice or the
Security Trust Deed to be paid in priority to or pari passu with them)
and that certificate shall be conclusive and binding upon the Trustee,
the Class A Noteholders. The Note Trustee shall have no liability to
the Trustee, any Class A Noteholder or any other person in relation to
any such certificate or in relation to any delay or omission in
providing certificate. In giving any certificate relating to paragraph
(a) of Condition 9, the Note Trustee may rely on any determination
made by any independent accountants of recognised standing in
Australia and any such determination shall be conclusive and binding
on the Trustee and the Class A Noteholders.
(p) The Note Trustee shall not be bound to take any steps to ascertain
whether any event, condition or act, the happening of which would
cause a right or remedy to become exercisable by the Note Trustee
under this deed or by the Trustee under any of the Transaction
Documents has happened or to monitor or supervise the observance and
performance by the Trustee or any of the other parties thereto of
their respective obligations thereunder and, until it shall have
actual knowledge or express notice to the contrary the Note Trustee
shall be entitled to assume that no such event, condition or act has
happened and that the Trustee and each of the other parties thereto
are observing and performing all their respective obligations
thereunder.
(q) The Note Trustee shall not be responsible for recitals, statements,
warranties or representations of any party contained in any
Transaction Document or other document entered into in connection with
it and shall assume its accuracy and correctness and its execution,
legality, effectiveness, adequacy, genuineness, validity or
enforceability or admissibility in evidence of that agreement or other
document or any security constituted by them, and the Note Trustee may
accept without enquiry, requisition or objection all title as the
Trustee may have to any of the Mortgaged Property or as any other
person may have to any other security charged from time to time to the
Note Trustee and shall not be bound to investigate or make any enquiry
in the title of the Trustee to any of the Mortgaged Property or the
title of any other person to any other security charged from time to
time to the Note Trustee whether or not any default or failure is or
was known to the Note Trustee or might be, or might have been,
discovered upon examination inquiry or investigation and whether or
not capable of remedy. Notwithstanding the generality of the foregoing
each Class A Noteholder is solely responsible for making
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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its own independent appraisal of and investigation into the financial
condition, creditworthiness, condition, affairs, status and nature of
the Trustee and the Note Trustee shall not at any time have any
responsibility for the same and no Class A Noteholder shall rely on
the Note Trustee in that respect.
(r) The Note Trustee shall not be liable for any failure, omission or
defect in or filing or procuring registration or filing of or
otherwise protecting or perfecting the Security Trust Deed or the
Mortgaged Property or any other security or failure to call for or
delivery of documents of title to the Mortgaged Property or any other
security or to require any further assurances in relation to any
property or assets comprised in the Mortgaged Property or any other
security.
(s) The Note Trustee shall not be obliged (whether or not directed to do
so by the Class A Noteholders) to direct the Security Trustee to
perfect legal title to any Purchased Receivable Security if, in the
opinion of the Note Trustee, that perfection would or might result in
the Note Trustee becoming liable to or incurring any obligation to any
Borrower under a Purchased Receivable Security and, in its opinion,
there is or would be insufficient cash to discharge, in accordance
with the provisions of the Security Trust Deed, that liability or
obligations as and when they arise. Notwithstanding the generality of
the foregoing, the Note Trustee shall have no responsibility or
liability for the payment of any fees for the registration of any
Receivable Security in Australia or for any related legal,
administrative or other fees, costs and expenses (including, but not
limited to, any proper disbursements and any value added tax).
(t) The Note Trustee shall, as regards all the powers, trusts,
authorities, duties and discretions vested in it by this deed, the
Transaction Documents or the Class A Notes (including the Conditions),
except where expressly provided otherwise have regard to the interests
of the Class A Noteholders.
(u) Without prejudice to the provisions of any Transaction Document, the
Note Trustee shall not be under any obligation to insure any of the
Mortgaged Property (or any other property) or any deeds or documents
of title or other evidence relating to that property and shall not be
responsible for any loss, expense or liability which may be suffered
as a result of the lack of or inadequacy of any that insurance.
(v) The Note Trustee shall not be responsible for any loss, expense or
liability occasioned to the Mortgaged Property or any other property
or in respect of all or any of the moneys which may stand to the
credit of the Collection Account, from time to time however caused
(including any bank, broker, depositary, warehouseman or other
intermediary or any clearing system or its operator acting in
accordance with or contrary to the terms of any of the Transaction
Documents or otherwise), unless that loss is occasioned by the wilful
neglect or misconduct or fraud, or breach of trust of the Note
Trustee.
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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(w) The Note Trustee has no responsibility whatsoever to the Trustee or
any Class A Noteholder as regards any deficiency or additional
payment, as the case may be, which might arise because the Note
Trustee or the Trustee is subject to any Tax in respect of the
Mortgaged Property, the Security Trust Deed or any other security or
any income or any proceeds from them.
(x) No provision of this deed requires the Note Trustee to do anything
which may be illegal or contrary to applicable law or regulation or
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties, or in the exercise
of any of its rights or powers, if it has reasonable grounds to
believe that repayment of those funds or adequate indemnity against
that risk or liability is not assured to it. Without limitation
nothing contained in this deed imposes any obligation on the Note
Trustee to make any further advance to a Borrower or to borrow any
moneys under a Transaction Document or to maintain, protect or
preserve any moneys standing to the credit of the Collection Account.
(y) The Note Trustee is not responsible for the genuineness, validity,
effectiveness or suitability of any of the Transaction Documents or
any of the Mortgages, Charges or other documents entered into in
connection with them or any Mortgage Insurance Policy or any other
document or any obligation or rights created or purported to be
created by them or under them or any Security Interest or the priority
of constituted by or purported to be constituted by or pursuant to
that Security Interest, nor shall it be responsible or liable to any
person because of any invalidity of any provision of those documents
or the unenforceability of those documents, whether arising from
statute, law or decision of any court and (without limitation) the
Note Trustee shall not be responsible for or have any duty to make any
investigation in respect of or in any way be liable whatsoever for:
(i) the nature, status, creditworthiness or solvency of any
Borrower or any other person or entity who has at any time
provided any security or support whether by way of Guarantee,
Security Interest or otherwise in respect of any advance made
to any Borrower;
(ii) the execution, legality, validity, adequacy, admissibility in
evidence or enforceability of any Mortgage or Loan or any
other document entered into in connection with them;
(iii) the title, ownership, value, sufficiency or existence of any
Land, Mortgaged Property, or any Mortgage Insurance Policy;
(iv) the registration, filing, protection or perfection of any
Mortgage or the priority of the security created under a
Mortgage whether in respect of any initial advance or any
subsequent advance or any other sums or liabilities;
(v) the scope or accuracy of any representations, warranties or
statements made by or on behalf of any Borrower in any
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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application for any advance or in any Mortgage or Loan or in
any document entered into in connection with them;
(vi) the performance or observance by any Borrower or any other
person of any provisions of any Mortgage or Loan or in any
document entered into in connection with them or the
fulfilment or satisfaction of any conditions contained in them
or relating to them or as to the existence or occurrence at
any time of any default, event of default or similar event
contained in them or any waiver or consent which has at any
time been granted in relation to any of the above;
(vii) the existence, accuracy or sufficiency of any legal or other
opinions, searches, reports, certificates, valuations or
investigations delivered or obtained or required to be
delivered or obtained at any time in connection with any
Mortgage or Loan;
(viii) the title of the Trustee to any Mortgage, Loan or other
Mortgaged Property;
(ix) the suitability, adequacy or sufficiency of any guidelines
under which Loans are entered into or compliance with those
guidelines or compliance with any applicable criteria for any
further advances or the legality or ability or enforceability
of the advances or the priority of the Mortgage in relation to
the advances;
(x) the compliance of the provisions and contents of and the
manner and formalities applicable to the execution of the
Mortgages and Loans and any documents connected with them or
the making of any advance intended to be secured by them or
with any applicable laws or regulations (including Consumer
Credit Legislation);
(xi) the failure by any Approved Seller, the Trustee, the Servicer
or the Trust Manager to obtain or comply with any
Authorisation in connection with the origination, sale,
purchase or administration of any of the Mortgages or Loans or
the making of any advances in connection with them or the
failure to effect or procure registration of or to give notice
to any person in relation to or otherwise protect the security
created or purported to be created by or pursuant to any of
the Mortgages or Loans or other documents entered into in
connection with them;
(xii) the failure to call for delivery of documents of title to or
require any transfers, legal mortgages, charges or other
further assurances in relation to any of the assets the
subject matter of any of the Transaction Documents or any
other document;
(xiii) any accounts, books, records or files maintained by any
Approved Seller, the Servicer, the Trustee, the Trust Manager
or any other person in respect of any of the Mortgages or
Loans; or
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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(xiv) any other matter or thing relating to or in any way connected
with any Mortgage or Loans or any document entered into in
connection with them whether or not similar to the above.
(z) The Note Trustee is not liable or responsible for any loss, cost,
damages, expenses or inconvenience which may result from anything done
or omitted to be done by it in accordance with the provisions of this
deed, any Transaction Document or any other document or as a
consequence of or in connection with it being held or treated as, or
being deemed to be, a creditor, for the purposes of the Consumer
Credit Legislation, in respect of any of the Mortgages.
(aa) In connection with any proposed modification, waiver, authorisation or
determination permitted by this deed, the Note Trustee shall not have
regard to the consequences thereof for individual Class A Noteholders
resulting from their being for any purpose domiciled or resident in,
or otherwise connected with, or subject to, the jurisdiction of any
particular territory.
(bb) The Note Trustee shall have no responsibility for the maintenance of
any rating of the Class A Notes by a Designated Rating Agency or any
other credit-rating agency or any other person.
(cc) The Note Trustee has no liability whatsoever for any loss, cost,
damage or expenses directly or indirectly suffered or incurred by the
Trustee, any Class A Noteholder or any other person as a result of the
delivery by the Note Trustee of a certificate, or the omission by it
to deliver a certificate, to the Trustee as to material prejudice
pursuant to Condition 9 on the basis of an opinion formed by it in
good faith.
(dd) The Note Trustee shall be under no obligation to monitor or supervise
the functions of the Servicer from time to time under the terms of the
Servicing Agreement or any other person under any other Transaction
Document, including and is entitled, in the absence of actual
knowledge of a breach of duty or obligation, to assume that the
Servicer is properly performing its obligations in accordance with the
provisions of the Servicing Agreement or that any other person is
properly performing its obligations in accordance with each other
Transaction Document, as the case may be.
(ee) The Note Trustee acknowledges that the Trust Manager is responsible,
under the Series Notice, for calculating all amounts referred to in
clause 6.2 of the Series Notice (other than calculations required to
be made by the Agent Bank under the Agency Agreement) and the Note
Trustee has no liability in respect of these calculations other than
as a result of the negligence, bad faith or wilful default of the Note
Trustee.
(ff) The Note Trustee shall not be liable to the Trustee, or any Class A
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
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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confirmation certified as true and accurate and signed on behalf of
the Common Depositary or any common depositary for them or any person
as the Note Trustee reasonably considers appropriate, or any form of
record made by any of them to the effect that at any particular time
or through any particular period any particular person is, was, or
will be, shown in its records as entitled to a particular number of
Class A Notes.
14. Note Trustee's Liability
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Nothing in this deed shall in any case in which the Note Trustee has failed
to show the degree of care and diligence required of it as trustee having
regard to the provisions of this deed conferring on it any powers,
authorities or discretions exempt the Note Trustee from or indemnify it
against any liability for breach of trust or any liability which by virtue
of any rule of law would otherwise attach to it in respect of any wilful
misconduct, negligence, default, breach of duty or breach of trust of which
it may be guilty in relation to its duties under this deed.
15. Delegation by Note Trustee
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(a) The Note Trustee may whenever it thinks fit delegate by power of
attorney or otherwise to any person or persons for any period (whether
exceeding one year or not) or indefinitely all or any of the trusts,
powers and authorities vested in the Note Trustee by this deed and
that delegation may be made upon any terms and subject to any
conditions (including power to sub-delegate) and subject to any
regulations as the Note Trustee may in the interests of the Class A
Noteholders think fit.
(b) If the Note Trustee exercises reasonable care in the selection of a
delegate under paragraph (a), the Note Trustee shall not be in any way
responsible for any loss incurred by reason of any misconduct or
default on the part of any delegate or sub-delegate. The Note Trustee
must within a reasonable time prior to any delegation or any renewal,
extension or termination of any delegation give notice of it to the
Trustee.
16. Employment of Agent by Note Trustee
--------------------------------------------------------------------------------
The Note Trustee may in the conduct of the trusts of this deed instead of
acting personally employ and pay an agent, whether being a lawyer or other
professional person, to transact or concur in transacting any business and
to do or concur in doing all acts required to be done in connection with
the trusts of this deed. If the Note Trustee exercises reasonable care in
the selection of that agent, the Note Trustee shall not in any way be
responsible for any loss incurred by reason of any misconduct or default on
the part of that agent.
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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Any trustee of this deed which is a lawyer, accountant, broker or other
person engaged in any profession or business is entitled to charge and be
paid all usual professional and other charges for business transacted and
acts done by him or his firm in connection with the trusts of this deed and
also his reasonable charges in addition to disbursements for all other work
and business done and all time spent by him or his firm in connection with
matters arising in connection with this deed. Those charges will be for
the account of the Note Trustee who shall be reimbursed by the Trustee
under clause 12.
17. Note Trustee Contracting with Trustee
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Neither the Note Trustee nor any director or officer of a corporation
acting as a trustee under this deed, nor the Security Trustee, is by reason
of its or their fiduciary position in any way precluded from entering into
or being interested in any contract or financial or other transaction or
arrangement with the Trustee or any other party to any of the Transaction
Documents or any person or body corporate associated with the Trustee
including any contract, transaction or arrangement of a banking or
insurance nature or any contract, transaction or arrangement in relation to
the making of loans or the provision of financial facilities to or the
purchase, placing or underwriting of or subscribing or procuring
subscriptions for or otherwise acquiring holding or dealing with the Class
A Notes, or any of them, or any other bonds, stocks, shares, debenture
stock, debentures, notes or other securities of the Trustee or any other
party to any of the Transaction Documents or any related person or body
corporate or from accepting or holding the trusteeship of any other trust
deed constituting or securing any other securities issued by or relating to
the Trustee or any other party to any of the Transaction Documents or any
related person or body corporate or any other office of profit under the
Trustee or any other party to any of the Transaction Documents or any
related person or body corporate and shall be entitled to retain and shall
not be in any way liable to account for any profit made or share of
brokerage or commission or remuneration or other benefit received or in
connection with any of those arrangements.
18. Waiver
--------------------------------------------------------------------------------
(a) The Note Trustee may without prejudice to its rights in respect of any
subsequent breach, condition, event or act from time to time and at
any time (but only if, and in so far as, in its opinion the interests
of any of the Class A Noteholders are not materially prejudiced),
waive or authorise on any terms and subject to any conditions as it
sees fit and proper:
(i) any breach or proposed breach by the Trustee of any of the
covenants or provisions contained in this deed or in the Class
A Notes (including the Conditions) or any other Transaction
Document; or
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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(ii) determine that any condition, event or act which constitutes,
or which with the giving of notice, the lapse of time or the
issue of a certificate would constitute, but for that
determination, an Event of Default shall not, or shall not
subject to specified conditions, be so treated for the purposes
of this deed,
but the Note Trustee shall not exercise any powers conferred on it by
this clause in contravention of any express direction given in writing
by holders of Class A Notes representing at least 75% of the aggregate
Invested Amount of the Class A Notes or by a request under Condition
10(d). No direction or request shall affect any waiver, authorisation
or determination previously given or made.
(b) Any waiver, authorisation or determination under this clause is
binding on the Class A Noteholders and if, but only if, the Note
Trustee so requires, shall be notified by the Trustee to the Class A
Noteholders in accordance with Condition 12 as soon as practicable.
19. Amendment
--------------------------------------------------------------------------------
19.1 Approval
The Note Trustee, the Trust Manager and the Trustee may, following giving
notice to each Designated Rating Agency, by way of supplemental deed alter,
add to or modify this deed (including this clause 19), the Conditions
(other than the proviso in clause 33.2 or any provision of this deed or the
Conditions referred to in that proviso) and this clause or any Transaction
Document so long as that alteration, addition or modification is:
(a) to correct a manifest error or ambiguity or is of a formal, technical
or administrative nature only;
(b) in the opinion of the Note Trustee necessary to comply with the
provisions of any law or regulation or with the requirements of any
Government Authority;
(c) in the opinion of the Note Trustee appropriate or expedient as a
consequence of an amendment to any law or regulation or altered
requirements of any Government Agency (including, without limitation,
an alteration, addition or modification which is in the opinion of the
Note Trustee appropriate or expedient as a consequence of the
enactment of a law or regulation or an amendment to any law or
regulation or ruling by the Commissioner or Deputy Commissioner of
Taxation or any governmental announcement or statement, in any case
which has or may have the effect of altering the manner or basis of
taxation of trusts generally or of trusts similar to the Trust); or
(d) in the opinion of the Note Trustee neither materially prejudicial nor
likely to be prejudicial to the interest of the Class A Noteholders as
a whole or,
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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and in the manner, and to the extent, permitted by the Transaction
Documents.
19.2 Resolution of Class A Noteholders
Where in the opinion of the Note Trustee a proposed alteration, addition
or modification to this deed, other than an alteration, addition or
modification referred to in clause 19.1, is materially prejudicial or
likely to be materially prejudicial to the interest of Class A Noteholders
as a whole or any class of Class A Noteholders, or the Note Trustee, the
Trust Manager and the Trustee may make that alteration, addition or
modification if sanctioned in writing by holders of at least 75% of the
aggregate Invested Amount of the Class A Notes.
19.3 Distribution of amendments
The Trust Manager shall distribute to all Class A Noteholders a memorandum
setting out the substance of any amendments made under clause 19.1 or 19.2
under Condition 12 as soon as reasonably practicable after the amendment
has been made.
19.4 Amendments binding
Any amendment under this clause is binding on the Class A Noteholders.
19.5 Conformity with TIA
Every amendment of this deed executed pursuant to this clause 19 shall
conform to the requirements of the TIA as then in effect so long as this
deed shall then be qualified under the TIA.
20. Class A Noteholders
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20.1 Absolute Owner
(a) The Trustee, the Trust Manager, the Security Trustee, the Note
Trustee and any Paying Agent may treat the registered holders of any
Definitive Note as the absolute owner of that Definitive Note
(whether or not that Definitive Note is overdue and despite any
notation or notice of ownership or writing on it or any notice of
previous loss or theft of it or trust or other interest in it) for
the purpose of making payment and for all purposes and none of the
Trustee, the Trust Manager, the Security Trustee, the Note Trustee or
the Paying Agents is affected by any notice to the contrary.
(b) So long as the Class A Notes, or any of them, are represented by a
Book-Entry Note, the Trustee, the Trust Manager, the Note Trustee and
any Paying Agent may treat the person for the time being shown in the
records of the Clearing Agency as the holder of any Class A Note as
the absolute owner of that Class A Note and the Trustee, the Trust
Manager, the Note Trustee and the Paying Agents are not affected by
any notice to the contrary, but without prejudice to the entitlement
of the registered holder of the Book-Entry Note to be
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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paid principal and interest on the Book-Entry Note in accordance with
its terms. Such person shall have no claim directly against the
Trustee in respect of payment due on the Class A Notes for so long as
the Class A Notes are represented by a Book-Entry Note and the
relevant obligations of the Trustee will be discharged by payment to
the registered holder of the Book-Entry Note in respect of each amount
so paid.
(c) Any payments by the Trustee to the registered holder of a Book- Entry
Note or to an owner of an Class A Note under this clause will be a
good discharge to the Trustee.
(d) All payments made to the owner of an Class A Note under this clause
(or, in the case of a Book-Entry Note, to or to the order of the
registered holder of that Book-Entry Note) shall be valid and, to the
extent of the sums so paid, effective to satisfy and discharge the
liability for the moneys payable upon those Class A Notes.
(e) Any instalment of interest or principal, payable on any Class A Note
which is punctually paid or duly provided for by the Trustee to the
Paying Agent on the applicable Payment Date or Maturity Date shall be
paid to the person in whose name such 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 Definitive Notes have been issued
pursuant to clause 3.3, with respect to Class A Notes registered on
the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by
wire transfer in immediately available funds to the account designated
by such nominee and except for the final instalment of principal
payable with respect to such Class A Note on a Payment Date or
Maturity Date and except for the redemption for any Class A Note
called for redemption pursuant to Condition 5 which shall be payable
as provided in paragraph (f).
(f) The principal of each Class A Note shall be payable on each Payment
Date and the Maturity Date as set forth in the Conditions. The
Principal Paying Agent shall notify the person in whose name a Class A
Note is registered at the close of business on the Record Date
preceding the Payment Date on which the Trustee expects that the final
instalment of principal of and interest on such Class A 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
Note and shall specify the place where such Class A Note may be
presented and surrendered for payment of such instalment. Notices in
connection with redemptions of Class A Notes shall be mailed to the
Class A Noteholders as provided in clause 31.4.
20.2 Clearing Agency Certificate
The Trustee, the Trust Manager and the Note Trustee may call for and shall
be at liberty to accept and place full reliance on as sufficient evidence
a
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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certificate or letter or confirmation signed on behalf of any Clearing
Agency or any form of record made by either of them to the effect that at
any particular time or throughout any particular period any particular
person is, was, or will be, shown in its records as entitled to a
particular interest in a Book-Entry Note.
21. Currency Indemnity
--------------------------------------------------------------------------------
Subject to this deed, the Trustee indemnifies the Note Trustee and the
Class A Noteholders and keeps them indemnified against:
(a) any loss or damage incurred by any of them arising from the non-
payment by the Trustee of any US$ due to the Note Trustee or the
relevant Class A Noteholders under this deed or the relevant Class A
Notes by reason of any variation in the rates of exchange between
those used for the purposes of calculating the amount due under a
judgment or order in respect of that payment, which amount is
expressed in a currency other than US$, and under which the Note
Trustee, the Class A Noteholders do not have an option to have that
judgment or order expressed in US$, and those prevailing at the date
of actual payment by the Trustee; and
(b) any deficiency arising or resulting from any variation in rates of
exchange between:
(i) the date (if any) as of which the non-US$ currency equivalent of
the US$ amounts due or contingently due under this deed (other
than this clause) or in respect of the relevant Class A Notes is
calculated for the purposes of any bankruptcy, insolvency or
liquidation of the Trustee; and
(ii) the final date for ascertaining the amount of claims in that
bankruptcy, insolvency or liquidation provided that in that
bankruptcy, insolvency or liquidation claims are required to be
made in a currency other than US$.
The amount of that deficiency shall not be reduced by any variation
in rates of exchange occurring between that final date and the date
of any distribution of assets in connection with that bankruptcy,
insolvency or liquidation.
(c) The indemnities in this clause are obligations of the Trustee
separate and independent from its obligations under the Class A Notes
and apply irrespective of any time or indulgence granted by the Note
Trustee or the Class A Noteholders from time to time and shall
continue in full force and effect despite the judgment or filing of
any proof or proofs in any bankruptcy, insolvency or liquidation of
the Trustee for a liquidated sum or sums in respect of amounts due
under this deed (other than this clause) or the Class A Notes. Any
deficiency will constitute a loss suffered by the Class A Noteholders
and no proof or evidence of any actual loss shall be required by the
Trustee or its liquidator.
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22. New Note Trustees
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22.1 Appointment by Trustee
The Trustee may on the recommendation of the Trust Manager at any time
appoint a new note trustee of this deed who has previously been approved
in [writing by holders of at least 75% of the aggregate Invested Amount of
the Class A Notes. One or more persons may hold office as note trustee or
note trustees of this deed but that note trustee or note trustees must be
or include a Trust Corporation. Whenever there are more than two note
trustees of this deed the majority of those note trustees are competent to
execute and exercise all the duties, powers, trusts, authorities and
discretions vested in the Note Trustee by this deed if a Trust Corporation
is included in that majority.
22.2 Appointment by Note Trustee
(a) The Note Trustee may, on 30 days prior written notice to the Trustee
and Trust Manager, appoint any person established or resident in any
jurisdiction (whether a Trust Corporation or not) to act either as a
separate note trustee or as a co-note trustee jointly with the Note
Trustee:
(i) if the Note Trustee considers that appointment to be in the
interests of the Class A Noteholders;
(ii) for the purposes of conforming to any legal requirements,
restrictions or conditions in any jurisdiction in which any
particular act or acts is or are to be performed; or
(iii) for the purposes of obtaining a judgment in any jurisdiction or
the enforcement in any jurisdiction of either a judgment
already obtained or any of the provisions of this deed against
the Trustee.
(b) Subject to the provisions of this deed, a person appointed under
paragraph (a) has all trusts, powers, authorities and discretions
(not exceeding those conferred on the Note Trustee by this deed) and
all duties and obligations conferred or imposed by the instrument of
appointment. All rights, powers, duties and obligations conferred or
imposed upon the Note Trustee shall be conferred or imposed upon and
exercised or performed by the Note Trustee and such separate note
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorised to act separately without the
Note Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are
to be performed the Note Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of
the Note Trustee.
(c) The Note Trustee may remove any person appointed under this clause.
The reasonable remuneration of any person appointed under this clause
together with any costs, charges and expenses properly
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incurred by it in performing its function as note trustee or co-note
trustee will be costs, charges and expenses incurred by the Note
Trustee under this deed.
22.3 Notice
(a) The Trustee shall notify the Principal Paying Agent and the Class A
Noteholders of any appointment of a new note trustee or any
retirement or removal of an existing note trustee of this deed as
soon as practicable after becoming aware of that appointment,
retirement or removal.
(b) The Note Trustee shall notify each Designated Rating Agency of any
appointment of a new note trustee or its retirement or removal as
soon as practicable.
23. Note Trustee's Retirement and Removal
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23.1 Removal by Trustee
The Trustee (or the Trust Manager on its behalf after advising the
Trustee) may at any time terminate the appointment of the Note Trustee by
giving written notice to that effect to each Designated Rating Agency and
the Note Trustee with effect immediately on that notice, if any of the
following occurs in relation to the Note Trustee:
(a) an Insolvency Event has occurred in relation to the Note Trustee;
(b) the Note Trustee has ceased its business;
(c) the Note Trustee has failed to remedy, within fourteen days after
written notice by the Trustee or Trust Manager, any material breach
of this deed on the part of the Note Trustee; or
(d) the Note Trustee fails to satisfy any obligation imposed on it under
the TIA with respect to the Trust or this deed or comply with clause
23.6.
23.2 Removal by Class A Noteholders
The Class A Noteholders may resolve by written consent of the holders of
at least 75% of the aggregate Invested Amount of Class A Notes to require
the Trustee (or the Trust Manager on its behalf) to remove the Note
Trustee or note trustees for the time being of this deed.
23.3 Resignation
Subject to this clause 23, the Note Trustee may resign its appointment
under this deed at any time by giving to the Trustee, the Trust Manager
and each Designated Rating Agency not less than 3 months written notice to
that effect, which notice shall expire not less than 30 days before nor 30
days after any due date for payment of any Class A Notes.
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23.4 Rating Agencies confirmation
Any resignation or removal of the Note Trustee and appointment of a
successor note trustee will not become effective until acceptance of the
appointment by that successor note trustee and confirmation by the
Designated Rating Agencies that such appointment will not cause a
downgrading, qualification or withdrawal of the then current ratings of
the Class A Notes.
23.5 Trust Corporation
The Trustee undertakes that if the only Note Trustee which is a Trust
Corporation retires or is removed it will use its best endeavours to
appoint a new note trustee of this deed which is a Trust Corporation as
soon as reasonably practicable. The retirement or removal of any Note
Trustee shall not become effective until a successor Note Trustee which is
a Trust Corporation is appointed.
23.6 Successor to Note Trustee
(a) On the execution by the Trustee, the Trust Manager and any successor
Note Trustee of an instrument effecting the appointment of that
successor Note Trustee, that successor Note Trustee shall, without
any further act, deed or conveyance, become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations
of the predecessor Note Trustee with effect as if originally named as
Note Trustee in this deed and that predecessor Note Trustee, on
payment to it of the pro rata proportion of its fee and disbursements
then unpaid (if any), shall have no further liabilities under this
deed, except for any accrued liabilities arising from or relating to
any act or omission occurring prior to the date on which the
successor Note Trustee is appointed.
(b) Any corporation:
(i) into which the Note Trustee is merged;
(ii) with which the Note Trustee is consolidated;
(iii) resulting from any merger or consolidation to which the Note
Trustee is a party;
(iv) to which the Note Trustee sells or otherwise transfers all or
substantially all the assets of its corporate trust business,
shall, on the date when that merger, conversion, consolidation, sale
or transfer becomes effective and to the extent permitted by
applicable law, become the successor Note Trustee under this deed
without the execution or filing of any agreement or document or any
further act on the part of the parties this deed, unless otherwise
required by the Trustee or the Trust Manager, and after that
effective date all references in this deed to the Note Trustee shall
be references to that corporation.
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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23.7 Eligibility; Disqualification
(a) The Note Trustee shall at all times satisfy the requirements of
section 310(a) of the TIA.
(b) The Note Trustee shall have a combined capital and surplus (as those
terms are used in the TIA) of [at least US$50,000,000] as set forth
in its most recent published annual report of condition.
(c) The Note Trustee shall comply with section 310(b) of the TIA provided
that any indenture or indentures under which other securities of the
Trustee are outstanding shall be excluded from the operation of
section 310(b)(1) of the TIA for the purposes of paragraph (b) if the
requirements for such exclusion set out in section 310(b)(1) of the
TIA are met.
24. Note Trustee's Powers Additional
--------------------------------------------------------------------------------
The powers conferred upon the Note Trustee by this deed shall be in
addition to any powers which may from time to time be vested in the Note
Trustee by the general law or as a holder of any of the Class A Notes.
25. Severability of Provisions
--------------------------------------------------------------------------------
Any provision of this deed which is prohibited or unenforceable in any
jurisdiction is ineffective as to that jurisdiction to the extent of the
prohibition or unenforceability. That does not invalidate the remaining
provisions of this deed nor affect the validity or enforceability of that
provision in any other jurisdiction.
26. Notices
--------------------------------------------------------------------------------
26.1 General
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this deed:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when delivered,
received or left at the address of the recipient shown in clause
26.2 or to any other address which it may have notified by the
recipient to the sender;
(ii) (in the case of facsimile transmission) on receipt of a
transmission report confirming successful transmission to the
number shown in clause 26.2 or any other number notified by the
recipient to the sender under this clause 26; and
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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(iii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission to
the number shown in clause 26.2 or any other number notified
by the recipient to the sender under this clause 26,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is sent
or is later than 4.00 pm (local time), it will be taken to have been
duly given or made at the commencement of business on the next day on
which business is generally carried on in that place.
26.2 Details
The address, facsimile and telex of each party at the date of this deed
are as follows:
The Trustee
WESTPAC SECURITIES ADMINISTRATION LIMITED
Level 5, Endeavour House
00 Xxxx Xxxxxx
XXXXXX XXX 0000
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Trustee Securitisation Manager
The Trust Manager
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
Level 6
00 Xxxxxx Xxxxx
XXXXXX XXX 0000
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Securitisation Trust Manager
Copy to: Xxxxx X Xxxx, Xx
C/- Westpac Banking Corporation
000 Xxxxx Xxxxxx
39th Floor
New York N.Y. 10023]
The Principal Paying Agent
[*]
Fax: [*]
Attention: [*]
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The Note Trustee
[*]
Fax: [*]
Attention: [*]
27. Governing Law and Jurisdiction
--------------------------------------------------------------------------------
This deed is governed by the laws of New South Wales. Each party submits
to the non-exclusive jurisdiction of courts exercising jurisdiction there.
28. Counterparts
--------------------------------------------------------------------------------
This deed may be executed in any number of counterparts. All counterparts
together will be taken to constitute one instrument.
29. Limited Recourse
--------------------------------------------------------------------------------
29.1 General
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Trust Manager under this deed.
29.2 Liability of Trustee limited to its right to indemnity
(a) The Trustee enters into this deed only in its capacity as trustee of
the Trust and in no other capacity. A liability arising under or in
connection with this deed or the Trust can be enforced against the
Trustee only to the extent to which it can be satisfied out of
property of the Trust out of which the Trustee is actually
indemnified for the liability. This limitation of the Trustee's
liability applies despite any other provision of this deed and
extends to all liabilities and obligations of the Trustee in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to this deed or the Trust.
(b) The parties other than the Trustee may not sue the Trustee in any
capacity other than as trustee of the Trust or seek the appointment
of a receiver (except under the Security Trust Deed), or a
liquidator, an administrator or any similar person to the Trustee or
prove in any liquidation, administration or arrangements of or
affecting the Trustee.
(c) The provisions of this clause 29 shall not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied
because under a Transaction Document or by operation of law there is
a reduction in the extent of the Trustee's indemnification out of the
Assets of the Trust as a result of the Trustee's fraud, negligence or
breach of trust.
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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(d) Without affecting any limit or exclusion of liability in relation to
the duties, powers or obligations under the Transaction Documents of
any of the Trust Manager, the Servicer, the Currency Swap Providers,
the Note Trustee, the Principal Paying Agent, the other Paying Agents
or the Agent Bank (each a Relevant Party), it is acknowledged that
the Trust Manager, the Servicer, the Currency Swap Providers, the
Note Trustee, the Principal Paying Agent, the other Paying Agents and
the Agent Bank (each a Relevant Party) are responsible under this
deed and the other Transaction Documents for performing a variety of
obligations relating to the Trust. No act or omission of the Trustee
(including any related failure to satisfy its obligations under this
deed) will be considered fraud, negligence or breach of trust of the
Trustee for the purpose of sub-paragraph (c) to the extent to which
the act or omission was caused or contributed to by any failure by
any Relevant Party or any other person who provides services in
respect of the Trust (other than a person who has been delegated or
appointed by the Trustee and for whom the Trustee is responsible
under this deed or the relevant Transaction Documents, but excluding
any Relevant Party) to fulfil its obligations relating to the Trust
or by any other act or omission of a Relevant Party or any other
person who provides services in respect of the Trust (other than a
person who has been delegated or appointed by the Trustee and for
whom the Trustee is responsible under this deed or the relevant
Transaction Documents, but excluding any Relevant Party).
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this deed or any other Transaction Documents
(including a Relevant Party) has authority to act on behalf of the
Trustee in a way which exposes the Trustee to any personal liability
and no act or omission of any such person will be considered fraud,
negligence or breach of trust of the Trustee for the purpose of sub-
paragraph (c), if the Trustee has exercised reasonable care in the
selection and supervision of such a person.
29.3 Unrestricted remedies
Nothing in clause 29.2 limits any party (other than the Trustee) in:
(a) obtaining an injunction or other order to restrain any breach of this
deed by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
29.4 Restricted remedies
Except as provided in clause 29.3, no Paying Agent shall:
(a) (judgment) obtain a judgment for the payment of money or damages by
the Trustee;
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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(b) (statutory demand) issue any demand under s459E(1) of the
Corporations Law (or any analogous provision under any other law)
against the Trustee;
(c) (winding up) apply for the winding up or dissolution of the Trustee;
(d) (execution) levy or enforce any distress or other execution to, on,
or against any assets of the Trustee;
(e) (court appointed receiver) apply for the appointment by a court of a
receiver to any of the assets of the Trustee;
(f) (set-off or counterclaim) exercise or seek to exercise any set-off or
counterclaim against the Trustee; or
(g) (administrator) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and each Paying Agent waives its
rights to make those applications and take those proceedings.
30. Successor Trustee
--------------------------------------------------------------------------------
The Note Trustee shall do all things reasonably necessary to enable any
successor Trustee appointed under clause 24 of the Master Trust Deed to
become the Trustee under this deed.
31. Class A Noteholders' Lists and Reports
--------------------------------------------------------------------------------
31.1 Provision of information
The Trustee will furnish or cause to be furnished to the Note Trustee:
(a) every six months (with the first six month period commencing on the
Closing Date) (each such date being a Notice Date), a list, in such
form as the Note Trustee may reasonably require, of the names and
addresses of the Class A Noteholders as of the Record Date
immediately preceding that Notice Date; and
(b) at such other times as the Note Trustee may request in writing,
within 30 days after receipt by the Trustee of any such request, a
list of similar form and content as of a date not more than 10 days
prior to the time such list is furnished,
provided that so long as:
(c) the Note Trustee is the Note Registrar; or
(d) the Class A Notes are Book-Entry Notes,
no such list shall be required to be furnished.
31.2 Preservation of Information; Communications to Class A Noteholders
(a) The Note Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Class A
Noteholders
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contained in the most recent list (if any) furnished to the Note
Trustee as provided in clause 31.1 and, so long as it continues to
act as Note Registrar, the names and addresses of Class A Noteholders
received by the Note Trustee in its capacity as Note Registrar. The
Trustee may destroy any list furnished to it as provided in such
clause 31.1 upon receipt of a new list so furnished.
(b) Class A Noteholders may communicate pursuant to section 312(b) of the
TIA with other Class A Noteholders with respect to their rights under
this Deed or under the Class A Notes.
(c) The Trustee, Note Trustee and Note Registrar shall have the
protection of section 312(c) of the TIA.
31.3 Reports by Note Trustee
If required by section 313(a) of the TIA, within 60 days after each 30
June, beginning with [*], the Note Trustee shall mail to each Class A
Noteholder and the Trustee as required by section 313(c) of the TIA a
brief report dated as of such date that complies with section 313(a) of
the TIA. The Note Trustee also shall comply with section 313(b) of the
TIA. A copy of each report at the time of its mailing to 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
Trust Manager on behalf of the Trustee shall notify the Note Trustee if
and when the Class A Notes are listed on any stock exchange.
31.4 Notices to Class A Noteholders; Waiver
Where this deed provides for notice to Class A 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
Class A 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 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 Noteholder shall affect the sufficiency of such
notice with respect to other Class A 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 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 Class A Noteholders when such notice is
required to be given pursuant to any provision of this deed, then any
manner of giving such notice as the Trustee shall direct the Note Trustee
shall be deemed to be a sufficient giving of such notice.
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31.5 Reports by Trustee
The Trustee shall:
(a) file with the Note Trustee, within 15 days after the Trustee is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the
Trustee may be required to file with the Commission pursuant to
section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended;
(b) file with the Note Trustee and the Commission in accordance with
rules and regulations prescribed from time to time by the Commission
such additional information, documents and reports with respect to
compliance by the Trustee with the conditions and covenants of this
deed as may be required from time to time by such rules and
regulations; and
(c) supply to the Note Trustee (and the Note Trustee shall transmit by
mail to all Class A Noteholders described in section 313(c) of the
TIA) such summaries of any information, documents and reports
required to be filed by the Trustee pursuant to clauses (a) and (b)
of this clause 31.5 as may be required by rules and regulations
prescribed from time to time by the Commission.
32. Trust Indenture Act - Miscellaneous
--------------------------------------------------------------------------------
32.1 Compliance Certificates and Opinions, etc
(a) Upon any application or request by the Trustee to the Note Trustee to
take any action under any provision of this deed, the Trustee shall
furnish to the Note Trustee:
(i) an Officer's Certificate stating that all conditions precedent,
if any, provided for in this deed relating to the proposed
action have been complied with;
(ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been
complied with; and
(iii) (if required by the TIA) an Independent Certificate from a firm
of certified public accountants meeting the applicable
requirements of section 314(c)(3) of the TIA, except that, in
the case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this deed, no additional certificate or opinion
need be furnished.
(b) (i) Prior to the deposit of any property or securities with the
Trustee that is to be made the basis for the release of any
property or securities subject to the Security Interest created
by the Security Trust Deed, the Trustee shall, in addition to
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any obligation imposed in clause 32.1(a) or elsewhere in this
deed, furnish to the Note Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such
deposit) of the property or securities to be so deposited.
(ii) Whenever any property or securities are to be released from the
Security Interest created by the Security Trust Deed, the
Trustee shall also furnish to the Note Trustee an Officer's
Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within 90 days
of such release) of the property or securities proposed to be
released and stating that in the opinion of such person the
proposed release will not impair the security under the
Security Trust Deed in contravention of the provisions of the
Security Trust Deed or this deed.
(iii) Whenever the Trustee is required to furnish to the Note Trustee
an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in paragraphs
(i) and (ii), the Trustee shall also furnish to the Note
Trustee an Independent Certificate as to the same matters if
the fair value of the property or securities and of all other
property or securities deposited or released from the Security
Interest created by the Security Trust Deed since the
commencement of the then current calendar year, as set forth in
the certificate required by clause (ii) and this clause (iii),
equals 10% or more of the Total Invested Amount of the Notes,
but such certificate need not be furnished in the case of any
release of property or securities if the fair value thereof as
set forth in the related Officer's Certificate is less than
$25,000 or less than one percent of the then Total Invested
Amount of the Notes.
Notwithstanding any other provision of this clause, the Trustee
may:
(A) collect, liquidate, sell or otherwise dispose of
Receivables or other Assets of the Trust as and to the
extent permitted or required by the Transaction Documents;
and
(B) make cash payments out of the Collection Account or the
US$ Account as and to the extent permitted or required by
the Transaction Documents.
(c) Every Officer's Certificate or opinion with respect to compliance
with a condition or covenant provided for in this deed shall include:
(i) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
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(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
32.2 Undertaking for Costs
(a) Subject to paragraph (b), all parties to this deed agree, and each
Class A Noteholder by such Class A Noteholder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under
this deed, or in any suit against the Note Trustee for any action
taken, suffered or omitted by it as the Note Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith
of the claims or defences made by such party litigant.
(b) The provisions of this clause shall not apply to:
(i) any suit instituted by the Note Trustee;
(ii) any suit instituted by any Class A Noteholder, or group of Class
A Noteholders in each case holding in the aggregate more than
10% of the aggregate Invested Amount of the Class A Notes; or
(iii) any suit instituted by any Class A Noteholder for the
enforcement of the payment of principal or interest on any Class
A Note on or after the respective due dates expressed in such
Class A Note and in this deed (or, in the case of final
redemption of a Class A Note, on or after the Final Maturity
Date).
32.3 Exclusion of section 316
(a) Section 316(a)(1) of the TIA is expressly excluded by this deed.
(b) For the purposes of section 316(a)(2) of the TIA in determining
whether any Class A Noteholders have concurred in any relevant
direction or consent, Notes owned by the Trustee or by any Associate
of the Trustee, shall be disregarded, except that for the purposes of
determining whether the Note Trustee shall be protected in relying on
any such direction or consent, only Class A Notes which the Note
Trustee knows are so owned shall be so disregarded.
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32.4 Unconditional Rights of Class A Noteholders to Receive Principal and
Interest
Notwithstanding any other provisions in this deed, any Class A 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 Note on
or after the respective due dates thereof expressed in such Class A Note or
in this deed (or, in the case of final redemption of a Class A Note, on or
after the Final Maturity Date) and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the consent
of such Class A 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.
32.5 Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in this indenture by any
of the provisions of the Trust Indenture Act, such required provision shall
prevail.
The provisions of section 310 to 317 (inclusive) of the TIA that impose
duties on any person (including the provisions automatically deemed
included herein unless expressly excluded by this deed) are a part of and
govern this deed, whether or not contained herein.
33. Consent of Class A Noteholders
--------------------------------------------------------------------------------
33.1 General
Except as expressly provided in elsewhere in this deed or in clause 33.2
below, any action that may be taken by the Class A Noteholders under this
deed may be taken by registered holders of not less than a majority of the
aggregate Invested Amount of Class A Notes.
33.2 Special Written Approvals
(a) The following matters are only capable of being effected by the
approval in writing of holders of at least 75% of the aggregate
Invested Amount of the Class A Notes, namely:
(i) modification of the date fixed for final maturity of the Class A
Notes;
(ii) reduction or cancellation of the principal payable on the Class
A Notes or any alteration of the date or priority of redemption
of the Class A Notes;
(iii) alteration of the amount of interest payable on any class of the
Class A Notes or modification of the method of calculating the
amount of interest payable on the Class A Notes or modification
of the date of payment of or interest payable on the Class A
Notes;
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(iv) alteration of the currency in which payments under the Class A
Notes are to be made;
(v) altering the required percentage of aggregate Invested Amount
required to consent or take any action of the Class A Notes;
(vi) alteration of this sub-paragraph.
(b) Subject to paragraph (c) the Noteholders shall in addition to the
powers given under this deed have the following powers if approval is
given by holders of at least 75% of the aggregate Invested Amount of
the Class A Notes:
(i) power to sanction any compromise or arrangement proposed to be
made between the Trustee and the Class A Noteholders;
(ii) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Class A Noteholders
or the Class B Noteholders, as the case may be, against the
Trustee or against any of its property or against any other
person whether such rights shall arise under these presents,
any of the Notes or otherwise;
(iii) power to assent to any modification of the provisions contained
in these presents, the Class A Notes (including the Conditions)
or the provisions of any of the Relevant Documents which shall
be proposed by the Trustee or the Note Trustee;
(iv) power to give any authority or sanction which under the
provisions of these presents or the Class A Notes (including
the Conditions) is required to be given by, in writing by
holders of at least 75% of the aggregate Invested Amount of the
Class A Notes;
(v) power to approve of a person to be appointed a trustee and
power to remove any trustee or trustees for the time being
under this deed;
(vi) power to discharge or exonerate the Note Trustee from all
liability in respect of any act or omission for which the Note
Trustee may have become responsible under this deed or under
the Class A Notes;
(vii) power to authorise the Note Trustee to concur in and execute
and do all such deeds, instruments, acts and things as may be
necessary to carry out and give effect to the approval in
writing by holders of at least 75% of the aggregate Invested
Amount of the Class A Notes;
(viii) power to sanction any scheme or proposal for the exchange or
sale of the Class A Notes for, or the conversion of the Class A
Notes into, or the cancellation of the Class A Notes in
consideration of shares, stock, notes, bonds' debentures,
debenture stock and/or other obligations and/or securities of
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the Trustee or of any other company formed or to be formed, or
for or into or in consideration of cash, or partly for or into
or in consideration of such shares, stock, notes, bonds,
debenture stock and/or other obligations and/or securities as
aforesaid and partly for or into or in consideration of cash.
33.3 Requirement for writing
Except as expressly provided elsewhere in this deed, all notices and
consents from Class A Noteholders and Class A Note Owners shall be
delivered in writing. Any solicitation of such notices or consent shall be
in writing and be delivered by the Trustee, Trust Manager or Note Trustee,
as applicable, seeking such notice or consent form the Class A Noteholders
or Class A Note Owners to the Principal Paying Agent, who shall deliver
the foregoing to the appropriate Class A Noteholders or Class A Note
Owners. With respect to any solicitation of approval of Class A
Noteholders, the record date for determining Class A 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
Noteholders.
EXECUTED as a deed in New York.
Each attorney executing this deed states that he has no notice of revocation or
suspension of his power of attorney.
TRUSTEE
SIGNED SEALED and DELIVERED)
on behalf of )
WESTPAC SECURITIES )
ADMINISTRATION LIMITED
by its attorney )
in the presence of: ) ________________________
Signature
____________________________ ________________________
Witness Print name
____________________________
Print name
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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TRUST MANAGER
SIGNED SEALED and DELIVERED)
on behalf of )
WESTPAC SECURITISATION )
MANAGEMENT PTY LIMITED
by its attorney )
in the presence of: ) ________________________
Signature
___________________________ ________________________
Witness Print name
___________________________
Print name
NOTE TRUSTEE
SIGNED SEALED and DELIVERED)
on behalf of )
[*] )
by its attorney )
in the presence of: ) ________________________
Signature
___________________________ ________________________
Witness Print name
___________________________
Print name
PRINCIPAL PAYING AGENT
SIGNED SEALED and DELIVERED)
on behalf of )
[*] )
by its attorney )
in the presence of: ) ________________________
Signature
___________________________ ________________________
Witness Print name
___________________________
Print name
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SCHEDULE 1
Form Of Book-Entry Note
--------------------------------------------------------------------------------
REGISTERED CUSIP No
No. R- ISIN No.
Common Code
Unless this Note is presented by an authorised representative of The Depository
Trust Company, a New York corporation (DTC), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorised
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorised representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
WESTPAC SECURITIES ADMINISTRATION LIMITED
(ACN 000 049 472)
(a limited liability company incorporated under the law of New South Wales,
Australia)
in its capacity as trustee of the Series [*] WST Trust
BOOK-ENTRY NOTE
representing
US$[number]**
Class A Mortgage Backed Floating Rate Notes Due [*]
This Note is a Book-Entry Note without principal or interest in respect of a
duly authorised issue of Notes of Westpac Securities Administration Limited in
its capacity as trustee of the Series [*] WST Trust (the "Trust") (the
"Issuer"), designated as specified in the title above (the "Notes"), in an
initial aggregate principal amount of
[ ]** (US$ [ ])**
and (a) constituted by a Master Trust Deed (the "Master Trust Deed") dated 14
February 1997 between the Issuer and The Mortgage Company Pty Limited (ACN 070
968 302), by a Series Notice (the "Series Notice") dated [*] between (among
others) the Issuer, [*] (the note trustee for the time being referred to as the
"Note Trustee") as trustee for the holders for the time being of the Class A
Notes (the
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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"Class A Noteholders") and Westpac Securitisation Management Pty Limited (ACN
000 000 000) (the "Trust Manager"), and by these Conditions; (b) issued subject
to a Note Trust Deed dated [*] (the "Note Trust Deed") between the Issuer, the
Trust Manager and the Note Trustee; and (c) secured by a Security Trust Deed
(the "Security Trust Deed") dated [*] between the Issuer, the Trust Manager, the
Note Trustee and Perpetual Trustee Company Limited (ACN 000 001 007) (the
"Security Trustee", which expression shall include its successor for the time
being as security trustee under the Security Trust Deed). References to the
Conditions (or to any particular numbered Condition) shall be to the Terms and
Conditions of the Class A Notes set out in Schedule 3 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 Definitive Notes under Clause 3.3 of the Note
Trust Deed this Book-Entry Note will be exchangeable in whole at the offices of
the Principal Paying Agent at [*] (or such other place outside Australia and any
of its respective territories and possessions and other areas subject to
jurisdictions as the Note Trustee may agree) for Definitive Notes and the Issuer
shall execute and procure that the Principal Paying Agent authenticates and
delivers in full exchange for this Book-Entry Note, Definitive Notes in
aggregate principal amount equal to the Amount of all Class A Notes represented
by this Book-Entry Note. The Issuer is not obliged to issue Definitive Notes
until 30 days after the occurrence of an event set out in clause 3.3 of the Note
Trust Deed.
The Issuer, in its capacity as trustee of the Trust, subject to this 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 Book-Entry
Note the principal sum of US$[words]** (US$[number])** or such lesser amount as
may from time to time be represented by this Book-Entry Note (or such part of
that amount as may become repayable under the Conditions, the Series Notice and
the Note Trust Deed) on such date(s) that principal sum (or any part of it)
becomes repayable in accordance with the Conditions, the Series Notice and the
Note Trust Deed and to pay interest in arrear on each Payment Date (as defined
in Condition 4) on the Invested Amount (as defined in Condition 5(a)) of this
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 Book-Entry Note, the Conditions, the Series Notice and the Note Trust Deed,
which shall be binding on the registered holder of this Book-Entry Note (as if
references in the Conditions to the Notes and the Noteholders were references to
this Book-Entry Note and the registered holder of this Book-Entry Note
respectively and as if the same had been set out in this Book-Entry Note in full
with all necessary changes, except as otherwise provided in this Book-Entry
Note).
Payments of interest on this Note due and payable on each Payment Date, together
with the instalment of principal, if any, shall be payable to the nominee of the
Common Depositary (initially, such nominee to be Cede & Co.). No payment of
interest or principal may be made by the Issuer or any Paying Agent in the
Commonwealth of Australia or its possessions or into a bank account or to an
address in the Commonwealth of Australia. Each of the persons appearing from
time to time in the records of DTC, as the holder of a beneficial interest in a
Class A Note will be entitled to receive any payment so made in respect of that
Class A Note
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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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 Book-Entry Note, for so
long as this 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 or on behalf of the Issuer in
the Note Register and, in the case of payments of principal, the Invested Amount
of the Class A Notes shall be reduced for all purposes by the amount so paid and
endorsed in the Note Register. Any such record shall be prima facie evidence
that the payment in question has been made.
If the Issuer is obliged to issue Definitive Notes under Clause 3.3 of the Note
Trust Deed, the Book-Entry Notes will be surrendered to the Trustee by the
Clearing Agency and the Clearing Agency will deliver the relevant registration
instructions to the Trustee. Definitive Notes shall be executed by the Trustee
and authenticated by the Principal Paying Agent and delivered as per the
instructions of the Clearing Agency.
The Definitive Notes to be issued on that exchange will be in registered form
each in the denomination of US$100,000 or integral multiples thereof. If the
Issuer fails to meet its obligations to issue Definitive Notes, this shall be
without prejudice to the Issuer's obligations with respect to the Notes under
the Note Trust Deed, the Master Trust Deed, the Series Notice and this Book-
Entry Note.
On an exchange of this Book-Entry Note, this Book-Entry Note shall be
surrendered to the Principal Paying Agent.
This Book-Entry Note shall not become valid for any purpose unless and until the
Certificate of Authentication attached has been signed by an Authorised
Signatory of the Principal Paying Agent (as defined in the Series Notice).
This 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 Book-Entry Note to be signed [manually/in
facsimile] by a person duly authorised on its behalf
WESTPAC SECURITIES ADMINISTRATION LIMITED
By: _________________________
Authorised Signatory
IMPORTANT NOTES:
(a) The Class A Notes do not represent deposits or other liabilities of Westpac
Banking Corporation, ARBN 007 457 141 ("Westpac") or associates of Westpac.
(b) The holding of Class A Notes is subject to investment risk, including
possible delays in repayment and loss of income and principal invested.
(c) Neither Westpac nor any associate of Westpac in any way stands behind the
capital value and/or performance of the Class A Notes or the assets of the
Trust except to the limited extent provided in the Series Notice, the Master
Trust Deed, the Note Trust Deed and the other documents for the Trust.
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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(d) None of Westpac, the Issuer, The Mortgage Company Pty Limited as servicer
on behalf of the Issuer (the "Servicer") or the Trust Manager guarantees
the payment of interest or the repayment of principal due on the Class A
Notes.
(e) None of the obligations of the Issuer or the Trust Manager are guaranteed
in any way by Westpac or any associate of Westpac.
(f) The Issuer's liability to make payments in respect of the Class A Notes is
limited to its right of indemnity from the assets of Trust from time to
time available to make such payments under the Master Trust Deed and Series
Notice. All claims against the Issuer in relation to the Class A Notes can
be enforced against the Issuer only to the extent to which it can be
satisfied out of the assets of the Trust out of which the Issuer is
actually indemnified for the liability except in the case of (and to the
extent of) any fraud, negligence or breach of trust on the part of the
Issuer.
(g) The Noteholder is required to accept any distribution of moneys under the
Security Trust Deed in full and final satisfaction of all moneys owing to
it, and any debt represented by any shortfall that exists after any such
final distribution is extinguished.
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CERTIFICATE OF AUTHENTICATION
This Book-Entry Note is authenticated by [*] and until so authenticated shall
not be valid for any purpose.
[*]
as Principal Paying Agent
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Note Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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Assignment
--------------------------------------------------------------------------------
Social Security or taxpayer I.D. or other identifying number of assignee
--------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
--------------------------------------------------------------------------------
attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: ____________ _________________________
Signature Guaranteed:
Dated: ____________ _________________________
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Note Registrar,
which requirements include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution for,
STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
___________________
*/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular without alteration, enlargement or any change whatsoever.
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SCHEDULE 2
Information to be contained in Noteholder's Report
--------------------------------------------------------------------------------
(i) the Invested Amount and the Stated Amount of each Class of Notes;
(ii) the Interest Payments and principal distributions on each Class of
Notes;
(iii) the Available Income;
(iv) the Total Available Funds;
(v) the aggregate of all Redraws made during that Collection Period;
(vi) the Redraw Shortfall;
(vii) the Subordinated Percentage;
(viii) the Initial Subordinated Percentage;
(ix) the Payment Shortfall (if any);
(x) the Principal Draw (if any) for that Collection Period, together with
all Principal Draws made before the start of that Collection Period and
not repaid;
(xi) the Gross Principal Collections;
(xii) the Principal Collections;
(xiii) the Liquidity Shortfall (if any);
(xiv) the Remaining Liquidity Shortfall (if any);
(xv) the Principal Charge Off (if any);
(xvi) the Class A Percentage and the Class B Percentage;
(xvii) the Class A Bond Factor, the Class B Bond Factor, the RFS Class A Bond
Factor and the RFS Bond Factor for each RFS Series (The "Bond Factor"
with respect to a Class of Notes is the Initial Invested Amount of such
Class less all principal payments on such Class divided by the Initial
Invested Amount of such Class);
(xviii) the Class A Charge Offs, the Class B Charge Offs, the RFS Class A
Charge Offs, the RFS Charge Offs and the Redraw Charge Offs (if any);
(xix) all Carryover Charge Offs (if any);
(xx) if required, the Threshold Rate at that Collection Determination Date;
(xxi) the Quarterly Percentage;
(xxii) LIBOR, as at the first day of the related Interest Period ending
immediately after that Collection Determination Date as calculated by
the Agent Bank;
(xxiii) scheduled and unscheduled payments of principal on the Housing Loans;
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(xxiv) aggregate Balances Outstanding of Fixed Rate Housing Loans and aggregate
Balances Outstanding of Variable Rate Housing Loans; and
(xxv) delinquency statistics with respect to the Housing Loans.
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