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Draft: 23 August 2000
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EXHIBIT4.4
The Bank of New York, New York Branch
Class A-1 Note Trustee
Securitisation Advisory Services Pty. Limited
ACN 064 133 946
Manager
Perpetual Trustee Company Limited
ACN 000 001 007
Issuer
Series 2000-2G Medallion Trust
Class A-1 Note Trust Deed
Levels 23-35 No 1 O'Connell Street Sydney NSW 2000 Australia
PO Box H3 Australia Square Sydney NSW 1215 DX 370 Sydney
Tel + 61 2 9353 4000 Fax + 61 2 9251 7832
Our ref - 174/642/1545256 Contact - Edward Nicholas
Sydney . Melbourne . Brisbane . Perth . Canberra . Darwin
Liability is limited by the Solicitors Scheme under the Professional Standards
Act 1994 NSW
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Table of Contents
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1. Definitions and interpretation...................................................... 2
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1.1 Definitions.................................................................... 2
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1.2 Series Supplement and Master Trust Deed definitions............................ 5
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1.3 Interpretation................................................................. 5
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1.4 Issuer's capacity.............................................................. 7
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1.5 Benefit of Covenants under this Deed........................................... 8
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1.6 Obligations several............................................................ 8
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1.7 Incorporated definitions and other provisions.................................. 8
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1.8 Interpretation of provisions incorporated from TIA............................. 8
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2. The Class A-1 Trust................................................................. 9
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2.1 Appointment of Class A-1 Note Trustee.......................................... 9
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2.2 Declaration of Class A-1 Trust................................................. 9
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2.3 Duration of Class A-1 Trust.................................................... 9
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2.4 Benefit of Class A-1 Trust..................................................... 9
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2.5 Interested persons bound....................................................... 9
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3. Amount, form and issue of Class A-1 Notes........................................... 9
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3.1 Aggregate amount and denomination.............................................. 9
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3.2 Description and Form of Class A-1 Notes........................................ 9
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3.3 Initial Issue as Book-Entry Notes.............................................. 10
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3.4 Issue of Class A-1 Definitive Notes............................................ 11
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3.5 Indemnity for non-issue of Class A-1 Definitive Notes.......................... 12
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4. Class A-1 Note Register............................................................. 12
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4.1 Maintenance of Class A-1 Note Registrar........................................ 12
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4.2 Provision of Class A-1 Noteholder Information.................................. 12
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4.3 Class A-1 Note Register conclusive............................................. 12
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5. Representations and warranties...................................................... 13
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5.1 By the Issuer.................................................................. 13
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5.2 By the Manager................................................................. 13
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5.3 By the Class A-1 Note Trustee.................................................. 14
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6. Covenants by Issuer and Manager..................................................... 15
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6.1 Covenant to Pay................................................................ 15
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6.2 Covenant of Compliance......................................................... 15
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6.3 Other covenants................................................................ 16
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6.4 Covenants between Issuer and Manager........................................... 18
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7. Enforcement......................................................................... 18
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7.1 Notice Following an Event of Default or Potential Event of Default............. 18
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7.2 Restrictions on enforcement.................................................... 19
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7.3 Class A-1 Note Trustee may enforce............................................. 19
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7.4 Class A-1 Note Trustee alone may enforce....................................... 20
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8. Class A-1 Note Trustee's powers, protections etc.................................... 20
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8.1 Class A-1 Note Trustee's additional powers, protections, etc................... 20
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8.2 Waivers........................................................................ 26
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8.3 Class A-1 Note Trustee's liability............................................. 26
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8.4 Dealings with Series Trust..................................................... 26
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8.5 Delegation of duties of Class A-1 Note Trustee................................. 27
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8.6 Related Body Corporate of the Class A-1 Note Trustee........................... 27
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9. Duties of the Class A-1 Note Trustee.................................................. 27
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9.1 Class A-1 Note Trustee's general duties........................................ 27
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9.2 Duties of the Class A-1 Note Trustee prior to Event of Default................. 27
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9.3 Duties of the Class A-1 Note Trustee following an Event of Default............. 28
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9.4 Certain limitations of liability where acting in good faith.................... 28
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9.5 Class A-1 Note Trustee not relieved of liability for negligence etc............ 28
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9.6 Preferred collection of claims against Issuer.................................. 28
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9.7 Compliance with Section 310 of TIA............................................. 28
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9.8 Voting at meetings under Master Trust Deed or Security Trust Deed.............. 29
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9.9 Transaction Documents.......................................................... 29
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10. Application of moneys................................................................. 29
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10.1 Moneys received................................................................ 29
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10.2 Investment of moneys held...................................................... 29
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11. Continuing security and releases...................................................... 29
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11.1 Issuer's liability not affected................................................ 29
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11.2 Waiver by Issuer............................................................... 30
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12. Remuneration and expenses of Class A-1 Note Trustee................................... 30
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12.1 Payment of fee................................................................. 30
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12.2 Payment of expenses............................................................ 30
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12.3 Additional duties.............................................................. 31
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12.4 Dispute as to additional duties................................................ 31
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12.5 Currency and VAT............................................................... 31
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12.6 No other fees or expenses...................................................... 31
---- ------------------------
12.7 Issuer personally liable for fees.............................................. 31
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12.8 Timing of payments............................................................. 31
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12.9 Non-discharge.................................................................. 32
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13. Additional Class A-1 Note Trustees.................................................... 32
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13.1 Appointment and removal........................................................ 32
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13.2 Joint exercise of powers....................................................... 32
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13.3 Notice......................................................................... 33
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14. Retirement or removal of Class A-1 Note Trustee....................................... 33
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14.1 Retirement of Class A-1 Note Trustee........................................... 33
---- ------------------------------------
14.2 Removal by Manager............................................................. 33
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14.3 Class A-1 Note Trustee may retire.............................................. 33
---- ---------------------------------
14.4 Appointment of Substitute Class A-1 Note Trustee by Class A-1 Noteholders...... 34
---- -------------------------------------------------------------------------
14.5 Release of Class A-1 Note Trustee.............................................. 34
---- ---------------------------------
14.6 Vesting of Class A-1 Trust Fund in Substitute Class A-1 Note Trustee........... 34
---- --------------------------------------------------------------------
14.7 Substitute Class A-1 Note Trustee to Execute Deed.............................. 34
---- -------------------------------------------------
14.8 Rating Agencies Advised........................................................ 34
---- -----------------------
14.9 Retention of Lien.............................................................. 35
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14.10 Issuer and Manager Cannot be Appointed......................................... 35
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14.11 No Limitation of TIA........................................................... 35
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15. Amendment............................................................................ 35
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15.1 Amendment by Class A-1 Note Trustee............................................ 35
---- -----------------------------------
15.2 Amendments Requiring Consent of all Class A-1 Noteholders...................... 36
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15.3 Compliance with TIA............................................................ 36
---- -------------------
15.4 No Rating Agency downgrade..................................................... 36
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15.5 Distribution of amendments..................................................... 36
---- --------------------------
15.6 Amendments binding on Class A-1 Noteholders.................................... 36
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16. Reports.............................................................................. 36
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16.1 Reports by Class A-1 Note Trustee.............................................. 36
---- ---------------------------------
16.2 Reports by Issuer.............................................................. 37
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16.3 Restricted securities.......................................................... 37
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17. Currency indemnity................................................................... 38
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17.1 Improper currency receipts..................................................... 38
---- --------------------------
17.2 Currency indemnity............................................................. 38
---- -----------------
17.3 Failure to pay proper currency................................................. 38
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18. Expenses and stamp duties............................................................ 38
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18.1 Expenses....................................................................... 38
---- --------
18.2 Stamp duties and other taxes................................................... 39
---- ----------------------------
19. Trust Indenture Act.................................................................. 39
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19.1 Certificates and opinions...................................................... 39
---- -------------------------
19.2 Undertaking for costs.......................................................... 40
---- ---------------------
19.3 Exclusion of section 316(a)(1)................................................. 41
---- ------------------------------
19.4 Unconditional rights of Class A Noteholders to receive principal and interest.. 41
---- -----------------------------------------------------------------------------
19.5 Conflict with Trust Indenture Act.............................................. 41
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20. Governing law and jurisdiction....................................................... 41
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20.1 Governing law.................................................................. 41
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20.2 Jurisdiction................................................................... 41
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21. Notices.............................................................................. 41
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21.1 Method of delivery............................................................. 41
---- ------------------
21.2 Deemed receipt................................................................. 42
---- --------------
21.3 Notices to Class A-1 Noteholders............................................... 42
---- --------------------------------
21.4 Notices from Class A-1 Noteholders............................................. 42
---- ----------------------------------
21.5 Issuer and Manager............................................................. 43
---- ------------------
22. Issuer's limited liability........................................................... 43
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22.1 Limitation on Issuer's Liability............................................... 43
---- --------------------------------
22.2 Claims against Issuer.......................................................... 43
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22.3 Breach of trust................................................................ 43
---- ---------------
22.4 Acts or omissions.............................................................. 44
---- -----------------
22.5 No authority................................................................... 44
---- ------------
22.6 No obligation.................................................................. 44
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23. Miscellaneous........................................................................ 44
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23.1 Assignment by Issuer........................................................... 44
---- --------------------
23.2 Assignment by Manager.......................................................... 44
---- ---------------------
23.3 Assignment by Class A-1 Note Trustee........................................... 44
---- ------------------------------------
23.4 Certificate of Class A-1 Note Trustee.......................................... 44
---- -------------------------------------
23.5 Continuing obligation.......................................................... 44
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23.6 Settlement conditional......................................................... 45
---- ----------------------
23.7 Interest on judgment........................................................... 45
---- --------------------
23.8 Severability of provisions..................................................... 45
---- --------------------------
23.9 Remedies cumulative............................................................ 45
---- -------------------
23.10 Waiver......................................................................... 45
----- ------
23.11 Written waiver, consent and approval........................................... 45
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23.12 Time of essence................................................................ 45
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23.13 Moratorium legislation......................................................... 45
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23.14 Binding on each signatory...................................................... 46
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23.15 Counterparts................................................................... 46
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Schedule 1 Form of Class A-1 Note.............................................................. 48
---------------------------------
Schedule 2 Form of Class A-1 Note Conditions................................................... 54
--------------------------------------------
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Trust Indenture Act - Cross Reference Table
This Cross Reference Table does not, for any purpose, form part of this Class A-
1 Note Trust Deed. "N.A." means not applicable.
Trust indenture act section Clause Reference
310 (a) (1) 5.3(h), 9.7, 14.2, 14.3, 14.4
(a) (2) 9.7
(a) (3) 13.2
(a) (4) N.A.
(a) (5) 14.10
(b) 9.7(c), 14.11
(c) N.A.
311 (a) 9.6
(b) 9.6
(c) N.A.
312 (a) 4.2(a), 4.2(b)
(b) 4.2(b)
(c) 4.2(c)
313 (a) 16.1
(b)(1) 16.1
(b)(2) 16.1, 21.3
(c) 16.1
(d) 16.1
314 (a)(1) 16.2(a)
(a)(2) 16.2(b)
(a)(3) 16.2(c)
(a)(4) 6.3(c)
(b) 6.3(i)
(c) 19.1(a)
(d) 19.1(b)
(e) 19.1(c)
(f) N.A.
315 (a) 9.2
(b) 7.1(a)
(c) 9.3
(d) 9.5, 8.1(e)
(e) 19.2
316 (a)(1) 19.3(a)
(a)(2) 15.2(b)
(b) 19.4
(c) 21.4
317 (a)(1) 7.3
(a)(2) 7.3
(b) 6.3(j)
318 (a) 19.5
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This Class A-1 Note Trust Deed made at on
Parties The Bank of New York, New York Branch, a New York banking
corporation acting through its New York Branch at 101 Barclay
Street, 21W, New York, New York, 10286 (hereinafter included in the
expression the "Class A-1 Note Trustee")
Securitisation Advisory Services Pty. Limited, ACN 064 133 946, a
company incorporated in the State of New South Wales and having an
office at Level 8, 48 Martin Place, Sydney, Australia (hereinafter
included by incorporation in the expression the "Manager")
Perpetual Trustee Company Limited, ACN 000 001 007, a company
incorporated in the State of New South Wales and having an office
at Level 3, 39 Hunter Street, Sydney, Australia in its capacity as
trustee of the Series Trust (as hereinafter defined) (hereinafter
included in the expression the "Issuer")
Recitals
A. The Issuer is the trustee, and the Manager is the manager, of the Series
Trust.
B. The Issuer proposes to issue, at the direction of the Manager, securities,
including the Class A-1 Notes to be constituted, issued and authenticated
pursuant to this Deed.
C. The Class A-1 Note Trustee has agreed to act as trustee for the benefit of
the Class A-1 Noteholders on the terms of this Deed.
D. This Deed is an indenture qualified under, and subject to the mandatory
provisions of, the Trust Indenture Act 1939 of the United States of
America, which are incorporated by reference in and made part of this Deed.
This deed provides
________________________________________________________________________________
1. Definitions and interpretation
1.1 Definitions
In this Deed, unless the contrary intention appears:
"Additional Note Trustee" means each person from time to time appointed
under clause 13.1 to act as a co-trustee with the Class A-1 Note
Trustee.
"Agent" has the same meaning as in the Agency Agreement.
"Authorised Officer" means:
in relation to the Class A-1 Note Trustee, a responsible officer of the
Corporate Trust Administration department of the Class A-1 Note
Trustee;
in relation to the Issuer, an Authorised Officer of the Issuer for the
purposes of the Master Trust Deed; and
in relation to the Manager, an Authorised Officer of the Manager for the
purposes of the Master Trust Deed.
"Charge" has the same meaning as in the Security Trust Deed.
"Charge Release Date" has the same meaning as in the Security Trust Deed.
"Charged Property" has the same meaning as in the Security Trust Deed.
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"Class A-1 Book-Entry Note" means a Class A-1 Note issued or to be issued,
as the case may be, by the Issuer in accordance with clause 3.3(a) to
the Depository or its nominee or subsequently transferred to a replacement
Depositary or its nominee.
"Class A-1 Definitive Note" means a Class A-1 Note issued or to be issued,
as the case may be, by the Issuer in accordance with clause 3.4.
"Class A-1 Note" means a debt security issued by the Issuer, in its
capacity as trustee of the Series Trust, pursuant to the provisions of this
Deed (whether as a Class A-1 Book-Entry Note or a Class A-1 Definitive
Note).
"Class A-1 Note Owner" means, with respect to a Class A-1 Book-Entry Note,
the person who is the beneficial owner of such Class A-1 Book-Entry Note,
as reflected in the books of the Depository or in the books of a person
maintaining an account with the Depository (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with
the rules of the Depository).
"Class A-1 Note Register" has the same meaning as in the Agency Agreement.
"Class A-1 Note Registrar" has the same meaning as in the Agency
Agreement.
"Class A-1 Note Trustee" means the Bank of New York, New York Branch or if
the Bank of New York, New York Branch retires or is removed as Class A-1
Note Trustee, any then Substitute Class A-1 Note Trustee.
"Class A-1 Noteholder" in relation to a Class A-1 Note at any given time
means the person then appearing in the Class A-1 Note Register as the
holder of the Class A-1 Note.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Class A-1 Trust" means the trust established under clause 2.2 of this
Deed.
"Class A-1 Trust Fund" means:
(a) the Class A-1 Note Trustee's rights, remedies and powers under this
Deed, the Security Trust Deed and each other Transaction Document to
which the Class A-1 Note Trustee is expressed to be a party;
(b) the Class A-1 Note Trustee's right, title and interest as beneficiary
of the Security Trust; and
(c) any other property and benefits which the Class A-1 Note Trustee holds
on trust for the Class A-1 Noteholders under this Deed.
"Commission" means the Securities and Exchange Commission of the United
States of America, as from time to time constituted, created under the
Exchange Act, or if at any time after the execution of this Deed that
Commission is not existing and performing the duties now assigned to it
under the TIA, then the body performing those duties.
"Counsel's Opinion" means one or more written opinions of legal counsel
(who may, except as otherwise expressly provided in this Deed, be employees
or counsel of the Issuer or the Manager) acceptable to the Class A-1 Note
Trustee which:
(a) are addressed to the Class A-1 Note Trustee (and which may also be
addressed to other persons);
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(b) are in a form satisfactory to, and are subject to such qualifications
and assumptions as are acceptable to, the Class A-1 Note Trustee; and
(c) comply, where applicable, with the TIA,
and which state, in the opinion of the legal counsel, the matter to be
opined upon.
"DTC Letter of Representations" means the DTC Letter of Representations
dated [ ] 2000 between the Issuer, the Principal Paying Agent and The
Depository Trust Company, as the initial Depository, as amended from time
to time.
"Eligible Trust Corporation" means any person eligible for appointment as
an institutional trustee under an indenture to be qualified pursuant to the
TIA as prescribed in section 310(a) of the TIA.
"Event of Default" has the meaning ascribed to that term in the Security
Trust Deed.
"Exchange Act" means the Securities Exchange Act of 1934 of the United
States of America.
"Interested Persons" means a collective reference to the Issuer, the Class
A-1 Noteholders, the Class A-1 Note Owners, the Manager and all persons
claiming through them and "Interested Person" means a several reference to
all Interested Persons.
"Issuer" means Perpetual Trustee Company Limited or if Perpetual Trustee
Company Limited retires or is removed as trustee of the Series Trusts (as
defined in the Master Trust Deed), any then Substitute Trustee and includes
the Manager when acting as the Trustee in accordance with the terms of the
Master Trust Deed.
"Majority" in relation to the Class A-1 Noteholders means Class A-1
Noteholders holding Class A-1 Notes with an Invested Amount of greater than
50% of the aggregate Invested Amount of all the Class A-1 Notes.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997 and
made between the Issuer and the Manager, as amended from time to time.
"Payment Modification" means any alteration, addition or revocation of any
provision of this Deed, the Class A-1 Notes (including the Class A-1 Note
Conditions), the Master Trust Deed to the extent that it applies to the
Series Trust, the Series Supplement or the Security Trust Deed which
modifies:
(a) the amount, timing, place, currency or manner of payment of principal
or interest in respect of the Class A-1 Notes including, without
limitation, any modification to the Stated Amount, Invested Amount,
interest rate or maturity date of the Class A-1 Notes or to clause 10
of the Series Supplement, conditions 6.9 and 7.2 of the Class A-1
Note Conditions or clause 13 of the Security Trust Deed or which would
impair the rights of Class A-1 Noteholders to institute suit for
enforcement of such payment on or after the due date for such payment;
(b) the definition of the term "Special Majority" in this clause 1.1,
clause 21.4 of this Deed or the circumstances in which the consent
or direction of a Special Majority of Class A-1 Noteholders is
required ;
(c) clause 6.1(a) of the Security Trust Deed; or
(d) the requirements for altering, adding to or revoking any provision of
the Class A-1 Note Trust Deed or the Class A-1 Notes (including the
Class A-1 Note Conditions).
"Potential Event of Default" means any event which, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
4
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"Secured Creditor" has the same meaning as in the Security Trust Deed.
"Security Trust" has the same meaning as in the Security Trust Deed.
"Series Supplement" means the Series Supplement dated [31 August] 2000
between the Commonwealth Bank of Australia ACN 123 123 124, the Manager
and the Issuer.
"Series Trust" means the trust known as the Series 2000-2G Medallion Trust
established pursuant to the Master Trust Deed and the Series Supplement.
"Special Majority" in relation to the Class A-1 Noteholders means Class A-1
Noteholders holding Class A-1 Notes with an aggregate Invested Amount of no
less than 75% of the aggregate Invested Amount of all the Class A-1 Notes.
"Statute" means any legislation now or hereafter in force of the Parliament
of the Commonwealth of Australia or of any State or Territory thereof or of
any legislative body of any other country or political subdivision thereof
and any rule regulation ordinance by-law statutory instrument order or
notice now or hereafter made under such legislation.
"Substitute Class A-1 Note Trustee" means at any given time means the
entity then appointed as Class A-1 Note Trustee under clause 14.
"TIA" means the Trust Indenture Act of 1939 of the United States of America
as in force at the date of this Deed, or, if this Deed is first qualified
under the Trust Indenture Act after the issue of Class A-1 Notes, as in
force at the date of such qualification.
"Voting Secured Creditors" has the same meaning as in the Security Trust
Deed.
1.2 Series Supplement and Master Trust Deed definitions
Subject to clause 1.7, unless defined in this Deed, words and phrases
defined in either or both of the Master Trust Deed and the Series
Supplement have the same meaning in this Deed. Where there is any
inconsistency in a definition between this Deed (on the one hand) and the
Master Trust Deed or the Series Supplement (on the other hand), this Deed
prevails. Where there is any inconsistency in a definition between the
Master Trust Deed and the Series Supplement, the Series Supplement prevails
over the Master Trust Deed in respect of this Deed. Subject to clause
1.7, where words or phrases used but not defined in this Deed are defined
in the Master Trust Deed in relation to a Series Trust (as defined in the
Master Trust Deed) and/or an Other Trust such words or phrases are to be
construed in this Deed, where necessary, as being used only in relation to
the Series Trust (as defined in this Deed) and/or the CBA Trust (as defined
in the Series Supplement), as the context requires.
1.3 Interpretation
In this Deed unless the contrary intention appears:
(a) the expression "person" includes an individual, a corporation and a
Governmental Agency;
(b) the expression "owing" includes amounts that are owing whether such
amounts are liquidated or not or are contingent or presently accrued
due and includes all rights sounding in damages only;
(c) the expression "power" in relation to a person includes all powers,
authorities, rights, remedies, privileges and discretions conferred
upon that person by the Transaction Documents, by any other deed,
agreement, document, or instrument, by any Statute or otherwise by
law;
5
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(d) a reference to any person includes that person's executors, administrators,
successors, substitutes and assigns, including any person taking by way of
novation;
(e) subject to clause 1.7, a reference to this Deed, the Master Trust Deed
or to any other deed, agreement, document or instrument includes
respectively this Deed, the Master Trust Deed or such other deed,
agreement, document or instrument as amended, novated, supplemented, varied
or replaced from time to time;
(f) a reference to any Statute, other than the TIA, or to any section or
provision of any Statute, other than any section or provision of the TIA,
includes any statutory modification or re-enactment or any statutory
provision substituted therefor and all ordinances, by-laws regulations and
other statutory instruments issued thereunder;
(g) a reference to a Related Body Corporate includes a corporation which is or
becomes a Related Body Corporate during the currency of this Deed;
(h) words importing the singular include the plural (and vice versa) and words
denoting a given gender include all other genders;
(i) headings are for convenience only and do not affect the interpretation of
this Deed;
(j) a reference to a clause is a reference to a clause of this Deed;
(k) a reference to a Schedule is a reference to a Schedule to this Deed;
(l) where any word or phrase is given a defined meaning any other part of
speech or other grammatical form in respect of such word or phrase has a
corresponding meaning;
(m) all accounting terms used in this Deed have the same meaning ascribed to
those terms under accounting principles and practices generally accepted in
Australia from time to time;
(n) a reference to a party is a reference to a party to this Deed;
(o) a reference to time is a reference to New York time;
(p) a reference to any thing is a reference to the whole and each part of it
and a reference to a group of persons is a reference to all of them
collectively, to any two or more of them collectively and to each of them
individually;
(q) if an act prescribed under this Deed to be done by a party on or by a given
day is done after 5.30 pm on that day, it is to be taken to be done on the
following day;
(r) where any day on which a payment is due to be made or a thing is due to be
done under this Deed is not a Business Day, that payment must be made or
that thing must be done on the immediately succeeding Business Day;
(s) a reference to "wilful default" in relation to the Issuer, the Class A-1
Note Trustee or the Manager means, subject to clause 1.3(t), any wilful
failure to comply with, or wilful breach by, the Issuer, the Class A-1 Note
Trustee or the Manager (as the case may be) of any of its obligations under
any Transaction Document, other than a failure or breach which:
(i) A. arises as a result of a breach of a Transaction Document by a
person other than:
1) the Issuer, the Class A-1 Note Trustee or the Manager (as
the case may be); or
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2) any other person in referred to in clause 1.3(t)
in relation to the Issuer, the Class A-1 Note Trustee
or the Manager (as the case may be); and
B. the performance of the action (the non-performance of
which gave rise to such breach) is a pre-condition to the
Issuer, the Class A-1 Note Trustee or the Manager (as the
case may be) performing the said obligation;
(ii) is in accordance with a lawful court order or direction or
required by law; or
(iii) is:
A. in accordance with any proper instruction or direction of
the Voting Secured Creditors given at a meeting of Voting
Secured Creditors convened pursuant to the Security Trust
Deed;
B. in accordance with any proper instruction or direction of
a Majority (or a Special Majority) of the Class A-1
Noteholders given in accordance with this Deed; or
C. in accordance with any proper instruction or direction of
the Investors given at a meeting convened under the
Master Trust Deed (as amended by the Series Supplement);
(t) a reference to the "fraud", "negligence", "wilful default" or "breach
of rust" of the Issuer, the Class A-1 Note Trustee or the Manager
means the fraud, negligence, wilful default or breach of trust of the
Issuer, the Class A-1 Note Trustee or the Manager (as the case may
be) and of its officers, employees, agents and any other person where
the Issuer, the Class A-1 Note Trustee or the Manager (as the case
may be) is liable for the acts or omissions of such other person
under the terms of any Transaction Document;
(u) subject to the mandatory provisions of the TIA and clause 21.2,
each party will only be considered to have knowledge or awareness of,
or notice of, a thing or grounds to believe anything by virtue of the
officers of that party (or any Related Body Corporate of that party)
which have the day to day responsibility for the administration or
management of that party's (or a Related Body Corporate of that
party's) obligations in relation to the Series Trust, the Class A-1
Trust or this Deed, having actual knowledge, actual awareness or
actual notice of that thing, or grounds or reason to believe that
thing (and similar references will be interpreted in this way). In
addition, notice, knowledge or awareness of an Event of Default,
Potential Event of Default, Servicer Default, Perfection of Title
Event, Trustee Default or Manager Default means notice, knowledge or
awareness of the occurrence of the events or circumstances
constituting an Event of Default, Potential Event of Default,
Servicer Default, Perfection of Title Event, Trustee Default or
Manager Default, as the case may be; and
(v) a reference to prospective liabilities includes, without limitation,
the liabilities of the Issuer under the Transaction Documents.
1.4 Issuer's capacity
In this Deed, unless expressly specified otherwise:
(a) (References to Issuer): a reference to the Issuer is a reference to
the Issuer in its capacity as trustee of the Series Trust only, and in
no other capacity; and
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(b) (References to Assets of Issuer): a reference to the undertaking,
assets, business or money of the Issuer is a reference to the
undertaking, assets, business or money of the Issuer in the capacity
referred to in paragraph (a).
1.5 Benefit of Covenants under this Deed
Unless the context indicates a contrary intention, the Class A-1 Note
Trustee holds the covenants, undertakings and other obligations and
liabilities of the Issuer and the Manager under this Deed on trust for the
benefit of the Class A-1 Noteholders on the terms and conditions of this
Deed.
1.6 Obligations several
The obligations of the parties under this Deed are several.
1.7 Incorporated definitions and other provisions
Where in this Deed a word or expression is defined by reference to its
meaning in another Transaction Document or there is a reference to another
Transaction Document or to a provision of another Transaction Document, any
amendment to the meaning of that word or expression, to that Transaction
Document or to that provision (as the case may be) will be of no effect for
the purposes of this Deed unless and until the amendment:
(a) (No Payment Modification): if it does not effect a Payment
Modification is either:
(i) if the Class A-1 Note Trustee is of the opinion that the
amendment will not be materially prejudicial to the interests of
the Class A-1 Noteholders, consented to by the Class A-1 Note
Trustee; or
(ii) otherwise, approved by a Special Majority of the Class A-1
Noteholders; or
(b) (Payment Modification): if the amendment does effect a Payment
Modification, is consented to by each Class A-1 Noteholder.
1.8 Interpretation of provisions incorporated from TIA
Where a provision of the TIA is incorporated into this Deed in accordance
with the TIA (as described in clause 19.5) the following terms used in
that provision have the following meanings in this Deed:
"Commission" has the meaning given to that term in clause 1.1.
"default" means an Event of Default.
"indenture securities" means the Class A-1 Notes.
"indenture security holder" means a Class A-1 Noteholder.
"indenture to be qualified" means this Deed.
"indenture trustee" or "institutional trustee" means the Class A-1 Note
Trustee.
"obligor upon the indenture securities" means the Issuer.
Any other term, expression or provision 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
it by such definitions. Any term or expression that is used in both:
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(a) (TIA): a mandatory provision of the TIA; and
(b) (This Deed): a clause of this Deed that, on its face, appears to
satisfy or reflect that mandatory provision of the TIA, will be
construed and interpreted as a Federal court of the United States of
America would construe and interpret the term or expression.
________________________________________________________________________________
2. The Class A-1 Trust
2.1 Appointment of Class A-1 Note Trustee
The Class A-1 Note Trustee is hereby appointed and agrees to act as trustee
of the Class A-1 Trust (with effect from the constitution of the Class A-1
Trust) on the terms and conditions in this Deed.
2.2 Declaration of Class A-1 Trust
The Class A-1 Note Trustee declares that it holds the Class A-1 Trust Fund
on trust for those persons who are Class A-1 Noteholders from time to time.
2.3 Duration of Class A-1 Trust
The Class A-1 Trust commences on the date of this Deed and terminates on
the first to occur of:
(a) (Redemption of Class A-1 Notes): the date 6 months after the Class A-1
Note Trustee has been satisfied that all moneys owing by the Issuer or
the Manager in respect of or in relation to Class A-1 Notes or this
Deed have been duly paid;
(b) (Charge Release Date): the Charge Release Date; and
(c) (80th anniversary): the 80th anniversary of the date of this Deed.
2.4 Benefit of Class A-1 Trust
Each Class A-1 Noteholder is entitled to the benefit of the Class A-1 Trust
on the terms and conditions contained in this Deed.
2.5 Interested persons bound
The provisions of this Deed, the Class A-1 Notes (including the Class A-1
Note Conditions), the Master Trust Deed, the Series Supplement and the
Security Trust Deed are binding upon every Interested Person.
________________________________________________________________________________
3. Amount, form and issue of Class A-1 Notes
3.1 Aggregate amount and denomination
The Class A-1 Notes will be issued in an aggregate principal amount of
$US[_] and, in the case of the Class A-1 Definitive Notes, in minimum
denominations of US$100,000 or integral multiples thereof.
3.2 Description and Form of Class A-1 Notes
(a) (Form of Class A-1 Notes): The Class A-1 Notes must be serially
numbered and typewritten or printed (in the case of Class A-1 Book-
Entry Notes) or typewritten, printed, lithographed or engraved or
produced by any combination of these methods
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and with or without steel borders (in the case of Class A-1 Definitive
Notes) in the form or substantially in the form set out in Schedule 1.
(b) (Signing of Class A-1 Notes): Each Class A-1 Note must be signed by an
Authorised Officer or other duly appointed representative of the
Issuer on behalf of the Issuer.
(c) (Authentication of Class A-1 Notes): Each Class A-1 Note must be
authenticated by an Authorised Officer or other duly appointed
representative of the Class A-1 Note Trustee on behalf of the Class A-
1 Note Trustee. No Class A-1 Note will be valid for any purpose unless
and until so authenticated.
(d) (Dating of Class A-1 Notes): The Class A-1 Notes must be dated the
date of their authentication.
3.3 Initial Issue as Book-Entry Notes
(a) (Issue as Book-Entry Notes): The Class A-1 Notes will upon issue be
represented by one or more book-entry notes and will be initially
registered in accordance with clause 4 in the name of Cede & Co, as
nominee of The Depositary Trust Company as the initial Depository.
(b) (Delivery of Class A-1 Book-Entry Notes): The Issuer must on the date
of this Deed deliver or procure the delivery of the Class A-1 Book-
Entry Notes to the Principal Paying Agent as custodian for the
Depository.
(c) (Rights Attaching to Class A-1 Book-Entry Notes): A Class A-1 Book-
Entry Note executed and authenticated in accordance with clause 3.2
will constitute binding and valid obligations of the Issuer. Until a
Class A-1 Book-Entry Note has been exchanged pursuant to this Deed, it
will in all respects be entitled to the same benefits as a Class A-1
Definitive Note except as specifically provided to the contrary in
this Deed or the provisions of the Class A-1 Book-Entry Note.
(d) (Exchange etc.): Subject to this Deed, the procedures relating to the
exchange, authentication, delivery, surrender, cancellation,
presentation, marking up or down of any of a Class A-1 Book-Entry Note
and any other matters to be carried out by the relevant parties upon
exchange of any Class A-1 Book-Entry Note will be made in accordance
with the provisions of the Class A-1 Book-Entry Notes and the normal
practice of the Depositary's nominee, the Class A-1 Note Registrar and
the rules and procedures of the Depository from time to time.
(e) (Dealings with Depository): Unless and until the Class A-1 Definitive
Notes have been issued to a Class A-1 Note Owner pursuant to clause
3.4, the following provisions apply:
(i) the Issuer, the Manager, each Agent and the Class A-1 Note
Trustee will be entitled to deal with the Depository for all
purposes whatsoever (including the payment of principal of and
interest on the Class A-1 Notes and the giving of instructions or
directions under this Deed) as the absolute holder of the Class
A-1 Notes and none of the Issuer, the Manager, any Agent or the
Class A-1 Note Trustee will be affected by notice to the
contrary;
(ii) whenever a notice or other communication to the Class A-1
Noteholders is required under this Deed or any other Transaction
Document all such notices and communications must be given to the
Depository and are not required to be given to the Class A-1 Note
Owners;
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(iii) the rights of Class A-1 Note Owners may be exercised only
through the Depository and are limited to those established by
law and agreements between such Class A-1 Note Owners and the
Depository and/or the Clearing Agency Participants;
(iv) the Issuer, the Manager, each Agent and the Class A-1 Note
Trustee may conclusively rely upon any statement from the
Depository or any Clearing Agency Participant as to the votes,
instructions or directions it has received from Class A-1 Note
Owners and/or Clearing Agency Participants.
To the extent that the provisions of this clause 3.3 conflict with
any other provisions of this Deed, the provisions of this clause
3.3 prevail.
3.4 Issue of Class A-1 Definitive Notes
(a) (Events Leading to Exchange): If:
(i) the Depository advises the Class A-1 Note Trustee in writing
that the Depository is no longer willing or able properly to
discharge its responsibilities with respect to the Class A-1
Notes and the Manager is unable to locate a qualified successor
to act as Depository;
(ii) the Manager (at its option) advises the Issuer, the Class A-1
Note Trustee and the Depository in writing that Class A-1
Definitive Notes are to be issued in replacement of the Class
A-1 Book Entry Notes; or
(iii) an Event of Default has occurred and is subsisting and the
Class A-1 Note Owners representing beneficial interests
aggregating to at least a majority of the aggregate Invested
Amount of the Class A-1 Notes advise the Issuer through the
Depository in writing that the continuation of a book entry
system through the Depository is no longer in the best
interests of the Class A-1 Note Owners,
then the Issuer, on the direction of the Manager, must within 30 days
of such event instruct the Depository to notify all of the appropriate
Class A-1 Note Owners of the occurrence of any such event and of the
availability of Class A-1 Definitive Notes to such Class A-1 Note
Owners requesting the same. The Class A-1 Note Trustee must promptly
advise the Issuer and the Manager upon the occurrence of an event
referred to in clause 3.4(a)(i) and the Issuer must promptly advise
the Class A-1 Note Trustee and the Manager upon the occurrence of an
event referred to in clause 3.4(a)(iii).
(b) (Exchange for Class A-1 Definitive Notes): Upon the surrender of Class
A-1 Book-Entry Notes to the Issuer by the Depository following an
instruction of the Issuer pursuant to clause 3.4(a), and the delivery
by the Depository of the relevant registration instructions to the
Issuer, the Issuer must issue and execute and the Class A-1 Note
Trustee must authenticate and deliver Class A-1 Definitive Notes of
the same aggregate Invested Amount as those Class A-1 Book-Entry
Notes, replacing those Class A-1 Book-Entry Notes, in accordance with
clause 3.2 and the instructions of the Depository. None of the
Class A-1 Note Trustee, the Manager, the Issuer or any Agent will be
liable for any delay in delivery of such instructions and each such
person may conclusively rely on, and will be protected in relying on,
such instructions.
(c) (No Other Entitlement): No Class A-1 Note Owner will be entitled to
receive a Class A-1 Definitive Note representing such Class A-1 Note
Owner's interest in a Class A-1 Note, except as provided in this
clause 3.4.
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3.5 Indemnity for non-issue of Class A-1 Definitive Notes
If the Issuer is required to issue Class A-1 Definitive Notes following an
event specified in clause 3.4 but fails to do so within 30 days of
delivery to the Issuer of the Class A-1 Book-Entry Notes in accordance with
clause 3.4 then the Issuer must, subject to clause 22, indemnify the
Class A-1 Note Trustee, the Class A-1 Noteholders and Class A-1 Note
Owners, and keep them indemnified, against any loss or damage incurred by
any of them if the amount received by the Class A-1 Note Trustee, the Class
A-1 Noteholders or Class A-1 Note Owners, respectively, is less than the
amount that would have been received had Class A-1 Definitive Notes been
issued. If the Issuer breaches its obligations under clause 3.4, it is
acknowledged and agreed that damages alone will not be an adequate remedy
for such a breach and that, in addition to any other rights they may have,
the Class A-1 Note Trustee, the Class A-1 Noteholders and the Class A-1
Note Owners are entitled to sue the Issuer for specific performance,
injunctive relief or other equitable relief to enforce the Issuer's
obligations under clause 3.4.
________________________________________________________________________________
4. Class A-1 Note Register
4.1 Maintenance of Class A-1 Note Registrar
The Issuer must procure that the Class A-1 Note Register is maintained, and
that Class A-1 Notes are transferred, exchanged, replaced, redeemed and
cancelled, all in accordance with the provisions of the Class A-1 Notes
(including the Class A-1 Note Conditions) and the Agency Agreement. If at
any time for any reason there ceases to be a person performing the
functions of the Class A-1 Note Registrar under the Agency Agreement, the
Issuer must act as the Class A-1 Note Registrar and perform all of the
obligations of the Class A-1 Note Registrar contained in the Agency
Agreement.
4.2 Provision of Class A-1 Noteholder Information
(a) (Provision of Information): The Issuer must provide or procure the
provision to the Class A-1 Note Trustee (if the Class A-1 Note Trustee
is not the Class A-1 Note Registrar) at intervals of not more than 6
months (commencing as from the Closing Date), and at such other times
as the Class A-1 Note Trustee may request in writing, all information
in the possession or control of the Class A-1 Note Registrar as to the
names and addresses of the Class A-1 Noteholders, provided that the
Issuer will not have any obligations pursuant to this clause 4.2(a)
while the Class A-1 Notes are all Class A-1 Book-Entry Notes.
(b) (Class A-1 Note Trustee's Obligations): The Class A-1 Note Trustee
must preserve, in as current form as is reasonably practicable, the
names and addresses of the Class A-1 Noteholders provided to it
pursuant to clause 4.2(a) or otherwise received by it in any
capacity and must comply with its obligations pursuant to section
312(b) of the TIA.
(c) (Protection): The Issuer, the Class A-1 Note Trustee and the Class A-1
Note Registrar will have the protection of section 312(c) of the TIA
in relation to the disclosure of information in accordance with this
clause 4.2.
4.3 Class A-1 Note Register conclusive
A Class A-1 Note is not a certificate of title and the Class A-1 Note
Register is the only conclusive evidence of title to Class A-1 Notes.
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________________________________________________________________________________
5. Representations and warranties
5.1 By the Issuer
The Issuer represents and warrants to the Class A-1 Note Trustee that:
(a) (Due incorporation): it is duly incorporated and has the corporate
power to own its property and to carry on its business as is now being
conducted;
(b) (Constitution): the execution delivery and performance of this Deed
does not violate its constitution;
(c) (Corporate power): it has the power and has taken all corporate and
other action required to enter into this Deed and to authorise the
execution and delivery of this Deed and the performance of its
obligations under this Deed;
(d) (Filings): all corporate notices and all registrations with the
Australian Securities and Investments Commission, the Commission or
similar office in its jurisdiction of incorporation and in any other
jurisdiction required to be filed or effected, as applicable, by it in
connection with the execution, delivery and performance of this Deed
have been filed or effected, as applicable, and all such filings and
registrations are current, complete and accurate;
(e) (Legally binding obligation): its obligations under this Deed are
valid, legally binding and enforceable obligations in accordance with
the terms of this Deed except as such enforceability may be limited by
any applicable bankruptcy, insolvency, reorganisation, moratorium or
trust or general principles of equity or other similar laws affecting
creditors' rights generally;
(f) (Execution, delivery and performance): its execution, delivery and
performance of this Deed does not violate any existing law or
regulation in any applicable jurisdiction or any document or agreement
to which it is a party or which is binding upon it or any of its
assets;
(g) (Authorisation): all consents, licences, approvals and authorisations
of every Governmental Agency required to be obtained by it in
connection with the execution, delivery and performance of this Deed
in its personal capacity have been obtained and are valid and
subsisting;
(h) (Series Trust validly created): the Series Trust has been validly
created and is in existence at the date of this Deed;
(i) (Sole Trustee): it has been validly appointed as trustee of the Series
Trust and is presently the sole trustee of the Series Trust;
(j) (Master Trust Deed and the Series Supplement): the Series Trust is
solely constituted by the Master Trust Deed and the Series Supplement;
(k) (No proceedings to remove): it has received no notice and to its
knowledge no resolution has been passed or direction or notice has
been given, removing it as trustee of the Series Trust; and
(l) (No breach): it is not in breach of any material provision of the
Master Trust Deed or the Series Supplement.
5.2 By the Manager
The Manager represents and warrants to the Class A-1 Note Trustee that:
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(a) (Due incorporation): it is duly incorporated and has the corporate
power to own its property and to carry on its business as is now being
conducted;
(b) (Constitution): its execution, delivery and performance of this Deed
does not violate its constitution;
(c) (Corporate power): it has the power and has taken all corporate and
other action required to enter into this Deed and to authorise the
execution and delivery of this Deed and the performance of its
obligations under this Deed;
(d) (Filings): it has filed all corporate notices and effected all
registrations with the Australian Securities and Investments
Commission, the Commission or similar office in its jurisdiction of
incorporation and in any other jurisdiction as required by law and all
such filings and registrations are current, complete and accurate;
(e) (Legally binding obligation): its obligations under this Deed are
valid, legally binding and enforceable obligations in accordance with
the terms of this Deed except as such enforceability may be limited by
any applicable bankruptcy, insolvency, re-organisation, moratorium or
trust or general principles of equity or other similar laws affecting
creditors' rights generally;
(f) (Execution, delivery and performance): its execution, delivery and
performance of this Deed does not violate any existing law or
regulation in any applicable jurisdiction or any document or agreement
to which it is a party or which is binding upon it or any of its
assets;
(g) (Authorisation): all consents, licences, approvals and authorisations
of every Governmental Agency required to be obtained by the Manager in
connection with the execution, delivery and performance of this Deed
have been obtained and are valid and subsisting;
(h) (Investment Company): the Series Trust is not, and, if all the parties
to the Transaction Documents perform their obligations under the
Transaction Documents, will not become, an "investment company" as
that term is defined in the Investment Company Act of 1940 of the
United States of America; and
(i) (Compliance with TIA): this Deed has been duly qualified under the
TIA.
5.3 By the Class A-1 Note Trustee
The Class A-1 Note Trustee represents and warrants to the Issuer and the
Manager that:
(a) (Due incorporation): it is duly incorporated and has the corporate
power to own its property and to carry on its business as is now being
conducted;
(b) (Constitution): its execution, delivery and performance of this Deed
does not violate its constitution;
(c) (Corporate power): it has the power and has taken all corporate and
other action required to enter into this Deed and to authorise the
execution and delivery of this Deed and the performance of its
obligations under this Deed;
(d) (Filings): it has filed all corporate notices and effected all
registrations with the Commission or similar office in its
jurisdiction of incorporation and in any other jurisdiction as
required by law and all such filings and registrations are current,
complete and accurate;
(e) (Legally binding obligation): its obligations under this Deed are
valid, legally binding and enforceable obligations in accordance with
the terms of this Deed
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except as such enforceability may be limited by any applicable
bankruptcy, insolvency, re-organisation, moratorium or trust or
general principles of equity or other similar laws affecting
creditors' rights generally;
(f) (Execution, delivery and performance): its execution, delivery and
performance of this Deed does not violate any existing law or
regulation in any applicable jurisdiction or any document or agreement
to which it is a party or which is binding upon it or any of its
assets;
(g) (Authorisation): all consents, licences, approvals, authorisations of
and filings with every Governmental Agency required to be obtained or
made by the Class A-1 Note Trustee in connection with the execution,
delivery and performance of this Deed have been obtained or made and
are valid and subsisting; and
(h) (Eligible Trust Corporation): it is an Eligible Trust Corporation.
________________________________________________________________________________
6. Covenants by Issuer and Manager
6.1 Covenant to Pay
(a) (Covenant to Pay): Subject to and in accordance with the provisions of
this Deed, the Series Supplement and the Class A-1 Notes (including,
without limitation, clauses 6.1(b) and 22 and Condition 12 of the
Class A-1 Note Conditions), the Issuer covenants in favour of the
Class A-1 Note Trustee that it will duly and punctually repay the
principal of and pay interest and all other amounts owing in relation
to the Class A-1 Notes to, or to the order of, the Class A-1 Note
Trustee in immediately available funds in US Dollars as and when the
same fall due for repayment or payment.
(b) (Satisfaction of Covenant): Subject to clause 6.1(b) of the Agency
Agreement, every payment by or at the direction of the Issuer to the
Principal Paying Agent or the Currency Swap Provider made in
accordance with the Agency Agreement on account of an amount owing in
relation to the Class A-1 Notes will operate as payment by the Issuer
to the Class A-1 Note Trustee in satisfaction of the Issuer's
obligations under clause 6.1(a).
6.2 Covenant of Compliance
(a) (Class A-1 Notes): The Issuer and the Manager each severally covenants
in favour of the Class A-1 Note Trustee that it will comply with all
of its obligations under the Class A-1 Notes (as if the provisions of
the Class A-1 Notes, including the Class A-1 Note Conditions, were set
out in full in this Deed).
(b) (Transaction Documents): The Issuer and the Manager each severally
covenants in favour of the Class A-1 Note Trustee that it will:
(i) comply with, perform and observe all of its material obligations
under all the other Transaction Documents to which it is a party;
and
(ii) use reasonable endeavours to procure that each other party to a
Transaction Document (other than the Class A-1 Note Trustee) to
which it is a party complies with its material obligations under
that Transaction Document.
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6.3 Other covenants
The Issuer and the Manager each severally covenants in favour of the Class
A-1 Note Trustee that so long as any Class A-1 Notes remain outstanding,
and unless the Class A-1 Note Trustee agrees otherwise in accordance with
this Deed, it will:
(a) (Assistance to Class A-1 Note Trustee): provide to the Class A-1 Note
Trustee, as the Class A-1 Note Trustee may reasonably require to
enable the Class A-1 Note Trustee to perform its duties and functions
under this Deed, such information, copies of any accounting records
and other documents, statements and reports required to be maintained
by, or that are otherwise in the possession of, the Issuer or the
Manager, as the case may be, or which it is entitled to obtain from
any person and execute such documents and do such things, which the
Issuer has the power to do under the Master Trust Deed and Series
Supplement, as may be necessary, in the reasonable opinion of the
Class A-1 Note Trustee, to give effect to this Deed or any other
Transaction Document to which the Class A-1 Note Trustee is a party;
(b) (Notify Events of Default etc.): promptly notify the Class A-1 Note
Trustee upon becoming aware of the occurrence of an Event of Default,
Potential Event of Default, Servicer Default, Perfection of Title
Event, Trustee Default, Manager Default or Potential Termination Event
and provide the Class A-1 Note Trustee with details of such
occurrence;
(c) (Certificate as to Compliance): provide to the Class A-1 Note Trustee
within 120 days after the end of each fiscal year of the Series Trust
(commencing on the fiscal year ending in June 2001):
(i) in accordance with section 314(a)(4) of the TIA, a brief
certificate from its principal executive officer, principal
financial officer or principal accounting officer as to his or
her knowledge of the activities of the Issuer and the Manager in
respect of the Series Trust during that year and of the Issuer's
or the Manager's, as the case may be, compliance with all
conditions, covenants and other provisions under this Deed
(including under clause 6.2(b) and determined without regard to
any period of grace or requirement of notice under this Deed or
any other Transaction Document) and giving reasonable details
about any non-compliance; and
(ii) a certificate (which may be part of the certificate referred to
in clause 6.3(c)(i)) from an Authorised Officer of the Issuer
and from an Authorised Officer of the Manager, as the case may
be, stating whether to the best of his or her knowledge in the
period since the date of execution of this Deed (in the case of
the first such certificate) based on a review of the activities
referred to in clause 6.3(c)(i) or since the provision of the
most recent certificate under this clause 6.3(c)(ii) (in the
case of any other such certificate), an Event of Default,
Potential Event of Default, Perfection of Title Event, Servicer
Default, Manager Default or Trustee Default has occurred and, if
any such event has occurred, giving reasonable details of that
event;
(d) (Listing): in the case of the Manager only, procure that the Class A-1
Notes are listed on the London Stock Exchange upon issue and use
reasonable endeavours to maintain that listing (including by using
reasonable endeavours to ensure compliance by the Issuer with the
continuing obligations of the Issuer by virtue of the listing of the
Class A-1 Notes on the London Stock Exchange) provided that if having
used reasonable endeavours it is unable to maintain such listing, or
if the maintenance of such listing is unduly onerous, it must:
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(i) use reasonable endeavours to obtain and maintain a quotation or
listing on another stock exchange or securities market (as
nominated by the Manager with the prior written approval of the
Class A-1 Note Trustee, which approval must not be unreasonably
withheld or delayed, or if the Manager fails to make such a
nomination, as nominated by the Class A-1 Note Trustee) in lieu
of the London Stock Exchange; and
(ii) effect such amendments to this Deed, in accordance with clause
15, as are necessary, or as the Class A-1 Note Trustee may
reasonably require, in order to comply with the requirements of
any such stock exchange or securities market;
(e) (Furnish Information to Exchange): in the case of the Manager only,
without limiting clause 6.3(d), provide or procure that there is
provided to any stock exchange or securities market upon which the
Class A-1 Notes are listed or quoted all information required to be so
provided as a requirement of such listing or quotation;
(f) (Copy Notices to Class A-1 Noteholders): provide, or procure that
there is provided, to the Class A-1 Note Trustee:
(i) a copy of each notice given to Class A-1 Noteholders by the
Issuer (at the same time as such notice is given); and
(ii) in the case of the Manager only, a copy of each document provided
to any stock exchange or securities market pursuant to clause
6.3(e);
(g) (Auditor's Report): in the case of the Manager only, provide, or
procure that there is provided, to the Class A-1 Note Trustee, within
10 Business Days of the date of its issue, a copy of each report
issued by the Auditor pursuant to clauses 21.9 and 22.3 of the Master
Trust Deed;
(h) (Access to Records): allow the Class A-1 Note Trustee, and any person
appointed by the Class A-1 Note Trustee to whom it has no reasonable
objection, access at all times during normal business hours, upon
reasonable notice, to the accounting records of the Series Trust held
by it or in its control;
(i) (Opinion as to Filing): procure that there is provided to the Class A-
1 Note Trustee in accordance with section 314(b) of the TIA:
(i) on the Closing Date, Counsel's Opinion either stating that the
Security Trust Deed 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 no such action is necessary to make such Security
Interest effective; and
(ii) within 120 days after the end of each fiscal year of the Series
Trust (commencing on the fiscal year ending in June 2001),
Counsel's Opinion either stating that such action has been taken
with respect to the recording, filing, re-recording and re-filing
of the Security Trust Deed as is necessary to maintain the
Security Interest created by the Security Trust Deed and reciting
the details of such action or stating that no such action is
necessary to maintain such Security Interest;
(j) (Change of Manager): in the case of the Issuer only, promptly notify
the Class A-1 Note Trustee of any retirement or replacement of the
Manager pursuant to clause 20 of the Master Trust Deed and of the
appointment of a Substitute Manager;
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(k) (Transaction Documents): in the case of the Manager only, provide to
the Class A-1 Note Trustee, on or prior to the Issue Date in respect
of the Class A-1 Notes, one copy of each Transaction Document as at
that Issue Date (other than any Transaction Document to which the
Class A-1 Note Trustee is a party) and provide to the Class A-1 Note
Trustee a copy of each Transaction Document executed after the Issue
Date (other than any Transaction Document to which the Class A-1 Note
Trustee is a party) promptly after its execution; and
(l) (Paying Agents Trust): ensure that each Paying Agent agrees, as a term
of its appointment, to hold in trust for the benefit of Class A-1
Noteholders or the Class A-1 Note Trustee all sums held by such Paying
Agent for the payment of the principal of or interest on the Class A-1
Notes and to promptly give to the Class A-1 Note Trustee notice of any
default by the Issuer (without regard to any grace period) in the
making of any such payment.
6.4 Covenants between Issuer and Manager
(a) (Obligations of Manager): Without limiting any other obligations of
the Manager pursuant to any Transaction Document, the Manager
covenants in favour of the Issuer to prepare and submit to the Issuer
all documents required to be filed with or submitted to the Commission
or the London Stock Exchange by the Issuer in relation to the Class A-
1 Notes, the Series Trust or this Deed at least, where possible, 5
Business Days before such filing or submission is required and to take
such other actions as may reasonably be taken by the Manager to
perform or ensure the performance by the Issuer of its obligations
under the TIA, the Exchange Act or the listing rules of the London
Stock Exchange in relation to the Class A-1 Notes, the Series Trust or
this Deed. No breach by the Issuer of any obligation under the TIA,
the Exchange Act, the listing rules of the London Stock Exchange or
this Deed will be considered to be fraudulent, negligent or wilful
default for the purposes of clause 22.3 to the extent that it results
from a breach by the Manager of this clause 6.4(a).
(b) (Obligation of Issuer): Subject to compliance by the Manager with
clause 6.4(a), the Issuer covenants in favour of the Manager to sign
all documents and do all things reasonably requested by the Manager in
relation to the compliance by the Issuer or the Manager of its
obligations under the TIA, the Exchange Act or the listing rules of
the London Stock Exchange in relation to the Class A-1 Notes, the
Series Trust or this Deed.
________________________________________________________________________________
7. Enforcement
7.1 Notice Following an Event of Default or Potential Event of Default
If an Event of Default or Potential Event of Default has occurred and is
known to the Class A-1 Note Trustee, the Class A-1 Note Trustee must:
(a) (Notify Class A-1 Noteholders): notify each Class A-1 Noteholder and
such other persons as are specified in Section 313(c) of the TIA of
the Event of Default or Potential Event of Default, as the case may
be, within 10 days, or such shorter period as may be required by the
rules of any stock exchange on which the Class A-1 Notes are listed,
after becoming aware of the Event of Default, or Potential Event of
Default provided that except in the case of a default in payment of
principal or interest on any Class A-1 Note, the Class A-1 Note
Trustee may withhold such notice if and so long as the board of
directors, the executive committee or a trust committee of its
directors and/or Authorised Officers in good faith determine that
withholding the notice is in the interest of Class A-1 Noteholders;
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(b) (Determine Whether to Seek Directions): if a meeting of Voting Secured
Creditors is to be held under the Security Trust Deed, determine
whether it proposes to seek directions from Class A-1 Noteholders as
to how to vote at that meeting and, if so, whether it proposes to
instruct the Security Trustee to delay the holding of that meeting
while it obtains such directions from the Class A-1 Noteholders; and
(c) (Vote at Meeting of Secured Creditors): subject to clause 7.2, vote
at any meeting of Voting Secured Creditors held under the Security
Trust Deed in accordance with clause 9.8.
7.2 Restrictions on enforcement
(a) (Class A-1 Notes Outstanding): If any of the Class A-1 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-1 Notes, the Class
A-1 Note Trustee must not vote at a meeting of Voting Secured
Creditors under the Security Trust Deed, or otherwise direct the
Security Trustee, to dispose of the Charged Property unless:
(i) a sufficient amount would be realised to discharge in full all
amounts owing to the Class A-1 Noteholders in respect of the
Class A-1 Notes and any other amounts owing by the Issuer to
any other person ranking in priority to or equally with the
Class A-1 Notes;
(ii) the Class A-1 Note Trustee is of the opinion, reached after
considering at any time and from time to time the advice of an
investment bank or other financial adviser selected by the
Class A-1 Note Trustee, that the cash flow receivable by the
Issuer (or the Security Trustee under the Security Trust Deed)
will not (or that there is a significant risk that it will not)
be sufficient, having regard to any other relevant actual,
contingent or prospective liabilities of the Issuer, to
discharge in full in due course all the amounts referred to in
clause 7.2(a)(i); or
(iii) the Class A-1 Note Trustee is so directed by a Special Majority
of Class A-1 Noteholders.
(b) (Liability for Enforcement): Subject to clauses 8.3, 9.3 and 9.5
and the mandatory provisions of the TIA, the Class A-1 Note Trustee
will not be liable for any decline in the value, nor any loss realised
upon any sale or other dispositions made under the Security Trust
Deed, of any Charged Property. Without limiting the foregoing, the
Class A-1 Note Trustee will not 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 clause 7.2(a).
7.3 Class A-1 Note Trustee may enforce
The Class A-1 Note Trustee has the power, subject to clause 22:
(a) (Enforce Following Default): in the event of a default in repayment of
the principal or payment of interest by the Issuer in respect of any
Class A-1 Note when and as the same shall become due and payable,
which default has continued for a period of 10 days, to recover
judgment, in its own name and as trustee of the Class A-1 Trust,
against the Issuer upon the Class A-1 Notes for the whole amount of
such principal and interest remaining unpaid; and
(b) (File Proofs): to file such proofs of claim and other payments or
documents as may be necessary or advisable in order to have the claims
of the Class A-1 Note Trustee and the Class A-1 Noteholders allowed in
any judicial proceedings in relation to the
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Issuer upon the Class A-1 Notes, the Creditors in relation to the
Series Trust or the Assets of the Series Trust;
(c) (Collect Moneys): to collect and receive any moneys or other property
payable or deliverable on any of those claims and to distribute those
moneys; and
(d) (Enforce Rights): if an Event of Default occurs and is subsisting, to
proceed to protect and enforce its rights and the rights of the Class
A-1 Noteholders by such appropriate judicial proceedings as the Class
A-1 Note Trustee deems most effectual to protect and enforce any such
rights, whether for the performance of any provision of this Deed or
in aid of the exercise of any power under this Deed or to enforce any
other proper remedy,
but nothing in this clause 7.3 is to be construed as requiring the Class
A-1 Note Trustee to take any such action unless it has been directed to do so
by a Special Majority of the Class A-1 Noteholders and has been indemnified
or put in funds to its satisfaction by the Class A-1 Noteholders against
any liability that it may incur as a result of taking such action. If the
Class A-1 Note Trustee takes any action to enforce any of the provisions of
the Class A-1 Notes proof that as regards any Class A-1 Note the Issuer has
not paid any principal or interest due in respect of that Class A-1 Note
will (unless the contrary is proved) be sufficient evidence that the Issuer
has not paid that principal or interest on all other Class A-1 Notes in
respect of which the relevant payment is then due.
7.4 Class A-1 Note Trustee alone may enforce
Subject to clause 19.4 and the mandatory provisions of the TIA, only the
Class A-1 Note Trustee may enforce, or direct the Security Trustee to
enforce, the obligations of the Issuer or the Manager to the Class A-1
Noteholders under the Class A-1 Notes, this Deed or any other Transaction
Document. No Class A-1 Noteholder is entitled to proceed directly against
the Issuer or the Manager in respect of the Class A-1 Notes, this Deed or
any other Transaction Document.
________________________________________________________________________________
8. Class A-1 Note Trustee's powers, protections etc.
8.1 Class A-1 Note Trustee's additional powers, protections, etc.
By way of supplement to any Statute regulating the Class A-1 Trust and in
addition to the powers, rights and protections which may from time to time
be vested in or available to the Class A-1 Note Trustee by the general law
it is expressly declared, notwithstanding anything to the contrary in this
Deed (subject only to clauses 8.3, 9.3 and 9.5 and the mandatory
provisions of the TIA) as follows.
(a) (Liability to account): The Class A-1 Note Trustee is under no
obligation to account to any Interested Person for any moneys received
pursuant to this Deed or any other Transaction Document other than
those received by the Class A-1 Note Trustee from the Issuer or
received or recovered by the Class A-1 Note Trustee under this Deed or
any other Transaction Document, subject always to such deductions and
withholdings by the Class A-1 Note Trustee as are authorised by this
Deed. Obligations of the Class A-1 Note Trustee to any Interested
Person or any other person under or in connection with this Deed can
only be enforced against the Class A-1 Note Trustee to the extent to
which they can be satisfied out of such moneys in accordance with this
Deed.
(b) (Class A-1 Notes): The Class A-1 Note Trustee is not responsible for
the receipt or application of the proceeds of issue of any of the
Class A-1 Notes or (except when acting as Class A-1 Note Registrar and
to the extent specifically provided in this Deed or the Agency
Agreement) for the exchange, transfer or cancellation of any Class A-1
Note.
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(c) (Act on professional advice): Subject to clause 9.2(b), the Class
A-1 Note Trustee may act on the opinion or advice of, or information
obtained from, any lawyer, valuer, banker, broker, accountant or other
expert appointed by the Class A-1 Note Trustee, or by a person other
than Class A-1 Note Trustee, where that opinion, advice or information
is addressed to the Class A-1 Note Trustee or by its terms is
expressed to be capable of being relied upon by the Class A-1 Note
Trustee. Subject to clause 9.2(b), the Class A-1 Note Trustee will
not be responsible to any Interested Person for any loss occasioned by
so acting and in reliance on such advice. Any such opinion, advice or
information may be sent or obtained by letter, telex or facsimile
transmission and the Class A-1 Note Trustee will not be liable to any
Interested Person for acting on any opinion, advice or information
conforming with any applicable requirements of this Deed or the TIA
and purporting to be conveyed by such means even though it contains
some error which is not a manifest error or is not authentic.
(d) (No enquiry): Unless specifically required under this Deed, the Class
A-1 Note Trustee is not bound to give notice to any person of the
execution of this Deed or to take any steps to ascertain whether there
has occurred any Event of Default, Potential Event of Default,
Perfection of Title Event, Servicer Default, Manager Default or
Trustee Default or event which, with the giving of notice or the lapse
of time would constitute a Perfection of Title Event, Servicer
Default, Manager Default or Trustee Default or to keep itself informed
about the circumstances of the Issuer or the Manager and, until it has
actual knowledge or express notice to the contrary, the Class A-1 Note
Trustee may assume that no Event of Default, Potential Event of
Default, Perfection of Title Event, Servicer Default, Manager Default
or Trustee Default has occurred and that the Issuer, the Manager and
each other party to the Transaction Documents (other than the Class A-
1 Note Trustee) are observing and performing all the obligations on
their part contained in the Transaction Documents and need not inquire
whether that is, in fact, the case (but nothing in this clause
8.1(d) is to be construed as limiting the Class A-1 Note Trustee's
right to make such inquiries, in its discretion, and to exercise its
powers under this Deed so to do).
(e) (Acts pursuant to directions): The Class A-1 Note Trustee will not be
responsible for having acted in good faith upon a direction purporting
to have been given by a Majority of the Class A-1 Noteholders even
though it may subsequently be found that for any reason such direction
was not valid or binding upon the Class A-1 Note Trustee. However, for
the purposes of determining whether a Majority of Class A-1
Noteholders have given a direction which the Class A-1 Note Trustee
may rely upon in accordance with this clause, Class A-1 Notes which
the Class A-1 Note Trustee knows are owned by the Issuer or the
Manager or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer or the Manager, shall be disregarded.
(f) (Reliance): Subject to clause 9.2(b), the Class A-1 Note Trustee
is, for any purpose and at any time, entitled to rely on, act upon,
accept and regard as conclusive and sufficient (without being in any
way bound to call for further evidence or information or being
responsible for any loss that may be occasioned by such reliance,
acceptance or regard) any of the following:
(i) any information, report, balance sheet, profit and loss account,
certificate or statement supplied by the Issuer, the Security
Trustee or the Manager or by any officer, auditor or solicitor of
the Issuer, the Security Trustee or the Manager;
(ii) any information or statement provided to it in relation to the
Class A-1 Notes, the Class A-1 Noteholders or the Class A-1 Note
Owners by the Depositary or its nominee;
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(iii) all statements (including statements made or given to the best
of the maker's knowledge and belief or similarly qualified)
contained in any information, report, balance sheet, profit and
loss account, certificate or statement given pursuant to or in
relation to this Deed, the Security Trust Deed, the Master
Trust Deed or the Series Supplement;
(iv) all accounts supplied to the Class A-1 Note Trustee pursuant to
this Deed and all reports of the Auditor supplied to the Class
A-1 Note Trustee pursuant to this Deed; and
(v) notices and other information supplied to the Class A-1 Note
Trustee under this Deed,
save, in each case, when it is actually aware that the information
supplied pursuant to subclauses (i) to (v) is incorrect or incomplete.
(g) (Director's certificates): Subject to clause 9.2(b), the Class A-1
Note Trustee may call for and may accept as sufficient evidence of any
fact or matter or of the expediency of any dealing, transaction, step
or thing a certificate signed by any two directors or Authorised
Officers of the Issuer or the Manager as to any fact or matter upon
which the Class A-1 Note Trustee may, in the exercise of any of its
duties, powers, authorities and discretions under this Deed, require
to be satisfied or to have information to the effect that in the
opinion of the person or persons so certifying any particular dealing,
transaction, step or thing is expedient and the Class A-1 Note Trustee
will not be bound to call for further evidence and will not be
responsible for any loss that may be occasioned by acting on any such
certificate (but nothing in this clause 8.1(g) is to be construed as
either limiting the Class A-1 Note Trustee's right to call for such
evidence, in its discretion, and to exercise its powers under this
Deed so to do or permitting the Class A-1 Note Trustee to rely on
evidence of compliance with conditions precedent where such reliance
is not permitted by section 314 of the TIA).
(h) (Signatures): The Class A-1 Note Trustee may rely in good faith on the
validity of any signature on any Class A-1 Note, transfer, form of
application or other instrument or document unless the Class A-1 Note
Trustee has reason to believe that the signature is not genuine. The
Class A-1 Note Trustee is not liable to make good out of its own funds
any loss incurred by any person if a signature is forged or otherwise
fails to bind the person whose signature it purports to be or on whose
behalf it purports to be made.
(i) (Custody of documents): The Class A-1 Note Trustee may hold or deposit
this Deed and any deed or documents relating to this Deed or to the
Transaction Documents in any part of the world, other than the
Commonwealth of Australia, and with any banker or banking company or
entity whose business includes undertaking the safe custody of deeds
or documents or with any lawyer or firm of lawyers reasonably believed
by it to be of good repute and the Class A-1 Note Trustee will not be
responsible for any loss incurred in connection with any such holding
or deposit and may pay all sums to be paid on account of or in respect
of any such deposit.
(j) (Discretion): The Class A-1 Note Trustee, as regards all the powers,
trusts, authorities and discretions vested in it pursuant to this
Deed, any other Transaction Document or otherwise, has, subject to any
express provision to the contrary contained in this Deed or any other
Transaction Document to which it is a party, absolute and uncontrolled
discretion as to the exercise of such powers, authorities, trusts and
discretions and will be in no way responsible to any Interested Person
or any other person for any loss, costs, damages, expenses or
inconvenience which may result from the exercise or non-exercise of
such powers, authorities, trusts and
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discretions. Without limiting the foregoing, any consent or approval
given by the Class A-1 Note Trustee for the purposes of this Deed or
any other Transaction Document may be given on such terms and subject
to such conditions (if any) as the Class A-1 Note Trustee thinks fit
and, notwithstanding anything to the contrary in this Deed, may be
given retrospectively.
(k) (Employ agents): Wherever it considers it expedient in the interests
of the Class A-1 Noteholders, the Class A-1 Note Trustee may, instead
of acting personally, employ and pay an agent selected by it, whether
or not a lawyer or other professional person, to transact or conduct,
or concur in transacting or conducting any business and to do or
concur in doing all acts required to be done by the Class A-1 Note
Trustee (including the receipt and payment of money under this Deed).
The Class A-1 Note Trustee will not be responsible to any Interested
Person for any misconduct, or default on the part of any such person
appointed by it under this Deed or be bound to supervise the
proceedings or acts of any such person, provided that the Class A-1
Note Trustee has exercised good faith and due care in such appointment
and that any such person will be a person who is in the opinion of the
Class A-1 Note Trustee appropriately qualified to do any such things.
Any such agent being a lawyer, banker, broker or other person engaged
in any profession or business will be entitled to charge and be paid
all usual professional and other charges for business transacted and
acts done by him or her or any partner of his or her or by his or her
firm in connection with this Deed and also his or her reasonable
charges in addition to disbursements for all other work and business
done and all time spent by him or her or his or her partners or firm
on matters arising in connection with this Deed including matters
which might or should have been attended to in person by a trustee not
being a lawyer, banker, broker or other professional person.
(l) (Delegation): Subject to clause 8.5, the Class A-1 Note Trustee may
whenever it thinks it expedient in the interests of Class A-1
Noteholders, delegate to any person or fluctuating body of persons
selected by it all or any of the duties, powers, authorities, trusts
and discretions vested in the Class A-1 Note Trustee by this Deed
provided that, except as provided in any Transaction Documents, the
Class A-1 Note Trustee may not delegate to such third parties any
material part of its powers, duties or obligations as Class A-1 Note
Trustee (provided that following the occurrence of an Event of Default
the Class A-1 Note Trustee may delegate any of its powers, duties and
obligations to be exercised or performed in Australia). Any such
delegation may be by power of attorney or in such other manner as the
Class A-1 Note Trustee may think fit and may be made upon such terms
and conditions (including power to sub-delegate) and subject to such
regulations as the Class A-1 Note Trustee may think fit. Provided that
the Class A-1 Note Trustee has exercised good faith and due care in
the selection of such delegate, and subject to clause 8.6, it will
not be under any obligation to any Interested Person to supervise the
proceedings or be in any way responsible for any loss incurred by
reason of any misconduct or default on the part of any such delegate
or sub-delegate.
(m) (Apply to court): The Class A-1 Note Trustee may, whenever it thinks
it expedient in the interests of the Class A-1 Noteholders, apply to
any court for directions in relation to any question of law or fact
arising either before or after an Event of Default and assent to or
approve any applications of any Class A-1 Noteholder, the Issuer or
the Manager.
(n) (Disclosure): Subject to this Deed, any applicable laws and any duty
of confidentiality owed by any Interested Person to any other person,
the Class A-1 Note Trustee may, for the purpose of meeting its
obligations under this Deed, disclose to any Class A-1 Noteholder any
confidential, financial or other information made available to the
Class A-1 Note Trustee by an Interested Person or any other person in
connection with this Deed.
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(o) (Determination): The Class A-1 Note Trustee, as between itself and the
Class A-1 Noteholders, has full power to determine (acting reasonably
and in good faith) all questions and doubts arising in relation to any
of the provisions of this Deed and every such determination, whether
made upon such a question actually raised or implied in the acts or
proceedings of the Class A-1 Note Trustee, will be conclusive and will
bind the Class A-1 Note Trustee and the Class A-1 Noteholders.
(p) (Interests of Class A-1 Noteholders): In connection with the exercise
by it of any of its trusts, powers, authorities and discretions under
this Deed or any other Transaction Document (including, without
limitation, any modification, waiver, authorisation or determination),
the Class A-1 Note Trustee must where it is required to have regard to
the interests of the Class A-1 Noteholders, have regard to the general
interests of the Class A-1 Noteholders as a class. The Class A-1 Note
Trustee will not incur any liability to any Class A-1 Noteholder as a
result of the Class A-1 Note Trustee giving effect to this clause
8.1(p).
(q) (Assumption as to Prejudice): The Class A-1 Note Trustee is entitled
to assume, for the purposes of exercising any power, trust, authority,
duty or discretion under or in relation to the Class A-1 Notes, this
Deed or any other Transaction Document, that such exercise will not be
materially prejudicial to the interests of the Class A-1 Noteholders
if each of the Rating Agencies has confirmed in writing that such
exercise will not result in the reduction, qualification or withdrawal
of the credit rating then assigned by it to the Class A-1 Notes (but
nothing in this clause is to be construed as requiring the Class A-1
Note Trustee to obtain such confirmation).
(r) (Validity of Transaction Documents): The Class A-1 Note Trustee is not
responsible for the execution, delivery, legality, effectiveness,
adequacy, genuineness, validity, performance, enforceability,
admissibility in evidence, form or content of this Deed or any other
Transaction Document (other than the execution and delivery by it of
this Deed and each other Transaction Document to which it is expressed
to be a party and the performance of those obligations expressed to be
binding on it under this Deed and such Transaction Documents) and is
not liable for any failure to obtain any licence, consent or other
authority for the execution, delivery, legality, effectiveness,
adequacy, genuineness, validity, performance, enforceability or
admissibility in evidence of this Deed or any other Transaction
Document except to the extent specifically provided in this Deed or
such Transaction Document. The Class A-1 Note Trustee is not
responsible for recitals, statements, warranties or representations of
any party (other than itself) contained in any Transaction Document
(and is entitled to assume the accuracy and correctness thereof).
(s) (Defect in Security): The Class A-1 Note Trustee is not bound or
concerned to examine or enquire into nor is it liable for any defect
in or failure to perfect any Security Interest created or purported to
be created by the Security Trust Deed and the Class A-1 Note Trustee
may accept without enquiry, requisition or objection such title as the
Issuer may have to the Charged Property or any part thereof from time
to time and shall not be bound to investigate or make any enquiry into
the title of the Issuer to the Charged Property or any part thereof
from time to time.
(t) (Class A-1 Noteholders Responsible): Each Class A-1 Noteholder is
solely responsible for making its own independent appraisal of and
investigation into the financial condition, creditworthiness,
condition, affairs, status and, nature of the Issuer and the Series
Trust and the Class A-1 Note Trustee does not at any time have any
responsibility for the same and no Class A-1 Noteholder may rely on
the Class A-1 Note Trustee in respect of such appraisal and
investigation.
(u) (Limit on Obligations): No provision of this Deed or any other
Transaction Document requires the Class A-1 Note Trustee to do
anything which may be
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contrary to any applicable law or regulation or to 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 shall have reasonable grounds for believing
that repayment of such funds or full indemnity against such risk or
liability is not assured to it. Except for the obligations imposed on
it under this Deed, the Class A-1 Notes or any other Transaction
Document, the Class A-1 Note Trustee is not obliged to do or omit to
do any thing, including entering into any transaction or incurring any
liability unless the Class A-1 Note Trustee's liability, is limited in
a manner satisfactory to the Class A-1 Note Trustee in its absolute
discretion.
(v) (No duty to provide information): Subject to the express requirements
of this Deed or otherwise as required by any law, the Class A-1 Note
Trustee has no duty (either initially, or on a continuing basis) to
consider or provide any Class A-1 Noteholders with any confidential
financial, price sensitive or other information made available by the
Issuer, the Manager or any other person under or in connection with
this Deed or any Transaction Document (whenever coming into its
possession) and no Class A-1 Noteholder is entitled to take any action
to obtain from the Class A-1 Note Trustee any such information.
(w) (No liability for breach): The Class A-1 Note Trustee is not to be
under any liability whatsoever for a failure to take any action in
respect of any breach by the Issuer of its duties as trustee of the
Series Trust of which the Class A-1 Note Trustee is not aware or in
respect of any Event of Default or Potential Event of Default of which
the Class A-1 Note Trustee is not aware.
(x) (Dispute or Ambiguity): In the event of any dispute or ambiguity as to
the construction or enforceability of this Deed or any other
Transaction Document, or the Class A-1 Note Trustee's powers or
obligations under or in connection with this Deed or the determination
or calculation of any amount or thing for the purpose of this Deed or
the construction or validity of any direction from Class A-1
Noteholders, provided the Class A-1 Note Trustee is using reasonable
endeavours to resolve such ambiguity or dispute, the Class A-1 Note
Trustee, in its absolute discretion, may (but will have no obligation
to) refuse to act or refrain from acting in relation to matters
affected by such dispute or ambiguity.
(y) (Loss to Charged Property): The Class A-1 Note Trustee shall not be
responsible for any loss, expense or liability occasioned to the
Charged Property or any other property or in respect of all or any of
the moneys which may stand to the credit of the Collections Account
from time to time however caused (including, without limitation, where
caused by an act or omission of the Security Trustee) unless that loss
is occasioned by the fraud, negligence, wilful default or breach of
trust of the Class A-1 Note Trustee.
(z) (Conversion of Money): Where necessary or expedient in order to fulfil
its obligations under this Deed or any Transaction Document the Class
A-1 Note Trustee may convert any moneys forming part of the Class A-1
Trust Fund from one currency into another at such market exchange rate
or rates as are reasonably determined by the Class A-1 Note Trustee.
(aa) (Ratings): Except as otherwise provided in this Deed or any other
Transaction Document, the Class A-1 Note Trustee has no responsibility
for the maintenance of any rating of the Class A-1 Notes by any Rating
Agency or any other person.
(bb) (No liability for tax on payments): The Class A-1 Note Trustee has no
responsibility whatsoever to any Class A-1 Noteholder or any other
person in relation to any deficiency in a payment by the Class A-1
Note Trustee to any Class A-1 Noteholders if that deficiency arises as
a result of the Class A-1 Note Trustee
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or the Issuer being subject to any Tax in respect of that payment, the
Charged Property, the Security Trust Deed, this Deed or any income or
proceeds from them.
8.2 Waivers
Subject to clause 7.1(a), the Class A-1 Note Trustee may, and if directed
to do so by a Majority of Class A-1 Noteholders must, on such terms and
conditions as it may deem reasonable, without the consent of any of the
Class A-1 Noteholders, and without prejudice to its rights in respect of
any subsequent breach agree to any waiver or authorisation of any breach or
proposed breach of any of the terms and conditions of the Transaction
Documents by the Issuer, the Manager or any other person which, unless the
Class A-1 Note Trustee is acting on the direction of a Majority of Class A-
1 Noteholders, is not, in the opinion of the Class A-1 Note Trustee,
materially prejudicial to the interests of the Class A-1 Noteholders as a
class. No such waiver, authorisation or determination may be made in
contravention of any prior direction by a Majority of the Class A-1
Noteholders. No direction of the Class A-1 Noteholders shall affect any
such waiver, authorisation or determination previously given or made. Any
such waiver, authorisation or determination will, if the Class A-1 Note
Trustee so requires, be notified to the Class A-1 Noteholders by the Issuer
as soon as practicable after it is made in accordance with this Deed.
8.3 Class A-1 Note Trustee's liability
Nothing in this Deed or any other Transaction Document will in any case in
which the Class A-1 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 and the mandatory provisions of the TIA conferring on it any trusts,
powers, authorities or discretions exempt the Class A-1 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 fraud or wilful default of which it may be guilty in relation to its
duties under this Deed.
8.4 Dealings with Series Trust
Subject to clause 9.7, none of the:
(a) (Class A-1 Note Trustee): Class A-1 Note Trustee in its personal or
any other capacity;
(b) (Related Bodies Corporate): Related Bodies Corporate of the Class A-1
Note Trustee;
(c) (Directors etc.): directors or officers of the Class A-1 Note Trustee
or its Related Bodies Corporate; or
(d) (Shareholders): shareholders of the Class A-1 Note Trustee or its
Related Bodies Corporate,
is prohibited from:
(e) (Subscribing for): subscribing for, purchasing, holding, dealing in or
disposing of Class A-1 Notes;
(f) (Contracting with): at any time:
(i) contracting with;
(ii) acting in any capacity as representative or agent for; or
(iii) entering into any financial, banking, agency or other
transaction with,
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any other of them, the Issuer, the Manager or any Secured Creditor
(including any Class A-1 Noteholder); or
(g) (Being interested in): being interested in any contract or
transaction referred to in paragraphs (e) or (f).
None of the persons mentioned is liable to account to the Class A-1
Noteholders for any profits or benefits (including, without limitation,
bank charges, commission, exchange brokerage and fees) derived in
connection with any contract or transaction referred to in paragraphs (e)
or (f). The preceding provisions of this clause 8.4 only apply if the
relevant person, in connection with the action, contract or transaction,
acts in good faith to all Class A-1 Noteholders and, in the case of the
Class A-1 Note Trustee, are subject to section 311(a) of the TIA.
8.5 Delegation of duties of Class A-1 Note Trustee
The Class A-1 Note Trustee must not delegate to any person any of its
trusts, duties, powers, authorities or discretions under this Deed except:
(a) (Related Body Corporate): to a Related Body Corporate of the Class A-
1 Note Trustee; or
(b) (As otherwise permitted): in accordance with the provisions of this
Deed or otherwise as agreed by the Manager.
8.6 Related Body Corporate of the Class A-1 Note Trustee
Where the Class A-1 Note Trustee delegates any of its trusts, duties,
powers, authorities and discretions to any person who is a Related Body
Corporate of the Class A-1 Note Trustee, the Class A-1 Note Trustee at all
times remains liable for the acts or omissions of such Related Body
Corporate and for the payment of fees of that Related Body Corporate when
acting as delegate.
________________________________________________________________________________
9. Duties of the Class A-1 Note Trustee
9.1 Class A-1 Note Trustee's general duties
The Class A-1 Note Trustee must comply with the duties imposed on it by
this Deed, the Class A-1 Notes (including the Class A-1 Note Conditions)
and each other Transaction Document to which it is a party and must:
(a) (Act continuously): act continuously as trustee of the Class A-1
Trust until the Class A-1 Trust is terminated in accordance with this
Deed or until it has retired or been removed in accordance with this
Deed; and
(b) (Have regard to the Interests of Class A-1 Noteholders): in the
exercise of all discretions vested in it by this Deed and all other
Transaction Documents, except where expressly provided otherwise,
have regard to the interest of the Class A-1 Noteholders as a class.
9.2 Duties of the Class A-1 Note Trustee prior to Event of Default
Prior to an Event of Default:
(a) (Class A-1 Note Trustee Not Liable): the Class A-1 Note Trustee shall
not be liable except for the performance of such duties as are
specifically set out in this Deed, the Class A-1 Notes (including the
Class A-1 Note Conditions) or any other Transaction Document to which
it is a party and no implied covenants or
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obligations on the part of the Class A-1 Note Trustee are to be read
into this Deed; and
(b) (Reliance on Certificates): the Class A-1 Note Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, in the absence of bad
faith on the part of the Class A-1 Note Trustee, upon certificates or
opinions furnished to the Class A-1 Note Trustee and conforming to
the requirements of this Deed provided that the Class A-1 Note
Trustee shall examine, where applicable, the evidence furnished to it
pursuant to any provision of this Deed to determine whether or not
such evidence conforms to the requirements of this Deed.
9.3 Duties of the Class A-1 Note Trustee following an Event of Default
If an Event of Default has occurred and is subsisting the Class A-1 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.
9.4 Certain limitations of liability where acting in good faith
The Class A-1 Note Trustee shall not be liable under this Deed or any
Transaction Document for any error of judgment made in good faith by an
Authorised Officer of the Class A-1 Note Trustee unless it is proved that
the Class A-1 Note Trustee was negligent in ascertaining the pertinent
facts.
9.5 Class A-1 Note Trustee not relieved of liability for negligence etc.
Subject to clauses |9.2 and 9.4, nothing in this Deed will relieve the
Class A-1 Note Trustee from liability for its own negligent action, its
own negligent failure to act or its own wilful misconduct. Section
315(d)(3) of the TIA is expressly excluded by this Deed.
9.6 Preferred collection of claims against Issuer
The Class A-1 Note Trustee must comply with section 311(a) of the TIA and
the rules thereunder other than with respect to any creditor relationship
excluded from the operation of section 311(a) by section 311(b) of the
TIA. Following its retirement or removal pursuant to clause |14, the
Class A-1 Note Trustee will remain subject to section 311(a) of the TIA to
the extent required by the TIA.
9.7 Compliance with Section 310 of TIA
(a) (Section 310(a) of TIA): The Class A-1 Note Trustee must ensure that it
at all times satisfies the requirements of section 310(a) of the TIA.
(b) (Capital): Without limiting the foregoing, the Class A-1 Note Trustee
must ensure that it all times has 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) (Section 310(b) of TIA): The Class A-1 Note Trustee must at all times
comply with section 310(b) of the TIA, provided that any indenture or
indentures under which other securities of the Issuer are outstanding
will be excluded from the operation of section 310(b)(1) of the TIA if
the requirements for such exclusion set out in section 310(b)(1) of the
TIA are met.
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9.8 Voting at meetings under Master Trust Deed or Security Trust Deed
If the Class A-1 Note Trustee is entitled under the Master Trust Deed (as
varied by clause 1.6 of the Series Supplement) or the Security Trust
Deed to vote at any meeting on behalf of Class A-1 Noteholders, the Class
A-1 Note Trustee must vote in accordance, where applicable, with the
directions of the Class A-1 Noteholders (whether or not solicited and
whether or not all Class A-1 Noteholders have provided such directions)
and otherwise in its absolute discretion. In acting in accordance with
the directions of Class A-1 Noteholders the Class A-1 Note Trustee must
exercise its votes for or against any proposal to be put to a meeting in
the same proportion as that of the aggregate Invested Amounts of the
Class A-1 Notes held by Class A-1 Noteholders who have directed the Class
A-1 Note Trustee to vote for or against such a proposal.
9.9 Transaction Documents
The Class A-1 Note Trustee must make available at the Class A-1 Note
Trustee's registered office for inspection by Class A-1 Noteholders a
copy of each Transaction Document in accordance with Condition 3 of the
Class A-1 Note Conditions (provided that the Class A-1 Note Trustee will
not be in default of its obligations pursuant to this clause |9.9 in
respect of any Transaction Document, other than a Transaction Document to
which the Class A-1 Note Trustee is a party, a copy of which has not been
provided to the Class A-1 Note Trustee).
________________________________________________________________________________
10. Application of moneys
10.1 Moneys received
The Class A-1 Note Trustee must hold all moneys received by it under this
Deed or any other Transaction Document upon trust to apply them:
(a) (Fees and Expenses): first, towards all amounts owing to the Class A-
1 Note Trustee under this Deed (other than under clause |6.1); and
(b) (Class A-1 Noteholders): secondly, pari passu to the Class A-1
Noteholders towards repayment of principal and payment of interest
and all other amounts owing to them by the Issuer in respect of the
Class A-1 Notes.
10.2 Investment of moneys held
An amount which under this Deed ought to or may be invested by the Class
A-1 Note Trustee may be invested in the name or control of the Class A-1
Note Trustee in:
(a) (Authorised Short-Term Investments): Authorised Short-Term
Investments; or
(b) (US$ Investments): any investment denominated in US dollars which has
assigned to it the highest short-term credit rating from each Rating
Agency or which is otherwise approved by that Rating Agency,
and the Class A-1 Note Trustee may at any time vary any such investments
and is not responsible for any loss resulting from such investments
whether due to depreciation in value, fluctuations in exchange rates or
otherwise.
________________________________________________________________________________
11. Continuing security and releases
11.1 Issuer's liability not affected
This Deed and the liability of the Issuer under this Deed will not be
affected or discharged by any of the following:
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(a) (Indulgence): the granting to the Issuer or to any other person of
any time or other indulgence or consideration;
(b) (Delay in recovery): subject to Condition 8.5 of the Class A-1 Note
Conditions, the Class A-1 Note Trustee failing or neglecting to
recover any amounts owing in respect of the Class A-1 Notes;
(c) (Laches): any other laches, acquiescence, delay, act, omission or
mistake on the part of the Class A-1 Note Trustee or any other
person; or
(d) (Release): the release, discharge, abandonment or transfer whether
wholly or partially and with or without consideration of any other
security judgment or negotiable instrument held from time to time or
recovered by the Class A-1 Note Trustee from or against the Issuer or
any other person.
11.2 Waiver by Issuer
The Issuer waives in favour of the Class A-1 Note Trustee:
(a) (All rights necessary to give effect to Deed): all rights whatsoever
against the Class A-1 Note Trustee and any other person estate or
assets to the extent necessary to give effect to anything in this
Deed;
(b) (All rights inconsistent with Deed): all rights inconsistent with the
provisions of this Deed.
_______________________________________________________________________________
12. Renumeration and expenses of Class A-1 Note Trustee
12.1 Payment of fee
The Issuer must pay to the Class A-1 Note Trustee during the period that
any of the Class A-1 Notes remain outstanding the fee separately agreed by
the Class A-1 Note Trustee and the Issuer (at such times and upon such
terms as to interest for overdue payments or otherwise as are agreed
between the Issuer and the Class A-1 Note Trustee). If the Class A-1 Note
Trustee retires or is removed under this Deed, the Class A-1 Note Trustee
must refund to the Issuer that proportion of the fee (if any) which
relates to the period during which the Class A-1 Note Trustee will not be
the Class A-1 Note Trustee.
12.2 Payment of expenses
The Issuer must pay or reimburse to the Class A-1 Note Trustee all
reasonable costs, expenses, charges, stamp duties and other Taxes and
liabilities properly incurred by the Class A-1 Note Trustee, or its
properly appointed agents or delegates, in the performance of the
obligations of the Class A-1 Note Trustee under this Deed or any other
Transaction Document including, without limitation, all costs and expenses
(including legal costs and expenses) incurred by the Class A-1 Note
Trustee in the enforcement of any obligations under this Deed or any other
Transaction Documents. Without limiting any right of indemnity available
by law to the Class A-1 Note Trustee, the Class A-1 Note Trustee is
entitled to be indemnified from Class A-1 Trust Fund from and against all
such the costs, expenses, charges, stamp duties and other Taxes and
liabilities. Nothing in this clause |12.2 entitles or permits the Class
A-1 Note Trustee to be reimbursed or indemnified for general overhead
costs and expenses of the Class A-1 Note Trustee (including, without
limitation, rents and any amounts payable by the Class A-1 Note Trustee to
its employees in connection with their employment) incurred directly or
indirectly in connection with the business activities of the Class A-1
Note Trustee or in the exercise of its rights, powers and discretions or
the performance of its duties and obligations under this Deed or any
Transaction Document.
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12.3 Additional duties
In the event of the occurrence of an Event of Default or the Class A Note
Trustee considering it expedient or necessary or being requested pursuant
to any Transaction Document to undertake duties which the Class A-1 Note
Trustee and the Manager agree to be of an exceptional nature or otherwise
outside the scope of the normal duties of the Class A-1 Note Trustee under
this Deed or the other Transaction Documents the Issuer must pay to the
Class A-1 Note Trustee such additional remuneration as is agreed between
the Manager and the Class A-1 Note Trustee.
12.4 Dispute as to additional duties
In the event of the Manager and the Class A-1 Note Trustee failing to
agree:
(a) upon the amount of any additional remuneration referred to in clause
12.3; or
(b) upon whether duties of the Class A-1 Note Trustee are of an
exceptional nature or otherwise outside the scope of the normal
duties of the Class A-1 Note Trustee for the purposes of clause
12.3,
such matters shall be determined by a merchant or investment bank (acting
as an expert and not as an arbitrator) selected by the Class A-1 Note
Trustee and approved by the Manager or, failing such approval, nominated
(on the application of the Class A-1 Note Trustee) by the President for
the time being of The Law Society of New South Wales (the expenses
involved in such nomination and the fees of such merchant or investment
bank being payable by the Issuer as an Expense) and the determination of
any such merchant or investment bank shall be final and binding upon the
Class A-1 Note Trustee, the Manager and the Issuer.
12.5 Currency and VAT
The above fees and expenses will be paid in US Dollars. The Issuer will in
addition pay any value added tax which may be applicable.
12.6 No other fees or expenses
Except as provided in clauses 12.1, 12.2, 12.3, 12.4 and 12.5 or as
expressly provided elsewhere in this Deed or any other Transaction
Document, neither the Issuer nor the Manager has any liability in respect
of any fees, commissions or expenses of the Class A-1 Note Trustee in
connection with this Deed or any Transaction Document.
12.7 Issuer personally liable for fees
Notwithstanding any other provision of this Deed, the Issuer must pay to
the Class A-1 Note Trustee the fees referred to in clause 12.1, and any
value added tax on such fees, from its own personal funds and will not be
entitled to indemnified from the Assets of the Series Trust with respect
to such fees or value added taxes provided that if the Bank of New York,
New York Branch retires or is removed as Class A-1 Note Trustee the Issuer
will only be liable to pay the fees referred to in clause 12.1, and any
value added tax on such fees, from its own personal funds, to the extent
that such fees and value added tax do not exceed the amount that would
have been payable to The Bank of New York, New York Branch if it had
remained as Class A-1 Note Trustee. The balance of such fees and value
added tax, if any, will be an Expense for which the Issuer is entitled to
be indemnified from the Assets of the Series Trust in accordance with the
Series Supplement.
12.8 Timing of payments
Except as referred to in clause 12.7, all payments by the Issuer to the
Class A-1 Note Trustee under this clause 12 are payable on the first
Distribution Date following demand by the Class
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A-1 Note Trustee from funds available for this purpose in accordance with
the Series Supplement.
12.9 Non-discharge
Unless otherwise specifically stated in any discharge of the Class A-1
Trust the provisions of this clause 12 will continue in full force and
effect despite such discharge.
________________________________________________________________________________
13. Additional Class A-1 Note Trustees
13.1 Appointment and removal
The Class A-1 Note Trustee may, upon giving prior notice to the Issuer and
the Manager (but without the consent of the Issuer, the Manager or the
Class A-1 Noteholders), appoint any person (an "Additional Note Trustee")
(other than the Issuer or a Related Body Corporate of the Issuer)
established or resident in any jurisdiction (whether an Eligible Trust
Corporation or not) to act as a co-trustee jointly with the Class A-1 Note
Trustee:
(a) (Interests of Class A-1 Noteholders): if the Class A-1 Note Trustee
considers such appointment to be in the interests of the Class A
Noteholders;
(b) (Legal Requirements): 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
(c) (Obtaining Judgment): 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 this Deed or any other Transaction
Document.
The Issuer, for valuable consideration, irrevocably appoints the Class A-1
Note Trustee to be its attorney in its name and on its behalf to execute
an instrument of appointment of any such Additional Note Trustee. Such
Additional Note Trustee will (subject always to the provisions of this)
have such trusts, powers, authorities and discretions (not exceeding those
conferred on the Class A-1 Note Trustee by this Deed or any other
Transaction Document) and such duties and obligations as are conferred or
imposed by the instrument of appointment. Such reasonable remuneration as
the Class A-1 Note Trustee may pay to any Additional Note Trustee,
together with any costs and expenses properly incurred by any Additional
Note Trustee in performing its functions as such, are expenses of the
Class A-1 Note Trustee recoverable by it pursuant to clause 12.2. The
Class A-1 Note Trustee, upon giving prior notice to the Issuer and the
Manager, has the power to remove any Additional Trustee. The Issuer, for
valuable consideration, irrevocably appoints the Class A-1 Note Trustee to
be its attorney in its name and on its behalf to execute an instrument of
removal of any such Additional Note Trustee.
13.2 Joint exercise of powers
All rights, powers, duties and obligations conferred or imposed upon an
Additional Note Trustee are conferred or imposed upon and exercised or
performed by the Class A-1 Note Trustee and the Additional Note Trustee
jointly (it being understood that an Additional Note Trustee is not
authorised to act separately without the Class A-1 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 Class A-1 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 Additional Note Trustee (but
subject to the direction of the Class A-1 Note Trustee).
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13.3 Notice
The Class A-1 Note Trustee must promptly notify the Principal Paying
Agent, the Class A-1 Noteholders and the Rating Agencies of each
appointment or removal of an Additional Note Trustee pursuant to this
clause 13.
_______________________________________________________________________________
14. Retirement or removal of Class A-1 Note Trustee
14.1 Retirement of Class A-1 Note Trustee
The Class A-1 Note Trustee covenants that it will retire as Class A-1 Note
Trustee if:
(a) (Insolvency): an Insolvency Event occurs in relation to the Class A-1
Note Trustee in its personal capacity or in respect of its personal
assets (and not in its capacity as trustee of any trust or in respect
of any assets it holds as trustee);
(b) (Ceases to carry on business): it ceases to carry on business;
(c) (Ceases to be an Eligible Trust Corporation): it ceases to be an
Eligible Trust Corporation;
(d) (Class A-1 Noteholders require retirement): it is so directed by a
Special Majority of Class A-1 Noteholders;
(e) (Breach of duty): when required to do so by the Manager or the Issuer
by notice in writing, it fails or neglects within 20 Business Days
after receipt of such notice to carry out or satisfy any material
duty imposed on it by this Deed or any Transaction Document; or
(f) (Change in ownership): there is a change in ownership of 50% or more
of the issued equity share capital of the Class A-1 Note Trustee from
the position as at the date of this Deed or effective control of the
Class A-1 Note Trustee alters from the position as at the date of
this Deed unless in either case approved by the Manager (whose
approval must not be unreasonably withheld).
14.2 Removal by Manager
If the Class A-1 Note Trustee refuses to retire the Manager is entitled to
remove the Class A-1 Note Trustee from office immediately by notice in
writing if an event referred to in clause 14.1 has occurred. On the
retirement or removal of the Class A-1 Note Trustee under the provisions
of clause 14.1 or this clause 14.2:
(a) (Notify Rating Agencies): the Manager must promptly notify the Rating
Agencies of such retirement or removal; and
(b) (Appoint Substitute Class A-1 Note Trustee): subject to any approval
required by law, the Manager is entitled to and must use reasonable
endeavours to appoint in writing some other Eligible Trust
Corporation that is approved by the Rating Agencies to be the
Substitute Class A-1 Note Trustee.
14.3 Class A-1 Note Trustee may retire
The Class A-1 Note Trustee may retire at any time as trustee under this
Deed upon giving 3 months (or such lesser time as the Manager, the Issuer
and the Class A-1 Note Trustee agree) notice in writing to the Issuer, the
Manager and the Rating Agencies, without giving any reason and without
being responsible for any liabilities incurred by reason of such
retirement provided that such retirement is in accordance with this Deed,
provided that no such period of notice of retirement may expire within the
period of 30 days preceding each Distribution Date.
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Upon such retirement the Class A-1 Note Trustee, subject to any approval
required by law, may appoint in writing any other Eligible Trust
Corporation that is approved by the Rating Agencies and the Manager, which
approval must not be unreasonably withheld by the Manager, as Class A-1
Note Trustee in its stead. If the Class A-1 Note Trustee does not propose
a replacement by the date which is 1 month prior to the date of its
proposed retirement, the Manager is entitled to appoint a Substitute Class
A-1 Note Trustee, which must be an Eligible Trust Corporation that is
approved by the Rating Agencies, as of the date of the proposed
retirement.
14.4 Appointment of Substitute Class A-1 Note Trustee by Class A-1 Noteholders
Notwithstanding clauses 14.1, 14.2 and 14.3, no retirement or removal of
the Class A-1 Note Trustee will be effective until a Substitute Class A-1
Note Trustee has been appointed as in its place. If a Substitute Class A-1
Note Trustee has not been appointed under clauses 14.1, 14.2 or 14.3 at a
time when the position of Class A-1 Note Trustee would, but for this
clause 14.4, become vacant in accordance with those clauses, the Issuer
must promptly advise the Class A-1 Noteholders a Special Majority of whom
may appoint an Eligible Trust Corporation nominated by any of them to act
as Class A-1 Note Trustee.
14.5 Release of Class A-1 Note Trustee
Upon retirement or removal of the Class A-1 Note Trustee as trustee of the
Class A-1 Trust, the Class A-1 Note Trustee is released from all
obligations under this Deed arising after the date of the retirement or
removal except for its obligation to vest the Class A-1 Trust Fund in the
Substitute Class A-1 Note Trustee and to deliver all books and records
relating to the Class A-1 Trust to the Substitute Class A-1 Note Trustee.
The Manager and the Issuer may settle with the Class A-1 Note Trustee the
amount of any sums payable by the Class A-1 Note Trustee to the Manager or
the Issuer or by the Manager or the Issuer to the Class A-1 Note Trustee
and may give to or accept from the Class A-1 Note Trustee a discharge in
respect of those sums which will be conclusive and binding as between the
Manager, the Issuer and the Class A-1 Note Trustee but not as between the
Class A-1 Note Trustee and the Class A-1 Noteholders.
14.6 Vesting of Class A-1 Trust Fund in Substitute Class A-1 Note Trustee
The Class A-1 Note Trustee, on its retirement or removal, must vest the
Class A-1 Trust Fund or cause it to be vested in the Substitute Class A-1
Note Trustee and must deliver and assign to such Substitute Class A-1 Note
Trustee as appropriate all books, documents, records and other property
whatsoever relating to the Class A-1 Trust Fund.
14.7 Substitute Class A-1 Note Trustee to Execute Deed
Each Substitute Class A-1 Note Trustee must upon its appointment execute a
deed in such form as the Manager may require whereby such Substitute Class
A-1 Note Trustee must undertake to the Class A-1 Noteholders to be bound
by all the covenants on the part of the Class A-1 Note Trustee under this
Deed from the date of such appointment.
14.8 Rating Agencies Advised
The Manager must promptly:
(a) (Retirement): approach and liaise with each Rating Agency in respect
of any consents required from it to the replacement of the Class A-1
Note Trustee pursuant to clauses 14.2 or 14.3;
(b) (Change of ownership): notify the Rating Agencies of it becoming
aware of a change in ownership of 50% or more of the issued equity
share capital of the Class
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A-1 Note Trustee from the position as at the date of this Deed or
effective control of the Class A-1 Note Trustee altering from the
date of this Deed; and
(c) (Approval for change in ownership): notify the Rating Agencies of
any approvals given by the Manager pursuant to clause 14.1(f).
14.9 Retention of Lien
Notwithstanding any release of the outgoing Class A-1 Note Trustee under
this clause 14, the outgoing Class A-1 Note Trustee will remain entitled
to the benefit of the indemnities granted by this Deed to the outgoing
Class A-1 Note Trustee in respect of any liability, cost or other
obligation incurred by it while acting as Class A-1 Note Trustee, as if
it were still the Class A-1 Note Trustee under this Deed.
14.10 Issuer and Manager Cannot be Appointed
Notwithstanding the preceding provisions of this clause 14, none of the
Manager, the Issuer, any Support Facility Provider nor any of their
Related Bodies Corporate may be appointed as Class A-1 Note Trustee.
14.11 No Limitation of TIA
Nothing in this clause 14 is to be construed as limiting any right of a
Class A-1 Noteholder to take any action to remove the Class A-1 Note
Trustee in accordance with section 310(b) of the TIA.
________________________________________________________________________________
15. Amendment
15.1 Amendment by Class A-1 Note Trustee
Subject to this clause 15 and to any approval required by law, the Class
A-1 Note Trustee, the Manager and the Issuer may together agree, without
the consent or sanction of any Class A-1 Noteholder, by way of
supplemental deed to alter, add to or revoke any provision of this Deed
or the Class A-1 Notes (including the Class A-1 Note Conditions) so long
as such alteration, addition or revocation is not a Payment Modification
and such alteration, addition or revocation in the opinion of the Class
A-1 Note Trustee:
(a) (Necessary or expedient): is necessary or expedient to comply with
the provisions of any Statute or regulation or with the requirements
of any Governmental Agency;
(b) (Manifest error): is made to correct a manifest error or ambiguity
or is of a formal, technical or administrative nature only;
(c) (Amendment to law): is appropriate or expedient as a consequence of
an amendment to any Statute or regulation or altered requirements of
any Governmental Agency or any decision of any court (including,
without limitation, an alteration, addition or modification which is
in the opinion of the Class A-1 Note Trustee appropriate or
expedient as a consequence of the enactment of a Statute or
regulation or an amendment to any Statute or regulation or ruling by
the Commissioner or Deputy Commissioner of Taxation or any
governmental announcement or statement or any decision of any court,
in any case which has or may have the effect of altering the manner
or basis of taxation of trusts generally or of trusts similar to the
Series Trust or the Class A-1 Trust); or
(d) (Otherwise desirable): in the opinion of the Class A-1 Note Trustee
and the Issuer is otherwise desirable for any reason and:
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(i) is not in the opinion of the Class A-1 Note Trustee likely, upon
coming into effect, to be materially prejudicial to the interests
of Class A-1 Noteholders; or
(ii) if it is in the opinion of the Class A-1 Note Trustee likely, upon
coming into effect, to be materially prejudicial to Class A-1
Noteholders, the consent of a Special Majority of Class A-1
Noteholders to the alteration, addition or resolution has been
obtained. For the purpose of determining whether a Special
Majority of Class A-1 Noteholders has consented to an alteration,
addition or revocation, Class A-1 Notes which are beneficially
owned by the Issuer or the Manager or by any person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or the Manager, shall be
disregarded,
provided that the Class A-1 Note Trustee, the Manager and the Issuer may
not alter, add to or revoke any provision of this Deed or the Class A-1
Notes unless the Manager has notified the Rating Agencies 5 Business Days
in advance.
15.2 Amendments Requiring Consent of all Class A-1 Noteholders
The Class A-1 Note Trustee, the Manager and the Issuer may together agree
by way of supplemental deed to make or effect a Payment Modification to
this Deed or the Class A-1 Notes (including the Class A-1 Note Conditions)
if, and only if, the consent has first been obtained of each Class A-1
Noteholder to such Payment Modification.
15.3 Compliance with TIA
Any supplemental deed altering, adding to or revoking any provision of
this Deed or the Class A-1 Notes (including the Class A-1 Note Conditions)
referred to in this clause |15 must conform, to the extent applicable,
with the requirements of the TIA.
15.4 No Rating Agency downgrade
The Class A-1 Note Trustee will be entitled to assume that any proposed
alteration, addition or revocation, other than a Payment Modification,
will not be materially prejudicial to the interests of Class A-1
Noteholders if each of the Rating Agencies confirms in writing that if the
alteration, addition or revocation is effected this will not lead to a
reduction, qualification or withdrawal of the then rating given to the
Class A-1 Notes by the Rating Agency.
15.5 Distribution of amendments
The Issuer must distribute to all Class A-1 Noteholders a copy of any
amendment made pursuant to this clause 15 as soon as reasonably
practicable after the amendment has been made.
15.6 Amendments binding on Class A-1 Noteholders
Any alteration, addition or revocation of a provision of this Deed or the
Class A-1 Notes made pursuant to this clause 15 is binding on all Class
A-1 Noteholders.
________________________________________________________________________________
16. Reports
16.1 Reports by Class A-1 Note Trustee
If so required by section 313(a) of the TIA, the Class A-1 Note Trustee
shall provide to each Class A-1 Noteholder, and such other persons as the
Class A-1 Note Trustee is required by section 313(c) of the TIA to provide
reports to, at intervals of not more than 12 months (commencing as from
the Closing Date) a brief report of the events referred to in section
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313(a) of the TIA that have occurred within the preceding 12 months and
shall provide such additional reports to Class A-1 Noteholders, and such
other persons as the Class A-1 Note Trustee is required by section 313(c)
of the TIA to provide reports to, as are required by section 313(b) of the
TIA at the times specified in that section. A copy of each such report at
the time of its provision to Class A-1 Noteholders must be copied to the
Issuer and the Manager and must be filed by the Class A-1 Note Trustee
with the Commission and each stock exchange, if any, on which the Class A-
1 Notes are listed.
16.2 Reports by Issuer
The Issuer and the Manager each severally covenants that it will:
(a) (Copy Securities Exchange Act Reports to Class A-1 Note Trustee):
file:
(i) with the Commission at such times as are required under the
Exchange Act; and
(ii) with the Class A-1 Note Trustee, within 15 days after it 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), if any, which it may be required to file with the
Commission pursuant to section 13 or 15(d) of the Exchange Act or,
if it is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Class A-1
Note Trustee and the Commission, in accordance with the rules and
regulations prescribed by the Commission, such of the supplementary
and periodic information, documents and reports which may be
required pursuant to section 13 of the Exchange Act, in respect of a
security listed and registered on a national securities exchange as
may be prescribed in such rules and regulations;
(b) (Other Reports): file with the Class A-1 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 it with the
conditions and covenants of this Deed as may be required from time
to time by such rules and regulations ; and
(c) (Summaries to Class A-1 Noteholders): transmit to Class A-1
Noteholders, and such other persons as are required by section
314(a)(3) of the TIA, such summaries of any information, documents
and reports required to be filed by the Issuer or the Manager
pursuant to clauses 16.2(a) and (b) as may be required by rules and
regulations prescribed from time to time by the Commission.
16.3 Restricted securities
The Issuer and the Manager each severally covenants that it will forthwith
notify the Class A-1 Note Trustee, if, at any time, after the Closing
Date, any Class A-1 Notes become "restricted securities" (as defined in
Rule 144(a)(3) of Securities Act of 1933 of the United States of America)
and during any period during which the Issuer or the Manager is neither
subject to Sections 13 or 15(d) of the Exchange Act nor exempt from
reporting pursuant to Rule 12g3-2(d) under the Exchange Act, make
available to each holder of those Class A-1 Notes in connection with any
resale of those Class A-1 Notes and to any prospective purchaser of the
Class A-1 Notes from that holder, in each case upon request, the
information specified in and meeting the requirements of Rule 144(A)(d)(4)
under the Securities Act.
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________________________________________________________________________________
17. Currency indemnity
17.1 Improper currency receipts
If any payment is made by the Issuer under this Deed or the Class A-1
Notes or if the Class A-1 Note Trustee or any Class A-1 Noteholder
receives or recovers any money under or pursuant to this Deed or the Class
A-1 Notes in a currency ("Receipt Currency") other than the currency in
which the money was payable pursuant to the terms of this Deed or the
Class A-1 Notes ("Agreed Currency"), the Issuer must, as a separate and
additional liability, pay to the recipient such additional amount so that
after conversion from the Receipt Currency into the Agreed Currency of
such money so paid, received or recovered and after the payment of all
commission and expenses in relation to such conversion the recipient will
receive net in its hands an amount in the Agreed Currency equal to the
amount of the money payable under this Deed or the Class A-1 Notes in the
Agreed Currency.
17.2 Currency indemnity
If a judgment or an order is rendered by any court or tribunal for the
payment of any amount payable by the Issuer under this Deed or the Class
A-1 Notes or for the payment of damages in respect of any breach by the
Issuer of this Deed or the Class A-1 Notes or any Insolvency Event in
relation to the Issuer occurs resulting in money being payable or
receivable in respect of any proof or other claim, and such judgment,
order, proof or claim is expressed in a currency ("Judgment Currency")
other than the currency in which the money was payable pursuant to the
terms of this Deed or the Class A-1 Notes ("Agreed Currency"), the Issuer
must indemnify and hold harmless and keep indemnified the person with the
benefit of the judgment, order, proof or claim (as the case may be) (the
"Receiving Party") against any deficiency in the Agreed Currency in the
amount received by the Receiving Party arising or resulting from any
variation as between:
(a) (Judgment Rate): the rate of exchange at which the Agreed Currency is
converted to the Judgment Currency for the purposes of such judgment,
order, proof or claim; and
(b) (Actual Rate): the rate of exchange which the Receiving Party is able
to purchase the Agreed Currency with the amount of the Judgment
Currency actually received by the Receiving Party,
and such indemnity will continue in full force and effect notwithstanding
any such judgment, order, proof or claim.
17.3 Failure to pay proper currency
Any payment purportedly pursuant to the terms of this Deed or a Class A-1
Note in a currency other than the currency in which it is required to be
paid will not discharge or satisfy the relevant obligation of the payer to
make the payment except to the extent that, and insofar as, the currency
in which the payment is required to be made is acquired by sale of the
currency in which the payment was actually made.
________________________________________________________________________________
18. Expenses and stamp duties
18.1 Expenses
Subject to clause 22, the Issuer will on demand reimburse the Class A-1
Note Trustee for and keep the Class A-1 Note Trustee indemnified against
all expenses including legal costs and disbursements (on a full indemnity
basis) incurred by the Class A-1 Note Trustee in connection with:
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(a) (Preparation): the preparation and execution of this Deed and any
subsequent consent, agreement, approval or waiver under this Deed
or amendment to this Deed;
(b) (Enforcement): the exercise, enforcement, preservation or attempted
exercise enforcement or preservation of any rights under this Deed
including without limitation any expenses incurred in the
evaluation of any matter of material concern to the Class A-1 Note
Trustee; and
(c) (Governmental Agency): any enquiry by a Governmental Agency
concerning the Issuer or the Assets of the Series Trust or a
transaction or activity the subject of the Transaction Documents.
18.2 Stamp duties and other taxes
The Issuer must pay any stamp and other duties and Taxes, including fines
and penalties, payable in Australia, the United Kingdom, Belgium,
Luxembourg or the United States on or in connection with:
(a) (Execution of Deed): the execution, delivery and performance of
this Deed or any payment, receipt or other transaction contemplated
by this Deed;
(b) (Issue of Class A-1 Notes): the constitution and original issue and
delivery of the Class A-1 Notes; and
(c) (Proceedings): any action taken by the Class A-1 Note Trustee or
(where in accordance with this Deed or the Security Trust Deed the
Class A-1 Noteholders are entitled to do so) the Class A-1
Noteholders to enforce the provisions of the Class A-1 Notes, this
Deed, the Master Trust Deed, the Series Supplement or the Security
Trust Deed.
The Issuer must indemnify and keep indemnified the Class A-1 Note Trustee
against any loss or liability incurred or suffered by it as a result of
the delay or failure by the Issuer to pay any such stamp and other duties
and Taxes.
________________________________________________________________________________
19. Trust Indenture Act
19.1 Certificates and opinions
(a) (Class A-1 Note Conditions Precedent): Upon any application or
request by the Issuer to the Class A-1 Note Trustee to take any
action under any provision of this Deed, the Issuer must furnish to
the Class A-1 Note Trustee:
(i) a certificate from two Authorised Officers of the Issuer
stating that all conditions precedent, if any, provided for
in this Deed relating to the proposed action have been
complied with;
(ii) Counsel's Opinion stating that all such conditions precedent,
if any, have been complied with; and
(iii) if required by the TIA, a certificate from an accountant
meeting the applicable requirements of section 314(c)(3) of
the TIA,
provided that in the case of any such application or request as to
which the furnishing of such documents is specifically required by
any other provision of this Deed no additional certificate or
opinion need be furnished.
(b) (Fair Value): The Issuer must furnish to the Class A-1 Note Trustee
a certificate or opinion of an engineer, appraiser or other expert
as to the fair value:
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(i) of any property or securities to be released from the
Security Interest created by the Security Trust Deed, where
this is required by section 314(d)(1) of the TIA;
(ii) to the Issuer of any securities the deposit of which with
the Issuer 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, where this is required
by section 314(d)(2) of the TIA; and
(iii) to the Issuer of any property the subjection of which to
the Security Interest created by the Security Trust Deed 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, where this is required by section
314(d)(3) of the TIA,
and every such certificate or opinion must comply with the relevant
provisions of section 314(d) of the TIA (and, except as provided
otherwise in section 314 of the TIA, may be given by an Authorised
Officer of the Issuer).
(c) (Form of Certificates and Opinions): Every certificate or opinion
with respect to compliance with a Condition or covenant provided for
in this Deed (other than the certificate referred to in clause
6.3(c)(i)) shall include:
(i) a statement that each signatory of such certificate or
opinion has read such covenant or Condition and the
definitions used therein;
(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.
19.2 Undertaking for costs
(a) (Undertaking): Subject to clause 19.2(b), all parties to this deed
agree, and each Class A-1 Noteholder by such Class A-1 Noteholder's
acceptance of the Class A-1 Notes are 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
Class A-1 Note Trustee for any action taken, suffered or omitted by
it as the Class A-1 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) (Exceptions): The provisions of clause 19.2(a) shall not apply to:
(i) any suit instituted by the Class A-1 Note Trustee;
(ii) any suit instituted by any Class A-1 Noteholder, or group
of Class A-1 Noteholders, in each case holding in the
aggregate Class A-1 Notes with an Invested Amount of more
than 10% of the then aggregate Invested Amount of all Class
A-1 Notes; or
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(iii) any suit instituted by any Class A-1 Noteholder for the
enforcement of the payment of principal or interest on any
Class A-1 Note on or after the respective due dates
expressed in such Class A-1 Note and in this Deed.
19.3 Exclusion of section 316(a)(1)
Section 316(a)(1) of the TIA is expressly excluded by this Deed.
19.4 Unconditional rights of Class A Noteholders to receive principal and
interest
Notwithstanding any other provisions in this Deed, any Class A-1
Noteholder shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on each Class A-
1 Note held by it on or after the respective due dates thereof expressed
in such Class A-1 Note or in this Deed or to institute suit for the
enforcement of any such payment, and such right shall not be impaired
without the consent of such Class A-1 Noteholder, except to the extent
that this Deed or the Security Trust Deed contain provisions limiting or
denying the right of any Class A-1 Noteholder to institute any such suit,
if and to the extent that the institution or prosecution thereof or the
entry of judgment therein would, under applicable law, result in the
surrender, impairment, waiver, or loss of the Security Interest created by
the Security Trust Deed upon any property subject to such Security
Interest.
19.5 Conflict with Trust Indenture Act
The provisions of section 310 to 317 (inclusive) of the TIA are
incorporated into, are a part of and govern this deed, whether or not
contained in this Deed, unless expressly excluded by this Deed in
accordance with the TIA. If any provision of this Deed limits, qualifies
or conflicts with any provision that is deemed to be included in this Deed
by virtue of any of the provisions of the TIA, such provision deemed to be
included in this Deed will prevail.
________________________________________________________________________________
20. Governing law and jurisdiction
20.1 Governing law
This Deed is governed by and construed in accordance with the laws of the
State of New South Wales.
20.2 Jurisdiction
(a) (Submission to jurisdiction): The Issuer, the Class A-1 Note Trustee,
the Manager and each of the Class A-1 Noteholders each irrevocably
submits to and accepts generally and unconditionally the non-exclusive
jurisdiction of the Courts and appellate Courts of the State of New
South Wales with respect to any legal action or proceedings which may
be brought at any time relating in any way to this Deed.
(b) (Waiver of inconvenient forum): The Issuer, the Class A-1 Note
Trustee, the Manager and each of the Class A-1 Noteholders each
irrevocably waives any objection it may now or in the future have to
the venue of any such action or proceedings brought in such courts and
any claim it may now or in the future have that any such action or
proceedings have been brought in an inconvenient forum.
________________________________________________________________________________
21. Notices
21.1 Method of delivery
Any notice, request, certificate, approval, demand, consent or other
communication to be given under this Deed other than to or by a Class A-1
Noteholder must:
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(a) (Authorised Officer): be signed by an Authorised Officer of the
party giving the same;
(b) (In writing): be in writing; and
(c) (Delivery): be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the
addressee; or
(iii) sent by facsimile to the facsimile number of the addressee,
notified by that addressee from time to time to the other parties
to this Deed as its address for service pursuant to this Deed.
21.2 Deemed receipt
A notice, request, certificate, demand, consent or other communication
under this Deed other than to or by a Class A-1 Noteholder is deemed to
have been received:
(a) (Delivery): where delivered in person, upon receipt;
(b) (Post): where sent by post, on the 3rd (or 7th if posted
internationally) day after posting; and
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that
the facsimile was sent in its entirety to the facsimile number of
the recipient.
However, if the time of deemed receipt of any notice is not before 5.30
pm on a Business Day at the address of the recipient it is deemed to
have been received at the commencement of business on the next Business
Day.
21.3 Notices to Class A-1 Noteholders
Any notice, request, certificate, approval, demand, consent or other
communication to be given under this Deed to a Class A-1 Noteholder:
(a) (Delivery): will be effectively given if it is given in
accordance with Condition [_]11; and
(b) (Time): is deemed to have been given at the time specified in
Condition [_]11.
21.4 Notices from Class A-1 Noteholders
Any notice, request, certificate, approval, document, consent, direction
or other communication to be given under this Deed by a Class A-1
Noteholder to any person must:
(a) (Signed): be signed by the Class A-1 Noteholder or an attorney of
the Class A-1 Noteholder;
(b) (In writing): be in writing;
(c) (Delivery): be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the
addressee; or
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(iii) sent by facsimile to the facsimile number of the
addressee,
as set out in the Class A-1 Note Conditions or otherwise as
notified by that addressee to the Class A-1 Noteholders from time
to time;
(d) (Evidence): be accompanied by such evidence as to its proper
execution by the Class A-1 Noteholder as the addressee may
reasonably require,
and will only be effective upon actual receipt by the addressee. For the
purposes of seeking any consent, direction or authorisation from
Class A-1 Noteholders pursuant to this Deed, the TIA (including section
316 of the TIA) or any Transaction Document the Class A-1 Note Trustee
may by notice to the Class A-1 Noteholders specify a date (not earlier
than the date of the notice) upon which the Class A-1 Noteholders for
the purposes of that consent, direction or authorisation will be
determined and, if it does so, the persons who are the Class A-1
Noteholders and the Invested Amount of the Class A-1 Notes held by them
will, for the purposes of that consent, direction or authorisation, be
determined based upon the details recorded in the Class A-1 Note
Register as at 5.30 pm on that date.
21.5 Issuer and Manager
Each of the Issuer and the Manager must maintain an office or an agency
in New York where any legal proceedings in respect of this Deed or the
Class A-1 Notes may be served on it. The Issuer initially appoints C.T.
Corporation, 111 8th Avenue, New York, New York 10011, as its agent for
these purposes. The Manager initially appoints Commonwealth Bank of
Australia, New York Branch, 599 Lexington Avenue, New York, New York
10022 as its agent for these purposes.
________________________________________________________________________________
22. Issuer's limited liability
22.1 Limitation on Issuer's Liability
The Issuer enters into this Deed only in its capacity as trustee of the
Series Trust and in no other capacity. A liability incurred by the
Issuer acting in its capacity as trustee of the Series Trust arising
under or in connection with this Deed is limited to and can be enforced
against the Issuer only to the extent to which it can be satisfied out
of Assets of the Series Trust out of which the Issuer is actually
indemnified for the liability. This limitation of the Trustee's
liability applies despite any other provision of this Deed (other than
clauses [_]12.7 and 22.3) and extends to all liabilities and obligations
of the Issuer in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to this Deed.
22.2 Claims against Issuer
The parties other than the Issuer may not sue the Issuer in respect of
liabilities incurred by the Issuer acting in its capacity as trustee of
the Series Trust in any capacity other than as trustee of the Series
Trust, including seeking the appointment of a receiver (except in
relation to Assets of the Series Trust), a liquidator, an administrator,
or any similar person to the Issuer or prove in any liquidation,
administration or similar arrangements of or affecting the Issuer
(except in relation to the Assets of the Series Trust).
22.3 Breach of trust
The provisions of this clause [_]22 will not apply to any obligation or
liability of the Issuer to the extent that it is not satisfied because
under the Master Trust Deed, the Series Supplement or any other
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 Series
Trust, as a result of the Issuer's fraud, negligence or wilful default
and will not apply to any obligation or liability of the Issuer to pay
amounts from its personal funds pursuant to clause [_]12.7.
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22.4 Acts or omissions
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Issuer (including any related
failure to satisfy its obligations or any breach of representation or
warranty under this Deed) will be considered fraudulent, negligent or a
wilful default for the purpose of clause [_]22.3 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 appointed by the Issuer under any
Transaction Document (other than a person whose acts or omissions the
Issuer is liable for in accordance with any Transaction Document) to
fulfil its obligations relating to the Series Trust or by any other act or
omission of a Relevant Party or any other such person.
22.5 No authority
No attorney or agent appointed in accordance with this Deed has authority
to act on behalf of the Issuer in a way which exposes the Issuer to any
personal liability and no act or omission of any such person will be
considered fraud, negligence or wilful default of the Issuer for the
purposes of clause [_]22.3.
22.6 No obligation
The Issuer is not obliged to enter into any commitment or obligation under
this Deed or any Transaction Document (including incur any further
liability) unless the Issuer's liability is limited in a manner which is
consistent with this clause [_]22 or otherwise in a manner satisfactory to
the Issuer in its absolute discretion.
________________________________________________________________________________
23. Miscellaneous
23.1 Assignment by Issuer
The Issuer will not assign or otherwise transfer the benefit of this Deed
or any of its rights, duties or obligations under this Deed except to a
Substitute Trustee which is appointed as a successor trustee of the Series
Trust under and in accordance with the Master Trust Deed.
23.2 Assignment by Manager
The Manager will not assign or otherwise transfer the benefit of this Deed
or any of its rights, duties or obligations under this Deed except to a
Substitute Manager which is appointed as a successor manager of the Series
Trust under and in accordance with the Master Trust Deed.
23.3 Assignment by Class A-1 Note Trustee
The Class A-1 Note Trustee will not assign or otherwise transfer all or
any part of the benefit of this Deed or any of its rights, duties and
obligations under this Deed except to a Substitute Class A-1 Note Trustee
which is appointed as a successor trustee under and in accordance with
this Deed.
23.4 Certificate of Class A-1 Note Trustee
A certificate in writing signed by an Authorised Officer of the Class A-1
Note Trustee certifying any act, matter or thing relating to this Deed is
conclusive and binding on the Issuer in the absence of manifest error on
the face of the certificate.
23.5 Continuing obligation
This Deed is a continuing obligation notwithstanding any settlement of
account intervening payment express or implied revocation or any other
matter or thing whatsoever until a final discharge of this Deed has been
given to the Issuer.
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23.6 Settlement conditional
Any settlement or discharge between the Issuer and the Class A-1 Note
Trustee is conditional upon any security or payment given or made to the
Class A-1 Note Trustee by the Issuer or any other person in relation to
the Secured Moneys not being avoided repaid or reduced by virtue of any
provision or enactment relating to bankruptcy insolvency or liquidation
for the time being in force and, in the event of any such security or
payment being so avoided repaid or reduced the Class A-1 Note Trustee is
entitled to recover the value or amount of such security or payment
avoided, repaid or reduced from the Issuer subsequently as if such
settlement or discharge had not occurred.
23.7 Interest on judgment
If a liability under this Deed (other than a liability for negligence,
fraud or wilful default of the Issuer under the Transaction Documents)
becomes merged in a judgment or order then the Issuer as an independent
obligation will pay interest to the Class A-1 Note Trustee on the amount
of that liability at a rate being the higher of the rate payable pursuant
to the judgment or order and the highest rate payable on the Class A-1
Notes from the date it becomes payable until it is paid.
23.8 Severability of provisions
Any provision of this Deed which is illegal, void or unenforceable in any
jurisdiction is ineffective in that jurisdiction to the extent only of
such illegality, voidness or unenforceability without invalidating the
remaining provisions of this Deed or the enforceability of that provision
in any other jurisdiction.
23.9 Remedies cumulative
The rights and remedies conferred by this Deed upon the Class A-1 Note
Trustee are cumulative and in addition to all other rights or remedies
available to the Class A-1 Note Trustee by Statute or by general law.
23.10 Waiver
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or
privilege under this Deed by the Class A-1 Note Trustee will not in any
way preclude or operate as a waiver of any further exercise or enforcement
of such right, remedy, power or privilege or the exercise or enforcement
of any other right, remedy, power or privilege under this Deed or provided
by law.
23.11 Written waiver, consent and approval
Any waiver, consent or approval given by the Class A-1 Note Trustee under
this Deed will only be effective and will only be binding on the Class A-1
Note Trustee if it is given in writing or given verbally and subsequently
confirmed in writing and executed by the Class A-1 Note Trustee or on its
behalf by an Authorised Officer for the time being of the Class A-1 Note
Trustee.
23.12 Time of essence
Time is of the essence in respect of the Issuer's obligations under this
Deed.
23.13 Moratorium legislation
To the fullest extent permitted by law, the provisions of all Statutes
operating directly or indirectly:
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(a) (Lessen Obligations): to lessen or otherwise to vary or affect in
favour of the Issuer any obligation under this Deed; or
(b) (Delay Exercise of Powers): to delay or otherwise prevent or
prejudicially affect the exercise of any powers conferred on the
Class A-1 Note Trustee under this Deed,
are expressly waived negatived and excluded.
23.14 Binding on each signatory
This Deed binds each of the signatories to this Deed notwithstanding
that any one or more of the named parties to this Deed does not execute
this Deed, that there is any invalidity forgery or irregularity touching
any execution of this Deed or that this Deed is or becomes unenforceable
void or voidable against any such named party.
23.15 Counterparts
This Deed may be executed in a number of counterparts and all such
counterparts taken together is deemed to constitute one and the same
instrument.
Executed as a deed.
<TABLE>
<S> <C>
Executed as a deed by The Bank of New York |
acting by: |
|
under the authority of that company in the |
presence of: |
|
|
------------------------------------------
Signature of Witness
------------------------------------------
Name of Witness in full
</TABLE>
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<TABLE>
<S> <C>
Signed sealed and delivered for and on behalf |
of Securitisation Advisory Services Pty. |
Limited, ACN 064 133 946 by |
|
its Attorney under a Power of Attorney dated | -------------------------
and who declares that he or she | Signature of Attorney
has not received any notice of the revocation |
of such Power of Attorney in the presence of: |
|
|
|
----------------------------------------------
Signature of Witness
---------------------------------------------
Name of Witness in full
Signed sealed and delivered for and on behalf |
of Perpetual Trustee Company Limited, |
ACN 000 001 007, by |
its Attorney under a Power of Attorney dated |
and who declares that he or she has | -------------------------
not received any notice of the revocation of such | Signature of Attorney
Power of Attorney in the presence of: |
|
|
|
----------------------------------------------
Signature of Witness
----------------------------------------------
Name of Witness in full
</TABLE>
47
<PAGE>
Schedule 1
Form of Class A-1 Note
Registered CUSIP No: $[ ]
No. R- ISIN No:
Common Code:
Unless this Class A-1 Note is presented by an authorised representative of The
Depository Trust Company, a New York corporation, ("DTC") to the Issuer (as
defined below) or its agent for registration of transfer, exchange or payment,
and any Class A-1 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 of the
Class A-1 Note for value or otherwise by or to any person is wrongful inasmuch
as the registered owner hereof, Cede & Co., has an interest in this Class A-1
Note.
Each Class A-1 Noteholder represents, warrants and covenants (and by its
acquisition of a Class A-1 Book-Entry Note, each Class A-1 Noteholder shall be
deemed to represent) that it is either (i) not acquiring such Class A-1 Note
with the assets of an "employee benefit plan" subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"); a "plan" described
by Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
"Code"); any entity deemed to hold "plan assets" of the foregoing under 29
C.F.R. 2510.3-101; or any governmental plan subject to substantially similar
applicable law or (ii) its purchase and holding of such Class A-1 Note will not
result in a non-exempt prohibited transaction under ERISA or Section 4975 of the
Code or any substantially similar applicable law.
[The above paragraphs are to appear in the Class A-1 Book Entry Notes only.]
The principal of this Class A-1 Note is payable in installments and may be
subject to charge- offs or exchange as set forth below, in the Class A-1 Note
Trust Deed and in the Class A-1 Note Conditions. Accordingly, the outstanding
principal amount of this Class A-1 Note at any time may be less than the amount
shown on the face of this Class A-1 Note.
PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007
(a limited liability company incorporated under the law of New South Wales,
Australia)
in its capacity as trustee of the Series 2000-2G Medallion Trust (the "Series
Trust")
(the "Issuer")
Class A-1 Note
This Class A-1 Note is issued by the Issuer in an initial aggregate principal
amount of US$ [ ] (the "Class A-1 Notes") and is:
(a) constituted by a Class A-1 Note Trust Deed (the "Class A-1 Note Trust
Deed") dated [[_]] 2000 made between the Issuer, Securitisation Advisory
Services Pty Limited, ACN 064 133 946, (the "Manager") and The Bank of New
York, New York Branch (the "Class A-1 Note Trustee"); and
(b) issued subject to, and with the benefit of, amongst other things:
(i) a Master Trust Deed (the "Master Trust Deed") dated 8 October 1997
made between the Manager and Perpetual Trustee Company Limited as
amended from time to time;
(ii) a Series Supplement (the "Series Supplement") dated [[_]] 2000 made
between
48
<PAGE>
Commonwealth Bank of Australia, ACN 123 123 124, the Manager and
the Issuer;
(iii) a Security Trust Deed (the "Security Trust Deed") dated [_] 2000
made between the Issuer, the Manager, the Class A-1 Note Trustee
and P.T. Limited, ACN 004 454 666;
(iv) the Agency Agreement (the "Agency Agreement") dated [_] 2000 made
between the Issuer, the Class A-1 Note Trustee, the Manager, The
Bank of New York, New York Branch as Principal Paying Agent, Agent
Bank and Class A-1 Note Registrar and The Bank of New York, London
Branch as Paying Agent;
(v) the Class A-1 Note Trust Deed; and
(vi) the Class A-1 Note Conditions as set out in the Annexure to this
Class A-1 Note (the "Class A-1 Note Conditions").
Unless defined in this Class A-1 Note, words and phrases defined in either or
both of the Class A-1 Note Trust Deed and the Class A-1 Note Conditions have the
same meaning in this Class A-1 Note. Where there is any inconsistency in a
definition between the Class A-1 Note Trust Deed and the Class A-1 Note
Conditions, the Class A-1 Note Trust Deed prevails.
If this Class A-1 Note is a Class A-1 Book-Entry Note and the Issuer is obliged
to issue Class A-1 Definitive Notes under clause [_]3.4(a) of the Class A-1 Note
Trust Deed, this Class A-1 Note will be exchangeable in whole upon its surrender
at the offices of the Class A-1 Note Registrar as specified in the Class A-1
Note Conditions or notified to Class A-1 Noteholders from time to time (or such
other place as the Class A-1 Note Trustee may agree) for Class A-1 Definitive
Notes and the Issuer shall execute and procure that the Class A-1 Note Trustee
authenticates and delivers in full exchange for this Class A-1 Note, Class A-1
Definitive Notes in aggregate principal amount equal to the then Invested Amount
of this Class A-1 Note subject to and in accordance with clause [_]3.4(b) of the
Class A-1 Note Trust Deed. The Issuer is not obliged to issue Class A-1
Definitive Notes until 30 days after the occurrence of an event set out in
clause [_]3.4(a) of the Class A-1 Note Trust Deed.
The Issuer, in its capacity as trustee of the Series Trust, subject to and in
accordance with this Class A-1 Note, the Class A-1 Note Conditions, the Agency
Agreement the Series Supplement and the Class A-1 Note Trust Deed, promises to
pay to [ ] as the registered holder of this Class A-1 Note, or to registered
assigns of this Class A-1 Note, the principal sum of US$ [ ] (or such part of
that amount as may become repayable under the Class A-1 Note Conditions, the
Series Supplement and the Class A-1 Note Trust Deed) on such date(s) as that
principal sum (or any part of it) becomes repayable in accordance with the Class
A-1 Note Conditions, the Series Supplement and the Class A-1 Note Trust Deed and
to pay interest in arrear on each Distribution Date on the Invested Amount of
this Class A-1 Note at rates determined in accordance with Condition 6 of the
Class A-1 Note Conditions. The Class A-1 Definitive Notes to be issued on that
exchange will be in registered form each in the denomination of US$100,000 or
integral multiples thereof. If the Issuer fails to meet its obligations to issue
Class A-1 Definitive Notes, this shall be without prejudice to the Issuer's
obligations with respect to the Class A-1 Notes under the Class A-1 Note Trust
Deed, the Master Trust Deed, the Series Supplement, the Agency Agreement and
this Class A-1 Note.
Payments of interest on this Class A-1 Note due and payable on each Distribution
Date, together with the installment of principal, if any, shall be payable in
accordance with Condition [_]8.1 of the Class A-1 Note Conditions and the Agency
Agreement. If this Class A-1 Note is a Class A-1 Book-Entry Note such payments
will be made to the nominee of the Depository (initially, such nominee to be
Cede & Co.) and each of the persons appearing from time to time in the records
of DTC as the holder of a beneficial interest in a Class A-1 Note will be
entitled to receive any payment so made in respect of that Class A-1 Note only
in accordance with the respective rules and procedures of DTC. Such persons will
have no claim directly against the Issuer in respect of payments due on the
Class A-1 Notes which must be made by the holder of this Class A-1 Note, for so
long as this Class A-1 Note is outstanding.
49
<PAGE>
On any payment of principal and/or interest on the Class A-1 Notes details of
that payment shall be endorsed by or on behalf of the Issuer in the Class A-1
Note Register and, in the case of payments of principal, the Invested Amount and
the Stated Amount of the Class A-1 Notes shall be reduced for all purposes by
the amount so paid and endorsed in the Class A-1 Note Register. Any such record
shall be prima facie evidence that the payment in question has been made.
This Class A-1 Note shall not become valid for any purpose unless and until the
Certificate of Authentication attached has been signed by an Authorised Officer
or other duly appointed representatives of the Class A-1 Note Trustee.
This Class A-1 Note is governed by, and shall be construed in accordance with,
the laws of New South Wales, Australia.
If this Class A-1 Note is a Class A-1 Book-Entry Note, this Class A-1 Note is a
global note.
IN WITNESS the Issuer has caused this Class A-1 Note to be signed manually by a
person duly authorised on its behalf
PERPETUAL TRUSTEE COMPANY LIMITED by:
.................................
Authorised Officer/duly appointed representative
IMPORTANT NOTES:
Neither the Manager nor the Issuer is under any obligation at any time to
repurchase any Class A-1 Notes from Class A-1 Noteholders.
This Class A-1 Note is not a certificate of title and the Class A-1 Note
Register on which these Class A-1 Notes are registered is the only conclusive
evidence of the title of the abovementioned person to the Class A-1 Notes.
The Issuer issues this Class A-1 Note only in its role as trustee of the Series
Trust. Any obligation or liability of the Issuer arising under or in any way
connected with the Series Trust under the Master Trust Deed, the Series
Supplement, the Class A-1 Note Trust Deed this Class A-1 Note or any other
Transaction Document to which the Issuer is a party is limited to the extent to
which it can be satisfied out of the Assets of the Series Trust out of which the
Issuer is actually indemnified for the obligation or liability. This limitation
will not apply to any obligation or liability of the Issuer only to the extent
that it is not so satisfied because of any fraud, negligence or willful default
on the part of the Issuer. The Issuer will have no liability for any act or
omission of the Manager or of any other person (other than a person whose acts
or omissions the Issuer is liable for in accordance with any Transaction
Document).
Transfers of the Class A-1 Notes must be pursuant to the annexed form of
assignment and otherwise in accordance with clause [_]5 of the Agency Agreement.
None of the Manager or the Commonwealth Bank of Australia, ACN 123 123 124 (the
"Bank") as the Seller and Servicer, or any other member of the Commonwealth Bank
group or the Issuer in its personal capacity or as trustee of any other trust
guarantees the payment or repayment of any principal, interest or other amounts
owing in respect of the Class A-1 Notes.
The Class A-1 Notes do not represent deposits or other liabilities of the
Manager, the Seller, the Servicer, the Bank or any other Related Body Corporate
of the Bank. The holding of the Class A-1 Notes is subject to investment risk,
including possible delays in payment and loss of income and principal invested.
None of the Manager, the Seller, the Servicer, the Bank or any other Related
Body Corporate of the Bank stand in any way behind the capital value and/or
performance of the Class A-1 Notes, or the Assets held by the Series Trust.
50
<PAGE>
Certificate of Authentication
This Class A-1 Note is authenticated by The Bank of New York, New York Branch as
Class A-1 Note Trustee and until so authenticated shall not be valid for any
purpose.
The Bank of New York, New York Branch by:
........................................
Authorised Officer/duly appointed representative
51
<PAGE>
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 Class A-1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _________________________, attorney, to transfer said
Class A-1 Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ____________________ ___________________________________ *
Signature Guaranteed:
____________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Class A-1 Note Registrar, which requirements
include membership or participation in STAMP or such
other "signature guarantee program" as may be
determined by the Class A-1 Note Registrar in
addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934,
as amended.
____________________________
* Note: The signatures to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class A-1 Note in every
particular without alteration, enlargement or any change whatsoever.
52
<PAGE>
Annexure
[Insert completed Class A-1 Note Conditions]
53
<PAGE>
Schedule 2
Form of Class A-1 Note Conditions
Terms and Conditions of the Class A-1 Notes
The following, subject to amendments, are the terms and conditions of the Class
A-1 Notes, substantially as they will appear on the reverse of any Class A-1
Notes. Class A-1 Notes will initially be issued in book entry form. Class A-1
Notes in definitive form will only be issued in limited circumstances. While the
Class A-1 Notes remain in book entry form, the same terms and conditions govern
them, except to the extent that they are appropriate only to the Class A-1 Notes
in definitive form.
1. General
The issue of the US$ Class A-1 Mortgage Backed Floating
Rate Notes due December 2031 (the "Class A-1 Notes"), the A$
Class A-2 Mortgage Backed Floating Rate Notes due December 2031 (the
"Class A-2 Notes" and together with the Class A-1 Notes, the "Class A
Notes") and the A$ Class B Mortgage Backed Floating Rate
Notes due December 2031 (the "Class B Notes") (together the "Notes") by
Perpetual Trustee Company Limited, ACN 000 001 007, ("Perpetual") in its
capacity as trustee of the Series 2000-2G Medallion Trust (the "Series
Trust") (Perpetual in such capacity, the "Issuer") was authorised by a
resolution of the board of directors of Perpetual passed on September ,
2000.
The Class A-1 Notes: (a) are constituted by a Class A-1 Note Trust Deed
(the "Class A-1 Note Trust Deed") dated on or about September 18, 2000
made between the Issuer, Securitisation Advisory Services Pty Limited, ACN
064 133 946, (the "Manager") and The Bank of New York, New York Branch
(the "Class A-1 Note Trustee") as trustee for the several persons who are
for the time being registered holders of the Class A-1 Notes (each a
"Class A-1 Noteholder" and together the "Class A-1 Noteholders"); and (b)
are issued subject to, and with the direct or indirect benefit of, amongst
other things (i) a Master Trust Deed (the "Master Trust Deed") dated 8
October 1997 made between the Manager and Perpetual, as amended from time
to time; (ii) a Series Supplement (the "Series Supplement") dated on or
about 31 August, 2000 made between Commonwealth Bank of Australia, ACN 123
123 124 (generally the "Bank" and in its respective capacities under the
Series Supplement the "Seller" and the initial "Servicer"), the Manager
and the Issuer; (iii) a Security Trust Deed (the "Security Trust Deed")
dated on or about 31 August, 2000 made between the Issuer, the Manager,
the Class A-1 Note Trustee and P.T. Limited, ACN 004 454 666 (the
"Security Trustee"); (iv) the Class A-1 Note Trust Deed; (v) these terms
and conditions (the "Conditions"); and (vi) the Agency Agreement (as
defined below).
Certain provisions of these Conditions (including the definitions herein)
are summaries of the Transaction Documents (as defined in Condition 3) and
are subject to the detailed provisions of the Transaction Documents, a
copy of which may be inspected as indicated in Condition 3.
Payments of interest and principal, and the calculation of certain amounts
and rates, under these Conditions in respect of the Class A-1 Notes will
be made pursuant to an Agency Agreement (the "Agency Agreement") dated on
or about September 18, 2000 made between the Issuer, the Class A-1 Note
Trustee, the Manager, The Bank of New York, New York Branch, as the
initial principal paying agent (the "Principal Paying Agent") (together
with any other paying agent appointed from time to time under the Agency
Agreement, the "Paying Agents"), as the initial agent bank (the "Agent
Bank") and as the initial Class A-1 note registrar (the "Class A-1 Note
Registrar") and The Bank of New York, London Branch as an initial paying
agent.
The Issuer has entered into ISDA Master Agreements (each a "Currency Swap
Agreement") with Merrill Lynch International (Australia) Limited, ABN 31
002 892 846 and Commonwealth Bank of Australia (each a "Currency Swap
Provider") and the Manager, each together with a schedule and a credit
support annex and a confirmation relating thereto in respect of the Class
A-1 Notes (each such confirmation documenting a "Class A-1 Currency
Swap").
The Class A-1 Notes will on issue be listed on the Official List of the
United Kingdom Listing Authority (the "UKLA") and admitted to trading on
the London Stock Exchange Limited
"US$" means the lawful currency for the time being of the United States of
America and "A$" means the lawful currency for the time being of the
Commonwealth of Australia.
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<PAGE>
2. Definitions and interpretation
2.1 Incorporated Definitions and other Provisions
Where in these Conditions a word or expression is defined by reference to
its meaning in another Transaction Document or there is a reference to
another Transaction Document or to a provision of another Transaction
Document, any amendment to the meaning of that word or expression, to that
other Transaction Document or to that provision (as the case may be) will
be of no effect for the purposes of these Conditions unless and until the
amendment: (a) if it does not effect a Payment Modification (as defined in
Condition 10.3) is either: (i) if the Class A-1 Note Trustee is of the
opinion that the amendment will not be materially prejudicial to the
interests of the Class A-1 Noteholders, consented to by the Class A-1 Note
Trustee; or (ii) otherwise, approved by a Special Majority (as defined in
Condition 10.3) of the Class A-1 Noteholders under the Class A-1 Note
Trust Deed; or (b) if the amendment does effect a Payment Modification (as
defined in Condition 10.3), is consented to by each Class A-1 Noteholder.
2.2 Interpretation
In these Conditions, unless the context otherwise requires: (a) a
reference to a party includes that party's executors, administrators,
successors, substitutes and assigns, including any person replacing that
party by way of novation; (b) a reference to any regulation or to any
section or provision thereof includes any statutory modification or re-
enactment or any statutory provision substituted therefor and all
ordinances, by-laws, regulations and other statutory instruments issued
thereunder; (c) subject to Condition 2.1, a reference to any document or
agreement is a reference to such document or agreement as amended, varied,
supplemented or replaced from time to time; (d) words importing the
singular include the plural (and vice versa); (e) words denoting a given
gender include all other genders; and (f) headings are for convenience
only and do not affect the interpretation of these Conditions.
2.3 Calculations
Except as expressly provided otherwise in these Conditions, all
calculations in a given currency under these Conditions will be rounded
down to the nearest cent in that currency and all other calculations and
percentages determined hereunder will be rounded down to the nearest 4
decimal places.
3. Class A-1 Noteholders bound
The Class A-1 Noteholders are bound by, and are deemed to have notice of,
all the provisions of the Transaction Documents. A copy of each
Transaction Document is available for inspection during normal business
hours on New York business days at the registered office for the time
being of the Class A-1 Note Trustee (which is, at the date of these
Conditions, 101 Barclay Street, 21W, New York, New York, 10286).
"Transaction Documents" means the Master Trust Deed in so far as it
relates to the Series Trust, the Series Supplement, the Currency Swap
Agreements, the Interest Rate Swap Agreement, the Liquidity Facility
Agreement, the Standby Redraw Facility Agreement, the PMI Mortgage
Insurance Policy, the Security Trust Deed, the Dealer Agreement, the
Underwriting Agreement, the Class A-1 Note Trust Deed, these Conditions,
the Agency Agreement and any other document which is agreed by the Manager
and the Issuer to be a Transaction Document in relation to the Series
Trust.
"Dealer Agreement", "PMI Mortgage Insurance Policy", "Interest Rate Swap
Agreement", "Liquidity Facility Agreement", "Standby Redraw Facility
Agreement" and "Underwriting Agreement" have the same respective meanings
as in the Series Supplement.
4. Form, denomination and title of and to, and the issue of definitive, Class
A-1 Notes
4.1 Form and Denomination
The Class A-1 Notes will be issued in registered form, without interest
coupons, in minimum denominations of US$100,000 or integral multiples
thereof. The initial principal amount of each Class A-1 Note (the
"Initial Invested Amount" in relation to that Class A-1 Note) will be
stated on its face.
55
<PAGE>
4.2 Title
Title to the Class A-1 Notes will only be shown on, and will only pass by
registration in, the register (the "Class A-1 Note Register") maintained
by the Class A-1 Note Registrar in accordance with the Agency Agreement.
Class A-1 Notes may be transferred, or may be exchanged for other Class A-
1 Notes in any authorised denominations and a like Invested Amount (as
defined in Condition 6.4), upon the surrender of the Class A-1 Notes to be
transferred or exchanged duly endorsed with or accompanied by a written
instrument of transfer and exchange duly executed (with such execution
guaranteed by an eligible guarantor institution) and the provision of such
other documents as the Class A-1 Note Registrar may reasonably require, to
a specified office of the Class A-1 Note Registrar (as set out at the end
of these Conditions or otherwise notified to Class A-1 Noteholders)
subject to and in accordance with the Agency Agreement. No service charge
may be made for any transfer or exchange, but the Class A-1 Note Registrar
may require payment by the Class A-1 Noteholder of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Class A-1 Notes. The Class A-
1 Note Registrar need not register transfers or exchanges of Class A-1
Notes for a period of 30 days preceding the due date for any payment with
respect to the Class A-1 Notes or for a period, not exceeding 30 days,
specified by the Class A-1 Note Trustee prior to any meeting, which
includes Class A-1 Noteholders, under the Master Trust Deed or the
Security Trust Deed. The Issuer, the Class A-1 Note Trustee, the Manager,
the Agent Bank and each Paying Agent may accept the correctness of the
Class A-1 Note Register and any information provided to it by the Class A-
1 Note Registrar and is not required to enquire into its authenticity.
None of the Issuer, the Class A-1 Note Trustee, the Manager, the Agent
Bank, any Paying Agent or the Class A-1 Note Registrar is liable for any
mistake in the Class A-1 Note Register or in any purported copy except to
the extent that the mistake is attributable to its own fraud, negligence
or wilful default.
5. Status, security and relationship between the Class A-1 Notes, the Class
A-2 Notes, the Class B Notes and the Redraw Bonds
5.1 Status of the Securities
The Notes and the Redraw Bonds (as defined in Condition 5.6) (together the
"Securities") are direct, secured (as described in Condition 5.2) limited
recourse (as described in Condition 5.3) obligations of the Issuer.
5.2 Security
The obligations of the Issuer under the Securities are (amongst the other
payment obligations of the Issuer comprising the Secured Moneys (as
defined below)) secured, pursuant to the Security Trust Deed, in favour of
the Security Trustee as trustee for the Secured Creditors (as defined
below), by a floating charge (the "Charge") over all of the assets and
property, real and personal (including choses in action and other rights),
tangible and intangible, present or future, of the Series Trust (the
"Charged Property"). The Charged Property includes an equitable interest
in certain mortgage loans, and related mortgages, acquired by the Issuer
from the Seller. The Charge is a first ranking security, subject only to
the Prior Interest in the Charged Property.
"Class A Noteholders" means the Class A-1 Noteholders and the Class A-2
Noteholders (as defined in the Series Supplement).
"Invested Amount" in relation to a Class A-1 Note is defined in Condition
6.4 and in relation to a Class A-2 Note, Class B Note or Redraw Bond means
(as defined in the Series Supplement) A$100,000 less the aggregate of all
amounts previously paid in relation to that Note or Redraw Bond on account
of principal pursuant to clause 10.3(c) of the Series Supplement.
"Prior Interest" means the lien over, and right of indemnification from,
the Charged Property held by the Issuer under, and calculated in
accordance with, the Master Trust Deed for the fees, costs, charges and
expenses incurred by or payable to the Issuer (in its capacity as trustee
of the Series Trust) in accordance with the Master Trust Deed and the
Series Supplement (other than the Secured Moneys) which are unpaid or paid
by the Issuer but not reimbursed to the Issuer from the assets and
property of the Series Trust.
"Secured Creditors" means the Class A-1 Note Trustee (in its personal
capacity and as trustee of the Class A-1 Trust established under the Class
A-1 Note Trust Deed), each Agent, each Securityholder, each Hedge Provider
(as defined in the Services Supplement), the Liquidity Facility Provider
(as defined
56
<PAGE>
in the Series Supplement), the Standby Redraw Facility Provider (as
defined in the Series Supplement), the Servicer, the Seller and the
Manager (only in respect of the Arranging Fee (as defined in the Series
Supplement)).
"Secured Moneys" means, without double counting, the aggregate of all
moneys owing to the Security Trustee or to a Secured Creditor under any of
the Transaction Documents, whether such amounts are liquidated or not or
are contingent or presently accrued due, and includes all rights sounding
in damages only provided that:
(a) the amount owing by the Issuer in relation to the principal
component of a Security is to be calculated by reference to the
Invested Amount of that Security;
(b) the amount owing by the Issuer in relation to the principal
component of the Standby Redraw Facility Agreement is to be
calculated by reference to the aggregate of the Standby Redraw
Facility Principal and the Unreimbursed Principal Charge-offs in
relation to the Standby Redraw Facility Principal;
(c) the Secured Moneys do not include any fees or value added tax
payable to the Class A-1 Note Trustee or an Agent referred to in
clause 12.7 of the Class A-1 Note Trust Deed or Clause 12.6 of the
Agency Agreement; and
(d) the Secured Moneys owing to the Manager are limited only to the
Arranging Fee (as defined in the Series Supplement).
"Securityholders" means the Class A Noteholders, the Class B Noteholders
(as defined in the Series Supplement) and the Redraw Bondholders (as
defined in the Series Supplement).
5.3 Limited Recourse
The liability of the Issuer to make interest and principal payments on the
Class A-1 Securities is limited, except in certain circumstances described
in Condition 12, to the assets and property of the Series Trust available
for this purpose in accordance with, and subject to the order of priority
of payments in, the Series Supplement (prior to enforcement of the Charge)
or the Security Trust Deed (following enforcement of the Charge).
The net proceeds of realisation of the assets and property of the Series
Trust (including following enforcement of the Charge) may be insufficient
to pay all amounts due to the Class A-1 Noteholders and any other amounts
ranking in priority to or equally with amounts due to the Class A-1
Noteholders. Except in the limited circumstances described in Condition
12, the assets of Perpetual held in its personal capacity will not be
available for payment of any shortfall arising and all claims in respect
of such shortfall will be extinguished. The assets of Perpetual held in
its capacity as trustee of any other trust (including any other series
trust established pursuant to the Master Trust Deed) will not in any
circumstances be available to pay any amounts due to Class A-1
Noteholders.
None of the Bank, the Manager, the Class A-1 Note Trustee, the Security
Trustee, any Agent, each Currency Swap Provider or the Managers (as
defined in the Underwriting Agreement), amongst others, has any obligation
to any Class A-1 Noteholder for payment of any amount owed by the Issuer
in respect of the Class A-1 Notes.
5.4 No Preference within the Class A-1 Notes
The Class A-1 Notes rank equally and rateably and without any preference
or priority among themselves.
5.5 Ranking of Class A-1 and Class A-2 Notes
Prior to the enforcement of the Charge, under the Series Supplement the
Class A-1 Notes and Class A-2 Notes will rank equally and rateably in
relation to the payment of interest and the repayment of principal (the
amounts payable by the Issuer under the Series Supplement in relation to
the Class A-1 Notes will be calculated by reference to the applicable
Australian dollar amounts payable by the Issuer to the Currency Swap
Providers, which rank equally and rateably with amounts payable in respect
of the Class A-2 Notes, which in turn will be applied to meet the payment
of interest and the repayment of principal (as applicable) on the Class A-
1 Notes as explained, respectively, in Conditions 6.9 and 7.2).
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Following enforcement of the Charge, under the Security Trust Deed the
payment of amounts owing in relation to the Class A-1 Notes and the Class
A-2 Notes will rank rateably (the amounts owing in respect of the Class A-
1 Notes will, for the purposes of determining distributions to, and
allocations between, the Class A-1 Noteholders, the Class A-2 Noteholders
and the other Secured Creditors, be converted into A$ in accordance with
the Security Trust Deed).
5.6 Issue of Redraw Bonds
Under the Series Supplement, the Issuer is entitled to issue debt
securities ("Redraw Bonds") from time to time at the direction of the
Manager. If prior to a Determination Date, the Manager considers that the
aggregate of:
(a) the Principal Collections, the Principal Charge-Off Reimbursements
(as defined in Condition 7.10) and the Other Principal Amounts for
the Collection Period ending on the Determination Date; and
(b) the Standby Redraw Facility Advance (as hereinafter defined) (if
any) to be made on the next Distribution Date (as defined in
Condition 6.2),
as estimated by the Manager are likely to be insufficient to meet in full
the aggregate of:
(c) the Seller Advances; and
(d) the Standby Redraw Facility Principal,
that the Manager estimates will be outstanding on the Determination Date,
the Manager may direct the Issuer to issue Redraw Bonds for a principal
amount specified in the direction. The maximum Stated Amount (as
hereinafter defined) of the Redraw Bonds outstanding on any Distribution
Date (after taking into account any expected repayment of principal on the
Redraw Bonds on that Distribution Date) must not exceed the Redraw Bond
Principal Limit.
"Collection Period", "Determination Date", "Other Principal Amount",
"Principal Collections", "Redraw Bond Principal Limit", "Seller Advance",
"Standby Redraw Facility Advance", "Standby Redraw Facility Principal" and
"Stated Amount" in relation to the Redraw Bonds have the same respective
meanings as in the Series Supplement.
Prior to the enforcement of the Charge, under the Series Supplement: (i)
the payment of interest on the Redraw Bonds will rank equally and rateably
with the payment of interest on the Class A Notes (or, in the case of the
Class A-1 Notes, equally and rateably with the payment of the relevant A$
amount by the Issuer to the Currency Swap Providers which in turn will be
applied to meet the payment of interest on the Class A-1 Notes as
explained in Condition 6.9); and (ii) the repayment of principal on the
Redraw Bonds will rank ahead of the repayment of principal on the Class A
Notes (or, in the case of the Class A-1 Notes, ahead of the payment of the
relevant A$ amount by the Issuer to the Currency Swap Providers which in
turn will be applied to meet the repayment of principal on the Class A-1
Notes as explained in Condition 7.2).
Following the enforcement of the Charge, under the Security Trust Deed the
payment of amounts owing in relation to the Redraw Bonds will rank
rateably with the payment of amounts owing in relation to the Class A
Notes (the amounts owing in respect of the Class A-1 Notes will, for the
purposes of determining distributions to, and allocations between, the
Class A-1 Noteholders and Redraw Bondholders and other Secured Creditors,
be converted into A$ in accordance with the Security Trust Deed).
5.7 Subordination of Class B Notes
Prior to the enforcement of the Charge, the payment of interest in
relation to the Class B Notes is subordinated to, amongst other things,
the payment of interest on the Class A Notes and the Redraw Bonds in
accordance with the Series Supplement; and the repayment of the principal
on the Class B Notes is, to a certain extent, subordinated to, amongst
other things, the repayment of the principal on the Class A Notes and the
Redraw Bonds in accordance with the calculations to be made of the amounts
to be paid by the Issuer under the Series Supplement (in the case of the
Class A-1 Notes, the subordination of the Class B Notes is in respect of
the relevant A$ amounts payable by the Issuer to the Currency Swap
Providers which in turn will be applied to meet the payment of interest
and the repayment of
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principal on the Class A-1 Notes as explained, respectively, in Conditions
6.9 and 7.2.).
Following the enforcement of the Charge, in the distribution of the net
proceeds (if any) arising from the enforcement of the Charge, any payment
in relation to the Class B Notes will be subordinated to, amongst other
things, payment of all amounts due in relation to the Class A Notes and
the Redraw Bonds (the amounts owing in respect of the Class A-1 Notes
will, for the purposes of determining distributions to, and allocations
between, the Class A-1 Noteholders, and Class B Noteholders and other
Secured Creditors, be converted into A$ in accordance with the Security
Trust Deed).
The Security Trust Deed contains provisions requiring the Security
Trustee, subject to other provisions of the Security Trust Deed, to give
priority to the interests of the Class A Noteholders and the Redraw
Bondholders if there is a conflict between the interests of the Class A
Noteholders and the Redraw Bondholders (on the one hand) and any other
Secured Creditor, including the Class B Noteholders (on the other hand).
In determining the interests of the Class A-1 Noteholders, the Security
Trustee may rely on a determination of the Class A-1 Note Trustee.
5.8 The Securities Rank Equally Except as Provided in the Transaction
Documents
The Securities enjoy the same rights, entitlements, benefits and
restrictions except as expressly provided in the Transaction Documents.
6. Interest
6.1 Period of Accrual
Each Class A-1 Note accrues interest from (and including) September 18,
2000 (the "Closing Date") and ceases to accrue interest on (but excluding)
the earliest of:
(a) the date on which the Stated Amount (as hereinafter defined) of the
Class A-1 Note is reduced to zero and all accrued but previously
unpaid interest, is paid in full;
(b) the date on which the Class A-1 Note is redeemed or repaid in full
in accordance with Condition 7 (other than Condition 7.6) unless,
upon presentation, payment is improperly withheld or refused in
which case the Class A-1 Note will continue to bear interest in
accordance with this Condition 6 (both before and after judgment)
until (but excluding) whichever is the earlier of:
(i) the day on which all sums due in respect of the Class A-1
Note up to that day are received by or on behalf of the
Class A-1 Noteholder; and
(ii) the seventh day after notice is given to the Class A-1
Noteholder (either in accordance with Condition 11.1 or
individually) that, where required by Condition 8.2, upon
presentation thereof being duly made, such payment will be
made, provided that upon such presentation payment is in
fact made; and
(c) the date on which the Class A-1 Note is deemed to be redeemed in
accordance with Condition 7.6.
"Stated Amount" in relation to:
(a) a Class A-1 Note at any given time means the Initial Invested
Amount of that Class A-1 Note less the sum of:
(i) the aggregate of all amounts previously paid in relation to
that Class A-1 Note on account of principal pursuant to
Condition 7.2(c); and
(ii) the aggregate of all then Unreimbursed Principal Charge-offs
(as defined in Condition 7.10) in relation to that Class A-1
Note; and
(b) any other Security at any given time means (as defined in the
Series Supplement) A$100,000 less the sum of:
(i) the aggregate of all amounts previously paid in relation to
that A$ Security on
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account of principal pursuant to clause 10.3 of the Series
Supplement; and
(ii) the aggregate of all then Unreimbursed Principal Charge-Offs
(as defined in the Series Supplement) in relation to that
A$Security.
6.2 Accrual Periods
The period that a Class A-1 Note accrues interest in accordance with
Condition 6.1 is divided into periods (each an "Accrual Period"). The
first Accrual Period for a Class A-1 Note commences on (and includes) the
Closing Date and ends on (but does not include) the first Distribution
Date thereafter. Each succeeding Accrual Period for a Class A-1 Note
commences on (and includes) a Distribution Date and ends on (but does not
include) the next Distribution Date. The final Accrual Period for a Class
A-1 Note ends on (but does not include) the date on which interest ceases
to accrue on the Class A-1 Note pursuant to Condition 6.1.
"Distribution Date" means the 18th day of December, March, June and
September in each year (or, if such a day is not a Business Day, the next
Business Day). The first Distribution Date is December 18, 2000 (or, if
that day is not a Business Day, the next Business Day).
"Business Day" means any day on which banks are open for business in
Sydney, New York City and London other than a Saturday, a Sunday or a
public holiday in Sydney, New York City or London.
6.3 Interest Rate for the Class A-1 Notes
The rate of interest ("Interest Rate") payable from time to time in
respect of a Class A-1 Note and an Accrual Period is the aggregate of USD-
LIBOR-BBA (as hereinafter defined) for that Accrual Period and the Issue
Margin (as hereinafter defined) in relation to the Class A-1 Note.
"USD-LIBOR-BBA" for an Accrual Period will be calculated by the Agent Bank
in accordance with paragraph (a) (or, if applicable, paragraph (b)) below
(subject, in the case of the first Accrual Period, to paragraph (c)
below):
(a) on the second Banking Day before the beginning of the Accrual
Period (a "Rate Set Date") the Agent Bank will determine the rate
"USD-LIBOR-BBA" as the applicable Floating Rate Option under the
Definitions of the International Swaps and Derivatives Association,
Inc. ("ISDA") (the "ISDA Definitions") being the rate applicable to
any Accrual Period for three-month deposits in US dollars in the
London inter-bank market which appears on the Rate Page (as
hereinafter defined) as of 11.00am, London time, on the Rate Set
Date;
(b) if such rate does not appear on the Rate Page at that time, the
USD-LIBOR-BBA for that Accrual Period will be determined as if the
Issuer and the Agent Bank had specified "USD-LIBOR-Reference Banks"
as the applicable Floating Rate Option under the ISDA Definitions.
For this purpose "USD-LIBOR-Reference Banks" means that the rate
for an Accrual Period will be determined on the basis of the rates
at which deposits in US dollars are offered by the Reference Banks
(being four major banks in the London interbank market determined
by the Agent Bank) at approximately 11.00am, London time, on the
Rate Set Date to prime banks in the London interbank market for a
period of three months commencing on the first day of the Accrual
Period and in a Representative Amount (as defined in the ISDA
Definitions). The Agent Bank will request the principal London
office of each of the Reference Banks to provide a quotation of its
rate. If at least two such quotations are provided, the USD-LIBOR-
BBA for that Accrual Period will be the arithmetic mean of the
quotations. If fewer than two quotations are provided as
requested, the USD-LIBOR-BBA for that Accrual Period will be the
arithmetic mean of the rates quoted by not less than two major
banks in New York City, selected by the Agent Bank and the Currency
Swap Providers, at approximately 11.00am, New York City time, on
that Rate Set Date for loans in US dollars to leading European
banks for a period of three months commencing on the first day of
the Accrual Period and in a Representative Amount. If no such
rates are available in New York City, then the USD-LIBOR-BBA for
such Accrual Period will be the most recently determined rate in
accordance with paragraph (a); and
(c) the USD-LIBOR-BBA for the first Accrual Period will be the rate
determined by linear interpolation calculated in accordance with
paragraph (a) or, if applicable, paragraph (b) above with reference
to the duration of the first Accrual Period.
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"Banking Day" means any day on which banks are open for business in London
and New York City, other than a Saturday, a Sunday or a public holiday in
London or New York City.
"Rate Page" means Telerate Page 3750 or, if Telerate Page 3750 ceases to
quote the relevant rate, such other page, section or part of Telerate as
quotes the relevant rate and is selected by the Agent Bank or, if there is
no such page, section or part of such other page, section or part of a
different screen information service as quotes the relevant rate selected
by the Agent Bank and approved by the Class A-1 Note Trustee.
"Issue Margin" in relation to a Class A-1 Note means, subject to the
following:
(a) for the period from, and including, the Closing Date to, but
excluding, the Call Date (as defined in Condition 7.3), % per
annum; and
(b) for the period from, and including, the Call Date to, but
excluding, the date on which that Class A-1 Note ceases to accrue
interest in accordance with Condition 6.1, % per annum.
If on or after the Call Date the Issuer, at the direction of the Manager,
proposes to exercise its option to redeem the Securities at their Stated
Amount in accordance with Condition 7.3 on a Distribution Date but is
unable to do so because, following a meeting of Securityholders convened
under the provisions of the Security Trust Deed by the Manager for this
purpose, the Securityholders have not approved by an Extraordinary
Resolution (as defined in Condition 9.1) the redemption of the Securities
at their Stated Amount, then the Issue Margin in relation to each Class A-
1 Note from, and including, that Distribution Date to, but excluding, the
date on which that Class A-1 Note ceases to accrue interest in accordance
with Condition 6.1, is % per annum.
There is no maximum or minimum Interest Rate for the Class A-1 Notes.
6.4 Calculation of Interest on the Class A-1 Notes
Interest on each Class A-1 Note for an Accrual Period (the "Class A-1
Interest Amount") is calculated by applying the Interest Rate for that
Class A-1 Note for that Accrual Period to the Invested Amount of that
Class A-1 Note on the first day of the Accrual Period (after taking into
account any reductions in the Invested Amount of that Class A-1 Note on
that day), by then multiplying such product by the actual number of days
in the Accrual Period divided by 360 and rounding the resultant figure
down to the nearest cent.
"Invested Amount" in relation to a Class A-1 Note means the Initial
Invested Amount of that Class A-1 Note less the aggregate of all amounts
previously paid in relation to that Class A-1 Note on account of principal
pursuant to Condition 7.2(c).
6.5 Determination of Interest Rate and Class A-1 Interest Amount
The Agent Bank will, as soon as practicable after 11.00am (London time or,
if applicable, New York City time) on each Rate Set Date, determine the
Interest Rate in relation to the Class A-1 Notes, and calculate the Class
A-1 Interest Amount, for the immediately succeeding Accrual Period in
accordance with, respectively, Conditions 6.3 and 6.4. The determination
of the Interest Rate, and the calculation of the Class A-1 Interest
Amount, by the Agent Bank in accordance with, respectively, Conditions 6.3
and 6.4 will (in the absence of manifest error, wilful default or bad
faith) be final and binding upon all parties.
6.6 Notification and Publication of Interest Rate and Class A-1 Interest
Amount
The Agent Bank will cause the Interest Rate and the Class A-1 Interest
Amount for each Accrual Period, and the date of the next Distribution
Date, to be notified to the Issuer, the Manager, the Class A-1 Note
Trustee, the Currency Swap Providers, the Paying Agents and the UKLA (for
so long as the Class A-1 Notes are listed on the Official List of the
UKLA) on or as soon as practical after the Agent Bank has determined the
Interest Rate and calculated the Class A-1 Interest Amount or on such
earlier date as the UKLA may require (for so long as the Class A-1 Notes
are listed on the Official List of the UKLA) and will cause the same to be
published in accordance with Condition 11.2 as soon as practical after
that notification. The Class A-1 Interest Amount and the Distribution
Date may subsequently be amended (or appropriate alternative arrangements
made by way of adjustment) without notice in the event of an extension or
shortening of the Accrual Period. If following the occurrence of an Event
of Default (as
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defined in Condition 9.1), the Security Trustee declares in accordance
with the Security Trust Deed that the Class A-1 Notes are immediately due
and payable, the Class A-1 Interest Amount and the Interest Rate in
respect of the Class A-1 Notes will nevertheless continue to be calculated
by the Agent Bank in accordance with this Condition, but no publication of
the Class A-1 Interest Amount or the Interest Rate so calculated or the
Distribution Dates needs to be made unless, in the case of the Class A-1
Interest Amount or the Interest Rate, the Class A-1 Note Trustee otherwise
requires.
6.7 Determination or Calculation by the Class A-1 Note Trustee
If the Agent Bank at any time for any reason does not determine the
Interest Rate in respect of the Class A-1 Notes, or calculate the Class A-
1 Interest Amount, in accordance with this Condition 6, the Class A-1 Note
Trustee will do so and each such determination or calculation by the Class
A-1 Note Trustee will be as if made by the Agent Bank. In doing so, the
Class A-1 Note Trustee will apply the foregoing provisions of this
Condition 6, with any necessary consequential amendments, to the extent
that it can and in all other respects it will do so in such a manner as it
considers to be fair and reasonable in all the circumstances.
6.8 Agent Bank
The Issuer will procure that, for so long as any of the Class A-1 Notes
remain outstanding, there will at all times be an Agent Bank. The Issuer,
at the direction of the Manager, may with the prior written approval of
the Class A-1 Note Trustee, terminate the appointment of the Agent Bank
immediately on the occurrence of certain events specified in the Agency
Agreement in relation thereto or, otherwise, by giving not less than 60
days' notice in writing to, amongst others, the Agent Bank. Notice of
that termination will be given by the Issuer to the Class A-1 Noteholders
in accordance with Condition 11.1. If any person is unable or unwilling
to continue to act as the Agent Bank, or if the appointment of the Agent
Bank is terminated, the Issuer, at the direction of the Manager, will
appoint a successor Agent Bank to act as such in its place, provided that
neither the resignation nor removal of the Agent Bank will take effect
until a successor approved by the Class A-1 Note Trustee has been
appointed and notice of the appointment of the successor has been given by
the Issuer to the Class A-1 Noteholders in accordance with Condition 11.1.
The initial Agent Bank and its specified office are set out at the end of
these Conditions.
6.9 Payment of the Class A-1 Interest Amount
The Class A-1 Interest Amount for each Accrual Period in relation to a
Class A-1 Note is payable in arrear in US$ on the Distribution Date which
is the last day of the Accrual Period. On each Distribution Date prior to
the enforcement of the Charge, the Issuer must:
(a) to the extent that there are funds available for this purpose in
accordance with the Series Supplement pay, in accordance with the
directions of the Manager, the A$ Class A-1 Interest Amount and any
A$ Class A-1 Unpaid Interest Amount in relation to that
Distribution Date rateably to the Currency Swap Providers in
accordance with the Class A-1 Currency Swaps;
(b) direct each Currency Swap Provider (which direction may be
contained in the relevant Class A-1 Currency Swap) to pay the Class
A-1 Interest Payments on each Distribution Date to the Principal
Paying Agent in accordance with the Agency Agreement; and
(c) direct the Principal Paying Agent (which direction may be contained
in the Agency Agreement) to pay the Class A-1 Interest Payments
received by it from the Currency Swap Providers on a Distribution
Date rateably amongst the Class A-1 Notes based on their Stated
Amounts towards the Class A-1 Interest Amount in relation to each
Class A-1 Note in relation to the Accrual Period ending on that
Distribution Date and any then Class A-1 Unpaid Interest Amount (as
defined in Condition 6.10) in relation to each Class A-1 Note (to
the extent included in the Class A-1 Interest Payment) in
accordance with, and subject to, these Conditions and the Agency
Agreement.
"A$ Class A-1 Interest Amount" , "A$ Class A-1 Unpaid Interest Amount" and
"Class A-1 Interest Payment" have the same respective meanings as in the
Series Supplement.
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6.10 Interest on Unpaid Interest Amounts
If interest is not paid in respect of a Class A-1 Note on the date when
due and payable, that unpaid interest will itself bear interest at the
Interest Rate in relation to the Class A-1 Notes applicable from time to
time until (but excluding the date of payment) the unpaid interest, and
interest on it, is paid in accordance with Condition 6.9 (the unpaid
interest and interest on that unpaid interest, in relation to a Class A-1
Note, is a "Class A-1 Unpaid Interest Amount").
7. Redemption of the Class A-1 Notes
7.1 Final redemption of the Class A-1 Notes
Unless previously redeemed (or deemed to be redeemed) in full, the Issuer
will redeem the Class A-1 Notes at their then Stated Amount, together with
all then accrued but unpaid interest, on the Distribution Date occurring
in December 2031 (the "Scheduled Maturity Date").
7.2 Part Redemption of Class A-1 Notes
Subject to Conditions 7.3, 7.4 and 7.6, on each Distribution Date prior to
the enforcement of the Charge until the Stated Amount of the Class A-1
Notes is reduced to zero the Issuer must :
(a) pay, in accordance with the directions of the Manager, the A$ Class
A-1 Principal Amount (if any) in relation to that Distribution Date
to the Currency Swap Providers in accordance with the Class A-1
Currency Swaps;
(b) direct each Currency Swap Providers (which instruction may be
contained in the relevant Class A-1 Currency Swap) to pay on each
Distribution Date to the Principal Paying Agent in accordance with
the Agency Agreement the US$ Equivalent of the amount of the A$
Class A-1 Principal Amount (such US$ Equivalent of the A$ Class A-1
Principal Amount being the "Class A-1 Principal Amount") received
by the Currency Swap Provider from the Issuer on that Distribution
Date; and
(c) direct the Principal Paying Agent (which direction may be contained
in the Agency Agreement) to pay Class A-1 Principal Amount received
from the Currency Swap Providers equally amongst the Class A-1
Notes towards the repayment of the Stated Amount on the Class A-1
Notes in accordance with, and subject to, these Conditions and the
Agency Agreement. Such a payment of the Stated Amount on a Class
A-1 Note will constitute a redemption of the Class A-1 Note in part
to the extent of such repayment and, upon such repayment, the
obligation of the Issuer with respect to the Class A-1 Note will be
discharged to the extent of such repayment.
"A$ Class A-1 Principal Amount" and "US$ Equivalent" have the same
respective meanings as in the Series Supplement.
7.3 Call Option
The Issuer will, subject to the other provisions of this Condition 7 and
prior to the enforcement of the Charge, when directed by the Manager (at
the Manager's option), redeem all, but not some only, of the Securities at
their then Invested Amount, subject to the following, together with all
accrued but unpaid interest in respect of the Securities to (but
excluding) the date of redemption, on any Distribution Date falling on or
after the earlier of:
(a) the date on which the aggregate Mortgage Loan Principal (as defined
in the Series Supplement) expressed as a percentage of the
aggregate Mortgage Loan Principal at the beginning of business
(Sydney time) on September 1, 2000 falls below 10%; and
(b) the Distribution Date falling in December 2007 (the "Call Date").
Notwithstanding the foregoing, the Issuer may redeem the Securities at
their Stated Amount, instead of at their Invested Amount, together with
accrued but unpaid interest in respect of the Securities to (but
excluding) the date of redemption, if so approved by an Extraordinary
Resolution (as defined in Condition 9.1) of the Securityholders together.
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The Manager will not direct the Issuer to, and the Issuer will not, so
redeem the Securities on such a Distribution Date unless the Issuer is in
a position on the Distribution Date to repay in respect of the Securities
their then Invested Amount or Stated Amount, as required, together with
all accrued but unpaid interest to (but excluding) the date of redemption
and to discharge all its liabilities in respect of amounts which are
required under the Security Trust Deed to be paid in priority to or
equally with the Securities of all classes if the Charge were enforced.
The Issuer will give not more than 60 nor less than 45 days' notice (which
will be irrevocable) of the Distribution Date on which a proposed
redemption under this Condition 7.3 will occur to the Seller, the Class A-
1 Note Trustee, the Principal Paying Agent, the Agent Bank and to the
Class A-1 Noteholders in accordance with Condition 11.1.
7.4 Redemption for Taxation or Other Reasons
If the Manager satisfies the Issuer and the Class A-1 Note Trustee
immediately prior to giving the notice referred to below that by virtue of
a change in law of the Commonwealth of Australia or any of its political
subdivisions or any of its authorities or any other jurisdiction to which
the Issuer becomes subject (or the application or official interpretation
thereof) (a "Relevant Jurisdiction") from that in effect on the Closing
Date, either:
(a) on the next Distribution Date the Issuer will be required to deduct
or withhold from any payment of principal or interest in respect of
the Class A-1 Notes or any other class of the Securities any amount
for or on account of any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed,
levied, collected, withheld or assessed by a Relevant Jurisdiction;
or
(b) the total amount payable in respect of interest in relation to any
of the Mortgage Loans (as defined in the Series Supplement) for a
Collection Period ceases to be receivable (whether or not actually
received) by the Issuer during such Collection Period by reason of
any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed, levied, collected, withheld or
assessed by a Relevant Jurisdiction,
and, in each case, such obligation cannot be avoided by the Issuer taking
reasonable measures available to it, the Issuer must, when so directed by
the Manager (at the Manager's option), redeem all, but not some only, of
the Securities on any subsequent Distribution Date at their then Invested
Amount, subject to the following, together with accrued but unpaid
interest in respect of the Securities to (but excluding) the date of
redemption. Notwithstanding the foregoing, the Issuer may redeem the
Securities at their Stated Amount, instead of at their Invested Amount,
together with accrued but unpaid interest in respect of the Securities to
(but excluding) the date of redemption, if so approved by an Extraordinary
Resolution (as defined in Condition 9.1) of the Securityholders together.
The Manager will not direct the Issuer to, and the Issuer will not, so
redeem the Securities unless the Issuer is in a position on such
Distribution Date to repay in respect of the Securities their then
Invested Amount or Stated Amount, as required, together with all accrued
but unpaid interest to (but excluding) the date of redemption and to
discharge all its liabilities in respect of amounts which are required
under the Security Trust Deed to be paid in priority to or equally with
the Securities of all classes if the Charge were enforced.
The Issuer will give not more than 60 nor less than 45 days' notice (which
will be irrevocable) of the Distribution Date on which a proposed
redemption under this Condition 7.4 will occur to the Class A-1 Note
Trustee, the Seller, the Principal Paying Agent, the Class A-1 Note
Registrar, the Agent Bank and the Class A-1 Noteholders in accordance with
Condition 11.1.
If an event referred to in paragraph (a) of this Condition 7.4 occurs in
respect of only the Class A-1 Notes (and not any other Securities) and as
a result thereof the Issuer gives notice in accordance with this Condition
7.4 that it proposes to redeem all of the Securities on the Distribution
Date referred to in that notice, the Class A-1 Noteholders may by a
Special Majority (as defined in Condition 10.3) in accordance with the
Class A-1 Note Trust Deed elect that they do not require the Issuer to
redeem the Class A-1 Notes. If the Class A-1 Noteholders make such an
election they (or the Class A-1 Note Trustee on their behalf) must notify
the Issuer and the Manager not less than 21 days before the proposed
Distribution Date for the redemption of the Class A-1 Notes. Upon receipt
of such a notice, the Issuer must not so redeem the Securities.
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7.5 Certification
For the purpose of any redemption made under Condition 7.3 or 7.4, the
Issuer and the Class A-1 Note Trustee may rely on any certificate of an
Authorised Officer (as defined in the Master Trust Deed) of the Manager
that the Issuer will be in a position to repay in respect of the
Securities their then Invested Amount or Stated Amount, as applicable,
together with all accrued but unpaid interest to (but excluding) the date
of redemption and to discharge all its liabilities in respect of amounts
required under the Security Trust Deed to be paid in priority to or
equally with the Securities if the Charge were enforced.
7.6 Redemption on Final Payment
Upon a final distribution being made in respect of the Class A-1 Notes
under clause 26.12 of the Series Supplement or clause 13.1 of the Security
Trust Deed, the Class A-1 Notes will thereupon be deemed to be redeemed
and discharged in full and any obligation to pay any accrued but then
unpaid Class A-1 Interest Amount or any Class A-1 Unpaid Interest Amount
or any then unpaid Invested Amount, Stated Amount or other amounts in
relation to the Class A-1 Notes will be extinguished in full.
7.7 Cancellation
All Class A-1 Notes redeemed in full (or deemed to be redeemed in full)
pursuant to the above Conditions will be cancelled and may not be resold
or reissued.
7.8 No Payment in excess of Stated Amount
Subject to Conditions 7.3 and 7.4, no amount of principal will be repaid
in respect of a Class A-1 Note in excess of the Stated Amount of the Class
A-1 Note.
7.9 Application of Principal Charge-offs
If on a Determination Date (as hereinafter defined) any Principal Charge-
off is allocated to the Class A-1 Notes in accordance with the Series
Supplement, it will reduce the Stated Amount of the Class A-1 Notes
(equally and rateably according to their Stated Amount) by an amount equal
to the US$ Equivalent of the amount so allocated until the Stated Amount
of the Class A-1 Notes is reduced to zero. A reduction in the Stated
Amount of a Class A-1 Note in accordance with the foregoing will take
effect on the next Distribution Date.
"Determination Date" and "Principal Charge-off" have the same respective
meanings as in the Series Supplement.
7.10 Principal Charge-offs Reimbursement
If on a Determination Date any Principal Charge-off Reimbursement is
allocated to the Class A-1 Notes in accordance with the Series Supplement,
it will reduce the Unreimbursed Principal Charge-offs of the Class A-1
Notes (rateably according to their amount of Unreimbursed Principal
Charge-offs) by an amount equal to the US$ Equivalent of the amount so
allocated until the Unreimbursed Principal Charge-offs in respect of the
Class A-1 Notes are reduced to zero. A reduction in the Unreimbursed
Principal Charge-offs in respect of the Class A-1 Notes in accordance with
the foregoing, and the resultant increase in the Stated Amount of the
Class A-1 Notes, will take effect on the next Distribution Date.
"Principal Charge-off Reimbursement" has the same meaning as in the Series
Supplement.
"Unreimbursed Principal Charge-offs" in relation to a Class A-1 Note at
any time means the aggregate of the US$ Equivalent of the Principal
Charge-offs up to and including that time allocated to the Class A-1 Note
in accordance with Condition 7.9 less the aggregate of the US$ Equivalent
of the Principal Charge-off Reimbursements prior to that time allocated to
the Class A-1 Note in accordance with this Condition 7.10.
7.11 Calculation of Class A-1 Principal Amounts, Stated Amounts and other
amounts
(a) No later than two Business Days prior to each Distribution Date,
the Manager will determine: (i) the amount of any Class A-1
Principal Amount payable in respect of each Class A-1 Note on the
Distribution Date; (ii) the Stated Amount and Invested Amount of
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each Class A-1 Note as at the first day of the Accrual Period
commencing on the Distribution Date (after deducting any Class A-1
Principal Amounts due to be paid in respect of such Class A-1 Note
on that Distribution Date and after making any other adjustments to
the Stated Amount or the Invested Amount (as the case may be) of
the Class A-1 Note in accordance with these Conditions on or with
effect from that Distribution Date); (iii) the Class A-1 Note
Factor (as defined below) as at that Distribution Date; and (iv)
the amount of the Class A-1 Interest Payment to be made on the
Distribution Date applicable to each Class A-1 Note.
(b) The Manager will notify the Issuer, the Class A-1 Note Trustee, the
Principal Paying Agent, the Agent Bank, the Class A-1 Note
Registrar and the UKLA (for so long as the Class A-1 Notes are
listed on the Official List of the UKLA) as soon as practical (and
in any event by not later than two Business Days prior to the
Distribution Date or on such earlier date as the UKLA may require
(for so long as the Class A-1 Notes are listed on the Official List
of the UKLA)) of each determination of an amount or percentage
referred to in Condition 7.11(a) and will cause details of each of
those determinations to be published in accordance with Condition
11.2 as soon as practical after that notification. If no Class A-1
Principal Amount is due to be paid on the Class A-1 Notes on any
Distribution Date the Manager will cause a notice to be given in
accordance with Condition 11.2 as soon as practicable (and in any
event by no later than the relevant Distribution Date).
(c) If the Manager does not at any time for any reason make one or more
of the determinations referred to in Condition 7.11(a), the Agent
Bank (or, failing the Agent Bank, the Class A-1 Note Trustee) must
make such determinations in accordance with this Condition (but
based on the information in its possession) and each such
determination will be deemed to have been made by the Manager.
"Class A-1 Note Factor" at a given time means the percentage calculated as
follows:
CA1NF = A
-
B
where:
CA1NF = the Class A-1 Note Factor;
A = the aggregate Invested Amount of the Class A-1 Notes on the last
day of the just ended Accrual Period; and
B = the aggregate Initial Invested Amount of the Class A-1 Notes.
8. Payments
8.1 Method of Payment
Any instalment on account of interest or principal payable on any Class A-
1 Note which is punctually paid or duly provided for by or on behalf of or
at the direction of the Issuer to the Principal Paying Agent on the
applicable Distribution Date shall be paid to the person in whose name
such Class A-1 Note is registered on the relevant Record Date (as defined
below), by wire transfer in immediately available funds to the account
designated by such person or, if such person so requests in writing, by
cheque mailed first-class, postage prepaid, to such person's address as it
appears on the Class A-1 Note Register on such Record Date.
"Record Date" in relation to a Distribution Date or any other date for any
payment to be made in respect of a Class A-1 Note means the day which is
the last day of the prior calendar month.
8.2 Surrender on Final Payment
Prior to a final distribution being made in respect of the Class A-1 Notes
under clause 26.12 of the Series Supplement or clause 13.1 of the Security
Trust Deed the Class A-1 Note Trustee must notify the persons in whose
names the Class A-1 Notes are registered on the relevant Record Date of
the date upon which the Class A-1 Note Trustee expects that final
distribution to be made and specify if that such final distribution will
be payable only upon surrender of the relevant Class A-1 Note to a Paying
Agent at its
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specified office. No such final distribution will be made other than upon
the surrender of the relevant Class A-1 Notes and none of the Issuer, the
Class A-1 Note Trustee, the Security Trustee or any Paying Agent will be
liable to pay any additional amount to any Class A-1 Noteholder as a
result of any delay in payment due to a Class A-1 Note not having been
surrendered in accordance with this Condition 8.2.
8.3 Paying Agents
The initial Paying Agents and their respective specified offices are set
out at the end of these Conditions.
The Issuer, at the direction of the Manager, may with the prior written
approval of the Class A-1 Note Trustee terminate the appointment of the
Principal Paying Agent and appoint additional or other Paying Agents,
provided that it will at all times maintain a Paying Agent having a
specified office in London and New York City. Notice of any such
termination or appointment and of any change in the office through which
any Paying Agent will act will be given in accordance with Condition 11.1.
8.4 Taxation
All payments in respect of the Class A-1 Notes will be made without
withholding or deduction for, or on account of, any present or future
taxes, duties or charges of whatsoever nature unless the Issuer or any
Paying Agent is required by any applicable law to make such a withholding
or deduction. In that event the Issuer or that Paying Agent (as the case
may be) will, after making such withholding or deduction, account to the
relevant authorities for the amount so required to be withheld or
deducted. Neither the Issuer nor any Paying Agent nor the Class A-1 Note
Trustee will be obliged to make any additional payments in respect of the
relevant Class A-1 Notes in relation to that withholding or deduction.
Immediately after becoming aware that such a withholding or deduction is
or will be required, the Issuer will notify the Class A-1 Note Trustee,
the Principal Paying Agent and the Class A-1 Noteholders in accordance
with Condition 11.1, thereof.
8.5 Prescription
A Class A-1 Note will become void in its entirety unless surrendered for
payment within a period of 10 years from the Relevant Date in respect of
any payment thereon the effect of which would be to reduce the Stated
Amount of, and all accrued but unpaid interest on, that Class A-1 Note to
zero. After the date on which a Class A-1 Note becomes void in its
entirety, no claim can be made in respect of it.
"Relevant Date" in respect of a Class A-1 Note means the date on which a
payment in respect thereof first becomes due or (if the full amount of the
moneys payable in respect of the Class A-1 Notes due on or before that
date has not been duly received by the Principal Paying Agent or the Class
A-1 Note Trustee on or prior to such date) the date on which, the full
amount of such moneys having been so received and notice to that effect is
duly given to the Class A-1 Noteholders in accordance with Condition 11.1.
8.6 Notify Late Payments
In the event of the unconditional payment to the Principal Paying Agent or
the Class A-1 Note Trustee of any sum due in respect of the Class A-1
Notes or any of them being made after the due date for payment thereof,
the Issuer will forthwith give or procure to be given notice to the Class
A-1 Noteholders in accordance with Condition 11.1 that such payment has
been made.
8.7 Rounding of Payments
All payments in respect of the Class A-1 Notes will be rounded down to the
nearest cent.
9. Enforcement following occurrence of Event of Default
9.1 Enforcement
The Security Trust Deed provides that at any time after the Security
Trustee becomes actually aware of the occurrence of an Event of Default,
the Security Trustee will (subject to Condition 10.4 and subject to being
appropriately indemnified), if so directed by an Extraordinary Resolution
of the Voting Secured Creditors, declare the Securities immediately due
and payable (in which case, subject to Condition 12, the Stated Amount of,
and all accrued but unpaid interest in relation to, the Class A-1 Notes
will become immediately due and payable) and enforce the Charge.
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Subject to being indemnified in accordance with the Security Trust Deed
and to the provisions of Condition 9.2, the Security Trustee will take all
action necessary to give effect to any direction in accordance with the
foregoing and will comply with all such directions.
"Event of Default", "Extraordinary Resolution" and "Voting Secured
Creditors" have the same respective meanings as in the Security Trust
Deed.
9.2 Security Trustee May Enforce Charge Without Direction
After the Security Trustee becomes actually aware of the occurrence of an
Event of Default, provided that it has been indemnified to its
satisfaction in accordance with the Security Trust Deed, the Security
Trustee must enforce the Security Trust Deed without an Extraordinary
Resolution of the Voting Secured Creditors if in its opinion, the delay
required to obtain the consent of the Voting Secured Creditors would be
prejudicial to the interests of the Secured Creditors as a class.
9.3 Priority of Payments from Proceeds from the enforcement of the Charge
Following the enforcement of the Charge, all moneys received in connection
with the Security Trust Deed by the Security Trustee or by any receiver
appointed in relation to the Charged Property pursuant to the provisions
of the Security Trust Deed are to be applied, subject to the Security
Trust Deed, in accordance with the order of priority contained in the
Security Trust Deed
9.4 Security Trustee and Class A-1 Note Trustee Not Liable for Loss on
enforcement
Except in the case of fraud, negligence or wilful default (in the case of
the Security Trustee) and, subject to the mandatory provisions of the
Trust Indenture Act, fraud, negligence (except as specifically provided in
the Trust Indenture Act), wilful default or breach of trust (in the case
of the Class A-1 Note Trustee), neither the Class A-1 Note Trustee nor the
Security Trustee is liable for any decline in the value, nor any loss
realised upon any sale or other disposition made under the Security Trust
Deed of any Charged Property or any other property which is charged to the
Security Trustee by any other person in respect of or relating to the
obligations of the Issuer or any third party in respect of the Issuer or
the Class A-1 Notes or relating in any way to the Charged Property.
Without limitation, neither the Class A-1 Note Trustee nor the Security
Trustee will be liable for any such decline or loss directly or indirectly
arising from its acting, or failing to act, as a consequence of an opinion
reached by it based on advice received by it in accordance with the
applicable requirements of the Class A-1 Note Trust Deed (and the Trust
Indenture Act) or the Security Trust Deed, as the case may be.
"Trust Indenture Act" means the Trust Indenture Act 1939 of the United
States of America as in force at the date of the Class A-1 Note Trust
Deed.
9.5 Directions from Class A-1 Noteholders to Class A-1 Note Trustee following
Event of Default
If an Event of Default or Potential Event of Default has occurred and is
known to the Class A-1 Note Trustee, the Class A-1 Note Trustee must: (a)
notify each Class A-1 Noteholder of the Event of Default or Potential
Event of Default, as the case may be, within 10 days (or such shorter
period as may be required by the rules of the UKLA, if the Class A-1 Notes
are listed on the Official List of the UKLA, or the rules of any other
stock exchange on which the Class A-1 Notes are listed) after becoming
aware of the Event of Default or Potential Event of Default, provided that
except in the case of a default in payment of principal or interest on any
Class A-1 Note, the Class A-1 Note Trustee may withhold such notice if and
so long as the board of directors, the executive committee or a trust
committee of its directors and/or its authorised officers under the Class
A-1 Note Trust Deed in good faith determine that withholding the notice is
in the interest of Class A-1 Noteholders; (b) if a meeting of Voting
Secured Creditors is to be held under the Security Trust Deed, determine
whether it proposes to seek directions from Class A-1 Noteholders as to
how to vote at that meeting and, if so, whether it proposes to instruct
the Security Trustee to delay the holding of that meeting while it obtains
such directions from the Class A-1 Noteholders; and (c) vote at any
meeting of Voting Secured Creditors held under the Security Trust Deed in
accordance, where applicable, with the directions of the Class A-1
Noteholders (whether or not solicited and whether or not all Class A-1
Noteholders have provided such directions) and otherwise in its absolute
discretion. In acting in accordance with the directions of Class A-1
Noteholders the Class A-1 Note Trustee must exercise its votes for or
against any proposal to be put to a meeting of Voting Secured Creditors
under the Security Trust Deed in the same proportion as that of the
aggregate Invested Amounts of the Class A-1 Notes held by Class A-1
Noteholders who have directed the Class A-1 Note Trustee to vote for or
against such a proposal.
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If any of the Class A-1 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-1 Notes, the Class A-1 Note Trustee must not vote at a meeting of
Voting Secured Creditors under the Security Trust Deed, or otherwise
direct the Security Trustee, to dispose of the Charged Property unless:
(a) a sufficient amount would be realised to discharge in full all amounts
owing to the Class A-1 Noteholders in respect of the Class A-1 Notes and
any other amounts owing by the Issuer to any other person ranking in
priority to or with the Class A-1 Notes; (b) the Class A-1 Note Trustee is
of the opinion, reached after considering at any time and from time to
time the advice of an investment bank or other financial adviser selected
by the Class A-1 Note Trustee, that the cash flow receivable by the Issuer
(or the Security Trustee under the Security Trust Deed) will not (or that
there is a significant risk that it will not) be sufficient, having regard
to any other relevant actual, contingent or prospective liabilities of the
Issuer, to discharge in full in due course all the amounts referred to in
paragraph (a); or (c) the Class A-1 Note Trustee is so directed by a
Special Majority (as defined in Condition 10.3) of Class A-1 Noteholders.
Subject to the mandatory provisions of the Trust Indenture Act and
provisions in the Class A-1 Note Trust Deed relating to the deemed receipt
of notices, the Class A-1 Note Trustee will only be considered to have
knowledge or awareness of, or notice of, an Event of Default or Potential
Event of Default by virtue of the officers of the Class A-1 Note Trustee
(or any related body corporate of the Class A-1 Note Trustee) which have
the day to day responsibility for the administration or management of the
Class A-1 Note Trustee's (or a related body corporate of the Class A-1
Note Trustee's) obligations in relation to the Series Trust, the trust
created under the Class A-1 Note Trust Deed or the Class A-1 Note Trust
Deed, having actual knowledge, actual awareness or actual notice of the
occurrence of the events or circumstances constituting an Event of Default
or Potential Event of Default, as the case may be, or grounds or reason to
believe that such events or circumstances have occurred.
"Potential Event of Default" means an event which, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
9.6 Only Security Trustee May Enforce Charge
Only the Security Trustee may enforce the Charge and neither the Class A-1
Note Trustee nor any Class A-1 Noteholder (nor any other Secured Creditor)
is entitled to proceed directly against the Issuer to enforce the
performance of any of the provisions of the Security Trust Deed, the Class
A-1 Note Trust Deed, the Class A-1 Notes or any other applicable
Transaction Document, except as provided for in the Security Trust Deed,
the Class A-1 Note Trust Deed, the Master Trust Deed and the Series
Supplement. The Security Trustee is not required to act in relation to
the enforcement of the Charge unless its liability is limited in a manner
reasonably satisfactory to it or, if required by the Security Trustee (in
its absolute discretion), it is adequately indemnified from the Charged
Property or the Security Trustee receives from the Voting Secured
Creditors an indemnity in a form reasonably satisfactory to the Security
Trustee (which may be by way of an Extraordinary Resolution of the Voting
Secured Creditors) and is put in funds to the extent necessary.
9.7 Exercise of Class A-1 Noteholder Rights by Class A-1 Note Trustee
The rights, remedies and discretions of the Class A-1 Noteholders under
the Security Trust Deed including all rights to vote or to give an
instruction or consent can only be exercised by the Class A-1 Note Trustee
on behalf of the Class A-1 Noteholders in accordance with the Security
Trust Deed. The Security Trustee may rely on any instructions or
directions given to it by the Class A-1 Note Trustee as being given on
behalf of the Class A-1 Noteholders from time to time and need not inquire
whether any such instructions or directions are in accordance with the
Class A-1 Note Trust Deed, whether the Class A-1 Note Trustee or the Class
A-1 Noteholders from time to time have complied with any requirements
under the Class A-1 Note Trust Deed or as to the reasonableness or
otherwise of the Class A-1 Note Trustee.
10. Meetings of Voting Secured Creditors, directions of Class A-1 Noteholders,
modifications, consents, waivers and indemnities
10.1 Meetings of Voting Secured Creditors
The Security Trust Deed contains provisions for convening meetings of the
Voting Secured Creditors to, among other things, enable the Voting Secured
Creditors to direct or consent to the Security Trustee taking or not
taking certain actions under the Security Trust Deed; for example to
enable the Voting Secured Creditors, following the occurrence of an Event
of Default, to direct the Security Trustee to
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declare the Securities immediately due and payable and/or to enforce the
Charge.
10.2 Directions of Class A-1 Noteholders
Under the Class A-1 Note Trust Deed the Class A-1 Note Trustee may seek
directions from the Class A-1 Noteholders from time to time including
following the occurrence of an Event of Default. The Class A-1 Note
Trustee will not be responsible for acting in good faith upon a direction
given, or purporting to be given, by Class A-1 Noteholders holding Class
A-1 Notes with an Invested Amount of greater than 50% of the aggregate
Invested Amount of all the Class A-1 Notes.
If the Class A-1 Note Trustee is entitled under the Master Trust Deed or
the Security Trust Deed to vote at any meeting on behalf of Class A-1
Noteholders the Class A-1 Note Trustee must vote in accordance with the
directions of the Class A-1 Noteholders and otherwise in its absolute
discretion. In acting in accordance with the directions of Class A-1
Noteholders the Class A-1 Note Trustee must exercise its votes for or
against any proposal to be put to a meeting in the same proportion as that
of the aggregate Invested Amounts of the Class A-1 Notes held by Class A-1
Noteholders who have directed the Class A-1 Note Trustee to vote for or
against that proposal.
For the purposes of seeking any consent, direction or authorisation from
Class A-1 Noteholders the Class A-1 Note Trustee may by notice to the
Class A-1 Noteholders specify a date, not earlier than the date of the
notice, upon which the persons who are the Class A-1 Noteholders and the
Invested Amount of the Class A-1 Notes held by them will be determined
based upon the details recorded in the Class A-1 Note Register as at 5.30
pm on that date.
10.3 Amendments to Class A-1 Note Trust Deed and the Class A-1 Notes
Pursuant, and subject, to the Class A-1 Note Trust Deed and subject to any
approval required by law, the Class A-1 Note Trustee, the Manager and the
Issuer may together agree, without the consent or sanction of any Class A-
1 Noteholder, by way of supplemental deed to alter, add to or revoke (each
a "modification") any provision of the Class A-1 Note Trust Deed or the
Class A-1 Notes (including these Conditions) so long as such modification
is not a Payment Modification (as defined below) and such modification in
the opinion of the Class A-1 Note Trustee:
(a) is necessary or expedient to comply with the provisions of any
statute or regulation or with the requirements of any governmental
agency;
(b) is made to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(c) is appropriate or expedient as a consequence of an amendment to any
statute or regulation or altered requirements of any governmental
agency or any decision of any court (including, without limitation,
a modification which is in the opinion of the Class A-1 Note
Trustee appropriate or expedient as a consequence of the enactment
of a statute or regulation or an amendment to any statute or
regulation or ruling by the Australian Commissioner or Deputy
Commissioner of Taxation or any governmental announcement or
statement or any decision of any court, in any case which has or
may have the effect of altering the manner or basis of taxation of
trusts generally or of trusts similar to the Series Trust or the
trust constituted under the Class A-1 Note Trust Deed); or
(d) and the Issuer is otherwise desirable for any reason and:
(i) is not in the opinion of the Class A-1 Note Trustee likely,
upon coming into effect, to be materially prejudicial to the
interests of Class A-1 Noteholders; or
(ii) if it is in the opinion of the Class A-1 Note Trustee
likely, upon coming into effect, to be materially
prejudicial to the interests of Class A-1 Noteholders the
consent of a Special Majority (as hereinafter defined) of
Class A-1 Noteholders is obtained.
For the purpose of determining whether a Special Majority of Class A-1
Noteholders has consented to a modification, Class A-1 Notes which are
beneficially owned by the Issuer or the Manager or by any person directly
or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or the Manager, will be disregarded. The
Manager must give the Rating Agencies 5 Business
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Days' prior notice of any such modification. The Class A-1 Note Trustee
will be entitled to assume that any proposed modification, other than a
Payment Modification, will not be materially prejudicial to the interest
of Class A-1 Noteholders if each of the Rating Agencies confirms in
writing that if the modification is effected this will not lead to a
reduction, qualification or withdrawal of the then rating given to the
Class A-1 Notes by that Rating Agency.
Pursuant to the Class A-1 Note Trust Deed, the Class A-1 Note Trustee may
concur with the Issuer and the Manager in making or effecting any Payment
Modification if and only if the consent has first been obtained of each
Class A-1 Noteholder to such Payment Modification.
Any supplemental deed that effects any such modifications must conform to
the requirements of the Trust Indenture Act and copies of any such
supplemental deed must be distributed by the Issuer to the Class A-1
Noteholders in accordance with Condition 11.1 as soon as reasonably
practicable after the modifications have been made.
"Payment Modification" means any alteration, addition or revocation of any
provision of the Class A-1 Note Trust Deed or the Class A-1 Notes
(including the Conditions) which modifies: (a) the amount, timing, place,
currency or manner of payment of principal or interest in respect of the
Class A-1 Notes including, without limitation, any modification to the
Stated Amount, Invested Amount, Interest Rate or Scheduled Maturity Date
in respect of the Class A-1 Notes or to Conditions 6.9 and 7.2, clause 10
of the Series Supplement or clause 13 of the Security Trust Deed or which
would impair the rights of Class A-1 Noteholders to institute suit for
enforcement of such payment on or after the due date for such payment; (b)
the definition of the term "Special Majority", clause 21.4 of the Class A-
1 Note Trust Deed or the circumstances in which the consent or direction
of a Special Majority of Class A-1 Noteholders is required; (c) clause
6.1(a) of the Security Trust Deed; or (d) the requirements for altering,
adding to or revoking any provision of the Class A-1 Note Trust Deed or
the Class A-1 Notes (including the Conditions).
"Rating Agency" has the same meaning as in the Series Supplement.
"Special Majority" in relation to the Class A-1 Noteholders means Class A-
1 Noteholders holding Class A-1 Notes with an aggregate Invested Amount of
no less than 75% of the aggregate Invested Amount of all the Class A-1
Notes.
10.4 Waivers etc
The Security Trustee may, in accordance with the Security Trust Deed and
without the consent or sanction of the Voting Secured Creditors (but not
in contravention of an Extraordinary Resolution of the Voting Secured
Creditors), waive or authorise any breach or proposed breach or determine
that any event that would otherwise be an Event of Default will not be
treated as such if and in so far as in its opinion the interests of the
Secured Creditors will not be materially prejudiced. Any such waiver,
authorisation or determination shall be binding on the Secured Creditors
and, if, but only if, the Security Trustee so requires, any such waiver,
authorisation or determination will be notified to the Secured Creditors
by the Manager in accordance with the Security Trust Deed.
The Class A-1 Note Trustee may, and if directed to do so by a Majority of
Class A1 Noteholders must, on such terms and conditions as it may deem
reasonable, without the consent of any of the Class A-1 Noteholders, and
without prejudice to its rights in respect of any subsequent breach, agree
to any waiver or authorisation of any breach or proposed breach of any of
the terms and conditions of the Transaction Documents by the Issuer, the
Manager or any other person which, unless the Class A-1 Note Trustee is
acting on the direction of a Majority of Class A-1 Noteholders, is not, in
the opinion of the Class A-1 Note Trustee, materially prejudicial to the
interests of the Class A-1 Noteholders as a class. No such waiver,
authorisation or determination may be made in contravention of any prior
directions by a Majority (as hereinafter defined) of the Class A-1
Noteholders. Any such waiver, authorisation or determination will, if the
Class A-1 Note Trustee so requires, be notified to the Class A-1
Noteholders in accordance with Condition 11.1 by the Issuer as soon as
practicable after it is made.
"Majority" in relation to the Class A-1 Noteholders means Class A-1
Noteholders holding Class A-1 Notes with an aggregate Invested Amount of
greater than 50% of the aggregate Invested Amount of all the Class A-1
Notes.
10.5 Indemnification and Exoneration of the Class A-1 Note Trustee and the
Security Trustee
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The Class A-1 Note Trust Deed and the Security Trust Deed contain
provisions for the indemnification of the Class A-1 Note Trustee and the
Security Trustee (respectively) and for their relief from responsibility,
including provisions relieving them from taking proceedings to realise the
security and to obtain repayment of the Securities unless indemnified to
their satisfaction. Each of the Class A-1 Note Trustee and the Security
Trustee is entitled, subject in the case of the Class A-1 Note Trustee to
the mandatory provisions of the Trust Indenture Act, to enter into
business transactions with the Issuer and/or any other party to the
Transaction Documents without accounting for any profit resulting from
such transactions.
Subject to the mandatory provisions of the Trust Indenture Act, the Class
A-1 Note Trustee shall not be responsible for any loss, expense or
liability occasioned to the Charged Property or any other property or in
respect of all or any of the moneys which may stand to the credit of the
Collections Account (as defined in the Series Supplement) from time to
time however caused (including, without limitation, where caused by an act
or omission of the Security Trustee) unless that loss is occasioned by the
fraud, negligence, wilful default or breach of trust of the Class A-1 Note
Trustee. The Security Trustee is not, nor is any receiver appointed in
relation to the Charged Property pursuant to the provisions of the
Security Trust Deed, liable or otherwise accountable for any omission,
delay or mistake or any loss or irregularity in or about the exercise,
attempted exercise, non-exercise or purported exercise of any of the
powers of the Security Trustee or of the receiver under the Security Trust
Deed except for fraud, negligence or wilful default.
Except in the case of fraud, negligence (except as specifically provided
in the Trust Indenture Act), wilful default or breach of trust, and
subject to the mandatory provisions of the Trust Indenture Act, the Class
A-1 Note Trustee may act on the opinion or advice of, or information
obtained from, any lawyer, valuer, banker, broker, accountant or other
expert appointed by the Class A-1 Note Trustee, or by a person other than
Class A-1 Note Trustee, where that opinion, advice or information is
addressed to the Class A-1 Note Trustee or by its terms is expressed to be
capable of being relied upon by the Class A-1 Note Trustee. Except as
provided above, the Class A-1 Note Trustee will not be responsible to any
Class A-1 Noteholder, amongst others, for any loss occasioned by so acting
in reliance on such advice. Any such opinion, advice or information may
be sent or obtained by letter, telex or facsimile transmission and the
Class A-1 Note Trustee will not be liable to any Class A-1 Noteholder,
amongst others, for acting on any opinion, advice or information
conforming with any applicable requirements of the Class A-1 Note Trust
Deed or the Trust Indenture Act and purporting to be conveyed by such
means even though it contains some error which is not a manifest error or
is not authentic.
11. Notices
11.1 General
All notices, other than notices given in accordance with the following
paragraph and Condition 11.2, to Class A-1 Noteholders will be deemed
given if in writing and mailed, first-class, postage prepaid to each Class
A-1 Noteholder, at his or her address as it appears on the Class A-1 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-1 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-1 Noteholder will affect the sufficiency of such notice
with respect to other Class A-1 Noteholders, and any notice that is mailed
in the manner herein provided will conclusively be presumed to have been
duly given.
A notice may be waived in writing by the relevant Class A-1 Noteholder,
either before or after the event, and such waiver will be the equivalent
of such notice. Waivers of notice by Class A-1 Noteholders will be filed
with the Class A-1 Note Trustee but such filing will not be a condition
precedent to the validity of any action taken in reliance upon such a
waiver.
Any such notice will be deemed to have been given on the date such notice
is deposited in the mail.
In case, by reason of the suspension of regular mail services as a result
of a strike, work stoppage or similar activity, it is impractical to mail
notice of any event to Class A-1 Noteholders when such notice is required
to be given, then any manner of giving such notice as the Issuer directs
the Class A-1 Note Trustee will be deemed to be a sufficient giving of
such notice.
11.2 Class A-1 Note Information
Any notice specifying a Distribution Date, a Interest Rate in relation to
the Class A-1 Notes, a Class A-1
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Interest Amount, a Class A-1 Principal Amount (or the absence of a Class
A-1 Principal Amount), an Invested Amount, a Stated Amount, a Class A-1
Note Factor in relation to the Class A-1 Notes, or any other matter
permitted to be given in accordance with this Condition 11.2, will be
deemed to have been duly given if the information contained in the notice
appears on the relevant page of the Reuters Screen or the electronic
information system made available to its subscribers by Bloomberg, L.P. or
another similar electronic reporting service approved by the Class A-1
Note Trustee in writing and notified to Class A-1 Noteholders pursuant to
Condition 11.1 (the "Relevant Screen"). Any such notice will be deemed to
have been given on the first date on which such information appeared on
the Relevant Screen. If it is impossible or impracticable to give notice
in accordance with this paragraph then notice of the matters referred to
in this Condition will be given in accordance with Condition 11.1.
11.3 Quarterly Servicing and Other Reports
The Manager must deliver a Quarterly Servicing Report for each Accrual
Period to the Class A-1 Note Trustee, the Principal Paying Agent, the
Issuer and each Class A-1 Noteholder on the Business Day preceding the
Distribution Date on the last day of the Accrual Period in accordance with
Condition 11.1 and, for so long as the Class A-1 Notes are listed on the
Official List of the UKLA file each Quarterly Servicing Report with the
UKLA as and when required by the rules of the UKLA.
The Issuer and the Manager must, to the extent required by the rules and
regulation of the Securities and Exchange Commission, forward to Class A-1
Noteholders, and such other persons as are required by the Trust Indenture
Act, such summaries of any information, documents and reports required to
be filed by the Issuer or the Manager in accordance with the Securities
and Exchange Act 1934 of the United States of America or the rules and
regulations of the Securities and Exchange Commission.
"Quarterly Servicing Report" in relation to an Accrual Period and the
Distribution Date at the end of that Accrual Period means a report which
contains the following information:
. the aggregate Invested Amounts and the aggregate Stated Amounts of
each class of Securities on the first day of the Accrual Period;
. the amounts to be applied towards payment of interest and principal on
each class of Securities on the Distribution Date;
. the Available Income Amount (as defined in the Series Supplement) on
the Distribution Date;
. the aggregate of all Seller Advances made during the preceding
Collection Period;
. the Redraw Shortfall (as defined in the Standby Redraw Facility
Agreement) in relation to the preceding Determination Date;
. the Income Shortfall (as defined in the Series Supplement) in relation
to the preceding Determination Date;
. the Liquidity Facility Advance (as defined in the Series Supplement)
in relation to that Distribution Date and the Liquidity Facility
Principal (as defined in the Series Supplement) in relation to the
preceding Determination Date;
. the Available Principal Amount (as defined in the Series Supplement)
in relation to that Distribution Date;
. the Principal Collections in relation to that Distribution Date;
. the Standby Redraw Facility Advance in relation to that Distribution
Date;
. the Redraw Bond Amount (as defined in the Series Supplement) in
relation to the preceding Determination Date;
. the Principal Charge-Off in relation to the preceding Determination
Date;
. the Other Principal Amounts (as defined in the Series Supplement) in
relation to the preceding Determination Date;
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. the Principal Charge-Off Reimbursement in relation to the preceding
Determination Date;
. the Principal Charge-offs allocated to each class of Securities and
the Standby Redraw Facility Principal with effect from that
Distribution Date;
. the Principal Charge-off Reimbursement allocated to each class of
Securities and the Standby Redraw Facility Principal with effect
from that Distribution Date;
. the Class A-1 Note Factor and the Note Factor (as defined below)
for each other class of Securities
. if the Basis Swap (as defined in the Series Supplement) has
terminated, the Threshold Rate (as defined in the Series
Supplement) on the preceding Determination Date;
. the Interest Rate (as defined in the Series Supplement with respect
to the Class A-2 Notes, the Class B Notes and the Redraw Bonds)
applying to each class of Securities for that Accrual Period;
. scheduled payments of principal and prepayments of principal
received on the Mortgage Loans forming part of the Assets of the
Series Trust during the preceding Collections Period;
. aggregate outstanding principal balance of the Mortgage Loans
forming part of the Assets of the Series Trust being charged a
fixed rate of interest and the aggregate outstanding principal
balance of the Mortgage Loans forming part of the Assets of the
Series Trust being charged a variable rate of interest as at
opening of business on the preceding Determination Date;
. delinquency, mortgagee in possession and loss statistics, as
determined by the Manager, with respect to the Mortgage Loans
forming part of the Assets of the Series Trust as at opening of
business on the preceding Determination Date.
"Note Factor" in relation to a class of Securities and a Distribution
Date, means the aggregate of the Invested Amount of the class of
Securities less all principal payments on that class of Securities to be
made on that Distribution Date, divided by the aggregate initial Invested
Amount of that class of Securities.
11.4 Consents in Writing
All consents and approvals in these Conditions must be given in writing.
12. Limitation of liability of the Issuer
(a) The Issuer enters into the Transaction Documents, and issues the
Class A-1 Notes, only in its capacity as trustee of the Series
Trust and in no other capacity (except where the Transaction
Documents provide otherwise). A liability arising under or in
connection with the Class A-1 Notes, the Transaction Documents or
the Series Trust is limited to and can be enforced against the
Issuer only to the extent to which it can be satisfied out of the
assets and property of the Series Trust out of which the Issuer is
actually indemnified for the liability. This limitation of the
Issuer's liability applies despite any other provision of the
Transaction Documents (other than paragraph (c) below) and extends
to all liabilities and obligations of the Issuer in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to the Transaction Documents, the
Class A-1 Notes or the Series Trust.
(b) No person may sue the Issuer in respect of liabilities incurred by
the Issuer in its capacity as trustee of the Series Trust other
than as trustee of the Series Trust or seek the appointment of a
receiver (except under the Security Trust Deed), a liquidator, an
administrator or any similar person to the Issuer or prove in any
liquidation, administration or similar arrangements of or affecting
the Issuer (except in relation to the assets or property of the
Series Trust).
(c) The provisions of this Condition 12 will not apply to any
obligation or liability of the Issuer
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to the extent that it is not satisfied because under a Transaction
Document or by operation of law there is a reduction in the extent
of the Issuer's indemnification or exoneration out of the assets or
property of the Series Trust as a result of the Issuer's fraud,
negligence or wilful default.
(d) The Relevant Parties are responsible under the Transaction
Documents for performing a variety of obligations relating to the
Series Trust. No act or omission of the Issuer (including any
related failure to satisfy its obligations under the Transaction
Documents or the Class A-1 Notes) will be considered fraud,
negligence or wilful default of the Issuer for the purpose of
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 appointed by the Issuer under any Transaction Document
(other than a person whose acts or omissions the Issuer is liable
for in accordance with any Transaction Document) to fulfil its
obligations relating to the Series Trust or by any other act or
omission of a Relevant Party or any other such person.
(e) In exercising their powers under the Transaction Documents, each of
the Security Trustee, the Class A-1 Note Trustee and the Class A-1
Noteholders must ensure that no attorney, agent, delegate, receiver
or receiver and manager appointed by it in accordance with a
Transaction Document has authority to act on behalf of the Issuer
in a way which exposes the Issuer to any personal liability and no
act or omission of any such person will be considered fraud,
negligence or wilful default of the Issuer for the purpose of
paragraph (c).
(f) The Issuer is not obliged to enter into any commitment or
obligation under these Conditions or any other Transaction Document
(including incur any further liability) unless the Issuer's
liability is limited in a manner which is consistent with this
Condition 12 or otherwise
in a manner satisfactory to the Issuer in its absolute discretion.
"Relevant Parties" means each of the Manager, the Seller, the Servicer,
the Agent Bank, each Paying Agent, the Class A-1 Note Trustee and the
Hedge Providers (as those parties, which are not defined in these
Conditions, are defined in the Series Supplement).
The expression "fraud, negligence or wilful default" is to be construed in
accordance with the Security Trust Deed.
13. Governing law
The Class A-1 Notes and the Transaction Documents are governed by, and
will be construed in accordance with, the laws of the State of New South
Wales of the Commonwealth of Australia, except for the Underwriting
Agreement and each credit support annex to the Currency Swap Agreements
which are governed by, and will be construed in accordance with, New York
law. Each of the Issuer and the Manager has in the Class A-1 Note Trust
Deed irrevocably agreed for the benefit of the Class A-1 Note Trustee and
the Class A-1 Noteholders that the courts of the State of New South Wales
are to have non-exclusive jurisdiction to settle any disputes which may
arise out of or in connection with the Class A-1 Note Trust Deed and the
Class A-1 Notes.
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Agents
Principal Paying Agent: The Bank of New York, New York Branch
101 Barclay Street, 21W
New York, New York, 10286
Class A-1 Note Registrar: The Bank of New York, New York Branch
101 Barclay Street, 21W
New York, New York, 10286
or
c/- The Bank of New York, London Branch
48th Floor
One Canada Square
London E14 5AL
Agent Bank: The Bank of New York, New York Branch
101 Barclay Street, 21W
New York, New York, 10286
Paying Agent: The Bank of New York, London Branch
48th Floor
One Canada Square
London E14 5AL
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