<PAGE>
EXHIBIT 4.6
---------------------------------------------
DATED 2001
HOMESIDE MORTGAGE
SECURITIES TRUST 2001-1
NOTE TRUST DEED
PERPETUAL TRUSTEE COMPANY
LIMITED
("ISSUER TRUSTEE")
HOMESIDE GLOBAL MBS MANAGER,
INC.
("GLOBAL TRUST MANAGER)
and
THE BANK OF NEW YORK, NEW YORK
BRANCH
("NOTE TRUSTEE")
MALLESONS STEPHEN JAQUES
Solicitors
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Telephone (61 2) 9296 2000
Fax (61 2) 9296 3999
DX 113 Sydney
Ref: SRF:CD3
Mallesons Stephen Jaques
<PAGE>
(i)
-------------------------------------------------------------------------------
<TABLE>
<CAPTION>
CONTENTS NOTE TRUST DEED
-------------------------------------------------------------------------------
<S> <C> <C>
1 DEFINITIONS AND INTERPRETATION 1
Definitions Schedule 1
Interpretation 2
Appointment of the Note Trustee 2
Interpretation of provisions incorporated from TIA 2
2 COVENANT TO PAY 3
Covenant to Pay 3
Discharge 3
Payment after an Event of Default 4
Rate of Interest after an Event of Default 4
3 AMOUNT, FORM AND ISSUE OF CLASS A NOTES 4
Aggregate Amount and Denomination 4
Description and Form of Class A Notes 4
Initial issue as Class A Book-Entry Notes 4
Issue of Class A Definitive Notes 6
Indemnity of non-issue of Class A Definitive Notes 7
4 CLASS A NOTE REGISTER 7
Provision of Class A Noteholder Information 7
Class A Note Register Conclusive 8
5 STAMP DUTIES 8
6 APPLICATION OF MONEYS RECEIVED BY THE NOTE TRUSTEE 8
Declaration of Trust 8
Accumulation 9
Investment 9
7 COVENANTS 9
The Issuer Trustee and the Global Trust Manager 9
Covenants between Issuer Trustee and Global Trust Manager 12
8 ENFORCEMENT 13
Actions following Event of Default 13
Evidence of default 14
Overdue interest 14
Restrictions on enforcement 15
Liability for Enforcement 15
9 PROCEEDINGS 16
Acting only on direction 16
Security Trustee acting 16
Note Trustee alone entitled to act 17
10 REMUNERATION AND INDEMNIFICATION OF THE NOTE TRUSTEE 17
Normal remuneration 17
Extra remuneration 17
Expenses 18
<PAGE>
(ii)
-------------------------------------------------------------------------------
Indemnity 18
Continuing effect 18
11 SUPPLEMENTAL PROVISIONS 18
Liability to Account 18
Class A Notes 18
Advice 19
Note Trustee to assume performance 19
Resolutions of Class A Noteholders 19
Reliance 19
Certificate signed by Authorised Person 20
Signatures 20
Deposit of documents 20
Discretion 20
Agents 21
Delegation 21
Application to Court 21
Interests of Class A Noteholders 21
Assumption as to Prejudice 21
Ratings 22
Validity of Transaction Documents 22
Defect in Security 22
Class A Noteholders Responsible 22
Limit on Obligation 22
No liability for breach 23
Dispute or ambiguity 23
Loss to charged property 23
Forged Class A Notes 23
Confidentiality 23
Disclosure 23
Determinations conclusive 23
Currency conversion 24
Class A Notes held by the Issuer Trustee etc 24
Legal opinions 24
No liability for tax on payments 24
Powers additional 24
12 NOTE TRUSTEE LIABLE FOR NEGLIGENCE 24
13 WAIVER 25
Waiver 25
14 NOTE TRUSTEE NOT PRECLUDED FROM ENTERING INTO CONTRACTS 25
15 DUTIES OF NOTE TRUSTEE 25
Duties prior to an Event of Default 25
Duties following an Event of Default 26
Certain Limitations of Liability where Acting in Good Faith 26
Note Trustee Not Relieved of Liability for Negligence 26
Preferred Collection of Claims Against Issuer Trustee 26
Compliance with Section 310 of the TIA 26
Transaction Documents 27
16 AMENDMENT 27
<PAGE>
(iii)
-------------------------------------------------------------------------------
Amendment by Note Trustee 27
Amendments requiring consent of all Class A Noteholders 28
Compliance with TIA 28
No Current Rating Agency downgrade 28
Distribution of amendments 28
Amendments binding on Class A Noteholders 28
17 REPORTS 29
Reports by Note Trustee 29
Reports by Global Trust Manager 29
Restricted Securities 30
18 APPOINTMENT, RETIREMENT AND REMOVAL OF THE NOTE TRUSTEE 30
Appointment 30
Retirement of Note Trustee 30
Removal by Issuer Trustee 31
Note Trustee may Retire 31
Appointment of substitute note trustee by Class A Noteholders32
Successor to Note Trustee 32
Issuer Trustee and Global Trust Manager cannot be appointed 33
No Limitation of TIA 33
19 CLASS A NOTES HELD IN CLEARING SYSTEMS AND NOTICES 33
Class A Notes held in Clearing Systems 33
20 CURRENCY INDEMNITY 33
Currency of account and payment 33
Extent of discharge 33
Indemnity 34
Indemnity separate 34
21 REPRESENTATIONS AND WARRANTIES 34
By the Issuer Trustee 34
By the Global Trust Manager 35
By the Note Trustee 36
22 NOTICES 36
Notices 36
Initial addresses 37
Time effective 37
Receipt 37
23 LIMITED RECOURSE 38
24 TERMINATION 38
25 TRUST INDENTURE ACT 38
Certificates and opinions 38
Undertaking for Costs 40
Exclusion of section 316(a)(1) 40
<PAGE>
(iv)
-------------------------------------------------------------------------------
Unconditional rights of Class A Noteholders to receive
principal and interest 40
Conflict with Trust Indenture Act 41
26 MISCELLANEOUS 41
Certificate 41
Exercise of rights 41
Waiver and variation 41
Supervening legislation 41
Approvals and consent 41
Remedies cumulative 42
Indemnities 42
Time of the essence 42
Receipts 42
Acknowledgment 42
Disclosure of information 42
Rights cumulative 42
Signatures 43
Meetings 43
27 GOVERNING LAW 43
Governing Law 43
Submission to jurisdiction 43
Service 43
28 COUNTERPARTS 43
SCHEDULE 1 FORM OF CLASS A NOTE 44
SCHEDULE 2 PROVISIONS FOR MEETINGS OF CLASS A NOTEHOLDERS 51
</TABLE>
<PAGE>
1
-------------------------------------------------------------------------------
HOMESIDE MORTGAGE SECURITIES TRUST 2001-1
NOTE TRUST DEED
DATE: 2001
PARTIES: PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001 007) having
its registered office at Level 7, 39 Hunter Street,
Sydney NSW 2000 in its capacity as trustee of the
HomeSide Mortgage Securities Trust 2001-1 ("ISSUER
TRUSTEE")
HOMESIDE GLOBAL MBS MANAGER, INC. of 2301
Baymeadows Way, Jacksonville, Florida 32256, United
States of America ("GLOBAL TRUST MANAGER")
THE BANK OF NEW YORK, NEW YORK BRANCH, a New York
banking corporation acting through its office at 101
Barclay Street, 21W, New York, New York 10286 ("NOTE
TRUSTEE" which expression includes all persons being
the trustee of this Note Trust Deed)
RECITALS:
A. The Issuer Trustee wishes to issue, at the direction
of the Global Trust Manager, the Class A Notes.
B. The Note Trustee has agreed to act as Note Trustee
for the Class A Noteholders on the terms set out in
this deed.
C. 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.
OPERATIVE PROVISIONS:
1 DEFINITIONS AND INTERPRETATION
--------------------------------------------------------------------------------
DEFINITIONS SCHEDULE
1.1 The following words have these meanings unless the
contrary intention appears:
DEFINITIONS SCHEDULE means the deed called "HomeSide
Mortgage Securities Trusts Definitions Schedule"
dated 3 January 2001 and made between the companies
described in schedule 1 to that deed.
SUPPLEMENTAL DEED means the deed entitled "HomeSide
Mortgage Securities Trust 2001-1 Supplemental Deed"
dated on or about the date of this deed between the
Issuer Trustee, the Global Trust Manager and others.
TRUST means the HomeSide Mortgage Securities Trust
2001-1.
1.2 Except to the extent to which words and phrases are
otherwise defined in this deed, words and phrases
defined in the Definitions Schedule and the
Supplemental Deed in respect of the Trust shall bear
the same meaning in this deed. In the event of any
inconsistency between a definition in this deed and a
definition in the Definitions Schedule, the
definitions
<PAGE>
2
-------------------------------------------------------------------------------
in this deed will prevail. In the event of any
inconsistency between a definition in the
Definitions Schedule and a definition in the
Supplemental Deed, the definition in the
Supplemental Deed will prevail. Any amendment to
the Definitions Schedule will only apply to this
deed if made in accordance with this deed.
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions
Schedule are incorporated into this deed as if those
clauses were set out in full.
INTERPRETATION
1.4 This deed binds the Issuer Trustee, the Global Trust
Manager, the Note Trustee and the Class A Noteholders
of each Trust.
1.5 By executing this deed, the Note Trustee agrees that
terms used in any Transaction Document have the
meaning given to them in the Definitions Schedule.
APPOINTMENT OF THE NOTE TRUSTEE
1.6 The Note Trustee:
(a) is appointed to act as trustee on behalf of
the Class A Noteholders on the terms and
conditions of this deed; and
(b) acknowledges and declares that it:
(i) holds the sum of $10 received on
the date of this deed; and
(ii) will hold the benefit of the
obligations of the Issuer Trustee
and the Global Trust Manager under
this deed and under other
Transaction Documents given in
favour of the Note Trustee,
in each case, on trust for each Class A
Noteholder, in accordance with the terms and
conditions of this deed.
INTERPRETATION OF PROVISIONS INCORPORATED FROM TIA
1.7 Where a provision of the TIA is incorporated into
this deed in accordance with the TIA (as described in
clause 25.5) the following terms used in that
provision have the following meanings in this deed:
"DEFAULT" means an Event of Default.
"INDENTURE SECURITIES" means the Class A Notes.
"INDENTURE SECURITY HOLDER" means the Class A
Noteholder.
"INDENTURE TO BE QUALIFIED" means this deed.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means
the Note Trustee.
"OBLIGOR UPON THE INDENTURE SECURITIES" means the
Issuer Trustee.
"SEC" has the meaning given to that term in the
Definitions Schedule.
<PAGE>
3
-------------------------------------------------------------------------------
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 SEC, will have the
meaning assigned to it by such definitions. Any term
or expression that is used in both:
(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 COVENANT TO PAY
--------------------------------------------------------------------------------
COVENANT TO PAY
2.1 The Issuer Trustee at the direction of the Global
Trust Manager shall on any date when any Class A Note
becomes due to be redeemed, in whole or in part,
unconditionally pay to or to the order of the Note
Trustee in accordance with, and subject to, the terms
of the Transaction Documents in same day funds the
principal of such Class A Note becoming due on that
date and shall (subject to the Class A Note
Conditions) until payment in whole of the principal
of the Class A Note (both before and after judgment)
unconditionally pay to or to the order of the Note
Trustee interest on the Invested Amount of the Class
A Note as set out in the Class A Note Conditions
(subject to clause 2.4), provided that:
(a) payment of any sum due in respect of the
Class A Notes made to a Paying Agent as
provided in the Agency Agreement (unless
notice in accordance with clause 3 of the
Agency Agreement has been given) or to the
Note Trustee in accordance with this deed
shall to that extent, satisfy such
obligation except to the extent that there
is failure in the Paying Agent's or the Note
Trustee's (as the case may be) subsequent
payment to the relevant Class A Noteholders
under the Class A Note Conditions and the
Agency Agreement; and
(b) a payment made after the due date shall be
deemed to have been made when the full
amount due has been received by the Paying
Agent or the Note Trustee and notice to that
effect has been given to the Class A
Noteholders, except to the extent that there
is failure in the Paying Agent's or the Note
Trustee's (as the case may be) subsequent
payment to the relevant Class A Noteholders
under the Class A Note Conditions and the
Agency Agreement.
DISCHARGE
2.2 Subject to clause 2.1, any payment to be made in
respect of the Class A Notes by the Issuer Trustee or
the Note Trustee may be made as provided in the Class
A Note Conditions and any payment so made will
(subject to clause 2.1) to that extent be a good
discharge to the Issuer Trustee or
<PAGE>
4
-------------------------------------------------------------------------------
the Note Trustee, as the case may be.
PAYMENT AFTER AN EVENT OF DEFAULT
2.3 At any time after an Event of Default has occurred,
the Note Trustee may take the actions referred to in
clause 3 of the Agency Agreement.
RATE OF INTEREST AFTER AN EVENT OF DEFAULT
2.4 If the Class A Notes become immediately due and
payable, the rate of interest payable in respect of
them shall continue to be calculated by the
Calculation Agent in accordance with the Class A Note
Conditions (with consequential amendments as
necessary) except that the rate of interest need not
be published unless the Note Trustee otherwise
requires. The first period in respect of which
interest shall be so calculable shall commence on the
expiry of the Interest Period during which the Class
A Notes become so repayable.
3 AMOUNT, FORM AND ISSUE OF CLASS A NOTES
--------------------------------------------------------------------------------
AGGREGATE AMOUNT AND DENOMINATION
3.1 The Class A Notes will be issued in minimum
denominations of US$100,000 each and multiples of
US$10,000 in excess of that amount.
DESCRIPTION AND FORM OF CLASS A NOTES
3.2 (a)
(a) (FORM OF CLASS A NOTES): The Class A Notes
must be serially numbered and typewritten or
printed (in the case of Class A Book-Entry
Notes) or typewritten, printed, lithographed
or engraved or produced by any combination
of these methods and with or without steel
borders (in the case of Class A Definitive
Notes) in the form or substantially in the
form set out in Schedule 1.
(b) (SIGNING OF CLASS A NOTES): Each Class A
Note must be signed by an Authorised Person
or other duly appointed attorney or
representative of the Issuer Trustee on
behalf of the Issuer Trustee.
(c) (AUTHENTICATION OF CLASS A NOTES): Each
Class A Note must be authenticated by an
Authorised Person or other duly appointed
representative of the Note Trustee on behalf
of the Note Trustee. No Class A Note will be
valid for any purpose unless and until so
authenticated.
(d) (DATING OF CLASS A NOTES): The Class A Notes
must be dated the date of their
authentication.
INITIAL ISSUE AS CLASS A BOOK-ENTRY NOTES
3.3 (a)
(a) (ISSUE AS CLASS A BOOK-ENTRY NOTES): The
Class A Notes will upon issue be represented
by one or more book-entry notes initially
registered in accordance with clause 4 in
the name of Cede &
<PAGE>
5
-------------------------------------------------------------------------------
Co, as nominee of DTC as the initial
Depository.
(b) (DELIVERY OF CLASS A BOOK-ENTRY NOTES): The
Issuer Trustee must on the date of this deed
deliver or procure the delivery of Class A
Book-Entry Notes to the Principal Paying
Agent as agent for the Depository.
(c) (RIGHTS ATTACHING TO CLASS A BOOK-ENTRY
NOTES): A Class A Book-Entry Note executed
and authenticated in accordance with clause
3.2 will constitute binding and valid
obligations of the Issuer Trustee. Until a
Class A Book-Entry Note has been exchanged
pursuant to this deed, it shall in all
respects be entitled to the same benefits as
a Class A Definitive Note except as
specifically provided to the contrary in
this deed or the provisions of the Class A
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 Class A Book-Entry Note and any
other matters to be carried out by the
relevant parties upon exchange of any Class
A Book-Entry Note will be made in accordance
with the provisions of the Class A
Book-Entry Notes and the normal practice of
the Depository's nominee, the Class A Note
Registrar and the rules and procedures of
the Depository from time to time.
(e) (DEALINGS WITH DEPOSITORY): Unless and until
the Class A Definitive Notes have been
issued to a Class A Note Owner pursuant to
clause 3.4, the following provisions apply:
(i) the Issuer Trustee, the Global
Trust Manager, each Agent and the
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 Notes and
the giving of instructions or
directions under this deed) as the
absolute holder of the Class A
Notes and none of the Issuer
Trustee, the Global Trust Manager,
any Agent or the Note Trustee will
be affected by notice to the
contrary;
(ii) whenever a notice or other
communication to the Class A
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 Note
Owners;
(iii) the rights of Class A Note Owners
may be exercised only through the
Depository and are limited to those
established by law and agreements
between such Class A Note Owners
and the Depository and/or the
Clearing Agency Participants;
(iv) the Issuer Trustee, the Global
Trust Manager, each Agent and
<PAGE>
6
-------------------------------------------------------------------------------
the 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 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.
ISSUE OF CLASS A DEFINITIVE NOTES
3.4 (a)
(a) (EVENTS LEADING TO EXCHANGE): If:
(i) the Depository advises the Note
Trustee in writing that the
Depository is no longer willing or
able properly to discharge its
responsibilities with respect to
the Class A Notes and the Global
Trust Manager is unable to locate a
qualified successor to act as
Depository;
(ii) the Global Trust Manager (at its
option) advises the Issuer Trustee,
the Note Trustee, the Paying Agents
and the Depository in writing the
Class A Definitive Notes are to be
issued in replacement of the Class
A Book-Entry Notes; or
(iii) an Event of Default has occurred
and is subsisting and the Class A
Note Owners representing beneficial
interests aggregating to at least a
majority of the aggregate Invested
Amount of the Class A Notes advise
the Issuer Trustee through the
Depository in writing that the
continuation of a book entry system
is no longer in the best interests
of the Class A Note Owners,
then the Issuer Trustee, on the direction of
the Global Trust Manager, must within 30
days of such event instruct the Depository
to notify all of the appropriate Class A
Note Owners of the occurrence of any such
event and of the availability of Class A
Definitive Notes to such Class A Note Owners
requesting the same. The Note Trustee must
promptly advise the Issuer Trustee and the
Global Trust Manager upon the occurrence of
an event referred to in clause 3.4(a)(i) and
the Issuer Trustee must promptly advise the
Note Trustee and the Global Trust Manager
upon the occurrence of an event referred to
in clause 3.4(a)(iii).
(b) (EXCHANGE FOR CLASS A DEFINITIVE NOTES):
Upon the surrender to the Issuer Trustee of
Class A Book-Entry Notes by the Depository
following an instruction of the Issuer
Trustee pursuant to clause 3.4(a), and the
delivery by the Depository of the relevant
registration instructions to the Issuer
Trustee, the Issuer Trustee must issue and
execute and the Note Trustee must
authenticate and deliver Class A Definitive
Notes of the
<PAGE>
7
-------------------------------------------------------------------------------
same aggregate Invested Amount as those
Class A Book-Entry Notes, replacing those
Class A Book-Entry Notes, in accordance
with clause 3.2 and the instructions of
the Depository. None of the Note Trustee,
the Global Trust Manager, the Issuer
Trustee 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 other Class A
Note Owner will be entitled to receive a
Class A Definitive Note representing such
Class A Note Owner's interest in a Class A
Note, except as provided in this clause 3.4.
INDEMNITY OF NON-ISSUE OF CLASS A DEFINITIVE NOTES
3.5 If the Issuer Trustee is required to issue Class A
Definitive Notes following an event specified in
clause 3.4 but fails to do so within 30 days of
surrender to the Issuer Trustee of the Class A
Book-Entry Notes in accordance with clause 3.4 then
the Issuer Trustee must, subject to clause 23,
indemnify the Note Trustee, the Class A Noteholders
and Class A Note Owners, and keep them indemnified,
against any loss or damage incurred by any of them if
the amount received by the Note Trustee, the Class A
Noteholders or Class A Note Owners, respectively, is
less than the amount that would have been received
had Class A Definitive Notes been issued. If the
Issuer Trustee 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 Note Trustee, the Class A Noteholders and the
Class A Note Owners are entitled to sue the Issuer
Trustee for specific performance, injunctive relief
or other equitable relief to enforce the Issuer
Trustee's obligations under clause 3.4.
4 CLASS A NOTE REGISTER
--------------------------------------------------------------------------------
MAINTENANCE OF CLASS A NOTE REGISTER
4.1 The Note Trustee must procure that the Class A Note
Register is maintained, and that Class A Notes are
transferred, exchanged, replaced, redeemed and
cancelled, all in accordance with the provisions of
the Class A Notes (including the Class A 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 Note Registrar under the
Agency Agreement, the Note Trustee must act as the
Class A Note Registrar and perform all of the
obligations of the Class A Note Registrar contained
in the Agency Agreement.
PROVISION OF CLASS A NOTEHOLDER INFORMATION
4.2 (PROVISION OF INFORMATION): The Issuer Trustee must
provide or procure the provision to the Note Trustee
(if the Note Trustee is not the Class A Note
Registrar) at intervals of not more than 6 months
(commencing as from the Closing Date), and at such
other times as the Note Trustee may request in
writing, all information in the possession or control
of the Class A Note Registrar as to the names and
addresses of the Class
<PAGE>
8
-------------------------------------------------------------------------------
A Noteholders, provided that the Issuer Trustee
will not have any obligations pursuant to this
clause 4.2 while the Class A Notes are all Class A
Book-Entry Notes.
4.3 (NOTE TRUSTEE'S OBLIGATIONS): The Note Trustee must
preserve, in as current form as is reasonably
practicable, the names and addresses of the Class A
Noteholders provided to it pursuant to clause 4.2 or
otherwise received by it in any capacity and must
comply with its obligations pursuant to section
312(b) of the TIA.
4.4 (PROTECTION): The Issuer Trustee, the Note Trustee
and the Class A Note Registrar will have the
protection of section 312(c) of the TIA in relation
to the disclosure of information in accordance with
clause 4.2 and 4.3.
CLASS A NOTE REGISTER CONCLUSIVE
4.5 A Class A Note is not a certificate of title and the
Class A Note Register is the only conclusive evidence
of title to the Class A Notes.
5 STAMP DUTIES
--------------------------------------------------------------------------------
The Issuer Trustee shall pay any stamp, issue,
documentary, registration or other duty or tax duties
including interest and penalties, payable in the
Commonwealth of Australia, the Australian Capital
Territory, the United States of America and the
United Kingdom in respect of the creation, issue and
offering of the Class A Notes and the execution or
delivery of this deed and each other Transaction
Document. Subject to clause 23, the Issuer Trustee
shall also indemnify the Note Trustee and the Class A
Noteholders from and against all stamp, issue,
documentary and other registration taxes paid by any
of them in any jurisdiction in connection with any
action taken by or on behalf of the Note Trustee or
the Class A Noteholders and Class A Note Owners to
enforce the Issuer Trustee's obligations under this
deed or the Class A Notes.
6 APPLICATION OF MONEYS RECEIVED BY THE NOTE TRUSTEE
--------------------------------------------------------------------------------
DECLARATION OF TRUST
6.1 All moneys received by the Note Trustee in respect of
the Class A Notes or amounts payable under this deed
shall, despite any appropriation of all or part of
them by the Issuer Trustee, be held by the Note
Trustee on trust to apply them (subject to clause
6.2):
(a) first, in payment of all costs, charges,
expenses and liabilities incurred by the
Note Trustee (including all fees and
remuneration payable to it) in carrying out
its functions under this deed;
(b) secondly, pari passu and rateably in payment
of any amounts owing in respect of the Class
A Notes; and
(c) thirdly, in payment of any balance to the
Issuer Trustee for distribution in
accordance with the Master Trust Deed and
the
<PAGE>
9
-------------------------------------------------------------------------------
Supplemental Deed in respect of the Trust.
If the Note Trustee holds any moneys in respect of
Class A Notes which have become void or in respect
of which claims have become prescribed, the Note
Trustee shall hold them on these trusts.
ACCUMULATION
6.2 If the amount of the moneys at any time (other
than on a Payment Date) available for payment in
respect of the Class A Notes under clause 6.1 is
less than 10 per cent of the then Invested Amount
of the Class A Notes and upon receipt of a written
direction from the Global Trust Manager, the Note
Trustee may invest such moneys in Authorised
Investments denominated in US Dollars until the
next Payment Date. In the event the Global Trust
Manager does not provide written instructions to
the Note Trustee within 5 days of receipt of
funds, the Note Trustee may at its discretion,
invest the funds in units of money market funds,
including money market funds managed or advised by
the Note Trustee or an affiliate thereof, having
the highest possible rating by a recognised rating
agency in the US. The Note Trustee may retain such
investments and accumulate the income from them
until the earlier of the next Payment Date or when
the investments and the accumulations, together
with any other funds for the time being under its
control and available for such payment, amount to
at least 10 per cent of the Invested Amount of the
Class A Notes then outstanding and then such
investments, accumulations and funds (after
deduction of, or provision for, any applicable
taxes) shall be applied as specified in clause 6.1.
INVESTMENT
6.3 Moneys held by the Note Trustee may be invested in
its name or under its control in Authorised
Investments in accordance with clause 6.2 or
deposited in its name or under its control at such
bank or other financial institution which has the
Required Credit Rating in US$. If that bank or
institution is the Note Trustee or a subsidiary,
holding or associated company of the Note Trustee,
it need only account for an amount of interest
equal to the largest amount of interest payable by
it on such a deposit to an independent customer.
The Note Trustee may at any time vary or transpose
any such investments or assets, and shall not be
responsible for any resulting loss, whether by
depreciation in value or otherwise.
7 COVENANTS
--------------------------------------------------------------------------------
THE ISSUER TRUSTEE AND THE GLOBAL TRUST MANAGER
7.1 So long as any Class A Note is outstanding, each of
the Issuer Trustee and the Global Trust Manager
severally covenants in favour of the Note Trustee
that it:
(a) (CLASS A NOTES) will comply with all of its
obligations under the Class A Notes (as if
the provisions of the Class A Notes,
including the Class A Note Conditions, were
set out in full in this deed);
(b) (TRANSACTION DOCUMENTS):
<PAGE>
10
-------------------------------------------------------------------------------
(i) will comply with, perform and
observe all of its material
obligations under all the other
Transaction Documents to which it
is a party; and
(ii) will enforce its rights under the
Transaction Documents in a manner
consistent with its respective
obligations and duties under the
Transaction Documents;
(c) (NOTICE OF EVENT OF DEFAULT) will notify the
Note Trustee in writing promptly on becoming
aware of the occurrence of any Event of
Default, Global Trust Manager's Default,
Servicer Termination Event, Title Perfection
Event or Issuer Trustee Default;
(d) (CERTIFICATE OF COMPLIANCE) will provide to
the Note Trustee within 120 days after the
end of each financial year of the Trust
(commencing on the financial year ending on
30 September 2001):
(i) in accordance with section
314(a)(4) of the TIA, a 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
Trustee, the Global Trust Manager,
as the case may be, in respect of
the Trust during that year and of
the Issuer Trustee's, Global Trust
Manager's, as the case may be,
compliance with all conditions,
covenants and other provisions
under this deed (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 7.1(d)(i)) from an
Authorised Person of the Issuer
Trustee, the Global Trust 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 7.1(d)(i) or
since the provision of the most
recent certificate under this
clause 7.1(d)(ii) (in the case of
any other such certificate), an
Event of Default, Title Perfection
Event, Servicer Termination Event,
Global Trust Manager's Default or
Issuer Trustee Default has occurred
and, if any such event has
occurred, giving reasonable details
of that event;
(e) (NOTICES TO CLASS A NOTEHOLDERS) will send
to the Note Trustee the form of each notice
to be given to Class A Noteholders and Class
A Note Owners and, once given, two copies of
each such notice, such notice to be in a
form previously approved by the Note
Trustee;
<PAGE>
11
-------------------------------------------------------------------------------
(f) (FURTHER ACTS) will so far as permitted by
applicable law, do such further things as
may be necessary in the opinion of the Note
Trustee to give effect to this deed;
(g) (NOTICE OF LATE PAYMENT) will promptly upon
request by the Note Trustee, give notice to
the Class A Noteholders of any unconditional
payment to the Paying Agent or the Note
Trustee of any sum due in respect of the
Class A Notes made after the due date for
such payment;
(h) (LISTING) will, in the case of the Global
Trust Manager only, use all reasonable
endeavours to maintain the listing of the
Class A Notes on the Luxembourg Stock
Exchange but, if it is unable to do so,
having used such endeavours, or if the
maintenance of such listing is agreed by the
Note Trustee to be unduly onerous and the
Note Trustee is satisfied that the interests
of the Class A Noteholders would not be
thereby materially prejudiced, instead use
all reasonable endeavours to obtain and
maintain a listing of the Class A Notes on
another stock exchange previously approved
in writing by the Note Trustee and, if
necessary, following that quotation or
listing enter into a deed supplemental to
this deed to effect any consequential
amendments to this deed necessary to comply
with the requirements of any such stock
exchange;
(i) (CHANGE IN AGENTS) will give at least 14
days' prior notice to the Class A
Noteholders of any future appointment,
resignation or removal of an Agent or of any
change by an Agent of its Specified Office
and not make any such appointment or removal
without the Note Trustee's prior written
approval;
(j) (PROVISION OF LEGAL OPINIONS) will procure
the delivery of legal opinions addressed to
the Note Trustee in accordance with section
314(b) of the TIA:
(i) on the Closing Date, a legal
opinion either stating that the
Master Security Trust Deed and the
Deed of Charge in respect of the
Trust has been properly recorded
and filed so as to make effective
the Security Interest intended to
be created by the Deed of Charge in
respect of the Trust, 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 financial year of the Trust
(commencing on the financial year
ending in 30 September 2001), a
legal opinion either stating that
such action has been taken with
respect to the recording, filing,
re-recording (if any) and re-filing
(if any) of the Deed of Charge in
respect of the Trust as is
necessary to maintain the Security
Interest created by such Deed of
Charge, and reciting the details of
such action or stating that no such
action, is necessary to maintain
such Security Interest;
<PAGE>
12
-------------------------------------------------------------------------------
(k) (CHANGE OF GLOBAL TRUST MANAGER) will, in
the case of the Issuer Trustee only,
promptly notify the Note Trustee of any
retirement or replacement of the Global
Trust Manager pursuant to clause 23 of the
Master Trust Deed and of the appointment of
a replacement Global Trust Manager;
(l) (CLASS A NOTES HELD BY ISSUER TRUSTEE ETC)
will, in the case of the Issuer Trustee
only, send to the Note Trustee as soon as
practicable after being so requested by the
Note Trustee a certificate of the Issuer
Trustee signed by an Authorised Person of
the Issuer Trustee stating the number of
Class A Notes held or issued at the date of
such certificate by or on behalf of the
Issuer Trustee;
(m) (BOOKS OF ACCOUNT) will, in the case of the
Issuer Trustee only, keep proper books of
account and, at any time after an Event of
Default has occurred or if the Note Trustee
reasonably believes that such an event has
occurred, so far as permitted by applicable
law, allow the Note Trustee and anyone
appointed by it, access to the books of
account of the Issuer Trustee at all times
during normal business hours; and
(n) (FINANCIAL STATEMENTS ETC) will, in the case
of the Issuer Trustee only, send to the Note
Trustee at the time of their issue and in
the case of annual financial statements in
any event within 180 days of the end of each
financial year two copies in English of the
Trust's accounts and every notice, statement
or circular issued, or which legally or
contractually should be issued, to the
members or creditors (or any class of them)
of the Trust in their capacity as such.
COVENANTS BETWEEN ISSUER TRUSTEE AND GLOBAL TRUST MANAGER
7.2 (a)
(a) (OBLIGATIONS OF GLOBAL TRUST MANAGER):
Without limiting any other obligations of
the Global Trust Manager pursuant to any
Transaction Document, the Global Trust
Manager covenants in favour of the Issuer
Trustee to prepare and submit to the Issuer
Trustee all documents required to be filed
with or submitted to the Commission or the
Luxembourg Stock Exchange by the Issuer
Trustee in relation to the Class A Notes,
the 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 Global Trust Manager to perform or
ensure the performance by the Issuer Trustee
of its obligations under the TIA, the
Exchange Act or the listing rules of the
Luxembourg Stock Exchange in relation to the
Class A Notes, the Trust or this deed. No
breach by the Issuer Trustee of any
obligation under the TIA, the Exchange Act,
the listing rules of the Luxembourg Stock
Exchange or this deed will be considered to
be fraudulent, negligent or breach of trust
for the purposes of clause 23.3 to the
extent that it results from a breach by the
Global Trust Manager of this clause 7.2(a).
<PAGE>
13
-------------------------------------------------------------------------------
(b) (OBLIGATION OF ISSUER TRUSTEE): Subject to
compliance by the Global Trust Manager with
clause 7.2(a), the Issuer Trustee covenants
in favour of the Global Trust Manager to
sign all documents and do all things
reasonably requested by the Global Trust
Manager in relation to the compliance by the
Issuer Trustee or the Global Trust Manager
of its obligations under the TIA, the
Exchange Act or the listing rules of the
Luxembourg Stock Exchange in relation to the
Class A Notes, the Trust or this deed.
8 ENFORCEMENT
------------------------------------------------------------------------------
ACTIONS FOLLOWING EVENT OF DEFAULT
8.1 If an Event of Default has occurred in respect of the
Trust, the Note Trustee must:
(a) (NOTIFY CLASS A NOTEHOLDERS): notify each
Class A Noteholder and such other persons as
are specified in section 313(c) of the TIA
of the Event of Default in respect of the
Trust, as the case may be, within 90 days,
or such shorter period as may be required by
the rules of any stock exchange on which the
Class A Notes are listed, after the
occurrence of the Event of Default in
respect of the Trust provided that, except
in the case of a default in payment of
principal or interest on any Class A Note,
the 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 Persons in
good faith determine that withholding the
notice is in the interest of Class A
Noteholders;
(b) (DETERMINE WHETHER TO SEEK DIRECTIONS): if a
meeting of Voting Secured Creditors is to be
held under the Master Security Trust Deed,
determine whether it proposes to seek
directions from Class A 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 Noteholders; and
(c) (VOTE AT MEETING OF VOTING SECURED
CREDITORS): subject to clause 8.5, vote at
any meeting of Voting Secured Creditors held
under the Master Security Trust Deed. Any
such votes by the Note Trustee must be
exercised for or against any proposal at the
meeting of Voting Secured Creditors in the
same proportion as that of the aggregate
Invested Amounts of the Class A Notes held
by Class A Noteholders who have directed the
Note Trustee to vote for or against such a
proposal.
8.2 In addition to the above provisions of this clause 8,
and for avoidance of doubt, the Note Trustee also has
the power, subject to clause 23 and to the Master
Security Trust Deed:
(a) (ENFORCE FOLLOWING DEFAULT) in the event of
a default in repayment of the principal or
payment of interest by the Issuer Trustee in
<PAGE>
14
-------------------------------------------------------------------------------
respect of any Class A 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 the Note Trustee, against the Issuer
Trustee upon the Class A Notes for the whole
amount of such principal and interest
remaining unpaid;
(b) (FILE PROOFS) to file such proofs of claim
and other payments or documents as may be
necessary or advisable in order to have the
claims of the Note Trustee and the Class A
Noteholders allowed in any judicial
proceedings in relation to the Issuer
Trustee upon the Class A Notes, the Secured
Creditors in relation to the Trust or the
Assets of the 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 in respect of the Trust and is
subsisting, to proceed to protect and
enforce its rights and the rights of the
Class A Noteholders by such appropriate
judicial proceedings as the Note Trustee
deems most effectual to protect and enforce
any such rights, whether for the performance
of any provision of this deed or in aid of
the exercise of any power under this deed or
to enforce any other proper remedy,
but nothing in this clause 8.2 is to be construed
as requiring the Note Trustee to take any such
action unless it has been directed to do so by the
Class A Noteholders and has been indemnified or
put in funds to its satisfaction by the Class A
Noteholders against any liability that it may
incur as a result of taking such action.
EVIDENCE OF DEFAULT
8.3 If the Security Trustee or the Note Trustee takes any
action against the Issuer Trustee to enforce any of
the provisions of any Class A Notes or this deed,
proof that:
(a) as regards any Class A Note, the Issuer
Trustee has not paid any principal or
interest due in respect of that Class A Note
shall (unless the contrary is proved) be
sufficient evidence that the Issuer Trustee
has not paid that principal or interest on
all other Class A Notes in respect of which
the relevant payment is then due; and
(b) as regards any Interest Amount, the Issuer
Trustee has not paid any interest due in
respect of that Interest Amount shall
(unless the contrary is proved) be
sufficient evidence that the Issuer Trustee
has not paid that interest on all other
Interest Amounts in respect of which the
relevant payment is then due.
OVERDUE INTEREST
8.4 The rates of interest payable in respect of any Class
A Note which has become due and repayable in full and
which has not been repaid shall be
<PAGE>
15
-------------------------------------------------------------------------------
calculated at three-monthly intervals, commencing
on the expiry of the Interest Period during which
the Class A Note became due and repayable in
accordance with the provisions of Condition 6.4,
except that no notices need be given to Class A
Noteholders in relation to that interest.
RESTRICTIONS ON ENFORCEMENT
8.5 If any of the Class A Notes remain outstanding and
are due and payable otherwise than by reason of a
default in payment of any amount due on the Class A
Notes, the Note Trustee must not vote under the
Master Security Trust Deed to, or otherwise direct
the Security Trustee to, dispose of the Secured
Property in respect of the Trust or consent to the
Security Trustee so disposing unless either:
(a) a sufficient amount would be realised to
discharge in full all amounts owing to the
Class A Noteholders and any other amounts
payable by the Issuer Trustee in respect of
the Trust ranking in priority to or PARI
PASSU with the Class A Notes; or
(b) the Note Trustee is of the opinion, reached
after considering at any time and from time
to time the advice of a merchant bank or
other financial adviser selected by the Note
Trustee, that the cash flow receivable by
the Issuer Trustee (or the Security Trustee
under the Master 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 Trustee, to discharge in full in due
course all the amounts referred to in
paragraph (a).
LIABILITY FOR ENFORCEMENT
8.6 Subject to clauses 12, 15.3, 15.5 and the mandatory
provisions of the TIA, the 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 Master Security Trust Deed in respect of
the Trust, of any Secured Property in respect of the
Trust or any other property which is charged to the
Security Trustee in respect of or relating to the
obligations of the Issuer Trustee or the Class A
Notes or relating in any way to the Secured Property
except where caused by its fraud, negligence or
breach of trust. Without limitation, the Note Trustee
shall 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 8.5.
8.7 The Note Trustee will not be liable for any loss,
expense or liability which may be suffered as a
result of any assets secured by the Master Security
Trust Deed and the Deed of Charge in respect of the
Trust, the Secured Property or any deeds or documents
of title thereto being uninsured or inadequately
insured or by clearing organisations or their
operator or by any person on behalf of the Security
Trustee or the Note Trustee, except where caused by
its fraud, negligence or breach of trust.
8.8 In giving any direction to the Security Trustee under
this deed or the Master Security Trust Deed, the Note
Trustee shall not be obliged to ensure that the
Security Trustee complies with such direction and
will not be
<PAGE>
16
-------------------------------------------------------------------------------
liable for failure by the Security Trustee so to
comply.
9 PROCEEDINGS
------------------------------------------------------------------------------
ACTING ONLY ON DIRECTION
9.1 (a)
(a) Subject to paragraph (b), the Note Trustee
may but shall not be bound to vote under the
Master Security Trust Deed and the Deed of
Charge in respect of the Trust, or otherwise
direct the Security Trustee under the Master
Security Trust Deed and the Deed of Charge
in respect of the Trust, or take any
proceedings, actions or steps under, or any
other proceedings pursuant to or in
connection with, the Master Security Trust
Deed and the Deed of Charge in respect of
the Trust, this deed or any Class A Notes
unless directed or requested to do so by an
Extraordinary Resolution of the Class A
Noteholders and then only if the Note
Trustee is indemnified to its satisfaction
against all actions, proceedings, claims and
demands to which it may render itself liable
and all costs, charges, damages and expenses
which it may incur by so doing.
(b) So long as any of the Class A Notes remain
outstanding, the Note Trustee shall not, and
shall not be bound to, act at the request or
direction of any Class A Noteholders other
than the Class A Noteholders under paragraph
(a) unless:
(i) so to do would not in its opinion
be materially prejudicial to the
interests of the Class A
Noteholders; or
(ii) the relevant action is sanctioned
by an Extraordinary Resolution of
the Class A Noteholders.
(c) If the Note Trustee is entitled to vote at
any meeting of the Voting Secured Creditors
on behalf of the Class A Noteholders, the
Note Trustee must vote in accordance with
the directions of the Class A Noteholders
and otherwise in its absolute discretion. In
acting in accordance with the directions of
the Class A Noteholders, the 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 Noteholders who have
directed the Note Trustee to vote for or
against that proposal.
SECURITY TRUSTEE ACTING
9.2 Only the Security Trustee may enforce the provisions
of the Master Security Trust Deed and the Deed of
Charge in respect of the Trust and neither the Note
Trustee nor any Class A Noteholder is entitled to
proceed directly against the Issuer Trustee to
enforce the performance of any of the provisions of
the Deed of Charge, the Master Security Trust Deed or
the Class A Notes (including the Class A Note
Conditions) except that if the Security Trustee,
having become bound to take steps and/or to proceed
under the Master Security Trust Deed and the Deed of
<PAGE>
17
-------------------------------------------------------------------------------
Charge in respect of the Trust, fails to do so within
7 Business Days and such failure is continuing, the
Note Trustee failing which the Class A Noteholders
may proceed directly against the Issuer Trustee but
then only if and to the extent the Note Trustee,
failing which the Class A Noteholders, are able to do
so under Australian law.
NOTE TRUSTEE ALONE ENTITLED TO ACT
9.3 Only the Note Trustee may:
(a) direct the Security Trustee to enforce the
provisions of the Master Security Trust Deed
and the Deed of Charge in respect of the
Trust or otherwise; or
(b) enforce the provisions of this deed or the
Class A Notes (including the Class A Note
Conditions),
and no Class A Noteholder is entitled to take any of
the above actions or to proceed directly against the
Note Trustee to enforce the performance of any of the
provisions of this deed or the Class A Notes
(including the Class A Note Conditions) except that
if the Note Trustee, having become bound to take
steps and/or proceed under clause 8, this clause 9
and/or the Master Security Trust Deed and the Deed of
Charge in respect of the Trust, fails to do so within
a reasonable time and such failure is continuing, the
Class A Noteholders may take such steps and/or
proceedings directly but then only if and to the
extent the Class A Noteholders are able to do so
under Australian law.
10 REMUNERATION AND INDEMNIFICATION OF THE NOTE TRUSTEE
------------------------------------------------------------------------------
NORMAL REMUNERATION
10.1 So long as any Class A Note is outstanding, the
Issuer Trustee shall pay the Note Trustee a fee as
remuneration for its services as note trustee, in an
amount equal to such sum on such dates in each case
as may be agreed from time to time with the Issuer
Trustee. Such remuneration shall accrue from day to
day from the date of this deed until the Trust is
terminated, and is to be paid personally by the
Issuer Trustee and not from the Assets of the Trust.
EXTRA REMUNERATION
10.2 At any time after the Issuer Trustee has failed to
pay any sums due under the Class A Notes, or if the
Note Trustee undertakes duties which it considers
necessary or expedient under this deed, or is
requested by the Issuer Trustee to undertake duties,
and in either case which they both agree to be of an
exceptional nature or otherwise outside the scope of
the Note Trustee's normal duties under this deed, the
Issuer Trustee shall pay such additional remuneration
as they may agree or, failing agreement as to any of
the matters in this clause (or as to such sums
referred to in clause 10.1), as determined by a
merchant or investment bank (acting as an expert and
not as arbitrator) selected by the Note Trustee and
approved by the Issuer Trustee or, failing such
approval, nominated by the President for the time
being of the New South Wales Law Society. The
expenses involved in such nomination and such
<PAGE>
18
-------------------------------------------------------------------------------
merchant bank's fee shall be paid by the Issuer
Trustee. The determination of such merchant or
investment bank shall be conclusive and binding on
the Issuer Trustee, the Note Trustee and the Class A
Noteholders.
EXPENSES
10.3 The Issuer Trustee shall also, on each Payment Date,
pay all costs, charges, liabilities and expenses
properly incurred by the Note Trustee (except for any
overhead or general operating expenses incurred by
the Note Trustee) in the preparation and execution of
this deed and the performance of its functions under
this deed including, but not limited to, legal
expenses in connection with any legal proceedings
properly brought by the Note Trustee against the
Issuer Trustee to enforce any provision of this deed,
the Class A Notes, and any stamp, documentary,
registration or other taxes or duties including any
GST paid by the Note Trustee in connection with those
documents and its supply of services.
INDEMNITY
10.4 Subject to clause 23, the Issuer Trustee shall
indemnify the Note Trustee in respect of all
liabilities and expenses properly incurred by it or
by anyone appointed by it or to whom any of its
functions may be delegated by it in the carrying out
of its functions and against any loss, liability,
cost, claim, action, demand or expense (including,
but not limited to, all proper costs, charges and
expenses paid or incurred in disputing or defending
any of the foregoing) which any of them may incur or
which may be made against any of them arising out of
or in relation to or in connection with, its
appointment or the exercise of its functions.
CONTINUING EFFECT
10.5 Clauses 10.3 and 10.4 will continue in full force and
effect as regards the Note Trustee even if it no
longer is Note Trustee.
11 SUPPLEMENTAL PROVISIONS
------------------------------------------------------------------------------
LIABILITY TO ACCOUNT
11.1 The 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 Note
Trustee from the Issuer Trustee or received or
recovered by the Note Trustee under this deed or any
other Transaction Document, subject always to such
deductions and withholdings by the Note Trustee as
are authorised by this deed. Obligations of the Note
Trustee to any Interested Person or any other person
under or in connection with this deed can only be
enforced against the Note Trustee to the extent to
which they can be satisfied out of such moneys in
accordance with this deed.
CLASS A NOTES
11.2 The Note Trustee is not responsible for the receipt
or application of the proceeds of issue of any of the
Class A Notes or (except when acting as Class A Note
Registrar and to the extent specifically provided in
this deed or the Agency Agreement) for the exchange,
transfer or
<PAGE>
19
-------------------------------------------------------------------------------
cancellation of any Note.
ADVICE
11.3 The Note Trustee may act on the opinion or advice of,
or information obtained from, any expert (including
any lawyer, valuer, accountant, banker, broker,
credit-rating agency or lead manager) and shall not
be responsible to anyone for any loss occasioned by
so acting to the extent it conforms with any
applicable requirements of this deed or the TIA. Any
such opinion, advice or information may be sent or
obtained by letter, telex, telegraph, cable or fax
and the Note Trustee shall not be liable to anyone
for acting in good faith on any opinion, advice or
information purporting to be conveyed by such means
even if it contains some error or is not authentic.
NOTE TRUSTEE TO ASSUME PERFORMANCE
11.4 The Note Trustee need not notify anyone of the
execution of this deed or any other Transaction
Document or any transaction contemplated by them or
do anything to find out if an Event of Default has
occurred in respect of the Trust. Until it has actual
knowledge or express notice to the contrary, the Note
Trustee may assume that no such event has occurred
and that the Issuer Trustee and each other party to
the Transaction Documents is performing all its
obligations under this deed and the Class A Notes.
RESOLUTIONS OF CLASS A NOTEHOLDERS
11.5 The Note Trustee shall not be responsible for having
acted in good faith on a resolution purporting to
have been passed at a meeting of Class A Noteholders
in respect of which minutes have been made and signed
even if it is later found that there was a defect in
the constitution of the meeting or the passing of the
resolution or that the resolution was not valid or
binding on the Class A Noteholders.
RELIANCE
11.6 Subject to clause 15.2(b), the Note Trustee is, for
any purpose and at any time, entitled to rely on, act
upon, accept and regard as conclusive and sufficient
(without being in any way bound to call for further
evidence or information or being responsible for any
loss that may be occasioned by such reliance,
acceptance or regard) any of the following:
(a) any information, report, balance sheet,
profit and loss account, certificate or
statement supplied by the Issuer Trustee,
the Security Trustee, or the Global Trust
Manager or by an officer, auditor or
solicitor of the Issuer Trustee, the
Security Trustee, or the Global Trust
Manager;
(b) any information or statement provided to it
in relation to the Class A Notes, the Class
A Noteholders or the Class A Note Owners by
the Depository or its nominee;
(c) 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,
opinion or statement given pursuant to or
<PAGE>
20
-------------------------------------------------------------------------------
in relation to this deed, the Master
Security Trust Deed, the Deed of Charge
in respect of the Trust, the Master Trust
Deed or the Supplemental Deed in respect
of the Trust provided the 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;
(d) all accounts supplied to the Note Trustee
pursuant to this deed and all reports of the
Auditor supplied to the Note Trustee
pursuant to this deed; and
(e) notices and other information supplied to
the Note Trustee under this deed,
save, in each case, when it is actually aware that
the information supplied pursuant to subclauses (a)
to (e) is incorrect or incomplete.
CERTIFICATE SIGNED BY AUTHORISED PERSON
11.7 If the Note Trustee, in the exercise of its
functions, requires to be satisfied or to have
information as to any fact or the expediency of any
act, it may call for and accept as sufficient
evidence of that fact or the expediency of that act a
certificate signed by an Authorised Person of the
Issuer Trustee or the Global Trust Manager as to that
fact or to the effect that, in their opinion, that
act is expedient and the Note Trustee need not call
for further evidence and shall not be responsible for
any loss occasioned by acting on such a certificate.
Nothing in this clause 11.7 is to be construed as
either limiting the 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
Note Trustee to rely on evidence of compliance with
conditions precent where such reliance is not
permitted by section 314 of the TIA.
SIGNATURES
11.8 The Note Trustee may rely in good faith on the
validity of any signature on any Note, transfer, form
or application or other instrument or document unless
the Note Trustee has reason to believe that the
signature is not genuine. The Note Trustee is not
liable to make good out of its own funds any loss
incurred by any person if a signature is forged or
otherwise fails to bind the person whose signature it
purports to be or on whose behalf it purports to be
made.
DEPOSIT OF DOCUMENTS
11.9 The Note Trustee may deposit this deed and any other
documents with any bank or entity whose business
includes the safe custody of documents or with any
lawyer or firm of lawyers believed by it to be of
good repute and may pay all sums due in respect
thereof.
DISCRETION
11.10 The Note Trustee shall have absolute and uncontrolled
discretion as to the exercise of its functions and
shall not be responsible for any loss, liability,
cost, claim, action, demand, expense or inconvenience
which may result from their exercise or non-exercise
except where it arises from the Note Trustee's fraud,
negligence or breach of trust.
<PAGE>
21
-------------------------------------------------------------------------------
AGENTS
11.11 Whenever it considers it expedient in the interests
of the Class A Noteholders, the Note Trustee may, in
the conduct of its trust business, 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 Note Trustee
(including the receipt and payment of money). The
Note Trustee remains liable for the acts or omissions
of an agent except where the Note Trustee has acted
in good faith and without negligence or breach of
trust in relation to the appointment of the agent.
The Note Trustee is not bound to supervise the
proceedings or acts of any such agent.
DELEGATION
11.12 Whenever it considers it expedient in the interests
of the Class A Noteholders, the Note Trustee may
delegate to any person on any terms (including power
to sub-delegate) all or any of its functions. The
Note Trustee remains liable for the acts or omissions
of a delegate except where the Note Trustee has acted
in good faith and without negligence or breach of
trust in relation to the appointment of the delegate.
The Note Trustee shall not have any obligation to
supervise such delegate or be responsible for any
loss, liability, cost, claim, action, demand or
expense incurred by reason of any misconduct or
default by any such delegate or sub-delegate.
APPLICATION TO COURT
11.13 The Note Trustee may, whenever it thinks it expedient
in the interests of the Class A 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 in respect of the Trust and assent
to or approve any applications of any Class A
Noteholder, the Issuer Trustee or the Global Trust
Manager.
INTERESTS OF CLASS A NOTEHOLDERS
11.14 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 Note
Trustee must where it is required to have regard to
the interests of the Class A Noteholders, have regard
to the general interests of the Class A Noteholders.
The Note Trustee will not incur any liability to any
Class A Noteholder as a result of the Note Trustee
giving effect to this clause.
ASSUMPTION AS TO PREJUDICE
11.15 The 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 Notes, this deed or any other Transaction Document
in respect of the Trust, that such exercise will not
be materially prejudicial to the interest of the
Class A Noteholders if each Current Rating Agency 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 Notes (but nothing in this clause is to be
construed as requiring the Note Trustee to obtain
such confirmation).
<PAGE>
22
-------------------------------------------------------------------------------
RATINGS
11.16 Except as otherwise provided in this deed or any
other Transaction Document in respect of the Trust,
the Note Trustee has no responsibility for the
maintenance of any rating of the Class A Notes by any
Current Rating Agency or any other person.
VALIDITY OF TRANSACTION DOCUMENTS
11.17 The 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 in respect of the Trust (other than the
execution and delivery by it of this deed and each
other Transaction Document in respect of the Trust 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 in respect of
the Trust except to the extent specifically provided
in this deed or such Transaction Document. The Note
Trustee is not responsible for recitals, statements,
warranties or representations of any party (other
than itself) contained in any Transaction Document in
respect of the Trust (and is entitled to assume the
accuracy and correctness thereof).
DEFECT IN SECURITY
11.18 The 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 Master Security Trust
Deed or the Deed of Charge in respect of the Trust
and the Note Trustee may accept without enquiry,
requisition or objection such title as the Security
Trustee may have to the Secured Property in respect
of the Trust or any part thereof from time to time
and shall not be bound to investigate or make any
enquiry into the title of the Security Trustee or the
Secured Property in respect of the Trust or any part
thereof from time to time.
CLASS A NOTEHOLDERS RESPONSIBLE
11.19 Each Class A 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 Trustee and the Trust and the
Note Trustee does not at any time have any
responsibility for the same and no Class A Noteholder
may rely on the Note Trustee in respect of such
appraisal and investigation.
LIMIT ON OBLIGATION
11.20 No provision of this deed or any other Transaction
Document requires the Note Trustee to do anything
which may be 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 Notes or any
<PAGE>
23
-------------------------------------------------------------------------------
other Transaction Document, the Note Trustee
is not obliged to do or omit to do any thing,
including entering into any transaction or incurring
any liability unless the Note Trustee's liability, is
limited in a manner satisfactory to the Note Trustee
in its absolute discretion.
NO LIABILITY FOR BREACH
11.21 The Note Trustee is not to be under any liability
whatsoever for a failure to take any action in
respect of any breach by the Issuer Trustee of its
duties as trustee of the Trust of which the Note
Trustee is not aware or in respect of any Event of
Default in respect of the Trust of which the Note
Trustee is not aware.
DISPUTE OR AMBIGUITY
11.22 In the event of any dispute or ambiguity as to the
construction or enforceability of this deed or any
other Transaction Document in respect of the Trust,
or the Note Trustee's powers or obligations under or
in connection with this deed or the determination or
calculation of any amount or thing for the purpose of
this deed or the construction or validity of any
direction from Class A Noteholders, provided the Note
Trustee is using reasonable endeavours to resolve
such ambiguity or dispute, the Note Trustee, in its
absolute discretion, may (but will have no obligation
to) refuse to act or refrain from acting in relation
to matters affected by such dispute or ambiguity.
LOSS TO CHARGED PROPERTY
11.23 The Note Trustee shall not be responsible for any
loss, expense or liability occasioned to the Secured
Property in respect of the Trust 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 or breach of
trust of the Note Trustee.
FORGED CLASS A NOTES
11.24 The Note Trustee shall not be liable to the Issuer
Trustee or any Class A Noteholder by reason of having
accepted as valid or not having rejected any Note
purporting to be such and later found to be forged or
not authentic.
CONFIDENTIALITY
11.25 Unless ordered to do so by a court of competent
jurisdiction, the Note Trustee shall not be required
to disclose to any Class A Noteholder or Unitholder
any confidential financial or other information made
available to the Note Trustee by the Issuer Trustee.
DISCLOSURE
11.26 Subject to this deed, any applicable laws and any
duty of confidentiality owed by any Interested Person
to any other person, the Note Trustee may, for the
purpose of meeting its obligations under this deed,
disclose to any Class A Noteholder any confidential,
financial or other information made available to the
Note Trustee by an Interested Person or any other
person in connection with this deed.
DETERMINATIONS CONCLUSIVE
<PAGE>
24
-------------------------------------------------------------------------------
11.27 As between itself and the Class A Noteholders, the
Note Trustee may determine all questions and doubts
arising in relation to any of the provisions of this
deed or the Class A Note Conditions. Such
determinations, whether made upon such a question
actually raised or implied in the acts or proceedings
of the Note Trustee, shall be conclusive and shall
bind the Note Trustee and the Class A Noteholders.
CURRENCY CONVERSION
11.28 Subject to the Class A Note Conditions, the Master
Security Trust Deed, and the Deed of Charge in
respect of the Trust, where it is necessary or
desirable to convert any sum from one currency to
another, it shall (unless otherwise provided hereby
or required by law) be converted at such rate or
rates, in accordance with such method and as at such
date as may reasonably be specified by the Note
Trustee but having regard to current rates of
exchange, if available. Any rate, method and date so
specified shall be binding on the Issuer Trustee,
Global Trust Manager and the Class A Noteholders.
CLASS A NOTES HELD BY THE ISSUER TRUSTEE ETC
11.29 In the absence of actual knowledge or express notice
to the contrary, the Note Trustee may assume without
enquiry that no Class A Notes are for the time being
held by or on behalf of the Issuer Trustee.
LEGAL OPINIONS
11.30 Subject to the requirements of the TIA imposed on the
Note Trustee in relation to opinions, the Note
Trustee shall not be responsible to any person for
failing to request, require or receive any legal
opinion relating to any Class A Notes or for checking
or commenting upon the content of any such legal
opinion.
NO LIABILITY FOR TAX ON PAYMENTS
11.31 The Note Trustee has no responsibility whatsoever to
any Class A Noteholder or any other person in
relation to any deficiency in a payment by the Note
Trustee to any Class A Noteholders if that deficiency
arises as a result of the Note Trustee or the Issuer
Trustee being subject to any Tax in respect of that
payment, the Secured Property in respect of the
Trust, the Master Security Trust Deed, this deed or
any income or proceeds from them.
POWERS ADDITIONAL
11.32 The powers conferred upon the Note Trustee by this
deed are in addition to its powers under general law.
12 NOTE TRUSTEE LIABLE FOR NEGLIGENCE
--------------------------------------------------------------------------------
If the Note Trustee fails 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, nothing in this
deed shall relieve or indemnify it from or against
any liability which would otherwise attach to it in
respect of any fraud, negligence or breach of trust
of which it may be guilty.
<PAGE>
25
-------------------------------------------------------------------------------
13 WAIVER
--------------------------------------------------------------------------------
WAIVER
The Note Trustee may, without the consent of the
Class A Noteholders and without prejudice to its
rights in respect of any subsequent breach, from time
to time and at any time, if in its opinion the
interests of the Class A Noteholders will not be
materially prejudiced thereby, waive or authorise, on
such terms as seem expedient to it, any breach or
proposed breach by the Issuer Trustee of this deed or
the Class A Note Conditions provided that the Note
Trustee shall not do so in contravention of an
express direction given by an Extraordinary
Resolution of the Class A Noteholders or a request
made pursuant to Condition 10.1. No such direction or
request will affect a previous waiver, authorisation
or determination. Any such waiver, authorisation or
determination shall be binding on the Class A
Noteholders and, if the Note Trustee so requires,
will be notified to the Class A Noteholders as soon
as practicable.
14 NOTE TRUSTEE NOT PRECLUDED FROM ENTERING INTO CONTRACTS
--------------------------------------------------------------------------------
The Note Trustee and any other person (including any
director or officer of the Note Trustee), whether or
not acting for itself, may acquire, hold or dispose
of any Class A Note or other security (or any
interest therein) of the Issuer Trustee or any other
person, may enter into or be interested in any
contract or transaction with the Issuer Trustee or
any other party to a Transaction Document in respect
of the Trust and may act on, or as depository or
agent for, any committee or body of holders of any
securities of any such person in each case with the
same rights as it would have had if the Note Trustee
were not acting as Note Trustee and need not account
for any profit or commission received in connection
with such arrangements. This clause 14 only applies
if the Note Trustee is subject to section 311(a) of
the TIA.
15 DUTIES OF NOTE TRUSTEE
--------------------------------------------------------------------------------
NOTE TRUSTEE'S GENERAL DUTIES
15.1 The Note Trustee must comply with the duties imposed
on it by this deed, the Class A Notes (including the
Class A Note Conditions) and each other Transaction
Document in respect of the Trust to which it is a
party and must in the exercise of all discretions
vested in it by this deed and all other Transaction
Documents in respect of the Trust except where
expressly provided otherwise, have regard to the
interest of the Class A Noteholders.
DUTIES PRIOR TO AN EVENT OF DEFAULT
15.2 Prior to an Event of Default in respect of the Trust:
(a) the Note Trustee shall not be liable except
for the performance of such duties as are
specifically set out in this deed, the Class
A Notes (including the Class A Note
Conditions) or any other
<PAGE>
26
-------------------------------------------------------------------------------
Transaction Document in respect of
the Trust to which it is a party and
no implied covenants or obligations on
the part of the Note Trustee are to be read
into this deed (subject to the mandatory
requirements of the TIA); and
(b) (subject to the mandatory requirements of
the TIA) the 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 Note Trustee, upon certificates
or opinions furnished to the Note Trustee
and conforming to the requirements of this
deed provided that the 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.
DUTIES FOLLOWING AN EVENT OF DEFAULT
15.3 If an Event of Default has occurred in respect of the
Trust and is subsisting, the Note Trustee shall
exercise the rights and powers vested in it by this
deed and use the same degree of care and skill in
their exercise as a prudent person would exercise or
use under the circumstances in the conduct of such
person's own affairs.
CERTAIN LIMITATIONS OF LIABILITY WHERE ACTING IN GOOD FAITH
15.4 The Note Trustee shall not be liable under this deed
or any Transaction Document in respect of the Trust
for any error of judgment made in good faith by an
Authorised Person of the Note Trustee unless it is
proved that the Note Trustee was negligent in
ascertaining the pertinent facts.
NOTE TRUSTEE NOT RELIEVED OF LIABILITY FOR NEGLIGENCE
15.5 Subject to clauses 15.2 and 15.4, nothing in this
deed will relieve the Note Trustee from liability for
its own negligent action, its own negligent failure
to act or its own breach of trust. Section 315(d)(3)
of the TIA is expressly excluded by this deed.
PREFERRED COLLECTION OF CLAIMS AGAINST ISSUER TRUSTEE
15.6 The 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 18, the Note Trustee will remain subject to
section 311(a) of the TIA to the extent required by
the TIA.
COMPLIANCE WITH SECTION 310 OF THE TIA
15.7 (SECTION 310(a) OF TIA): The Note Trustee must ensure
that it at all times satisfies the requirements of
section 310(a) of the TIA.
15.8 (CAPITAL): Without limiting the foregoing, the 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.
15.9 (SECTION 310(b) OF TIA): The Note Trustee must at all
times comply with section 310(b) of the TIA, provided
that any indenture or indentures
<PAGE>
27
-------------------------------------------------------------------------------
under which other securities of the Issuer
Trustee 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.
TRANSACTION DOCUMENTS
15.10 The Note Trustee must make available at the Note
Trustee's registered office for inspection by Class A
Noteholders a copy of each Transaction Document in
accordance with Condition 11 (provided that the Note
Trustee will not be in default of its obligations
pursuant to this clause 15.10 in respect of any
Transaction Document, other than a Transaction
Document to which the Note Trustee in respect of the
Trust is a party, a copy of which has not been
provided to the Note Trustee.
16 AMENDMENT
-------------------------------------------------------------------------------
AMENDMENT BY NOTE TRUSTEE
16.1 Subject to this clause 16 and to any approval
required by law, the Note Trustee, the Global Trust
Manager and the Issuer Trustee may together agree,
without the consent of any Class A Noteholders, by
way of supplemental deed to alter, add to or modify
any provision of this deed or the Class A Notes
(including the Class A Note Conditions) so long as
such alteration, addition or modification is not a
Payment Modification and such alteration, addition or
revocation in the opinion of the Note Trustee:
(a) (NECESSARY OR EXPEDIENT) is necessary or
expedient to comply with the provisions of
any statute or with the requirements of any
Governmental Agency;
(b) (MANIFEST ERROR) is made to correct a
manifest error or ambiguity, or is to
correct inconsistency between the provisions
of any Transaction Document and the
description of the provisions thereof in the
related prospectus, 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 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 Note Trustee
appropriate or expedient as a consequence of
the enactment of a statute or an amendment
to any statute or ruling by the Federal
Commissioner of Taxation 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 Trust or the Note Trust); or
(d) (OTHERWISE DESIRABLE) in the opinion of the
Note Trustee and the Issuer Trustee is
otherwise desirable for any reason and:
<PAGE>
28
-------------------------------------------------------------------------------
(i) is not in the opinion of the Note
Trustee likely, upon coming into
effect, to be materially
prejudicial to the interests of
Class A Noteholders; or
(ii) if it is in the opinion of the Note
Trustee likely, upon coming into
effect, to be materially
prejudicial to the interests of
Class A Noteholders, the consent of
an Extraordinary Resolution of the
Class A Noteholders to the
alteration, addition or resolution
has been obtained. For the purpose
of determining whether there has
been an Extraordinary Resolution of
the Class A Noteholders consenting
to an alteration, addition or
revocation, Class A Notes which are
beneficially owned by the Issuer
Trustee or the Global Trust Manager
or by any person directly or
indirectly controlling or
controlled by or under direct or
indirect common control with the
Issuer Trustee or the Global Trust
Manager, shall be disregarded,
provided that the Note Trustee, the Global
Trust Manager and the Issuer Trustee may not
alter, add to or modify any provision of
this deed or the Class A Notes unless the
Global Trust Manager has notified each
Current Rating Agency 5 Business Days in
advance.
AMENDMENTS REQUIRING CONSENT OF ALL CLASS A NOTEHOLDERS
16.2 The Note Trustee, the Global Trust Manager and the
Issuer Trustee may together agree by way of
supplemental deed to make or effect a Payment
Modification to this deed or the Class A Notes
(including the Class A Note Conditions) if, and only
if, the consent has first been obtained of each Class
A Noteholder to such Payment Modification.
COMPLIANCE WITH TIA
16.3 Any supplemental deed altering, adding to or revoking
any provision of this deed or the Class A Notes
(including the Class A Note Conditions) referred to
in this clause 16 must conform, to the extent
applicable, with the requirements of the TIA.
NO CURRENT RATING AGENCY DOWNGRADE
16.4 The 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 Noteholders
if each Current Rating Agency 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 Notes by the Current Rating Agency.
DISTRIBUTION OF AMENDMENTS
16.5 Unless the Note Trustee agrees otherwise, the Global
Trust Manager on behalf of the Issuer Trustee must
distribute to all Class A Noteholders a copy of any
amendment made pursuant to this clause 16 as soon as
reasonably practicable after the amendment has been
made.
AMENDMENTS BINDING ON CLASS A NOTEHOLDERS
<PAGE>
29
-------------------------------------------------------------------------------
16.6 Any alteration, addition or revocation of a provision
of this deed or the Class A Notes made pursuant to
this clause 16 is binding on all Class A Noteholders.
17 REPORTS
--------------------------------------------------------------------------------
REPORTS BY NOTE TRUSTEE
17.1 If so required by section 313(a) of the TIA, the Note
Trustee shall provide to each Class A Noteholder, and
such other persons as the Note Trustee is required by
section 313(c) of the TIA to provide, at intervals of
not more than 12 months (commencing as from the
Closing Date) a brief report of the events referred
to in section 313(a) of the TIA that have occurred
within the preceding 12 months and shall provide such
additional reports to Class A Noteholders, and such
other persons as the 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
Noteholders must be copied to the Issuer Trustee and
the Global Trust Manager and must be filed by the
Note Trustee with the Commission and each stock
exchange, if any, on which the Class A Notes are
listed.
REPORTS BY GLOBAL TRUST MANAGER
17.2 The Global Trust Manager covenants that it will:
(a) (COPY SECURITIES EXCHANGE ACT REPORTS TO
NOTE TRUSTEE) file:
(i) with the SEC at such times as are
required under the Exchange Act;
and
(ii) with the Note Trustee, within 15
days after it is required to file
the same with the SEC,
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 SEC may from time to time
by rules and regulations prescribe), if any,
which it may be required to file with the
SEC 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 Note Trustee and the SEC, in
accordance with the rules and regulations
prescribed by the SEC, 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 Note Trustee
and the Commission, in accordance with rules
and regulations prescribed from time to time
by the SEC, 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
<PAGE>
30
-------------------------------------------------------------------------------
time by such rules and regulations; and
(c) (SUMMARIES TO CLASS A NOTEHOLDERS) transmit
to Class A 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 Global Trust Manager
pursuant to clauses 17.2(a) and (b) as may
be required by rules and regulations
prescribed from time to time by the SEC.
RESTRICTED SECURITIES
17.3 The Issuer Trustee and the Global Trust Manager each
severally covenants that it will forthwith notify the
Note Trustee if, at any time, after the Closing Date,
any Class A Notes become "restricted securities" (as
defined in Rule 144(a)(3) of the Securities Act of
1933 of the United States of America) and during any
period during which the Issuer Trustee or the Global
Trust 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 Notes
in connection with any resale of those Class A Notes
and to any prospective purchaser of the Class A 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.
18 APPOINTMENT, RETIREMENT AND REMOVAL OF THE NOTE TRUSTEE
--------------------------------------------------------------------------------
APPOINTMENT
18.1 The Issuer Trustee has the power to appoint new note
trustees but no-one may be so appointed unless
previously approved by an Extraordinary Resolution of
the Class A Noteholders. The Issuer Trustee may not
appoint a new Note Trustee if such appointment would
result in the suspension, reduction, qualification or
withdrawal of a rating assigned to any of the Class A
Notes by any Current Rating Agency. Any appointment
of a new Note Trustee shall be notified by the Issuer
Trustee to the Class A Noteholders and each Current
Rating Agency as soon as practicable. Any new Note
Trustee must forthwith execute a deed on
substantially the same terms as this deed.
RETIREMENT OF NOTE TRUSTEE
18.2 The Note Trustee covenants that it will retire as
Note Trustee if:
(a) (INSOLVENCY): an Insolvency Event occurs in
relation to the Note Trustee in its personal
capacity or in respect of its personal
assets (and not in its capacity as trustee
of any trust or in respect of any assets it
holds as trustee);
(b) (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 NOTEHOLDERS REQUIRE RETIREMENT): it
is so directed by the
<PAGE>
31
-------------------------------------------------------------------------------
Extraordinary Resolution of the Class A
Noteholders;
(e) (BREACH OF DUTY): it fails to comply with
any of its obligations under any Transaction
Document with respect to the applicable
Trust and the Issuer Trustee and the Global
Trust Manager determines that this failure
has had, or if continued, will have, an
Adverse Effect, and if capable of remedy,
the Note Trustee does not remedy this
failure within 14 days after the earlier of
the following:
(i) the Note Trustee becoming aware of
this failure; and
(ii) receipt by the Note Trustee of
written notice with respect to this
failure from either the Issuer
Trustee or the Global Trust
Manager; and
(iii) the Note Trustee fails to satisfy
any obligation imposed on it under
the TIA with respect to a Trust or
this deed; or
(f) (CHANGE IN OWNERSHIP): there is a change in
ownership of 50% or more of the issued
equity share capital of the Note Trustee
from the position as at the date of this
deed or effective control of the Note
Trustee alters from the position as at the
date of this deed unless in either case
approved by the Global Trust Manager (whose
approval must not be unreasonably withheld);
or
(g) there is an Event of Default in respect of
the Trust which requires the Note Trustee to
resign by virtue of its obligations under
the TIA.
REMOVAL BY ISSUER TRUSTEE
18.3 If the Note Trustee refuses to retire, the Issuer
Trustee at the direction of the Global Trust Manager
is entitled to remove the Note Trustee from office
immediately by notice in writing to the Note Trustee
if any event referred to in clause 18.2 has occurred.
On the retirement or removal of the Note Trustee
under the provisions of clause 18.2 or this clause
18.3:
(a) (NOTIFY CURRENT RATING AGENCIES): the Issuer
Trustee must promptly notify each Current
Rating Agency of such retirement or removal;
and
(b) (APPOINT SUBSTITUTE NOTE TRUSTEE): subject
to any approval required by law, the Issuer
Trustee is entitled to and must use
reasonable endeavours to appoint in writing
some other Eligible Trust Corporation that
is approved by each Current Rating Agency to
be the substitute note trustee and whose
appointment is confirmed by each Current
Rating Agency not to result in the
suspension, reduction, qualifications or
withdrawal of a rating assigned by them to
any of the Class A Notes.
NOTE TRUSTEE MAY RETIRE
18.4 The Note Trustee may retire at any time as trustee
under this deed upon giving
<PAGE>
32
-------------------------------------------------------------------------------
3 months (or such lesser time as the Global
Trust Manager, the Issuer Trustee and the
Note Trustee agree) notice in writing to the
Issuer Trustee, the Global Trust Manager, the
Security Trustee and each Current Rating Agency,
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 further that no
such period of notice of retirement may expire within
the period of 30 days preceding each Payment Date.
Upon such retirement, the Note Trustee, subject to
any approval required by law, may appoint in writing
any other Eligible Trust Corporation that is approved
by the Global Trust Manager, which approval must not
be unreasonably withheld by the Global Trust Manager,
as Note Trustee in its stead and whose appointment is
confirmed by each Current Rating Agency not to result
in an Adverse Rating Effect in respect of the Class A
Notes. If the Note Trustee does not propose a
replacement by the date which is 1 month prior to the
date of its proposed retirement, the Global Trust
Manager is entitled to appoint a Substitute Note
Trustee, which must be an Eligible Trust Corporation
that is approved by each Current Rating Agency, as of
the date of the proposed retirement.
APPOINTMENT OF SUBSTITUTE NOTE TRUSTEE BY CLASS A NOTEHOLDERS
18.5 Notwithstanding clauses 18.2, 18.3 and 18.4, no
retirement or removal of the Note Trustee will be
effective until a substitute note trustee has been
appointed in its place. If a substitute note trustee
has not been appointed under clauses 18.2, 18.3 and
18.4 at a time when the position of Note Trustee
would, but for this clause 18.5, become vacant in
accordance with those clauses, the Issuer Trustee
must promptly advise the Class A Noteholders who may
appoint an Eligible Trust Corporation nominated to
act as Note Trustee.
SUCCESSOR TO NOTE TRUSTEE
18.6 On the execution by the Issuer Trustee, the Global
Trust Manager and any successor note trustee of an
instrument effecting the appointment of that
successor note trustee, that successor note trustee
accepts the appointment and shall, without any
further act, deed or conveyance, become vested with
all the authority, rights, powers, trusts,
immunities, duties and obligations of the predecessor
Note Trustee with effect as if originally named as
Note Trustee in this deed and the Transaction
Documents in respect of the Trust and that
predecessor Note Trustee, on payment to it of the pro
rata proportion of its fee and disbursements then
unpaid (if any), shall have no further liabilities
under this deed, except for any accrued liabilities
arising from or relating to any act or omission
occurring prior to the date on which the successor
Note Trustee is appointed.
18.7 Any corporation:
(a) into which the Note Trustee is merged;
(b) with which the Note Trustee is consolidated;
(c) resulting from any merger or consolidation
to which the Note Trustee is a party;
<PAGE>
33
-------------------------------------------------------------------------------
(d) to which the Note Trustee sells or otherwise
transfers all or substantially all the
assets of its corporate trust business,
shall, on the date when that merger, consolidation,
sale or transfer becomes effective and to the extent
permitted by applicable law, become the successor
Note Trustee under this deed without the execution or
filing of any agreement or document or any further
act on the part of the parties to this deed, unless
otherwise required by the Issuer Trustee or the
Global Trust Manager, and after that effective date
all references in this deed to the Note Trustee shall
be references to that corporation.
18.8 If no other person can be found to act as Note
Trustee, the Class A Noteholders may elect a Note
Trustee from among the holders of the Class A Notes
(if any Class A Notes are outstanding).
ISSUER TRUSTEE AND GLOBAL TRUST MANAGER CANNOT BE APPOINTED
18.9 Notwithstanding the preceding provisions of this
clause 18, none of the Global Trust Manager, the
Issuer Trustee, any Support Facility Provider nor any
of their Related Entities may be appointed as Note
Trustee.
NO LIMITATION OF TIA
18.10 Nothing in this clause 18 is to be construed as
limiting any right of a Class A Noteholder to take
any action to remove the Note Trustee in accordance
with section 310(b) of the TIA.
19 CLASS A NOTES HELD IN CLEARING SYSTEMS AND NOTICES
--------------------------------------------------------------------------------
CLASS A NOTES HELD IN CLEARING SYSTEMS
19.1 So long as any Class A Note is held on behalf of a
Clearing System, in considering the interests of
Class A Noteholders, the Note Trustee may have regard
to any information provided to it by such Clearing
System or its operator as to the identity (either
individually or by category) of its accountholders or
participants with entitlements to any such Class A
Note and may consider such interests on the basis
that such accountholders or participants were the
holder(s) thereof.
20 CURRENCY INDEMNITY
--------------------------------------------------------------------------------
CURRENCY OF ACCOUNT AND PAYMENT
20.1 U.S. Dollars is the sole currency of account and
payment for all sums payable by the Issuer Trustee
under or in connection with this deed and the Class A
Notes, including damages.
EXTENT OF DISCHARGE
20.2 Any amount received or recovered in a currency other
than U.S. Dollars (whether as a result of, or of the
enforcement of, a judgment or order of a court of any
jurisdiction, in the winding-up or dissolution of the
Issuer Trustee or otherwise), by the Note Trustee or
any Class A Noteholder in respect of any sum
expressed to be due to it from the Issuer Trustee
shall only discharge the Issuer Trustee to the extent
of the U.S. Dollar amount which the recipient is able
to purchase with the
<PAGE>
34
-------------------------------------------------------------------------------
amount so received or recovered in that other
currency on the date of that receipt or
recovery (or, if it is not practicable to make that
purchase on that date, on the first date on which it
is practicable to do so).
INDEMNITY
20.3 If that U.S. Dollar amount is less than the U.S.
Dollar amount expressed to be due to the recipient
under this deed, the Class A Notes the Issuer Trustee
shall indemnify it against any loss sustained by it
as a result. In any event, the Issuer Trustee shall
(subject to clause 23) indemnify the recipient
against the cost of making any such purchase.
INDEMNITY SEPARATE
20.4 The indemnities in this clause 20 and in clause 10.5
constitute separate and independent obligations from
the other obligations in this deed, shall give rise
to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by the
Note Trustee and/or any Class A Noteholder and shall
continue in full force and effect despite any
judgment, order, claim or proof for a liquidated
amount in respect of any sum due under this deed, the
Class A Notes or any other judgment or order.
21 REPRESENTATIONS AND WARRANTIES
-------------------------------------------------------------------------------
BY THE ISSUER TRUSTEE
21.1 The Issuer Trustee represents and warrants to the
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 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) (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;
(f) (AUTHORISATION): all consents, licences,
approvals and authorisations
<PAGE>
35
-------------------------------------------------------------------------------
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; and
(g) (NO BREACH): it is not in breach of any
material provision of the Master Trust Deed
or the Supplemental Deed in respect of the
Trust.
BY THE GLOBAL TRUST MANAGER
21.2 The Global Trust Manager represents and warrants to
the 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 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) (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;
(f) (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;
(g) (INVESTMENT COMPANY): the 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;
(h) (COMPLIANCE WITH TIA): this deed has been
duly qualified under the TIA; and
(i) (NO BREACH): it is not in breach of any
material provision of the Master Trust Deed
or the Supplemental Deed in respect of the
Trust.
<PAGE>
36
-------------------------------------------------------------------------------
BY THE NOTE TRUSTEE
21.3 The Note Trustee represents and warrants to the
Issuer Trustee and the Global Trust 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): 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) (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;
(f) (AUTHORISATION): all consents, licences,
approvals and authorisations of every
Governmental Agency required to be obtained
or made by the Note Trustee in connection
with the execution, delivery and performance
of this deed have been obtained or made and
are valid and subsisting;
(g) (ELIGIBLE TRUST CORPORATION): it is an
Eligible Trust Corporation;
(h) (NO INSOLVENCY EVENT): no Insolvency Event
has occurred and is continuing in relation
to the Note Trustee; and
(i) (NO LITIGATION): no litigation,
arbitration, dispute or
administrative proceeding has been
commenced or is pending or, to the
knowledge of the Note Trustee,
threatened by any person which will,
or is likely to, have a material and
adverse effect on the ability of the
Note Trustee to perform its
obligations under this deed.
22 NOTICES
-------------------------------------------------------------------------------
NOTICES
22.1 Subject to clauses 22.4, 22.5 and 22.6, any notice,
approval, consent or other
<PAGE>
37
-------------------------------------------------------------------------------
communication in connection with this deed:
(a) must be given by an Authorised Person of the
relevant party;
(b) must be in writing; and
(c) must be left at the address of the addressee
or sent by prepaid ordinary post to the
address of the addressee or sent by
facsimile to the facsimile number of the
addressee, or sent by e-mail to the e-mail
address of the addressee specified in clause
22.2 or any other address, facsimile number
or e-mail address any party may from time to
time notify to the other parties as its
address for service of communications
pursuant to this deed.
INITIAL ADDRESSES
22.2 The initial address and facsimile numbers of the
Issuer Trustee, the Global Trust Manager and the Note
Trustee are:
ISSUER TRUSTEE:
Address: Level 3
39 Hunter Street
Sydney NSW 2000
Facsimile: (02) 9221 7870
Attention: Manager, Securitisation
E-mail : (as notified from time to time)
GLOBAL TRUST MANAGER:
Address: 7301 Baymeadows Way
Jacksonville Florida 32256
United States of America
Facsimile: 904 281 3062
Attention: General Counsel
E-mail : [email protected]
NOTE TRUSTEE:
Address: 101, 21W Barclay Street
New York, New York 10286
United States of America
Facsimile: (212) 815 3522
Attention: Global Structured Products Unit
E-mail : as notified from time to time
TIME EFFECTIVE
22.3 Unless a later time is specified in it, a notice,
approval, consent or other communication takes effect
from the time it is received.
RECEIPT
22.4 A letter, e-mail or facsimile is taken to be
received:
(a) in the case of a posted letter, on the third
(seventh, if posted to or from a place
outside Australia) day after posting;
<PAGE>
38
-------------------------------------------------------------------------------
(b) in the case of a facsimile, on production of
a transmission report by the machine from
which the facsimile was sent which indicates
that the facsimile was sent in its entirety
to the facsimile number of the recipient
notified for the purpose of this clause; and
(c) in the case of an e-mail, on receipt by the
sender of an e-mail confirmation that the
e-mail was delivered in its entirety to the
e-mail address of the recipient.
However, if the time of deemed receipt of any notice
is not before 4.00 p.m. (local time at the address of
the recipient) on a Business Day it is deemed to have
been received at the commencement of business on the
next following Business Day.
22.5 Subject to clause 3.3(e), all notices with respect to
the Class A Noteholders are valid if despatched in
accordance with, and will be regulated by, the Class
A Note Conditions.
23 LIMITED RECOURSE
--------------------------------------------------------------------------------
Clause 2 of the Definitions Schedule applies to this
deed as if set out in full in it (with any
consequential changes as are necessary to give effect
to that clause in this deed).
24 TERMINATION
--------------------------------------------------------------------------------
At any time after the expiry of the latest period
after which the right to any payment of interest or
principal becomes void in accordance with the Class A
Note Conditions, the Issuer Trustee may by notice to
the Note Trustee and copied to the Global Trust
Manager terminate the trust constituted by this deed.
25 TRUST INDENTURE ACT
--------------------------------------------------------------------------------
CERTIFICATES AND OPINIONS
25.1 (a)
(a) (CLASS A NOTE CONDITIONS PRECEDENT) Upon any
application or request by the Issuer Trustee
to the Note Trustee to take any action under
any provision of this deed, the Issuer
Trustee must furnish to the Note Trustee:
(i) a certificate from two Authorised
Persons of the Issuer Trustee
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
<PAGE>
39
-------------------------------------------------------------------------------
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 Trustee must furnish
to the Note Trustee a certificate or opinion
of an engineer, appraiser or other expert as
to the fair value:
(i) of any property or securities to be
released from the Security Interest
created by the Master Security
Trust Deed and the Deed of Charge
in respect of the Trust, where this
is required by section 314(d)(1) of
the TIA;
(ii) to the Issuer Trustee of any
securities the deposit of which
with the Issuer Trustee is to be
made the basis for the release of
any property or securities subject
to the Security Interest created by
the Master Security Trust Deed and
the Deed of Charge in respect of
the Trust, where this is required
by section 314(d)(2) of the TIA;
and
(iii) to the Issuer Trustee of any
property the subjection of which to
the Security Interest created by
the Master Security Trust Deed and
the Deed of Charge in respect of
the Trust is to be made the basis
for the release of any property or
securities subject to the Security
Interest created by the Master
Security Trust Deed and the Deed of
Charge in respect of the Trust,
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 Person of
the Issuer Trustee).
(c) (FORM OF CERTIFICATES AND OPTIONS) Each
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 7.1(d)(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
<PAGE>
40
-------------------------------------------------------------------------------
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.
UNDERTAKING FOR COSTS
25.2 (a)
(a) (UNDERTAKING) Subject to clause 25.2(b), all
parties to this deed agree, and each Class A
Noteholder by such Class A Noteholder's
acceptance of the Class A 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 Note
Trustee for any action taken, suffered or
omitted by it as the Note Trustee, the
filing by any party litigant in such suit of
an undertaking to pay the costs of such
suit, and that such court may in its
discretion assess reasonable costs,
including reasonable attorneys' fees,
against any party litigant in such suit,
having due regard to the merits and good
faith of the claims or defences made by such
party litigant.
(b) (EXCEPTIONS)The provisions of clause 25.2(a)
shall not apply to:
(i) any suit instituted by the Note
Trustee;
(ii) any suit instituted by any Class A
Noteholder, or group of Class A
Noteholders, in each case holding
in the aggregate Class A Notes with
an Invested Amount of more than 10%
of the then aggregate Invested
Amount of all Class A Notes; or
(iii) any suit instituted by any Class A
Noteholder for the enforcement of
the payment of principal or
interest on any Class A Note on or
after the respective due dates
expressed in such Class A Note and
in this deed.
EXCLUSION OF SECTION 316(a)(1)
25.3 Section 316(a)(1) of the TIA is expressly excluded by
this deed.
UNCONDITIONAL RIGHTS OF CLASS A NOTEHOLDERS TO RECEIVE PRINCIPAL AND INTEREST
25.4 Notwithstanding any other provisions in this deed,
any Class A Noteholder shall have the right, which is
absolute and unconditional, to receive payment of the
principal of and interest, if any, on each Class A
Note held by it on or after the respective due dates
thereof expressed in such Class A 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 Noteholder,
except to the extent that this deed or the Master
Security Trust Deed contains provisions limiting or
denying the right of any Class A 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
<PAGE>
41
-------------------------------------------------------------------------------
surrender, impairment, waiver or loss of the
Security Interest created by the Master Security
Trust Deed upon any property subject to such
Security Interest.
CONFLICT WITH TRUST INDENTURE ACT
25.5 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.
26 MISCELLANEOUS
--------------------------------------------------------------------------------
CERTIFICATE
26.1 A certificate signed by the Issuer Trustee, Global
Trust Manager or Note Trustee or its solicitors about
a matter or about a sum payable to the Issuer
Trustee, the Global Trust Manager or the Note Trustee
in connection with this deed or the Supplemental Deed
is sufficient evidence of the matter or sum stated in
the certificate unless the matter or sum is proved to
be false.
EXERCISE OF RIGHTS
26.2 The Issuer Trustee, Global Trust Manager, Note
Trustee or an attorney appointed under this deed may
exercise a right, power or remedy at its discretion,
and separately or concurrently with another right,
power or remedy. A single or partial exercise of a
right, power or remedy by the person does not prevent
a further exercise of that or an exercise of any
other right, power or remedy. Failure by the person
to exercise or delay in exercising a right, power or
remedy does not prevent its exercise. The person with
the right, power or remedy is not liable for any loss
caused by its exercise, attempted exercise, failure
to exercise or delay in exercising it except in the
case of its fraud or wilful default or, in the case
of the Issuer Trustee, Global Trust Manager or Note
Trustee, negligence, fraud or breach of trust.
WAIVER AND VARIATION
26.3 A provision of or a right created under this deed may
not be waived or varied except in writing signed by
the party or parties to be bound.
SUPERVENING LEGISLATION
26.4 Any present or future legislation which operates to
vary the obligations of the Issuer Trustee, Global
Trust Manager or Note Trustee in connection with this
deed with the result that the rights, powers or
remedies of the Issuer Trustee, Global Trust Manager
or Note Trustee are adversely affected (including,
without limitation, by way of delay or postponement)
is excluded except to the extent that its exclusion
is prohibited or rendered ineffective by law.
APPROVALS AND CONSENT
26.5 The Issuer Trustee, the Global Trust Manager, Note
Trustee or an attorney appointed under this deed may
give conditionally or unconditionally or
<PAGE>
42
-------------------------------------------------------------------------------
withhold its approval or consent in its absolute
discretion, unless this deed expressly provides
otherwise.
REMEDIES CUMULATIVE
26.6 The rights, powers and remedies provided in this deed
are cumulative with and not exclusive of the rights,
powers or remedies provided by law independently of
this deed.
INDEMNITIES
26.7 Each indemnity in this deed is a continuing
obligation, separate and independent from the other
obligations of the Issuer Trustee, the Global Trust
Manager and the Note Trustee and survives termination
of this deed. It is not necessary for the Issuer
Trustee, the Global Trust Manager or the Note Trustee
to incur expense or make payment before enforcing a
right of indemnity conferred by this deed.
TIME OF THE ESSENCE
26.8 Time is of the essence in this deed in respect of an
obligation of the Issuer Trustee or Note Trustee to
pay money.
RECEIPTS
26.9 The receipt of a Receiver, or an Authorised Person of
the Issuer Trustee or Note Trustee, releases the
person paying money to the Receiver, the Issuer
Trustee ore the Note Trustee in connection with this
deed from:
(a) liability for the money paid or expressed to
be received; and
(b) being concerned to see to its application or
being answerable or accountable for its loss
or misapplication.
ACKNOWLEDGMENT
26.10 The parties acknowledge and agree that the Issuer
Trustee, the Global Trust Manager and the Note
Trustee in exercising their powers and discretions
under this deed, and in performing their obligations
under this deed, must act in accordance with their
duties and obligations under this deed and may
exercise such powers and discretions as provided in
this deed and (without limitation) in forming any
opinion may obtain and act upon the advice of persons
who are not parties to this deed.
26.11 The parties acknowledge that they are bound by the
terms of this deed.
DISCLOSURE OF INFORMATION
26.12 Subject to this deed, the Issuer Trustee and the Note
Trustee is not required (unless ordered so to do by a
court of competent jurisdiction) to disclose to any
Unitholder, Secured Creditor or any other person
confidential, financial or other information made
available to the Issuer Trustee and the Note Trustee
in connection with this deed.
RIGHTS CUMULATIVE
26.13 The rights, powers and remedies provided in this deed
are cumulative and not exclusive of the rights,
powers or remedies provided by law independently of
this deed.
<PAGE>
43
-------------------------------------------------------------------------------
SIGNATURES
26.14 The Issuer Trustee, the Global Trust Manager and the
Note Trustee may rely on the validity of any
signature on any transfer, form of application or
other instrument or document unless the Issuer
Trustee, the Global Trust Manager or the Note Trustee
(as the case may be) has reasonable grounds to
believe that the signature is not genuine. Neither
the Issuer Trustee, the Global Trust Manager nor the
Note Trustee is 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. Any such loss, subject to any
right of reimbursement from any other person
(including the Global Trust Manager) is to be borne
by the relevant Trust in respect of which the loss is
incurred.
MEETINGS
26.15 A reference in this deed to a meeting of Secured
Creditors of a Trust is a reference to a meeting of
Secured Creditors of the Trust conducted in
accordance with the provisions of the relevant Deed
of Charge.
27 GOVERNING LAW
--------------------------------------------------------------------------------
GOVERNING LAW
27.1 This deed and each Trust are governed by the law in
force in the Australian Capital Territory and the
rights, liabilities and obligations of the Global
Trust Manager, the Issuer Trustee, the Note Trustee,
the Unitholders and the Secured Creditors are
governed by the laws in force in the Australian
Capital Territory.
SUBMISSION TO JURISDICTION
27.2 Each party irrevocably and unconditionally submits to
the non-exclusive jurisdiction of the courts of the
Australian Capital Territory and courts of appeal
from them. Each party waives any right it has to
object to an action being brought in those courts
including, without limitation, by claiming that the
action has been brought in an inconvenient forum or
that those courts do not have jurisdiction.
SERVICE
27.3 Without preventing any other mode of service, any
document in an action (including, without limitation,
any writ of summons or other originating process or
any third or other party notice) may be served on any
party by being delivered to or left for that party at
its address for service of notices under clause 22.
28 COUNTERPARTS
--------------------------------------------------------------------------------
This Note Trust Deed may consist of any numbers of
counterparts and all counterparts taken together will
be deemed to constitute one and the same instrument.
EXECUTED as a deed.
<PAGE>
44
-------------------------------------------------------------------------------
SCHEDULE 1 FORM OF CLASS A NOTE
--------------------------------------------------------------------------------
Registered CUSIP No:
No. R- ISIN No.:
Common Code:
Unless this Class A Note is presented by an authorised representative of The
Depository Trust Company, a New York corporation, ("DTC") to the Issuer Trustee
(as defined below) or its agent for registration of transfer, exchange or
payment, and any Class A 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 NOTE FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much
as the registered owner hereof, Cede & Co, has an interest in this Class A Note.
[THE ABOVE PARAGRAPH IS TO APPEAR IN THE CLASS A BOOK ENTRY NOTES ONLY.]
THE PRINCIPAL OF THIS CLASS A NOTE IS PAYABLE IN INSTALMENTS AND MAY BE SUBJECT
TO CHARGE-OFFS OR EXCHANGE AS SET FORTH BELOW, THE NOTE TRUST DEED AND IN THE
CLASS A NOTE CONDITIONS. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
CLASS A NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE OF THIS
CLASS A 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 ("ISSUER TRUSTEE") of the HomeSide
Mortgage Securities Trust 2001-1 (the "TRUST")
CLASS A NOTE
This Class A Note is issued by the Issuer Trustee in an initial aggregate
principal amount of US$[ ] (the "CLASS A NOTES") and is:
(a) constituted by a Note Trust Deed (the "NOTE TRUST DEED") dated
[ ] 2001 made between the Issuer Trustee, HomeSide Global MBS
Manager, Inc ("THE GLOBAL TRUST MANAGER") and The Bank of New
York, New York Branch (the "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 [
] made between the Global Trust Manager and the
Issuer Trustee as amended from time to time;
(ii) a Supplemental Deed (the "SUPPLEMENTAL DEED") dated [
] made between National Australia Bank Limited, the
Global Trust Manager, the Issuer Trustee and P.T.
Limited ("SECURITY TRUSTEE");
(iii) a Master Security Trust Deed (the "MASTER SECURITY
TRUST DEED") dated [ ] made between the Issuer
Trustee, the Global Trust Manager, the Note Trustee
and the Security Trustee;
(iv) the Agency Agreement ("AGENCY AGREEMENT") dated [ ]
2001 made between the Issuer Trustee, the Note
Trustee, the Global Trust Manager, The Bank of New
York, New York Branch as Principal Paying Agent,
Class A Note Registrar and
<PAGE>
45
-------------------------------------------------------------------------------
Calculation Agent, The Bank of New York, London
Branch as Paying Agent and Kredietbank S.A.
Luxembourgeoise as a Paying Agent;
(v) a Deed of Charge dated [ ] made between the Issuer
Trustee, the Security Trustee, the Global Trust
Manager and the Note Trustee;
(vi) the Note Trust Deed; and
(vii) the Class A Note Conditions as set out in the
Annexure to this Class A Note (the "CLASS A NOTE
CONDITIONS").
Unless defined in this Class A Note, words and phrases defined in, or
incorporated in, either or both of the Note Trust Deed and the Class A Note
Conditions have the same meaning in this Class A Note. Where there is any
inconsistency in a definition between the Note Trust Deed and the Class A Note
Conditions, the Note Trust Deed prevails.
If this Class A Note is a Class A Book Entry Note and the Issuer Trustee is
obliged to issue Class A Definitive Notes under clause 3.4(a) of the Note Trust
Deed, this Class A Note will be exchangeable in whole upon its surrender at the
offices of the Class A Note Registrar as specified in the Class A Note
Conditions or notified to Class A Noteholders from time to time (or such other
place as the Note Trustee may agree) for Class A Definitive Notes and the Issuer
Trustee shall execute and procure that the Note Trustee authenticates and
delivers in full exchange for this Class A Note, Class A Definitive Notes in
aggregate principal amount equal to the then Invested Amount of this Class A
Note subject to and in accordance with clause 3.4(b) of the Note Trust Deed. The
Issuer Trustee is not obliged to issue Class A Definitive Notes until 30 days
after the occurrence of an event set out in clause 3.4(a) of the Note Trust
Deed.
The Issuer Trustee in its capacity as trustee of the Trust, subject to and in
accordance with this Class A Note, the Class A Note Conditions, the Agency
Agreement, the Supplemental Deed and the Note Trust Deed, promises to pay to [ ]
as the registered holder of this Class A Note, or to registered assigns of this
Class A Note, the principal sum of US$[ ] (or such part of that amount as may
become repayable under the Class A Note Conditions, the Supplemental Deed and
the Note Trust Deed) on such date(s) as the principal sum (or any part of it)
becomes repayable in accordance with the Class A Note Conditions, the
Supplemental Deed and the Note Trust Deed and to pay interest in arrear on each
Payment Date on the Invested Amount of this Class A Note at rates determined in
accordance with Condition 6 of the Class A Note Conditions. The Class A
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
Trustee fails to meet its obligations to issue Class A Definitive Notes, this
shall be without prejudice to the Issuer Trustee's obligations with respect to
the Class A Notes under the Note Trust Deed, the Master Trust Deed, the
Supplemental Deed, the Agency Agreement and this Class A Note.
Payments of interest on this Class A Note due and payable on each Payment Date,
together with the instalment of principal, if any, shall be payable in
accordance with Condition 8.1 of the Class A Note Conditions and the Agency
Agreement. If this Class A Note is a Class A 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 Note will be entitled to
receive any payment so made in respect of that Class A Note only in accordance
with the respective rules and procedures of DTC. Such persons will have no claim
directly against the Issuer Trustee in respect of payments due on the Class A
Notes which must be made by the holder of this Class A Note, for so long as this
Class A Note is outstanding.
<PAGE>
46
-------------------------------------------------------------------------------
On any payment of principal and/or interest on the Class A Notes details of that
payment shall be endorsed by or on behalf of the Issuer in the Class A Note
Register and, in the case of payments of principal, the Invested Amount and the
Stated Amount of the Class A Notes shall be reduced for all purposes by the
amount so paid and endorsed in the Class A Note Register. Any such record shall
be prima facie evidence that the payment in question has been made.
This Class A Note shall not become valid for any purpose unless and until the
Certificate of Authentication attached has been signed by an Authorised Person
or other duly appointed representatives of the Note Trustee.
This Class A Note is governed by, and shall be construed in accordance with, the
laws of the Australian Capital Territory, Australia.
If this Class A Note is a Class A Book-Entry Note, this Class A Note is a global
note.
IN WITNESS the Issuer Trustee has caused this Class A Note to be signed manually
by a person duly authorised on its behalf.
PERPETUAL TRUSTEE COMPANY LIMITED by:
.........................................................
Authorised Person/duly appointed representative
IMPORTANT NOTES:
Neither the Global Trust Manager nor the Issuer Trustee is under any obligation
at any time to repurchase any Class A Notes from Class A Noteholders.
This Class A Note is not a certificate of title and the Class A Note Register on
which these Class A Notes are registered is the only conclusive evidence of the
title of the abovementioned person to the Class A Notes.
The Issuer Trustee's liability is limited in accordance with Condition 12. The
Issuer Trustee issues this Class A Note only in its capacity as trustee of the
Trust and in no other capacity. A liability arising under or in connection with
the Trust under the Master Trust Deed, the Supplemental Deed, the Note Trust
Deed, this Class A Note or any other Transaction Document is limited to and can
be enforced against the Issuer Trustee only to the extent to which it can be
satisfied out of the Assets of the Trust out of which the Issuer Trustee is
actually indemnified for the liability. This limitation of the Issuer Trustee's
liability will not apply to any obligation or liability of the Issuer Trustee to
the extent that it is not so satisfied because under any Transaction Document in
relation to the Trust or by operation of law there is a reduction in the extent
of the Issuer Trustee's indemnification out of the Assets of the Trust as a
result of any fraud, negligence or breach of trust on the part of the Issuer
Trustee. Subject to the terms of the Transaction Documents, the Issuer Trustee
will have no liability for any act or omission of the Global Trust Manager or of
any other person.
Transfers of the Class A Notes must be pursuant to the annexed form of
assignment and otherwise in accordance with clause 5 of the Agency Agreement.
None of the Global Trust Manager or the National Australia Bank Limited (the
"BANK") as the Seller and Servicer, or any other affiliate of the Bank or the
Issuer Trustee 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 Notes.
<PAGE>
47
-------------------------------------------------------------------------------
The Class A Notes do not represent deposits or other liabilities of the Bank.
The holding of the Class A Notes is subject to investment risk, including
possible delays in payment and loss of income and principal invested. No party
to the Transaction Documents for the Trust, or any affiliate of any of them,
stand in any way behind the capital value and/or performance of the Class A
Notes, or the Assets held by the Trust.
<PAGE>
48
-------------------------------------------------------------------------------
ASSIGNMENT
Social Security or taxpayer I.D., or other identifying number of assignee:
For value received, the undersigned hereby sells, assigns and transfer unto
(name and address of assignee)
the within Class A Note and all rights thereunder, and hereby irrevocably
constitutes and appoints
, attorney to transfer said Class A 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 Note Registrar,
which requirements include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Class A 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 of this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class A Note in every
particular without alteration, enlargement or any change whatsoever.
<PAGE>
49
-------------------------------------------------------------------------------
CERTIFICATE OF AUTHENTICATION
This Class A Note is authenticated by The Bank of New York, New York Branch as
Note Trustee and until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK, NEW YORK BRANCH by:
Authorised Person/duly appointed representative
<PAGE>
50
-------------------------------------------------------------------------------
ANNEXURE
[Insert completed Class A Note Conditions]
<PAGE>
51
-------------------------------------------------------------------------------
SCHEDULE 2 PROVISIONS FOR MEETINGS OF CLASS A NOTEHOLDERS
-------------------------------------------------------------------------------
VALIDITY
1 A holder of a Class A Note may obtain a Voting
Certificate from a Paying Agent or require Paying
Agents to issue a Block Voting Instruction by
depositing his Class A Note with such Paying Agent
not later than 48 hours before the time fixed for any
meeting. Each Voting Certificate and Block Voting
Instruction shall be valid for so long as the
relevant Class A Notes shall not be released (as set
out in the relevant definition in the Definitions
Schedule) and during the validity of such Voting
Certificate or Block Voting Instruction the holder of
such Voting Certificate or (as the case may be) the
Proxy named in such Block Voting Instruction shall,
for all purposes in connection with any meeting of
Class A Noteholders, be deemed to be the Class A
Noteholder of the Class A Notes to which such Voting
Certificate or Block Voting Instruction relates and
the Paying Agents with which (or to the order of
which) such Class A Notes have been deposited shall
be deemed for such purposes not to be the Class A
Noteholder of those Class A Notes.
WHO MAY CONVENE MEETINGS
2 The Note Trustee or the Issuer Trustee at any time
may, and the Note Trustee (subject to it being
indemnified to its satisfaction against all costs and
expenses thereby occasioned) upon request in writing
of the Class A Noteholders holding not less than five
per cent. of the aggregate Invested Amount of the
relevant Class A Notes for the time being outstanding
shall, convene a meeting of the Class A Noteholders.
Whenever the Issuer Trustee or the Note Trustee upon
such request of the relevant Class A Noteholders is
about to convene any such meeting it shall give
notice in writing to the Note Trustee (or the Issuer
Trustee as the case may be) of the day, time and
place of that meeting and of the nature of the
business to be transacted at that meeting. If the
Note Trustee receives notice of a meeting pursuant to
the terms of the Master Security Trust Deed it shall
convene a meeting of the Class A Noteholders as soon
as practicable thereafter. Every such meeting shall
be held at such time and place as the Note Trustee
may approve.
NOTIFICATION OF MEETINGS
3 At least 14 days' notice (exclusive of the day on
which the notice is given and of the day on which the
meeting is held) specifying the day, time and place
of meeting shall be given to the relevant Class A
Noteholders. A copy of the notice shall be given to
the Note Trustee, unless the meeting is convened by
the Note Trustee, and to the Issuer Trustee unless
the meeting shall be convened by the Issuer Trustee.
Such notice shall, unless in any particular case the
Note Trustee otherwise agrees, specify the terms of
the resolutions to be proposed and shall include
statements to the effect that Class A Notes may be
deposited with (or to the order of) the Paying Agent
or any Paying Agent for the purpose of obtaining
Voting Certificates or Block Voting Instructions (and
appointing Proxies) until 48 hours before the time
fixed for the meeting but not thereafter.
<PAGE>
52
-------------------------------------------------------------------------------
CHAIRMAN
4 A person (who may, but need not, be a relevant Class
A Noteholder) nominated in writing by the Note
Trustee shall be entitled to take the chair at every
such meeting but if no such nomination is made or if
at any meeting the person nominated shall not be
present within 15 minutes after the time appointed
for the holding of such meeting the relevant Class A
Noteholders present shall choose one of their number
to be chairman and, failing such nomination, the
Issuer Trustee may appoint a chairman (who may, but
need not, be a relevant Class A Noteholder). The
chairman of an adjourned meeting need not be the same
person as was chairman of the original meeting.
QUORUM
5 (a) At any such meeting any two or more persons
present in person holding relevant Class A
Notes or Voting Certificates or Block Voting
Instructions or being Proxies or
representatives holding or representing in
the aggregate at least 51% in principal
amount of the relevant Class A Notes for the
time being outstanding shall form a quorum
for the transaction of business and no
business (other than the choosing of a
chairman) shall be transacted at any meeting
unless the requisite quorum be present at
the commencement of business. The quorum at
any such meeting for passing an
Extraordinary Resolution shall (subject as
provided below) be two or more persons
present in person holding relevant Class A
Notes or voting certificates or being
proxies or representatives and holding or
representing in the aggregate at least 67%
in principal amount of the relevant Class A
Notes for the time being outstanding
provided that at any meeting the business of
which includes any of the matters specified
in the proviso to paragraph 13 the quorum
shall be two or more persons present in
person holding relevant Class A Notes or
voting certificates or being proxies or
representatives and holding or representing
in the aggregate not less than 75% in
principal amount of the relevant Class A
Notes. For the purpose of this Schedule,
when all the relevant Class A Notes for the
time being outstanding are represented by or
comprised in a single Class A Book-Entry
Note, the holder of such Global Note shall
be treated as two persons for the purposes
of any quorum requirements of a meeting of
the relevant Class A Noteholders.
(b) If within half an hour from the time
appointed for any such meeting a quorum is
not present the meeting shall, if convened
upon the requisition of Class A Noteholders,
be dissolved. In any other case it shall
stand adjourned (unless the Issuer Trustee
and the Note Trustee agree that it be
dissolved) for such period, being not less
than 21 days nor more than 42 days and to
such time and place, as may be appointed by
the chairman. At such adjourned meeting two
or more persons present in person holding
relevant Class A Notes or Voting
Certificates or Block Voting Instructions or
being Proxies or representatives (whatever
the principal amount of the relevant Class A
Notes so held or represented by them) shall
form a
<PAGE>
53
-------------------------------------------------------------------------------
quorum and shall have the power to
pass any resolution and to decide upon all
matters which could properly have been dealt
with at the meeting from which the
adjournment took place had a quorum been
present at such meeting provided that the
quorum at any adjourned meeting at which is
to be proposed an Extraordinary Resolution
for the purpose of effecting any of the
modifications specified in the proviso to
paragraph 13 shall be two or more persons
present holding relevant Class A Notes or
Voting Certificates or Block Voting
Instructions or being Proxies or
representatives and holding or representing
in the aggregate not less than 51% in
principal amount of the relevant Class A
Notes for the time being outstanding.
ADJOURNMENT
6 The chairman may with the consent of (and shall if
directed by) any meeting adjourn the same from time
to time and from place to place, but no business
shall be transacted at any adjourned meeting except
business which might lawfully have been transacted at
the meeting from which the adjournment took place.
NOTICE OF ADJOURNED MEETING
7 At least ten days' notice of any meeting adjourned
through want of a quorum shall be given in the same
manner as of an original meeting and such notice
shall state the quorum required at such adjourned
meeting. Otherwise, it is not necessary to give any
notice of an adjourned meeting.
RESOLUTION BY SHOW OF HANDS
8 (a) Every question submitted to a meeting shall
be decided in the first instance by a show
of hands and in the case of equality of
votes the chairman shall both on a show of
hands and on a poll have a casting vote in
addition to the vote or votes (if any) to
which he may be entitled as a relevant Class
A Noteholder or as a holder of a Voting
Certificate or Block Voting Instruction or
as a Proxy or representative.
(b) At any meeting, unless a poll is (before or
on the declaration of the result of the show
of hands) demanded by the chairman or the
Issuer Trustee, the Note Trustee or by one
or more persons holding one or more of the
relevant Class A Notes or Voting
Certificates or Block Voting Instructions or
being Proxies or representatives
representing in the aggregate not less than
two per cent. of the principal amount of the
relevant Class A Notes for the time being
outstanding, a declaration by the chairman
that a resolution has been carried or
carried by a particular majority or lost or
not carried by any particular majority shall
be conclusive evidence of the fact without
proof of the number or proportion of the
votes recorded in favour of or against such
resolution.
POLL
9 (a) If at any meeting a poll is demanded, it
shall be taken in such manner and (subject
to the provisions of this schedule) either
at once or after such an adjournment as the
chairman directs
<PAGE>
54
-------------------------------------------------------------------------------
and the result of such poll shall
be deemed to be the resolution of the
meeting at which the poll was demanded as at
the date of the taking of the poll. The
demand for a poll shall not prevent the
continuance of the meeting for the
transaction of any business other than the
question on which the poll has been
demanded.
(b) Any poll demanded at any meeting on the
election of a chairman or on any question of
adjournment shall be taken at the meeting
without adjournment.
ENTITLEMENT TO ATTEND
10 The Note Trustee and the Issuer Trustee (through
their respective representatives) and their
respective financial and legal advisers shall be
entitled to attend and speak at any meeting of the
relevant Class A Noteholders. No other person shall
be entitled to attend or vote at any meeting of the
relevant Class A Noteholders or to join with others
in requesting the convening of such a meeting unless
he produces the relevant Class A Note or Class A
Notes of which he is the holder, a Voting
Certificate, a Block Voting Instruction naming him as
Proxy or evidence of his appointment as a
representative of a Class A Noteholder. The Issuer
Trustee is not entitled to vote in respect of
relevant Class A Notes beneficially held by it or on
its behalf but this shall not prevent any Proxy named
in any Block Voting Instruction from being a
director, officer or representative of, or otherwise
connected with, the Issuer Trustee or any of its
subsidiaries or associated companies.
VOTING RIGHTS
11 (a) Except as provided in paragraph 10 above, at
any such meeting:
(i) on a show of hands every person who
is present in person and produces a
relevant Note, a Voting
Certificate, a Block Voting
Instruction naming him as a Proxy
or evidence of his appointment as a
representative of a Class A
Noteholder shall have one vote; and
(ii) on a poll every person who is so
present shall have one vote in
respect of each principal amount of
Class A Notes which is equal to the
minimum authorised denomination for
such Class A Notes, so produced or
represented by the Voting
Certificate so produced or in
respect of which he is a Proxy or
in respect of which he is a
representative. Without prejudice
to the obligations of the Proxies
named in any Block Voting
Instruction, any person entitled to
more than one vote need not use all
his votes or cast all the votes to
which he is entitled in the same
way. (b) A Proxy or representative
need not be a relevant Class A
Noteholder.
PROXIES
<PAGE>
55
-------------------------------------------------------------------------------
12 (a) Each Block Voting Instruction, together (if
so required by the Note Trustee) with proof
satisfactory to the Note Trustee of its due
execution on behalf of the Paying Agent or
Paying Agent, shall be deposited at the
specified office of the Issuer Trustee or at
such other place as the Note Trustee shall
designate or approve not less than 48 hours
before the time appointed for holding the
meeting or adjourned meeting at which the
Proxy named in the Block Voting Instruction
proposes to vote and in default the Block
Voting Instruction shall not be treated as
valid unless the chairman of the meeting
decides otherwise before such meeting or
adjourned meeting proceeds to business.
Unless otherwise agreed by the Note Trustee,
a notarially certified copy of each such
Block Voting Instruction and such
satisfactory proof (if applicable) shall be
deposited with the Note Trustee before the
commencement of the meeting or adjourned
meeting but the Note Trustee shall not
thereby be obliged to investigate or be
concerned with the validity of, or the
authority of the Proxy named in, any such
Block Voting Instruction.
(b) Any vote given in accordance with the terms
of a Block Voting Instruction shall be valid
despite the previous revocation or amendment
of the Block Voting Instruction or of any of
the relevant Class A Noteholders'
instructions pursuant to which it was
executed, provided that no intimation in
writing of such revocation or amendment
shall have been received from the Paying
Agent or the Paying Agent by the Issuer
Trustee or the Note Trustee at the specified
office of the Issuer Trustee or the Note
Trustee or by the chairman of the meeting,
in each case not less then 48 hours before
the commencement of the meeting or adjourned
meeting at which the Block Voting
Instruction is intended to be used.
POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION
13 A meeting of the Class A Noteholders shall, subject
to the provisions contained in the Class A Note
Conditions, in addition to the powers set out in this
schedule, but without prejudice to any powers
conferred on other persons by this schedule or the
Note Trust Deed, have the following powers
exercisable by Extraordinary Resolution namely:
(a) to authorise and request the Note Trustee to
direct the Security Trustee to enforce the
Master Security Trust Deed;
(b) to sanction any proposal by the Issuer
Trustee for any modification, abrogation,
variation, compromise of, or arrangement in
respect of, the rights of the relevant Class
A Noteholders or any of them against the
Issuer Trustee whether such rights shall
arise under the Class A Notes or otherwise;
(c) to sanction any proposal by the Issuer
Trustee for the exchange or sale of the
relevant Class A Notes for, or substitution
for the relevant Class A Notes of, or the
conversion of the relevant Class A Notes
into, or the cancellation of the relevant
Class A Notes in consideration of bonds,
debentures, debenture stock
<PAGE>
56
--------------------------------------------------------------------------------
or other obligations or securities of the
Issuer Trustee or any other body corporate
formed or to be formed or cash or any
combination of the above;
(d) subject to the Note Trust Deed, to assent to
any modification of the provisions contained
in the relevant Class A Notes, the Agency
Agreement, the Note Trust Deed or this
schedule which shall be proposed by the
Issuer Trustee or the Note Trustee;
(e) to waive or authorise any breach or proposed
breach by the Issuer Trustee or Note Trustee
of its obligations under this deed;
(f) to override any waiver by the Note Trustee
of a breach of any provisions of the
Transaction Documents or an Event of Default
under the Master Security Trust Deed;
(g) to approve a person proposed to be appointed
as a new Note Trustee under the Note Trust
Deed and power to remove any trustee or
trustees for the time being thereof in
relation to the relevant Class A Notes;
(h) to authorise the Note Trustee to concur in
and execute and do all such documents, acts
and things as may be necessary to carry out
and give effect to any Extraordinary
Resolution;
(i) to discharge or exonerate the Note Trustee
from any liability in respect of any act or
omission for which the Note Trustee may have
become responsible under the Note Trust Deed
or under the relevant Class A Notes;
(j) to give any authority, direction or sanction
which under the relevant Class A Notes or
the Note Trust Deed is required to be given
by Extraordinary Resolution;
(k) to appoint any persons (whether relevant
Class A Noteholders or not) as a committee
or committees to represent the interests of
the relevant Class A Noteholders and to
confer upon such committee or committees any
powers or discretions which the relevant
Class A Noteholders could themselves
exercise by Extraordinary Resolution,
(l) subject to the Note Trust Deed, to alter,
add or modify the terms and conditions of
the Class A Notes or the provisions of any
of the Transaction Documents if the
alteration, addition or modification is, in
the opinion of the Note Trustee, materially
prejudicial or likely to be materially
prejudicial to the Class A Noteholders,
other than to correct a manifest error or
ambiguity or to comply with the law, and
shall include any modifications which would
have the effect of changing the Final
Maturity Date.
provided that the special quorum provisions contained
in paragraphs
<PAGE>
57
-------------------------------------------------------------------------------
5(a) and 5(b) and, in the case of any
adjourned meeting, the proviso to paragraph 5(b)
shall apply in relation to any Extraordinary
Resolution for the purpose of making a modification
which:
(i) varies the date fixed for final
maturity or redemption of the
relevant Class A Notes;
(ii) reduces or cancels the principal
amount of the relevant Class A
Notes or the rate of interest
applicable to the relevant Class A
Notes;
(iv) alters the currency in which
payments under the relevant Class A
Notes are to be made;
(v) varies the provisions in this
schedule concerning the quorum
required for any meeting of the
relevant Class A Noteholders or the
majority required to pass an
Extraordinary Resolution;
(vi) postpones the date for payment of
interest or the rate of interest
applicable to a Class of Notes; or
(vi) amends this proviso in any manner.
BINDING EFFECT OF RESOLUTIONS
14 A resolution passed at a meeting of the relevant
Class A Noteholders duly convened and held in
accordance with this schedule is binding upon all the
relevant Class A Noteholders, whether present or not
present at such meeting, and each of the relevant
Class A Noteholders shall be bound to give effect
thereto accordingly. The passing of any such
resolution shall be conclusive evidence that the
circumstances of such resolution justify the passing
of it.
MINUTES
15 Minutes of all resolutions and proceedings at every
such meeting shall be made and duly entered in books
to be from time to time provided for that purpose by
the Issuer Trustee or the Note Trustee and any such
minutes, if purporting to be signed by the chairman
of the meeting at which such resolutions were passed
or proceedings transacted or by the chairman of the
next succeeding meeting of the relevant Class A
Noteholders, shall be conclusive evidence of the
matters referred to in the minutes and until the
contrary is proved every such meeting in respect of
the proceedings of which minutes have been made and
signed by the chairman shall be deemed to have been
duly held and convened and all resolutions passed or
proceedings transacted thereat to have been duly
passed and transacted.
SIGNED RESOLUTION
16 A resolution in writing signed by or on behalf of all
the holders of the Class A Notes shall be as valid
and effectual as an Extraordinary Resolution passed
at a meeting of such holders duly convened and held
in accordance with the provisions herein contained.
FURTHER REGULATIONS
17 Subject to all other provisions contained in this
deed, the Note Trustee
<PAGE>
58
-------------------------------------------------------------------------------
may from time to time without the consent
of the Issuer Trustee or the relevant
Class A Noteholders or any of them prescribe such
further regulations regarding the requisitioning and
holding of meetings of Class A Noteholders and
attendance and voting thereat and in relation to
resolutions in writing as the Note Trustee may in its
sole discretion determine including particularly (but
without prejudice to the generality of the foregoing)
such regulations and requirements as the Note Trustee
thinks reasonable:
(a) so as to satisfy itself that persons who
propose to requisition a meeting in
accordance with paragraph 2 or who propose
to make any requisition to the Note Trustee
are in fact Class A Noteholders; and
(b) as to the form of Voting Certificates or
Block Voting Instructions to be issued so as
to satisfy itself that persons who purport
to attend or vote at any meeting of Class A
Noteholders are entitled to do so.
<PAGE>
<TABLE>
<CAPTION>
59
--------------------------------------------------------------------------------
EXECUTION PAGE
--------------------------------------------------------------------------------
<S> <C> <C>
ISSUER TRUSTEE
SIGNED, SEALED AND DELIVERED )
by )
as attorney for PERPETUAL TRUSTEE )
COMPANY LIMITED under power of )
attorney dated )
)
in the presence of: )
)
)
Signature of witness )
)
)
Name of witness (block letters) )
)
)
Address of witness )
)
) By executing this deed the
Occupation of witness ) attorney states that the
) attorney has received no
) notice of revocation of the
) power of attorney
GLOBAL TRUST MANAGER
SIGNED by )
on behalf of and SEALED AND )
DELIVERED by HOMESIDE )
GLOBAL MBS TRUST MANAGER, )
INC. in the presence of: )
)
)
Signature of witness )
)
)
Name of witness (block letters) )
)
)
Address of witness )
)
)
Occupation of witness )
) By executing this deed the
) signatory states that the
) signatory has received no
) notice of revocation of the
) authority under which this
) deed is executed
<PAGE>
60
-------------------------------------------------------------------------------
NOTE TRUSTEE
SIGNED, SEALED AND DELIVERED by )
as authorised signatory for THE BANK )
OF NEW YORK, NEW YORK )
BRANCH in the presence of: )
)
)
Signature of witness )
)
)
Name of witness (block letters) )
)
)
Address of witness )
)
)
Occupation of witness ) By executing this deed the
) signatory states that the
) signatory has received no
) notice of revocation of the
authorisation under which this
deed is signed, sealed and
delivered
</TABLE>
<PAGE>
(v)
--------------------------------------------------------------------------------
<TABLE>
<CAPTION>
TRUST INDENTURE ACT - CROSS REFERENCE TABLE
[This Cross Reference Table does not, for any purpose, form part of this Note
Trust Deed.] "NA" means not applicable.
--------------------------------------------------------------------------------
TRUST INDENTURE ACT SECTION CLAUSE REFERENCE
--------------------------------------------------------------------------------
<S> <C>
310(a)(1) 22.3(g), 15.7-9, 18.3(b), 18.4, 18.5
--------------------------------------------------------------------------------
310(a)(2) 15.7, 15.8, 15.9
--------------------------------------------------------------------------------
310(a)(3) 18.7
--------------------------------------------------------------------------------
310(a)(4)
--------------------------------------------------------------------------------
310(a)(5) 18.12
--------------------------------------------------------------------------------
310(b) 15.9, 18.13
--------------------------------------------------------------------------------
310(c)
--------------------------------------------------------------------------------
311(a) 15.6
--------------------------------------------------------------------------------
311(b) 15.6
--------------------------------------------------------------------------------
311(c)
--------------------------------------------------------------------------------
312(a) 4.2, 4.3
--------------------------------------------------------------------------------
312(b) 4.3
--------------------------------------------------------------------------------
312(c) 4.4
--------------------------------------------------------------------------------
313(a) 17.1
--------------------------------------------------------------------------------
313(b)(1) 17.1
--------------------------------------------------------------------------------
313(b)(2) 17.1, 22.3
--------------------------------------------------------------------------------
313(c) 17.1
--------------------------------------------------------------------------------
313(d) 17.1
--------------------------------------------------------------------------------
314(a)(1) 17.2(a), 17.2
--------------------------------------------------------------------------------
314(a)(2) 17.2(b)
--------------------------------------------------------------------------------
314(a)(3) 17.2(c)
--------------------------------------------------------------------------------
314(a)(4) 7.2(b)
--------------------------------------------------------------------------------
314(b) 7.2(h)
--------------------------------------------------------------------------------
314(c) 255.1(a)
--------------------------------------------------------------------------------
314(d) 255.1(b)
--------------------------------------------------------------------------------
314(e) 255.1(c)
--------------------------------------------------------------------------------
314(f)
--------------------------------------------------------------------------------
315(a) 15.2
--------------------------------------------------------------------------------
315(b) 8.1(a)
--------------------------------------------------------------------------------
315(c) 15.3
--------------------------------------------------------------------------------
315(d) 15.5, 11.5
--------------------------------------------------------------------------------
315(e) 255.2
--------------------------------------------------------------------------------
316(a)(1) 255.3
--------------------------------------------------------------------------------
316(a)(2) 16.2
--------------------------------------------------------------------------------
316(b) 255.4
--------------------------------------------------------------------------------
316(c) 22.4
--------------------------------------------------------------------------------
<PAGE>
(vi)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
317(a)(1) 8.3
--------------------------------------------------------------------------------
317(a)(2) 8.3
--------------------------------------------------------------------------------
317(b) 7.2(i)
--------------------------------------------------------------------------------
318(a) 255.5
--------------------------------------------------------------------------------
</TABLE>
