Pre-Effective Amendment to Registration Statement for Securities of a Real Estate Company — Form S-11
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-11/A Pre-Effective Amendment to Registration Statement HTML 1.20M
for Securities of a Real Estate Company
2: EX-1.1 Underwriting Agreement 35 113K
3: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 188K
4: EX-4.1 Instrument Defining the Rights of Security Holders 233 781K
5: EX-4.2 Instrument Defining the Rights of Security Holders 8 22K
6: EX-4.4 Instrument Defining the Rights of Security Holders 44 155K
7: EX-4.5 Instrument Defining the Rights of Security Holders 133 487K
8: EX-5.1 Opinion re: Legality 3 16K
9: EX-8.2 Opinion re: Tax Matters 2 11K
10: EX-10.1 Material Contract HTML 105K
11: EX-10.2 Material Contract HTML 563K
12: EX-10.3 Material Contract 17 65K
13: EX-10.4 Material Contract 17 66K
14: EX-10.5 Material Contract 23 78K
15: EX-25.1 Statement re: Eligibility of Trustee HTML 40K
16: EX-99.1 Miscellaneous Exhibit 2 11K
EX-4.5 — Instrument Defining the Rights of Security Holders
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Exhibit 4.5
Bond Trust Deed
Permanent Custodians Limited
Australian Securitisation Management Pty Limited
Australian Mortgage Securities Ltd
The Bank of New York
Permanent Registry Limited
ARMS II Global Fund 3
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Tel 61 2 9230 4000
Fax 61 2 9230 5333
www.aar.com.au
(C) Copyright Allens Arthur Robinson 2004
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Bond Trust Deed
TABLE OF CONTENTS
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1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Master Trust Deed definitions 9
1.3 Interpretation 10
1.4 Status of this Deed 11
1.5 Liability of Issuer 11
1.6 Opinion of Counsel 12
1.7 Knowledge of Bond Trustee 12
1.8 Excluded amounts 12
2. APPOINTMENT OF BOND TRUSTEE 12
2.1 The Bond Trustee 12
2.2 Benefit of Trusts 12
2.3 Duration of Trust 13
2.4 Responsibility of Bond Trustee 13
3. COVENANT TO PAY 13
3.1 Covenant to pay 13
3.2 Discharge by payment 13
3.3 Bond Trustee's requirements following an Event of Default 13
3.4 Discharge 13
4. THE BONDS 14
4.1 Designation of Bonds 14
4.2 Classes of Bonds 14
4.3 Amount of the Bonds 14
5. FORM AND ISSUE OF OFFSHORE BONDS 14
5.1 Form and Denomination 14
5.2 Issue of Global Bond 14
5.3 Effect of registration 15
5.4 Form of Global Bond 15
5.5 Procedures for exchange 15
5.6 Dealings with Offshore Bondholders 15
5.7 Preparation and Delivery of Definitive Bonds 16
5.8 Notification of issue of Definitive Bonds 16
5.9 Issue of Definitive Bonds 17
5.10 Registration of Definitive Bonds 17
5.11 Form of the Definitive Bonds 17
5.12 Failure by the Issuer to issue Definitive Bonds 17
5.13 US Tax Treatment 18
5.14 Covenant of Compliance 18
6. CANCELLATION OF OFFSHORE BONDS 18
6.1 Cancellation 18
6.2 Records 18
6.3 Register and Registrar 18
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7. CURRENCY INDEMNITY AND PAYMENT OF DUTIES AND TAXES ON THE BONDS 19
7.1 Currency Indemnity 19
7.2 Payment of duties and Taxes on the Bonds 20
8. FORM AND ISSUE OF FAST PREPAYMENT BONDS 20
8.1 Form and denomination 20
8.2 Action following Issue 20
8.3 Effect of registration 21
8.4 Location of Fast Prepayment Bonds 21
8.5 Restriction on Issues 21
9. TRANSFERS OF FAST PREPAYMENT BONDS 21
9.1 No Restrictions on Transfer of Fast Prepayment Bonds 21
9.2 Selling restriction 21
9.3 Form of Transfer 21
9.4 Registration of Transferee as Bondholder 22
9.5 A$ Registrar entitled to refuse to register Transfer and Acceptance Form 22
9.6 Notice of refusal to Register 22
9.7 No fee for Registration of a Bond Transfer 22
9.8 Taking Effect of Bond Transfers 22
9.9 Transmission of entitlements 22
9.10 Marking of Transfers 23
9.11 Specimen signatures 23
10. REGISTRATION CONFIRMATIONS 23
10.1 Issue of Registration Confirmation 23
10.2 No Certificate of Title 23
10.3 Joint holdings 23
11. THE REGISTER 24
11.1 Details to be kept on the Register 24
11.2 Place of keeping Registers, copies and access 24
11.3 A$ Branch Registers 24
11.4 Details on Registers Conclusive 25
11.5 Closing of Registers 25
11.6 Alteration of details on Registers 25
11.7 Rectification of Registers 25
11.8 Issuer may appoint Registrars 26
12. COVENANTS BY THE ISSUER AND TRUST MANAGER 26
12.1 Covenants by the Issuer and Trust Manager 26
12.2 Covenant by the Trust Manager 28
13. REMUNERATION AND EXPENSES 29
14. REMOVAL AND RETIREMENT OF BOND TRUSTEE 29
14.1 Removal 29
14.2 Retirement of Bond Trustee 29
14.3 Removal or retirement not effective 29
14.4 Appointment of new Bond Trustee 30
14.5 Bond Trust Fund to be vested in new Bond Trustee 30
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14.6 Release of outgoing Bond Trustee 30
14.7 Incoming Bond Trustee to execute documents 30
14.8 Settlement amounts payable to outgoing Bond Trustee 31
14.9 Outgoing Bond Trustee to retain lien 31
14.10 Delivery of documents 31
14.11 Notice to Bondholders of new Bond Trustee 31
14.12 No ratings downgrade 31
14.13 Eligibility; Disqualification 31
14.14 Requirement for Bond Trustee 32
15. SUBSTITUTION OF ISSUER 32
15.1 Incoming Trustee to be Issuer 32
15.2 Effect of Substitution 32
16. AMENDMENT 33
17. BONDHOLDERS' LISTS AND REPORTS 33
17.1 Provision of information 33
17.2 Preservation of Information; Communications to Offshore Bondholders 33
17.3 Reports by Bond Trustee 34
17.4 Reports by Issuer 34
18. TRUST INDENTURE ACT - MISCELLANEOUS 34
18.1 Compliance Certificates and Opinions, etc 34
18.2 Exclusion of section 316 36
18.3 Unconditional Rights of Offshore Bondholders to Receive Principal and Interest 36
18.4 Conflict with Trust Indenture Act 36
19. MEETINGS 36
20. LIMITED RESPONSIBILITIES OF BOND TRUSTEE 37
20.1 Limited Responsibilities 37
20.2 Examination of Documents 42
21. LIMITATION OF BOND TRUSTEE'S LIABILITY 42
21.1 Limitation of liability 42
21.2 Conflicts 43
21.3 Reliance on Certificates 43
21.4 No Liability 43
21.5 No notice or enforcement 44
21.6 No liability for loss 44
21.7 Indemnity regarding exercise of Powers 44
21.8 Confidential information 44
21.9 Agents and Delegates 45
21.10 Liability for Agents and Delegates 45
21.11 No inquiry 45
21.12 Exercise of rights 45
21.13 Performance of duties 45
22. NOTICES 45
22.1 Notices generally 45
22.2 Notices to Bondholders 47
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23. GOVERNING LAW AND JURISDICTION 47
24. GENERAL 47
24.1 Remedies Cumulative 47
24.2 Severability of provisions 47
24.3 Counterparts 47
SCHEDULE 1 - PART 1 50
Form of Class A-1(a) Global Bond 50
SCHEDULE 1 - PART 2 53
Form of Class A-1(b) Global Bond 53
SCHEDULE 1 - PART 3 56
Form of Class B-1(a) Global Bond 56
SCHEDULE 1 - PART 4 59
Form of Class B-1(b) Global Bond 59
SCHEDULE 2 - PART 1 62
Form of Class A-1(a) Definitive Bond 62
SCHEDULE 2 - PART 2 64
Form of Class A-1(b) Definitive Bond 64
SCHEDULE 2 - PART 3 66
Form of Class B-1(a) Definitive Bond 66
SCHEDULE 2 - PART 4 68
Form of Class B-1(b) Definitive Bond 68
SCHEDULE 3 70
Terms and Conditions of the Bonds 70
SCHEDULE 4 110
Form of Bond Application 110
SCHEDULE 5 112
Form of Registration Confirmation 112
SCHEDULE 6 114
Form of Transfer and Acceptance 114
SCHEDULE 7 117
Meetings Procedures 117
SCHEDULE 8 128
Information to be contained in Bondholders Report 128
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Bond Trust Deed
DATE
PARTIES
1. PERMANENT CUSTODIANS LIMITED (ACN 001 426 384) of 35 Clarence
Street, Sydney, NSW 2000, Australia (included in the expression
the ISSUER);
2. AUSTRALIAN SECURITISATION MANAGEMENT PTY LIMITED (ACN 103 852
428) of Level 6, 12 Castlereagh Street, Sydney, NSW 2000,
Australia (the TRUST MANAGER);
3. AUSTRALIAN MORTGAGE SECURITIES LTD (ABN 89 003 072 446) of Level
6, 12 Castlereagh Street, Sydney, NSW 2000, Australia (the MASTER
SERVICER);
4. THE BANK OF NEW YORK, a New York banking corporation, of 101
Barclay Street, 21W, New York, New York, 10286 (included in the
expression the BOND TRUSTEE, the CALCULATION AGENT, the US$
REGISTRAR, the EURO REGISTRAR and the PRINCIPAL PAYING AGENT);
and
5. PERMANENT REGISTRY LIMITED (ACN 000 334 636) of 35 Clarence
Street, Sydney, NSW 2000, Australia (included in the expression
the SECURITY TRUSTEE).
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed:
APPROVAL means any licence, permit, consent, approval, registration or
authority.
A$ and AUSTRALIAN DOLLAR means the lawful currency of Australia.
A$ EQUIVALENT:
(a) of any amount expressed in US Dollars, means the Australian
Dollar equivalent of that amount calculated at the relevant
Exchange Rate; or
(b) of any amount expressed in EURO, means the Australian Dollar
equivalent of that amount converted at the relevant Exchange
Rate.
A$ REGISTER means the register maintained in relation to the Fast
Prepayment Bonds by or on behalf of the Issuer pursuant to clause 11.
A$ REGISTRAR means the Issuer or each person (if any) from time to time
appointed by the Issuer to maintain the A$ Register under clause 11.8.
BOND means each bond referred to in clause 4 issued by the Issuer in
accordance with the Master Trust Deed, this Deed, the Security Trust
Deed and the relevant Subscription Agreement and designated ARMS II
GLOBAL FUND 3 BOND.
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BOND APPLICATION means an application for a Fast Prepayment Bond in the
form of Schedule 4 or such other form as may from time to time be
agreed between the Issuer and the Trust Manager.
BOND DEPOSITORY AGREEMENT means the agreement, so entitled, dated on or
about the date of this Deed between the Issuer, the Bond Trustee, DTC,
Euroclear and Clearstream, Luxembourg.
BONDHOLDER means, in relation to a Bond and at any time, the person
inscribed in a Register as the holder of that Bond at that time.
BONDHOLDERS REPORT means the report to be delivered by the Trust
Manager in accordance with clause 12.1(f) containing the information
set out in Schedule 8.
BONDHOLDERS' SECURED MONEYS has the meaning given in the Security Trust
Deed.
BOND OWNER means each Class A Bond Owner and each Class B Bond Owner.
BOND TRUST means the trust created by this Deed.
BOND TRUSTEE means the person who from time to time holds the office of
trustee of the Bond Trust (in its capacity as trustee of the Bond Trust
only) which person is, at the date of this Deed, The Bank of New York.
BOND TRUST FUND means all property, rights and assets which are or
become subject to the Bond Trust.
BUSINESS DAY means a day, other than a Saturday, Sunday or a public
holiday on which banks are open for business in Sydney, Melbourne,
London, New York and the Trans-European Automated Real-Time
Gross-Settlement Express Transfer (TARGET) System or any successor to
it is open.
CALCULATION AGENT means, initially, The Bank of New York and
subsequently any successor appointed under a Paying Agency Agreement to
make calculations in relation to the Offshore Bonds.
CHARGE has the meaning given in the Security Trust Deed.
CHARGED PROPERTY has the meaning given in the Security Trust Deed.
CLASS means, as the context requires:
(a) all Class A Bonds;
(b) all Class B Bonds; or
(c) all Fast Prepayment Bonds.
CLASS A BOND means each Class A-1(a) and each Class A-1(b) Bond.
CLASS A BONDHOLDER means a Bondholder of a Class A Bond.
CLASS A BOND OWNER means each person who is the beneficial owner of all
or part of the Class A Global Bond, as reflected on the books of the
relevant Clearing Agency or on the books of the person maintaining an
account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant) in each case in accordance
with the rules of such Clearing Agency.
CLASS A CURRENCY SWAP means each Class A US$ Currency Swap and each
Class A EURO Currency Swap.
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CLASS A CURRENCY SWAP COUNTERPARTY means each Class A US$ Currency Swap
Counterparty and each Class A EURO Currency Swap Counterparty.
CLASS A EURO CURRENCY SWAP means each Currency Swap which the Issuer,
the Trust Manager and the relevant Currency Swap Counterparty agree
between them, at the time of entering into that Currency Swap, is to be
a Class A EURO Currency Swap for the purposes of the Conditions.
CLASS A EURO CURRENCY SWAP COUNTERPARTY means, in relation to a Class A
EURO Currency Swap, the person who has entered into or agreed to make
that Class A EURO Currency Swap available to the Issuer.
CLASS A US$ CURRENCY SWAP means each Currency Swap which the Issuer,
the Trust Manager and the relevant Currency Swap Counterparty agree
between them, at the time of entering into that Currency Swap, is to be
a Class A US$ Currency Swap for the purposes of the Conditions.
CLASS A US$ CURRENCY SWAP COUNTERPARTY means, in relation to a Class A
US$ Currency Swap, the person who has entered into or agreed to make
that Class A US$ Currency Swap available to the Issuer.
CLASS A-1(a) BOND means each Bond designated in the US$ Register as a
Class A-1(a) bond.
CLASS A-1(b) BOND means each Bond designated in the EURO Register as a
Class A-1(b) bond.
CLASS A-1(a) GLOBAL BOND means the global bond issued or to be issued
by the Issuer under this Deed representing the Class A-1(a) Bonds.
CLASS A-1(b) GLOBAL BOND means the global bond issued or to be issued
by the Issuer under this Deed representing the Class A-1(b) Bonds.
CLASS B BOND means each Class B-1(a) Bond and each Class B-1(b) Bond.
CLASS B BONDHOLDER means a Bondholder of a Class B Bond.
CLASS B BOND OWNER means each person who is the beneficial owner of all
or part of the Class B Global Bond, as reflected on the books of the
relevant Clearing Agency or on the books of the person maintaining an
account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant) in each case in accordance
with the rules of such Clearing Agency.
CLASS B CURRENCY SWAP means each Class B US$ Currency Swap and each
Class B EURO Currency Swap.
CLASS B CURRENCY SWAP COUNTERPARTY means each Class B US$ Currency Swap
Counterparty and each Class B EURO Currency Swap Counterparty.
CLASS B EURO CURRENCY SWAP means each Currency Swap which the Issuer,
the Trust Manager and the relevant Currency Swap Counterparty agree
between them, at the time of entering into that Currency Swap, is to be
a Class B EURO Currency Swap for the purposes of the Conditions.
CLASS B EURO CURRENCY SWAP COUNTERPARTY means, in relation to a Class B
EURO Currency Swap, the person who has entered into or agreed to make
that Class B EURO Currency Swap available to the Issuer.
CLASS B US$ CURRENCY SWAP means each Currency Swap which the Issuer,
the Trust Manager and the relevant Currency Swap Counterparty agree
between them, at the time of entering into that Currency Swap, is to be
a Class B US$ Currency Swap for the purposes of the Conditions.
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CLASS B US$ CURRENCY SWAP COUNTERPARTY means, in relation to a Class B
US$ Currency Swap, the person who has entered into or agreed to make
that Class B US$ Currency Swap available to the Issuer.
CLASS B-1(a) BOND means each Bond designated in the US$ Register as a
Class B-1(a) Bond.
CLASS B-1(b) BOND means each Bond designated in the EURO Register as a
Class B-1(b) Bond.
CLASS B-1(a) GLOBAL BOND means the global bond issued or to be issued
by the Issuer under this Deed representing the Class B-1(a) Bonds.
CLASS B-1(b) GLOBAL BOND means the global bond issued or to be issued
by the Issuer under this Deed representing the Class B-1(b) Bonds.
CLEARING AGENCY means each of the EURO Clearing Agency and the US$
Clearing Agency.
CLEARING AGENCY PARTICIPANT means a broker, dealer, bank, other
financial institution or other person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the relevant Clearing Agency.
CLEARSTREAM, LUXEMBOURG means Clearstream Banking, societe anonyme.
COMMON DEPOSITORY means:
(a) in relation to US$ Bonds, Cede & Co, as depository for DTC or
any US$ Clearing Agency appointed from time to time to hold
the Global Bonds; and
(b) in relation to EURO Bonds, The Bank of New York Depository
(Nominees) Limited as depository for Euroclear and
Clearstream, Luxembourg.
CONDITIONS means the terms and conditions applicable to the Bonds as
set out in Schedule 3, and references to a specified Condition are to
the relevant Condition of Schedule 3 (in each case, as varied or
modified from time to time in accordance with this Deed).
CORPORATIONS ACT means the Corporations Act 2001 (Commonwealth of
Australia).
CORPORATE TRUST OFFICE means the principal office of the Bond Trustee
at which, at any particular time, its corporate trust business is
administered, which at the date of the execution of this Deed is 101
Barclay Street, Floor 21 West, New York, NY 10286 USA (Attention:
Global Structured Finance Unit) or at such other address as the Bond
Trustee may designate by notice to the Trust Manager, the Offshore
Bondholders and the Issuer or the principal corporate trust office of
any successor Bond Trustee.
CROWN means the Crown in respect of the Commonwealth of Australia and
the various states of Australia.
CURRENCY SWAP means:
(a) each interest rate and currency swap Transaction made or to be
made between the Issuer and a Currency Swap Counterparty
pursuant to an ISDA Master Agreement for the purposes of
hedging the mismatches between:
(i) the currency and basis of calculation of interest of
the payment obligations of the Issuer under the
Bonds; and
(ii) the currency in which the Issuer is entitled to
receive payments in respect of the Assets and the
basis of calculation of the underlying rate of
interest payable in
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respect of Loans comprised in the Assets (having
regard to the effect on such underlying rate of any
relevant Interest Rate Swap); and
(b) each other Transaction made between the Issuer and an Eligible
Financial Institution entered into in replacement or
substitution for any such Transaction,
in each case on such terms that will not cause the credit rating
assigned by each Designated Rating Agency to the Bonds to be less than
the Designated Rating, qualified or withdrawn.
CURRENCY SWAP COUNTERPARTY means, in relation to a Currency Swap, the
person who has entered into or agreed to make that Currency Swap
available to the Issuer.
DEFINITIVE BOND means each Class A-1(a) Bond, each Class A-1(b) Bond,
each Class B-1(a) Bond and each Class B-1(b) Bond in definitive form
issued or to be issued in the circumstances specified in clause 5.7 and
includes any replacement issued under the Conditions.
DTC means The Depository Trust Company.
ELIGIBLE FINANCIAL INSTITUTION means:
(a) in relation to a Currency Swap or an Interest Rate Swap, a
bank or financial institution whose rating by each Designated
Rating Agency is such that it being a party to a Currency Swap
or an Interest Rate Swap will not cause any credit rating
assigned to the Bonds to be less than the Designated Rating,
qualified or withdrawn; and
(b) for all other purposes of the Transaction Documents relating
to the Fund, and at any time, any bank or financial
institution carrying on business in Australia whose short term
debt obligations have at that time a rating of at least "A-1+"
(S&P) and "P-1" (Moody's).
EURO BOND means each Class A-1(b) Bond and each Class B-1(b) Bond.
EURO BONDHOLDER means each Bondholder of a EURO Bond.
EURO CLEARING AGENCY means in relation to the EURO Bonds, Euroclear or
Clearstream, Luxembourg (directly or through a common depository).
EURO GLOBAL BOND means the Class A-1(b) Global Bond and the Class
B-1(b) Global Bond.
EURO REGISTER means the register maintained in relation to the EURO
Bonds by or on behalf of the Issuer pursuant to clause 11.
EURO REGISTRAR means the Issuer or each person (if any) from time to
time appointed by the Issuer to maintain the EURO Register under clause
11.8.
EURO or EURO means the currency introduced at the commencement of the
third stage of the European Economic and Monetary Union on 1 January
1999 pursuant to the Treaty establishing the European Communities as
amended by the Treaty on European Union.
EUROCLEAR means Euroclear Bank S.A./N.V. as operator of the Euroclear
System.
EVENT OF DEFAULT means each of the events specified in Condition 11.1.
EXCHANGE ACT means the United States Securities Exchange Act of 1934
(as amended from time to time).
EXPENSES means, in relation to the Fund, all costs, charges, fees and
expenses properly incurred by the Issuer or the Trust Manager in
exercising its rights or performing its obligations with respect to
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Bond Trust Deed
the Fund under the Transaction Documents in relation to the Fund, to
the extent to which they relate to the Fund or are properly payable
from the Fund, including:
(a) any costs, charges, fees and expenses payable to the Issuer,
the Trust Manager, the Security Trustee, the Bond Trustee, a
Paying Agent, the Calculation Agent or any other person
engaged by the Issuer under any Transaction Document in
relation to the Fund; and
(b) all legal costs and disbursements incurred by the Trust
Manager or the Issuer in connection with:
(i) settling and executing any Transaction Document in
relation to the Fund;
(ii) any subsequent consent, approval, waiver or amendment
under, of or to any Transaction Document in relation
to the Fund; or
(iii) evaluating any matter of concern to the Trust Manager
or the Issuer in relation to a Transaction Document
in relation to the Fund or the Fund.
Expenses do not include general overhead costs and expenses of the
Issuer or the Trust Manager (for example, rent and amounts payable to
employees in connection with their employment) incurred directly or
indirectly in connection with the business of the Issuer or the Trust
Manager.
EXPIRATION DATE has the meaning given in the Security Trust Deed.
EXTRAORDINARY RESOLUTION has the meaning given in Condition 1.2.
FAST PREPAYMENT BOND means each Bond which the Issuer issues or is
required to issue following the giving of an Issue Notice in accordance
with Condition 3.1 and which is inscribed in the A$ Register as a Fast
Prepayment Bond.
FAST PREPAYMENT BONDHOLDER means a Bondholder of a Fast Prepayment
Bond.
FUND means the Issuing Fund constituted under the Master Trust Deed
known as ARMS II GLOBAL FUND 3.
GLOBAL BOND means the Class A-1(a) Global Bond, the Class A-1(b) Global
Bond, the Class B-1(a) Global Bond and the Class B-1(b) Global Bond.
INCOMING BOND TRUSTEE has the meaning given in clause 14.5.
INDEBTEDNESS means moneys borrowed or raised, including rentals under
financial leases and interest thereon, any liability under any bill of
exchange, debenture, note or other security or under any acceptance
credit facility, any liability in respect of the acquisition cost of
assets or services to the extent payable after the time of acquisition
or possession thereof, and any guarantee or other assurance against
financial loss in respect of any moneys borrowed or raised, interest or
liabilities.
INDEPENDENT CERTIFICATE means, in relation to a person or a matter in
relation to a person (the RELEVANT PERSON), a certificate or opinion
issued by a person (including, in the case of an accountant or lawyer,
a firm of accountants or lawyers or any member of such firm) who:
(a) does not have and is not committed to acquire any material
direct or any material indirect financial interest in the
Relevant Person or in any Associate of the Relevant Person;
and
(b) is not connected with the Relevant Person as an officer,
employee, promoter, underwriter, voting trustee, partner,
director or person performing similar functions.
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A certificate or opinion issued by an accountant, in relation to a
Relevant Person or any matter in relation to a Relevant Person, may
include an accountant who audits the books of the Relevant Person if,
in addition to satisfying the above criteria, the accountant is
independent with respect to a Relevant Person within the meaning of
Rule 101 of the Code of Ethics of the American Institute of Certified
Public Accountants.
If an Independent Certificate is to be provided to the Bond Trustee,
such opinion or certificate must state that the signer of that opinion
or certificate has read this definition and that the opinion or
certificate is an Independent Certificate within the meaning of this
definition.
INITIAL PAYING AGENCY AGREEMENT means the paying agency agreement dated
on or about the date of this Deed between the Issuer, the Trust Manager
and The Bank of New York.
INTEREST RATE SWAP means each futures contract, option agreement, swap,
cap, forward rate agreement or other arrangement in relation to
interest rates made or to be made between the Issuer, the Trust Manager
and an Eligible Financial Institution for the purposes of hedging
mismatches between the rate or basis of calculation of interest payable
in respect of Mortgages in the Portfolio comprised in the Assets of the
Fund and the rate or basis of calculation of Interest Entitlements on
such terms that will not cause the credit rating assigned by each
Designated Rating Agency to Bonds to be less than the Designated
Rating, qualified or withdrawn.
INTEREST RATE SWAP COUNTERPARTY means, in relation to an Interest Rate
Swap, the person who has entered into or agreed to make that Interest
Rate Swap available to the Issuer.
ISDA DEFINITIONS means the defined meanings given to certain words and
expressions in the document entitled 2000 ISDA DEFINITIONS, as
published by the International Swaps and Derivatives Association, Inc.
ISDA MASTER AGREEMENT means:
(a) initially, each agreement made between the Issuer, the Trust
Manager and an initial Currency Swap Counterparty; and
(b) subsequently, each other agreement made between the Issuer,
the Trust Manager and a Currency Swap Counterparty,
in each case, incorporating the standard form of Master Agreement
(Multicurrency-Cross Border) (1992 Version) published by the
International Swaps and Derivatives Association, Inc.
ISSUER means initially, PCL in its capacity as trustee of the Fund and
in no other capacity; and subsequently any substitute issuer appointed
in accordance with clause 15.
MARKED T&A means a Transfer and Acceptance Form marked by the A$
Registrar in accordance with clause 9.10.
MASTER TRUST DEED means the Master Trust Deed for the ARMS II Funds
dated 7 March 1995 made between PCL and Australian Mortgage Securities
Ltd (as amended and restated from time to time and as applicable to the
Fund).
MATERIAL ADVERSE EFFECT means a material adverse effect on the amount
or timing of any payment to a Bondholder.
MEETINGS PROCEDURES means the procedures and other provisions contained
in Schedule 7.
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OFFICER'S CERTIFICATE means a certificate signed by any Authorised
Signatory of the Issuer or the Trust Manager on behalf of the Issuer,
under the circumstances described in, and otherwise complying with, the
applicable requirements of section 314 of the TIA.
OFFSHORE BOND means each Class A Bond and each Class B Bond.
OFFSHORE BONDHOLDER means each Class A Bondholder and each Class B
Bondholder.
OPINION OF COUNSEL means one or more written opinions of legal counsel
who may, except as otherwise expressly provided in this Deed, be
employees of or counsel to the Issuer or the Trust Manager, on behalf
of the Issuer, and who shall be satisfactory to the Issuer or the Bond
Trustee, as applicable, and which opinion or opinions shall be
addressed to the Issuer or the Bond Trustee, as applicable, and shall
be in form and substance satisfactory to the Issuer or the Bond
Trustee, as applicable.
OUTGOING BOND TRUSTEE has the meaning given in clause 14.5.
PAYING AGENCY AGREEMENT means each agreement entered into from time to
time between (among others) the Issuer and one or more persons acting
as Paying Agents (however described), pursuant to which those persons
agree (among other things) to act as the agent of the Issuer for the
purposes of receiving and making payments in respect of Bonds and, in
relation to the Offshore Bonds, includes the Initial Paying Agency
Agreement.
PAYING AGENT means each person who is from time to time appointed by
the Issuer as its agent for the purposes of issuing and receiving and
making payments in respect of Bonds pursuant to a Paying Agency
Agreement.
PAYMENT DATE has the meaning given in Condition 1.2.
PCL means Permanent Custodians Limited (ACN 001 426 384).
POTENTIAL EVENT OF DEFAULT means an event which with the giving of
notice, lapse of time or satisfaction of any other applicable condition
would constitute an Event of Default.
PRINCIPAL PAYING AGENT means, initially, The Bank of New York and
subsequently any successor appointed under a Paying Agency Agreement.
RECORD DATE has the meaning given in Condition 1.2.
REGISTER means each of the A$ Register, the US$ Register and the EURO
Register.
REGISTRAR means each of the A$ Registrar, the US$ Registrar and the
EURO Registrar.
REGISTRATION CONFIRMATION means a confirmation as to the registration
of a person as the holder of a Fast Prepayment Bond in the form set out
in Schedule 5 or in such other form as may from time to time be agreed
between the Issuer and the Trust Manager.
SECURED CREDITOR has the meaning given in the Security Trust Deed.
SECURED DOCUMENT has the meaning given in the Security Trust Deed.
SECURED MONEYS has the meaning given in the Security Trust Deed.
SECURITIES ACT means the United States Securities Act of 1933 (as
amended from time to time).
SECURITY TRUST DEED means the deed, so entitled, dated 19 December 2003
between the Issuer, the Trust Manager, the Security Trustee and the
Bond Trustee.
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STATUTE means any legislation of any jurisdiction in force from time to
time, and any rule, regulation, ordinance, by-law, statutory
instrument, order or notice made under any such legislation from time
to time.
SUBSCRIPTION AGREEMENT means:
(a) each agreement pursuant to which subscribers agree from time
to time to purchase or subscribe for Bonds; and
(b) in relation to the Offshore Bonds, the Underwriting Agreement.
SUBSIDIARY has the meaning given to it in the Corporations Act.
SUBSTITUTION DATE has the meaning given in clause 15.1.
TIA means the United States Trust Indenture Act of 1939 (as amended
from time to time).
TRANSACTION has the same meaning as in the ISDA Definitions.
TRANSFER AND ACCEPTANCE FORM means a form of transfer and acceptance of
Fast Prepayment Bonds in the form of Schedule 6, or such other form as
may from time to time be agreed between the Issuer and the Trust
Manager.
TRUST CORPORATION means any person eligible for appointment as a
trustee under an indenture to be qualified pursuant to the TIA, as set
forth in section 310(a) of the TIA, which shall include The Bank of New
York for so long as it complies with such section.
UNDERWRITING AGREEMENT means the agreement, so entitled, dated or about
the date of this Deed between the Issuer, the Master Servicer, the
Trust Manager, ABN AMRO Incorporated and Deutsche Bank Securities Inc.
US$ and US DOLLAR means the lawful currency of the United States of
America.
US$ BOND means each Class A-1(a) Bond and each Class B-1(a) Bond.
US$ BONDHOLDER means each Bondholder of a US$ Bond.
US$ CLEARING AGENCY means in respect of the US$ Bonds, an organisation
registered as a CLEARING AGENCY pursuant to section 17A of the Exchange
Act and appointed by the Issuer (at the direction of the Trust Manager)
to hold Bonds and, initially, means DTC.
US$ EQUIVALENT of any amount expressed in Australian Dollars means the
US Dollar equivalent of that amount calculated at the relevant Exchange
Rate.
US$ GLOBAL BOND means the Class A-1(a) Global Bond and the Class B-1(a)
Global Bond.
US$ REGISTER means the register maintained in relation to the US$ Bonds
by or on behalf of the Issuer pursuant to clause 11.
US$ REGISTRAR means the Issuer or each person (if any) from time to
time appointed by the Issuer to maintain the US$ Register under clause
11.8.
1.2 MASTER TRUST DEED DEFINITIONS
Words and expressions which are defined in the Master Trust Deed have
the same meanings when used in this Deed, unless otherwise defined in
this Deed, or unless the context otherwise requires.
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1.3 INTERPRETATION
In this Deed, unless the context indicates a contrary intention:
(a) PERSON includes an individual, a body politic, a corporation
and a statutory or other authority or association
(incorporated or unincorporated);
(b) references to a party include that party's executors,
administrators, successors, substitutes and assigns, including
any person taking by way of novation;
(c) references to any legislation or to any section or provision
thereof includes any statutory modification or re-enactment or
any statutory provision substituted therefor and all
ordinances, by-laws, regulations and other statutory
instruments issued thereunder;
(d) CORPORATION means any body corporate wherever formed or
incorporated, including any public authority or any
instrumentality of the Crown;
(e) the expression CERTIFIED means:
(i) in the case of the Bond Trustee, certified in writing
by an Authorised Signatory of the Bond Trustee; or
(ii) in the case of any other corporation or person,
certified in writing by 2 Authorised Signatories of
the corporation or by that person respectively,
and CERTIFY and like expressions shall be construed
accordingly;
(f) words importing the singular shall include the plural (and
vice versa) and words denoting a given gender shall include
all other genders;
(g) headings are for convenience only and shall not affect the
interpretation of this Deed;
(h) references to a clause or a Schedule are to a clause or a
Schedule of this Deed;
(i) where any word or phrase is given a defined meaning, any other
part of speech or other grammatical form of that word or
phrase has a corresponding meaning;
(j) if the due date for payment of any amount, or the doing of any
thing, in respect of this Deed is not a Business Day, then the
Modified Following Business Day Convention (as defined in the
ISDA Definitions) shall apply to the making of that payment or
the doing of that thing;
(k) all accounting terms shall be interpreted in accordance with
the Approved Accounting Standards;
(l) MONTH means calendar month;
(m) a reference to any document or agreement is to such document
or agreement as amended, varied, supplemented or novated from
time to time;
(n) a reference to this Deed includes a reference to a Schedule
and an exhibit to this Deed; and
(o) where this Deed refers to a provision of the TIA, that
provision is incorporated by reference in and made part of
this Deed. The following terms used in the TIA have the
following meanings in this Deed.
COMMISSION means the Securities and Exchange Commission of the
United States of America.
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INDENTURE SECURITIES means the Offshore Bonds.
INDENTURE SECURITY HOLDER means each Offshore Bondholder.
INDENTURE TO BE QUALIFIED means this Deed.
INDENTURE TRUSTEE or INSTITUTIONAL TRUSTEE means the Bond
Trustee.
OBLIGOR on the indenture securities means the Issuer.
Any other term which is used in this Deed in respect of a
section or provision of the TIA and which is defined in the
TIA, defined in the TIA by reference to another statute or
defined by or in any rule of or issued by the Commission, will
have the meaning assigned to it by such definitions.
1.4 STATUS OF THIS DEED
This Deed is:
(a) the Bond Trust Deed for the Fund; and
(b) a Transaction Document.
1.5 LIABILITY OF ISSUER
(a) The Issuer has no personal liability in relation to any of its
obligations under or arising out of this Deed or any of the
Transaction Documents entered into in its capacity as trustee
of the Fund.
(b) In relation to each such obligation, the liability of the
Issuer is limited to and does not extend beyond the Assets of
the Fund as they stand at the time at which the obligation is
met or satisfied.
(c) The Issuer is not liable to meet or satisfy any such
obligation from its own assets (except the Trustee's
Indemnity) and each such obligation must be met or satisfied
from the Fund or the Trustee's Indemnity.
(d) The preceding paragraphs apply notwithstanding the fact that
the liabilities of the Issuer in its capacity as trustee of
the Fund may from time to time almost equal, equal, or exceed
the value of the Assets of the Fund at the relevant time.
(e) The previous paragraphs of this clause 1.5 do not apply to the
liability of the Issuer in relation to any obligation which in
any Transaction Document the Issuer expressly assumes in its
personal capacity.
(f) It is acknowledged by the Issuer that the Assets of the Fund
at any time will include the amount of any compensation found
by a Final Judgment (or admitted by the Issuer) to be payable
by the Issuer to restore the Fund because of a failure by the
Issuer to exercise in relation to the Fund the degree of care,
diligence and prudence required of a trustee or because of
some other neglect, default or breach of duty by the Issuer
having regard to the powers and duties conferred on the Issuer
by the Master Trust Deed, in either case occurring before the
time in question and causing loss to the Fund quantified
before the time in question.
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(g) For the purposes of this clause 1.5, FINAL JUDGMENT means a
judgment of a court of law in Australia against which there
can be no appeal or in relation to which the time to appeal
has expired.
1.6 OPINION OF COUNSEL
For the purposes of this Deed, the Issuer or the Bond Trustee may,
where necessary, seek and rely conclusively on, any Opinion of Counsel
on any matters relating to or connected with the TIA. Where the Issuer
or the Bond Trustee has sought the Opinion of Counsel it shall not be
required to take any action under this Deed unless and until it has
received such an Opinion of Counsel. The cost of any such Opinion of
Counsel will be an EXPENSE of the Issuer in relation to the Fund.
1.7 KNOWLEDGE OF BOND TRUSTEE
The Bond Trustee will only be considered to have knowledge, notice of
or to be aware of any matter or thing if the Bond Trustee has
knowledge, notice or awareness of that matter or thing by virtue of the
actual knowledge, notice or awareness of the officers or employees of
the Bond Trustee who have day to day responsibility for the
administration of the Bond Trust.
1.8 EXCLUDED AMOUNTS
For the avoidance of doubt, the parties confirm that the proceeds of
cash collateral lodged by the provider of a Currency Swap or an
Interest Rate Swap which are payable to that person under that Currency
Swap or Interest Rate Swap (as the case may be) shall not be treated as
assets of the Trust available for distribution under clause 10.2 of the
Security Trust Deed, except to the extent that the relevant moneys are
applied in accordance with the relevant document to satisfy any
obligation owed to the Trustee by the relevant Currency Swap Provider
or Interest Rate Swap Provider (as the case may be).
2. APPOINTMENT OF BOND TRUSTEE
2.1 THE BOND TRUSTEE
Upon execution of this Deed by the Bond Trustee, the Bond Trustee:
(a) is appointed to act as trustee on behalf of the Offshore
Bondholders on the terms and conditions of this Deed; and
(b) acknowledges and declares that it:
(i) holds the sum of US$10.00 received on the date of
this Deed from the Trust Manager; and
(ii) will hold the benefit of each of the Secured
Documents to which it is a party,
in each case, on trust for the Offshore Bondholders, on and
subject to the terms and conditions of this Deed.
2.2 BENEFIT OF TRUSTS
Each Offshore Bondholder is entitled to the benefit of the Bond Trust.
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2.3 DURATION OF TRUST
The Bond Trust commences on the date of this Deed and terminates on the
earlier of:
(a) the 80th anniversary of the date of this Deed; and
(b) the Expiration Date.
2.4 RESPONSIBILITY OF BOND TRUSTEE
Notwithstanding any other provision of this Deed or any other
Transaction Document, the Bond Trustee's rights and obligations under
this Deed apply only to the Offshore Bonds and it is not in any way
responsible for the Fast Prepayment Bonds.
3. COVENANT TO PAY
3.1 COVENANT TO PAY
The Issuer covenants with the Bond Trustee for the benefit of the
Offshore Bondholders to pay or repay unconditionally to or to the order
of the Bond Trustee (as the case requires) in immediately available
funds, the Bondholders' Secured Moneys owing to the Offshore
Bondholders as and when they fall due under the Transaction Documents.
3.2 DISCHARGE BY PAYMENT
Notwithstanding clause 3.1 and subject to clauses 3.3 and 3.4, every
payment on account of Secured Moneys made by the Issuer direct to the
corresponding Offshore Bondholder of a particular Class or to a Paying
Agent in accordance with the relevant Paying Agency Agreement will
satisfy, to that extent, the Issuer's obligations to the Bond Trustee
under this Deed in respect of its obligations to that Offshore
Bondholder of that Class.
3.3 BOND TRUSTEE'S REQUIREMENTS FOLLOWING AN EVENT OF DEFAULT
At any time after an Event of Default or a Potential Event of Default
has occurred and is continuing unremedied, the Bond Trustee may, so far
as permitted by applicable law:
(a) by notice in writing to the Issuer and each Paying Agent
require the Paying Agents, until notified by the Bond Trustee
to the contrary, to:
(i) act as agents of the Bond Trustee under this Deed and
the Offshore Bondholders on the terms of the relevant
Paying Agency Agreement; and
(ii) hold all Offshore Bonds and all moneys, documents and
records held by them in respect of the Offshore Bonds
to the order of the Bond Trustee; and
(b) by notice in writing to the Issuer, require it to make all
subsequent payments in respect of the Offshore Bonds to or to
the order of the Bond Trustee and not to the Paying Agents.
3.4 DISCHARGE
Subject to clause 3.3, any payment to be made in respect of the
Offshore Bonds by the Issuer or the Bond Trustee may be made as
provided in the Conditions and any payment so made will to that extent
be a good discharge to the Issuer or the Bond Trustee, as the case may
be.
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4. THE BONDS
4.1 DESIGNATION OF BONDS
This Deed relates to and governs the issue by the Issuer, in accordance
with the Master Trust Deed, this Deed, the Security Trust Deed and the
relevant Subscription Agreement, of bonds designated collectively as
ARMS II GLOBAL FUND 3 BONDS.
4.2 CLASSES OF BONDS
The Bonds will be comprised of 5 Classes designated CLASS A-1(a) BONDS,
CLASS A-1(b) BONDS, CLASS B-1(a) BONDS, CLASS B-1(b) BONDS and FAST
PREPAYMENT BONDS respectively.
4.3 AMOUNT OF THE BONDS
(a) The aggregate Face Value of all Class A-1(a) Bonds will be
US$[*].
(b) The aggregate Face Value of all Class A-1(b) Bonds will be
EURO [*].
(c) The aggregate Face Value of all Class B-1(a) Bonds will be
US$[*].
(d) The aggregate Face Value of all Class B-1(b) Bonds will be
EURO [*].
5. FORM AND ISSUE OF OFFSHORE BONDS
5.1 FORM AND DENOMINATION
(a) Each US$ Bond will be:
(i) issued in the form of a registered bond;
(ii) denominated in US Dollars; and
(iii) issued in denominations and multiples of US$100,000.
(b) Each EURO Bond will be:
(i) issued in the form of a registered bond;
(ii) denominated in Euros; and
(iii) issued in denominations and multiples of EURO 100,000.
5.2 ISSUE OF GLOBAL BOND
(a) On the Initial Issue Date:
(i) the US$ Registrar must procure the registration in
the US$ Register of:
(A) Cede & Co as nominee for the US$ Clearing
Agency, as Bondholder of each US$ Global
Bond; and
(B) all other information required by clause
11.1; and
(ii) the EURO Registrar must procure the registration in
the EURO Register of:
(A) The Bank of New York Depository (Nominees)
Limited as nominee for the EURO Clearing
Agency, as Bondholder of each EURO Global
Bond; and
(B) all other information required by clause
11.1
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(b) The Class A-1(a) Global Bond will have an aggregate initial
Face Value of US$[*].
(c) The Class A-1(b) Global Bond will have an aggregate initial
Face Value of EURO [*].
(d) The Class B-1(a) Global Bond will have an aggregate initial
Face Value of US$[*].
(e) The Class B-1(b) Global Bond will have an aggregate initial
Face Value of EURO [*].
5.3 EFFECT OF REGISTRATION
Registration of the details of the Bondholder of each US$ Bond in the
US$ Register and of each EURO Bond in the EURO Register in accordance
with clauses 5.2(a) and 5.10(a) creates an obligation on the Issuer to
pay to the person registered as the Bondholder of each such Bond:
(a) the Face Value of each such Bond; and
(b) the Interest Entitlements relating to each such Bond,
in each case in accordance with this Deed, the Master Trust Deed, the
Security Trust Deed and the Conditions.
5.4 FORM OF GLOBAL BOND
Each Global Bond must be:
(a) printed or typed in the form or substantially in the form set
out in Schedule 1 Part 1 in relation to Class A-1(a) Bonds,
Schedule 1 Part 2 in relation to Class A-1(b) Bonds, Schedule
1 Part 3 in relation to Class B-1(a) Bonds and Schedule 1 Part
4 in relation to Class B-1(b) Bonds;
(b) signed by an Authorised Signatory of the Issuer; and
(c) authenticated by an Authorised Signatory of the Principal
Paying Agent.
No Global Bond will be valid for any purpose unless and until so
authenticated.
5.5 PROCEDURES FOR EXCHANGE
The procedures for the exchange, authentication, delivery, surrender,
cancellation, presentation and marking down of a Global Bond (or part
thereof) and any other matters to be carried out by the relevant
parties upon exchange (in whole or part) of a Global Bond will be made
in accordance with the provisions of the terms of the relevant Global
Bond and the normal practice of the relevant Common Depository, the
Paying Agents and the rules and procedures of the relevant Clearing
Agency from time to time.
5.6 DEALINGS WITH OFFSHORE BONDHOLDERS
Unless and until the Definitive Bonds have been issued to the Bond
Owners pursuant to clause 5.7:
(a) the US$ Registrar the EURO Registrar, the Issuer, the Trust
Manager, each Paying Agent, the Security Trustee and the Bond
Trustee shall be entitled to deal with the relevant Clearing
Agency for all purposes of this Deed (including the payment of
principal and interest on the Offshore Bonds and the giving of
notices to Offshore Bondholders) as the sole holder of the
relevant Offshore Bonds, and shall have no obligation to any
Bond Owners in relation to the same;
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(b) the rights of Bond Owners shall be exercised only through the
relevant Clearing Agency and shall be limited to those
established by law and agreements between such Bond Owners and
the relevant Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Bond Depository Agreement,
unless and until Definitive Bonds are issued pursuant to
clause 5.7, each Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive
and transmit payments of principal and interest on the
Offshore Bonds to such Clearing Agency Participants; and
(c) to the extent that the provisions of this clause conflict with
any other provisions of this Deed, the provisions of this
clause shall prevail.
5.7 PREPARATION AND DELIVERY OF DEFINITIVE BONDS
(a) If, while any US$ Bonds are represented by a Global Bond:
(i) DTC is no longer willing or able to discharge its
responsibilities as depository for those Offshore
Bonds and the Trust Manger is unable to locate a
qualified successor; or
(ii) the Issuer, at the direction of the Trust Manager,
elects to terminate the book-entry system through
DTC; or
(iii) after the occurrence of an Event of Default, the Bond
Trustee, at the direction of an Extraordinary
Resolution of the Offshore Bondholders, advises the
Issuer that the continuation of a book-entry system
is no longer in the best interests of the relevant
Offshore Bondholders,
then the Trust Manager must instruct the Issuer to, and the
Issuer must, subject to clause 5.9, within 30 days after the
occurrence of the relevant event, prepare (in accordance with
clause 5.11) and deliver to the Principal Paying Agent the
relevant Definitive Bonds.
(b) If, while any EURO Bonds are represented by a Global Bond:
(i) Euroclear or Clearstream, Luxembourg is no longer
willing or able to discharge its responsibilities as
depository for those Offshore Bonds and the Trust
Manger is unable to locate a qualified successor; or
(ii) the Issuer, at the direction of the Trust Manager,
elects to terminate the book-entry system through
Euroclear or Clearstream, Luxembourg; or
(iii) after the occurrence of an Event of Default, the Bond
Trustee, at the direction of an Extraordinary
Resolution of the Offshore Bondholders, advises the
Issuer that the continuation of a book-entry system
is no longer in the best interests of the relevant
Offshore Bondholders,
then the Trust Manager must instruct the Issuer to, and the
Issuer must, subject to clause 5.9, within 30 days after the
occurrence of the relevant event, prepare (in accordance with
clause 5.11) and deliver to the Principal Paying Agent the
relevant Definitive Bonds.
5.8 NOTIFICATION OF ISSUE OF DEFINITIVE BONDS
The Trust Manager, on behalf of the Issuer, will notify the Bond
Trustee immediately upon the occurrence of any of the events referred
to in clause 5.7 and will, unless the Bond Trustee agrees
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otherwise, promptly, in accordance with Condition 15, give notice of
the same and of the Issuer's obligations to issue Definitive Bonds in
accordance with clause 5.9.
5.9 ISSUE OF DEFINITIVE BONDS
All Definitive Bonds delivered to the Principal Paying Agent in
accordance with clause 5.7 must be held by it and issued to the
relevant Bond Owners upon request by those Bond Owners. The Principal
Paying Agent undertakes to deliver the Definitive Bonds to the relevant
Bond Owners as soon as practicable upon request by those Bond Owners.
The Definitive Bonds will be deemed to have been issued by the Issuer
in accordance with this clause 5.9 as soon as they have been delivered
by the Principal Paying Agent to the relevant Bond Owners on behalf of
the Issuer. The Face Value of the relevant Global Bond will be reduced
by an amount equal to the Face Value of those Definitive Bonds which
are so issued. The Issuer will not be liable for any delay in the
delivery of Definitive Bonds by the Principal Paying Agent to the Bond
Owners in accordance with this clause 5.9.
5.10 REGISTRATION OF DEFINITIVE BONDS
(a) Upon the issue of each Definitive Bond the US$ Registrar (in
the case of US$ Bonds) or the EURO Registrar, (in the case of
EURO Bonds) must procure the registration in the relevant
Register of the beneficial owner of that Definitive Bond and
all other information required by clause 11.1.
(b) Title to the Definitive Bonds will pass by registration in
accordance with this Deed.
5.11 FORM OF THE DEFINITIVE BONDS
Each Definitive Bond must be:
(a) printed or typed in the form or substantially in the form set
out in Schedule 2 Part 1 in relation to Class A-1(a) Bonds,
Schedule 2 Part 2 in relation to Class A-1(b) Bonds, Schedule
2 Part 3 in relation to Class B-1(a) Bonds and Schedule 2 Part
4 in relation to Class B-1(b) Bonds;
(b) signed by an Authorised Signatory of the Issuer; and
(c) authenticated by an Authorised Signatory of the Principal
Paying Agent.
None of the Definitive Bonds will be valid for any purpose unless and
until so authenticated and issued in accordance with clause 5.9.
5.12 FAILURE BY THE ISSUER TO ISSUE DEFINITIVE BONDS
If the Issuer becomes obliged to issue Definitive Bonds pursuant to
clause 5.7(c), but fails to do so within 30 days of the occurrence of
the relevant event described in clause 5.7(c), then the Issuer will
indemnify and keep indemnified from the Fund, the Bond Trustee, the
Offshore Bondholders and the Bond Owners in respect of the relevant
Offshore Bonds against any loss or damage incurred by any of them if
the amount received by the Bond Trustee, the Offshore Bondholders or
the relevant Bond Owners in respect of the relevant Offshore Bonds is
less than the amount that would have been received had Definitive Bonds
been issued in accordance with clause 5.7(c). If, and for so long as,
the Issuer discharges its obligations under this indemnity, the breach
by the Issuer of the provisions of clause 5.7(c) will be deemed to be
cured.
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5.13 US TAX TREATMENT
It is the intention of the parties to this Deed and, by their holding
of the US$ Bonds or EURO Bonds, the US$ Bondholders or EURO Bondholders
(as the case may be), that those US$ Bonds or EURO Bonds (as the case
may be) be treated for United States federal income tax purposes as
debt denominated in US Dollars.
5.14 COVENANT OF COMPLIANCE
Each of the Issuer and the Trust Manager covenants with the Bond
Trustee that it will comply with and perform and observe all provisions
of the Transaction Documents which are expressed to be binding on it
for the benefit of the Bond Trustee or any Offshore Bondholder. The
Transaction Documents to which the Issuer and the Bond Trustee are a
party shall be binding on the Issuer, the Bond Trustee and the Offshore
Bondholders.
6. CANCELLATION OF OFFSHORE BONDS
6.1 CANCELLATION
The Issuer must procure that all Offshore Bonds which have been:
(a) redeemed in full;
(b) surrendered and replaced pursuant to Condition 10.9; or
(c) purchased by the Issuer and surrendered for cancellation,
are immediately cancelled by or on behalf of the Issuer.
6.2 RECORDS
The Trust Manager, on behalf of the Issuer, must procure that:
(a) the Principal Paying Agent keeps a full and complete record of
all Offshore Bonds and of their redemption, purchase,
surrender, cancellation and exchange and of all replacement
Offshore Bonds issued in substitution for lost, stolen,
mutilated, defaced or destroyed Offshore Bonds;
(b) each Paying Agent keeps a full and complete record of all
amounts paid in respect of the Offshore Bonds; and
(c) such records shall be made available by the relevant Paying
Agent to the Bond Trustee at all reasonable times.
6.3 REGISTER AND REGISTRAR
(a) Upon surrender for registration of the transfer of any
Offshore Bond at the office or agency of the relevant
Registrar in relation to the Offshore Bonds to be maintained
as provided in clause 12.1(c), if the requirements of Section
8-401(a) of the Uniform Commercial Code of New York (the UCC)
are met, the Issuer must execute and, upon its written
request, the Principal Paying Agent must authenticate in the
name of the designated transferee or transferees, one or more
new Offshore Bonds of the same Class, in any authorised
denominations and of a like aggregate Face Value.
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(b) At the option of the relevant Offshore Bondholder, Offshore
Bonds may be exchanged for other Offshore Bonds of the same
Class in any authorised denominations and a like aggregate
Face Value, upon surrender of the Offshore Bonds to be
exchanged at any such office or agency referred to in
paragraph (a) above. Whenever any Offshore Bonds are so
surrendered for exchange, if the requirements of Section
8-401(a) of the UCC are met, the Issuer must execute and upon
its written request the Principal Paying Agent must
authenticate, the Offshore Bonds which the Offshore Bondholder
making the exchange is entitled to receive.
(c) Every Offshore Bond presented or surrendered for registration
of transfer or exchange shall be:
(i) duly endorsed by, or be accompanied by a written
instrument of transfer in a form satisfactory to the
relevant Registrar duly executed by the transferring
Offshore Bondholder or its attorney duly authorised
in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the
requirements of the relevant Registrar which
requirements include membership or participation of
Securities Transfer Agents Medallion Program (STAMP)
or such other "signature guarantee program" as may be
determined by the relevant Registrar in addition to,
or in substitution for, Stamp, all in accordance with
the Exchange Act; and
(ii) accompanied by such other documents as the relevant
Registrar may require.
(d) No service charge shall be made to an Offshore Bondholder for
any registration of transfer or exchange of any Offshore
Bonds, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or
exchange of the Offshore Bonds.
(e) Notwithstanding the preceding provisions of this clause, the
Issuer shall not be required to make and the relevant
Registrar need not register transfers or exchanges of any
Offshore Bonds for a period of 10 days preceding the due date
for any payment with respect to those Offshore Bonds.
7. CURRENCY INDEMNITY AND PAYMENT OF DUTIES AND TAXES ON THE BONDS
7.1 CURRENCY INDEMNITY
The Issuer must indemnify from the Fund the Bond Trustee and the
Offshore Bondholders and keep them indemnified against:
(a) (NON-PAYMENT BY THE ISSUER) any loss or damage incurred by any
of them arising from the non-payment by the Issuer of all or
any part of the Bondholders' Secured Moneys owing in respect
of Offshore Bonds by reason of any variation in the rates of
exchange between those used for calculating the amount due
under a judgment, order or proof of debt and those prevailing
at the date of actual payment by the Issuer; and
(b) (VARIATION OF EXCHANGE) any deficiency arising or resulting
from any variation in the rates of exchange between:
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(i) the date on which the local currency equivalent of
the Bondholders' Secured Moneys owing in respect of
Offshore Bonds (other than amounts due under this
clause) is calculated for the purposes of any winding
up of the Fund; and
(ii) the final date for determining the amount of claims
in such winding up.
The amount of such deficiency shall not be reduced by any
variation in rates of exchange occurring between the said
final date and the date of any distribution of assets in
connection with any such winding up.
7.2 PAYMENT OF DUTIES AND TAXES ON THE BONDS
The Issuer must pay any stamp, issue, documentary or other duties and
Taxes, payable in respect of:
(a) the execution and delivery of this Deed and the creation of
the Charge; and
(b) the creation, issue and delivery of the Bonds.
The Issuer must also indemnify the Bond Trustee and the Bondholders
from and against all stamp, issue, documentary or other duties and
Taxes paid by any of them in any jurisdiction in connection with any
action taken by or on behalf of the Bond Trustee or (where permitted
under this Deed) any Bondholder to enforce the provisions of the Bonds
or this Deed or to enforce the Charge.
8. FORM AND ISSUE OF FAST PREPAYMENT BONDS
8.1 FORM AND DENOMINATION
Each Fast Prepayment Bond will be:
(a) in the form of inscribed stock;
(b) denominated in Australian Dollars; and
(c) subject to clause 8.5, issued in denominations of A$100,000.
8.2 ACTION FOLLOWING ISSUE
As soon as practicable after an Issue Date for any Fast Prepayment
Bonds, the A$ Registrar must:
(a) inscribe in the A$ Register in accordance with clause 11:
(i) the Conditions for those Bonds, as attached to the
corresponding Issue Notice, with any amendments made
to them under clause 6.4 of the Master Trust Deed;
(ii) the details of each Bondholder of those Bonds, as
contained in the relevant Bond Application; and
(iii) the Class in which each such Bond is comprised;
(b) issue a Registration Confirmation to each Bondholder of those
Bonds in respect of the Bonds held by it; and
(c) if requested by a Bondholder of any those Bonds in its Bond
Application, issue a Transfer and Acceptance Form to the
Bondholder, marked in accordance with clause 9.10.
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8.3 EFFECT OF REGISTRATION
Inscription of the Conditions and the details of the Bondholder of each
Fast Prepayment Bond in the A$ Register in accordance with clause
8.2(a) creates an obligation on the Issuer to pay to the person
registered as the Bondholder of that Fast Prepayment Bond:
(a) the Face Value of each such Fast Prepayment Bond; and
(b) the Interest Entitlements relating to each such Fast
Prepayment Bond,
in each case in accordance with this Deed, the Master Trust Deed, the
Security Trust Deed and the Conditions.
8.4 LOCATION OF FAST PREPAYMENT BONDS
The property in Fast Prepayment Bonds shall for all purposes be
regarded as situated at the place where the A$ Register for those Bonds
is located.
8.5 RESTRICTION ON ISSUES
Each offer for subscription or purchase and each invitation to
subscribe for or buy Fast Prepayment Bonds must be made:
(a) on terms that the minimum amount payable for such Bonds on
acceptance of any such offer or invitation will be at least
A$500,000 (disregarding any amount paid or payable to the
extent to which it was paid or is to be paid out of money lent
by the person offering those Bonds or an associate (as defined
in the Corporations Act) of that person); or
(b) on such other terms as will result in the offer or invitation
not requiring disclosure to investors under Chapter 6D.2 of
the Corporations Act.
9. TRANSFERS OF FAST PREPAYMENT BONDS
9.1 NO RESTRICTIONS ON TRANSFER OF FAST PREPAYMENT BONDS
Subject to this Deed and the Conditions, there are no restrictions on
the transfer of Fast Prepayment Bonds.
9.2 SELLING RESTRICTION
A Bondholder may not transfer any of its Fast Prepayment Bonds unless
the offer or invitation to the transferee by the Bondholder in relation
to such Bonds is an offer which does not require disclosure to
investors pursuant to Chapter 6D.2 of the Corporations Act.
9.3 FORM OF TRANSFER
Every transfer of Fast Prepayment Bonds shall be effected by a Transfer
and Acceptance Form, duly completed and executed by the transferor and
transferee, duly stamped (if applicable), and lodged with the A$
Registrar.
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9.4 REGISTRATION OF TRANSFEREE AS BONDHOLDER
Subject to the terms of this Deed, the A$ Registrar must promptly
following receipt of a Transfer and Acceptance Form enter the
transferee in the A$ Register as the holder of the Bonds the subject of
that Transfer and Acceptance Form.
9.5 A$ REGISTRAR ENTITLED TO REFUSE TO REGISTER TRANSFER AND ACCEPTANCE
FORM
The A$ Registrar may refuse to register any Transfer and Acceptance
Form which would result in:
(a) a breach of the terms of this Deed, the Master Trust Deed, the
Security Trust Deed, the Conditions, or a law of an Australian
Jurisdiction; or
(b) the Issuer being required to take any action upon or following
registration to avoid any such breach.
9.6 NOTICE OF REFUSAL TO REGISTER
If the A$ Registrar refuses to register a Transfer and Acceptance Form,
it must as soon as practicable (and in any event not later than 7 days
after the date the Transfer and Acceptance Form was lodged with it)
send to the transferor and the transferee notice of such refusal.
9.7 NO FEE FOR REGISTRATION OF A BOND TRANSFER
No fee shall be charged for the registration of any Transfer and
Acceptance Form.
9.8 TAKING EFFECT OF BOND TRANSFERS
(a) A Transfer and Acceptance Form shall not take effect until
registered and until the transferee is inscribed in the A$
Register as the holder of the relevant Bonds, the transferor
shall remain the holder of those Bonds.
(b) If a Transfer and Acceptance Form is received by the A$
Registrar during any period when the A$ Register is closed,
the A$ Registrar need not register the Transfer and Acceptance
Form until after the A$ Register is re-opened.
9.9 TRANSMISSION OF ENTITLEMENTS
(a) (ELECTION) Any person becoming entitled to a Fast Prepayment
Bond as a result of the death, mental incapacity or bankruptcy
of a Bondholder may, upon producing such evidence as the A$
Registrar requires of the person's entitlement, either elect
to be registered as the Bondholder or to transfer the relevant
Bonds in the manner specified in this clause 9.9.
(b) (METHOD OF ELECTION) If such an entitled person elects to be
registered as the Bondholder, the person shall deliver to the
A$ Registrar a notice in writing to that effect signed by the
person. A person who elects to have another person registered
shall execute a Transfer and Acceptance Form in relation to
the relevant Bonds in favour of that person. All the
provisions of this Deed relating to the transfer of Fast
Prepayment Bonds shall be applicable to any such notice or
Transfer and Acceptance Form as if the death, mental
incapacity or bankruptcy of the relevant Bondholder had not
occurred and the notice or Transfer and Acceptance Form was
executed by the relevant Bondholder.
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(c) (DISCHARGE) A person entitled to a Fast Prepayment Bond under
this clause shall be entitled to receive and may give a good
discharge for all moneys payable in respect of that Bond but,
except as otherwise provided by this Deed, shall not be
entitled to any of the rights or privileges of a Fast
Prepayment Bondholder unless and until the person is entered
in the A$ Register as the holder of that Bond.
9.10 MARKING OF TRANSFERS
(a) The A$ Registrar must, upon request of a Fast Prepayment
Bondholder, mark a Transfer and Acceptance Form with a
certificate to the effect that the Bond referred to in that
Transfer and Acceptance Form is registered in the name of that
Bondholder, and that no transfer of that Bond will be
registered other than pursuant to such Transfer and Acceptance
Form for the period specified in such certificate.
(b) Where any Transfer and Acceptance Form is marked pursuant to
paragraph (a) above, the A$ Registrar must not, during the
specified period, register any transfer of any Bond referred
to in that Transfer and Acceptance Form except as effected by
such Marked T&A.
9.11 SPECIMEN SIGNATURES
The A$ Registrar may (but need not) require each Fast Prepayment
Bondholder to submit specimen signatures (and in the case of a
corporation may require those signatures to be authenticated by the
secretary or director of such Bondholder) of persons authorised to
execute Transfer and Acceptance Forms on behalf of such Bondholder and
shall be entitled to assume (until notified to the contrary) that such
authority has not been revoked.
10. REGISTRATION CONFIRMATIONS
10.1 ISSUE OF REGISTRATION CONFIRMATION
As soon as practicable (and in any event no later than 5 Business Days)
after a person has been entered and inscribed in the A$ Register as the
holder of a Fast Prepayment Bond, the A$ Registrar must issue a
Registration Confirmation to:
(a) that person in respect of that Bond; and
(b) if the transferor of that Bond continues to hold any Fast
Prepayment Bond, the transferor in respect of the Fast
Prepayment Bond(s) which it continues to hold.
10.2 NO CERTIFICATE OF TITLE
Neither a Registration Confirmation, a Transfer and Acceptance Form nor
a Marked T&A constitutes a certificate of title as to Bonds.
10.3 JOINT HOLDINGS
If a Fast Prepayment Bond is held by more than one person, only the
person whose name appears first in the A$ Register in relation to that
Bond shall be entitled to:
(a) be issued a Registration Confirmation and a Marked T&A; and
(b) be paid any moneys or exercise any other rights in respect of
that Bond.
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11. THE REGISTER
11.1 DETAILS TO BE KEPT ON THE REGISTER
The Issuer must, subject to clause 11.8, keep a register in relation to
the Fast Prepayment Bonds (the A$ REGISTER), a register in relation to
the US$ Bonds (the US$ REGISTER) and a register in relation to the EURO
Bonds (the EURO REGISTER) in which shall be inscribed the following
information in respect of the Fast Prepayment Bonds, US$ Bonds or EURO
Bonds (as the case may be):
(a) the Issue Dates for such Bonds;
(b) the number and Face Value of such Bonds issued on each Issue
Date;
(c) the Conditions (and any amendments or variations thereto made
pursuant to clause 16) for all such Bonds;
(d) the name, address and tax file or tax identification number of
each holder of such Bonds;
(e) the number of such Bonds held by each Bondholder;
(f) in the case of Fast Prepayment Bonds, details of any
Registration Confirmation issued to a Bondholder;
(g) the date on which a person was entered as the holder of such
Bonds;
(h) the date on which a person ceased to be a Bondholder of such
Bonds;
(i) the account to which any payments due to a Bondholder of such
Bonds are to be made (if applicable);
(j) a record of each payment in respect of such Bonds (including
the then Face Value of such Bonds); and
(k) such other information as the Issuer or the Trust Manager
considers necessary or desirable.
11.2 PLACE OF KEEPING REGISTERS, COPIES AND ACCESS
Each Register must be:
(a) kept at the relevant Registrar's principal office;
(b) open for inspection by a Bondholder during normal business
hours but only in respect of information relating to that
Bondholder; and
(c) not available to be copied by any person (other than the Trust
Manager) except in compliance with such terms and conditions
(if any) as the Trust Manager and Issuer in their absolute
discretion may impose.
11.3 A$ BRANCH REGISTERS
(a) The A$ Registrar must if requested by the Trust Manager
establish and maintain a branch register or registers (each an
A$ BRANCH REGISTER) on which shall be entered the names of
those Bondholders who request that their names, and the Fast
Prepayment Bonds held by them, shall be so recorded, the Fast
Prepayment Bonds in respect of which the request is made, the
date on which the name of any Bondholder was entered on such
A$ Branch Register and any other details considered necessary
or desirable by the Issuer or the Trust
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Bond Trust Deed
Manager. The name of such Bondholder and details regarding
such Fast Prepayment Bonds shall be removed from the A$
Register other than such A$ Branch Register.
(b) Every A$ Branch Register shall be designated as the A$ Branch
Register for the place where it is established.
(c) The Trust Manager may direct the A$ Registrar to discontinue
an A$ Branch Register and if it does so, the A$ Registrar must
transfer all entries from that A$ Branch Register to some
other A$ Branch Register or to the A$ Register as directed by
the Trust Manager.
(d) Except where otherwise expressly stated in this Deed or where
the context otherwise requires, every reference in this Deed
to the A$ REGISTER shall include every A$ Branch Register.
(e) Bonds registered on an A$ Branch Register may, at the request
of the relevant Bondholder and with the consent of the A$
Registrar, be transferred to another A$ Branch Register or to
the A$ Register.
11.4 DETAILS ON REGISTERS CONCLUSIVE
A Registrar is:
(a) not obliged to enter on any Register notice of any trust,
Security Interest or other interest in respect of any Bonds;
(b) entitled to recognise the person inscribed as a Bondholder in
a Register as the absolute owner of the relevant Bonds; and
(c) not bound or affected by any trust affecting the ownership of
any Bonds,
in each case unless ordered by a court or required by Statute.
11.5 CLOSING OF REGISTERS
(a) (DETERMINING ENTITLEMENTS) Each Register shall be closed by
the relevant Registrar for the purpose of determining the
Interest Entitlements and entitlements to principal payments
of Bondholders during the period commencing from the Record
Date prior to, and ending on the commencement of business on
the Business Day immediately after, each Payment Date of the
relevant Bonds.
(b) (IN NORMAL COURSE) A Registrar may with prior notice to the
relevant Bondholders close a Register for such other periods
as that Registrar may nominate in the notice, provided that
the aggregate period for which a Register may be closed in
total (under this paragraph and paragraph (a)) in any calendar
year must not exceed 30 Business Days or such other period as
that Registrar and the Trust Manager may agree.
11.6 ALTERATION OF DETAILS ON REGISTERS
Upon a Registrar being notified in writing of any change of name or
address or payment or other details of a Bondholder by the relevant
Bondholder, that Registrar must alter the relevant Register
accordingly.
11.7 RECTIFICATION OF REGISTERS
If:
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(a) an entry is omitted from a Register;
(b) an entry is made in a Register otherwise than in accordance
with this Deed;
(c) an entry wrongly exists in a Register;
(d) there is an error or defect in any entry in a Register; or
(e) default is made or unnecessary delay takes place in entering
in a Register that any person has ceased to be the holder of a
Bond,
the relevant Registrar must rectify the same promptly upon becoming
aware of its existence.
11.8 ISSUER MAY APPOINT REGISTRARS
The Issuer may, and must if required to do so by the Trust Manager,
appoint another person to be the A$ Registrar and/or the US$ Registrar
and/or the EURO Registrar and to do all of the things which this Deed
requires a Registrar to do or contemplates will be done by it, provided
that:
(a) the appointment of that person must be by written agreement
between the Issuer, the Trust Manager and the relevant
Registrar;
(b) the Issuer or the Trust Manager on behalf of the Issuer must
exercise its rights and enforce performance by that person of
its obligations under that agreement in accordance with clause
15.3 of the Master Trust Deed; and
(c) subject to paragraph (b), neither the Issuer, the Trust
Manager nor the Bond Trustee shall have any liability to any
Bondholder for the performance by that person of its
obligations.
12. COVENANTS BY THE ISSUER AND TRUST MANAGER
12.1 COVENANTS BY THE ISSUER AND TRUST MANAGER
Each of the Issuer and the Trust Manager severally undertakes to the
Bond Trustee, on behalf of the Offshore Bondholders, that it will, for
so long as any of the Offshore Bonds remain outstanding (except to the
extent that the Bond Trustee otherwise consents):
(a) (SECURITY TRUST DEED COVENANTS) comply with each covenant and
undertaking and repeat (on each date specified for repetition
in the Security Trust Deed) each representation and warranty
given by it in the Security Trust Deed;
(b) (NOTICE OF DEFAULT) in the case of the Issuer only, provide to
the Bond Trustee within 5 Business Days prior to each
anniversary of the date of this Deed and within 5 Business
Days of receiving a request from the Bond Trustee to do so, a
report which confirms that, to the knowledge of the Issuer, no
Event of Default nor Potential Event of Default is subsisting,
or giving details of any Event of Default or Potential Event
of Default that is subsisting and any other matter which is
expressly required to be brought to the Bond Trustee's
attention under this Deed or the Security Trust Deed;
(c) (MAINTENANCE OF OFFICE OR AGENCY) in the case of the Trust
Manager only, maintain, on behalf of the Issuer, in the
Borough of Manhattan, The City of New York an office or agency
where US$ Bonds and EURO Bonds may be surrendered for
registration of transfer or exchange. The Issuer hereby
initially appoints the US$ Registrar to serve as its agent for
the foregoing purposes in respect of US$ Bonds and the EURO
Registrar to serve as its agent for
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the foregoing purposes in respect of EURO Bonds. Each of US$ Registrar
and the EURO Registrar shall act solely for, and as agent of, the
Issuer and shall not have any obligations towards or relationship or
agency or trust with any other person in respect of its appointment
under this sub-paragraph (c). The Trust Manager will give prompt
written notice to the Bond Trustee of the location, and of any change
in the location, of any such office or agency. If at any time the Trust
Manager, on behalf of the Issuer, fails to maintain any such office or
agency or fails to furnish the Bond Trustee with the address thereof,
such surrenders may be made or served at the Corporate Trust Office and
the Issuer hereby appoints the Bond Trustee as its agent to receive all
such surrenders;
(d) (ANNUAL STATEMENT AS TO COMPLIANCE) deliver to the Bond
Trustee, within 120 days after the end of each fiscal year of
the Fund (commencing on 29 October 2004), and otherwise in
compliance with the requirements of section 314(a)(4) of the
TIA, an Officer's Certificate stating that:
(i) a review of the activities of the Issuer in respect
of the Fund during such year and of its performance
under the Transaction Documents has been made under
supervision of the person signing the Officer's
Certificate (the SIGNATORY); and
(ii) to the best of the knowledge of the Signatory, based
on the review referred to in paragraph (i), the
Issuer has complied with all conditions and covenants
under the Transaction Documents throughout the
relevant year, or, if there has been a default in the
compliance of any such condition or covenant,
specifying each such default known to the Signatory
and the nature, date of occurrence and status of the
default.
For the purposes of this clause 12.1(d) compliance shall be
determined without regard to any period of grace or
requirement of notice under the Transaction Documents;
(e) (OPINIONS AS TO TRUST ESTATE) in the case of the Trust Manager
only, furnish to the Bond Trustee an Opinion of Counsel either
stating that in the opinion of such counsel the Security Trust
Deed has been properly recorded and filed so as to make
effective the Security Interest intended to be created by the
Security Trust Deed, and reciting the details of such action,
or stating that in the opinion of such counsel no such action
is necessary to make such Security Interest effective (as the
case may be).
Within 120 days after the end of each fiscal year commencing
on 29 October 2004 the Trust Manager shall furnish to the Bond
Trustee an Opinion of Counsel either stating that in the
opinion of such counsel such action has been taken with
respect to the recording, filing, re-recording and refiling of
the Security Trust Deed as is necessary to maintain the
Security Interest created by the Security Trust Deed, and
reciting the details of such action, or stating that in the
opinion of such counsel no such action is necessary to
maintain such Security Interest (as the case may be);
(f) (BONDHOLDERS REPORT) in the case of the Trust Manager only,
deliver to the Principal Paying Agent, the Issuer and the Bond
Trustee within 5 Business Days of each Payment Date, the
Bondholders Report for the related Calculation Period, with
written instructions for the Bond Trustee to forward the
Bondholders Report to each Offshore Bondholder. Each
Bondholders Report shall contain the information set out in
Schedule 8;
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(g) (NOTICES) provide a copy of each notice required to be given
to the Offshore Bondholders under the Transaction Documents to
the Bond Trustee prior to such notice being given to the
Offshore Bondholders; and
(h) (LISTING) the Issuer (or the Trust Manager on its behalf) will
use its best endeavours to:
(i) maintain the listing of the Offshore Bonds on the
Irish Stock Exchange (including compliance with the
continuing obligations applicable to the Issuer by
virtue of the admission of the Offshore Bonds, on the
Irish Stock Exchange) or, if it is unable to do so
having used best endeavours, use best endeavours to
maintain a quotation or listing of the Offshore Bonds
on any other stock exchange or exchanges or
securities market or markets as the Trust Manager
decides and following that quotation or listing enter
into a deed supplemental to this Deed to effect such
consequential amendments to this Deed necessary to
comply with the requirements of any such stock
exchange or securities market; and
(ii) procure that there will at all times be furnished to
the Irish Stock Exchange (or to any other relevant
stock exchange or securities market) any information
which the Irish Stock Exchange or, as the case may
be, any other such stock exchange or securities
market, may require to be furnished in accordance
with its requirements.
12.2 COVENANT BY THE TRUST MANAGER
(a) Without limiting any other obligation of the Trust Manager
under any Transaction Document, as soon as practicable upon
reasonable request by the Issuer, the Trust Manager must:
(i) provide to the Issuer all information, notices,
certificates, consents, approvals and other documents
available to the Trust Manager and necessary to
enable the Issuer to comply with its obligations
under each of clause 12.1(h), the TIA, the Exchange
Act and the requirements of any stock exchange on
which the Bonds are listed at any time; and
(ii) take such other actions as the Issuer may reasonably
require to assist the Issuer to comply with its
obligations under each of clause 12.1(h), the TIA,
the Exchange Act and the requirements of any stock
exchange on which the bonds are listed at any time,
and the Trust Manager agrees that any breach by the Issuer of
any obligation under any of the TIA, the Exchange Act or this
Deed will not be considered to be neglect, default or breach
of duty for the purposes of clause 1.5 to the extent that it
results from a breach by the Trust Manager of this clause
12.2(a).
(b) Upon receiving notice of any amendment to any provision of the
TIA or the Exchange Act which has the effect of changing the
obligations of the Issuer referred to in paragraph (b), the
Trust Manager must, as soon as practicable, notify the Issuer
of such amendment and consult with the Issuer as to any action
the Issuer should take as a result of such amendment in order
to comply with its obligations under the TIA and the Exchange
Act (as so amended).
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13. REMUNERATION AND EXPENSES
(a) (FEES) The Issuer agrees to pay to the Bond Trustee as its
sole remuneration for undertaking its obligations under this
Deed the fees agreed between the Bond Trustee and the Trust
Manager, on behalf of the Issuer, on or before the date of
this Deed.
(b) (NO CLAIM AGAINST ISSUER) The Bond Trustee agrees that it has
no claim against the Issuer for payment of expenses other than
under and in accordance with clause 10.2 of the Security Trust
Deed or Condition 4.4.
14. REMOVAL AND RETIREMENT OF BOND TRUSTEE
14.1 REMOVAL
If:
(a) (CEASES BUSINESS) the Bond Trustee ceases its business;
(b) (FAILURE TO COMPLY) the Bond Trustee fails to comply with any
of its obligations under any Transaction Document and such
failure has had, or if continued will have, a Material Adverse
Effect (as determined by the Trust Manager) and, if capable of
remedy, the Bond Trustee does not remedy the failure within 10
Business Days after the earlier of:
(i) the Bond Trustee becoming aware of the failure; and
(ii) receipt by the Bond Trustee of a written notice in
respect of the failure from either the Trust Manager
or the Issuer;
(c) (INSOLVENT) an Event of Insolvency occurs in relation to the
Bond Trustee;
(d) (EXTRAORDINARY RESOLUTION) an Extraordinary Resolution of the
Offshore Bondholders is passed that the Bond Trustee be
removed from office; or
(e) (TIA) the Bond Trustee fails to comply with any obligation
imposed on it under the TIA with respect to the Fund or this
Deed or to comply with this clause 14,
the Trust Manager may (or in the case of clause 14.1(d), must), subject
to the following provisions of this clause 14, by at least 5 Business
Days' written notice to the Bond Trustee, remove the Bond Trustee from
office.
14.2 RETIREMENT OF BOND TRUSTEE
The Bond Trustee may, subject to the following provisions of this
clause 14, retire at any time upon giving not less than 2 months notice
in writing (or such shorter period as the parties may agree) to the
Issuer, the Trust Manager and each Offshore Bondholder.
14.3 REMOVAL OR RETIREMENT NOT EFFECTIVE
No removal or retirement of the Bond Trustee under this clause 14 is
effective unless and until:
(a) a new Bond Trustee that is a Trust Corporation has accepted
the office of Bond Trustee pursuant to clause 14.4; and
(b) the Trust Manager has received confirmation from Moody's (such
confirmation not to be unreasonably withheld or delayed) that
the appointment of the new Bond Trustee will not
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result in the credit rating of any Bond being less than the Designated
Rating, qualified or withdrawn. For the avoidance of doubt, the Trust
Manager is responsible for obtaining such confirmation from Moody's.
14.4 APPOINTMENT OF NEW BOND TRUSTEE
(a) Subject to clauses 14.1(d), 14.4(c), 14.12 and paragraph 17(f)
of the Meetings Procedures, the power of appointing a new Bond
Trustee is vested in the Trust Manager.
(b) The Trust Manager agrees that if the Bond Trustee retires or
is removed from office in accordance with this Deed, it will
use its best endeavours to appoint a new Bond Trustee as soon
as reasonably practicable.
(c) If the Trust Manager fails to appoint a new Bond Trustee by
the date that is one month prior to the date of the Bond
Trustee's proposed retirement or removal, the Bond Trustee
may:
(i) itself appoint a successor; or
(ii) petition a court of competent jurisdiction for the
appointment of a successor. The cost of any such
petition will be an EXPENSE of the Issuer in relation
to the Fund.
(d) If the Trust Manager and/or the Bond Trustee do not appoint,
or cannot find a person to act as, a new Bond Trustee, the
Offshore Bondholders may, subject to this clause 14, appoint
an Offshore Bondholder as the new Bond Trustee.
14.5 BOND TRUST FUND TO BE VESTED IN NEW BOND TRUSTEE
Upon retiring or being removed from office, the Bond Trustee (the
OUTGOING BOND TRUSTEE) must execute all documents and do all things
necessary to vest the Bond Trust Fund or cause it to be vested, in the
person appointed as the successor Bond Trustee (the INCOMING BOND
TRUSTEE).
14.6 RELEASE OF OUTGOING BOND TRUSTEE
Upon retirement or removal, the Outgoing Bond Trustee shall have no
further obligations under any Transaction Document, but retirement or
removal will not affect any of the rights, obligations or liabilities
of the Outgoing Bond Trustee accrued or arising before retirement or
removal.
14.7 INCOMING BOND TRUSTEE TO EXECUTE DOCUMENTS
The Incoming Bond Trustee must execute all documents as the Issuer
requires to:
(a) assume with effect from the date its appointment becomes
effective, all of the rights, powers, discretions and
obligations of the Bond Trustee under each Transaction
Document as if the Incoming Bond Trustee had originally been a
party to each Transaction Document as the Bond Trustee; and
(b) indemnify the Outgoing Bond Trustee for all liabilities and
expenses incurred by the Outgoing Bond Trustee for which it is
entitled to be indemnified out of the Bond Trust and which
have not been recouped by it, provided that the liability of
the Incoming Bond Trustee under such indemnity shall be
limited to the assets of the Bond Trust and any payment shall
rank the same priority as the corresponding liability for
which the Outgoing Bond Trustee claims such indemnification.
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14.8 SETTLEMENT AMOUNTS PAYABLE TO OUTGOING BOND TRUSTEE
The Issuer or the Trust Manager must:
(a) settle with the Outgoing Bond Trustee the amount of any sums
payable by the Outgoing Bond Trustee to the Issuer, the Trust
Manager or the Incoming Bond Trustee and by the Issuer, the
Trust Manager or the Incoming Bond Trustee to the Outgoing
Bond Trustee; and
(b) give or accept from the Outgoing Bond Trustee a discharge in
respect thereof.
Any such settlement or discharge shall (except in the case of any
fraud, negligence or wilful default on the part of the Outgoing Bond
Trustee or its officers, employees, agents and delegates) be conclusive
and binding upon all persons.
14.9 OUTGOING BOND TRUSTEE TO RETAIN LIEN
Notwithstanding the retirement or removal of the Outgoing Bond Trustee
and the indemnity in favour of the Outgoing Bond Trustee by the
Incoming Bond Trustee as contemplated by clause 14.7, the Outgoing Bond
Trustee will retain a lien over the Bond Trust to meet claims of any
creditors of the Outgoing Bond Trustee as trustee of the Bond Trust, to
the extent that the claims of those creditors are not properly and duly
satisfied by the Incoming Bond Trustee.
14.10 DELIVERY OF DOCUMENTS
The Outgoing Bond Trustee must immediately upon termination of its
appointment becoming effective deliver to the Incoming Bond Trustee (or
at its direction) all books, documents, records and property relating
to the Bond Trust. The Outgoing Bond Trustee is entitled to take, and
keep copies of such books, documents and records. The Incoming Bond
Trustee must produce the originals of such books, documents and records
in its possession upon the giving of reasonable written notice by the
Outgoing Bond Trustee.
14.11 NOTICE TO BONDHOLDERS OF NEW BOND TRUSTEE
The Incoming Bond Trustee or the Trust Manager must give notice to each
Designated Rating Agency and each Offshore Bondholder as soon as
practicable following the appointment of the Incoming Bond Trustee.
14.12 NO RATINGS DOWNGRADE
The Trust Manager must exercise the power of appointment conferred by
clause 14.4 in such a way that the appointment of the Incoming Bond
Trustee does not cause the credit rating assigned by each of the
Designated Rating Agencies to the Offshore Bonds issued prior to, or to
be issued by the Issuer following, such appointment to be less than the
relevant Designated Rating, qualified or withdrawn.
14.13 ELIGIBILITY; DISQUALIFICATION
(a) The Bond Trustee must at all times satisfy the requirements of
section 310(a) of the TIA.
(b) The Bond Trustee must have a combined capital and surplus (as
those terms are used in the TIA) of at least US$50,000,000 as
set forth in its most recent published annual report of
condition of the Bond Trustee.
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(c) The Bond Trustee must comply with section 310(b) of the TIA,
provided that any indenture or indentures under which other
securities of the Issuer are outstanding shall be excluded
from the operation of section 310(b)(1) of the TIA for the
purposes of paragraph (b) if the requirements for such
exclusion set out in section 310(b)(1) of the TIA are met.
14.14 REQUIREMENT FOR BOND TRUSTEE
Notwithstanding anything in this Deed to the contrary, no person shall
become a Bond Trustee under this Deed unless it meets the requirements
of Section 26(a)(1) of the United States Investment Company Act of
1940, as amended (the INVESTMENT COMPANY ACT).
15. SUBSTITUTION OF ISSUER
15.1 INCOMING TRUSTEE TO BE ISSUER
If:
(a) the Issuer, as Outgoing Trustee, retires or is removed from
office as trustee of the Fund in accordance with clause 17 of
the Master Trust Deed;
(b) the Outgoing Trustee and the Incoming Trustee have executed
all documents and done all things necessary to vest all of the
Assets of the Fund in the Incoming Trustee (as contemplated by
clause 17.5 of the Master Trust Deed);
(c) the Incoming Trustee has assumed all of the rights, powers,
discretions and obligations of the Outgoing Trustee, including
(without limitation) under each Paying Agency Agreement, but
excluding under this Deed and the Bonds (as contemplated by
clause 17.7 of the Master Trust Deed);
(d) the Incoming Trustee has executed all such documents and done
all such things as are necessary to ensure that all of the
Charged Property continues to be charged to the Security
Trustee for the benefit of the Secured Creditors, upon and
subject to the terms and conditions of this Deed; and
(e) all necessary Approvals of any Government Body have been
obtained,
then the Outgoing Trustee and the Incoming Trustee may by written
notice to all Secured Creditors with effect from the date (the
SUBSTITUTION DATE) specified in the notice (which must be not less than
5 Business Days after the date on which the notice is given) substitute
the Incoming Trustee as the obligor in respect of the Bonds in place of
the Outgoing Trustee.
15.2 EFFECT OF SUBSTITUTION
If the Issuer, as Outgoing Trustee, and the Incoming Trustee give a
notice in accordance with clause 15.1 on and with effect from the
Substitution Date, and without the need for any person to do any other
act or thing:
(a) the Incoming Trustee shall be bound by the terms and
conditions of the Security Trust Deed, this Deed and by the
Bonds and the Conditions relating to them; and
(b) the Outgoing Trustee shall cease to have any obligations under
the Security Trust Deed, this Deed or the Bonds or the
Conditions relating to them.
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16. AMENDMENT
(a) Subject to paragraph (b), this Deed (including this clause 16
and any of the Conditions) may only be amended in accordance
with clause 15.1 of the Security Trust Deed.
(b) No amendment to this Deed will be effective unless:
(i) such amendment conforms to the requirements of the
TIA; and
(ii) after such amendment, this Deed (as amended) is
qualified under the TIA.
In this regard, the Security Trustee and the Bond Trustee are entitled
to rely on the advice of the Trust Manager, the Bond Trustee (in the
case of the Security Trustee) and/or their respective US legal counsel.
17. BONDHOLDERS' LISTS AND REPORTS
17.1 PROVISION OF INFORMATION
The Trust Manager, on behalf of the Issuer, will furnish or cause to be
furnished to the Bond Trustee:
(a) every six months (with the first six month period commencing
on the Initial Issue Date) (each such date being a NOTICE
DATE), a list, in such form as the Bond Trustee may reasonably
require, of the names and addresses of the Offshore
Bondholders as of the Record Date immediately preceding that
Notice Date; and
(b) at such other times as the Bond Trustee may request in
writing, within 30 days after receipt by the Trust Manager
with a copy provided to the Issuer of any such request, a list
of similar form and content as of a date not more than 10 days
prior to the time such list is furnished,
provided that so long as:
(c) the Bond Trustee is the US$ Registrar and the EURO Registrar;
or
(d) the US$ Bonds and the EURO Bonds are Global Bonds,
no such list shall be required to be furnished.
17.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO OFFSHORE BONDHOLDERS
(a) The Bond Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the US$
Bondholders and the EURO Bondholders contained in the most
recent list (if any) furnished to the Bond Trustee as provided
in clause 17.1 and:
(i) if it acts as US$ Registrar, the names and addresses
of US$ Bondholders received by the Bond Trustee in
its capacity as US$ Registrar; and
(ii) if it acts as EURO Registrar the names and addresses
of EURO Bondholders received by the Bond Trustee in
its capacity as EURO Registrar,
The Bond Trustee may destroy any list furnished to it as
provided in such clause 17.1 upon receipt of a new list so
furnished.
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(b) Offshore Bondholders may communicate pursuant to section
312(b) of the TIA with other Offshore Bondholders with respect
to their rights under this Deed or under the Offshore Bonds.
(c) The Issuer, the Bond Trustee, the US$ Registrar and the EURO
Registrar shall have the protection of section 312(c) of the
TIA.
17.3 REPORTS BY BOND TRUSTEE
If required by section 313(a) of the TIA, within 60 days after each 30
June, beginning with 30 June 2004, the Bond Trustee must mail to each
Offshore Bondholder, the Issuer and the Trust Manager as required by
section 313(c) of the TIA a brief report dated as of such date that
complies with section 313(a) of the TIA. The Bond Trustee must also
comply with section 313(b) of the TIA. A copy of each report at the
time of its mailing to Offshore Bondholders must be filed by the Bond
Trustee with the Commission and each stock exchange, if any, on which
the Offshore Bonds are listed. The Trust Manager, on behalf of the
Issuer, must notify the Bond Trustee if and when the Offshore Bonds are
listed on any stock exchange.
17.4 REPORTS BY ISSUER
The Issuer (or the Trust Manager on its behalf) must:
(a) file with the Bond Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Issuer is required to file with the
Commission pursuant to section 13 or 15(d) of the Exchange
Act;
(b) file with the Bond Trustee and the Commission in accordance
with the rules and regulations prescribed from time to time by
the Commission such additional information, documents and
reports with respect to compliance by the Issuer with the
conditions and covenants of this Deed as may be required from
time to time by such rules and regulations; and
(c) supply to the Bond Trustee (and the Bond Trustee must transmit
the same by mail to all Offshore Bondholders described in
section 313(c) of the TIA) such summaries of any information,
documents and reports required to be filed by the Issuer
pursuant to clauses (a) and (b) of this clause 17.4 as may be
required by rules and regulations prescribed from time to time
by the Commission.
18. TRUST INDENTURE ACT - MISCELLANEOUS
18.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC
(a) Upon any application or request by the Issuer or the Trust
Manager to the Bond Trustee to take any action under any
provision of this Deed, the Issuer (or the Trust Manager on
its behalf) must furnish to the Bond Trustee:
(i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Deed relating
to the proposed action have been complied with;
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(ii) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any,
have been complied with; and
(iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting
the applicable requirements of section 314(c)(3) of
the TIA, except that, in the case of any such
application or request as to which the furnishing of
such documents is specifically required by any
provision of this Deed, no additional certificate or
opinion need be furnished.
(b) (i) Prior to the deposit of any property or securities
with the Issuer that is to be made the basis for the
release of any property or securities subject to the
Security Interest created by the Security Trust Deed,
the Issuer (or the Trust Manager on its behalf) must,
in addition to any obligation imposed in clause
18.1(a) or elsewhere in this Deed, furnish to the
Bond Trustee an Officer's Certificate certifying or
stating the opinion of each person signing such
certificate as to the fair value (within 90 days of
such deposit) of the property or securities to be so
deposited.
(ii) Whenever any property or securities are to be
released from the Security Interest created by the
Security Trust Deed, the Issuer must also furnish to
the Bond Trustee an Officer's Certificate certifying
or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of
such release) of the property or securities proposed
to be released and stating that in the opinion of
such person the proposed release will not impair the
security under the Security Trust Deed in
contravention of the provisions of the Security Trust
Deed or this Deed.
(iii) Whenever the Issuer is required to furnish to the
Bond Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the
matters described in paragraphs (i) and (ii), the
Issuer (or the Trust Manager on its behalf) must also
furnish to the Bond Trustee an Independent
Certificate as to the same matters if the fair value
of the property or securities and of all other
property or securities deposited or released from the
Security Interest created by the Security Trust Deed
since the commencement of the then current calendar
year, as set forth in the certificate required by
clause (ii) and this clause (iii), equals 10% or more
of the aggregate of the A$ Equivalent of the Face
Value of the US$ Bonds and the A$ Equivalent of the
Face Value of the EURO Bonds at that time, but such
certificate need not be furnished in the case of any
release of property or securities if the fair value
thereof as set forth in the related Officer's
Certificate is less than US$25,000 or less than one
percent of the aggregate of the A$ Equivalent of the
Face Value of the US$ Bonds and the A$ Equivalent of
the Face Value of the EURO Bonds at that time.
(iv) Notwithstanding any other provision of this clause,
the Issuer may collect, liquidate, sell or otherwise
dispose of the Assets of the Fund as and to the
extent permitted or required by the Transaction
Documents.
(c) Every Officer's Certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Deed must include:
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(i) a statement that each signatory of such certificate
or opinion has read or has caused to be read such
covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination
or investigation as is necessary to enable such
signatory to express an informed opinion as to
whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been
complied with.
18.2 EXCLUSION OF SECTION 316
(a) Section 316(a)(1) of the TIA is expressly excluded by this
Deed.
(b) For the purposes of section 316(a)(2) of the TIA, in
determining whether any Offshore Bondholders have concurred in
any relevant direction or consent, Offshore Bonds owned by the
Issuer or by any Associate of the Issuer, shall be
disregarded, except that for the purposes of determining
whether the Bond Trustee shall be protected in relying on any
such direction or consent, only Offshore Bonds which the Bond
Trustee knows are so owned shall be so disregarded.
18.3 UNCONDITIONAL RIGHTS OF OFFSHORE BONDHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST
Notwithstanding any other provisions in this Deed, each Offshore
Bondholder shall have a right, which is absolute and unconditional, to
receive payment of the principal and interest on each Offshore Bond
held by it on or after the respective due dates for payment and to
institute suit for the enforcement of any such payments, and such right
shall not be impaired, without the consent of such Offshore Bondholder,
except to the extent that the institution or prosecution thereof or the
entry of judgment therein would, under applicable law, result in the
surrender, impairment, waiver, or loss of the Security Interest created
by the Security Trust Deed upon any property subject to such Security
Interest.
18.4 CONFLICT WITH TRUST INDENTURE ACT
(a) If any provision of this Deed limits, qualifies or conflicts
with another provision of this Deed that is required to be
included in this indenture by any of the provisions of the
TIA, such required provision shall prevail.
(b) The provisions of section 310 to 317 (inclusive) of the TIA
that impose duties on any person (except to the extent
expressly excluded in this Deed) form part of this Deed,
whether or not contained expressly in this Deed.
19. MEETINGS
The Meetings Procedures apply to all meetings and resolutions of
Bondholders.
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20. LIMITED RESPONSIBILITIES OF BOND TRUSTEE
20.1 LIMITED RESPONSIBILITIES
Subject to clause 21.1, the parties agree that:
(a) any advice, opinion or information obtained by the Bond
Trustee from any lawyer, valuer, accountant, banker, broker,
credit-rating agency, lead manager or other expert may be sent
or obtained by letter, telex, telegram, facsimile
transmission, email or cable and the Bond Trustee shall not be
liable for acting on any advice, opinion or information
purporting to be conveyed by any such letter, telex, telegram,
facsimile transmission, email or cable although the same shall
contain some error or shall not be authentic;
(b) the Bond Trustee may call for and shall be at liberty to
accept as sufficient evidence of any fact or matter or the
expediency of any transaction or thing, a certificate signed
by two Authorised Signatories of the Issuer or the Trust
Manager (as the case may be) and the Bond Trustee shall not be
bound in any such case to call for further evidence or be
responsible for any loss that may be occasioned by the Bond
Trustee acting on that certificate;
(c) the Bond Trustee is at liberty to hold or to place this Deed
and any other documents relating to this Deed in any part of
the world with any banker or banking company or company whose
business includes undertaking the safe custody of documents or
lawyer or firm of lawyers reasonably considered by the Bond
Trustee to be of good repute;
(d) except in the case of fraud, negligence or wilful default of
the Bond Trustee, the Bond Trustee shall not be responsible
for any loss, expense or liability which may be suffered as a
result of any Secured Property or any deed or documents of
title to the Secured Property being uninsured or inadequately
insured or being held by or to the order of any clearing
organisations or their operators or by any person on behalf of
the Bond Trustee if prudently chosen by the Bond Trustee in
accordance with the Transaction Documents;
(e) the Bond Trustee shall not be responsible for the application
of the Issue Proceeds of the Offshore Bonds by the Issuer or
any moneys borrowed by the Issuer under any Transaction
Document or the exchange of any Global Bond for any Definitive
Bonds;
(f) except as otherwise provided in this Deed or any other
Transaction Document to which it is a party, the Bond Trustee
shall not be bound to give notice to any person of the
execution of this Deed or any other Transaction Document or
any transaction contemplated by this Deed or any Transaction
Document or to take any steps to ascertain whether any Event
of Default has occurred and, until it has knowledge or notice
to the contrary, the Bond Trustee is entitled to assume that
no Event of Default has occurred and that the Issuer and each
other party to each Transaction Document are observing and
performing their respective obligations;
(g) save as expressly otherwise provided in this Deed or any other
Transaction Document:
(i) the Bond Trustee shall have absolute and uncontrolled
discretion as to the exercise of the discretions
vested in it by this Deed and each other Transaction
Document (the exercise of which as between the Bond
Trustee and the Offshore Bondholders shall be
conclusive and binding on the Offshore Bondholders)
but whenever the
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Bond Trustee is under the provisions of this Deed or
any other Transaction Document bound to act at the
request or direction of a particular Class of
Offshore Bondholders, or any of them, the Bond
Trustee shall not be so bound unless it is first
indemnified or accepts security to its satisfaction
against all actions, proceedings, claims and demands
to which it may render itself liable and all costs,
charges, damages, expenses and liabilities which it
may incur by so doing; and
(ii) in the absence of fraud, negligence or wilful
default, the Bond Trustee shall not be in any way
responsible for any loss (whether consequential or
otherwise), costs, damages or inconvenience that may
result from the exercise or non-exercise of any
powers, authorities and discretions vested in it;
(h) the Bond Trustee shall not be liable for acting upon any
resolution purporting to have been passed at any meeting of
the Offshore Bondholders in respect of which minutes have been
made and signed even though subsequently it may be found that
there was some defect in the constitution of the meeting or
the passing of the resolution or that for any reason the
resolution was not valid or binding upon the Offshore
Bondholders;
(i) the Bond Trustee shall not be liable to the Issuer or any
Offshore Bondholder by reason of having accepted as valid or
not having rejected any entry in the relevant Register which
is subsequently found to be incorrect and the Bond Trustee
shall be at liberty to accept and place full reliance on the
relevant Register as complete and accurate evidence to the
effect that at any particular time or through any particular
period any particular person is, was, or will be, shown in its
records as entitled to a particular number of US$ Bonds or
EURO Bonds (as the case may be);
(j) any consent or approval given by the Bond Trustee for the
purpose of this Deed or any other Transaction Document may be
given on any terms and subject to any conditions as the Bond
Trustee thinks fit and despite anything to the contrary
contained in this Deed or any other Transaction Document may
be given retrospectively;
(k) save as otherwise expressly provided in this Deed or any other
Transaction Document, the Bond Trustee shall not (unless and
to the extent ordered so to do by a court of competent
jurisdiction) be required to disclose to any Offshore
Bondholder or any Secured Creditor, any information made
available to the Bond Trustee by the Issuer, the Trust Manager
or any other person in connection with the Bond Trust and no
Offshore Bondholder shall be entitled to take any action to
obtain from the Bond Trustee any such information;
(l) where it is necessary or desirable for any purpose in
connection with this Deed to convert any sum from one currency
to another it shall (unless otherwise provided by this Deed or
any other Transaction Document or required by law) be
converted at the rate or rates, in accordance with the method
and as at the date for the determination of the rate of
exchange, as may be agreed by the Bond Trustee in consultation
with the Issuer and the Trust Manager as relevant and any
rate, method and date so agreed shall be binding on the Issuer
and the Offshore Bondholders;
(m) the Bond Trustee shall not be bound to take any steps to
ascertain whether any event, condition or act, the happening
of which would cause a right or remedy to become exercisable
by the Bond Trustee under this Deed or by the Issuer under any
of the Transaction Documents has happened or to monitor or
supervise the observance and
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performance by the Issuer or any other party of their
respective obligations under any Transaction Document and,
until it has knowledge or notice to the contrary, the Bond
Trustee shall be entitled to assume that no such event,
condition or act has happened and that the Issuer and each of
other party to the Transaction Documents are observing and
performing all their respective obligations under those
Transaction Documents;
(n) the Bond Trustee shall not be responsible for recitals,
statements, warranties or representations of any party (other
than itself) contained in any Transaction Document or other
document entered into in connection with any Transaction
Document and shall assume the accuracy and correctness of all
such recitals, statements, warranties and representations and
(except with respect to itself) the execution, legality,
effectiveness, adequacy, genuineness, validity or
enforceability or admissibility in evidence of each such
document and any security constituted by such document. The
Bond Trustee may accept without enquiry, requisition or
objection all title as the Issuer may have to any of the
Secured Property or as any other person may have to any other
security charged from time to time to the Security Trustee and
shall not be bound to investigate or make any enquiry in the
title of the Issuer to any of the Secured Property or the
title of any other person to any other security charged from
time to time to the Security Trustee whether or not any
default or failure might be, or might have been, discovered
upon examination inquiry or investigation and whether or not
capable of remedy. Notwithstanding the generality of the
foregoing, each Offshore Bondholder is solely responsible for
making its own independent appraisal of and investigation into
the Fund, the Offshore Bonds and the Bond Trustee shall not at
any time have any responsibility for the same and no Offshore
Bondholder shall rely on the Bond Trustee in that respect;
(o) the Bond Trustee shall not be liable for any failure, omission
or defect in filing or procuring registration of, or otherwise
protecting or perfecting, the Security Trust Deed, the Secured
Property or any other security or failure to call for or
delivery of documents of title to the Secured Property or any
other security or to require any further assurances in
relation to any property or assets comprised in the Secured
Property or any other security;
(p) the Bond Trustee shall, as regards all the powers, trusts,
authorities, duties and discretions vested in it by this Deed,
the Transaction Documents, or the Offshore Bonds except where
expressly provided otherwise, have regard to the interests of
the Offshore Bondholders;
(q) without prejudice to the provisions of any Transaction
Document, the Bond Trustee shall not be under any obligation
to insure any of the Secured Property (or any other property)
or any deeds or documents of title or other evidence relating
to that property;
(r) the Bond Trustee shall not be responsible for any loss,
expense or liability (including, without limitation, any
decline in value or loss realised upon any sale or disposition
made under the Security Trust Deed) occasioned to the Secured
Property or any other property however caused (including any
bank, broker, depository, warehouseman or other intermediary
or any clearing system or its operator acting in accordance
with or contrary to the terms of any of the Transaction
Documents or otherwise), unless that loss is occasioned by the
fraud, negligence, or wilful default of the Bond Trustee;
(s) the Bond Trustee has no responsibility whatsoever to the
Issuer or any Offshore Bondholder as regards any deficiency or
additional payment, as the case may be, which
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might arise because the Bond Trustee or the Issuer is subject
to any Tax in respect of the Secured Property, the Security
Trust Deed or any other security, income or proceeds from
them;
(t) the Bond Trustee shall not be liable in respect of any failure
to perform or do any act or thing which, by reason of any
applicable law, ordinance, rule, regulation or by-law or any
decree, order or judgment of any competent court or other
tribunal, the Bond Trustee is prevented or forbidden from
performing or doing;
(u) the Bond Trustee is not responsible (except as to itself) for
the genuineness, validity, effectiveness or suitability of any
of the Transaction Documents or any of the Mortgages, Security
Interests or other documents entered into in connection with
them or any Mortgage Insurance Policy or the priority
constituted by or purported to be constituted by or pursuant
to any Security Interest, nor shall it (except as to itself)
be responsible or liable to any person because of any
invalidity of any provision of those documents or the
unenforceability of those documents, whether arising from
statute, law or decision of any court and (without limitation)
the Bond Trustee shall not be responsible for or have any duty
to make any investigation in respect of or in any way be
liable whatsoever for:
(i) the nature, status, creditworthiness or solvency of
any Borrower or any other person or entity who has at
any time provided any security or support whether by
way of guarantee, Security Interest or otherwise in
respect of any advance made to any Borrower;
(ii) the execution, legality, validity, adequacy,
admissibility in evidence or enforceability of any
Mortgage or Loan or any other document entered into
in connection with them;
(iii) the title, ownership, value, sufficiency or existence
of any Land, Secured Property or any Mortgage
Insurance Policy;
(iv) the registration, filing, protection or perfection of
any Mortgage or the priority of the security created
under a Mortgage whether in respect of any initial
advance or any subsequent advance or any other sums
or liabilities;
(v) the scope or accuracy of any representations,
warranties or statements made by or on behalf of any
Borrower in any application for any advance or in any
Mortgage or Loan or in any document entered into in
connection with them;
(vi) the performance or observance by any Borrower or any
other person of any provisions of any Mortgage or
Loan or in any document entered into in connection
with them or the fulfilment or satisfaction of any
conditions contained in them or relating to them or
as to the existence or occurrence at any time of any
default, event of default or similar event contained
in them or any waiver or consent which has at any
time been granted in relation to any of the above;
(vii) the existence, accuracy or sufficiency of any legal
or other opinions, searches, reports, certificates,
valuations or investigations delivered or obtained or
required to be delivered or obtained at any time in
connection with any Mortgage or Loan;
(viii) the title of the Issuer to any Mortgage or Loan or
other Secured Property;
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(ix) the suitability, adequacy or sufficiency of any
guidelines under which Loans are entered into or
compliance with those guidelines or compliance with
any applicable criteria for any further advances or
the legality or ability or enforceability of the
advances or the priority of the Mortgages in relation
to the advances;
(x) the compliance of any person with the provisions and
contents of and the manner and formalities applicable
to the execution of the Mortgages and Loans and any
documents connected with them or the making of any
advance intended to be secured by them or with any
applicable laws or regulations (including the
Consumer Credit Code and the Consumer Credit
Regulations);
(xi) the failure of the Master Servicer, the Trust Manager
or the Issuer to obtain or comply with any
authorisation in connection with the origination,
sale, purchase or administration of any of the
Mortgages or Loans or the making of any advances in
connection with them or the failure to effect or
procure registration of or to give notice to any
person in relation to or otherwise protect the
security created or purported to be created by or
pursuant to any of the Mortgages or Loans or other
documents entered into in connection with them;
(xii) the failure to call for delivery of documents of
title to or require any transfers, legal mortgages,
charges or other further assurances in relation to
any of the assets the subject matter of any of the
Transaction Documents or any other document;
(xiii) any accounts, books, records or files maintained by
the Master Servicer, the Issuer, the Trust Manager or
any other person in respect of any of the Mortgages
or Loans; or
(xiv) any other matter or thing relating to or in any way
connected with any Mortgage or Loan or any document
entered into in connection with any Mortgage or Loan
whether or not similar to the above;
(v) the Bond Trustee is not liable in respect of it being treated
as, or being deemed to be, a credit provider, for the purposes
of the Consumer Credit Code, in respect of any of the
Mortgages;
(w) in connection with any proposed modification, waiver,
authorisation or determination permitted by this Deed, the
Bond Trustee shall not have regard to the consequences thereof
for individual Offshore Bondholders resulting from their being
for any purpose domiciled or resident in, or otherwise
connected with, or subject to, the jurisdiction of any
particular territory;
(x) except as otherwise provided in this Deed or any other
Transaction Document, the Bond Trustee shall have no
responsibility for the maintenance of any rating of any
Offshore Bonds by a Designated Rating Agency or any other
credit-rating agency or any other person;
(y) the Bond Trustee shall be under no obligation to monitor or
supervise the functions of any person under any Authorised
Investment, Mortgage, Loan or Transaction Document or any
other deed, agreement or arrangement incidental to any of the
above, and is entitled, in the absence of knowledge of a
breach of duty or obligation, to assume that each person is
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properly performing its obligations in accordance with each
Authorised Investment, Mortgage, Loan and Transaction
Document;
(z) subject to Condition 4.8, the Bond Trustee acknowledges that
the Calculation Agent is responsible, under the Paying Agency
Agreement, for calculating all amounts referred to in
Condition 4.7 and the Bond Trustee has no liability in respect
of these calculations;
(aa) the Bond Trustee shall comply with section 311(a) of the TIA,
excluding any creditor relationship listed in section 311(b)
of the TIA. A Bond Trustee who has resigned or been removed
shall be subject to section 311(a) of TIA only to the extent
required by the TIA;
(bb) the Bond Trustee may act on any opinion, statement,
certificate, advice or other information obtained from the
Security Trustee, an attorney, barrister, solicitor (whether
instructed by the Bond Trustee or not), banker, accountant,
broker, valuer or other person believed by it in good faith to
be an expert in relation to the matters the subject of such
opinion, statement, certificate, advice or other information
and shall not be liable for anything suffered by it in good
faith in reliance on such opinion, statement, certificate,
advice or information; and
(cc) subject to this Deed, the Bond Trustee shall not be liable for
any act, omission, misconduct, mistake, oversight, error of
judgment, forgetfulness or want of prudence on the part of any
attorney, banker, receiver, barrister, solicitor, agent or any
other person appointed by the Bond Trustee and on whom the
Bond Trustee is entitled to rely under this Deed (other than a
related body corporate (as defined in the Corporations Act) of
the Bond Trustee).
20.2 EXAMINATION OF DOCUMENTS
The Bond Trustee shall examine the evidence furnished to it pursuant to
section 314 of the TIA to determine whether the opinions, searches,
reports, certificates, valuations and investigations delivered or
obtained or required to be delivered or obtained at any time in
connection with any Mortgage or Loan in the Portfolio conform to the
requirements of this Deed but shall not be obliged to confirm or verify
the mathematical calculations or other facts stated therein.
21. LIMITATION OF BOND TRUSTEE'S LIABILITY
21.1 LIMITATION OF LIABILITY
Notwithstanding any other provision of this Deed, the Bond Trustee will
have no liability under or in connection with this Deed or any other
Transaction Document (whether to the Offshore Bondholders, the Issuer,
the Trust Manager or any other person) other than to the extent to
which the liability is able to be satisfied out of the assets of the
Bond Trust from which the Bond Trustee is actually indemnified for the
liability. This limitation will not apply to a liability of the Bond
Trustee to the extent that it is not satisfied because, under this Deed
or by operation by law, there is a reduction in the extent of the Bond
Trustee's indemnification as a result of the Bond Trustee's fraud,
negligence or wilful default. Nothing in this clause 21.1 or any
similar provision in any other Transaction Document limits or adversely
affects the rights of the Bond Trustee.
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21.2 CONFLICTS
Nothing in this Deed prevents the Bond Trustee or any Associate (as
defined in Part 1.2 Division 2 of the Corporations Act) of it (being
included in this clause in references to the Bond Trustee) from:
(a) subscribing for, buying or selling Bonds (provided that, to
the extent the Bond Trustee acquires any Bonds for its own
benefit or interest, such Bonds shall be disregarded in
connection with any Extraordinary Resolution to remove the
Bond Trustee from office under clause 14.1(d));
(b) in the ordinary course of its business contracting or acting
in any capacity as representative or agent or otherwise or
entering into any financial, banking, development, insurance,
agency, broking or other transaction with the Issuer, the
Trust Manager, any Bondholder or any Associate of any of them;
(c) providing any advice or services to the Issuer, the Trust
Manager or any Bondholder; or
(d) being interested in any such contract or transaction.
The Bond Trustee shall not be in any way liable to account to any
Issuer, the Trust Manager, any Bondholder or any other person for any
profits or benefits (including any bank charges, commission, exchange,
brokerage and fees) made or derived from or in connection with any such
transaction.
21.3 RELIANCE ON CERTIFICATES
The Bond Trustee shall not:
(a) incur any liability in respect of any action taken or thing
suffered by it in reliance upon any document (including, for
example, any notice, resolution, direction, consent,
certificate, receipt or statement and whether an original or
in facsimile form) given to or served on it by the Trust
Manager, the Issuer or the Security Trustee unless it has
reason to believe that such document was not signed by an
Authorised Signatory of the Trust Manager, the Issuer or the
Security Trustee (as the case may be);
(b) be responsible for any loss arising from any act, neglect,
mistake or discrepancy of the Trust Manager, the Issuer or the
Security Trustee or any officer, employee, agent or delegate
of the Trust Manager, the Issuer or the Security Trustee in
preparing any document or in compiling, verifying or
calculating any matter or information contained in any
document if the Bond Trustee is not aware (in the manner
provided in clause 1.7) that such document is not genuine and
correct, whether or not an error in any such document is
reproduced by the Bond Trustee in any step taken by it; and
(c) except as otherwise required by this Deed, be obliged to
confirm or investigate the accuracy of any mathematical
calculations or other facts stated in any such document.
21.4 NO LIABILITY
If the Bond Trustee incurs any liability to any person as a consequence
of having relied, in accordance with clause 21.3, upon a document which
was forged or does not bind the person on whose behalf it was
purportedly given, the Bond Trustee is entitled to reimbursement for
the amount of such loss from the Bond Trust pursuant to clause 21.7.
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21.5 NO NOTICE OR ENFORCEMENT
The Bond Trustee is not required to:
(a) enforce payment of any moneys payable by the Issuer or any
other right of any Offshore Bondholder; or
(b) take any steps or proceedings for that purpose,
unless directed or requested to do so by an Extraordinary Resolution of
the Offshore Bondholders and then only if the Bond Trustee is
indemnified in accordance with clause 21.7.
21.6 NO LIABILITY FOR LOSS
The Bond Trustee is not liable for any omission, delay, mistake or
irregularity in or about the exercise, attempted exercise, non-exercise
or purported exercise of any power under this Deed except for fraud,
negligence or wilful default on its part.
21.7 INDEMNITY REGARDING EXERCISE OF POWERS
(a) (INDEMNITY) Without prejudice to the right of indemnity given
to trustees by law, the Bond Trustee and each agent or
delegate appointed by the Bond Trustee in accordance with
clause 21.9 is, except where caused by fraud, negligence or
wilful default of the Bond Trustee, such agent or delegate (as
the case may be) entitled to be indemnified out of the assets
of the Bond Trust in respect of all costs, disbursements,
expenses, liabilities, Taxes and losses incurred by it in the
exercise of any power or obligation under the Security Trust
Deed, this Deed or an Offshore Bond, and against all actions,
proceedings, costs, claims, losses, liabilities and demands in
respect of any matter or thing done or omitted relating to the
Bond Trust or any Transaction Document (including, without
limitation, any Currency Swap), even if caused by a mistake,
oversight, error of judgment or want of prudence by the Bond
Trustee, such agent or delegate (as the case may be).
(b) (ASSETS OF BOND TRUST INSUFFICIENT) Notwithstanding any other
provision of the Security Trust Deed, this Deed or an Offshore
Bond, if the Bond Trustee considers that the assets of the
Bond Trust will be insufficient to fully reimburse, exonerate
or indemnify the Bond Trustee under paragraph (a) in respect
of any amount in respect of which it is entitled to be
indemnified under that paragraph, the Bond Trustee shall not
be obliged to exercise any power or comply with any obligation
under the Security Trust Deed, this Deed or an Offshore Bond
unless and until it has received an indemnity in respect of
such amounts in form and substance and from a party reasonably
satisfactory to it.
(c) The provisions of this clause 21.7 shall survive the
termination of the Security Trust Deed, this Deed or an
Offshore Bond and the resignation or removal of the Bond
Trustee.
21.8 CONFIDENTIAL INFORMATION
The Bond Trustee may for the purpose of exercising any power under this
Deed, disclose to any person any documents or records of, or
information about, the Issuer, the Issuer's property or the Issuer's
business or affairs, whether or not confidential, if it reasonably
considers such disclosure necessary for the purposes of exercising any
such power.
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21.9 AGENTS AND DELEGATES
The Bond Trustee may:
(a) delegate to any person or persons, upon such terms and subject
to such conditions as the Bond Trustee, in the interests of
the Offshore Bondholders, thinks fit; or
(b) appoint one or more agents to perform,
all or any of the trusts, rights, powers and authorities vested in the
Bond Trustee by this Deed provided that the Bond Trustee has given
prior written notice of such appointment or delegation to each
Designated Rating Agency.
21.10 LIABILITY FOR AGENTS AND DELEGATES
The Bond Trustee will not be responsible to any Bondholder or any party
to this Deed for any misconduct or default on the part of any agent or
delegate appointed by the Bond Trustee in accordance with this Deed,
provided that any such person will be a person who is, in the opinion
of the Bond Trustee, appropriately qualified and the Bond Trustee has
exercised good faith in the selection of such agent or delegate.
21.11 NO INQUIRY
No person dealing with the Bond Trustee is bound to inquire as to
whether any of the Secured Moneys are owing or payable, or as to the
propriety or regularity of the exercise or purported exercise of any
power of the Bond Trustee under this Deed or any other matter or thing,
or be affected by actual or constructive notice that any such exercise
is improper. Any transaction entered into as a result of any such
exercise or purported exercise will be valid and binding
notwithstanding any irregularity or impropriety in such exercise.
21.12 EXERCISE OF RIGHTS
If an Event of Default is subsisting, the Bond Trustee must 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 use or
exercise under the circumstances in the conduct of his or her own
affairs.
21.13 PERFORMANCE OF DUTIES
Except while an Event of Default is subsisting, the Bond Trustee
undertakes to perform such duties and only such duties as are
specifically set out in the Transaction Documents and no implied
covenants or obligations shall be read into this Deed against the Bond
Trustee.
22. NOTICES
22.1 NOTICES GENERALLY
Subject to clause 22.2, every notice to be served, given or made under
the terms of this Deed on or to a party to this Deed:
(a) must be in writing in order to be valid;
(b) must be deemed to have been duly served, given or made in
relation to a party if it is:
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Bond Trust Deed
(i) delivered to the address of that party set out in
paragraph (e) (or at such other address as may be
notified in writing by that party to the other party
from time to time); or
(ii) posted by prepaid registered post to such address; or
(iii) sent by facsimile to the facsimile number set out in
sub-paragraph (e) (or to such other number as may be
notified in writing by that party to the other party
from time to time);
(c) shall be sufficient if executed by the party giving, serving
or making the same or on its behalf by a then Authorised
Signatory of such party;
(d) shall be deemed to be given, served or made:
(i) (in the case of prepaid registered post) within 5
Business Days after posting;
(ii) (in the case of facsimile) on receipt of a
transmission report confirming successful
transmission; and
(iii) (in the case of delivery by hand) on delivery;
(e) the addresses and facsimile numbers for service of notices as
referred to in sub-paragraph (b) of this clause are as
follows:
THE ISSUER
Level 4
35 Clarence Street
SYDNEY NSW 2000
AUSTRALIA
By fax: (02) 8295 8675
Attention: Senior Manager, Securitisation Trusts
THE TRUST MANAGER
Level 6
12 Castlereagh Street
SYDNEY NSW 2000
AUSTRALIA
By fax: (02) 9216 3820
Attention: Treasurer
THE BOND TRUSTEE
101 Barclay Street
Floor 21 West
NEW YORK NY 10286
USA
By fax: (212) 815 5915
Attention: Global Structured Finance Unit
THE SECURITY TRUSTEE
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Bond Trust Deed
Level 4
35 Clarence Street
SYDNEY NSW 2000
AUSTRALIA
By fax: (02) 8295 8659
Attention: Senior Manager, Securitisation
22.2 NOTICES TO BONDHOLDERS
A notice, request or other communication by the Bond Trustee to the
Offshore Bondholders shall be deemed to be duly given or made if given
in accordance with the Conditions.
23. GOVERNING LAW AND JURISDICTION
(a) This Deed and the Bond Trust are governed by the laws of New
South Wales, Australia. The parties submit to the
non-exclusive jurisdiction of Courts exercising jurisdiction
there.
(b) The administration of the Bond Trust, including the exercise
of the Bond Trustee's powers under this Deed and its standard
of care, are governed by the laws of the State of New York,
United States of America. To the extent of any inconsistency
between the operation of the laws of New South Wales,
Australia and the laws of the State of New York, United States
of America in respect of the application of those powers and
that standard of care, the laws of the State of New York will
prevail.
24. GENERAL
24.1 REMEDIES CUMULATIVE
The rights conferred by this Deed on the Bond Trustee are cumulative
and in addition to all other rights available to the Bond Trustee by
Statute, by general law, or by virtue of any other Secured Document.
24.2 SEVERABILITY OF PROVISIONS
Any provision of this Deed which is illegal, void or unenforceable will
be ineffective to the extent only of that illegality, voidness or
unenforceability without invalidating the remaining provisions.
24.3 COUNTERPARTS
This Deed may be executed in a number of counterparts. Each counterpart
is to be considered an original and all such counterparts together
constitute one and the same instrument.
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Bond Trust Deed
EXECUTED as a deed.
Each attorney executing this Deed states that he or she has no notice of
revocation or suspension of his or her power of attorney
SIGNED SEALED AND DELIVERED for PERMANENT
CUSTODIANS LIMITED by its attorneys under
power of attorney in the presence of:
---------------------------------
Attorney Signature
---------------------------------
Print Name
-------------------------------------------- ---------------------------------
Witness Signature Attorney Signature
-------------------------------------------- ---------------------------------
Print Name Print Name
SIGNED SEALED AND DELIVERED for AUSTRALIAN
SECURITISATION MANAGEMENT PTY LIMITED by its
attorney under power of attorney in the
presence of:
-------------------------------------------- ---------------------------------
Witness Signature Attorney Signature
-------------------------------------------- ---------------------------------
Print Name Print Name
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Bond Trust Deed
SIGNED SEALED AND DELIVERED for AUSTRALIAN
MORTGAGE SECURITIES LIMITED by its attorney
under the power of attorney in the presence
of:
-------------------------------------------- ---------------------------------
Witness Signature Attorney Signature
-------------------------------------------- ---------------------------------
Print Name Print Name
SIGNED SEALED AND DELIVERED for PERMANENT
REGISTRY LIMITED by its attorneys under
power of attorney in the presence of:
---------------------------------
Attorney Signature
---------------------------------
Print Name
-------------------------------------------- ---------------------------------
Witness Signature Attorney Signature
-------------------------------------------- ---------------------------------
Print Name Print Name
EXECUTED AS A DEED by THE BANK OF NEW YORK
in the presence of:
-------------------------------------------- ---------------------------------
Witness Signature Signature
-------------------------------------------- ---------------------------------
Print Name Print Name
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Bond Trust Deed
SCHEDULE 1 - PART 1
FORM OF CLASS A-1(a) GLOBAL BOND
UNLESS THIS CERTIFICATE OR ANY CERTIFICATE EVIDENCING OR ACKNOWLEDGING THIS
GLOBAL BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SUCH CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF OR THEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
THIS GLOBAL BOND IS A GLOBAL NOTE FOR THE PURPOSES OF SECTION 128F(10) OF THE
INCOME TAX ASSESSMENT ACT 1936 OF THE COMMONWEALTH OF AUSTRALIA.
PERMANENT CUSTODIANS LIMITED
(ACN 001 426 384)
(a limited liability company incorporated under the laws of the Commonwealth
of Australia)
in its capacity as trustee of ARMS II Global Fund 3 (the FUND)
GLOBAL BOND
representing
US$[*]
Class A-1(a) Mortgage Backed Floating Rate Bonds Due January 2035
This Global Bond certifies that Cede & Co is the registered holder of this
Global Bond and that this Global Bond is a Global Bond without principal or
interest coupons in respect of a duly authorised issue of Bonds of Permanent
Custodians Limited in its capacity as trustee of the Fund (the ISSUER),
designated, as specified in the title above (the BONDS), in an initial aggregate
Face Value of US$[*] ([*] United States Dollars) and (a) issued pursuant to a
Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995 between Permanent
Custodians Limited and Australian Mortgage Securities Ltd (as amended and
restated) and applying to the Fund by reason of the Fund Creation Notice given
by Australian Securitisation Management Pty Limited (the TRUST MANAGER) to the
Issuer on [*] and by the Conditions (as defined below); (b) constituted by a
Bond Trust Deed dated [*] (the BOND TRUST DEED) between (among others) the
Issuer, the Trust Manager, The Bank of New York (the BOND TRUSTEE) and Permanent
Registry Limited (the SECURITY TRUSTEE); and (c) secured by a Security Trust
Deed (the SECURITY TRUST DEED) dated [*] between the Issuer, the Trust Manager,
the Bond Trustee and the Security Trustee. References to the Conditions (or to
any particular numbered Condition) shall be to the Terms and Conditions of the
Bonds (or that particular one of them) set out in Schedule 3 to the Bond Trust
Deed but with the deletion of those provisions which are applicable only to
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Bond Trust Deed
Class A-1(a) Bonds in definitive form. Terms and expressions defined in the Bond
Trust Deed and the Conditions shall, save as expressly stated otherwise, bear
the same meanings when used herein.
If the Issuer is obliged to issue Definitive Bonds under clause 5.7(a) of the
Bond Trust Deed, this Global Bond may be exchanged in whole by registration on
the US$ Register for Definitive Bonds and the Issuer shall procure that the US$
Registrar delivers by registration in the US$ Register, in full exchange for
this Global Bond, Definitive Bonds in an aggregate Face Value equal to the Face
Value of all Class A-1(a) Bonds represented by this Global Bond. The Issuer is
not obliged to issue Definitive Bonds until 30 days after the occurrence of an
event set out in clause 5.7(a) of the Bond Trust Deed.
The Issuer in its capacity as trustee of the Fund, subject to this Global Bond
and subject to and in accordance with the Conditions and the Bond Trust Deed,
promises to pay to the registered holder of this Global Bond the principal sum
of US$[*] ([*] United States Dollars) or such lesser amount as may from time to
time be represented by this Global Bond (or such part of that amount as may
become repayable under the Conditions, the Security Trust Deed and the Bond
Trust Deed) on such date(s) that that principal sum (or any part of it) becomes
repayable in accordance with the Conditions, the Security Trust Deed and the
Bond Trust Deed and to pay interest in arrears on each Payment Date on the Face
Value of this Global Bond at rates determined in accordance with Condition 4 and
all subject to and in accordance with the certification requirements described
in this Global Bond, the Conditions, the Security Trust Deed and the Bond Trust
Deed, which shall be binding on the registered holder of this Global Bond (as if
references in the Conditions to the Bonds and the Bondholders were references to
this Global Bond and the registered holder of this Global Bond respectively and
as if the same had been set out in this Global Bond in full with all necessary
changes, except as otherwise provided in this Global Bond).
Interest and principal on this Global Bond will be payable under this Global
Bond in accordance with the relevant Conditions. Each of the persons appearing
from time to time in the records of DTC as the holder of a Class A-1(a) Bond
represented by this Global Bond will be entitled to receive any payment so made
in respect of that Class A-1(a) Bond but only in accordance with the respective
rules and procedures of DTC. Such persons will have no claim directly against
the Issuer in respect of payments due on the Class A-1(a) Bonds which must be
made by the holder of this Global Bond, for so long as this Global Bond is
outstanding.
On any payment of principal and/or interest on the Class A-1(a) Bonds as set out
above, details of that payment shall be endorsed by or on behalf of the Issuer
on the US$ Register and, in the case of payments of principal, the Face Value of
the Class A-1(a) Bonds shall be reduced for all purposes by the amount so paid
and endorsed. Any such record shall be PRIMA FACIE evidence that the payment in
question has been made.
The Definitive Bonds to be issued on an exchange of this Global Bond will be in
registered form each in the denomination of US$100,000. If the Issuer fails to
meet its obligations to issue Definitive Bonds, this shall be without prejudice
to the Issuer's obligations with respect to the Bonds under the Bond Trust Deed,
the Master Trust Deed, the Security Trust Deed and this Global Bond.
On an exchange of this Global Bond, this Global Bond shall be surrendered to the
Principal Paying Agent.
This Global Bond is governed by, and shall be construed in accordance with, the
laws of New South Wales, Australia.
IN WITNESS the Issuer has caused this Global Bond to be signed by a person duly
authorised on its behalf
PERMANENT CUSTODIANS LIMITED
in its capacity as trustee of the ARMS II Global Fund 3
By:
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Bond Trust Deed
--------------------------------
Authorised Signatory
IMPORTANT NOTES:
(a) The liability of the Issuer under the Class A-1(a) Bonds is limited (in
accordance with and subject to the Master Trust Deed and the
Conditions) to and does not extend beyond the assets of the Fund as
they stand at the time at which the obligation is met or satisfied. The
Issuer issues the Class A-1(a) Bonds only in its capacity as trustee of
the Fund and in no other capacity. The Issuer is not liable to meet or
satisfy any such obligation from its own assets (except the Issuer's
right to be indemnified from the assets of the Fund) and each such
obligation must be met or satisfied from the Fund or the Issuer's right
to be indemnified from the assets of the Fund.
(b) Neither Permanent Custodians Limited (in its capacity as trustee of the
Fund, trustee of any other trust or in its personal capacity), the
Security Trustee nor the Bond Trustee stands behind the capital value
and/or performance of the Class A-1(a) Bonds or the assets of the Fund
except to the limited extent provided for in the Transaction Documents.
CERTIFICATE OF AUTHENTICATION
This Global Bond is authenticated by The Bank of New York, as Principal Paying
Agent and until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK
as Principal Paying Agent
By:
--------------------------------
Authorised Signatory
For The Bank of New York
(without recourse, warranty or liability)
Issued in New York on [*]
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Bond Trust Deed
SCHEDULE 1 - PART 2
FORM OF CLASS A-1(b) GLOBAL BOND
UNLESS THIS CERTIFICATE OR ANY CERTIFICATE EVIDENCING OR ACKNOWLEDGING THIS
GLOBAL BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
[EUROCLEAR/CLEARSTREAM, LUXEMBOURG], TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SUCH CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF THE BANK OF NEW YORK DEPOSITORY (NOMINEES) LIMITED, OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
[EUROCLEAR/CLEARSTREAM, LUXEMBOURG] (AND ANY PAYMENT IS MADE TO THE BANK OF NEW
YORK DEPOSITORY (NOMINEES) LIMITED, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF [EUROCLEAR/CLEARSTREAM, LUXEMBOURG]), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF OR THEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE BANK OF NEW
YORK DEPOSITORY (NOMINEES) LIMITED, HAS AN INTEREST HEREIN.
THIS GLOBAL BOND IS A GLOBAL NOTE FOR THE PURPOSES OF SECTION 128F(10) OF THE
INCOME TAX ASSESSMENT ACT 1936 OF THE COMMONWEALTH OF AUSTRALIA.
PERMANENT CUSTODIANS LIMITED
(ACN 001 426 384)
(a limited liability company incorporated under the laws of the Commonwealth
of Australia)
in its capacity as trustee of ARMS II Global Fund 3 (the FUND)
GLOBAL BOND
representing
EURO [*]
Class A-1(b) Mortgage Backed Floating Rate Bonds Due January 2035
This Global Bond certifies that The Bank of New York Depository (Nominees)
Limited is the registered holder of this Global Bond and that this Global Bond
is a Global Bond without principal or interest coupons in respect of a duly
authorised issue of Bonds of Permanent Custodians Limited in its capacity as
trustee of the Fund (the ISSUER), designated, as specified in the title above
(the BONDS), in an initial aggregate Face Value of EURO [*] ([*] Euros) and (a)
issued pursuant to a Master Trust Deed (the MASTER TRUST DEED) dated 7 March
1995 between Permanent Custodians Limited and Australian Mortgage Securities Ltd
(as amended and restated) and applying to the Fund by reason of the Fund
Creation Notice given by Australian Securitisation Management Pty Limited (the
TRUST MANAGER) to the Issuer on [*] and by the Conditions (as defined below);
(b) constituted by a Bond Trust Deed dated [*] (the BOND TRUST DEED) between
(among others) the Issuer, the Trust Manager, The Bank of New York (the BOND
TRUSTEE) and Permanent Registry Limited (the SECURITY TRUSTEE); and (c) secured
by a Security Trust Deed (the SECURITY TRUST DEED) dated [*] between the Issuer,
the Trust Manager, the Bond Trustee and the Security Trustee. References to the
Page 53
[ALLENS ARTHUR ROBINSON LOGO]
Bond Trust Deed
Conditions (or to any particular numbered Condition) shall be to the Terms and
Conditions of the Bonds (or that particular one of them) set out in Schedule 3
to the Bond Trust Deed but with the deletion of those provisions which are
applicable only to Class A-1(b) Bonds in definitive form. Terms and expressions
defined in the Bond Trust Deed and the Conditions shall, save as expressly
stated otherwise, bear the same meanings when used herein.
If the Issuer is obliged to issue Definitive Bonds under clause 5.7(b) of the
Bond Trust Deed, this Global Bond may be exchanged in whole by registration on
the EURO Register for Definitive Bonds and the Issuer shall procure that the
EURO Registrar delivers by registration in the EURO Register, in full exchange
for this Global Bond, Definitive Bonds in an aggregate Face Value equal to the
Face Value of all Class A-1(b) Bonds represented by this Global Bond. The Issuer
is not obliged to issue Definitive Bonds until 30 days after the occurrence of
an event set out in clause 5.7(b) of the Bond Trust Deed.
The Issuer in its capacity as trustee of the Fund, subject to this Global Bond
and subject to and in accordance with the Conditions and the Bond Trust Deed,
promises to pay to the registered holder of this Global Bond the principal sum
of EURO [*] ([*] Euros) or such lesser amount as may from time to time be
represented by this Global Bond (or such part of that amount as may become
repayable under the Conditions, the Security Trust Deed and the Bond Trust Deed)
on such date(s) that that principal sum (or any part of it) becomes repayable in
accordance with the Conditions, the Security Trust Deed and the Bond Trust Deed
and to pay interest in arrears on each Payment Date on the Face Value of this
Global Bond at rates determined in accordance with Condition 4 and all subject
to and in accordance with the certification requirements described in this
Global Bond, the Conditions, the Security Trust Deed and the Bond Trust Deed,
which shall be binding on the registered holder of this Global Bond (as if
references in the Conditions to the Bonds and the Bondholders were references to
this Global Bond and the registered holder of this Global Bond respectively and
as if the same had been set out in this Global Bond in full with all necessary
changes, except as otherwise provided in this Global Bond).
Interest and principal on this Global Bond will be payable under this Global
Bond in accordance with the relevant Conditions. Each of the persons appearing
from time to time in the records of [Euroclear/Clearstream, Luxembourg] as the
holder of a Class A-1(b) Bond represented by this Global Bond will be entitled
to receive any payment so made in respect of that Class A-1(b) Bond but only in
accordance with the respective rules and procedures of [Euroclear/Clearstream,
Luxembourg]. Such persons will have no claim directly against the Issuer in
respect of payments due on the Class A-1(b) Bonds which must be made by the
holder of this Global Bond, for so long as this Global Bond is outstanding.
On any payment of principal and/or interest on the Class A-1(b) Bonds as set out
above, details of that payment shall be endorsed by or on behalf of the Issuer
on the EURO Register and, in the case of payments of principal, the Face Value
of the Class A-1(b) Bonds shall be reduced for all purposes by the amount so
paid and endorsed. Any such record shall be PRIMA FACIE evidence that the
payment in question has been made.
The Definitive Bonds to be issued on an exchange of this Global Bond will be in
registered form each in the denomination of EURO 100,000. If the Issuer fails to
meet its obligations to issue Definitive Bonds, this shall be without prejudice
to the Issuer's obligations with respect to the Bonds under the Bond Trust Deed,
the Master Trust Deed, the Security Trust Deed and this Global Bond.
On an exchange of this Global Bond, this Global Bond shall be surrendered to the
Principal Paying Agent.
This Global Bond is governed by, and shall be construed in accordance with, the
laws of New South Wales, Australia.
Page 54
[ALLENS ARTHUR ROBINSON LOGO]
Bond Trust Deed
IN WITNESS the Issuer has caused this Global Bond to be signed by a person duly
authorised on its behalf
PERMANENT CUSTODIANS LIMITED
in its capacity as trustee of the ARMS II Global Fund 3
By:
-------------------------------
Authorised Signatory
IMPORTANT NOTES:
(a) The liability of the Issuer under the Class A-1(b) Bonds is limited (in
accordance with and subject to the Master Trust Deed and the
Conditions) to and does not extend beyond the assets of the Fund as
they stand at the time at which the obligation is met or satisfied. The
Issuer issues the Class A-1(b) Bonds only in its capacity as trustee of
the Fund and in no other capacity. The Issuer is not liable to meet or
satisfy any such obligation from its own assets (except the Issuer's
right to be indemnified from the assets of the Fund) and each such
obligation must be met or satisfied from the Fund or the Issuer's right
to be indemnified from the assets of the Fund.
(b) Neither Permanent Custodians Limited (in its capacity as trustee of the
Fund, trustee of any other trust or in its personal capacity), the
Security Trustee nor the Bond Trustee stands behind the capital value
and/or performance of the Class A-1(b) Bonds or the assets of the Fund
except to the limited extent provided for in the Transaction Documents.
CERTIFICATE OF AUTHENTICATION
This Global Bond is authenticated by The Bank of New York, as Principal Paying
Agent and until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK
as Principal Paying Agent
By:
-------------------------------
Authorised Signatory
For The Bank of New York
(without recourse, warranty or liability)
Issued in New York on [*]
Page 55
[ALLENS ARTHUR ROBINSON LOGO]
Bond Trust Deed
SCHEDULE 1 - PART 3
FORM OF CLASS B-1(a) GLOBAL BOND
UNLESS THIS CERTIFICATE OR ANY CERTIFICATE EVIDENCING OR ACKNOWLEDGING THIS
GLOBAL BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SUCH CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF OR THEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
THIS GLOBAL BOND IS A GLOBAL NOTE FOR THE PURPOSES OF SECTION 128F(10) OF THE
INCOME TAX ASSESSMENT ACT 1936 OF THE COMMONWEALTH OF AUSTRALIA.
PERMANENT CUSTODIANS LIMITED
(ACN 001 426 384)
(a limited liability company incorporated under the laws of the Commonwealth
of Australia)
in its capacity as trustee of ARMS II Global Fund 3 (the FUND)
GLOBAL BOND
representing
US$[*]
Class B-1(a) Mortgage Backed Floating Rate Bonds Due January 2035
This Global Bond certifies that Cede & Co is the registered holder of this
Global Bond and that this Global Bond is a Global Bond without principal or
interest coupons in respect of a duly authorised issue of Bonds of Permanent
Custodians Limited in its capacity as trustee of the Fund (the ISSUER),
designated, as specified in the title above (the BONDS), in an initial aggregate
Face Value of US$[*] ([*] United States Dollars) and (a) issued pursuant to a
Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995 between Permanent
Custodians Limited and Australian Mortgage Securities Ltd (as amended and
restated) and applying to the Fund by reason of the Fund Creation Notice given
by Australian Securitisation Management Pty Limited (the TRUST MANAGER) to the
Issuer on [*] and by the Conditions (as defined below); (b) constituted by a
Bond Trust Deed dated [*] (the BOND TRUST DEED) between (among others) the
Issuer, the Trust Manager, The Bank of New York (the BOND TRUSTEE) and Permanent
Registry Limited (the SECURITY TRUSTEE); and (c) secured by a Security Trust
Deed (the SECURITY TRUST DEED) dated [*] between the Issuer, the Trust Manager,
the Bond Trustee and the Security Trustee. References to the Conditions (or to
any particular numbered Condition) shall be to the Terms and Conditions of the
Bonds (or that particular one of them) set out in Schedule 3 to the Bond Trust
Deed but with the deletion of those provisions which are applicable only to
Page 56
[ALLENS ARTHUR ROBINSON LOGO]
Bond Trust Deed
Class B-1(a) Bonds in definitive form. Terms and expressions defined in the Bond
Trust Deed and the Conditions shall, save as expressly stated otherwise, bear
the same meanings when used herein.
If the Issuer is obliged to issue Definitive Bonds under clause 5.7(a) of the
Bond Trust Deed, this Global Bond may be exchanged in whole by registration on
the US$ Register for Definitive Bonds and the Issuer shall procure that the US$
Registrar delivers by registration in the US$ Register, in full exchange for
this Global Bond, Definitive Bonds in an aggregate Face Value equal to the Face
Value of all Class B-1(a) Bonds represented by this Global Bond. The Issuer is
not obliged to issue Definitive Bonds until 30 days after the occurrence of an
event set out in clause 5.7(a) of the Bond Trust Deed.
The Issuer in its capacity as trustee of the Fund, subject to this Global Bond
and subject to and in accordance with the Conditions and the Bond Trust Deed,
promises to pay to the registered holder of this Global Bond the principal sum
of US$[*] ([*] United States Dollars) or such lesser amount as may from time to
time be represented by this Global Bond (or such part of that amount as may
become repayable under the Conditions, the Security Trust Deed and the Bond
Trust Deed) on such date(s) that that principal sum (or any part of it) becomes
repayable in accordance with the Conditions, the Security Trust Deed and the
Bond Trust Deed and to pay interest in arrears on each Payment Date on the Face
Value of this Global Bond at rates determined in accordance with Condition 4 and
all subject to and in accordance with the certification requirements described
in this Global Bond, the Conditions, the Security Trust Deed and the Bond Trust
Deed, which shall be binding on the registered holder of this Global Bond (as if
references in the Conditions to the Bonds and the Bondholders were references to
this Global Bond and the registered holder of this Global Bond respectively and
as if the same had been set out in this Global Bond in full with all necessary
changes, except as otherwise provided in this Global Bond).
Interest and principal on this Global Bond will be payable under this Global
Bond in accordance with the relevant Conditions. Each of the persons appearing
from time to time in the records of DTC as the holder of a Class B-1(a) Bond
represented by this Global Bond will be entitled to receive any payment so made
in respect of that Class B-1(a) Bond but only in accordance with the respective
rules and procedures of DTC. Such persons will have no claim directly against
the Issuer in respect of payments due on the Class B-1(a) Bonds which must be
made by the holder of this Global Bond, for so long as this Global Bond is
outstanding.
On any payment of principal and/or interest on the Class B-1(a) Bonds as set out
above, details of that payment shall be endorsed by or on behalf of the Issuer
on the US$ Register and, in the case of payments of principal, the Face Value of
the Class B-1(a) Bonds shall be reduced for all purposes by the amount so paid
and endorsed. Any such record shall be PRIMA FACIE evidence that the payment in
question has been made.
The Definitive Bonds to be issued on an exchange of this Global Bond will be in
registered form each in the denomination of US$100,000. If the Issuer fails to
meet its obligations to issue Definitive Bonds, this shall be without prejudice
to the Issuer's obligations with respect to the Bonds under the Bond Trust Deed,
the Master Trust Deed, the Security Trust Deed and this Global Bond.
On an exchange of this Global Bond, this Global Bond shall be surrendered to the
Principal Paying Agent.
This Global Bond is governed by, and shall be construed in accordance with, the
laws of New South Wales, Australia.
IN WITNESS the Issuer has caused this Global Bond to be signed by a person duly
authorised on its behalf
PERMANENT CUSTODIANS LIMITED
in its capacity as trustee of the ARMS II Global Fund 3
By:
Page 57
[ALLENS ARTHUR ROBINSON LOGO]
Bond Trust Deed
------------------------------
Authorised Signatory
IMPORTANT NOTES:
(a) The liability of the Issuer under the Class B-1(a) Bonds is limited (in
accordance with and subject to the Master Trust Deed and the
Conditions) to and does not extend beyond the assets of the Fund as
they stand at the time at which the obligation is met or satisfied. The
Issuer issues the Class B-1(a) Bonds only in its capacity as trustee of
the Fund and in no other capacity. The Issuer is not liable to meet or
satisfy any such obligation from its own assets (except the Issuer's
right to be indemnified from the assets of the Fund) and each such
obligation must be met or satisfied from the Fund or the Issuer's right
to be indemnified from the assets of the Fund.
(b) Neither Permanent Custodians Limited (in its capacity as trustee of the
Fund, trustee of any other trust or in its personal capacity), the
Security Trustee nor the Bond Trustee stands behind the capital value
and/or performance of the Class B-1(a) Bonds or the assets of the Fund
except to the limited extent provided for in the Transaction Documents.
CERTIFICATE OF AUTHENTICATION
This Global Bond is authenticated by The Bank of New York, as Principal Paying
Agent and until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK
as Principal Paying Agent
By:
------------------------------
Authorised Signatory
For The Bank of New York
(without recourse, warranty or liability)
Issued in New York on [*]
Page 58
[ALLENS ARTHUR ROBINSON LOGO]
Bond Trust Deed
SCHEDULE 1 - PART 4
FORM OF CLASS B-1(b) GLOBAL BOND
UNLESS THIS CERTIFICATE OR ANY CERTIFICATE EVIDENCING OR ACKNOWLEDGING THIS
GLOBAL BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
[EUROCLEAR/CLEARSTREAM, LUXEMBOURG], TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SUCH CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF THE BANK OF NEW YORK (NOMINEES) LIMITED, OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [EUROCLEAR/CLEARSTREAM,
LUXEMBOURG] (AND ANY PAYMENT IS MADE TO THE BANK OF NEW YORK (NOMINEES) LIMITED,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
[EUROCLEAR/CLEARSTREAM, LUXEMBOURG]), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
OR THEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, THE BANK OF NEW YORK (NOMINEES) LIMITED, HAS AN
INTEREST HEREIN.
THIS GLOBAL BOND IS A GLOBAL NOTE FOR THE PURPOSES OF SECTION 128F(10) OF THE
INCOME TAX ASSESSMENT ACT 1936 OF THE COMMONWEALTH OF AUSTRALIA.
PERMANENT CUSTODIANS LIMITED
(ACN 001 426 384)
(a limited liability company incorporated under the laws of the Commonwealth
of Australia)
in its capacity as trustee of ARMS II Global Fund 3 (the FUND)
GLOBAL BOND
representing
EURO [*]
Class B-1(b) Mortgage Backed Floating Rate Bonds Due January 2035
This Global Bond certifies that The Bank of New York (Nominees) Limited is the
registered holder of this Global Bond and that this Global Bond is a Global Bond
without principal or interest coupons in respect of a duly authorised issue of
Bonds of Permanent Custodians Limited in its capacity as trustee of the Fund
(the ISSUER), designated, as specified in the title above (the BONDS), in an
initial aggregate Face Value of EURO [*] ([*] Euros) and (a) issued pursuant to
a Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995 between Permanent
Custodians Limited and Australian Mortgage Securities Ltd (as amended and
restated) and applying to the Fund by reason of the Fund Creation Notice given
by Australian Securitisation Management Pty Limited (the TRUST MANAGER) to the
Issuer on [*] and by the Conditions (as defined below); (b) constituted by a
Bond Trust Deed dated [*] (the BOND TRUST DEED) between (among others) the
Issuer, the Trust Manager, The Bank of New York (the BOND TRUSTEE) and Permanent
Registry Limited (the SECURITY TRUSTEE); and (c) secured by a Security Trust
Deed (the SECURITY TRUST DEED) dated [*] between the Issuer, the Trust Manager,
the Bond Trustee and the Security Trustee. References to the Conditions (or to
any particular numbered Condition) shall be to the Terms and Conditions of the
Bonds (or that particular one of
Page 59
[ALLENS ARTHUR ROBINSON LOGO]
Bond Trust Deed
them) set out in Schedule 3 to the Bond Trust Deed but with the deletion of
those provisions which are applicable only to Class B-1(b) Bonds in definitive
form. Terms and expressions defined in the Bond Trust Deed and the Conditions
shall, save as expressly stated otherwise, bear the same meanings when used
herein.
If the Issuer is obliged to issue Definitive Bonds under clause 5.7(b) of the
Bond Trust Deed, this Global Bond may be exchanged in whole by registration on
the EURO Register for Definitive Bonds and the Issuer shall procure that the
EURO Registrar delivers by registration in the EURO Register, in full exchange
for this Global Bond, Definitive Bonds in an aggregate Face Value equal to the
Face Value of all Class B-1(b) Bonds represented by this Global Bond. The Issuer
is not obliged to issue Definitive Bonds until 30 days after the occurrence of
an event set out in clause 5.7(b) of the Bond Trust Deed.
The Issuer in its capacity as trustee of the Fund, subject to this Global Bond
and subject to and in accordance with the Conditions and the Bond Trust Deed,
promises to pay to the registered holder of this Global Bond the principal sum
of EURO [*] ([*] Euros) or such lesser amount as may from time to time be
represented by this Global Bond (or such part of that amount as may become
repayable under the Conditions, the Security Trust Deed and the Bond Trust Deed)
on such date(s) that that principal sum (or any part of it) becomes repayable in
accordance with the Conditions, the Security Trust Deed and the Bond Trust Deed
and to pay interest in arrears on each Payment Date on the Face Value of this
Global Bond at rates determined in accordance with Condition 4 and all subject
to and in accordance with the certification requirements described in this
Global Bond, the Conditions, the Security Trust Deed and the Bond Trust Deed,
which shall be binding on the registered holder of this Global Bond (as if
references in the Conditions to the Bonds and the Bondholders were references to
this Global Bond and the registered holder of this Global Bond respectively and
as if the same had been set out in this Global Bond in full with all necessary
changes, except as otherwise provided in this Global Bond).
Interest and principal on this Global Bond will be payable under this Global
Bond in accordance with the relevant Conditions. Each of the persons appearing
from time to time in the records of [Euroclear/Clearstream, Luxembourg] as the
holder of a Class B-1(b) Bond represented by this Global Bond will be entitled
to receive any payment so made in respect of that Class B-1(b) Bond but only in
accordance with the respective rules and procedures of [Euroclear/Clearstream,
Luxembourg]. Such persons will have no claim directly against the Issuer in
respect of payments due on the Class B-1(b) Bonds which must be made by the
holder of this Global Bond, for so long as this Global Bond is outstanding.
On any payment of principal and/or interest on the Class B-1(b) Bonds as set out
above, details of that payment shall be endorsed by or on behalf of the Issuer
on the EURO Register and, in the case of payments of principal, the Face Value
of the Class B-1(b) Bonds shall be reduced for all purposes by the amount so
paid and endorsed. Any such record shall be PRIMA FACIE evidence that the
payment in question has been made.
The Definitive Bonds to be issued on an exchange of this Global Bond will be in
registered form each in the denomination of EURO 100,000. If the Issuer fails to
meet its obligations to issue Definitive Bonds, this shall be without prejudice
to the Issuer's obligations with respect to the Bonds under the Bond Trust Deed,
the Master Trust Deed, the Security Trust Deed and this Global Bond.
On an exchange of this Global Bond, this Global Bond shall be surrendered to the
Principal Paying Agent.
This Global Bond is governed by, and shall be construed in accordance with, the
laws of New South Wales, Australia.
IN WITNESS the Issuer has caused this Global Bond to be signed by a person duly
authorised on its behalf
Page 60
[ALLENS ARTHUR ROBINSON LOGO]
Bond Trust Deed
PERMANENT CUSTODIANS LIMITED
in its capacity as trustee of the ARMS II Global Fund 3
By:
-----------------------------
Authorised Signatory
IMPORTANT NOTES:
(a) The liability of the Issuer under the Class B-1(b) Bonds is limited (in
accordance with and subject to the Master Trust Deed and the
Conditions) to and does not extend beyond the assets of the Fund as
they stand at the time at which the obligation is met or satisfied. The
Issuer issues the Class B-1(b) Bonds only in its capacity as trustee of
the Fund and in no other capacity. The Issuer is not liable to meet or
satisfy any such obligation from its own assets (except the Issuer's
right to be indemnified from the assets of the Fund) and each such
obligation must be met or satisfied from the Fund or the Issuer's right
to be indemnified from the assets of the Fund.
(b) Neither Permanent Custodians Limited (in its capacity as trustee of the
Fund, trustee of any other trust or in its personal capacity), the
Security Trustee nor the Bond Trustee stands behind the capital value
and/or performance of the Class B-1(b) Bonds or the assets of the Fund
except to the limited extent provided for in the Transaction Documents.
CERTIFICATE OF AUTHENTICATION
This Global Bond is authenticated by The Bank of New York, as Principal Paying
Agent and until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK
as Principal Paying Agent
By:
-----------------------------
Authorised Signatory
For The Bank of New York
(without recourse, warranty or liability)
Issued in New York on [*]
Page 61
[ALLENS ARTHUR ROBINSON LOGO]
Bond Trust Deed
SCHEDULE 2 - PART 1
FORM OF CLASS A-1(a) DEFINITIVE BOND
PERMANENT CUSTODIANS LIMITED
(ACN 001 426 384)
(a limited liability company incorporated under the laws of the
Commonwealth Australia)
in its capacity as trustee of ARMS II GLOBAL FUND 3 (the FUND)
US$100,000
Class A-1(a) Mortgage Backed Floating Rate Bonds Due January 2035
The issue of the Class A-1(a) Bonds was authorised by resolutions of the Board
of Directors of Permanent Custodians Limited.
This Class A-1(a) Bond forms one of a series of Bonds which are (a) issued
pursuant to a Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995
between Permanent Custodians Limited and Australian Mortgage Securities Ltd (as
amended and restated) and applying to the Fund by reason of the Fund Creation
Notice given by Australian Securitisation Management Pty Limited (the TRUST
MANAGER) to Permanent Custodians Limited in its capacity as trustee of the Fund
(the ISSUER) on [*] and by the terms and conditions attached to this Bond (the
CONDITIONS); (b) constituted by a Bond Trust Deed dated [*] (the BOND TRUST
DEED) between the Issuer, the Trust Manager, Australian Mortgage Securities Ltd,
The Bank of New York (the BOND TRUSTEE) and Permanent Registry Limited (the
SECURITY TRUSTEE); and (c) secured by a Security Trust Deed (the SECURITY TRUST
DEED) dated [*] between the Issuer, the Trust Manager, the Bond Trustee and the
Security Trustee.
The Issuer, in its capacity as trustee of the Fund, subject to this Class A-1(a)
Bond and subject to and in accordance with the Conditions and the Bond Trust
Deed, for value received promises to pay to the registered holder on the Payment
Date (as defined in the Conditions) endorsed on the form of this Class A-1(a)
Bond) falling in January 2035 (or on such earlier date(s) as the Face Value of
this Class A-1(a) Bond (or part of it) may become repayable in accordance with
the Conditions) the principal sum of:
US$100,000 (One Hundred Thousand United States Dollars)
or such part of that amount as may be repayable on such date(s) in accordance
with the Conditions, the Security Trust Deed, the Master Trust Deed and the Bond
Trust Deed, together with interest on the Face Value payable in arrears on each
Payment Date and such other amounts (if any) as may be payable, all subject to
and in accordance with the Conditions and the provisions of the Security Trust
Deed, the Master Trust Deed and the Bond Trust Deed.
This Class A-1(a) Bond shall not become valid for any purpose unless and until
the attached Certificate of Authentication has been signed by any authorised
signatory of The Bank of New York as Principal Paying Agent.
Page 62
[ALLENS ARTHUR ROBINSON LOGO]
Bond Trust Deed
IN WITNESS this Bond has been executed on behalf of the Issuer.
PERMANENT CUSTODIANS LIMITED
By:
------------------------
Authorised Signatory
Dated as of [*],
Issued in [*]
IMPORTANT NOTES:
(a) The liability of the Issuer under the Class A-1(a) Bonds is limited (in
accordance with and subject to the Master Trust Deed and the
Conditions) to and does not extend beyond the assets of the Fund as
they stand at the time at which the obligation is met or satisfied. The
Issuer issues the Class A-1(a) Bonds only in its capacity as trustee of
the Fund and in no other capacity. The Issuer is not liable to meet or
satisfy any such obligation from its own assets (except the Issuer's
right to be indemnified from the assets of the Fund) and each such
obligation must be met or satisfied from the Fund or the Issuer's right
to be indemnified from the assets of the Fund.
(b) Neither Permanent Custodians Limited (in its capacity as trustee of the
Fund, trustee of any other trust or in its personal capacity), the
Security Trustee nor the Bond Trustee stands behind the capital value
and/or performance of the Class A-1(a) Bonds or the assets of the Fund
except to the limited extent provided for in the Transaction Documents.
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Class A-1(a) Bonds
referred to in the Bond Trust Deed
The Bank of New York
as Principal Paying Agent
By:
---------------------------
Authorised Signatory
For The Bank of New York
(without recourse, warranty or liability)
Issued in [*] on [*]
Page 63
[ALLENS ARTHUR ROBINSON LOGO]
Bond Trust Deed
SCHEDULE 2 - PART 2
FORM OF CLASS A-1(b) DEFINITIVE BOND
PERMANENT CUSTODIANS LIMITED
(ACN 001 426 384)
(a limited liability company incorporated under the laws of the
Commonwealth Australia)
in its capacity as trustee of ARMS II GLOBAL FUND 3 (the FUND)
EURO 100,000
Class A-1(b) Mortgage Backed Floating Rate Bonds Due January 2035
The issue of the Class A-1(b) Bonds was authorised by resolutions of the Board
of Directors of Permanent Custodians Limited.
This Class A-1(b) Bond forms one of a series of Bonds which are (a) issued
pursuant to a Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995
between Permanent Custodians Limited and Australian Mortgage Securities Ltd (as
amended and restated) and applying to the Fund by reason of the Fund Creation
Notice given by Australian Securitisation Management Pty Limited (the TRUST
MANAGER) to Permanent Custodians Limited in its capacity as trustee of the Fund
(the ISSUER) on [*] and by the terms and conditions attached to this Bond (the
CONDITIONS); (b) constituted by a Bond Trust Deed dated [*] (the BOND TRUST
DEED) between the Issuer, the Trust Manager, Australian Mortgage Securities Ltd,
The Bank of New York (the BOND TRUSTEE) and Permanent Registry Limited (the
SECURITY TRUSTEE); and (c) secured by a Security Trust Deed (the SECURITY TRUST
DEED) dated [*] between the Issuer, the Trust Manager, the Bond Trustee and the
Security Trustee.
The Issuer, in its capacity as trustee of the Fund, subject to this Class A-1(b)
Bond and subject to and in accordance with the Conditions and the Bond Trust
Deed, for value received promises to pay to the registered holder on the Payment
Date (as defined in the Conditions) endorsed on the form of this Class A-1(b)
Bond) falling in January 2035 (or on such earlier date(s) as the Face Value of
this Class A-1(b) Bond (or part of it) may become repayable in accordance with
the Conditions) the principal sum of:
EURO 100,000 (One Hundred Thousand Euros)
or such part of that amount as may be repayable on such date(s) in accordance
with the Conditions, the Security Trust Deed, the Master Trust Deed and the Bond
Trust Deed, together with interest on the Face Value payable in arrears on each
Payment Date and such other amounts (if any) as may be payable, all subject to
and in accordance with the Conditions and the provisions of the Security Trust
Deed, the Master Trust Deed and the Bond Trust Deed.
This Class A-1(b) Bond shall not become valid for any purpose unless and until
the attached Certificate of Authentication has been signed by any authorised
signatory of The Bank of New York as Principal Paying Agent.
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Bond Trust Deed
IN WITNESS this Bond has been executed on behalf of the Issuer.
PERMANENT CUSTODIANS LIMITED
By:
------------------------
Authorised Signatory
Dated as of [*],
Issued in [*]
IMPORTANT NOTES:
(a) The liability of the Issuer under the Class A-1(b) Bonds is limited (in
accordance with and subject to the Master Trust Deed and the
Conditions) to and does not extend beyond the assets of the Fund as
they stand at the time at which the obligation is met or satisfied. The
Issuer issues the Class A-1(b) Bonds only in its capacity as trustee of
the Fund and in no other capacity. The Issuer is not liable to meet or
satisfy any such obligation from its own assets (except the Issuer's
right to be indemnified from the assets of the Fund) and each such
obligation must be met or satisfied from the Fund or the Issuer's right
to be indemnified from the assets of the Fund.
(b) Neither Permanent Custodians Limited (in its capacity as trustee of the
Fund, trustee of any other trust or in its personal capacity), the
Security Trustee nor the Bond Trustee stands behind the capital value
and/or performance of the Class A-1(b) Bonds or the assets of the Fund
except to the limited extent provided for in the Transaction Documents.
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Class A-1(b) Bonds
referred to in the Bond Trust Deed
The Bank of New York
as Principal Paying Agent
By:
---------------------------
Authorised Signatory
For The Bank of New York
(without recourse, warranty or liability)
Issued in [*] on [*]
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Bond Trust Deed
SCHEDULE 2 - PART 3
FORM OF CLASS B-1(a) DEFINITIVE BOND
PERMANENT CUSTODIANS LIMITED
(ACN 001 426 384)
(a limited liability company incorporated under the laws of the
Commonwealth Australia)
in its capacity as trustee of ARMS II GLOBAL FUND 3 (the FUND)
US$100,000
Class B-1(a) Mortgage Backed Floating Rate Bonds Due January 2035
The issue of the Class B-1(a) Bonds was authorised by resolutions of the Board
of Directors of Permanent Custodians Limited.
This Class B-1(a) Bond forms one of a series of Bonds which are (a) issued
pursuant to a Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995
between Permanent Custodians Limited and Australian Mortgage Securities Ltd (as
amended and restated) and applying to the Fund by reason of the Fund Creation
Notice given by Australian Securitisation Management Pty Limited (the TRUST
MANAGER) to Permanent Custodians Limited in its capacity as trustee of the Fund
(the ISSUER) on [*] and by the terms and conditions attached to this Bond (the
CONDITIONS); (b) constituted by a Bond Trust Deed dated [*] (the BOND TRUST
DEED) between the Issuer, the Trust Manager, Australian Mortgage Securities Ltd,
The Bank of New York (the BOND TRUSTEE) and Permanent Registry Limited (the
SECURITY TRUSTEE); and (c) secured by a Security Trust Deed (the SECURITY TRUST
DEED) dated [*] between the Issuer, the Trust Manager, the Bond Trustee and the
Security Trustee.
The Issuer, in its capacity as trustee of the Fund, subject to this Class B-1(a)
Bond and subject to and in accordance with the Conditions and the Bond Trust
Deed, for value received promises to pay to the registered holder on the Payment
Date (as defined in the Conditions) endorsed on the form of this Class B-1(a)
Bond) falling in January 2035 (or on such earlier date(s) as the Face Value of
this Class B-1(a) Bond (or part of it) may become repayable in accordance with
the Conditions) the principal sum of:
US$100,000 (One Hundred Thousand United States Dollars)
or such part of that amount as may be repayable on such date(s) in accordance
with the Conditions, the Security Trust Deed, the Master Trust Deed and the Bond
Trust Deed, together with interest on the Face Value payable in arrears on each
Payment Date and such other amounts (if any) as may be payable, all subject to
and in accordance with the Conditions and the provisions of the Security Trust
Deed, the Master Trust Deed and the Bond Trust Deed.
This Class B-1(a) Bond shall not become valid for any purpose unless and until
the attached Certificate of Authentication has been signed by any authorised
signatory of The Bank of New York as Principal Paying Agent.
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Bond Trust Deed
IN WITNESS this Bond has been executed on behalf of the Issuer.
PERMANENT CUSTODIANS LIMITED
By:
------------------------
Authorised Signatory
Dated as of [*],
Issued in [*]
IMPORTANT NOTES:
(a) The liability of the Issuer under the Class B-1(a) Bonds is limited (in
accordance with and subject to the Master Trust Deed and the
Conditions) to and does not extend beyond the assets of the Fund as
they stand at the time at which the obligation is met or satisfied. The
Issuer issues the Class B-1(a) Bonds only in its capacity as trustee of
the Fund and in no other capacity. The Issuer is not liable to meet or
satisfy any such obligation from its own assets (except the Issuer's
right to be indemnified from the assets of the Fund) and each such
obligation must be met or satisfied from the Fund or the Issuer's right
to be indemnified from the assets of the Fund.
(b) Neither Permanent Custodians Limited (in its capacity as trustee of the
Fund, trustee of any other trust or in its personal capacity), the
Security Trustee nor the Bond Trustee stands behind the capital value
and/or performance of the Class B-1(a) Bonds or the assets of the Fund
except to the limited extent provided for in the Transaction Documents.
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Class B-1(a) Bonds
referred to in the Bond Trust Deed
The Bank of New York
as Principal Paying Agent
By:
---------------------------
Authorised Signatory
For The Bank of New York
(without recourse, warranty or liability)
Issued in [*] on [*]
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Bond Trust Deed
SCHEDULE 2 - PART 4
FORM OF CLASS B-1(b) DEFINITIVE BOND
PERMANENT CUSTODIANS LIMITED
(ACN 001 426 384)
(a limited liability company incorporated under the laws of the
Commonwealth Australia)
in its capacity as trustee of ARMS II GLOBAL FUND 3 (the FUND)
EURO 100,000
Class B-1(b) Mortgage Backed Floating Rate Bonds Due January 2035
The issue of the Class B-1(b) Bonds was authorised by resolutions of the Board
of Directors of Permanent Custodians Limited.
This Class B-1(b) Bond forms one of a series of Bonds which are (a) issued
pursuant to a Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995
between Permanent Custodians Limited and Australian Mortgage Securities Ltd (as
amended and restated) and applying to the Fund by reason of the Fund Creation
Notice given by Australian Securitisation Management Pty Limited (the TRUST
MANAGER) to Permanent Custodians Limited in its capacity as trustee of the Fund
(the ISSUER) on [*] and by the terms and conditions attached to this Bond (the
CONDITIONS); (b) constituted by a Bond Trust Deed dated [*] (the BOND TRUST
DEED) between the Issuer, the Trust Manager, Australian Mortgage Securities Ltd,
The Bank of New York (the BOND TRUSTEE) and Permanent Registry Limited (the
SECURITY TRUSTEE); and (c) secured by a Security Trust Deed (the SECURITY TRUST
DEED) dated [*] between the Issuer, the Trust Manager, the Bond Trustee and the
Security Trustee.
The Issuer, in its capacity as trustee of the Fund, subject to this Class B-1(b)
Bond and subject to and in accordance with the Conditions and the Bond Trust
Deed, for value received promises to pay to the registered holder on the Payment
Date (as defined in the Conditions) endorsed on the form of this Class B-1(b)
Bond) falling in January 2035 (or on such earlier date(s) as the Face Value of
this Class B-1(b) Bond (or part of it) may become repayable in accordance with
the Conditions) the principal sum of:
EURO 100,000 (One Hundred Thousand Euros)
or such part of that amount as may be repayable on such date(s) in accordance
with the Conditions, the Security Trust Deed, the Master Trust Deed and the Bond
Trust Deed, together with interest on the Face Value payable in arrears on each
Payment Date and such other amounts (if any) as may be payable, all subject to
and in accordance with the Conditions and the provisions of the Security Trust
Deed, the Master Trust Deed and the Bond Trust Deed.
This Class B-1(b) Bond shall not become valid for any purpose unless and until
the attached Certificate of Authentication has been signed by any authorised
signatory of The Bank of New York as Principal Paying Agent.
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Bond Trust Deed
IN WITNESS this Bond has been executed on behalf of the Issuer.
PERMANENT CUSTODIANS LIMITED
By:
------------------------
Authorised Signatory
Dated as of [*],
Issued in [*]
IMPORTANT NOTES:
(a) The liability of the Issuer under the Class B-1(b) Bonds is limited (in
accordance with and subject to the Master Trust Deed and the
Conditions) to and does not extend beyond the assets of the Fund as
they stand at the time at which the obligation is met or satisfied. The
Issuer issues the Class B-1(b) Bonds only in its capacity as trustee of
the Fund and in no other capacity. The Issuer is not liable to meet or
satisfy any such obligation from its own assets (except the Issuer's
right to be indemnified from the assets of the Fund) and each such
obligation must be met or satisfied from the Fund or the Issuer's right
to be indemnified from the assets of the Fund.
(b) Neither Permanent Custodians Limited (in its capacity as trustee of the
Fund, trustee of any other trust or in its personal capacity), the
Security Trustee nor the Bond Trustee stands behind the capital value
and/or performance of the Class B-1(b) Bonds or the assets of the Fund
except to the limited extent provided for in the Transaction Documents.
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Class B-1(b) Bonds
referred to in the Bond Trust Deed
The Bank of New York
as Principal Paying Agent
By:
---------------------------
Authorised Signatory
For The Bank of New York
(without recourse, warranty or liability)
Issued in [*] on [*]
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Bond Trust Deed
SCHEDULE 3
TERMS AND CONDITIONS OF THE BONDS
ARMS II GLOBAL FUND 3
GENERAL
The following are the terms and conditions (the CONDITIONS) which will be
applicable to:
(a) each Offshore Bond (whether represented by a Global Bond or a
Definitive Bond);
(b) each Fast Prepayment Bond,
in each case, issued under the Bond Trust Deed, the Master Trust Deed, the
Security Trust Deed and the relevant Subscription Agreement, designated
collectively as ARMS II GLOBAL FUND 3 BONDS.
These Conditions are created under the Master Trust Deed and constitute the
Supplementary Bond Terms applicable to the Bonds, as defined in and for the
purposes of the Master Trust Deed.
These Conditions will appear on the reverse side of the Offshore Bonds in
definitive form.
FORM, DENOMINATION AND TITLE
The Bonds will be comprised of 5 Classes designated CLASS A-1(a) BONDS, CLASS
A-1(b) BONDS, CLASS B-1(a) BONDS, CLASS B-1(b) BONDS and FAST PREPAYMENT BONDS
respectively.
All Bonds will be in the form of inscribed stock. They are issued upon
inscription in the relevant Register.
1. DEFINITIONS AND INTERPRETATION
1.1 GENERAL
In these Conditions:
(a) references to THESE CONDITIONS or to a specified Condition are
to the Conditions set out in this Schedule 3 or the relevant
Condition (as the case may be) set out in this Schedule 3;
(b) words and expressions defined in clause 1.1 of the Bond Trust
Deed or clause 1.1 of the Master Trust Deed have the same
meanings when used in these Conditions, unless otherwise
defined in them. To the extent of any inconsistency between a
word or expression defined in the Bond Trust Deed and the
Master Trust Deed, the definition in the Bond Trust Deed will
prevail. To the extent of any inconsistency between a word or
expression defined in the Bond Trust Deed and these
Conditions, the definition in these Conditions will prevail;
(c) a reference to an amount being paid to a person includes a
reference to that amount being paid at the direction of that
person; and
(d) clause 1.3 of the Bond Trust Deed is incorporated in these
Conditions as if set out in full in these Conditions but as if
a reference to THIS DEED in clause 1.3 of the Bond Trust Deed
were a reference to THESE CONDITIONS.
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Bond Trust Deed
1.2 DEFINITIONS
In these Conditions:
ADJUSTED LVR means, in relation to a Loan the subject of a Further
Advance, at any time, the ratio (expressed as a percentage) of:
(a) the scheduled principal balance of that Loan immediately prior
to the Further Advance, together with the amount of the
Further Advance and any undrawn line of credit under the Loan
at that time; to
(b) the Valuation of the Land the subject of the Mortgage securing
that Loan.
ADVANCES REQUEST means each Redraw Request, each Line of Credit Advance
Request and each Further Advance Request.
ADVANCES RESERVE means the ledger account established and maintained by
the Trust Manager in accordance with Condition 7.1(a), or the balance
of that account from time to time, as the context requires.
AGGREGATE LOSS AMOUNT means, in relation to a Calculation Period, an
amount equal to the aggregate of all Loss Amounts for that Calculation
Period.
AVAILABLE AMORTISATION AMOUNT means, on any Payment Date:
(a) the Principal Collections for the Calculation Period to which
that Payment Date relates; minus
(b) the amount (if any) deducted therefrom or (as the case may be)
plus the amount (if any) added thereto in accordance with
Conditions 6.4(b), 6.5(b)(iii), 7.2 or 7.3; plus
(c) the aggregate of all amounts applied on that Payment Date
under paragraphs (i) to (l) (inclusive) of Condition 4.4.
BBSW means:
(a) in relation to an Interest Accrual Period and a Currency Swap,
the rate determined by the party to that Currency Swap
specified as the Calculation Agent (as defined in that
Currency Swap) for the purposes thereof in accordance with the
definition "AUD - BBR - BBSW" contained in the ISDA
Definitions, on the basis that the Reset Date is the first day
of that Interest Accrual Period, and the Designated Maturity
is a period of the same length as that Interest Accrual
Period; and
(b) (i) in relation to the first Interest Accrual Period, the
rate determined by the Trust Manager on the
Determination Date immediately before that Interest
Accrual Period commences as being the mean buying and
selling rate for a bill of exchange of the type
specified for the purpose of quoting on the Reuters
Screen BBSW Page being an interpolation (in respect
of tenor of the Interest Accrual Period) of the rates
on that Determination Date applicable for bills of
exchange with tenors of two months and three months
respectively;
(ii) in relation to an Interest Accrual Period and a Bond,
the rate calculated by the Trust Manager taking the
rates quoted on the Reuters Screen BBSW Page at
approximately 10.00 am, Sydney time, on the first day
of that Interest Accrual Period as being the mean
buying and selling rate for a bill of exchange of the
type
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Bond Trust Deed
specified for the purpose of quoting on the Reuters
Screen BBSW Page, having a tenor equal or
approximately equal to that Interest Accrual Period,
eliminating the highest and the lowest mean rates and
taking the average of the remaining mean rates and
then (if necessary) rounding the resultant figure to
four decimal places in accordance with market
practice; or
(iii) if fewer than five banks have quoted rates on the
Reuters Screen BBSW Page, the rate shall be
calculated as above by taking the rates otherwise
quoted by five banks or financial institutions
authorised to quote on the Reuters Screen BBSW Page
on application by the Trust Manager for such a bill
of the same tenor. If the rate cannot be determined
in accordance with the foregoing procedures then the
rate shall mean such rate as is determined by the
Trust Manager in good faith having regard to
comparable indices then available.
BONDHOLDERS' CASH RESERVE means, on any date, an amount of the Cash
Reserve equal to:
(a) the amount credited to the Cash Reserve Account on the Initial
Issue Date in accordance with Condition 6.2; minus
(b) the aggregate of all amounts applied as part of the Available
Amortisation Amount in accordance with Condition 6.5(b)(iii)
prior to that date.
BOND TRUST DEED means the Bond Trust Deed of which this Schedule 3
forms part.
BORROWER means a person to whom a Loan secured by a Mortgage has been
made.
CALCULATION AMOUNT means the EURO Calculation Amount and the US$
Calculation Amount.
CALCULATION PERIOD means:
(a) the period from the Initial Issue Date until the first
Cut-Off; and
(b) subsequently, each period commencing immediately after one
Cut-Off and ending at the next Cut-Off,
and in relation to a Payment Date, means the period referred to above
ending at the last Cut-Off before that Payment Date.
CALL OPTION REDEMPTION DATE means the Payment Date specified in a
direction given by the Trust Manager under Condition 8.2.
CASH RESERVE means, at any time, the balance of the Cash Reserve
Account at that time.
CASH RESERVE ACCOUNT means the ledger account established and
maintained by the Trust Manager in accordance with Condition 6.1.
CASH RESERVE LENDER means a person who makes a Cash Reserve Top-Up Loan
to the Issuer.
CASH RESERVE TOP-UP LOAN means, at any time, any amount borrowed by the
Issuer at the request of the Trust Manager and credited to the Cash
Reserve Account, to the extent not previously repaid in accordance with
Condition 6.5.
CHARGE-OFF means, in relation to a Bond and a Payment Date, the amount
of any reduction in the Stated Value of that Bond on that Payment Date
made under Condition 4.10.
CLASS means, as the context requires:
(a) all Class A-1(a) Bonds;
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Bond Trust Deed
(b) all Class A-1(b) Bonds;
(c) all Class B-1(a) Bonds;
(d) all Class B-1(b) Bonds; or
(e) all of the Fast Prepayment Bonds comprised in an Issue of Fast
Prepayment Bonds.
CLASS A A$ EXCHANGE AMOUNT means each of the Class A A$/US$ Exchange
Amount and the Class A A$/EURO Exchange Amount.
CLASS A A$/EURO EXCHANGE AMOUNT means, in relation to a Payment Date,
the A$ Equivalent of the aggregate Calculation Amounts of the Class A
EURO Currency Swaps on that date.
CLASS A A$/US$ EXCHANGE AMOUNT means, in relation to a Payment Date,
the A$ Equivalent of the aggregate Calculation Amounts of the Class A
US$ Currency Swaps on that date.
CLASS A CURRENCY SWAPS PAYMENT AMOUNT means each of the Class A US$
Currency Swaps Payment Amount and the Class A EURO Currency Swaps
Payment Amount.
CLASS A EURO CURRENCY SWAPS PAYMENT AMOUNT means, in relation to a
Payment Date, being an amount (in Australian Dollars) calculated as
follows:
n
ACSA = AFVA X SR X ---
365
Where:
ACSA is the Class A EURO Currency Swaps Payment Amount
AFVA is the A$ Equivalent of the aggregate Face Value of
the Class A-1(b) Bonds on the immediately preceding
Payment Date (after taking account of any payments
made in redemption of the Face Value of the Class
A-1(b) Bonds on that date)
SR is the Swap Rate for the Class A EURO Currency Swaps
for the Interest Accrual Period ending on that
Payment Date
n is the number of days in the Interest Accrual Period
ending on that Payment Date.
CLASS A US$ CURRENCY SWAPS PAYMENT AMOUNT means, in relation to a
Payment Date, an amount (in Australian Dollars) calculated as follows:
n
ACSA = AFVA X SR X ---
365
Where:
ACSA is the Class A US$ Currency Swaps Payment Amount
AFVA is the A$ Equivalent of the aggregate Face Value of
the Class A-1(a) Bonds on the immediately preceding
Payment Date (after taking account of any payments
made in redemption of the Face Value of the Class
A-1(a) Bonds on that date)
SR is the Swap Rate for the Class A US$ Currency Swaps
for the Interest Accrual Period ending on that
Payment Date
n is the number of days in the Interest Accrual Period
ending on that Payment Date.
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Bond Trust Deed
CLASS A CURRENCY SWAP RECEIPTS means the Class A US$ Currency Swap
Receipts and the Class A EURO Currency Swap Receipts.
CLASS A EURO CURRENCY SWAP RECEIPTS means, in relation to a Payment
Date, an amount (in Euros) equal to the lesser of:
(a) the amount calculated as follows:
n
ACSR = AFVA X IR X ---
360
where:
ACSR is the Class A EURO Currency Swap Receipts
AFVA is the aggregate Face Value of the Class A-1(b) Bonds
on the immediately preceding Payment Date (after
taking account of any payment made in redemption of
the Face Value of the Class A-1(b) Bonds on that
date)
IR is the Interest Rate applicable to the Class A-1(b)
Bonds for the Interest Accrual Period ending on that
Payment Date
n is the number of days in the Interest Accrual Period
ending on that Payment Date; and
(b) if the aggregate amount payable to the Class A EURO Swap
Counterparties under Condition 4.4(e) on that Payment Date is
less than the Class A EURO Currency Swaps Payment Amount
because of the operation of the final paragraph of Condition
4.4, an amount equal to the same proportion of the amount
referred to in paragraph (a) as the amount so payable under
Condition 4.4(e) bears to the Class A EURO Currency Swaps
Payment Amount for that Payment Date.
CLASS A US$ CURRENCY SWAP RECEIPTS means, in relation to a Payment
Date, an amount (in US Dollars) equal to the lesser of:
(a) the amount calculated as follows:
n
ACSR = AFVA X IR X ---
360
where:
ACSR is the Class A US$ Currency Swap Receipts
AFVA is the aggregate Face Value of the Class A-1(a) Bonds
on the immediately preceding Payment Date (after
taking account of any payment made in redemption of
the Face Value of the Class A-1(a) Bonds on that
date)
IR is the Interest Rate applicable to the Class A-1(a)
Bonds for the Interest Accrual Period ending on that
Payment Date
n is the number of days in the Interest Accrual Period
ending on that Payment Date; and
(b) if the aggregate amount payable to the Class A US$ Swap
Counterparties under Condition 4.4(e) on that Payment Date is
less than the Class A US$ Currency Swaps Payment Amount
because of the operation of the final paragraph of Condition
4.4, an amount equal
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Bond Trust Deed
to the same proportion of the amount referred to in paragraph
(a) as the amount so payable under Condition 4.4(e) bears to
the Class A US$ Currency Swaps Payment Amount for that Payment
Date.
CLASS A EURO EXCHANGE AMOUNT means, in relation to a Payment Date, the
aggregate of the Exchange Amounts payable by the relevant Currency Swap
Counterparties under the Class A EURO Currency Swaps on that Payment
Date, being the EURO Equivalent of the aggregate of the amounts paid by
the Issuer on that Payment Date under Condition 5.1(b)(ii) in or
towards payment of the Class A A$/EURO Exchange Amount.
CLASS A US$ EXCHANGE AMOUNT means, in relation to a Payment Date, the
aggregate of the Exchange Amounts payable by the relevant Currency Swap
Counterparties under the Class A US$ Currency Swaps on that Payment
Date, being the US$ Equivalent of the aggregate of the amounts paid by
the Issuer on that Payment Date under Condition 5.1(b)(i) in or towards
payment of the Class A A$/US$ Exchange Amount.
CLASS B A$ EXCHANGE AMOUNT means each of the Class B A$/US$ Exchange
Amount and the Class B A$/EURO Exchange Amount.
CLASS B A$/EURO EXCHANGE AMOUNT means, in relation to a Payment Date,
the A$ Equivalent of the aggregate Calculation Amounts of the Class B
EURO Currency Swaps on that date.
CLASS B A$/US$ EXCHANGE AMOUNT means, in relation to a Payment Date,
the A$ Equivalent of the aggregate Calculation Amounts of the Class B
US$ Currency Swaps on that date.
CLASS B CURRENCY SWAPS PAYMENT AMOUNT means each of the Class B US$
Currency Swaps Payment Amount and the Class B EURO Currency Swaps
Payment Amount.
CLASS B EURO CURRENCY SWAPS PAYMENT AMOUNT means, in relation to a
Payment Date, an amount (in Australian Dollars) calculated as follows:
n
BCSA = BFVA X SR X ---
365
Where:
BCSA is the Class B EURO Currency Swaps Payment Amount
BFVA is the A$ Equivalent of the aggregate Face Value of
the Class B-1(b) Bonds on the immediately preceding
Payment Date (after taking account of any payments
made in redemption of the Face Value of the Class
B-1(b) Bonds on that date)
SR is the Swap Rate for the Class B EURO Currency Swaps
for the Interest Accrual Period ending on that
Payment Date
n is the number of days in the Interest Accrual Period
ending on that Payment Date.
CLASS B US$ CURRENCY SWAPS PAYMENT AMOUNT means, in relation to a
Payment Date, an amount (in Australian Dollars) calculated as follows:
n
BCSA = BFVA X SR X ---
365
Where:
BCSA is the Class B US$ Currency Swaps Payment Amount
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Bond Trust Deed
BFVA is the A$ Equivalent of the aggregate Face Value of
the Class B-1(a) Bonds on the immediately preceding
Payment Date (after taking account of any payments
made in redemption of the Face Value of the Class
B-1(a) Bonds on that date)
SR is the Swap Rate for the Class B US$ Currency Swaps
for the Interest Accrual Period ending on that
Payment Date
n is the number of days in the Interest Accrual Period
ending on that Payment Date.
CLASS B CURRENCY SWAP RECEIPTS means the Class B US$ Currency Swap
Receipts and the Class B EURO Currency Swap Receipts.
CLASS B EURO CURRENCY SWAP RECEIPTS means, in relation to a Payment
Date, an amount (in Euros) equal to the lesser of:
(a) the amount calculated as follows:
n
BCSR = BFVA X IR X ---
360
where:
BCSR is the Class B EURO Currency Swap Receipts
BFVA is the aggregate Face Value of the Class B-1(b) Bonds
on the immediately preceding Payment Date (after
taking account of any payment made in redemption of
the Face Value of the Class B-1(b) Bonds on that
date)
IR is the Interest Rate applicable to the Class B-1(b)
Bonds for the Interest Accrual Period ending on that
Payment Date
n is the number of days in the Interest Accrual Period
ending on that Payment Date; and
(b) if the aggregate amount payable to the Class B EURO Swap
Counterparties under Condition 4.4(f) on that Payment Date is
less than the Class B EURO Currency Swaps Payment Amount
because of the operation of the final paragraph of Condition
4.4, an amount equal to the same proportion of the amount
referred to in paragraph (a) as the amount so payable under
Condition 4.4(f) bears to the Class B EURO Currency Swaps
Payment Amount for that Payment Date.
CLASS B US$ CURRENCY SWAP RECEIPTS means, in relation to a Payment
Date, an amount (in US Dollars) equal to the lesser of:
(a) the amount calculated as follows:
n
BCSR = BFVA X IR X ---
360
where:
BCSR is the Class B US$ Currency Swap Receipts
BFVA is the aggregate Face Value of the Class B-1(a) Bonds
on the immediately preceding Payment Date (after
taking account of any payment made in redemption of
the Face Value of the Class B-1(a) Bonds on that
date)
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IR is the Interest Rate applicable to the Class B-1(a)
Bonds for the Interest Accrual Period ending on that
Payment Date
n is the number of days in the Interest Accrual Period
ending on that Payment Date; and
(b) if the aggregate amount payable to the Class B US$ Swap
Counterparties under Condition 4.4(f) on that Payment Date is
less than the Class B US$ Currency Swaps Payment Amount
because of the operation of the final paragraph of Condition
4.4, an amount equal to the same proportion of the amount
referred to in paragraph (a) as the amount so payable under
Condition 4.4(f) bears to the Class B US$ Currency Swaps
Payment Amount for that Payment Date.
CLASS B EURO EXCHANGE AMOUNT means, in relation to a Payment Date, the
aggregate of the Exchange Amounts payable by the relevant Currency Swap
Counterparties under the Class B EURO Currency Swaps on that Payment
Date, being the EURO Equivalent of the aggregate of the amounts paid by
the Issuer on that Payment Date under Condition 5.1(c)(ii) in or
towards payment of the Class B A$/EURO Exchange Amount.
CLASS B US$ EXCHANGE AMOUNT means, in relation to a Payment Date, the
aggregate of the Exchange Amounts payable by the relevant Currency Swap
Counterparties under the Class B US$ Currency Swaps on that Payment
Date, being the US$ Equivalent of the aggregate of the amounts paid by
the Issuer on that Payment Date under Condition 5.1(c)(i) in or towards
payment of the Class B A$/US$ Exchange Amount.
CONFIRMATION has the same meaning as in the ISDA Definitions.
CONTRACT AMOUNT has the same meaning as in the ISDA Definitions.
CORE SURPLUS has the meaning given in Condition 6.5(b).
CUT-OFF means 5.00 p.m. on the last Business Day of March, June,
September and December in each year, the first such date being [31
December 2003].
DESIGNATED RATING has, in relation to the Bonds, the meaning set out in
Condition 14.1.
DESIGNATED RATING AGENCY has, in relation to the Bonds, the meaning set
out in Condition 14.2.
DETERMINATION DATE means each date which is two Business Days before a
Payment Date and for the purposes of calculating LIBOR and EURIBOR in
respect of the initial Interest Accrual Period only, the date which is
two Business Days before the Initial Issue Date.
EURO CALCULATION AMOUNT means, in relation to a Class A EURO Currency
Swap or a Class B EURO Currency Swap and at any time, the amount (in
Euros) equal to the Specified Percentage of the aggregate Face Value of
the Class A-1(b) Bonds or of the Class B-1(b) Bonds (as the case may
be) at that time.
EURIBOR means:
(a) in relation to an Interest Accrual Period (other than the
first Interest Accrual Period), the rate determined by the
Calculation Agent on the Determination Date immediately before
that Interest Accrual Period commences as the rate
EUR-EURIBOR-TELERATE (as defined in the ISDA Definitions)
being the rate applicable for three month deposits in Euros
which appears on the Telerate Page 248 as of 11.00 am,
Brussels time, on that Determination Date; and
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(b) in relation to the first Interest Accrual Period, the rate
determined by the Calculation Agent on the Determination Date
immediately before that Interest Accrual Period commences as
the rate EUR-EURIBOR-TELERATE (as defined in the ISDA
Definitions) being an interpolation (in respect of tenor of
the Interest Accrual Period) of the rates applicable for two
and three month deposits in Euros which appear on the Telerate
Page 248 as of 11.00am, Brussels time, on that Determination
Date.
If such rate or rates (as the case may be) do not appear on the
Telerate Page 248, the rate for that Interest Accrual Period will be
determined as if the Issuer and Calculation Agent had specified
EUR-EURIBOR-REFERENCE BANKS as the applicable Floating Rate Option
under the ISDA Definitions. EUR-EURIBOR-REFERENCE BANKS means, in
relation to an Interest Accrual Period, the rate determined by the
Calculation Agent on the Determination Date immediately before that
Interest Accrual Period commences on the basis of the rates at which
deposits in Euros are offered by the Reference Banks (being four major
banks in the London interbank market agreed to by the Calculation Agent
and the relevant Currency Swap Counterparty at approximately 11.00 am,
London time, on the relevant Determination Date (each a REFERENCE
BANK)) to prime banks in the London interbank market for a period of
three months and, in relation to paragraph (b), two months commencing
on the first day of the Interest Accrual Period and in a Representative
Amount (as defined in the ISDA Definitions). The Calculation Agent will
request the principal London office of each of the Reference Banks to
provide a quotation of its rates for each period. If at least two such
quotations are provided, the rate for that period and that Interest
Accrual Period will be the arithmetic mean of the quotations. If fewer
than two quotations are provided as requested, the rate for that period
and that Interest Accrual Period will be the arithmetic mean of the
rates quoted by major banks in New York City, agreed to by the
Calculation Agent and the relevant Currency Swap Counterparty, at
approximately 11.00 am, New York City time, on the first day of the
Interest Accrual Period for loans in Euros to leading European banks
for a period of three months and, in relation to paragraph (b), two
months commencing on the first day of the Interest Accrual Period and
in a Representative Amount. If no such rates are available in New York
City, then the rate for such period and Interest Accrual Period shall
be the most recently determined rate in accordance with this paragraph.
EXCHANGE AMOUNT means, in relation to a Currency Swap and a Payment
Date, the Exchange Amount (as defined in the ISDA Definitions) payable
by the relevant Currency Swap Counterparty to the Issuer on that date,
being an amount equal to the US$ Equivalent or EURO Equivalent (as the
case may be) of the amount paid by the Issuer to that Currency Swap
Counterparty on that Payment Date under Condition 5.1.
EXCHANGE RATE means:
(a) in relation to a Class A US$ Currency Swap or a Class B US$
Currency Swap, the A$/US$ exchange rate specified as such in
the relevant Confirmation; or
(b) in relation to a Class A EURO Currency Swap or a Class B EURO
Currency Swap the A$/EURO exchange rate specified as such in
the relevant Confirmation.
EXTRAORDINARY RESOLUTION means:
(a) a resolution in writing signed by all Bondholders (or the
relevant Class of Bondholders) entitled to vote on the
resolution; or
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(b) a resolution passed or adopted at a meeting of Bondholders (or
the relevant Class of Bondholders, as the case may be) duly
convened and held in accordance with the Meetings Procedures
by a majority consisting of not less than 75% of the votes
cast in respect of such resolution.
FAST PREPAYMENT PERIOD means, in relation to a Fast Prepayment Bond,
the period of 1 year commencing on the date which is the Payment Date
for the Interest Accrual Period current at the Issue Date of that Bond.
FINAL PAYMENT DATE means the earlier of:
(a) the Payment Date on which the aggregate of the Available
Amortisation Amount, the Core Surplus and the balance of the
Advances Reserve is equal to or exceeds the aggregate Face
Value of all of the Bonds (in each case calculated prior to
the making of any payments or applications under Conditions 4
or 5 on that Payment Date); and
(b) the Maturity Date.
FIXED RATE MORTGAGE means, at any time, a Mortgage which secures a Loan
in respect of which the applicable interest rate is not, at that time,
variable at the discretion of the lender.
FIXED RATE TERM means, in relation to a Fixed Rate Mortgage, the period
(calculated from the date of commencement) for which the interest rate
applicable to the relevant Loan is not variable at the discretion of
the lender.
FURTHER ADVANCE means, in respect of a Loan, an advance by way of loan
to a Borrower where the principal amount of the Loan after the advance
exceeds the scheduled principal balance of the Loan at the time of the
advance.
FURTHER ADVANCE REQUEST means a request by a Borrower for a Further
Advance.
INITIAL EXCHANGE AMOUNT has the same meaning as in the ISDA
Definitions.
INITIAL ISSUE DATE means the Issue Date of the Class A-1(a) Bonds and
Class A-1(b) Bonds, Class B-1(a) Bonds and Class B-1(b) Bonds.
INTEREST ACCRUAL PERIOD means, in relation to a Bond:
(a) the period commencing on (and including) the Issue Date for
that Bond, and ending on (but excluding) the first Payment
Date for that Bond; and
(b) each subsequent period commencing on (and including) each
Payment Date for that Bond, and ending on (but excluding) the
next Payment Date for that Bond except that the last Interest
Accrual Period will end on (but exclude) the Final Payment
Date.
INTEREST COLLECTIONS means, in relation to a Calculation Period, the
aggregate of:
(a) all moneys received by the Issuer during that Calculation
Period under, in respect of, or which relate to, each Mortgage
comprised in the Assets of the Fund which are determined by
the Trust Manager to be in respect of interest, fees or other
amounts of an income nature, including, for the avoidance of
doubt, any such amounts received from the Trust Manager in
respect of damages or compensation for any breach by the Trust
Manager of any of its obligations, or of any representation or
warranty given or made by it in respect of the Fund or any
Assets of the Fund, under or in connection with any
Transaction Document relating to the Fund;
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(b) subject to Condition 6.7, all income derived from Authorised
Investments standing to the credit of the Cash Reserve Account
received by the Issuer during that Calculation Period;
(c) the Interest Rate Swap Receipts for that Calculation Period;
and
(d) all amounts paid by the Trust Manager under Condition 13.3
during that Calculation Period.
For these purposes, moneys received under or in respect of a Mortgage
will be deemed to be received when they are treated as received under
that Mortgage.
INTEREST ENTITLEMENT means, in relation to a Bond and an Interest
Accrual Period, the amount of interest accrued in respect of that Bond
during that Interest Accrual Period, as determined in accordance with
these Conditions.
INTEREST RATE means, in relation to each Bond and each Interest Accrual
Period relating thereto, the rate per annum equal to the aggregate of
the Reference Rate relating to that Bond for that Interest Accrual
Period plus the Margin for that Bond.
INTEREST RATE SWAP BREAK COSTS means, in relation to a Calculation
Period, the aggregate net amount (if any) paid or payable by the Issuer
to the Interest Rate Swap Counterparties during that Calculation Period
following the occurrence of an Early Termination Date (as defined in
the ISDA Definitions) under any Interest Rate Swap which has become a
Terminated Transaction (as defined in the ISDA Definitions).
INTEREST RATE SWAP PAYMENTS means, in relation to a Calculation Period,
the aggregate net amount (if any) paid or payable by the Issuer to the
Interest Rate Swap Counterparties under or in respect of the Interest
Rate Swaps during that Calculation Period, but excluding any Interest
Rate Swap Break Costs.
INTEREST RATE SWAP RECEIPTS means, in relation to a Calculation Period,
the aggregate net amount (if any) paid or payable to the Issuer by the
Interest Rate Swap Counterparties under or in respect of the Interest
Rate Swaps during that Calculation Period.
ISSUER CALL OPTION EVENT means each of the events specified as such in
Condition 8.1.
LIBOR means:
(a) in relation to an Interest Accrual Period (other than the
first Interest Accrual Period), the rate determined by the
Calculation Agent on the Determination Date immediately before
that Interest Accrual Period commences as the rate
USD-LIBOR-BBA (as defined in the ISDA Definitions) being the
rate applicable for three month deposits in US Dollars which
appears on the Telerate Page 3750 as of 11.00 am, London time,
on that Determination Date; and
(b) in relation to the first Interest Accrual Period, the rate
determined by the Calculation Agent on the Determination Date
immediately before that Interest Accrual Period commences as
the rate USD-LIBOR-BBA (as defined in the ISDA Definitions)
being an interpolation (in respect of tenor of the Interest
Accrual Period) of the rates applicable for two and three
month deposits in US Dollars which appear on the Telerate Page
3750 as of 11.00am, London time, on that Determination Date.
If such rate or rates (as the case may be) do not appear on the
Telerate Page 3750, the rate for that Interest Accrual Period will be
determined as if the Issuer and Calculation Agent had specified
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USD-LIBOR-REFERENCE BANKS as the applicable Floating Rate Option under
the ISDA Definitions. USD-LIBOR-REFERENCE BANKS means, in relation to
an Interest Accrual Period, the rate determined by the Calculation
Agent on the Determination Date immediately before that Interest
Accrual Period commences on the basis of the rates at which deposits in
US Dollars are offered by the Reference Banks (being four major banks
in the London interbank market agreed to by the Calculation Agent and
the relevant Currency Swap Counterparty at approximately 11.00 am,
London time, on the relevant Determination Date (each a REFERENCE
BANK)) to prime banks in the London interbank market for a period of
three months and, in relation to paragraph (b), two months commencing
on the first day of the Interest Accrual Period and in a Representative
Amount (as defined in the ISDA Definitions). The Calculation Agent will
request the principal London office of each of the Reference Banks to
provide a quotation of its rates for each period. If at least two such
quotations are provided, the rate for that period and that Interest
Accrual Period will be the arithmetic mean of the quotations. If fewer
than two quotations are provided as requested, the rate for that period
and that Interest Accrual Period will be the arithmetic mean of the
rates quoted by major banks in New York City, agreed to by the
Calculation Agent and the relevant Currency Swap Counterparty, at
approximately 11.00 am, New York City time, on the first day of the
Interest Accrual Period for loans in US Dollars to leading European
banks for a period of three months and, in relation to paragraph (b),
two months commencing on the first day of the Interest Accrual Period
and in a Representative Amount. If no such rates are available in New
York City, then the rate for such period and Interest Accrual Period
shall be the most recently determined rate in accordance with this
paragraph.
LINE OF CREDIT ADVANCE means, in relation to a Loan, an advance by way
of loan to a Borrower of any undrawn portion of the credit limit in
respect of the Loan under and in accordance with a Line of Credit
Mortgage and the related Terms of Loan.
LINE OF CREDIT ADVANCE REQUEST means a request by a Borrower for a Line
of Credit Advance which is made under and in accordance with a Line of
Credit Mortgage and the related Terms of Loan.
LINE OF CREDIT MORTGAGE means a Mortgage which secures a revolving Loan
in respect of which the relevant Terms of Loan:
(a) permit the Borrower to make multiple borrowings by way of Loan
up to a maximum credit limit; and
(b) grant to the Issuer a right to refuse to lend if at any time
the Issuer does not have funding available to enable it to
meet a request that it lends an amount to the Borrower.
LIQUIDATED MORTGAGE means a Mortgage with respect to which a default
has occurred and the Trust Manager has determined that all Liquidation
Proceeds likely to be recoverable have been recovered, having regard
to:
(a) the enforcement of the Mortgage and any Collateral Security;
(b) any sale of the Land subject to the Mortgage;
(c) any proceeds paid on the compulsory acquisition of that Land
by any Government Body;
(d) any payments received from any relevant Borrower on account of
any amount outstanding under the relevant Loan;
(e) such other matters as the Trust Manager reasonably determines
to be relevant.
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LIQUIDATION PROCEEDS means, in relation to a Mortgage, the amount
received by or on behalf of the Issuer in connection with the
liquidation of such Mortgage including, without limitation:
(a) proceeds arising from the enforcement of the Mortgage and sale
of the Land subject to that Mortgage;
(b) proceeds arising from the enforcement of any Collateral
Security;
(c) the proceeds of any claim under the relevant Mortgage
Insurance Policy; and
(d) proceeds arising from any resumption or compulsory acquisition
of the relevant Land by any Government Body.
LOSS AMOUNT means, in relation to a Mortgage which becomes a Liquidated
Mortgage during a Calculation Period, the Face Value of that Mortgage
after the application of all Liquidation Proceeds relating to that
Mortgage.
LVR means, in relation to a Loan, at any time. the ratio (expressed as
a percentage) of:
(a) the Face Value of the Loan at that time; to
(b) the Valuation of the Land the subject of the Mortgage securing
that Loan.
MANAGER'S FEE means, in respect of a Payment Date, the amount
calculated as follows:
n
MF = --- X FV X P
365
where:
MF is the Manager's Fee
n is the number of days in the Interest Accrual Period
ending on that Payment Date
FV is the Face Value of all Mortgages outstanding which
are comprised in the Assets of the Fund on the last
Cut-Off before that Payment Date
P is [0.20]% or such other percentage as agreed between
the Issuer and the Trust Manager from time to time.
MARGIN means:
(a) in relation to each Class A-1(a) Bond:
(i) before the Margin Step-Up Date, [*]% per annum; and
(ii) after the Margin Step-Up Date, [*]% per annum;
(b) in relation to each Class A-1(b) Bond:
(i) before the Margin Step-Up Date, [*]% per annum; and
(ii) after the Margin Step-Up Date, [*]% per annum;
(c) in relation to each Class B-1(a) Bond:
(i) before the Margin Step-Up Date, [*]% per annum; and
(ii) after the Margin Step-Up Date, [*]% per annum;
(d) in relation to each Class B-1(b) Bond:
(i) before the Margin Step-Up Date, [*]% per annum; and
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(ii) after the Margin Step-Up Date, [*]% per annum; and
(e) in relation to each Fast Prepayment Bond, and at any time, the
applicable margin as at that time, as agreed between the Trust
Manager, the Issuer and the initial subscribers for those
Bonds.
MARGIN STEP-UP DATE means the first date upon which an Issuer Call
Option Event occurs.
MATURITY DATE means in relation to each Class A-1(a) Bond, each Class
A-1(b) Bond, each Class B-1(a) Bond, each Class B-1(b) Bond and each
Fast Prepayment Bond, 10 January 2035.
MAXIMUM ADVANCES RESERVE means, at any time, the greater of:
(a) A$[40,000,000]; and
(b) an amount equal to [3]% of the A$ Equivalent of the aggregate
Face Value of all Offshore Bonds at that time;
or such other amount determined by the Trust Manager from time to time
in consultation with the Designated Rating Agencies and notified to the
Issuer.
MORTGAGE means a Mortgage (as defined in the Master Trust Deed) which
is comprised in the Portfolio specified in the Issue Notice for the
Bonds and which the Issuer comes to hold on the Initial Issue Date.
NET INTEREST COLLECTIONS means, in relation to a Calculation Period:
(a) the Interest Collections for that Calculation Period; minus
(b) the aggregate of the amounts required to be applied under
paragraphs (a)-(d) (inclusive) of Condition 4.4 on the next
Payment Date to occur after the end of that Calculation
Period.
NOTIONAL AMOUNT has the same meaning as in the ISDA Definitions.
PAYMENT DATE means:
(a) in relation to each Class A-1(a) Bond, each Class A-1(b) Bond,
each Class B-1(a) Bond and each Class B-1(b) Bond, the 10th
day of January, April, July and October in each year, the
first such date being 10 April 2004;
(b) in relation to each Fast Prepayment Bond:
(i) during the Fast Prepayment Period, each date agreed
between the Trust Manager, the Issuer and the initial
subscribers for those Bonds; and
(ii) after the Fast Prepayment Period, each Payment Date
for the Class A Bonds; and
(c) in relation to a Calculation Period, the next such date to
occur after the end of that Calculation Period.
PERMITTED FURTHER ADVANCE means a Further Advance:
(a) made or to be made (as the context requires) at any time prior
to the second anniversary of the Initial Issue Date; and
(b) in respect of which, immediately after the making of that
Further Advance, the Adjusted LVR of the relevant Loan would
not exceed 80%; and
(c) in respect of which the aggregate principal amount of all
Further Advances (other than Further Advances in respect of
Loans sold or transferred by the Issuer under this Deed)
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immediately after the making of that Further Advance would not
exceed 5% of the A$ Equivalent of the Face Value of all Bonds
on the Initial Issue Date; and
(d) in respect of which, immediately after the making of that
Further Advance, the weighted average LVR of all Loans forming
part of the Assets of the Fund would not exceed what the
weighted average LVR of all Loans forming part of the Assets
of the Fund would have been had no Line of Credit Advances,
Redraw Advances, Further Advances or principal payments (other
than scheduled principal payments) been made in respect of
those Loans.
PRINCIPAL COLLECTIONS means, in relation to a Calculation Period, the
aggregate of all moneys received by the Issuer under, in respect of, or
which relate to, the Assets of the Fund (including, for the avoidance
of doubt any amounts received from the Trust Manager in respect of
damages or compensation for any breach by the Trust Manager of any of
its obligations, or of any representation or warranty given or made by
it in respect of the Fund or any Assets of the Fund under or in
connection with any Transaction Document relating to the Fund) and
which are not Interest Collections.
PRINCIPAL PAYING AGENT means, in relation to the Offshore Bonds,
initially The Bank of New York, and thereafter the person who is from
time to time appointed as the Principal Paying Agent in accordance with
these Conditions and the relevant Paying Agency Agreement.
RECORD DATE means, in relation to a date on which a payment is due by
the Issuer under or in respect of a Bond, 5.00pm (Sydney time) on the
date that is 5 Business Days before that date.
REDRAW ADVANCE means, in relation to a Loan, an advance by way of loan
to a Borrower which is a reborrowing of amounts previously prepaid in
respect of the Loan as unscheduled principal payments.
REDRAW MORTGAGE means a Mortgage which secures a Loan in respect of
which the relevant Terms of Loan:
(a) permits the Borrower to request a reborrowing of amounts
previously prepaid in respect of that Loan as unscheduled
principal payments; and
(b) either:
(i) grants to the Issuer a discretion as to the
acceptance or rejection of that request; or
(ii) grants to the Issuer a discretion to reject that
request if the Assets of the Fund are not sufficient
to enable the request to be accepted.
REDRAW REQUEST means a request by a Borrower for a Redraw Advance which
is made under and in accordance with a Redraw Mortgage and the related
Terms of Loan.
REFERENCE BANK has the meaning given to that term in the definition of
LIBOR or EURIBOR (as the case may be) in this Condition 1.2.
REFERENCE RATE means:
(a) in relation to each US$ Bond, LIBOR;
(a) in relation to each EURO Bond, EURIBOR; and
(b) in relation to each Fast Prepayment Bond, BBSW.
REQUIRED CASH RESERVE means:
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(a) at all times while the A$ Equivalent of the aggregate Face
Value of all Offshore Bonds is greater than or equal to [25]%
of the aggregate Issue Proceeds of the Offshore Bonds, an
amount of [0.25]% of the aggregate Issue Proceeds of the
Offshore Bonds; and
(b) at any time thereafter, an amount equal to 1% of the A$
Equivalent of the aggregate Face Value of all Offshore Bonds
outstanding at that time,
or such other amount determined from time to time by the Trust Manager
and notified to the Issuer subject to each Designated Rating Agency
confirming that such amount will not cause the rating assigned by it to
Bonds to be downgraded below the Designated Rating, qualified or
withdrawn.
SENIOR BONDS means the Class A-1(a) Bonds, the Class A-1(b) Bonds and
the Fast Prepayment Bonds.
SPECIFIED PERCENTAGE means, in relation to a Currency Swap, the
percentage specified as such in the Confirmation for that Currency
Swap.
STATED VALUE means, in relation to a Bond, at any time:
(a) the Face Value of that Bond at that time; minus
(b) any Unreimbursed Charge-offs in respect of that Bond at that
time.
SURPLUS CASH RESERVE means, subject to Condition 6.7, on any Payment
Date the amount by which the Cash Reserve exceeds the Required Cash
Reserve on that Payment Date (after taking account of any payments to
be made on that date to the Cash Reserve under Condition 4.4(g) or from
the Cash Reserve under Condition 6.4).
SWAP MARGIN means:
(a) in relation to each Class A US$ Currency Swap:
(i) before the Margin Step-Up Date, [*]% per annum;
(ii) on or after the Margin Step-Up Date, [*]% per annum;
(b) in relation to each Class A EURO Currency Swap:
(i) before the Margin Step-Up Date, [*]% per annum;
(ii) on or after the Margin Step-Up Date, [*]% per annum;
(c) in relation to each Class B US$ Currency Swap:
(i) before the Margin Step-Up Date, [*]% per annum;
(ii) on or after the Margin Step-Up Date, [*]% per annum;
(d) in relation to each Class B EURO Currency Swap:
(i) before the Margin Step-Up Date, [*]% per annum;
(ii) on or after the Margin Step-Up Date, [*]% per annum.
SWAP RATE means, in relation to a Currency Swap and an Interest Accrual
Period, the rate (expressed as a percentage per annum) equal to BBSW
for that Interest Accrual Period plus the relevant Swap Margin.
TERMS OF LOAN means, in relation to a Loan secured by a Mortgage, the
Ancillary Documents for that Loan.
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UNITED STATES means the United States of America (including the States
thereof and the District of Columbia) and its possessions (including
Puerto Rico, the US Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands).
UNREIMBURSED ADVANCES RESERVE LIQUIDITY DRAWS means, at any time:
(a) the aggregate of all amounts previously applied under
Condition 7.5; minus
(b) the aggregate of all amounts previously credited to the
Advances Reserve under Condition 4.4(h).
UNREIMBURSED CASH RESERVE LIQUIDITY DRAWS means, at any time:
(a) the aggregate of all amounts previously applied under
Condition 6.4(a); minus
(b) the aggregate of all amounts previously credited to the Cash
Reserve Account under Condition 4.4(g).
UNREIMBURSED CHARGE-OFF means, in relation to a Bond and a Payment
Date, the aggregate amount of all Charge-offs in respect of that Bond
made prior to that Payment Date and which have not been reinstated
under Conditions 4.4(j) or (l) (as the case may be).
US$ CALCULATION AMOUNT means, in relation to a Class A US$ Currency
Swap or a Class B US$ Currency Swap and at any time, the amount (in US
Dollars) equal to the Specified Percentage of the aggregate Face Value
of the Class A-1(a) Bonds or Class B-1(a) Bonds (as the case may be) at
that time.
VALUATION means, in relation to Land the subject of a Mortgage:
(a) where a new valuation of that Land has been obtained since the
date the relevant Loan was settled, that valuation;
(b) where:
(i) a new valuation of that Land has not been obtained
since the date the relevant Loan was settled; and
(ii) the Face Value of the Loan was not used in whole or
part to purchase that Land,
the most recent valuation of that Land as at the date the Loan
was settled; or
(c) where:
(i) a new valuation of that Land has not been obtained
since the date the relevant Loan was settled; and
(ii) the Face Value of the Loan was used in whole or part
to purchase that Land,
the lower of:
(iii) the most recent valuation of that Land as at the date
the Loan was settled; and
(iv) the purchase price paid by the Borrower to purchase
that Land.
1.3 PAYMENT DATES
Each Payment Date is an Interest Payment Date and an Amortisation Date
for the purposes of the Master Trust Deed.
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2. THE BONDS
2.1 DESIGNATION OF BONDS
These Conditions relate to and govern the issue by the Issuer in
accordance with and pursuant to the Master Trust Deed, the Bond Trust
Deed, the Security Trust Deed and each Subscription Agreement of the
Bonds.
2.2 APPLICATION OF PROCEEDS OF ISSUE - CLASS A BONDS AND CLASS B BONDS
On the Initial Issue Date, the Trust Manager must direct the Issuer to,
and the Issuer must:
(a) apply the aggregate Subscription Amount received by it in
respect of the Class A-1(a) Bonds and the Class B-1(a) Bonds
in payment to the Class A US$ Currency Swap Counterparties and
the Class B US$ Currency Swap Counterparties of the Initial
Exchange Amounts payable under the Class A US$ Currency Swaps
and the Class B US$ Currency Swaps respectively;
(b) apply the aggregate Subscription Amount received by it in
respect of the Class A-1(b) Bonds and the Class B-1(b) Bonds
in payment to the Class A EURO Currency Swap Counterparties
and the Class B EURO Currency Swap Counterparties of the
Initial Exchange Amounts payable under the Class A EURO
Currency Swaps and the Class B EURO Currency Swaps
respectively; and
(c) hold and apply the aggregate Initial Exchange Amounts received
by it under the Class A Currency Swaps and the Class B
Currency Swaps (being the A$ Equivalent of the Issue Proceeds
of the Class A Bonds and the Class B Bonds) in accordance with
clause 6.8 of the Master Trust Deed.
3. FAST PREPAYMENT BONDS
3.1 ISSUE NOTICE
Subject to Condition 3.4, the Trust Manager may, at any time if it
considers that the Advances Reserve is insufficient to enable the
Issuer to accept such Advances Requests as the Trust Manager directs
that it should accept, give an Issue Notice to the Issuer in accordance
with the Master Trust Deed and the following provisions of this
Condition 3, requiring the Issuer to issue Bonds designated FAST
PREPAYMENT BONDS.
3.2 TERMS OF FAST PREPAYMENT BONDS
Fast Prepayment Bonds:
(a) shall be issued on and subject to the terms and conditions set
out in the Master Trust Deed, the Bond Trust Deed, the
Security Trust Deed and the relevant Subscription Agreement;
and
(b) shall bear interest calculated and payable in accordance with
Condition 4.2.
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3.3 INVESTMENT OF ISSUE PROCEEDS
Upon receipt of the Issue Proceeds of any Fast Prepayment Bonds, the
Trust Manager must direct the Issuer to, and the Issuer must credit to
the Advances Reserve the amount of those Issue Proceeds.
3.4 CONDITIONS TO FURTHER ISSUE
The Trust Manager must not give an Issue Notice under Condition 3.1:
(a) if, upon:
(i) making the credit in accordance with Condition 3.3;
and
(ii) the Issuer subsequently accepting those Advances
Requests referred to in Condition 3.1,
the balance of the Advances Reserve would exceed the Maximum
Advances Reserve; or
(b) unless each Designated Rating Agency has confirmed that any
proposed Issue of Fast Prepayment Bonds will not cause the
credit rating assigned to any Bonds by that Designated Rating
Agency to be downgraded below the Designated Rating, qualified
or withdrawn.
3.5 CERTAIN PROVISIONS OF MASTER TRUST DEED NOT TO APPLY
(a) Clauses 6.1(d)(vii), 6.1(e)(i) and clause 6.1(f)(ii) of the
Master Trust Deed shall not apply to an Issue Notice given in
accordance with Condition 3.1.
(b) Each such Issue Notice must contain a certification by the
Trust Manager to the Issuer that the issue of the Bonds
specified therein is consistent with all offering circulars,
information memoranda, notices and reports previously given to
Bondholders and will not cause any statement made in any such
document or statement to be misleading or deceptive or likely
to mislead or deceive.
(c) Upon receipt by the Issuer of an Issue Notice given in
accordance with Condition 3.1, clause 6.7(c)(iii) and clause
6.8 of the Master Trust Deed shall not apply.
(d) Clauses 6.9, 6.12 and 6.13 of the Master Trust Deed shall not
apply to an Issue of Fast Prepayment Bonds.
3.6 PRIOR APPROVAL OF BONDHOLDERS TO ISSUE OF FAST PREPAYMENT BONDS
Each Bondholder, by subscribing for or purchasing each Bond held by it,
approves of, and consents to, the issue by the Issuer at any time and
from time to time of Fast Prepayment Bonds, provided that each such
issue complies with and is made in accordance with this Condition 3.
4. INTEREST ENTITLEMENTS
4.1 PERIOD DURING WHICH INTEREST ACCRUES
Each Bond bears interest calculated and payable in accordance with
these Conditions from (and including) the Issue Date to (but excluding)
the date on which its Face Value is reduced to zero in
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accordance with the Master Trust Deed, the Bond Trust Deed, the
Security Trust Deed and these Conditions.
4.2 CALCULATION OF INTEREST
Interest payable on each Bond in respect of each Interest Accrual
Period relating thereto is calculated:
(a) on a daily basis at the applicable Interest Rate;
(b) on the Face Value of that Bond on the commencement of the
Interest Accrual Period (after taking into account any
repayments of the Face Value of that Bond made on the day on
which that Interest Accrual Period commences); and
(c) on the basis of the actual number of days in that Interest
Accrual Period and:
(i) in relation to each Offshore Bond, a year of 360
days; and
(ii) in relation to each Fast Prepayment Bond, a year of
365 days.
4.3 PAYMENT OF INTEREST
Subject to these Conditions, the Master Trust Deed, the Bond Trust Deed
and the Security Trust Deed, the Issuer must, at the direction of the
Trust Manager, on each Payment Date pay or cause to be paid to each
Bondholder the Interest Entitlement for the Interest Accrual Period
ending on that Payment Date.
4.4 APPLICATION OF INTEREST COLLECTIONS
Subject to these Conditions, on each Payment Date, the Trust Manager
must direct the Issuer to, and the Issuer must, apply or cause to be
applied, the Interest Collections for the relevant Calculation Period
as follows:
(a) (TAXES) first, in or towards payment or reimbursement of all
Taxes in respect of the Fund payable or paid during that
Calculation Period or which the Issuer on the advice of the
Trust Manager considers it necessary, on or before the date
which is three Business Days before the Payment Date relating
to that Calculation Period, to make provision for;
(b) (EXPENSES) second, in or towards payment or reimbursement of
all Expenses of the Fund (except for the Manager's Fee but
including, for the avoidance of doubt, all costs, charges,
fees and expenses properly incurred by the Security Trustee in
exercising its rights or performing its obligations under the
Security Trust Deed) payable or paid during that Calculation
Period or which the Issuer on the advice of the Trust Manager
considers it necessary, on or before the date which is three
Business Days before the Payment Date relating to that
Calculation Period, to make provision for;
(c) (INTEREST RATE SWAP PAYMENTS) third, in or towards payment or
reimbursement of the aggregate Interest Rate Swap Payments for
that Calculation Period;
(d) (MANAGER'S FEE) fourth, in or towards payment of the Manager's
Fee (including any Manager's Fee remaining unpaid from
previous Payment Dates);
(e) (CLASS A CURRENCY SWAPS AND FAST PREPAYMENT BONDS) fifth, in
or towards payment or satisfaction, pari passu and rateably:
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(i) to the Class A US$ Currency Swap Counterparties (pari
passu and rateably) of the Class A US$ Currency Swaps
Payment Amount for that Payment Date;
(ii) to the Class A EURO Currency Swap Counterparties
(pari passu and rateably) of the Class A EURO
Currency Swaps Payment Amount for that Payment Date;
and
(iii) of its obligations under Condition 4.3 with respect
to payment of Interest Entitlements on the Fast
Prepayment Bonds for the Interest Accrual Period
ending on that Payment Date, pari passu and rateably;
(f) (CLASS B CURRENCY SWAPS) sixth, in or towards payment or
satisfaction, pari passu and rateably:
(i) to the Class B US$ Currency Swap Counterparties (pari
passu and rateably) of the Class B US$ Currency Swaps
Payment Amount for that Payment Date; and
(ii) to the Class B EURO Currency Swap Counterparties
(pari passu and rateably) of the Class B EURO
Currency Swaps Payment Amount for that Payment Date;
(g) (CASH RESERVE LIQUIDITY DRAWS) seventh, in crediting to the
Cash Reserve Account an amount equal to the Unreimbursed Cash
Reserve Liquidity Draws at that time;
(h) (ADVANCES RESERVE LIQUIDITY DRAWS) eighth, in crediting to the
Advances Reserve an amount equal to the Unreimbursed Advances
Reserve Liquidity Draws at that time;
(i) (AVOIDING SENIOR BOND CHARGE-OFFS) ninth, in reducing, pari
passu and rateably, any Charge-offs that would otherwise occur
on that date in relation to the Senior Bonds (and any amount
so applied shall constitute part of the Available Amortisation
Amount);
(j) (REINSTATING SENIOR BOND UNREIMBURSED CHARGE-OFFS) tenth, in
reinstating, pari passu and rateably, the Stated Value of the
Senior Bonds to the extent of the Unreimbursed Charge-offs in
relation to the Senior Bonds (and any amount so applied shall
constitute part of the Available Amortisation Amount);
(k) (AVOIDING CLASS B BOND CHARGE-OFFS) eleventh, in reducing,
pari passu and rateably, any Charge-offs that would otherwise
occur on that date in relation to the Class B Bonds (and any
amount so applied shall constitute part of the Available
Amortisation Amount);
(l) (REINSTATING CLASS B BOND UNREIMBURSED CHARGE-OFFS) twelfth,
in reinstating, pari passu and rateably, the Stated Value of
the Class B Bonds to the extent of the Unreimbursed
Charge-offs in relation to the Class B Bonds (and any amount
so applied shall constitute part of the Available Amortisation
Amount);
(m) (INTEREST RATE SWAP BREAK COSTS) thirteenth, in or towards
payment to the Interest Rate Swap Counterparties, pari passu
and rateably, of all Interest Rate Swap Break Costs paid or
payable during that Calculation Period; and
(n) (BENEFICIARY) fourteenth, in payment of the balance (if any)
to the Residual Income Beneficiary of the Fund by way of a
distribution of the income of the Fund.
The obligation of the Issuer to make any payment or application under
each of the above paragraphs is limited in each case to the Interest
Collections or (as the case may be) to the balance of the Interest
Collections after application in accordance with the preceding
paragraph or paragraphs (if any), provided that nothing in this
Condition 4.4 limits the operation of Condition 11.1(a).
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4.5 APPLICATION OF CLASS A CURRENCY SWAP RECEIPTS AND THE CLASS B CURRENCY
SWAP RECEIPTS
(a) On each Payment Date, the Trust Manager must direct the Issuer
to, and the Issuer must, apply or cause to be applied:
(i) the Class A US$ Currency Swap Receipts in or towards
satisfaction (pari passu and rateably) of its
obligations under Condition 4.3 with respect to
payment of the Interest Entitlements on the Class
A-1(a) Bonds for the Interest Accrual Period ending
on that Payment Date;
(ii) the Class A EURO Currency Swap Receipts in or towards
satisfaction (pari passu and rateably) of its
obligations under Condition 4.3 with respect to
payment of the Interest Entitlements on the Class
A-1(b) Bonds for the Interest Accrual Period ending
on that Payment Date;
(iii) the Class B US$ Currency Swap Receipts in or towards
satisfaction (pari passu and rateably) of its
obligations under Condition 4.3 with respect to
payment of the Interest Entitlements on the Class
B-1(a) Bonds for the Interest Accrual Period ending
on that Payment Date; and
(iv) the Class B EURO Currency Swap Receipts in or towards
satisfaction (pari passu and rateably) of its
obligations under Condition 4.3 with respect to
payment of the Interest Entitlements on the Class
B-1(b) Bonds for the Interest Accrual Period ending
on that Payment Date.
(b) The obligation of the Issuer to make any payment or
application under paragraph (a) is limited to the Class A US$
Currency Swap Receipts, the Class A EURO Currency Swap
Receipts, the Class B US$ Currency Swap Receipts or the Class
B EURO Currency Swap Receipts (as the case may be), provided
that nothing in this Condition 4.5 limits the operation of
Condition 11.1(a).
(c) The Issuer may comply with its obligations under this
Condition by arranging for each Currency Swap Counterparty to
pay amounts payable by it under the relevant Currency Swap
direct to the Principal Paying Agent for payment to the
relevant Offshore Bondholders in accordance with the Paying
Agency Agreement.
4.6 CALCULATION AGENT
The Trust Manager must procure that until the Face Value of all
Offshore Bonds has been reduced to zero, there will at all times be a
Calculation Agent.
4.7 CALCULATION OF INTEREST
The Trust Manager must procure that, as soon as practicable after 11.00
am on each Determination Date, the Calculation Agent:
(a) determines the Interest Rate for all Offshore Bonds for the
Interest Accrual Period commencing on the next Payment Date;
and
(b) notifies the Issuer, the Trust Manager, the Bond Trustee, each
of the Offshore Bondholders (in accordance with Condition 15)
and each of the Paying Agents of the Interest Rate so
determined specifying to the Trust Manager the basis of such
determination.
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4.8 FAILURE BY CALCULATION AGENT TO MAKE DETERMINATION
If for any reason the Calculation Agent does not make the determination
contemplated by Condition 4.7, the Trust Manager must request the Bond
Trustee to make, and the Bond Trustee must make, that determination as
if it were the Calculation Agent. Any such determination will be deemed
to have been made by the Calculation Agent.
4.9 DETERMINATIONS BINDING
Any determination made by the Calculation Agent, the Bond Trustee, or
any Reference Bank in accordance with or as contemplated by these
Conditions will (in the absence of negligence, wilful default or bad
faith) be binding on the Issuer and the Bondholders and (in the absence
of negligence, wilful default or bad faith) the Calculation Agent and
the Bond Trustee will have no liability to the Issuer or Bondholders in
connection with the making of, or failure to make, any determination
under these Conditions.
4.10 CHARGE-OFFS
If on any Payment Date, the Aggregate Loss Amount for the corresponding
Calculation Period exceeds the aggregate of the amounts allocated or
available for allocation on that Payment Date under paragraphs (i) and
(k) of Condition 4.4, the Trust Manager must direct the Issuer to, and
the Issuer must, on and with effect from that Payment Date:
(a) reduce, pari passu and rateably, the Stated Value of the Class
B Bonds by the amount of that excess until the Stated Value of
each Class B Bond is reduced to zero; and
(b) if the Stated Value of all Class B Bonds is zero and any
amount of that excess has not been applied under paragraph
(a), reduce, pari passu and rateably, the Stated Value of the
Senior Bonds by the balance of that excess until the Stated
Value of each Senior Bond is zero.
5. REPAYMENT OF PRINCIPAL OF BONDS
5.1 CURRENCY EXCHANGE OF AVAILABLE AMORTISATION AMOUNT
On each Payment Date, the Trust Manager must direct the Issuer to, and
the Issuer must, apply or cause to be applied the Available
Amortisation Amount:
(a) first, in or towards repayment, of the Face Value of all Fast
Prepayment Bonds in respect of which the Fast Prepayment
Period has not expired, pari passu and rateably among each
tranche of those Fast Prepayment Bonds in order of issue;
(b) second, in or towards payment or repayment, pari passu and
rateably:
(i) to the Class A US$ Currency Swap Counterparties (pari
passu and rateably) of an amount equal to the Class A
A$/US$ Exchange Amount on that Payment Date;
(ii) to the Class A EURO Currency Swap Counterparties
(pari passu and rateably) of an amount equal to the
Class A A$/EURO Exchange Amount on that Payment Date;
and
(iii) of the Face Value of all Fast Prepayment Bonds in
respect of which the Fast Prepayment Period has
expired, pari passu and rateably; and
(c) third, in or towards repayment, pari passu and rateably:
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(i) to the Class B US$ Currency Swap Counterparties (pari
passu and rateably) of an amount equal to the Class B
A$/US$ Exchange Amount on that Payment Date; and
(ii) to the Class B EURO Currency Swap Counterparties
(pari passu and rateably) of an amount equal to Class
B A$/EURO Exchange Amount on that Payment Date.
The obligation of the Issuer to make any payment or application under
each of the above paragraphs is limited in each case to the Available
Amortisation Amount or (as the case may be) to the balance of the
Available Amortisation Amount after application in accordance with the
preceding paragraph or paragraphs (if any), provided that nothing in
this Condition 5.1 limits the operation of Condition 11.1(a).
5.2 PASS-THROUGH OF EXCHANGE AMOUNTS
(a) On each Payment Date, the Trust Manager must direct the Issuer
to, and the Issuer must, apply or cause to be applied:
(i) the Class A US$ Exchange Amount in or towards
repayment, pari passu and rateably, of the Face Value
of the Class A-1(a) Bonds;
(ii) the Class A EURO Exchange Amount in or towards
repayment, pari passu and rateably, of the Face Value
of the Class A-1(b) Bonds;
(iii) the Class B US$ Exchange Amount in or towards
repayment, pari passu and rateably, of the Face Value
of the Class B-1(a) Bonds; and
(iv) the Class B EURO Exchange Amount in or towards
repayment, pari passu and rateably of the Face Value
of the Class B-1(b) Bonds.
(b) The obligation of the Issuer to make any payment or
application under paragraph (a) is limited to the Class A US$
Exchange Amount, the Class A EURO Exchange Amount, the Class B
US$ Exchange Amount or the Class B EURO Exchange Amount, (as
the case may be) on that Payment Date, provided that nothing
in this Condition 5.2 limits the operation of Condition
11.1(a).
(c) The Issuer may comply with its obligations under this
Condition by arranging for each Currency Swap Counterparty to
pay amounts payable by it under the relevant Currency Swap
direct to the Principal Paying Agent for payment to the
relevant Offshore Bondholders in accordance with the Paying
Agency Agreement.
5.3 ROUNDING OF PAYMENTS
The Issuer must, if directed to do so by the Trust Manager, round any
amount payable in respect of a Bond under Condition 5.1 or 5.2
downwards to the nearest whole dollar.
5.4 MATURITY DATE
Subject to the Master Trust Deed, the Bond Trust Deed, the Security
Trust Deed and these Conditions, the Issuer must repay the Face Value
of each Bond in full on the Maturity Date.
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5.5 EFFECT OF PASS-THROUGH
Any repayment made in respect of a Bond reduces the Face Value of that
Bond to the extent of the amount repaid.
6. CASH RESERVE
6.1 CASH RESERVE ACCOUNT
On the Initial Issue Date, the Trust Manager must establish and at all
times until the Face Value of all Bonds is reduced to zero maintain a
ledger account in the accounting records maintained by it pursuant to
the Master Trust Deed designated ARMS II GLOBAL FUND 3 - CASH RESERVE
ACCOUNT.
6.2 INITIAL CASH RESERVE
On the Initial Issue Date, the Trust Manager must credit to the Cash
Reserve Account an amount not less than an amount equal to [0.25]% of
the aggregate of the A$ Equivalent of the Issue Proceeds of the Class A
Bonds and the Class B Bonds. This amount will represent part of the
Issue Proceeds equal to part of the difference between the aggregate
Issue Proceeds of the Class A Bonds and the Class B Bonds and the
aggregate Face Value of the Mortgages.
6.3 INVESTMENT OF CASH RESERVE
Amounts credited to the Cash Reserve Account must be invested in
Authorised Investments:
(a) which are rated at least "A-1+" by S&P and at least "P-1" by
Moody's or such other rating determined from time to time by
the Trust Manager (subject to each Designated Rating Agency
confirming that such other rating will not cause the rating
assigned by it to Bonds to be downgraded below the Designated
Rating, qualified or withdrawn);
(b) which mature not later than the Payment Date immediately after
the date on which they are made; and
(c) which are otherwise made in accordance with the Master Trust
Deed.
6.4 USE OF CASH RESERVE
(a) If on any Payment Date, the Net Interest Collections for the
relevant Calculation Period are less than the aggregate of the
Class A US$ Currency Swaps Payment Amount, the Class A EURO
Currency Swaps Payment Amount, the Class B US$ Currency Swaps
Amount and the Class B EURO Currency Swaps Payment Amount due
to be paid on that Payment Date and the Interest Entitlements
due to be paid on that Payment Date to Fast Prepayment
Bondholders, the Cash Reserve must, to the extent of funds
available, be applied in or towards payment of the deficiency
in the same order and manner as set out in Condition 4.4(e)
and (f), as if the Cash Reserve formed part of the Net
Interest Collections available for application on the relevant
Payment Date.
(b) On the Final Payment Date, the Trust Manager must debit the
balance of the Cash Reserve (after taking account of all
payments to be made on that date to the Cash Reserve under
Condition 4.4(g) or from the Cash Reserve under Condition
6.4(a)) and add that amount to the Available Amortisation
Amount.
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6.5 SURPLUS CASH RESERVE
(a) If on any Payment Date:
(i) there is Surplus Cash Reserve; and
(ii) the Required Cash Reserve is equal to or exceeds the
Bondholders' Cash Reserve,
the Issuer may (at the direction of the Trust Manager) on that
Payment Date apply the Surplus Cash Reserve (in whole or in
part):
(iii) first, in or towards payment, pari passu and
rateably, to the Cash Reserve Lenders of interest
payable in respect of Cash Reserve Top-Up Loans;
(iv) secondly, in or towards repayment, pari passu and
rateably, to the Cash Reserve Lenders of Cash Reserve
Top-Up Loans; and
(v) thirdly, in payment of the Manager's Fee payable on
that date.
(b) If on any Payment Date:
(i) there is Surplus Cash Reserve; and
(ii) the Required Cash Reserve is less than the
Bondholders' Cash Reserve (the amount of the
deficiency being referred to as the CORE SURPLUS),
then, on that Payment Date, the Issuer (at the direction of
the Trust Manager):
(iii) first, must apply the Surplus Cash Reserve as part of
the Available Amortisation Amount in the same order
and manner as set out in Condition 5.1 up to an
amount equal to the Core Surplus;
(iv) second, must apply the balance of the Surplus Cash
Reserve (if any) in or towards payment, pari passu
and rateably, to the Cash Reserve Lenders of amounts
outstanding under or in respect of Cash Reserve
Top-Up Loans; and
(v) third, must apply the balance of the Surplus Cash
Reserve (if any) in making a payment to the Residual
Income Beneficiary in accordance with Condition
4.4(n).
(c) The obligation of the Issuer to make any payment or
application under any sub-paragraph of each of paragraphs (a)
and (b) is limited in each case to the Surplus Cash Reserve or
(as the case may be) the balance of the Surplus Cash Reserve
after application in accordance with the preceding
sub-paragraph or sub-paragraphs (if any).
6.6 CASH RESERVE TOP-UP LOANS
The Trust Manager must not direct the Issuer to borrow and the Issuer
must not borrow any loan the proceeds of which are credited to the Cash
Reserve Account unless that loan is on terms that:
(a) the rights of the lender to receive or demand payment are
limited to receiving payments of amounts and at the times as
expressly contemplated by and provided for in Condition 6.5;
(b) with respect to payment of any such amount, the lender may
not, except for the purposes of enforcing its rights referred
to in paragraph (a):
(i) sue the Issuer;
(ii) obtain judgment against the Issuer;
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(iii) apply for or seek to wind up the Fund; or
(iv) levy execution against any Asset of the Fund.
6.7 INCOME FROM CASH RESERVE
After the date on which the aggregate of the A$ Equivalent of the Face
Value of the Class A Bonds and the Face Value of the Class B Bonds is
reduced to an amount equal to or less than 10% of the original
aggregate of the A$ Equivalent of the Face Value of the Class A Bonds
and the Face Value of the Class B Bonds, all income derived from
Authorised Investments standing to the credit of the Cash Reserve
Account shall not be included in Interest Collections but shall be
credited to and form part of the Cash Reserve. All amounts so credited
shall be disregarded for the purpose of calculating the Surplus Cash
Reserve.
7. ADVANCES RESERVE
7.1 ADVANCES RESERVE
In addition to the obligations under Condition 3.3, on the Initial
Issue Date, the Trust Manager must:
(a) establish and maintain at all times, a ledger account in the
accounting records maintained by it pursuant to the Master
Trust Deed designated ARMS II GLOBAL FUND 3 - ADVANCES
RESERVE; and
(b) credit to the Advances Reserve an amount equal to the
aggregate Issue Proceeds of the Class A Bonds and the Class B
Bonds minus the aggregate of:
(i) the aggregate Face Value of the Mortgages comprised
in the Portfolio specified on the Issue Notice for
the Class A Bonds and the Class B Bonds; and
(ii) the amount credited to the initial Cash Reserve in
accordance with Condition 6.2.
7.2 AMOUNT OF ADVANCES RESERVE
The Trust Manager may, if it considers it appropriate to do so on any
Payment Date:
(a) deduct from the Available Amortisation Amount and credit to
the Advances Reserve such amount as the Trust Manager
determines up to but not exceeding the amount by which the
Maximum Advances Reserve exceeds the balance of the Advances
Reserve; or
(b) debit from the Advances Reserve and add to the Available
Amortisation Amount such amount as the Trust Manager
determines.
The Trust Manager must exercise its discretion under this Condition 7.2
in good faith, having regard to the actual and anticipated volume of
Advances Requests, and the manner in which the Trust Manager proposes
to direct the Issuer with respect to Advances Requests. Without
limiting any other provision of these Conditions, the Master Trust
Deed, the Bond Trust Deed and the Security Trust Deed, the Issuer shall
be entitled to accept and rely conclusively on the exercise by the
Trust Manager of its discretion under this Condition 7.2.
7.3 FINAL PAYMENT DATE
On the Final Payment Date, the Trust Manager must debit the balance of
the Advances Reserve (after taking account of all payments to be made
to the Advances Reserve under Condition 4.4(h) or
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from the Advances Reserve under Condition 7.5) and add that balance to
the Available Amortisation Amount.
7.4 APPLICATION OF ADVANCES RESERVE
Amounts standing to the credit of the Advances Reserve may only be
applied, subject to Condition 7.5:
(a) in making Redraw Advances;
(b) in making Line of Credit Advances;
(c) in making Permitted Further Advances; or
(d) in adding to the Available Amortisation Amount in accordance
with Condition 7.2(b) or Condition 7.3, for distribution in
accordance with Condition 5.1.
7.5 USE OF ADVANCES RESERVE
If on any Payment Date, the aggregate of the Net Interest Collections
for the relevant Calculation Period plus the amount available to be
applied under Condition 6.4(a) are less than the aggregate of the Class
A US$ Currency Swaps Payment Amount, the Class A EURO Currency Swaps
Payment Amount, the Class B US$ Currency Swaps Payment Amount and the
Class B EURO Currency Swaps Payment Amount due to be paid on that
Payment Date and the Interest Entitlements due to be paid on that
Payment Date to Fast Prepayment Bondholders, the Advances Reserve must,
to the extent of funds available, be applied in or towards payment of
the deficiency in the same order and manner as set out in Condition
4.4(e) and (f), as if the Advances Reserve formed part of the Net
Interest Collections available for application on the relevant Payment
Date.
8. ISSUER'S CALL OPTION
8.1 ISSUER CALL OPTION EVENTS
Each of the following is an Issuer Call Option Event:
(a) [10] October 2009;
(b) the aggregate of the A$ Equivalent of the Face Value of the
Class A Bonds and the Face Value of the Class B Bonds is
reduced to an amount which is less than 10% of the original
aggregate of the A$ Equivalent of the Face Value of the Class
A Bonds and the Face Value of the Class B Bonds;
(c) the Trust Manager has delivered to the Bond Trustee an Opinion
of Counsel that either:
(i) on the next Payment Date the Issuer will be required
to deduct or withhold from any payment of principal
or interest in respect of any Bonds any amount for or
on account of any present or future Taxes imposed,
levied, collected, withheld or assessed by any
Government Body of any Australian Jurisdiction; or
(ii) the total amount payable in respect of interest in
relation to the Loans secured by the Mortgages
comprised in the Assets of the Fund ceases to be
receivable by reason of any deduction or withholding
for or on account of any present or future
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Taxes imposed, levied, collected, withheld or
assessed by any Government Body of any Australian
Jurisdiction; or
(d) any Currency Swap is terminated and is not replaced by a
Currency Swap on terms such that the credit rating of the
Bonds by any Designated Rating Agency is downgraded to lower
than the Designated Rating, qualified or withdrawn.
8.2 EXERCISE OF CALL OPTION
At any time on or after the occurrence of an Issuer Call Option Event,
the Issuer must, subject to Condition 8.3, if directed to do so by the
Trust Manager, redeem all (but not some only) of the Bonds in full on
the Payment Date specified in the direction.
8.3 NOTICE OF EXERCISE
The Trust Manager may only give a direction under Condition 8.2 if:
(a) it does so not less than 15 Business Days nor more than 30
Business Days before the Call Option Redemption Date;
(b) it takes such action as may be required to ensure that the
Issuer has available to it on the Call Option Redemption Date
sufficient funds to enable it to redeem the Face Value of all
Bonds and pay all accrued Interest Entitlements and other
amounts payable in respect of the Bonds in full;
(c) it is satisfied that having regard to the terms upon which any
such funds are made available to the Issuer and all other
relevant matters, the Issuer will (subject to clause 25.9 of
the Master Trust Deed) be able to meet its obligations to all
of its Creditors in full; and
(d) it gives or procures the giving of notice to Bondholders of
the redemption not less than 15 Business Days nor more than 30
Business Days before the Call Option Redemption Date.
The Trust Manager must provide to the Issuer confirmation of the
matters referred to in Conditions 8.3(b) and (c) on which the Issuer
may conclusively rely.
9. MASTER SERVICER'S AND TRUST MANAGER'S OBLIGATIONS
9.1 THRESHOLD RATE
In exercising its powers and performing its obligations under the
Master Trust Deed and the Master Origination and Servicing Agreement,
the Master Servicer must at all times ensure that, to the extent that
the Issuer is entitled to do so under the terms of the Mortgages, the
rate of interest payable on or in respect of Loans secured by Mortgages
comprised in the Assets of the Fund is changed from time to time so
that that rate of interest is not less than 0.25% higher than the
minimum rate required to ensure that:
(a) on the assumption that all parties to all of the Transaction
Documents and all issuers of Authorised Investments from time
to time comprised in the Assets of the Fund have complied and
will at all times comply in full with their respective
obligations under those Transaction Documents and Authorised
Investments; and
(b) having regard to:
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(i) the terms of the Transaction Documents;
(ii) the terms of the Mortgages comprised in the Assets of
the Fund;
(iii) the anticipated Expenses of the Fund;
(iv) the amount of the Cash Reserve (including any Cash
Reserve Top-Up Loans borrowed by the Issuer);
(v) all other information available to the Master
Servicer;
(vi) the Reference Rate relating to the Bonds from time to
time;
(vii) any mismatch between the time at which the Reference
Rate relating to the Bonds is determined and the time
at which the rate of interest payable on or in
respect of Mortgages comprised in the Assets of the
Fund may be reset;
(viii) the amounts payable by the Issuer under the Currency
Swaps; and
(ix) the income earned on all Authorised Investments,
the Issuer will have available to it at all times sufficient funds to
enable it to comply with all of its obligations under the Transaction
Documents relating to the Fund as they fall due.
9.2 INTEREST RATE RISK MANAGEMENT
The Trust Manager undertakes to the Issuer to exercise its rights and
powers under the Master Trust Deed and each Interest Rate Swap in such
a way so as to ensure that, except to the extent that each Designated
Rating Agency has confirmed in writing that any failure to so exercise
those rights and powers will not result in any credit rating assigned
by it to any of the Bonds to be downgraded, qualified or withdrawn:
(a) any mismatch between:
(i) the basis of calculating interest payable (and the
principal amount by reference to which such interest
is payable) in respect of any Loan comprised in the
Assets of the Fund; and
(ii) the basis of calculating interest or other amounts
payable to the Fast Prepayment Bondholders or any
Currency Swap Counterparty (and the principal amount
or other sum by reference to which such interest or
other amount is payable),
is fully hedged;
(b) the aggregate of the Notional Amounts and Contract Amounts of
all Interest Rate Swaps entered into by the Issuer and in
force from time to time is not more than 20% of the aggregate
Face Value of all Mortgages comprised in the Assets of the
Fund (or such other percentage as the Designated Rating
Agencies may from time to time agree with the Trust Manager
and the Issuer);
(c) the aggregate Face Value of all Fixed Rate Mortgages having a
Fixed Rate Term of between 3.5 years and 5.5 years is not at
any time more than 10% of the aggregate Face Value of all
Mortgages comprised in the Assets of the Fund (or such other
term or percentage as the Designated Rating Agencies may from
time to time agree with the Trust Manager and notify to the
Issuer); and
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(d) to the extent that the Issuer is entitled to do so under the
terms of the relevant Fixed Rate Mortgage, the rate of
interest payable on or in respect of a Loan secured by that
Fixed Rate Mortgage is such that the average interest rates
payable on or in respect of all Fixed Rate Mortgages comprised
in the Assets of the Fund at any time is not less than 1.20%
higher than the average percentage rate per annum at which
payments payable by the Issuer under all Interest Rate Swaps
relating to all such Fixed Rate Mortgages are calculated or
such other rate as agreed from time to time between the Trust
Manager and each Designated Rating Agency.
9.3 TRANSFER OF MORTGAGE
If:
(a) a Mortgage is to become a Fixed Rate Mortgage; and
(b) on becoming a Fixed Rate Mortgage, the Trust Manager will be
unable to comply with its obligations under Conditions 9.2(b),
9.2(c) or 9.2(d); and
(c) each Designated Rating Agency does not give its prior written
confirmation as contemplated by Condition 9.2,
the Trust Manager must, subject to Condition 9.6, ensure that the
relevant Mortgage and all rights under all Ancillary Documents are sold
or transferred by the Issuer prior to that Mortgage becoming a Fixed
Rate Mortgage.
9.4 LOAN PORTABILITY
If:
(a) a Mortgage is discharged; but
(b) the Loan secured by that Mortgage is not repaid in full, and
another mortgage is executed in favour of the Issuer as
security for that Loan,
the Trust Manager must ensure that prior to or upon any such discharge,
that Mortgage and all rights under all relevant Ancillary Documents
are, subject to Condition 9.6, sold or transferred by the Issuer.
9.5 REDRAW ADVANCES, LINE OF CREDIT ADVANCES AND PERMITTED FURTHER ADVANCES
If the Trust Manager proposes that the Issuer should lend any
additional amount by way of Loan to a Borrower after the Initial Issue
Date:
(a) otherwise than by a Redraw Advance, a Line of Credit Advance
or a Permitted Further Advance; or
(b) by way of a Redraw Advance, a Line of Credit Advance or a
Permitted Further Advance; and
(i) the balance of the Advances Reserve is insufficient
to make that Loan; and
(ii) the Trust Manager, having considered the terms on
which the Issuer is able to issue Fast Prepayment
Bonds, elects not to give the Issuer a notice in
accordance with Condition 3.1,
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the Trust Manager must ensure that prior to any such additional Loan
being made, the relevant Mortgage and all rights under all relevant
Ancillary Documents are, subject to Condition 9.6, sold or transferred
by the Issuer.
9.6 CONSIDERATION
Any sale or transfer of a Mortgage and the rights under the relevant
Ancillary Documents pursuant to Condition 9.3, 9.4 or 9.5 must, without
limiting Condition 9.7, be made in consideration of payment to the
Issuer of the Face Value of that Mortgage.
9.7 SUBSEQUENT ADJUSTMENT
(a) (ACCRUED INTEREST): The terms of a sale or transfer pursuant
to Condition 9.3, 9.4 or 9.5 must provide that, following such
sale or transfer, the Issuer shall be entitled to any interest
proceeds received by the transferee that represents interest
accrued on the relevant Loan up to (but not including) the
date of such sale or transfer.
(b) (OTHER COSTS): Subject to paragraph (c) below, the Trust
Manager may in its absolute discretion direct PCL in writing
on or at any time after a sale or transfer from the Issuer to
PCL, in its capacity as trustee of a Fund (as defined in the
Master Trust Deed) other than the Fund (the ACQUIRING FUND) to
transfer funds between the corresponding Fund or Acquiring
Fund with such other amounts as the Trust Manager considers
appropriate, so that:
(i) the Fund has the benefit of any receipts, and bears
the cost of any losses or outgoings, in respect of
each relevant Mortgage and the rights under the
Ancillary Documents up to (but not including) the
date of the sale or transfer of that Mortgage; and
(ii) the Acquiring Fund has the benefit of such receipts,
and bears such costs, from (and including) the date
of the sale or transfer of that Mortgage.
(c) (TRUST MANAGER TO CERTIFY ADJUSTMENTS): A written direction by
the Trust Manager pursuant to this Condition 9.7 must certify
that the relevant amount is, in the opinion of the Trust
Manager, to be properly debited or credited to the Fund or the
Acquiring Fund (as the case may be).
(d) (PCL TO ACT IN ACCORDANCE WITH DIRECTION): PCL must act in
accordance with, and may rely upon, a written direction of the
Trust Manager and any certificate given in accordance with
this Condition 9.7.
10. PAYMENTS
10.1 PAYMENT GENERALLY
The Issuer must make or cause to be made all payments in respect of
each Bond to the Bondholder on the due date for payment in accordance
with this Condition 10. Payments in respect of each US$ Bond are to be
made in US Dollars. Payments in respect of each EURO Bond are to be
made in Euros. Payments in respect of each Fast Prepayment Bond are to
be made in Australian Dollars.
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10.2 NO DEDUCTION FOR TAXES AND NO SET-OFF OR COUNTERCLAIM
All payments by the Issuer under or in respect of any Bond, whether of
principal, interest or other amounts must be made:
(a) free of any set-off or counterclaim; and
(b) without deduction or withholding for any present or future
Taxes, unless the Issuer is compelled by law to deduct or
withhold the same.
10.3 PAYMENT NET OF TAXES
If the Issuer is legally obliged to make any deduction or withholding
for or on account of Taxes from any amount payable by it under or in
respect of any Bond, the Issuer must:
(a) pay to the appropriate Government Body any amount deducted or
withheld in respect of Taxes within the time permitted for
payment; and
(b) within 30 days after a request by the relevant Bondholder,
provide to that Bondholder evidence satisfactory to it of that
payment having been made.
The Issuer has no obligation to make any additional payment to the
Bondholders or any other person in respect of any such deduction or
withholding.
10.4 PRESCRIPTION
Claims against the Issuer for payment under the Bonds are void unless
made within 10 years (in the case of principal) or 5 years (in the case
of interest and other amounts) of the due date for payment.
10.5 PAYMENTS ON BUSINESS DAYS
If the due date for payment of any amount, or the doing of any thing,
in respect of any Bond is not a Business Day, then the Modified
Following Business Day Convention (as defined in the ISDA Definitions)
shall apply to the making of that payment or the doing of that thing.
10.6 UNPAID AMOUNTS
If any amount is not paid in respect of any Bond on the date when due
and payable, that amount shall itself bear interest at the Interest
Rate applicable from time to time to that Bond until the amount, and
interest on it, is available for payment and notice of that
availability has been duly given in accordance with Condition 15.
Interest which has accrued under this Condition 10.6 will not itself
accrue interest pursuant to this Condition.
10.7 PAYING AGENTS
The Issuer may at any time and in accordance with the relevant Paying
Agency Agreement vary or terminate the appointment of the Principal
Paying Agent and appoint additional or other Paying Agents, provided
that it will at all times maintain a Paying Agent having a specified
office in New York City. Notice of any such termination or appointment
and of any change in the office through which any Paying Agent will act
must be given in accordance with Condition 15.
10.8 PAYMENTS TO BONDHOLDERS
Any moneys payable to a Bondholder must be paid by:
(a) a "not negotiable" cheque:
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(i) in the case of a payment to a US$ Bondholder, drawn
on a bank in New York City;
(ii) in the case of a payment to a EURO Bondholder, drawn
on a bank in [New York City]; and
(iii) in the case of a payment to a Fast Prepayment
Bondholder, drawn on a bank in Australia,
in favour of the relevant Bondholder despatched by post to the
address of that Bondholder as it appears on the relevant
Register on the relevant Record Date; or
(b) by direct transfer to a bank account:
(i) in the case of a US$ Bondholder, with a bank in New
York City;
(ii) in the case of a EURO Bondholder, with a bank in [New
York City]; and
(iii) in the case of a Fast Prepayment Bondholder, with a
bank in Australia,
designated by the relevant Bondholder as it appears on the
relevant Register on the relevant Record Date.
10.9 REPLACEMENT OF OFFSHORE BONDS
If any Offshore Bond is lost, stolen, mutilated, defaced or destroyed,
it may be replaced at the specified office of any Paying Agent upon
payment by the claimant of the costs incurred in connection with that
replacement and on such terms as to evidence and indemnity as the
Paying Agent may reasonably require. Mutilated or defaced Offshore
Bonds must be surrendered before replacements will be issued.
10.10 FINAL REDEMPTION OF BONDS
Each Bond will be finally redeemed, and the obligations of the Issuer
with respect to the payment of the Face Value of that Bond will be
finally discharged, upon the first to occur of:
(a) the date on which the Face Value of that Bond is reduced to
zero;
(b) the date on which the relevant Bondholder renounces in writing
all of its rights to any amounts payable under or in respect
of that Bond;
(c) the date on which all amounts received by the Security Trustee
with respect to the enforcement of the Security Trust Deed are
paid to that Bondholder; and
(d) the Payment Date immediately following the date on which the
Issuer completes a sale and realisation of all of the assets
of the Fund in accordance with the Master Trust Deed.
11. EVENTS OF DEFAULT
11.1 EVENTS OF DEFAULT
Each of the following events constitutes an Event of Default:
(a) the Issuer fails to pay all or any part of the Secured Moneys
(other than the Interest Rate Swap Counterparties' Secured
Moneys owing in respect of Interest Rate Swap Break Costs, the
Currency Swap Counterparties' Secured Moneys and, for so long
as any Bondholders' Secured Moneys are owing to the Class A
Bondholders, any Bondholders' Secured Moneys
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owing to the Class B Bondholders) within 5 Business Days from
the date such Secured Moneys fall due for payment;
(b) the Issuer fails to comply with any of its obligations (other
than an obligation referred to in paragraph (a)) under the
Bond Trust Deed or the Security Trust Deed where such failure
will have a Material Adverse Effect and such default, if
capable of remedy is not remedied within 15 Business Days
after written notice (or such longer period as may be
specified in the notice) from the Security Trustee requiring
the same to be remedied;
(c) any representation or warranty made by the Issuer in the Bond
Trust Deed or the Security Trust Deed is untrue or incorrect
in any material respect when made or deemed to be repeated;
(d) an Event of Insolvency:
(i) occurs in relation to PCL (in its personal capacity)
and a new Issuer is not appointed in accordance with
clause 17 of the Master Trust Deed within 30 days of
the occurrence of that event; or
(ii) occurs in relation to the Fund;
(e) any of the Secured Documents (other than a Mortgage or an
Ancillary Document):
(i) is or becomes illegal, invalid or unenforceable in
whole or in any material respect which would have a
Material Adverse Effect;
(ii) is terminated, and in the case of the Master
Origination and Servicing Agreement, an Interest Rate
Swap or a Currency Swap is not replaced immediately
(or within such other period as the Trust Manager and
the Security Trustee may approve, such approval only
to be given if each Designated Rating Agency has
confirmed that the giving of such approval will not
result in the rating assigned to the Bonds being
downgraded below the Designated Rating, qualified or
withdrawn) by an agreement or arrangement on terms
and with a party such that each Designated Rating
Agency confirms that such replacement agreement or
arrangement will not result in the rating assigned to
the Bonds being downgraded below the Designated
Rating, qualified or withdrawn; and
(f) the Charge is not or ceases to be a first ranking charge,
ranking over the Charged Property to the extent of the Secured
Moneys, in priority to all other claims against the Issuer or
the Charged Property.
11.2 CONSEQUENCES OF DEFAULT
At any time after the occurrence of an Event of Default, the Security
Trustee may, upon and subject to the terms of the Security Trust Deed
(but without limiting any of those terms), do any one or more of the
following:
(a) declare the Charge to be enforceable;
(b) declare the Secured Moneys to be immediately due and payable
on demand, whereupon the same shall become so due and payable;
and
(c) exercise all or any of its Powers which are or are expressed
to arise upon the Charge becoming enforceable.
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12. LIMITATION ON ENFORCEMENT OF BONDS
Unless the Security Trustee having become bound to perform its
obligations under the Security Trust Deed fails to do so within 7
Business Days of being obliged to do so and such failure is continuing,
the rights of the Bond Trustee and/or each Bondholder to enforce the
obligations of the Issuer with respect to payment of amounts due under
or in respect of any Bonds are limited to the exercise of its rights to
enforce and seek due administration of the Security Trust Deed. In
particular, unless the Security Trustee having become bound to perform
its obligations under the Security Trust Deed fails to do so within 7
Business Days of being obliged to do so and such failure is continuing,
neither the Bond Trustee nor any Bondholder may, with respect to
payment of any such amount:
(a) sue the Issuer;
(b) obtain judgment against the Issuer;
(c) apply for or seek to wind up the Fund; or
(d) levy execution against any Asset of the Fund.
13. MANAGER'S FEE
13.1 CALCULATION OF FEE
The Trust Manager shall, subject to Condition 13.2, be entitled to be
paid on each Payment Date, in respect of the performance of its duties
as Trust Manager in relation to the Fund, the Manager's Fee in respect
of the Interest Accrual Period then ended. The Manager's Fee payable on
each Payment Date in respect of the Interest Accrual Period then ended
accrues on a daily basis on the actual number of days in that Interest
Accrual Period.
13.2 PAYMENT OF FEE
The Trust Manager's entitlement to be paid the Manager's Fee in respect
of an Interest Accrual Period on the Payment Date for that Interest
Accrual Period is limited to the amount it is entitled to receive on
that Payment Date in accordance with Conditions 4.4(d) and 6.5(a)(v).
However, nothing in this Condition 13.2 shall be construed as limiting
the entitlement of the Trust Manager to any unpaid Manager's Fee
payable in accordance with Condition 4.4 in respect of prior Payment
Dates.
13.3 TRUST MANAGER'S OBLIGATIONS
Without limiting the Trustee's Indemnity in relation to the Assets of
the Fund, the Trust Manager must, subject to Condition 13.4 pay and be
responsible for all Expenses of the Fund (other than the Manager's Fee
but including, for the avoidance of doubt, all costs, charges, fees and
expenses properly incurred by each of the Bond Trustee and the Security
Trustee in exercising its rights or performing its obligations under
the Bond Trust Deed and the Security Trust Deed) and must indemnify the
Issuer on demand for all Expenses of the Fund (other than the Manager's
Fee) incurred or paid by the Issuer.
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13.4 TRUST MANAGER'S AGGREGATE LIABILITY
The Trust Manager's aggregate liability under Condition 13.3 at any
time is limited to the aggregate of the Manager's Fee paid to the Trust
Manager or to which the Trust Manager is entitled as at that time.
14. RATING REQUIREMENTS
14.1 DESIGNATED RATINGS
The Designated Ratings for the Bonds are as follows:
[Download Table]
CLASS OF BOND DESIGNATED RATING
Class A-1(a) Bonds "AAA" (S&P) "Aaa" (Moody's)
Class A-1(b) Bonds "AAA" (S&P) "Aaa" (Moody's)
Class B-1(a) Bonds "AA" (S&P) and "Aa3" (Moody's)
Class B-1(b) Bonds "AA" (S&P) and "Aa3" (Moody's)
Fast Prepayment Bonds As specified in the Conditions relating thereto
14.2 DESIGNATED RATING AGENCY
As at the Initial Issue Date, the Designated Rating Agencies for all
Bonds as at the Initial Issue Date are S&P and Moody's.
14.3 MINIMUM RATING REQUIREMENTS
Subject to Condition 6.3, all Authorised Investments of the Fund other
than cash and Mortgages must be rated "A-1+" by S&P and "P-1" by
Moody's (or in any such case, such other credit rating as the relevant
Designated Rating Agency may from time to time agree) and must mature
such that the Issuer is able to meet its obligations under the
Transaction Documents as they fall due.
14.4 NO OTHER REQUIREMENTS
For the purposes of clause 6.3(h) of the Master Trust Deed, there are
no minimum rating requirements in relation to the Fund, other than
those expressly set out in these Conditions or the Master Trust Deed.
15. NOTICES
(a) Subject to paragraph (b), all notices to Offshore Bondholders,
including any notices specifying a Payment Date, an Interest
Rate, an Interest Entitlement, the amount of any payment of
principal (or the absence of any payment of principal) shall
be deemed to be duly given or made if sent by prepaid
registered post to the address of each relevant Offshore
Bondholder as it appears on the US$ Register or the EURO
Register (as the case may be). Any such notice will be deemed
to have been given or made on the date that it is sent.
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(b) If and for so long as the Offshore Bonds are listed on the
Irish Stock Exchange and the rules of the Irish Stock Exchange
so require, all notices to the Bondholders in respect of those
Offshore Bonds must be published in the Irish Stock Exchange
Daily Official List. Any such notice will be deemed to have
been given or made on the date that it is first so published.
(c) All notices to Fast Prepayment Bondholders shall be deemed to
be duly given or made by an advertisement placed on a Business
Day in the Australian Financial Review (or other newspaper
distributed nationally in Australia). Any such notice will be
deemed to have been given or made on the date on which the
relevant advertisement is first published.
(d) The Bondholders will be deemed for all purposes to have notice
of the contents of any notice given in accordance with this
Condition 15.
16. LIABILITY OF ISSUER
(a) The Issuer has no personal liability in relation to any of its
obligations under or arising out of these Conditions or any of
the Transaction Documents entered into in its capacity as
trustee of the Fund.
(b) In relation to each such obligation, the liability of the
Issuer is limited to and does not extend beyond the Assets of
the Fund as they stand at the time at which the obligation is
met or satisfied.
(c) The Issuer is not liable to meet or satisfy any such
obligation from its own assets (except the Trustee's
Indemnity) and each such obligation must be met or satisfied
from the Fund or the Trustee's Indemnity.
(d) The preceding paragraphs apply notwithstanding the fact that
the liabilities of the Issuer in its capacity as the trustee
of the Fund may from time to time and at any time almost
equal, equal or exceed the value of the Assets of the Fund at
the relevant time.
(e) The previous paragraphs of this Condition 16 do not apply to
the liability of the Issuer in relation to any obligation
which in any Transaction Document the Issuer expressly assumes
in its personal capacity.
(f) It is acknowledged by the Issuer that the Assets of the Fund
at any time will include the amount of any compensation found
by a Final Judgment (or admitted by the Issuer) to be payable
by the Issuer to restore the Fund because of a failure by the
Issuer to exercise in relation to the Fund the degree of care,
diligence and prudence required of a trustee or because of
some other neglect, default or breach of duty by the Issuer
having regard to the powers and duties conferred on the Issuer
by the Master Trust Deed, in either case occurring before the
time in question and causing loss to the Fund quantified
before the time in question.
(g) For the purposes of this Condition 16, FINAL JUDGMENT means a
judgment of a court of law in Australia against which there
can be no appeal or in relation to which the time to appeal
has expired.
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17. MEETINGS OF BONDHOLDERS
17.1 GENERAL
The Bond Trust Deed contains provisions for convening meetings of
Bondholders to consider any matter affecting their interests including,
by Extraordinary Resolution, to approve of a person to be appointed as
a successor Bond Trustee or Security Trustee and to remove the Bond
Trustee or the Security Trustee.
17.2 RESOLUTIONS BINDING
(a) Subject to the provisions of the Meetings Procedures and to
the Bond Trust Deed and the Security Trust Deed, any
resolution passed at a meeting of Bondholders duly convened
and held shall be binding upon all the Bondholders, whether or
not present, or entitled to be present, at such meeting and
whether or not voting, and each of the Issuer and the
Bondholders shall be bound to give effect to such resolution
accordingly and the passing of any such resolution shall be
conclusive evidence that the circumstances justify the passing
thereof.
(b) Subject to Condition 17.3, an Extraordinary Resolution passed
at any meeting of the Class A Bondholders shall be binding on
the Class B Bondholders irrespective of the effect upon them.
(c) An Extraordinary Resolution of the Bondholders of Class B
Bonds shall not be effective for any purpose while any Class A
Bonds remain outstanding unless either:
(i) the Bond Trustee is of the opinion that it would not
be materially prejudicial to the interests of the
Class A Bondholders; or
(ii) it is sanctioned by an Extraordinary Resolution of
the Class A Bondholders.
17.3 BASIC TERMS MODIFICATION
(a) No Extraordinary Resolution of the Class A Bondholders to
sanction any of the following matters (each a BASIC TERMS
MODIFICATION):
(i) modification of the date upon which all or any part
of the Bondholders' Secured Moneys are payable;
(ii) modification of any amount of the Bondholders'
Secured Moneys payable or of the method of
calculating any such amount;
(iii) alteration of the currency in which all or any part
of the Bondholders' Secured Moneys is payable; and
(iv) alteration of the majority required to pass an
EXTRAORDINARY RESOLUTION;
(v) the sanctioning of any scheme or proposal described
in paragraph 17(k) of Schedule 7;
(vi) the alteration of clause 10.2 of the Security Trust
Deed; and
(vii) the alteration of paragraph 5 or 6 of Schedule 7,
of any Class or Classes of Bonds shall be effective for any
purpose unless its becoming effective shall have been
sanctioned by an Extraordinary Resolution of the Fast
Prepayment
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Bondholders and by an Extraordinary Resolution of the Class B
Bondholders or the Security Trustee is of the opinion that its
becoming effective will not be materially prejudicial to the
interests of the Fast Prepayment Bondholders and the Class B
Bondholders.
(b) No Extraordinary Resolution of the Fast Prepayment Bondholders
to sanction a Basic Terms Modification of any Class or Classes
of Bonds shall be effective for any purpose unless its
becoming effective shall have been sanctioned by an
Extraordinary Resolution of the Class A Bondholders and by an
Extraordinary Resolution of the Class B Bondholders or the
Security Trustee is of the opinion that its becoming effective
will not be materially prejudicial to the interests of the
Class A Bondholders and the Class B Bondholders.
(c) No Extraordinary Resolution of the Class B Bondholders to
sanction a Basic Terms Modification of any Class or Classes of
Bonds shall be effective for any purpose unless its becoming
effective shall have been sanctioned by an Extraordinary
Resolution of Class A Bondholders and by an Extraordinary
Resolution of the Fast Prepayment Bondholders or the Security
Trustee is of the opinion that its becoming effective will not
be materially prejudicial to the interests of the Class A
Bondholders and the Fast Prepayment Bondholders.
18. LAW AND JURISDICTION
18.1 GOVERNING LAW
These Conditions shall be governed by and construed in accordance with
the laws of the State of New South Wales, Australia. The Bond Trust
Deed is governed by the laws of the State of New South Wales, Australia
and the administration of the trust constituted under the Bond Trust
Deed is governed by the laws of the State of New York, United States of
America.
18.2 JURISDICTION
Each Bondholder irrevocably:
(a) submits to and accepts, generally and unconditionally, the
non-exclusive jurisdiction of the courts and appellate courts
of the State of New South Wales with respect to any legal
action or proceedings which may be brought at any time
relating in any way to these Conditions; and
(b) waives any objection it may now or in the future have to the
venue of any such action or proceedings and any claim it may
now or in the future have that any such action or proceedings
have been brought in an inconvenient forum.
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SCHEDULE 4
FORM OF BOND APPLICATION
ARMS II GLOBAL FUND 3
TO: Permanent Custodians Limited [the ISSUER]
and
Australian Securitisation Management Pty Limited [the TRUST MANAGER]
FROM:
................................... ACN
[insert name]
of:
................................... (the APPLICANT)
[insert address]
The Applicant applies for the following bonds (the BONDS) to be issued by the
Issuer, as Trustee of ARMS II Global Fund 3 (the FUND) established pursuant to
the Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995 (as amended and
restated) made between the Issuer and Australian Mortgage Securities Ltd
relating to the ARMS II Funds.
BONDS APPLIED FOR
Name/Designation:
Maturity Date:
Number of Bonds:
[Series:]
Interest Payment Dates:
[Amortisation Dates:]
Aggregate Face Value applied for:
ACKNOWLEDGEMENT AND AGREEMENT OF APPLICANT
The Applicant acknowledges and agrees that:
1. the Bonds will be issued upon and subject to the terms of the Master
Trust Deed, the Conditions, the Bond Trust Deed dated [*] executed by
the Issuer in its capacity as trustee of the Fund, the Trust Manager,
Permanent Registry Limited as Security Trustee and The Bank of New York
as Bond Trustee and the Security Trust Deed dated [*] between the
Issuer in its capacity as trustee of the Fund, the Trust Manager, the
Security Trustee and the Bond Trustee;
2. the Issuer has no personal liability in relation to any of its
obligations under or arising out of the Bonds or any other Transaction
Document entered into in its capacity as trustee of the Fund;
3. the liability of the Issuer under or in respect of the Bonds and the
other Transaction Documents entered into in its capacity as trustee of
the Fund is limited to and does not extend beyond the
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Assets of the Fund as they stand at the time at which such obligations
are to be met or satisfied; and
4. the Issuer is not liable to meet or satisfy any such obligation from
its own assets (except the Trustee's Indemnity) and each such
obligation must be met or satisfied from the Fund or the Trustee's
Indemnity.
PAYMENTS
Payments due under the Bonds should be made:
/ / By cheque posted to the above address.
/ / To the credit of the following account:
Name of Bank:
Address of Bank:
Account No.:
Name of Account:
Applicant's tax file number:
INTERPRETATION
Words and expressions which are defined in the Bond Trust Deed have the same
meanings when used in this Bond Application.
SIGNED:
-------------------------------
DATED:
-------------------------------
- If the Applicant is a trustee, this Bond Application must be completed in
the name of the Applicant and signed by the Applicant without reference to
any trust.
- If the Applicant is a corporation, it must be executed either under the
Applicant's common seal or under Power of Attorney executed under its common
seal.
- If this Bond Application is signed under Power of Attorney, the Attorney
certifies that he or she has not received notice of revocation of that Power
of Attorney. A certified copy of the Power of Attorney must be lodged with
this Bond Application.
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SCHEDULE 5
FORM OF REGISTRATION CONFIRMATION
ARMS II GLOBAL FUND 3
NAME/DESIGNATION OF BONDS:
[Series]:
FACE VALUE (AS AT THE DATE HEREOF):
Interest Rate:
Interest Payment Dates:
[AMORTISATION DATES]:
Maturity Date:
This confirms that:
BONDHOLDER:
ACN (if applicable):
ADDRESS:
appears in the A$ Register as the holder of the abovementioned Bonds (the
BONDS).
The Bonds are issued by Permanent Custodians Limited, ACN 001 426 384 in its
capacity as trustee (the ISSUER) of the abovementioned Fund (the FUND)
established pursuant to a Master Trust Deed (the MASTER TRUST DEED) dated 7
March 1995 for the ARMS II Funds (as amended and restated and as applicable to
the Fund).
The Bonds are issued subject to the provisions of the Master Trust Deed, the
Conditions, the Bond Trust Deed dated [*] executed by the Issuer, Australian
Mortgage Securities Ltd, Australian Securitisation Management Pty Limited as the
Trust Manager, Permanent Registry Limited as the Security Trustee and The Bank
of New York as the Bond Trustee and the Security Trust Deed dated [*] between
the Issuer, the Trust Manager, the Security Trustee and the Bond Trustee. A copy
of the Master Trust Deed, the Conditions, the Security Trust Deed and the Bond
Trust Deed are available for inspection by Bondholders at the offices of the
Trust Manager at [ ].
The Issuer has no personal liability in relation to any of its obligations under
or arising out of the Bonds or any other Transaction Document entered into in
its capacity as trustee of the Fund.
The liability of the Issuer under or in respect of the Bonds and the other
Transaction Documents entered into in its capacity as trustee of the Fund is
limited to and does not extend beyond the Assets of the Fund as they stand at
the time at which such obligations are to be met or satisfied.
The Issuer is not liable to meet or satisfy any such obligation from its own
assets (except the Trustee's Indemnity) and each such obligation must be met or
satisfied from the Fund or the Trustee's Indemnity.
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This Registration Confirmation is not a certificate of title and the A$ Register
is the only conclusive evidence of the abovementioned Bondholder's entitlement
to Bonds.
Transfers of Bonds must be effected pursuant to a Transfer and Acceptance Form
in the form required by the Bond Trust Deed. Executed Transfer and Acceptance
Forms must be submitted to the A$ Registrar.
Words and expressions which are defined in the Bond Trust Deed or the Master
Trust Deed have the same meanings when used in this Registration Confirmation.
Dated:
For and on behalf of the A$ Registrar
-------------------------
Authorised Signatory
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Bond Trust Deed
SCHEDULE 6
FORM OF TRANSFER AND ACCEPTANCE
ARMS II GLOBAL FUND 3
To: Permanent Custodians Limited Registry Use Only Date Lodged
ACN 001 426 384 (the A$ REGISTRAR) / /
TRANSFEROR
(Full Name ACN (if applicable)
and Address)
(Please Print)
TRANSFERS TO
TRANSFEREE
(Full Name ACN (if applicable)
and Address)
(Please Print)
The following Bonds (the BONDS) issued by Permanent Custodians Limited, as
trustee (the ISSUER) of ARMS II Global Fund 3 (the FUND) constituted under the
Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995 made between the
Issuer and Australian Mortgage Securities Ltd (as amended and restated and as
applicable to the Fund):
Name/Designation:
Maturity Date:
Number of Bonds:
[Series]:
[Original Face Value as at Issue Date]:
Interest Payment Dates:
[Amortisation Dates]:
Settlement Amount
$
and all of the Transferor's right, title, benefit and interest in and to the
same (including all Interest Entitlements accrued thereon but unpaid).
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Bond Trust Deed
TRANSFEROR
(Signature: see Notes)
WITNESS Date / /
TRANSFEREE
(Signature: see Notes)
WITNESS Date / /
PAYMENTS
(Tick where appropriate)
/ / In accordance with existing instructions (existing Bondholders only)
/ / By cheque posted to the above address / / By credit to the following
account in Australia and the
name of the Transferee only
Tax File Number (if applicable):
Authorised Signature of Transferee Date / /
NOTES FOR COMPLETION
- If the Transferor/Transferee is a trustee, this Transfer and Acceptance
must be completed in the name of the Transferor/Transferee and signed
by it without reference to any trust.
- If the Transferor/Transferee is a corporation, this Transfer and
Acceptance must be executed either under common seal or under Power of
Attorney.
- If this Transfer and Acceptance is signed under Power of Attorney, the
Attorney certifies that he or she has not received notice of revocation
of that Power of Attorney. A certified copy of the Power of Attorney
must be lodged with this Transfer and Acceptance.
- This Transfer and Acceptance must be lodged with the A$ Registrar for
registration.
CONDITIONS OF TRANSFER
- The Transferor and the Transferee acknowledge that the transfer of the
Bonds shall only take effect on the inscription of the Transferee's
name in the A$ Register as the Bondholder of the Bonds.
- The Transferee accepts the Bonds upon and subject to the provisions of
the Master Trust Deed, the Conditions inscribed in the A$ Register, the
Security Trust Deed dated [*] executed by the Issuer, Australian
Securitisation Management Pty Limited as Trust Manager, Permanent
Registry Limited
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as Security Trustee and The Bank of New York as Bond Trustee and the
Bond Trust Deed dated [*] between the Issuer, the Trust Manager,
Australian Mortgage Securities Ltd, the Security Trustee and the Bond
Trustee.
- The Transferee acknowledges that it has made its own independent
assessment and investigations regarding its investment in the Bonds. It
has not relied upon the Issuer, Australian Mortgage Securities Ltd, or
any other person or any materials or other information prepared or
distributed by any of them.
- The A$ Register shall be closed by the A$ Registrar for the purpose of
determining the Interest Entitlements and entitlements to principal
payments of Bondholders during the period commencing from the close of
business on the day which is 5 Business Days (or such other period
agreed between the A$ Registrar and the Trust Manager) prior to, and
ending on the commencement of business on the Business Day immediately
after, each Payment Date of the relevant Bonds. The A$ Registrar may
with prior notice to the Bondholders close the A$ Register for such
other periods as the A$ Registrar may nominate in the notice, provided
that the aggregate period for which the A$ Register may be closed in
total (under this paragraph) in any calendar year must not exceed 30
Business Days or such other period as the A$ Registrar and the Trust
Manager may agree.
- If the Transferee is a non-resident for Australian taxation purposes,
withholding tax will be deducted from all interest payments unless
proof of an exemption is provided to the Issuer.
- [Insert any restrictions on the transfer of Bonds.]
- The Issuer has no personal liability in relation to any of its
obligations under or arising out of the Bonds or any other Transaction
Documents entered into in its capacity as trustee of the Fund.
- The liability of the Issuer under or in respect of the Bonds and the
other Transaction Documents entered into in its capacity as trustee of
the Fund is limited to and does not extend beyond the Assets of the
Fund as they stand at the time at which such obligations are to be met
or satisfied.
- The Issuer is not liable to meet or satisfy any such obligation from
its own assets (except the Trustee's Indemnity) and each such
obligation must be met or satisfied from the Fund or the Trustee's
Indemnity.
MARKING (IF APPLICABLE)
The A$ Registrar certifies that the Transferor is inscribed in the A$ Register
as the holder of the Bonds specified in this Transfer and Acceptance. The A$
Registrar will not register any transfer of such Bonds other than pursuant to
this Transfer and Acceptance before [insert date].
Dated:
For and on behalf of Permanent Custodians Limited
(as A$ Registrar)
-----------------------------------
Authorised Signatory
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SCHEDULE 7
MEETINGS PROCEDURES
1. DEFINITIONS AND INTERPRETATION
1.1 INCORPORATED DEFINITIONS AND INTERPRETATION
(a) Words and expressions which are defined in clause 1.1 of this
Deed have the same meanings when used in this Schedule unless
otherwise defined in it.
(b) These Meetings Procedures apply, mutatis mutandis, to a
meeting of any Class of Bondholders.
1.2 DEFINITIONS
In this Schedule:
BLOCK VOTING INSTRUCTION means an English language document issued by a
Paying Agent appointed in respect of the Offshore Bonds and dated in
which:
(a) it is certified that on the date thereof:
(i) Offshore Bonds (not being Offshore Bonds in respect
of which a Voting Certificate has been issued and is
outstanding in respect of the meeting specified in
such document and any adjourned such meeting) are
held (to the satisfaction of such Paying Agent) to
its order or under its control or blocked by a
depository holding the same in a manner approved by
the Bond Trustee; and
(ii) no such Offshore Bonds will cease to be so held or
blocked until the first to occur of:
A. the conclusion of the meeting specified in
such document or, if applicable, any
adjourned such meeting; and
B. the Offshore Bond or Offshore Bonds ceasing
with the agreement of the Paying Agent to be
held to its order or under its control or
blocked and the giving of notice by that
Paying Agent to the Issuer in accordance
with paragraph 15.1 of the necessary
amendment to the Block Voting Instruction;
(b) it is certified that each Bond Owner of such Offshore Bonds
has instructed such Paying Agent and/or that the relevant
Clearing Agency has advised that Paying Agent that each Bond
Owner of such Offshore Bonds has given instructions, that the
vote(s) attributable to the Offshore Bond(s) so held or
blocked should be cast in a particular way or not cast in
relation to each resolution to be put to such meeting or any
adjourned such meeting and appearing in the notice of such
meeting and that all such instructions are, during the
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period commencing 48 hours prior to the time for which such
meeting or any adjourned such meeting is convened and ending
at the conclusion or adjournment thereof, neither revocable
nor capable of amendment;
(c) the aggregate Face Value of the Offshore Bonds so held or
blocked is stated distinguishing, with regard to each such
resolution, between those in respect of which instructions
have been given, as referred to in paragraph (b), that the
votes attributable thereto should be cast in favour of the
resolution, those in respect of which instructions have been
so given that the votes attributable thereto should be cast
against the resolution and those in respect of which
instructions have been so given that the votes attributable
thereto should not be cast on such resolution; and
(d) one or more persons (which need not be a Bondholder) named in
such document as a Proxy is or are authorised and instructed
by such Paying Agent to cast and/or (as the case may be) to
refrain from casting the votes attributable to the Offshore
Bonds so listed in accordance with the instructions referred
to in paragraph (b) as set out in such document.
BOND means:
(a) in relation to a meeting of Class A Bondholders, a Class A
Bond;
(b) in relation to a meeting of Class B Bondholders, a Class B
Bond; and
(c) in relation to a meeting of Fast Prepayment Bondholders, a
Fast Prepayment Bond;
and references to ALL BONDS shall be construed as references to all
Bonds (as defined in clause 1.1 of this Deed) in the relevant Class.
BONDHOLDER means:
(a) in relation to a meeting of Class A Bondholders, a Class A
Bondholder;
(b) in relation to a meeting of Class B Bondholders, a Class B
Bondholder; and
(c) in relation to a meeting of Fast Prepayment Bondholders, a
Fast Prepayment Bondholder.
and references to ALL BONDHOLDERS shall be construed as references to
all Bondholders (as defined in clause 1.1 of this Deed) in the relevant
Class.
CHAIRMAN means the person appointed as chairman in accordance with
paragraph 4.
ENTITLED VOTER means:
(a) in relation to an Offshore Bond, a person holding a Voting
Certificate or a Proxy in relation to that Offshore Bond; and
(b) in relation to a Fast Prepayment Bond, the Bondholder of that
Bond, or a Proxy in relation to that Bond.
PROXY means:
(a) in relation to an Offshore Bond, each person named as a proxy
in relation to that Offshore Bond in a Block Voting
Instruction in the manner referred to in sub-paragraph (d) of
the definition of that expression contained in paragraph 1.2;
and
(b) in relation to any Bond, each person appointed as a proxy in
accordance with paragraph 15 in relation to that Bond.
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VOTING CERTIFICATE means an English language certificate issued by a
Paying Agent appointed in respect of the Offshore Bonds and dated in
which it is stated:
(a) that on the date thereof:
(i) Offshore Bonds (not being Offshore Bonds in respect
of which a Block Voting Instruction has been issued
and is outstanding in respect of the meeting
specified in such certificate and any adjourned such
meeting) were (to the satisfaction of such Paying
Agent) held to its order or under its control or
blocked by a depository holding the same in a manner
approved by the Bond Trustee; and
(ii) no such Offshore Bonds will cease to be so held or
blocked until the first to occur of:
A. the conclusion of the meeting specified in
such certificate or, if applicable, any
adjourned such meeting; and
B. the surrender of the certificate to the
Paying Agent who issued the same; and
(b) that the bearer of the certificate is entitled to attend and
vote at such meeting and any adjourned such meeting in respect
of the Offshore Bonds represented by such certificate.
48 HOURS means a period of 48 hours including all or part of two days
upon which banks are open for business in both the place where the
relevant meeting is to be held and in each of the places where the
Paying Agents have their specified offices (disregarding for this
purpose the day upon which such meeting is to be held) and such period
shall be extended by one or, to the extent necessary, more periods of
24 hours until there is included as aforesaid all or part of two days
upon which banks are open for business as aforesaid.
24 HOURS means a period of 24 hours including all or part of a day upon
which banks are open for business in both the place where the meeting
is to be held and in each of the places where the Paying Agents have
their specified offices (disregarding for this purpose the day upon
which such meeting is to be held) and such period shall be extended by
one or, to the extent necessary, more periods of 24 hours until there
is included as aforesaid all or part of a day upon which banks are open
for business as aforesaid.
2. CONVENING OF MEETINGS
The Issuer, the Bond Trustee or the Security Trustee may at any time
and must:
(a) in the case of the Issuer and the Bond Trustee, upon a
requisition in writing signed by the Bondholders of not less
than one-tenth of the aggregate:
(i) of the A$ equivalent of the Face Value of all US$
Bonds at that time; and
(ii) of the A$ Equivalent of the Face Value of the EURO
Bonds at that time; and
(b) in the case of the Issuer and the Security Trustee, upon a
requisition in writing signed by Bondholders of not less than
one-tenth of the A$ Equivalent of the aggregate Face Value of
all Fast Prepayment Bonds at that time,
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convene a meeting of Bondholders and if the Issuer, the Bond Trustee or
the Security Trustee (as the case may be) fails to convene such a
meeting for a period of seven days the same may be convened by such
Bondholders or (in the case of a failure by the Issuer) the Bond
Trustee or the Security Trustee.
(c) Every such meeting shall be held at such place as:
(i) in the case of a meeting of a Class of Offshore
Bondholders, the Bond Trustee; or
(ii) in the case of a meeting of Fast Prepayment
Bondholders, the Security Trustee,
may appoint or approve.
3. NOTICE OF MEETINGS
3.1 At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is held) specifying the place,
day and hour of meeting shall be given to the Bondholders prior to any
meeting of the Bondholders in the manner provided by Condition 15.
3.2 Such notice shall:
(a) state generally the nature of the business to be transacted at
the meeting thereby convened but (except for an Extraordinary
Resolution) it shall not be necessary to specify in such
notice the terms of any resolution to be proposed;
(b) in the case of a meeting of Offshore Bondholders, include a
statement to the effect that Offshore Bonds may be held (to
their satisfaction) to the order of the relevant Paying
Agent(s) or under their control or blocked by a depository
holding the same in a manner approved by the Bond Trustee for
the purpose of obtaining Voting Certificates or appointing
Proxies.
3.3 A copy of the notice of meeting of:
(a) a Class of Offshore Bondholders, shall be given to the Bond
Trustee (unless the meeting is convened by the Bond Trustee)
and to the Issuer (unless the meeting is convened by the
Issuer); and
(b) Fast Prepayment Bondholders, shall be given to the Security
Trustee (unless the meeting is convened by the Security
Trustee) and to the Issuer (unless the meeting is convened by
the Issuer).
4. CHAIRMAN
Some person (who may but need not be a Bondholder) nominated in writing
by:
(a) in the case of a meeting of a Class of Offshore Bondholders,
the Bond Trustee; and
(b) in the case of a meeting of Fast Prepayment Bondholders, the
Security Trustee,
shall be entitled to take the chair at every meeting of Bondholders but
if no such nomination is made by, or if at any meeting the person
nominated shall not be present, within fifteen minutes after the time
appointed for holding the meeting, the Bondholders present shall choose
one of their number to be Chairman.
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5. QUORUM
5.1 At any meeting of Bondholders two or more Entitled Voters holding or
representing in the aggregate not less than 5% of the A$ Equivalent of
the aggregate Face Value of all Bonds at that time shall (except for
the purpose of passing an Extraordinary Resolution) form a quorum for
the transaction of business and no business (other than choosing a
Chairman) shall be transacted at any meeting unless the requisite
quorum be present at the commencement of business.
5.2 Subject to paragraph 5.3, the quorum at any meeting of Bondholders for
passing an Extraordinary Resolution shall be two or more Entitled
Voters holding or representing in the aggregate a clear majority of the
aggregate A$ Equivalent of the Face Value of all Bonds at that time.
5.3 At any meeting of Bondholders the business of which includes any of the
following matters (each a BASIC TERMS MODIFICATION and each of which
shall only be capable of being effected after having been approved by
Extraordinary Resolution):
(a) modification of the date upon which all or any part of the
Bondholders' Secured Moneys are payable;
(b) modification of any amount of the Bondholders' Secured Moneys
payable or of the method of calculating any such amount;
(c) alteration of the currency in which all or any part of the
Bondholders' Secured Moneys is payable;
(d) alteration of the majority required to pass an EXTRAORDINARY
RESOLUTION;
(e) the sanctioning of any scheme or proposal described in
paragraph 17(i);
(f) alteration of clause 10.2 of the Security Trust Deed or
Conditions 4.4, 4.5, 5.1 or 5.2;
(g) alteration of paragraph 5 or paragraph 6,
the quorum shall be two or more Entitled Voters holding or representing
in the aggregate not less than 75% of the A$ Equivalent of the
aggregate Face Value of all Bonds at that time.
6. ADJOURNMENT
6.1 If within 15 minutes after the time appointed for a meeting of
Bondholders a quorum is not present, the meeting shall, if convened
upon the requisition of Bondholders, be dissolved. In any other case it
shall stand adjourned to the same day in the next week (or if such day
is a public holiday the next succeeding Business Day) at the same time
and place (except in the case of a meeting at which an Extraordinary
Resolution is to be proposed in which case it shall stand adjourned for
such period being not less than 14 days nor more than 42 days, and at
such place as may be appointed by the Chairman and approved by the Bond
Trustee (in the case of a meeting of a Class of Offshore Bondholders)
or the Security Trustee (in the case of a meeting of Fast Prepayment
Bondholders)) and, subject to paragraph 6.2, at such adjourned meeting
two or more Entitled Voters (whatever the A$ Equivalent of the
aggregate Face Value of all Bonds at that time) shall form a quorum to
decide upon all matters which could properly have been dealt with at
the meeting from which the adjournment took place had the requisite
quorum been present.
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6.2 If at any adjourned meeting the business of which includes any of the
matters specified in paragraph 5.3, the quorum shall be two or more
Entitled Voters holding or representing in the aggregate not less than
33.3% of the A$ Equivalent of the aggregate Face Value of all Bonds at
that time.
7. NOTICE OF ADJOURNED MEETING
Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3.1
and such notice must state what the quorum for such adjourned meeting
shall be (determined in accordance with paragraph 6).
8. CHAIRMAN'S CASTING VOTE
Every question submitted to a meeting of Bondholders shall be decided
in the first instance by a show of hands and in 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 an Entitled Voter.
9. RIGHT TO DEMAND A POLL
At any meeting unless a poll is (before or on the declaration of the
result of the show of hands) demanded in accordance with paragraph 10,
a declaration by the Chairman that a resolution has been carried or
carried by a particular majority or not carried or not carried by a
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.
10. VOTING ON A POLL
Subject to paragraph 12, if at any meeting of Bondholders a poll is
demanded by the Chairman, the Issuer, the Bond Trustee (in the case of
a meeting of a Class of Offshore Bondholders), the Security Trustee (in
the case of a meeting of Fast Prepayment Bondholders) or by two or more
Entitled Voters holding or representing in the aggregate not less than
2% of the A$ Equivalent of the aggregate Face Value of all Bonds at
that time, it shall be taken in such manner and, subject to these
Meetings Procedures, either at once or after an adjournment as the
Chairman directs 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 motion on which the poll has been demanded.
11. BUSINESS AT ADJOURNED MEETINGS
The Chairman may with the consent of (and must if directed by), any
meeting of Bondholders 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 (but for lack of required
quorum) have been transacted at the meeting from which the adjournment
took place.
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12. NO ADJOURNMENT OF POLLS
Any poll demanded at any meeting of Bondholders on the election of a
Chairman or on any question of adjournment shall be taken at the
meeting without adjournment.
13. RIGHT TO ATTEND AND SPEAK
13.1 The Bond Trustee, the Security Trustee, the Issuer, any Secured
Creditor, their respective lawyers, financial advisers, directors,
officers or employees, and any other person authorised to do so by the
Chairman may, but (subject to these Meetings Procedures) are not
required to, attend and speak at any meeting of Bondholders. No other
person shall be entitled to attend and speak nor shall any person be
entitled to vote at any meeting of Bondholders unless he or she is an
Entitled Voter.
13.2 Neither the Issuer, any subsidiary or holding company of the Issuer,
nor any other subsidiary of such holding company shall be entitled to
vote at any meeting in respect of Bonds held beneficially by it or for
its account. Nothing herein contained shall prevent any Proxy from
being a director, officer or representative of or otherwise connected
with the Issuer or any of such other companies.
14. VOTING ENTITLEMENTS
Subject to paragraph 13.2, at any meeting of Bondholders:
(a) on a show of hands, every Entitled Voter shall have one vote;
and
(b) on a poll, every person who is so present shall have one vote
in respect of each US$1 (or the equivalent of US$1 in EURO or
A$) of Bondholders' Secured Moneys in respect of which he or
she is an Entitled Voter.
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.
15. PROXIES AND BLOCK VOTING INSTRUCTIONS
15.1 Each appointment of a Proxy and each Block Voting Instruction:
(a) must be in writing;
(b) in the case of a Block Voting Instruction or a Proxy in
relation to an Offshore Bond, if so required by the Bond
Trustee must be accompanied by proof satisfactory to the Bond
Trustee of its due execution;
(c) in the case of a Proxy in relation to a Fast Prepayment Bond,
if so required by the Security Trustee must be accompanied by
proof satisfactory to the Security Trustee of its due
execution; and
(d) must be deposited with the Bond Trustee (in the case of a
meeting of a Class of Offshore Bondholders) or the Security
Trustee (in the case of a meeting of Fast Prepayment
Bondholders) at its address for service of notices under this
Deed or at such other place as the Bond Trustee or the
Security Trustee (as the case may be) designates or approves
not
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Bond Trust Deed
less than 24 hours before the time appointed for holding the
meeting or adjourned meeting at which the named Proxy proposes
to vote.
In default, the appointment of Proxy is not valid unless the Chairman
of the meeting decides otherwise before such meeting or adjourned
meeting proceeds to business.
15.2 The Proxy named in any appointment of Proxy or Block Voting Instruction
need not be a Bondholder.
15.3 A Bondholder which is a corporation may by a certificate in writing
under its common seal appoint any person as its representative to act
as that Bondholder's representative at any meeting of Bondholders and
to exercise on the Bondholder's behalf all of the powers which the
Bondholder is entitled to exercise under these Meetings Procedures.
15.4 Neither the Bond Trustee nor the Security Trustee is obliged to
investigate or be concerned with the validity of, or the authority of,
the Proxy named in any appointment of Proxy or Block Voting
Instruction.
16. BLOCK VOTING INSTRUCTIONS, PROXIES AND VOTING CERTIFICATES
16.1 Any vote given in accordance with the terms of a Block Voting
Instruction or a Proxy shall be valid notwithstanding the previous
revocation or amendment of the Block Voting Instruction or Proxy (as
the case may be) or of any of the Bondholder's instructions pursuant to
which it was executed provided that no intimation in writing of such
revocation or amendment is received from the relevant Paying Agent by
the Issuer (in the case of a Block Voting Instruction) or from the
relevant Bondholder by the Bond Trustee or Security Trustee (in the
case of any other Proxy) in each case at the relevant address for the
giving of notices under this Deed by the time being 24 hours before the
time appointed for holding the meeting or adjourned meeting at which
the Block Voting Instruction or Proxy (as the case may be) is to be
used.
16.2 The holder of any Voting Certificate or the Proxies named in any Block
Voting Instruction shall, for all purposes in connection with the
meeting or adjourned meeting of Bondholders, be deemed to be the holder
of the Bonds to which such Voting Certificate or Block Voting
Instruction relates and the person holding the same to the order or
under the control of any Paying Agent or the person holding the same
blocked as aforesaid shall be deemed for such purposes not to be the
holder of those Bonds.
17. EXTRAORDINARY RESOLUTIONS
A meeting of the Bondholders shall, in addition to the powers specified
in this Deed and the Security Trust Deed as being exercisable by
Extraordinary Resolution, have the following powers exercisable by
Extraordinary Resolution (subject to the provisions relating to quorum
contained in paragraphs 5 and 6):
(a) power to sanction any compromise or arrangement proposed to be
made between the Issuer and the Bondholders (or any of them);
(b) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Bondholders (or
any of them) against the Issuer or against any of the Charged
Property or against any other person;
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Bond Trust Deed
(c) power to assent to any modification of this Deed, the Bonds,
the Conditions or any other Secured Document;
(d) power to give any authority or sanction which under the
provisions of any Secured Document are required to be given by
Extraordinary Resolution;
(e) power to appoint any persons (whether Bondholders or not) as a
committee or committees to represent the interests of the
Bondholders and to confer upon such committee or committees
any powers or discretions which the Bondholders could
themselves exercise by Extraordinary Resolution;
(f) in the case of a meeting of Offshore Bondholders only, power
to approve of a person to be appointed as a successor Bond
Trustee and power to remove the Bond Trustee;
(g) power to approve of a person to be appointed as a successor
Security Trustee and power to remove the Security Trustee;
(h) in the case of a meeting of Offshore Bondholders only, power
to discharge or exonerate the Bond Trustee from all liability
in respect of any act or omission for which the Bond Trustee
may have become responsible under the Offshore Bonds or any
other Secured Document;
(i) power to discharge or exonerate the Security Trustee from all
liability in respect of any act or omission for which the
Security Trustee may have become responsible under the Bonds
or any other Secured Document;
(j) power to authorise the Security Trustee and/or (in the case of
a meeting of Class A Bondholders only) the Bond Trustee to
concur in and execute and do all such deeds, instruments, acts
and things as may be necessary to carry out and give effect to
any Extraordinary Resolution;
(k) power to sanction any scheme or proposal for the exchange or
sale of the Bonds for, or the conversion of the Bonds into, or
the cancellation of the Bonds in consideration of, shares,
stock, notes, bonds, debentures, debenture stock and/or other
obligations and/or securities of the Issuer or any other
company formed or to be formed, or for, or in consideration
of, cash, or partly for, or into, or in consideration of, such
shares, stock, notes, bonds, debentures, debenture stock
and/or other obligations and/or securities as aforesaid and
partly for, or into, or in consideration of, cash,
provided that:
(l) no Extraordinary Resolution of the Bondholders of Class A
Bonds to sanction a Basic Terms Modification of any Class or
Classes of Bonds shall be effective for any purpose unless its
becoming effective shall have been sanctioned by an
Extraordinary Resolution of the Bondholders of Fast Prepayment
Bonds and by an Extraordinary Resolution of the Bondholders of
Class B Bonds or the Security Trustee is of the opinion that
its becoming effective will not be materially prejudicial to
the interests of the Bondholders of Fast Prepayment Bonds and
the Bondholders of Class B Bonds;
(m) no Extraordinary Resolution of the Bondholders of Fast
Prepayment Bonds to sanction a Basic Terms Modification of any
Class or Classes of Bonds shall be effective for any purpose
unless its becoming effective shall have been sanctioned by an
Extraordinary Resolution of the
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Bond Trust Deed
Bondholders of Class A Bonds and by an Extraordinary
Resolution of the Bondholders of Class B Bonds or the Security
Trustee is of the opinion that its becoming effective will not
be materially prejudicial to the interests of the Bondholders
of Class A Bonds and the Bondholders of Class B Bonds;
(n) no Extraordinary Resolution of the Bondholders of Class B
Bonds to sanction a Basic Terms Modification of any Class or
Classes of Bonds shall be effective for any purpose unless its
becoming effective shall have been sanctioned by an
Extraordinary Resolution of Bondholders of Class A Bonds and
by an Extraordinary Resolution of the Bondholders of Fast
Prepayment Bonds or the Security Trustee is of the opinion
that its becoming effective will not be materially prejudicial
to the interests of the Bondholders of Class A Bonds and the
Bondholders of Fast Prepayment Bonds.
18. RESOLUTIONS BINDING
(a) Subject to the provisions of these Meetings Procedures and of
the other provisions of this Deed and the Security Trust Deed,
any resolution passed at a meeting of the Bondholders duly
convened and held in accordance with this Deed shall be
binding upon all the Bondholders, whether or not present, or
entitled to be present, at such meeting and whether or not
voting, and each of the Issuer and the Bondholders shall be
bound to give effect to such resolution accordingly and the
passing of any such resolution shall be conclusive evidence
that the circumstances justify the passing thereof. Notice of
the result of the voting on any resolution appearing in the
notice of such meeting duly considered by the Bondholders
shall be published by the Issuer in accordance with Condition
15 within 14 days of such result being known provided that the
non-publication of such notice shall not invalidate such
resolution.
(b) Subject to the proviso to paragraph 17, an Extraordinary
Resolution passed at any meeting of Class A Bondholders shall
be binding on the Class B Bondholders irrespective of the
effect upon them.
(c) An Extraordinary Resolution of the Class B Bondholders shall
not be effective for any purpose while any Class A Bonds
remain outstanding unless either:
(i) the Security Trustee is of the opinion that it would
not be materially prejudicial to the interests of the
Class A Bondholders; or
(ii) it is sanctioned by an Extraordinary Resolution of
the Class A Bondholders.
19. MINUTES OF RESOLUTIONS
Minutes of all resolutions and proceedings at every meeting of
Bondholders shall be made and duly entered in books to be from time to
time provided for that purpose by:
(a) in the case of a meeting of a Class of Offshore Bondholders,
the Bond Trustee; and
(b) in the case of a meeting of Fast Prepayment Bondholders, the
Security Trustee,
and any such minutes if purporting to be signed by the Chairman of the
meeting at which such resolutions were passed or proceedings had shall
be conclusive evidence of the matters set out in them and until the
contrary is proved every such meeting in respect of the proceedings of
which
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Bond Trust Deed
minutes have been made shall be deemed to have been duly held and
convened and all resolutions passed or proceedings had at any such
meeting to have been duly passed or had.
20. WRITTEN RESOLUTIONS
Notwithstanding the preceding provisions of these Meetings Procedures,
a resolution of all Bondholders (including an Extraordinary Resolution)
may be passed, without any meeting or previous notice being required,
by an instrument or instruments in writing which is or are signed by
all Bondholders. Any such instrument or instruments are effective upon
presentation to:
(a) the Bond Trustee; and
(b) in the case of a meeting of Fast Prepayment Bondholders, the
Security Trustee,
for entry in the records referred to in paragraph 19.
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Bond Trust Deed
SCHEDULE 8
INFORMATION TO BE CONTAINED IN BONDHOLDERS REPORT
The following information is to be included in the Bondholders Report for each
Calculation Period:
(a) the aggregate Face Value and the aggregate Stated Value of each Class
of Bonds on the first day after the Payment Date in relation to that
Calculation Period;
(b) the aggregate of the Interest Entitlements for each Class of Bonds on
the Payment Date in relation to that Calculation Period;
(c) the aggregate of all principal repayments (if any) to be made in
respect of each Class of Bonds on the Payment Date in relation to that
Calculation Period;
(d) the Income Collections for that Calculation Period;
(e) the Principal Collections for that Calculation Period;
(f) the Available Amortisation Amount on the Payment Date in relation to
that Calculation Period;
(g) the aggregate of all Redraw Advances, Line of Credit Advances and
Permitted Further Advances made during that Calculation Period in
relation to Loans forming part of the Assets of the Fund;
(h) the Interest Rate for the Class A-1(a) Bonds, the Class A-1(b) Bonds,
the Class B-1(a) Bonds and the Class B-1(b) Bonds for the Interest
Accrual Period ending on (but excluding) the Payment Date in relation
to that Calculation Period, as calculated by the Calculation Agent;
(i) the scheduled and unscheduled payments of principal on the Loans
forming part of the Assets of the Fund during that Calculation Period;
(j) the aggregate Face Value of the Loans forming part of the Assets of the
Fund as at the last day of that Calculation Period;
(k) the Aggregate Loss Amount (if any) for that Calculation Period;
(l) the Charge-offs and Unreimbursed Charge-offs (if any) in relation to
each of the Class A-1(a) Bonds, the Class A-1(b) Bonds, the Class
B-1(a) Bonds and the Class B-1(b) Bonds on the Payment Date in relation
to that Calculation Period; and
(m) delinquency and loss statistics with respect to the Loans forming part
of the Assets to the Fund during that Calculation Period.
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-11/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/21/04 | | | | | | | None on these Dates |
| List all Filings |
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