XXXXXXX XXX
Medallion Trust Series 2004-1G
Agency Agreement
Perpetual Trustee Company Limited
ABN 42 000 001 007
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
The Bank of New York
The Bank of New York, London Branch
If you have any questions about the details of this document
please contact Xxx Xxxxxxxx on + 61 2 9353 4000
Xxxxxxx Xxx
Lawyers
Levels 22-35 No. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
XX Xxx X0 Xxxxxxxxx Xxxxxx Xxxxxx XXX 0000
T + 61 2 9353 4000 F + 61 2 8220 6700
xxx.xxxxxxxxxx.xxx
Our reference 801/784/80003979
Liability limited by the Solicitors Scheme, approved under the Professional
Standards Act 1994 (NSW) and by our Terms of Engagement
Table of Contents
1. Definitions and interpretation..................................................... 1
1.1 Definitions................................................................ 1
1.2 Series Supplement and Master Trust Deed Definitions........................ 4
1.3 Interpretation............................................................. 4
1.4 Issuer Capacity............................................................ 5
1.5 Transaction Document....................................................... 6
1.6 Incorporated Definitions and other Transaction Documents and provisions.... 6
2. Appointment of Paying Agents....................................................... 6
2.1 Appointment................................................................ 6
2.2 Several Obligations of Paying Agents....................................... 6
3. Payments........................................................................... 6
3.1 Payment by Issuer.......................................................... 6
3.2 Payments by Paying Agents.................................................. 6
3.3 Method of Payment for Offshore Book-Entry Notes............................ 7
3.4 Method of Payment for Offshore Definitive Notes............................ 7
3.5 Non-Payment................................................................ 7
3.6 Late Payment............................................................... 7
3.7 Reimbursement.............................................................. 8
3.8 Payment under Currency Swaps............................................... 8
3.9 Paying Agent holds funds on trust.......................................... 8
3.10 Principal Paying Agent may deal with funds................................. 8
3.11 No Set-Off................................................................. 8
3.12 Holders of Offshore Notes.................................................. 8
3.13 Repayment of Moneys........................................................ 9
3.14 Paying Agents to Record, Notify Payments and Deliver Surrendered Notes..... 9
4. Appointment and duties of the Agent Bank........................................... 10
4.1 Appointment................................................................ 10
4.2 Determinations by Agent Bank............................................... 10
4.3 Notification by Agent Bank................................................. 10
4.4 Offshore Note Trustee to Perform Agent Bank's Function..................... 10
4.5 Documents to Agent Bank.................................................... 10
5. Appointment and duties of the Offshore Note Registrars............................. 10
5.1 Offshore Note Registrars................................................... 10
5.2 Offshore Note Registers to be Kept......................................... 11
5.3 Transfer or Exchange of Offshore Notes..................................... 11
5.4 Replacement of Lost or Mutilated Offshore Notes............................ 11
5.5 Obligations upon Transfer, Exchange or Replacement of Offshore Notes....... 12
5.6 No Charge for Transfer or Exchange......................................... 12
5.7 Restricted Period.......................................................... 12
5.8 Cancellation of Offshore Notes............................................. 12
5.9 Provision of Information and Inspection of Registers....................... 13
5.10 Correctness of Register and Information.................................... 13
5.11 Non-recognition of Equitable Interests..................................... 13
5.12 Rectification of an Offshore Note Register................................. 13
6. Offshore Note Trustee's Requirements regarding Agents.............................. 14
6.1 Following Enforcement of the Charge or issue of Definitive
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Notes...................................................................... 14
6.2 Good Discharge to Issuer................................................... 14
6.3 Change of Authorised Officers.............................................. 15
7. Redemption of Offshore Notes....................................................... 15
7.1 Part Redemption of Offshore Notes on Distribution Dates.................... 15
7.2 Early Redemption........................................................... 15
8. General Paying Agent Matters....................................................... 16
8.1 Notices to Offshore Noteholders............................................ 16
8.2 Copies of Documents for Inspection......................................... 16
8.3 Notice of any Withholding or Deduction..................................... 16
9. Indemnity.......................................................................... 16
9.1 Indemnity by Issuer........................................................ 16
9.2 Indemnity by Agent......................................................... 16
10. Changes in Agents.................................................................. 17
10.1 Appointment and Removal.................................................... 17
10.2 Resignation................................................................ 17
10.3 Limitation of Appointment and Termination.................................. 17
10.4 Payment of amounts held by the Paying Agent................................ 18
10.5 Records held by an Offshore Note Registrar................................. 18
10.6 Successor to Principal Paying Agent, Paying Agent, Agent Bank or
an Offshore Note Registrar................................................. 18
10.7 Notice to Offshore Noteholders............................................. 19
10.8 Change in Specified Office................................................. 19
11. Miscellaneous duties and protection................................................ 20
11.1 Agents are agents of the Issuer............................................ 20
11.2 Agency..................................................................... 20
11.3 Reliance................................................................... 20
11.4 Entitled to Deal........................................................... 20
11.5 Consultation............................................................... 20
11.6 Duties and Obligations..................................................... 21
11.7 Income Tax Returns......................................................... 21
11.8 Representation by each Agent............................................... 21
12. Fees and expenses.................................................................. 21
12.1 Payment of Fee............................................................. 21
12.2 Payment of Expenses........................................................ 21
12.3 No Other Fees.............................................................. 21
12.4 Payment of Fees............................................................ 21
12.5 No Commission.............................................................. 22
12.6 Issuer Personally Liable for Fees.......................................... 22
12.7 Timing of Payments......................................................... 22
13. Notices............................................................................ 22
13.1 Method of Delivery......................................................... 22
13.2 Deemed Receipt............................................................. 23
13.3 Email...................................................................... 23
13.4 Communications through Principal Paying Agent.............................. 23
14. Issuer's limitation of liability................................................... 23
14.1 Limitation on Issuer's Liability........................................... 23
14.2 Claims against Issuer...................................................... 23
14.3 Breach of Trust............................................................ 23
14.4 Acts or omissions.......................................................... 24
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14.5 No Authority............................................................... 24
14.6 No obligation.............................................................. 24
15. General............................................................................ 24
15.1 Waiver..................................................................... 24
15.2 Written Waiver, Consent and Approval....................................... 24
15.3 Severability............................................................... 24
15.4 Survival of Indemnities.................................................... 25
15.5 Assignments................................................................ 25
15.6 Successors and Assigns..................................................... 25
15.7 Moratorium Legislation..................................................... 25
15.8 Amendments................................................................. 25
15.9 Governing Law.............................................................. 25
15.10 Jurisdiction............................................................... 25
15.11 Counterparts............................................................... 26
15.12 Limitation of Offshore Note Trustee's Liability............................ 26
15.13 Contra proferentem......................................................... 26
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This Agency Agreement made at Sydney on 18 March 2004
Parties Perpetual Trustee Company Limited ABN 42 000 001 007 of Xxxxx 0, 0
Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx, in its capacity as trustee of
the Series Trust (as hereinafter defined) (hereinafter included in the
expression the "Issuer")
Securitisation Advisory Services Pty Limited ABN 88 064 133 946 of
Xxxxx 0, 00 Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx (hereinafter included by
incorporation in the expression the "Manager")
The Bank of New York of 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx
00000 as trustee of the Offshore Note Trust (as hereinafter defined)
(hereinafter included by incorporation in the expression the "Offshore
Note Trustee")
The Bank of New York of at 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx
00000 (hereinafter included in the expression the "US Dollar Note
Registrar")
The Bank of New York of 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx
00000 (hereinafter included in the expression the "Principal Paying
Agent")
The Bank of New York of 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx
00000 (hereinafter included in the expression the "Agent Bank")
The Bank of New York, London Branch of 00xx xxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxx X00 0XX (hereinafter included in the expression the "Paying
Agent")
The Bank of New York, London Branch of 00xx xxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxx X00 0XX (hereinafter included in the expression the "Euro Note
Registrar")
Background
A. The Issuer, in its capacity as trustee of the Series Trust, proposes to
issue Offshore Notes.
B. The Offshore Notes will be constituted pursuant to the Offshore Note Trust
Deed.
C. The Issuer wishes to appoint The Bank of New York as the initial Principal
Paying Agent, the initial US Dollar Note Registrar and the initial Agent
Bank in respect of the Offshore Notes and The Bank of New York has accepted
these appointments on the terms and conditions of this Agreement.
D. The Issuer wishes to appoint The Bank of New York, London Branch as an
initial Paying Agent and the initial Euro Note Registrar in respect of the
Offshore Notes and The Bank of New York, London Branch has accepted that
appointment on the terms and conditions of this Agreement.
Background
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1. Definitions and interpretation
1.1 Definitions
In this Agreement, unless the contrary intention appears:
"Agent" means a several reference to each Paying Agent, each Offshore Note
Registrar, and the Agent Bank.
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"Agent Bank" means initially The Bank of New York or, if The Bank of New
York resigns or its appointment is terminated as the Issuer's reference
agent in respect of the Offshore Notes, the person from time to time
appointed in its place to perform the functions of such reference agent
under this Agreement.
"Authorised Officer" in relation to:
(a) the Issuer and the Manager, has the same meaning as in the Master
Trust Deed;
(b) the Offshore Note Trustee, the US Dollar Note Registrar, the Agent
Bank and the Principal Paying Agent while these are the same person as
the Offshore Note Trustee, has the same meaning as the term
"Authorised Officer" in relation to the Offshore Note Trustee has in
the Offshore Note Trust Deed;
(c) The Bank of New York, London Branch as Paying Agent and Euro Note
Registrar means a responsible officer of the Corporate Trust
Administration department of The Bank of New York, London Branch; and
(d) any other Agent, means the persons appointed from time to time by that
Agent to act as its Authorised Officers for the purposes of this
Agreement as certified in writing by 2 directors or a director and
secretary of that Agent to the other parties to this Agreement.
"Euro Note Register" means the register established by the Euro Note
Registrar in respect of the Class A-3 Notes in accordance with clause 5.2.
"Euro Note Registrar" means The Bank of New York, London Branch or if The
Bank of New York, London Branch resigns or its appointment is terminated as
note registrar in respect of the Class A-3 Notes, the person from time to
time appointed in its place to perform the functions of such note registrar
under this Agreement.
"Issuer" means initially Perpetual Trustee Company Limited or, if Perpetual
Trustee Company Limited retires or is removed as trustee of the Series
Trusts (as defined in the Master Trust Deed), the then Substitute Trustee
and includes the Manager when acting as the trustee of the Series Trust in
accordance with the Master Trust Deed.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Issuer and the Manager, as amended from time to time.
"Offshore Book Entry Note" has the same meaning as in the Offshore Note
Trust Deed.
"Offshore Definitive Note" has the same meaning as in the Offshore Note
Trust Deed.
"Offshore Note" has the same meaning as in the Offshore Note Trust Deed.
"Offshore Note Register" means, as the context requires, the Euro Note
Register, the US Dollar Note Register, or both.
"Offshore Note Registrar" means, as the context requires, the Euro Note
Registrar, the US Dollar Note Registrar, or both.
"Offshore Note Trust" means the trust of that name constituted by the
Offshore Note Trust Deed.
"Offshore Noteholders" has the same meaning as in the Offshore Note Trust
Deed.
"Paying Agent" means:
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(a) except where the context otherwise requires, the Principal Paying
Agent;
(b) if Offshore Notes are admitted to the Irish Stock Exchange, The Bank
of New York, London Branch until it resigns or its appointment is
terminated as paying agent; and
(c) each other person from time to time appointed hereunder to perform the
functions of a paying agent.
"Principal Paying Agent" means The Bank of New York or, if The Bank of New
York resigns or its appointment is terminated as principal paying agent,
the person from time to time appointed in its place to perform the
functions of the principal paying agent under this Agreement.
"Quarterly Servicing Report" has the same meaning as in the Offshore Note
Conditions.
"Series Supplement" means a Series Supplement dated 10 March 2004 between
Commonwealth Bank of Australia ABN 48 123 123 124, Homepath Pty Limited ABN
35 081 986 530, the Manager and the Issuer.
"Series Trust" means the trust known as the Medallion Trust Series 2004-1G
established pursuant to the Master Trust Deed and the Series Supplement.
"Specified Office" in relation to:
(a) the US Dollar Note Registrar, means the offices of the US Dollar Note
Registrar as specified in the Offshore Note Conditions or otherwise
under this Agreement as the offices of the US Dollar Note Registrar
where surrenders of Class A-1 Notes for transfer, exchange,
replacement or redemption will occur and where, in respect of one of
such offices, the US Dollar Note Register will be kept, as varied from
time to time in accordance with this Agreement;
(b) the Euro Note Registrar, means the offices of the Euro Note Registrar
as specified in the Offshore Note Conditions or otherwise under this
Agreement as the offices of the Euro Note Registrar where surrenders
of Class A-3 Notes for transfer, exchange, replacement or redemption
will occur and where, in respect of one of such offices, the Euro Note
Register will be kept, as varied from time to time in accordance with
this Agreement;
(c) a Paying Agent, means the office of the Paying Agent specified in the
Offshore Note Conditions or otherwise under this Agreement as the
office at which payments in respect of the Offshore Notes will be
made, as varied from time to time in accordance with this Agreement;
and
(d) the Agent Bank, means the office of the Agent Bank specified in the
Offshore Note Conditions or otherwise under this Agreement as the
office at which the Agent Bank will carry out its duties under this
Agreement, as varied from time to time in accordance with this
Agreement.
"STAMP" means the Securities Transfer Agents Medallion Program.
"UCC" means the Uniform Commercial Code of New York.
"US Dollar Note Register" means the register established by the US Dollar
Note Registrar in respect of the Class A-1 Notes in accordance with clause
5.2.
"US Dollar Note Registrar" means The Bank of New York or if The Bank of New
York resigns or its appointment is terminated as note registrar in respect
of the Class A-1 Notes, the
3
person from time to time appointed in its place to perform the functions of
such note registrar under this Agreement.
1.2 Series Supplement and Master Trust Deed Definitions
Subject to clause 1.6, unless defined in this Agreement, words and phrases
defined in either or both of the Master Trust Deed and the Series
Supplement have the same meaning in this Agreement. Where there is any
inconsistency in a definition between this Agreement (on the one hand) and
the Master Trust Deed or the Series Supplement (on the other hand), this
Agreement prevails. Where there is any inconsistency in a definition
between the Master Trust Deed and the Series Supplement, the Series
Supplement prevails over the Master Trust Deed in respect of this
Agreement. Subject to clause 1.6, where words or phrases used but not
defined in this Agreement are defined in the Master Trust Deed in relation
to a Series Trust (as defined in the Master Trust Deed) and/or an Other
Trust such words or phrases are to be construed in this Agreement, where
necessary, as being used only in relation to the Series Trust (as defined
in this Agreement) and/or the CBA Trust, as the context requires.
1.3 Interpretation
In this Agreement, unless the contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation
of this Agreement;
(b) a reference to this "Agreement" includes the Background;
(c) the expression "person" includes an individual, the estate of an
individual, a body politic, a corporation and a statutory or other
authority or association (incorporated or unincorporated);
(d) a reference to a person includes that person's executors,
administrators, successors, substitutes and assigns, including any
person taking by way of novation;
(e) subject to clause 1.6, a reference to any document or agreement is to
such document or agreement as amended, novated, supplemented, varied
or replaced from time to time;
(f) a reference to any legislation or to any section or provision of any
legislation includes any statutory modification or re-enactment or any
statutory provision substituted for that legislation and all
ordinances, by-laws, regulations and other statutory instruments
issued under that legislation, section or provision;
(g) words importing the singular include the plural (and vice versa) and
words denoting a given gender include all other genders;
(h) a reference to a clause is a reference to a clause of this Agreement;
(i) a reference to "wilful default" in relation to a party means, subject
to clause 1.3(j), any wilful failure by that party to comply with, or
wilful breach by that party of, any of its obligations under any
Transaction Document, other than a failure or breach which:
(i) A. arises as a result of a breach of a Transaction Document by
a person other than:
(1) that party; or
4
(2) any other person referred to in clause 1.3(j); and
B. the performance of the action (the non-performance of which
gave rise to such breach) is a pre-condition to that party
performing the said obligation; or
(ii) is in accordance with a lawful court order or direction or is
required by law; or
(iii) is in accordance with a proper instruction or direction of
Investors given at a meeting convened under any Transaction
Document;
(j) a reference to the "fraud", "negligence" or "wilful default" of a
party means the fraud, negligence or wilful default of that party and
of its officers, employees, agents and any other person where that
party is liable for the acts or omissions of such other person under
the terms of any Transaction Document;
(k) where any word or phrase is given a defined meaning, any other part of
speech or other grammatical form in respect of such word or phrase has
a corresponding meaning;
(l) where any day on which a payment is due to be made or a thing is due
to be done under this Agreement is not a Business Day, that payment
must be made or that thing must be done on the immediately succeeding
Business Day;
(m) a reference to the "close of business" on any day is a reference to
5.00 pm on that day;
(n) a reference to time is to local time in Sydney;
(o) subject to clause 13.2, each party will only be considered to have
knowledge or awareness of, or notice of, a thing or grounds to believe
anything by virtue of the officers of that party (or any Related Body
Corporate of that party) having day to day responsibility for the
administration or management of that party's (or a Related Body
Corporate of that party's) obligations in relation to the Series Trust
having actual knowledge, actual awareness or actual notice of that
thing, or grounds or reason to believe that thing (and similar
references will be interpreted in this way); and
(p) a reference to the enforcement of the Charge means that the Security
Trustee appoints (or the Voting Secured Creditors as contemplated by
clause 8.4 of the Security Trust Deed appoint) a Receiver over any
Charged Property, or takes possession of any Charged Property,
pursuant to the Security Trust Deed (expressions used in this clause
have the same meanings as in the Security Trust Deed).
1.4 Issuer Capacity
In this Agreement, except where provided to the contrary:
(a) (References to Issuer): a reference to the Issuer is a reference to
the Issuer in its capacity as trustee of the Series Trust only, and in
no other capacity; and
(b) (References to assets of the Issuer): a reference to the undertaking,
assets, business or money of the Issuer is a reference to the
undertaking, assets, business or money of the Issuer in the capacity
referred to in paragraph (a).
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1.5 Transaction Document
For the purposes of the Master Trust Deed and the Series Supplement, this
Agreement is a Transaction Document.
1.6 Incorporated Definitions and other Transaction Documents and provisions
Where in this Agreement a word or expression is defined by reference to its
meaning in another Transaction Document or there is a reference to another
Transaction Document or to a provision of another Transaction Document, any
amendment to the meaning of that word or expression or to that other
Transaction Document or provision (as the case may be) will be of no effect
for the purposes of this Agreement unless and until the amendment is
consented to by the parties to this Agreement.
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2. Appointment of Paying Agents
2.1 Appointment
The Issuer, at the direction of the Manager, hereby appoints the Principal
Paying Agent as its initial principal paying agent, and each other Paying
Agent from time to time as its paying agent, for making payments in respect
of the Offshore Notes pursuant to the Transaction Documents at their
respective Specified Offices in accordance with the terms and conditions of
the Agreement. The Principal Paying Agent, and each other Paying Agent,
hereby accepts that appointment.
2.2 Several Obligations of Paying Agents
While there is more than one Paying Agent, the obligations of the Paying
Agents under this Agreement are several and not joint.
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3. Payments
3.1 Payment by Issuer
Subject to clause 3.8, the Issuer must on each Distribution Date, pay to or
to the order of the Principal Paying Agent to an account specified by the
Principal Paying Agent in same day funds:
(a) (Class A-1 Notes): not later than 10.00 am (New York time) the amount
in US$ as may be required (after taking account of any money then held
by the Principal Paying Agent and available for the purpose) to be
paid on that Distribution Date in respect of the Class A-1 Notes; and
(b) (Class A-3 Notes): not later than 10.00 am (London time) the amount in
Euro as may be required (after taking account of any money then held
by the Principal Paying Agent and available for the purpose) to be
paid on that Distribution Date in respect of the Class A-3 Notes,
in each case, under the Offshore Note Conditions.
3.2 Payments by Paying Agents
Subject to payment being duly made as provided in clause 3.1(a) in the case
of the Class A-1 Notes and in clause 3.1(b) in the case of the Class A-3
Notes (or the Principal Paying Agent otherwise being satisfied that the
relevant payment will be duly made on the due date), and
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subject to clause 6, the Paying Agents will pay or cause to be paid to the
Offshore Noteholders on behalf of the Issuer on each Distribution Date the
relevant amounts of principal and interest due in respect of the Offshore
Notes in accordance with this Agreement and the Offshore Note Conditions.
3.3 Method of Payment for Offshore Book-Entry Notes
The Principal Paying Agent will cause all payments of principal or interest
(as the case may be) due in respect of Offshore Book-Entry Notes to be made
to the relevant Depository or, if applicable, to that Depository's nominee
in whose name Offshore Book-Entry Notes are registered, to the account or
accounts designated by that Depository or, if applicable, that nominee and
otherwise in accordance with Condition 8.1 of the Offshore Note Conditions.
3.4 Method of Payment for Offshore Definitive Notes
The Paying Agents will cause all payments of principal or interest (as the
case may be) due in respect of Offshore Definitive Notes to be made in
accordance with Condition 8.1 of the Offshore Note Conditions.
3.5 Non-Payment
(a) (No obligation on Paying Agents): If the Issuer fails to make any
payment, unless and until the full amount of the payment has been made
under the terms of this Agreement (except as to the time of making the
payment) or other arrangements satisfactory to the Principal Paying
Agent have been made, none of the Principal Paying Agent nor any of
the other Paying Agents is bound to make any payment in accordance
with this clause 3 (but may, in its discretion, make any such
payment).
(b) (Notice of Non-receipt): The Principal Paying Agent will immediately
notify by facsimile the other Paying Agents, the Offshore Note
Trustee, the Issuer, the Security Trustee and the Manager if the full
amount of any payment of principal or interest in respect of the
Offshore Notes required to be made pursuant to the Offshore Note
Conditions is not unconditionally received by it or to its order in
accordance with this Agreement.
3.6 Late Payment
(a) (Late Payments to be paid in accordance with this Agreement): If any
payment under clause 3.1 is made late but otherwise in accordance with
the provisions of this Agreement, each Paying Agent will make the
payments required to be made by it in respect of the Offshore Notes as
provided in this clause 3.
(b) (Notice): If the Principal Paying Agent does not receive on a
Distribution Date the full amount of principal and interest then
payable on any Offshore Note in accordance with the Offshore Note
Conditions, but receives the full amount later, it will:
(i) forthwith upon receipt of the full amount notify the other Paying
Agents, the Issuer, the Offshore Note Trustee, the Security
Trustee and the Manager; and
(ii) as soon as practicable after receipt of the full amount give
notice, in accordance with Condition 11.1 of the Offshore Note
Conditions, to the Offshore Noteholders that it has received the
full amount.
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3.7 Reimbursement
The Principal Paying Agent will (provided that it has been placed in funds
by the Issuer) on demand promptly reimburse each other Paying Agent for
payments of principal and interest properly made by that Paying Agent in
accordance with the Offshore Note Conditions and this Agreement. The Issuer
will not be responsible for the apportionment of any moneys between the
Principal Paying Agent and the other Paying Agents and a payment to the
Principal Paying Agent of any moneys due to the Paying Agents will operate
as a good discharge to the Issuer in respect of such moneys.
3.8 Payment under Currency Swaps
The payment by the Issuer of its Australian dollar payment obligations
under the Series Supplement on each Distribution Date to:
(a) (Class A-1 Currency Swap): the Currency Swap Provider in respect of
the Class A-1 Currency Swap will be a good discharge of its
corresponding US Dollar obligations under clause 3.1; and
(b) (Class A-3 Currency Swap): the Currency Swap Provider in respect of
the Class A-3 Currency Swap will be a good discharge of its
corresponding Euro obligations under clause 3.1,
but, in each case, will not relieve the Issuer of any liability in respect
of any default in payment in respect of an Offshore Note under any other
Transaction Document.
3.9 Paying Agent holds funds on trust
Each Paying Agent will hold in a separate account on trust for the Offshore
Note Trustee and the Offshore Noteholders all sums held by such Paying
Agent for the payment of principal and interest with respect to Offshore
Notes until such sums are paid to the Offshore Note Trustee or the
applicable Offshore Noteholders in accordance with the Offshore Note Trust
Deed or the Offshore Note Conditions or repaid under clause 3.13.
3.10 Principal Paying Agent may deal with funds
Subject to the terms of this Agreement, the Principal Paying Agent is
entitled to deal with moneys paid to it under this Agreement in the same
manner as other moneys paid to it as a banker by its customers. The
Principal Paying Agent is entitled to retain for its own account any
interest earned on such moneys, except as required by law.
3.11 No Set-Off
No Paying Agent is entitled to exercise any right of set-off, withholding,
counterclaim or lien against, or make any deduction in any payment to, any
person entitled to receive amounts of principal or interest on the Offshore
Notes in respect of moneys payable by it under this Agreement.
3.12 Holders of Offshore Notes
Except as ordered by a court of competent jurisdiction or as required by
law, each Paying Agent is entitled to treat the person:
(a) (Offshore Book-Entry Notes): who is, while a Offshore Book-Entry Note
remains outstanding, the registered owner of that Offshore Book-Entry
Note as recorded in the applicable Offshore Note Register as the
absolute owner of that Offshore Book-Entry Note and as the person
entitled to receive payments of principal or
8
interest (as applicable) and each person shown in the records of the
applicable Depository as the holder of any Offshore Note represented
by that Offshore Book-Entry Note will be entitled to receive from the
registered owner of that Offshore Book-Entry Note any payment so made
only in accordance with the respective rules and procedures of that
Depository;
(b) (Offshore Definitive Notes): who is the registered owner of any
Offshore Definitive Note as recorded in the applicable Offshore Note
Register as the absolute owner or owners of that Offshore Definitive
Note (whether or not that Offshore Definitive Note is overdue and
despite any notice of ownership or writing on it or any notice of
previous loss or theft or of any trust or other interest in it); and
(c) (Offshore Note Trustee): who, when an Offshore Book-Entry Note in
respect of any Offshore Note is no longer outstanding but Offshore
Definitive Notes in respect of the Offshore Notes have not been
issued, is for the time being the Offshore Note Trustee, as the person
entrusted with the receipt of principal or interest, as applicable, on
behalf of the relevant Offshore Noteholders,
in all cases and for all purposes, despite any notice to the contrary, and
will not be liable for so doing.
3.13 Repayment of Moneys
(a) (Prescription): Immediately on any entitlement to receive principal or
interest under any Offshore Note becoming void under the Offshore Note
Conditions, the Principal Paying Agent will repay to the Issuer the
amount which would have been due in respect of that principal or
interest if it had been paid before the entitlement became void,
together with any fees applicable to that payment or entitlement (pro
rated as to the amount and time) to the extent already paid under
clause 12.
(b) (No Repayment while outstanding amounts due): Notwithstanding clause
3.13(a) the Principal Paying Agent is not obliged to make any
repayment to the Issuer while any fees and expenses which should have
been paid to or to the order of the Principal Paying Agent or, if
applicable, the Offshore Note Trustee, by the Issuer remain unpaid.
3.14 Paying Agents to Record, Notify Payments and Deliver Surrendered Notes
Each Paying Agent must:
(a) (Notify Offshore Note Registrars): promptly notify the applicable
Offshore Note Registrar of each payment made by it, or at its
direction, to Offshore Noteholders in respect of the Offshore Notes;
(b) (Records): keep a full and complete record of each payment made by it,
or at its direction, to Offshore Noteholders and provide copies of
such records to the Issuer, the Manager, the Offshore Note Trustee or
the applicable Offshore Note Registrar upon request; and
(c) (Deliver): promptly deliver to the applicable Offshore Note Registrar
any Offshore Notes surrendered to it pursuant to Condition 8.2 of the
Offshore Note Conditions.
A record by a Paying Agent under this clause 3.14 is sufficient evidence,
unless the contrary is proved, of the relevant payments having been made or
not made.
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4. Appointment and duties of the Agent Bank
4.1 Appointment
The Issuer, at the direction of the Manager, hereby appoints the Agent Bank
as its initial reference agent in respect of the Offshore Notes upon the
terms and conditions contained in this Agreement and the Agent Bank hereby
accepts that appointment.
4.2 Determinations by Agent Bank
The Agent Bank must perform such duties, and make such calculations,
determinations, notifications and publications at its Specified Office as
are set forth in the Offshore Note Conditions and the Currency Swap
Agreement (in respect of the Class A-1 Currency Swap and the Class A-3
Currency Swap, each as defined in the Currency Swap Agreement) to be
performed or made by it until the Offshore Notes are redeemed (or deemed to
be redeemed) in full in accordance with the Offshore Note Conditions and
must perform any other duties as requested by the Issuer, the Manager or
the Principal Paying Agent which are reasonably incidental to those duties.
4.3 Notification by Agent Bank
If the Agent Bank fails to perform any duty or to make any calculation,
determination, notification or publication as provided in clause 4.2, it
must forthwith notify the Issuer, the Manager, the Offshore Note Trustee,
the Principal Paying Agent and the Currency Swap Provider thereof.
4.4 Offshore Note Trustee to Perform Agent Bank's Function
If the Agent Bank at any time for any reason does not determine an Interest
Rate for the Offshore Notes, or calculate a Class A-1 Interest Amount or
Class A-3 Interest Amount (each as defined in the Offshore Note
Conditions), the Offshore Note Trustee must do so and each such
determination or calculation will be as if made by the Agent Bank for the
purposes of the Offshore Note Conditions. In doing so, the Offshore Note
Trustee will apply the provisions of Condition 6 of the Offshore Note
Conditions, with any necessary consequential amendments, to the extent that
it can and, in all other respects it will do so in such a manner as it
considers fair and reasonable in all the circumstances.
4.5 Documents to Agent Bank
The Manager and the Issuer will provide to the Agent Bank such documents
and other information as the Agent Bank reasonably requires in order for
the Agent Bank to properly fulfil its duties in respect of the Offshore
Notes and the Currency Swap Agreement.
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5. Appointment and duties of the Offshore Note Registrars
5.1 Offshore Note Registrars
The Issuer, at the direction of the Manager, hereby appoints:
(a) (US Dollar Note Registrar): the US Dollar Note Registrar as its
initial note registrar in respect of the Class A-1 Notes upon the
terms and conditions contained in this Agreement and the US Dollar
Note Registrar hereby accepts that appointment; and
(b) (Euro Note Registrar): the Euro Note Registrar as its initial note
registrar in respect of the Class A-3 Notes upon the terms and
conditions contained in this
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Agreement and the Euro Note Registrar hereby accepts that appointment.
5.2 Offshore Note Registers to be Kept
The US Dollar Note Registrar must, in respect of the Class A-1 Notes, keep
a register, at one of its Specified Offices, and the Euro Note Registrar
must, in respect of the Class A-3 Notes, keep a register, at its Specified
Office, in which, subject to such reasonable regulations as the applicable
Offshore Note Registrar may prescribe, that Offshore Note Registrar must
keep a full and complete record of:
(a) (Offshore Noteholder Details): the name, address and, where
applicable, taxation, social security or other identifying number of
each Offshore Noteholder, the details of the Offshore Notes held by
that Offshore Noteholder and the details of the account to which any
payments due to the Offshore Noteholder are to be made in each case as
notified by that Offshore Noteholder from time to time;
(b) (Exchange etc. of Offshore Notes): the issue and any exchange,
transfer, replacement, redemption (in whole or part) or cancellation
of a Offshore Note;
(c) (Payments): all payments made in respect of the Offshore Notes (as
notified to it by each Paying Agent pursuant to clause 3.14(a));
(d) (Principal): the Invested Amount and the Stated Amount of each
Offshore Note from time to time (as notified to it by the Manager
pursuant to clause 7.1); and
(e) (Other Information): such other information as the Manager reasonably
requires or the applicable Offshore Note Registrar considers
appropriate or desirable.
5.3 Transfer or Exchange of Offshore Notes
Offshore Notes held by a Offshore Noteholder may be transferred or may be
exchanged for other Offshore Notes of the same class in any authorised
denominations and a like Invested Amount, provided in each case that the
requirements of Section 8-401(a) of the UCC are met, by that Offshore
Noteholder upon:
(a) (Surrender and Instrument of Transfer or Exchange): the surrender of
the Offshore Notes to be transferred or exchanged duly endorsed with,
or accompanied by, a written instrument of transfer or exchange in the
form, in the case of a transfer, annexed to the Offshore Notes or
otherwise in a form satisfactory to the applicable Offshore Note
Registrar duly executed by the Offshore Noteholder, or its attorney
duly authorised in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of that
Offshore Note Registrar which requirements include membership of, or
participation in, STAMP or such other "signature guarantee program" as
may be determined by that Offshore Note Registrar in addition to, or
in substitution for, STAMP, all in accordance with the Exchange Act;
and
(b) (Other Documents): the provision of such other documents as that
Offshore Note Registrar may reasonably require,
to the applicable Offshore Note Registrar at a Specified Office of that
Offshore Note Registrar.
5.4 Replacement of Lost or Mutilated Offshore Notes
If any Offshore Note is lost, stolen, mutilated, defaced or destroyed it
may, provided that the requirements of Section 8-405 of the UCC are met, be
replaced with other Offshore Notes of the same class in any authorised
denominations, and a like Invested Amount, upon surrender to
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the applicable Offshore Note Registrar of the Offshore Notes to be replaced
(where the Offshore Notes have been mutilated or defaced) at a Specified
Office of that Offshore Note Registrar, the provision of such evidence and
indemnities as that Offshore Note Registrar or the Issuer may reasonably
require and payment of that Offshore Note Registrar's and the Issuer's
expenses incurred, and any tax or governmental charge that may be imposed,
in connection with such replacement.
5.5 Obligations upon Transfer, Exchange or Replacement of Offshore Notes
Subject to this Deed, upon compliance by the relevant Offshore Noteholder
with the provisions of clauses 5.3 or 5.4, as applicable, in relation to
the transfer, exchange or replacement of any Offshore Notes:
(a) (Advise Issuer): the applicable Offshore Note Registrar must within 3
Business Days so advise the Issuer and the Offshore Note Trustee (if
it is not the Offshore Note Registrar) in writing and provide details
of the new Offshore Notes to be issued in place of those Offshore
Notes;
(b) (Execution and Authentication): the Issuer must, within 3 Business
Days of such advice, execute and deliver to the Offshore Note Trustee
for authentication in the name of the relevant Offshore Noteholder or
the designated transferee or transferees, as the case may be, one or
more new Offshore Notes of the same class in any authorised
denominations, and a like Invested Amount as those Offshore Notes (in
each case as specified by the applicable Offshore Note Registrar) and
the Offshore Note Trustee must within 3 Business Days of receipt of
such executed Offshore Notes authenticate them and (if it is not that
Offshore Note Registrar) deliver those Offshore Notes to that Offshore
Note Registrar; and
(c) (Delivery to Offshore Noteholder): the applicable Offshore Note
Registrar must, within 3 Business Days of receipt of such new Offshore
Notes (or authentication of such Offshore Notes if that Offshore Note
Registrar is the Offshore Note Trustee), forward to the relevant
Offshore Noteholder (being the transferee in the case of a transfer of
a Offshore Note) such new Offshore Notes.
5.6 No Charge for Transfer or Exchange
No service charge may be made to a Offshore Noteholder for any transfer or
exchange of Offshore Notes, but the applicable Offshore Note Registrar may
require payment by the Offshore Noteholder of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Offshore Notes.
5.7 Restricted Period
Notwithstanding the preceding provisions of this clause 5, an Offshore Note
Registrar need not register transfers or exchanges of Offshore Notes, and
the Issuer is not required to execute nor the Offshore Note Trustee to
authenticate any Offshore Notes, for a period of 30 days preceding the due
date for any payment with respect to the Offshore Notes or for such period,
not exceeding 30 days, as is specified by the Offshore Note Trustee prior
to any meeting of Relevant Investors, which includes Offshore Noteholders,
under the Master Trust Deed or prior to any meeting of Voting Secured
Creditors, which includes Offshore Noteholders, under the Security Trust
Deed.
5.8 Cancellation of Offshore Notes
Each Offshore Note Registrar must cancel or destroy all Offshore Notes that
have been surrendered to it for transfer, exchange or replacement
(including any Offshore Book Entry Notes surrendered pursuant to clause
3.4(b) of the Offshore Note Trust Deed) or surrendered to
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a Paying Agent for redemption and delivered to that Offshore Note Registrar
and must, upon request, provide a certificate to the Issuer, the Offshore
Note Trustee or the Manager with the details of all such Offshore Notes.
5.9 Provision of Information and Inspection of Registers
Each Offshore Note Registrar must:
(a) (Information): provide to the Issuer, the Manager, the Offshore Note
Trustee and each other Agent such information as is contained in the
Offshore Note Register maintained by it and is required by them in
order to perform any obligation pursuant to a Transaction Documents;
(b) (Inspection): make the Offshore Note Register maintained by it:
(i) available for inspection or copying by the Issuer, the Manager,
the Offshore Note Trustee and each other Agent or their agents or
delegates; and
(ii) available for inspection by each applicable Offshore Noteholder
but only in respect of information relating to that Offshore
Noteholder,
at one of that Offshore Note Registrar's Specified Offices during local
business hours.
5.10 Correctness of Register and Information
The Issuer, the Offshore Note Trustee, the Manager and each Agent (other
than each Offshore Note Registrar) may accept the correctness of an
Offshore Note Register and any information provided to it by an Offshore
Note Registrar and is not required to enquire into its authenticity. None
of the Issuer, the Offshore Note Trustee, the Manager or any Agent
(including each Offshore Note Registrar) is liable for any mistake in an
Offshore Note Register or in any purported copy except to the extent that
the mistake is attributable to its own fraud, negligence or wilful default.
5.11 Non-recognition of Equitable Interests
Except as required by Statute or as ordered by a court of competent
jurisdiction, no notice of any trust, whether express, implied or
constructive, is to be entered in an Offshore Note Register and except as
otherwise provided in any Transaction Document, or required by Statute or
ordered by a court of competent jurisdiction, none of the Offshore Note
Registrars, the Offshore Note Trustee, the Issuer, the Manager or any other
Agent is to be affected by or compelled to recognise (even when having
notice of it) any right or interest in any Offshore Notes other than the
registered Offshore Noteholder's absolute right to the entirety of them and
the receipt of a registered Offshore Noteholder is a good discharge to the
Issuer, the Manager, the Offshore Note Trustee and each Agent.
5.12 Rectification of an Offshore Note Register
If:
(a) (Entry Omitted): an entry is omitted from an Offshore Note Register;
(b) (Entry made otherwise than in accordance with this Deed): an entry is
made in an Offshore Note Register otherwise than in accordance with
this Agreement;
(c) (Wrong entry exists): an entry wrongly exists in an Offshore Note
Registrar;
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(d) (Error or defect exists in Register); there is an error or defect in
any entry in an Offshore Note Register; or
(e) (Default made): default is made or unnecessary delay takes place in
entering in an Offshore Note Register that any person has ceased to be
the holder of Offshore Notes,
then the applicable Offshore Note Registrar may rectify the same.
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6. Offshore Note Trustee's Requirements regarding Agents
6.1 Following Enforcement of the Charge or issue of Definitive Notes
At any time after either an Event of Default (unless waived by the Security
Trustee pursuant to clause 9.5 of the Security Trust Deed) or the
enforcement of the Charge or at any time after Offshore Definitive Notes
have not been issued when required in accordance with the Offshore Note
Trust Deed, the Offshore Note Trustee may:
(a) (Require Agents): by notice in writing to the Issuer, the Manager, and
each Agent require any one or more of the Agents either:
(i) A. to act as the Agent of the Offshore Note Trustee on the
terms and conditions of this Agreement in relation to
payments to be made by or on behalf of the Offshore Note
Trustee under the terms of the Offshore Note Trust Deed,
except that the Offshore Note Trustee's liability under any
provision of this Agreement for the indemnification of the
Principal Paying Agent, the Paying Agents and the Agent Bank
will be limited to any amount for the time being held by the
Offshore Note Trustee on the trust of the Offshore Note
Trust Deed and which is available to be applied by the
Offshore Note Trustee for that purpose; and
B. hold all Offshore Notes, and all amounts, documents and
records held by them in respect of the Offshore Notes, on
behalf of the Offshore Note Trustee; or
(ii) to deliver up all Offshore Notes and all amounts, documents and
records held by them in respect of the Offshore Notes, to the
Offshore Note Trustee or as the Offshore Note Trustee directs in
that notice, other than any documents or records which an Agent
is obliged not to release by any law; and
(b) (Require Issuer): by notice in writing to the Issuer require it to
make (or arrange to be made) all subsequent payments in respect of the
Offshore Notes to the order of the Offshore Note Trustee and not to
the Principal Paying Agent and, with effect from the issue of that
notice to the Issuer and until that notice is withdrawn, clause 6.1(b)
of the Offshore Note Trust Deed will not apply.
6.2 Good Discharge to Issuer
The payment by or on behalf of the Issuer of its payment obligations on
each Distribution Date under the Series Supplement and the Offshore Note
Conditions to the Offshore Note Trustee in accordance with clause 6.1 is a
good discharge to the Issuer and the Issuer will not be liable for any act
or omission or default of the Offshore Note Trustee during the period it is
required to make payments to the Offshore Note Trustee under clause 6.1.
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6.3 Change of Authorised Officers
The Offshore Note Trustee will forthwith give notice to the Manager, the
Issuer, the Security Trustee and each Agent of any change in the Authorised
Officers of the Offshore Note Trustee.
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7. Redemption of Offshore Notes
7.1 Part Redemption of Offshore Notes on Distribution Dates
(a) (Manager to Make Determinations etc): Two Business Days prior to each
Distribution Date, the Manager will make the determinations referred
to in Condition 7.11(a) of the Offshore Note Conditions in relation to
that Distribution Date and will give to the Issuer, the Offshore Note
Trustee, the Principal Paying Agent, the Agent Bank, each Offshore
Note Registrar and the Irish Stock Exchange the notifications, and
will cause to be made to the Offshore Noteholders the publication,
required by Condition 7.11(b) of the Offshore Note Conditions. If the
Manager does not at any time for any reason make the determinations
referred to in Condition 7.11(a) of the Offshore Note Conditions it
must forthwith advise the Offshore Note Trustee and the Agent Bank and
such determinations must be made by the Agent Bank, or failing the
Agent Bank, by the Offshore Note Trustee in accordance with such
Condition 7.11(c) of the Offshore Note Conditions (but based on the
information in its possession) and each such determination will be
deemed to have been made by the Manager.
(b) (Notify each Depository): If any Offshore Book-Entry Notes are
outstanding, on receipt of a notification under Condition 7.11(b) of
the Offshore Note Conditions, the Principal Paying Agent must notify
each Depository of any proposed redemption in accordance with that
Depository's applicable procedures, specifying the principal amount of
each Offshore Book-Entry Note to be redeemed and the date on which the
redemption is to occur and must provide a copy to each Depository of
the notification received under Condition 7.11(b) of the Offshore Note
Conditions.
7.2 Early Redemption
(a) (Notice to Paying Agent etc): If the Issuer intends to redeem all (but
not some only) of the Offshore Notes prior to the Scheduled Maturity
Date (as defined in the Offshore Note Conditions) pursuant to
Conditions 7.3 or 7.4 of the Offshore Note Conditions, the Manager
will direct the Issuer to give the requisite notice to the Sellers,
the Offshore Note Trustee, the Principal Paying Agent, each Offshore
Note Registrar, the Agent Bank and the Offshore Noteholders in
accordance with Conditions 7.3 or 7.4 (as the case may be) of the
Offshore Note Conditions and stating the date on which such Offshore
Notes are to be redeemed.
(b) (Notice to each Depository): The Principal Paying Agent will, on
receipt of a notice under clause 7.2(a), and if any Offshore Book
Entry Notes are outstanding, notify each Depository of the proposed
redemption in accordance with that Depository's applicable procedures,
specifying the Invested Amount and Stated Amount of each Offshore
Book-Entry Note to be redeemed, the amount of principal to be repaid
in relation to each Offshore Book-Entry Note and the date on which the
Offshore Book-Entry Notes are to be redeemed.
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8. General Paying Agent Matters
8.1 Notices to Offshore Noteholders
(a) (Notices to be given by Offshore Note Registrars): At the request of
the Issuer, the Offshore Note Trustee, the Manager, the Security
Trustee or any other Agent, and at the expense of the Issuer, each
Offshore Note Registrar will arrange for the delivery of all notices
and the Quarterly Servicing Report to the applicable Offshore
Noteholders in accordance with the Offshore Note Conditions.
(b) (Copy to Offshore Note Trustee): Each Offshore Note Registrar will
promptly send to the Offshore Note Trustee one copy of the form of
every notice given to the applicable Offshore Noteholders in
accordance with the Offshore Note Conditions (unless such notice is
given at the request of the Offshore Note Trustee).
An Offshore Note Registrar will not be responsible for, or liable to any
person in respect of, the contents of any notices or reports delivered by
it at the request of the Issuer, the Offshore Note Trustee, the Manager,
the Security Trustee or any other Agent pursuant to this clause 8.1.
8.2 Copies of Documents for Inspection
The Manager will provide to each Offshore Note Registrar sufficient copies
of all documents required by the Offshore Note Conditions or the Offshore
Note Trust Deed to be available to the applicable Offshore Noteholders for
issue or inspection.
8.3 Notice of any Withholding or Deduction
If the Issuer or any Paying Agent is, in respect of any payment in respect
of the Offshore Notes, compelled to withhold or deduct any amount for or on
account of any taxes, duties or charges as contemplated by Condition 8.4 of
the Offshore Note Conditions, the Issuer must give notice to the Principal
Paying Agent, the Offshore Note Trustee and the Offshore Noteholders in
accordance with Condition 11.1 of the Offshore Note Conditions immediately
after becoming aware of the requirement to make the withholding or
deduction and must give to the Principal Paying Agent and the Offshore Note
Trustee such information as they require to enable each of them to comply
with the requirement.
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9. Indemnity
9.1 Indemnity by Issuer
Subject to clause 14, the Issuer undertakes to indemnify each Agent and its
directors, officers, employees and controlling persons against all losses,
liabilities, costs, claims, actions, damages, expenses or demands which any
of them may incur or which may be made against any of them as a result of
or in connection with the appointment of or the exercise of the powers and
duties by the Agent under this Agreement except as may result from its
fraud, negligence or default or that of its directors, officers, employees
or controlling persons or any of them, or breach by it of the terms of this
Agreement and notwithstanding the resignation or removal of that Agent
pursuant to clause 10.
9.2 Indemnity by Agent
Each Agent undertakes to indemnify on a several basis the Issuer, the
Manager and each of their respective directors, officers, employees and
controlling persons against all losses, liabilities, costs, claims,
actions, damages, expenses or demands which any of them may incur or which
may be made against any of them as a result of (but not including any
consequential, indirect, punitive or special damages to the extent
resulting from) its wilful default, negligence
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or fraud or that of its directors, officers, employees or controlling
persons or any of them, or breach by it of the terms of this Agreement.
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10. Changes in Agents
10.1 Appointment and Removal
The Issuer (on the direction of the Manager) may with the prior written
approval of the Offshore Note Trustee (which approval must not be
unreasonably withheld or delayed):
(a) (Appoint new Agents): appoint:
(i) additional or alternative Paying Agents (other than the Principal
Paying Agent); or
(ii) an alternative Agent Bank, Offshore Note Registrar or Principal
Paying Agent; and
(b) (Terminate Appointment of Agents): subject to this clause 10,
terminate the appointment of any Agent by giving written notice to
that effect to the Agent whose appointment is to be terminated copied
to each Rating Agency, the Offshore Note Trustee and (if it is not the
Agent whose appointment is to be terminated) the Principal Paying
Agent:
(i) with effect immediately on the giving of that notice, if any of
the following occurs in relation to the Agent (as the case may
be):
A. an Insolvency Event;
B. it ceases to conduct business or proposes to cease conduct
of its business or a substantial part of that business; or
C. it fails to remedy within five Business Days after prior
written notice by the Issuer or Manager any material breach
of this Agreement on the part of the Agent (as the case may
be); and
(ii) otherwise, with effect on a date not less than 60 days' from that
notice (which date must be not less than 30 days before any due
date for payment on any Offshore Notes).
10.2 Resignation
Subject to this clause 10, an Agent may resign its appointment under this
Agreement at any time by giving to the Issuer, the Manager, each Rating
Agency and (where the Agent resigning is not the Principal Paying Agent)
the Principal Paying Agent not less than 90 days' written notice to that
effect (which notice must expire not less than 30 days before, any due date
for payment on any Offshore Notes).
10.3 Limitation of Appointment and Termination
Notwithstanding clauses 10.1 and 10.2:
(a) (Principal Paying Agent and Offshore Note Registrars): the resignation
by, or the termination of, the appointment of the Principal Paying
Agent or an Offshore Note Registrar will not take effect until a new
Principal Paying Agent or Offshore Note Registrar, as the case may be,
approved in writing by the
17
Offshore Note Trustee has been appointed on terms previously approved
in writing by the Offshore Note Trustee (in each case, the approval
not to be unreasonably withheld or delayed) and with, in the case of
the US Dollar Note Registrar, Specified Offices in each of New York
and London, and in the case of the Euro Note Registrar, a Specified
Office in London;
(b) (Appointment by Retiring Agent): if any Agent resigns in accordance
with clause 10.2 but, by the day falling 15 days before the expiry of
any notice under clause 10.2 the Issuer has not appointed a new Agent,
then the relevant Agent may appoint in its place any reputable bank or
trust company of good standing approved in writing by the Offshore
Note Trustee and appointed on terms previously approved in writing by
the Offshore Note Trustee (in each case, the approval not to be
unreasonably withheld or delayed);
(c) (Specified Office of Paying Agent in New York and London): the
resignation by, or the termination of the appointment of, any Paying
Agent will not take effect if, as a result of the resignation or
termination, there would not be a Paying Agent which has a Specified
Office in New York City or there would not be a Paying Agent which has
a Specified Office in London;
(d) (Specified Office of Agent Bank): the resignation by, or the
termination of the appointment of the Agent Bank will not take effect
until a new Agent Bank having its Specified Office in London or New
York has been appointed; and
(e) (Terms of Appointment of additional Paying Agents): the appointment of
any additional Paying Agent will be on the terms and the conditions of
this Agreement and each of the parties to this Agreement must
co-operate fully to do all further acts and things and execute any
further documents as may be necessary or desirable to give effect to
the appointment of the Paying Agent (which will not, except in the
case of an appointment under clause 10.1(a) or a termination under
clause 10.1(b)(ii), be at the cost of the Issuer or Manager).
10.4 Payment of amounts held by the Paying Agent
If the appointment of a Paying Agent is terminated, that Paying Agent must,
on the date on which that termination takes effect, pay to the successor
Paying Agent any amount held by it for payment of principal or interest in
respect of any Offshore Note and must deliver to the successor Paying Agent
all records maintained by it and all documents (including any Offshore
Notes) held by it pursuant to this Agreement.
10.5 Records held by an Offshore Note Registrar
If the appointment of an Offshore Note Registrar is terminated, that
Offshore Note Registrar must, on the date on which that termination takes
effect, deliver to its successor Offshore Note Registrar the applicable
Offshore Note Register and all records maintained by it and all documents
(including any applicable Offshore Notes) held by it pursuant to this
Agreement.
10.6 Successor to Principal Paying Agent, Paying Agent, Agent Bank or an
Offshore Note Registrar
(a) (Appointment and Release): On the execution by the Issuer, the Manager
and any successor Principal Paying Agent, Paying Agent, Agent Bank or
Offshore Note Registrar of an instrument effecting the appointment of
that successor Principal Paying Agent, Paying Agent, Agent Bank or
Offshore Note Registrar that successor Principal Paying Agent, Paying
Agent, Agent Bank or Offshore Note Registrar, as the case may be,
will, without any further act, deed or conveyance, become vested with
all the authority, rights, powers, trusts, immunities, duties and
obligations of its
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predecessor as if originally named as Principal Paying Agent, Paying
Agent, Agent Bank or Offshore Note Registrar, as the case may be, in
this Agreement and that predecessor, on payment to it of the pro rata
proportion of its administration fee and disbursements then unpaid (if
any), will have no further liabilities under this Agreement, except
for any accrued liabilities arising from or relating to any act or
omission occurring prior to the date on which the successor Principal
Paying Agent, Paying Agent, Agent Bank or Offshore Note Registrar was
appointed.
(b) (Merger): Any corporation:
(i) into which the Principal Paying Agent, a Paying Agent, the Agent
Bank or an Offshore Note Registrar is merged;
(ii) with which the Principal Paying Agent, a Paying Agent, the Agent
Bank or an Offshore Note Registrar is consolidated;
(iii) resulting from any merger or consolidation to which the
Principal Paying Agent, a Paying Agent, the Agent Bank or an
Offshore Note Registrar is a party; or
(iv) to which the Principal Paying Agent, a Paying Agent, the Agent
Bank or an Offshore Note Registrar sells or otherwise transfers
all or substantially all the assets of its corporate trust
business,
must, on the date when that merger, conversion, consolidation, sale or
transfer becomes effective and to the extent permitted by applicable
law, become the successor Principal Paying Agent, Paying Agent, Agent
Bank or applicable Offshore Note Registrar, as the case may be, under
this Agreement without the execution or filing of any agreement or
document or any further act on the part of the parties to this
Agreement, unless otherwise required by the Issuer or the Manager, and
after that effective date all references in this Agreement to the
Principal Paying Agent, Paying Agent, Agent Bank, US Dollar Note
Registrar or Euro Note Registrar, as the case may be, will be
references to that corporation.
10.7 Notice to Offshore Noteholders
The Manager on behalf of the Issuer will, within 5 days of:
(a) (Termination): the termination of the appointment of any Agent;
(b) (Resignation): the resignation of any Agent; or
(c) (Appointment): the appointment of a new Agent,
give to the Offshore Noteholders notice of the termination, appointment or
resignation in accordance with Condition 11.1 of the Offshore Note
Conditions (in the case of a termination under clause 10.1(b)(i) or 10.2 at
the cost of the outgoing Agent). Notwithstanding clauses 10.1 and 10.2,
neither the termination of the appointment of an Agent, nor the resignation
of an Agent, will take effect until notice thereof is given to the Offshore
Noteholders in accordance with this clause 10.7.
10.8 Change in Specified Office
(a) (Agents Change): If any Agent proposes to change its Specified Office
(which must be within the same city as its previous Specified Office),
it must give to the Issuer the Manager, the Offshore Note Trustee and
the other Agents not less than 30 days' prior written notice of that
change, giving the address of the new Specified
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Office and stating the date on which the change is to take effect. No
change of a Specified Office may occur in the period 30 days before
any due date for payment on any Offshore Notes.
(b) (Notice to Offshore Noteholders): The Manager must, within 14 days of
receipt of a notice under clause 10.8(a) (unless the appointment is to
terminate pursuant to clause 10.1 or 10.2 on or prior to the date of
that change) give to the Offshore Noteholders notice in accordance
with Condition 11.1 of the Offshore Note Conditions of that change and
of the address of the new Specified Office, but the cost of giving
that notice must be borne by the Agent which is changing its Specified
Office and not by the Issuer or the Manager.
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11. Miscellaneous duties and protection
11.1 Agents are agents of the Issuer
(a) (Agent of the Series Trust): Subject to clause 6.1, each Agent is the
agent of the Issuer in its capacity as trustee of the Series Trust
only.
(b) (Issuer not responsible for Agents): Notwithstanding any other
provision contained in this Agreement, any other Transaction Document
or at law, the Issuer in its personal capacity is not responsible for
any act or omission of any Agent.
11.2 Agency
Subject to any other provision of this Agreement, each Agent acts solely
for and as agent of the Issuer and does not have any obligations towards or
relationship of agency or trust with any person entitled to receive
payments of principal and/or interest on the Offshore Notes and is
responsible only for the performance of the duties and obligations imposed
on it pursuant to clause 11.6.
11.3 Reliance
Each Agent is protected and will incur no liability for or in respect of
any action taken, omitted or suffered by it in reliance upon any
instruction, request or order from the Issuer or the Manager or in reliance
upon any Offshore Note or upon any notice, resolution, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been delivered, signed or sent by
the proper party or parties.
11.4 Entitled to Deal
An Agent is not precluded from acquiring, holding or dealing in any
Offshore Notes or from engaging or being interested in any contract or
other financial or other transaction with the Issuer or the Manager as
freely as if it were not an agent of the Issuer under this Agreement and in
no event whatsoever (other than fraud, wilful misconduct, negligence or bad
faith) will any Agent be liable to account to the Issuer or any person
entitled to receive amounts of principal or interest on the Offshore Notes
for any profit made or fees or commissions received in connection with this
agreement or any Offshore Notes.
11.5 Consultation
Each Agent may, after 5 days' prior notice to the Issuer and the Manager,
consult as to legal matters with lawyers selected by it, who may be
employees of or lawyers to the Issuer, the Manager or the relevant Agent.
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11.6 Duties and Obligations
Each Agent will perform the duties and obligations, and only the duties and
obligations, contained in or reasonably incidental to this Agreement and
the Offshore Note Conditions and no implied duties or obligations (other
than general laws as to agency) will be read into this Agreement or the
Offshore Note Conditions against any Agent. An Agent is not required to
take any action under this Agreement which would require it to incur any
expense or liability for which (in its reasonable opinion) either it would
not be reimbursed within a reasonable time or in respect of which it has
not been indemnified to its satisfaction.
11.7 Income Tax Returns
The Principal Paying Agent will deliver to each Offshore Noteholder such
information as may be reasonably required to enable such Offshore
Noteholder to prepare its federal and state income tax returns.
11.8 Representation by each Agent
Each Agent represents and warrants that it is duly qualified to assume its
obligations under this Agreement and has obtained all necessary approvals
required to execute, deliver and perform its obligations under this
Agreement.
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12. Fees and expenses
12.1 Payment of Fee
The Issuer will pay to each Agent during the period that any of the
Offshore Notes remain outstanding the administration fee separately agreed
by that Agent and the Issuer. If the appointment of an Agent is terminated
under this Agreement, the Agent must refund to the Issuer that proportion
of the fee (if any) which relates to the period during which the Agent's
appointment is terminated.
12.2 Payment of Expenses
The Issuer must pay or reimburse to each Agent all reasonable costs,
expenses, charges, stamp duties and other Taxes and liabilities properly
incurred by that Agent in the performance of the obligations of that Agent
under this Agreement including, without limitation, all costs and expenses
(including legal costs and expenses) incurred by that Agent in the
enforcement of any obligations under this Agreement. Nothing in this clause
12.2 entitles or permits an Agent to be reimbursed or indemnified for
general overhead costs and expenses (including, without limitation, rents
and any amounts payable by that Agent to its employees in connection with
their employment) incurred directly or indirectly in connection with the
business activities of that Agent or in the exercise of its rights, powers
and discretions or the performance of its duties and obligations under this
Agreement.
12.3 No Other Fees
Except as provided in clauses 12.1 and 12.2, or as expressly provided
elsewhere in this Agreement, neither the Issuer nor the Manager has any
liability in respect of any fees or expenses of any Agent in connection
with this Agreement.
12.4 Payment of Fees
The above fees, payments and expenses will be paid in United States
dollars. The Issuer will in addition pay any value added tax which may be
applicable. The Principal Paying Agent will arrange for payment of
commissions to the other Paying Agents and arrange for the
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reimbursement of their expenses promptly upon demand, supported by evidence
of that expenditure, and provided that payment is made as required by
clause 12.1 the Issuer will not be concerned with or liable in respect of
that payment.
12.5 No Commission
Subject to this clause 12, no Paying Agent may charge any commission or fee
in relation to any payment by it under this Agreement.
12.6 Issuer Personally Liable for Fees
Notwithstanding any other provision of this Agreement, the Issuer must pay
to each Agent the fees referred to in clause 12.1, and any value added tax
on such fees, from its own personal funds and will not be entitled to be
indemnified from the Assets of the Series Trust with respect to such fees
or value added taxes provided that if The Bank of New York or The Bank of
New York, London Branch resigns or is removed as an Agent the Issuer will
only be liable to pay the fees referred to in clause 12.1, and any value
added tax on such fees, from its own personal funds to the extent that such
fees and value added tax do not exceed the amount that would have been
payable to The Bank of New York or The Bank of New York, London Branch, as
the case may be, if it had remained as that Agent. The balance of such fees
and value added tax, if any, will be an Expense for which the Issuer is
entitled to be indemnified from the Assets of the Series Trust in
accordance with the Series Supplement.
12.7 Timing of Payments
Except as referred to in clause 12.6, all payments by the Issuer to an
Agent under this clause 12 are payable on the first Distribution Date
following demand by that Agent from funds available for this purpose in
accordance with the Series Supplement.
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13. Notices
13.1 Method of Delivery
Subject to clause 13.4, any notice, request, certificate, approval, demand,
consent or other communication to be given under this Agreement (other than
notices to the Offshore Noteholders) must:
(a) (In Writing and Signed by an Authorised Officer): except in the case
of communication by email, be in writing and signed by an Authorised
Officer of the party giving the same; and
(b) (Delivery): be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the addressee;
(iii) sent by facsimile to the facsimile number of the addressee; and
(iv) sent by email by an Authorised Officer of the party giving the
same in accordance with the addressee's email address,
as notified by that addressee from time to time to the other parties to
this Agreement as its address for service pursuant to this Agreement.
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13.2 Deemed Receipt
A notice, request, certificate, demand, consent or other communication
under this Agreement is deemed to have been received:
(a) (Delivery): where delivered in person, upon receipt;
(b) (Post): where sent by post, on the 3rd (7th if outside Australia) day
after posting;
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient; and
(d) (Email): where sent by email, on the date the email is received.
However, if the time of deemed receipt of any notice is not before 5.30 pm
local time on a Business Day at the address of the recipient it is deemed
to have been received at the commencement of business on the next Business
Day.
13.3 Email
A notice, request, certificate, approval, demand, consent or other
communication to be given under this Agreement may only be given by email
where the recipient has separately agreed that that communication or
communications of that type, may be given by email.
13.4 Communications through Principal Paying Agent
All communications relating to this Agreement between the Issuer and the
Agent Bank and any of the other Paying Agents or between the Paying Agents
themselves will, except as otherwise provided in this Agreement, be made
through the Principal Paying Agent.
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14. Issuer's limitation of liability
14.1 Limitation on Issuer's Liability
The Issuer enters into this Agreement only in its capacity as trustee of
the Series Trust and in no other capacity. A liability incurred by the
Issuer acting in its capacity as trustee of the Series Trust arising under
or in connection with this Agreement is limited to and can be enforced
against the Issuer only to the extent to which it can be satisfied out of
the Assets of the Series Trust out of which the Issuer is actually
indemnified for the liability. This limitation of the Issuer's liability
applies despite any other provision of this Agreement (other than clauses
12.6 and 14.3) and extends to all liabilities and obligations of the Issuer
in any way connected with any representation, warranty, conduct, omission,
agreement or transaction related to this Agreement.
14.2 Claims against Issuer
The parties other than the Issuer may not xxx the Issuer in respect of any
liabilities incurred by the Issuer acting in its capacity as trustee of the
Series Trust in any capacity other than as trustee of the Series Trust
including seeking the appointment of a receiver (except in relation to the
Assets of the Series Trust) a liquidator, an administrator or any similar
person to the Issuer or prove in any liquidation, administration or similar
arrangements of or affecting the Issuer (except in relation to the Assets
of the Series Trust).
14.3 Breach of Trust
The provisions of this clause 14 will not apply to any obligation or
liability of the Issuer to the
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extent that it is not satisfied because under the Master Trust Deed, the
Series Supplement or any other Transaction Document or by operation of law
there is a reduction in the extent of the Issuer's indemnification out of
the Assets of the Series Trust as a result of the Issuer's fraud,
negligence or wilful default and will not apply to any obligation or
liability of the Issuer to pay amounts from its personal funds pursuant to
clause 12.6.
14.4 Acts or omissions
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Issuer (including any related
failure to satisfy its obligations or any breach of representations or
warranties under this Agreement) will be considered fraudulent, negligent
or a wilful default for the purposes of clause 14.3 to the extent to which
the act or omission was caused or contributed to by any failure by any
Relevant Party or any other person appointed by the Issuer under any
Transaction Document (other than a person whose acts or omissions the
Issuer is liable for in accordance with any Transaction Document) to fulfil
its obligations relating to the Series Trust or by any other act or
omission of a Relevant Party or any other such person.
14.5 No Authority
No Agent appointed in accordance with this Agreement has authority to act
on behalf of the Issuer in a way which exposes the Issuer to any personal
liability and no act or omission of any such person will be considered
fraudulent, negligent or wilful default of the Issuer for the purposes of
clause 14.3.
14.6 No obligation
The Issuer is not obliged to enter into any commitment or obligation under
or in relation to this Agreement or any Transaction Document (including
incur any further liability) unless the Issuer's liability is limited in a
manner which is consistent with this clause 14 or otherwise in a manner
satisfactory to the Issuer in its absolute discretion.
--------------------------------------------------------------------------------
15. General
15.1 Waiver
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or
privilege under this Agreement by a party will not in any way preclude or
operate as a waiver of any further exercise or enforcement of such right,
remedy, power or privilege of the exercise or enforcement of any other
right, remedy, power or privilege under this Agreement or provided by law.
15.2 Written Waiver, Consent and Approval
Any waiver, consent or approval given by a party under this Agreement will
only be effective and will only bind that party if it is given in writing,
or given verbally and subsequently confirmed in writing, and executed by
that party or on its behalf by two Authorised Officers of that party.
15.3 Severability
Any provision of this Agreement which is illegal, void or unenforceable in
any jurisdiction is ineffective in such jurisdiction to the extent only of
such illegality, voidness or unenforceability without invalidating the
remaining provisions of this Agreement.
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15.4 Survival of Indemnities
The indemnities contained in this Agreement are continuing, and survive the
termination of this Agreement.
15.5 Assignments
No party may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the other parties and
confirmation from the Rating Agencies that such assignment will not lead to
a reduction, qualification or reduction of its then rating of the Offshore
Notes.
15.6 Successors and Assigns
This Agreement is binding upon and ensures to the benefit of the parties to
this Agreement and their respective successors and permitted assigns.
15.7 Moratorium Legislation
To the fullest extent permitted by law, the provisions of all statutes
whether existing now or in the future operating directly or indirectly:
(a) (To affect obligations): to lessen or otherwise to vary or affect in
favour of any party any obligation under this Agreement; or
(b) (To affect rights): to delay or otherwise prevent or prejudicially
affect the exercise of any rights or remedies conferred on a party
under this Agreement,
are hereby expressly waived, negatived and excluded.
15.8 Amendments
The parties to this Agreement may only amend this Agreement in accordance
with clause 33.1(b) of the Series Supplement.
15.9 Governing Law
This Agreement is governed by and must be construed in accordance with the
laws of the State of New South Wales.
15.10 Jurisdiction
Each party irrevocably and unconditionally:
(a) (Submissions to jurisdiction): submits to the non-exclusive
jurisdiction of the courts of the State of New South Wales;
(b) (Waiver of inconvenient forum): waives any objection it may now or in
the future have to the bringing of proceedings in those courts and any
claim that any proceedings have been brought in an inconvenient forum;
and
(c) (Service of notice): agrees, without preventing any other mode of
service permitted by law, that any document required to be served in
any proceedings may be served in the manner in which notices and other
written communications may be given under clause 13.
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15.11 Counterparts
This Agreement may be executed in a number of counterparts and all such
counterparts taken together will constitute one and the same instrument.
15.12 Limitation of Offshore Note Trustee's Liability
The Offshore Note Trustee is a party to this Agreement in its capacity as
trustee of the Offshore Note Trust. The liability of the Offshore Note
Trustee under this Agreement is limited in the manner and to the same
extent as under the Offshore Note Trust Deed.
15.13 Contra proferentem
Each provision of this Agreement will be interpreted without disadvantage
to the party who (or whose representative) drafted that provision.
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Executed as an agreement.
Signed for and on behalf of Perpetual Trustee
Company Limited ABN 42 000 001 007
by Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
its Attorney under a Power of Attorney dated -----------------------------
17/3/04 and who declares that he or she has not Signature of Attorney
received any notice of the revocation of such
Power of Attorney, in the presence of:
/s/ Xxxxxxxx X'Xxxx Micah Xxxxxx Xxxxxxx
----------------------------- -----------------------------
Signature of Witness Name of Attorney in full
Xxxxxxxx X'Xxxx
-----------------------------
Name of Witness in full
Signed for and on behalf of Securitisation
Advisory Services Pty Limited ABN 88 064 133 946
by Xxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxx
its Attorney under a Power of Attorney dated -----------------------------
10/3/04 and who declares that he or she has not Signature of Attorney
received any notice of the revocation of such
Power of Attorney, in the presence of:
/s/ Xxxxxxxx X'Xxxx
-----------------------------
Signature of Witness
Xxxxxxxx X'Xxxx
-----------------------------
Name of Witness in full
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Signed for The Bank of New York by its
Authorised Signatory: /s/ Xxxxx Xxxxx
-----------------------------
Authorised Signatory
/s/ Xxxxx Xxxxxxx
-----------------------------
Signature of Witness
Xxxxx Xxxxxxx
-----------------------------
Name of Witness in full
Signed for The Bank of New York, London
Branch by its Authorised Signatory: /s/ Xxxxx Xxxxx
-----------------------------
Authorised Signatory
/s/ Xxxxx Xxxxxxx
-----------------------------
Signature of Witness
Xxxxx Xxxxxxx
-----------------------------
Name of Witness in full
28
