XXXXXXX XXX
EXECUTION DRAFT
Medallion Trust Series 2006-1G
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
Deutsche International Corporate Services (Ireland) Limited
If you have any questions about the details of this document
PLEASE CONTACT XXXXX XXXXXX/XXXXXX XXXXXXX ON + 61 2 9353 4000
Xxxxxxx Xxx
Lawyers
Levels 19-35 Xx. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
PO Box H3 Australia Square Sydney NSW 1215
T + 61 2 9353 4000 F + 61 2 8220 6700
XXX.XXXXXXXXXX.XXX
Our reference 174/657/80036670
TABLE OF CONTENTS
1.....DEFINITIONS AND INTERPRETATION...........................................2
1.1 Definitions......................................................2
1.2 Series Supplement and Master Trust Deed Definitions..............4
1.3 Interpretation...................................................4
1.4 Issuer Capacity..................................................6
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........................................7
3.3 Method of Payment for Offered Book-Entry Notes...................7
3.4 Method of Payment for Offered 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.......................................................9
3.12 Holders of Offered Notes.........................................9
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 Offered Note Trustee to Perform Agent Bank's Function...........10
4.5 Documents to Agent Bank.........................................10
5.....APPOINTMENT AND DUTIES OF THE OFFERED NOTE REGISTRARS...................11
5.1 Offered Note Registrars.........................................11
5.2 Offered Note Registers to be Kept...............................11
5.3 Transfer or Exchange of Offered Notes...........................11
5.4 Replacement of Lost or Mutilated Offered Notes..................12
5.5 Obligations upon Transfer, Exchange or Replacement of
Offered Notes ..................................................12
5.6 No Charge for Transfer or Exchange..............................12
5.7 Restricted Period...............................................12
5.8 Cancellation of Offered Notes...................................13
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 Offered Note Register.......................14
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6.....OFFERED NOTE TRUSTEE'S REQUIREMENTS REGARDING AGENTS....................14
6.1 Following Enforcement of the Charge or issue of
Definitive Notes................................................14
6.2 Good Discharge to Issuer........................................15
6.3 Change of Authorised Officers...................................15
7.....REDEMPTION OF OFFERED NOTES.............................................15
7.1 Part Redemption of Offered Notes on Quarterly
Distribution Dates..............................................15
7.2 Early Redemption................................................15
8.....GENERAL AGENT MATTERS...................................................16
8.1 Notices to Offered Noteholders..................................16
8.2 Copies of Documents for Inspection..............................16
8.3 Notice of any Withholding or Deduction..........................16
8.4 Information and Forms...........................................16
9.....INDEMNITY...............................................................16
9.1 Indemnity by Issuer.............................................16
9.2 Indemnity by Note Agent.........................................17
10....CHANGES IN AGENTS.......................................................17
10.1 Appointment and Removal.........................................17
10.2 Resignation.....................................................17
10.3 Limitation of Appointment and Termination.......................18
10.4 Payment of amounts held by the Paying Agent.....................18
10.5 Records held by an Offered Note Registrar.......................19
10.6 Successor to Principal Paying Agent, Paying Agent,
Agent Bank or an Offered Note Registrar.........................19
10.7 Notice to Offered Noteholders...................................19
10.8 Change in Specified Office......................................20
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................................................21
11.5 Consultation....................................................21
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...................................................22
12.4 Payment of Fees.................................................22
12.5 No Commission...................................................22
12.6 Fees are Expenses of the Series Trust...........................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
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13.4 Communications through Principal Paying Agent...................23
14....APPOINTMENT OF CLASS A-2 IRISH PAYING AGENT.............................23
14.1 Appointment.....................................................23
14.2 Resignation and Termination.....................................23
15....ISSUER'S LIMITATION OF LIABILITY........................................24
15.1 Limitation on Issuer's Liability................................24
15.2 Claims against Issuer...........................................24
15.3 Breach of Trust.................................................24
15.4 Acts or omissions...............................................24
15.5 No Authority....................................................24
15.6 No obligation...................................................25
16....GENERAL ................................................................25
16.1 Waiver..........................................................25
16.2 Written Waiver, Consent and Approval............................25
16.3 Severability....................................................25
16.4 Survival of Indemnities.........................................25
16.5 Assignments.....................................................25
16.6 Successors and Assigns..........................................25
16.7 Moratorium Legislation..........................................25
16.8 Amendments......................................................26
16.9 Governing Law...................................................26
16.10 Jurisdiction....................................................26
16.11 Counterparts....................................................26
16.12 Limitation of Offered Note Trustee's Liability..................26
16.13 Contra proferentem..............................................26
16.14 Know your customer..............................................26
16.15 Compliance with Regulation AB...................................27
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THIS AGENCY AGREEMENT MADE AT SYDNEY ON 3 MARCH 2006
PARTIES PERPETUAL TRUSTEE COMPANY LIMITED ABN 42 000 001 007 of Level
12, 123 Pitt, Sydney, Australia, 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 Level 7, 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 10286 as trustee of the Offered Note Trust (as
hereinafter defined) (hereinafter included by incorporation in
the expression the "BNY" or "OFFERED NOTE TRUSTEE")
THE BANK OF NEW YORK of 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx
Xxxx 10286 (hereinafter included in the expression the "US
DOLLAR NOTE REGISTRAR")
THE BANK OF NEW YORK of 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx
Xxxx 10286 (hereinafter included in the expression the
"PRINCIPAL PAYING AGENT")
THE BANK OF NEW YORK of 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx
Xxxx 10286 (hereinafter included in the expression the "AGENT
BANK")
THE BANK OF NEW YORK, LONDON BRANCH of 48th floor, Xxx Xxxxxx
Xxxxxx, Xxxxxx X00 0XX (hereinafter included in the expression
the "BNY LONDON" or "PAYING AGENT")
THE BANK OF NEW YORK, LONDON BRANCH of 48th floor, Xxx Xxxxxx
Xxxxxx, Xxxxxx X00 0XX (hereinafter included in the expression
the "EURO NOTE REGISTRAR")
DEUTSCHE INTERNATIONAL CORPORATE SERVICES (IRELAND) LIMITED of
0 Xxxxxxxxxxxxx Xxxxx, X.X.X.X., Xxxxxx 0, Xxxxxxx
(hereinafter included in the expression the "CLASS A-2 IRISH
PAYING AGENT" and "OFFERED NOTE IRISH PAYING AGENT")
BACKGROUND
A. The Issuer, in its capacity as trustee of the Series Trust, proposes to
issue Offered Notes.
B. The Offered Notes will be constituted pursuant to the Offered 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 Offered 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 Offered Notes and The Bank of New York, London Branch has accepted
that appointment on the terms and conditions of this Agreement.
X. The Issuer also wishes to appoint Deutsche International Corporate
Services (Ireland) Limited as the initial paying agent in the Republic
of Ireland in respect of the Offered Notes and the Class A-2 Notes and
Deutsche International Corporate Services (Ireland) Limited has
accepted that appointment on the terms and conditions of this
Agreement.
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OPERATIVE PROVISIONS
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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 Offered
Note Registrar, and the Agent Bank.
"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 Offered 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 Offered Note Trustee, the US Dollar Note Registrar, the
Agent Bank and the Principal Paying Agent while these are the
same person as the Offered Note Trustee, has the same meaning
as the term "Authorised Officer" in relation to the Offered
Note Trustee has in the Offered 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 Note Agent, means the persons appointed from time to
time by that Note 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 Note Agent to
the other parties to this Agreement.
"CLASS A-2 IRISH PAYING AGENT" means Deutsche International Corporate
Services (Ireland) Limited or, if Deutsche International Corporate
Services (Ireland) Limited resigns or its appointment is terminated as
paying agent in the Republic of Ireland in respect of the Class A-2
Notes, the person from time to time appointed in its place to perform
the functions of such paying agent under 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.
"IRISH BUSINESS DAY" means a day (other than a Saturday, Sunday or
public holiday in Dublin) on which the Irish Stock Exchange is open.
"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.
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"NOTE AGENT" means a several reference to each Agent and the Class A-2
Irish Paying Agent.
"OFFERED BOOK ENTRY NOTE" has the same meaning as in the Offered Note
Trust Deed.
"OFFERED DEFINITIVE NOTE" has the same meaning as in the Offered Note
Trust Deed.
"OFFERED NOTE" has the same meaning as in the Offered Note Trust Deed.
"OFFERED NOTE IRISH PAYING AGENT" means Deutsche International
Corporate Services (Ireland) Limited or, if Deutsche International
Corporate Services (Ireland) Limited resigns or the appointment is
terminated as paying agent in the Republic of Ireland in respect of the
Offered Notes, the person from time to time appointed in its place to
perform the functions of such paying agent under this Agreement.
"OFFERED NOTE REGISTER" means, as the context requires, the Euro Note
Register, the US Dollar Note Register, or both.
"OFFERED NOTE REGISTRAR" means, as the context requires, the Euro Note
Registrar, the US Dollar Note Registrar, or both.
"OFFERED NOTE TRUST" means the trust of that name constituted by the
Offered Note Trust Deed.
"OFFERED NOTEHOLDERS" has the same meaning as in the Offered Note Trust
Deed.
"PAYING AGENT" means:
(a) except where the context otherwise requires, the Principal
Paying Agent;
(b) the Bank of New York, London Branch until it resigns or its
appointment is terminated as paying agent;
(c) if an application is made to admit the Offered Notes to the
Daily Official List of the Irish Stock Exchange, the Offered
Note Irish Paying Agent; and
(d) each other person from time to time appointed hereunder to
perform the functions of a paying agent, but does not include
the Class A-2 Irish 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 Offered
Note Conditions.
"SERIES SUPPLEMENT" means a Series Supplement dated on or about the
date of this Agreement 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
2006-1G 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 Offered 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;
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(b) the Euro Note Registrar, means the offices of the Euro Note
Registrar as specified in the Offered 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 Offered Note Conditions or otherwise under this
Agreement as the office at which payments in respect of the
Offered 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 Offered 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 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;
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(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
(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
5
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).
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 Offered 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, xxxxxx 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 Quarterly Distribution
Date, pay to or to the
6
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 Quarterly 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 Quarterly Distribution
Date in respect of the Class A-3 Notes,
in each case, under the Offered 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 subject to clause 6, the Paying Agents will pay or cause to be paid
to the Offered Noteholders on behalf of the Issuer on each Quarterly
Distribution Date the relevant amounts of principal and interest due in
respect of the Offered Notes in accordance with this Agreement and the
Offered Note Conditions.
3.3 METHOD OF PAYMENT FOR OFFERED BOOK-ENTRY NOTES
The Principal Paying Agent will cause all payments of principal or
interest (as the case may be) due in respect of Offered Book-Entry
Notes to be made to the relevant Depository or, if applicable, to that
Depository's nominee in whose name Offered 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 Offered Note Conditions.
3.4 METHOD OF PAYMENT FOR OFFERED DEFINITIVE NOTES
The Paying Agents will cause all payments of principal or interest (as
the case may be) due in respect of Offered Definitive Notes to be made
in accordance with Condition 8.1 of the Offered 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
Offered 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 Offered Notes required to be made
pursuant to the Offered 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
7
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
Offered Notes as provided in this clause 3.
(b) (NOTICE): If the Principal Paying Agent does not receive on a
Quarterly Distribution Date the full amount of principal and
interest then payable on any Offered Note in accordance with
the Offered 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 Offered 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 Offered Note Conditions, to the Offered
Noteholders that it has received the full amount.
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 Offered 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 Quarterly 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 Offered 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
Offered Note Trustee and the Offered Noteholders all sums held by such
Paying Agent for the payment of principal and interest with respect to
Offered Notes until such sums are paid to the Offered Note Trustee or
the applicable Offered Noteholders in accordance with the Offered Note
Trust Deed or the Offered 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.
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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 Offered Notes in respect of moneys payable by it under
this Agreement.
3.12 HOLDERS OF OFFERED 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) (OFFERED BOOK-ENTRY NOTES): who is, while an Offered
Book-Entry Note remains outstanding, the registered owner of
that Offered Book-Entry Note as recorded in the applicable
Offered Note Register as the absolute owner of that Offered
Book-Entry Note and as the person entitled to receive payments
of principal or interest (as applicable) and each person shown
in the records of the applicable Depository as the holder of
any Offered Note represented by that Offered Book-Entry Note
will be entitled to receive from the registered owner of that
Offered Book-Entry Note any payment so made only in accordance
with the respective rules and procedures of that Depository;
(b) (OFFERED DEFINITIVE NOTES): who is the registered owner of any
Offered Definitive Note as recorded in the applicable Offered
Note Register as the absolute owner or owners of that Offered
Definitive Note (whether or not that Offered 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) (OFFERED NOTE TRUSTEE): who, when an Offered Book-Entry Note
in respect of any Offered Note is no longer outstanding but
Offered Definitive Notes in respect of the Offered Notes have
not been issued, is for the time being the Offered Note
Trustee, as the person entrusted with the receipt of principal
or interest, as applicable, on behalf of the relevant Offered
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 Offered Note becoming void
under the Offered 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 Offered 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 OFFERED NOTE REGISTRARS): promptly notify the
applicable Offered Note
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Registrar of each payment made by it, or at its direction, to
Offered Noteholders in respect of the Offered Notes;
(b) (RECORDS): keep a full and complete record of each payment
made by it, or at its direction, to Offered Noteholders and
provide copies of such records to the Issuer, the Manager, the
Offered Note Trustee or the applicable Offered Note Registrar
upon request; and
(c) (DELIVER): promptly deliver to the applicable Offered Note
Registrar any Offered Notes surrendered to it pursuant to
Condition 8.2 of the Offered 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 Offered 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 Offered 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 Offered Notes are redeemed (or deemed
to be redeemed) in full in accordance with the Offered 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 Offered Note
Trustee, the Principal Paying Agent and the Currency Swap Provider
thereof.
4.4 OFFERED 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 Offered Notes, or calculate a Class A-1 Interest
Amount or Class A-3 Interest Amount (each as defined in the Offered
Note Conditions), the Offered 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 Offered Note Conditions. In doing so, the Offered
Note Trustee will apply the provisions of Condition 6 of the Offered
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 Offered Notes and the Currency Swap Agreement.
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5. APPOINTMENT AND DUTIES OF THE OFFERED NOTE REGISTRARS
5.1 OFFERED 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 Agreement and the Euro
Note Registrar hereby accepts that appointment.
5.2 OFFERED 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 Offered Note Registrar may prescribe, that Offered
Note Registrar must keep a full and complete record of:
(a) (OFFERED NOTEHOLDER DETAILS): the name, address and, where
applicable, taxation, social security or other identifying
number of each Offered Noteholder, the details of the Offered
Notes held by that Offered Noteholder and the details of the
account to which any payments due to the Offered Noteholder
are to be made in each case as notified by that Offered
Noteholder from time to time;
(b) (EXCHANGE ETC. OF OFFERED NOTES): the issue and any exchange,
transfer, replacement, redemption (in whole or part) or
cancellation of an Offered Note;
(c) (PAYMENTS): all payments made in respect of the Offered 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
Offered 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 Offered Note Registrar
considers appropriate or desirable.
5.3 TRANSFER OR EXCHANGE OF OFFERED NOTES
Offered Notes held by an Offered Noteholder may be transferred or may
be exchanged for other Offered 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 Offered Noteholder upon:
(a) (SURRENDER AND INSTRUMENT OF TRANSFER OR EXCHANGE): the
surrender of the Offered 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 Offered Notes or otherwise in a form
satisfactory to the applicable Offered Note Registrar duly
executed by the Offered Noteholder, or its attorney duly
authorised in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of
that Offered Note Registrar which requirements include
membership of, or participation in, STAMP or such other
"signature guarantee program" as may be determined by that
Offered Note Registrar in addition to, or in substitution for,
STAMP, all in accordance with the
11
Exchange Act; and
(b) (OTHER DOCUMENTS): the provision of such other documents as
that Offered Note Registrar may reasonably require,
to the applicable Offered Note Registrar at a Specified Office of that
Offered Note Registrar.
5.4 REPLACEMENT OF LOST OR XXXXXXXXX OFFERED NOTES
If any Offered 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 Offered Notes of the same class in any
authorised denominations, and a like Invested Amount, upon surrender to
the applicable Offered Note Registrar of the Offered Notes to be
replaced (where the Offered Notes have been mutilated or defaced) at a
Specified Office of that Offered Note Registrar, the provision of such
evidence and indemnities as that Offered Note Registrar or the Issuer
may reasonably require and payment of that Offered 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 OFFERED NOTES
Subject to this Deed, upon compliance by the relevant Offered
Noteholder with the provisions of clauses 5.3 or 5.4, as applicable, in
relation to the transfer, exchange or replacement of any Offered Notes:
(a) (ADVISE ISSUER): the applicable Offered Note Registrar must
within 3 Business Days so advise the Issuer and the Offered
Note Trustee (if it is not the Offered Note Registrar) in
writing and provide details of the new Offered Notes to be
issued in place of those Offered Notes;
(b) (EXECUTION AND AUTHENTICATION): the Issuer must, within 3
Business Days of such advice, execute and deliver to the
Offered Note Trustee for authentication in the name of the
relevant Offered Noteholder or the designated transferee or
transferees, as the case may be, one or more new Offered Notes
of the same class in any authorised denominations, and a like
Invested Amount as those Offered Notes (in each case as
specified by the applicable Offered Note Registrar) and the
Offered Note Trustee must within 3 Business Days of receipt of
such executed Offered Notes authenticate them and (if it is
not that Offered Note Registrar) deliver those Offered Notes
to that Offered Note Registrar; and
(c) (DELIVERY TO OFFERED NOTEHOLDER): the applicable Offered Note
Registrar must, within 3 Business Days of receipt of such new
Offered Notes (or authentication of such Offered Notes if that
Offered Note Registrar is the Offered Note Trustee), forward
to the relevant Offered Noteholder (being the transferee in
the case of a transfer of an Offered Note) such new Offered
Notes.
5.6 NO CHARGE FOR TRANSFER OR EXCHANGE
No service charge may be made to an Offered Noteholder for any transfer
or exchange of Offered Notes, but the applicable Offered Note Registrar
may require payment by the Offered 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 Offered Notes.
5.7 RESTRICTED PERIOD
Notwithstanding the preceding provisions of this clause 5, an Offered
Note Registrar need not register transfers or exchanges of Offered
Notes, and the Issuer is not required to execute nor the Offered Note
Trustee to authenticate any Offered Notes, for a period of 30 days
preceding
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the due date for any payment with respect to the Offered Notes or for
such period, not exceeding 30 days, as is specified by the Offered Note
Trustee prior to any meeting of Relevant Investors, which includes
Offered Noteholders, under the Master Trust Deed or prior to any
meeting of Voting Secured Creditors, which includes Offered
Noteholders, under the Security Trust Deed.
5.8 CANCELLATION OF OFFERED NOTES
Each Offered Note Registrar must cancel or destroy all Offered Notes
that have been surrendered to it for transfer, exchange or replacement
(including any Offered Book Entry Notes surrendered pursuant to clause
3.4(b) of the Offered Note Trust Deed) or surrendered to a Paying Agent
for redemption and delivered to that Offered Note Registrar and must,
upon request, provide a certificate to the Issuer, the Offered Note
Trustee or the Manager with the details of all such Offered Notes.
5.9 PROVISION OF INFORMATION AND INSPECTION OF REGISTERS
Each Offered Note Registrar must:
(a) (INFORMATION): provide to the Issuer, the Manager, the Offered
Note Trustee and each other Agent such information as is
contained in the Offered 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 Offered Note Register maintained by it:
(i) available for inspection or copying by the Issuer,
the Manager, the Offered Note Trustee and each other
Agent or their agents or delegates; and
(ii) available for inspection by each applicable Offered
Noteholder but only in respect of information
relating to that Offered Noteholder,
at one of that Offered Note Registrar's Specified Offices during local
business hours.
5.10 CORRECTNESS OF REGISTER AND INFORMATION
The Issuer, the Offered Note Trustee, the Manager and each Agent (other
than each Offered Note Registrar) may accept the correctness of an
Offered Note Register and any information provided to it by an Offered
Note Registrar and is not required to enquire into its authenticity.
None of the Issuer, the Offered Note Trustee, the Manager or any Agent
(including each Offered Note Registrar) is liable for any mistake in an
Offered 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 Offered 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
Offered Note Registrars, the Offered 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
Offered Notes other than the registered Offered Noteholder's absolute
right to the entirety of them and the receipt of a registered Offered
Noteholder is a good discharge to the Issuer, the Manager, the Offered
Note Trustee and each Agent.
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5.12 RECTIFICATION OF AN OFFERED NOTE REGISTER
If:
(a) (ENTRY OMITTED): an entry is omitted from an Offered Note
Register;
(b) (ENTRY MADE OTHERWISE THAN IN ACCORDANCE WITH THIS DEED): an
entry is made in an Offered Note Register otherwise than in
accordance with this Agreement;
(c) (WRONG ENTRY EXISTS): an entry wrongly exists in an Offered
Note Registrar;
(d) (ERROR OR DEFECT EXISTS IN REGISTER); there is an error or
defect in any entry in an Offered Note Register; or
(e) (DEFAULT MADE): default is made or unnecessary delay takes
place in entering in an Offered Note Register that any person
has ceased to be the holder of Offered Notes,
then the applicable Offered Note Registrar may rectify the same.
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6. OFFERED 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 Offered Definitive
Notes have not been issued when required in accordance with the Offered
Note Trust Deed, the Offered 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 Offered Note
Trustee on the terms and conditions of this
Agreement in relation to payments to be made
by or on behalf of the Offered Note Trustee
under the terms of the Offered Note Trust
Deed, except that the Offered 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
Offered Note Trustee on the trust of the
Offered Note Trust Deed and which is
available to be applied by the Offered Note
Trustee for that purpose; and
B. hold all Offered Notes, and all amounts,
documents and records held by them in
respect of the Offered Notes, on behalf of
the Offered Note Trustee; or
(ii) to deliver up all Offered Notes and all amounts,
documents and records held by them in respect of the
Offered Notes, to the Offered Note Trustee or as the
Offered 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 Offered Notes to the order of the Offered 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 Offered Note Trust
Deed will not apply.
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6.2 GOOD DISCHARGE TO ISSUER
The payment by or on behalf of the Issuer of its payment obligations on
each Quarterly Distribution Date under the Series Supplement and the
Offered Note Conditions to the Offered 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 Offered Note Trustee
during the period it is required to make payments to the Offered Note
Trustee under clause 6.1.
6.3 CHANGE OF AUTHORISED OFFICERS
The Offered 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 Offered Note Trustee.
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7. REDEMPTION OF OFFERED NOTES
7.1 PART REDEMPTION OF OFFERED NOTES ON QUARTERLY DISTRIBUTION DATES
(a) (MANAGER TO MAKE DETERMINATIONS ETC): Two Business Days prior
to each Quarterly Distribution Date, the Manager will make the
determinations referred to in Condition 7.11(a) of the Offered
Note Conditions in relation to that Quarterly Distribution
Date and will give to the Issuer, the Offered Note Trustee,
the Principal Paying Agent, the Agent Bank, each Offered Note
Registrar and the Irish Stock Exchange the notifications, and
will cause to be made to the Offered Noteholders the
publication, required by Condition 7.11(b) of the Offered 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 Offered Note Conditions it must forthwith advise the
Offered Note Trustee and the Agent Bank and such
determinations must be made by the Agent Bank, or failing the
Agent Bank, by the Offered Note Trustee in accordance with
such Condition 7.11(c) of the Offered 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 Offered Book-Entry Notes are
outstanding, on receipt of a notification under Condition
7.11(b) of the Offered 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 Offered 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 Offered
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 Offered Notes prior to the
Scheduled Maturity Date (as defined in the Offered Note
Conditions) pursuant to Conditions 7.3 or 7.4 of the Offered
Note Conditions, the Manager will direct the Issuer to give
the requisite notice to the Sellers, the Offered Note Trustee,
the Principal Paying Agent, each Offered Note Registrar, the
Agent Bank and the Offered Noteholders in accordance with
Conditions 7.3 or 7.4 (as the case may be) of the Offered Note
Conditions and stating the date on which such Offered 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 Offered
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 Offered Book-Entry Note to be redeemed,
the amount of principal to be repaid in relation to each
Offered Book-Entry Note and the date on which the Offered
Book-Entry Notes are to be redeemed.
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8. GENERAL AGENT MATTERS
8.1 NOTICES TO OFFERED NOTEHOLDERS
(a) (NOTICES TO BE GIVEN BY OFFERED NOTE REGISTRARS): At the
request of the Issuer, the Offered Note Trustee, the Manager,
the Security Trustee or any other Agent, and at the expense of
the Issuer, each Offered Note Registrar will arrange for the
delivery of all notices and the Quarterly Servicing Report to
the applicable Offered Noteholders in accordance with the
Offered Note Conditions.
(b) (COPY TO OFFERED NOTE TRUSTEE): Each Offered Note Registrar
will promptly send to the Offered Note Trustee one copy of the
form of every notice given to the applicable Offered
Noteholders in accordance with the Offered Note Conditions
(unless such notice is given at the request of the Offered
Note Trustee).
An Offered 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 Offered 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:
(a) (OFFERED NOTE REGISTRAR): each Offered Note Registrar
sufficient copies of all documents required by the Offered
Note Conditions or the Offered Note Trust Deed to be available
to the applicable Offered Noteholders; and
(b) (OFFERED NOTE IRISH PAYING AGENT): the Offered Note Irish
Paying Agent and the Class A-2 Irish Paying Agent, copies of
all documents required by the listing rules of the Irish Stock
Exchange to be available to the applicable Offered Noteholders
or Class A-2 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 Offered 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 Offered Note Conditions, the
Issuer must give notice to the Principal Paying Agent, the Offered Note
Trustee and the Offered Noteholders in accordance with Condition 11.1
of the Offered 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 Offered Note Trustee such information as
they require to enable each of them to comply with the requirement.
8.4 INFORMATION AND FORMS
The Issuer and the Manager each severally covenants in favour of each
Agent that it will, following a request by an Agent, provide to that
Agent, as that Agent may reasonably require to enable it to perform its
duties and functions under this Agreement, such information, forms and
other documents that are in the possession of the Issuer or the
Manager, as the case may be, or which it is otherwise entitled to
obtain from any person.
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9. INDEMNITY
9.1 INDEMNITY BY ISSUER
Subject to clause 15, the Issuer undertakes to indemnify each Note
Agent and its directors,
16
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 Note Agent under this Agreement except as
may result from its fraud, negligence or wilful 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 Note Agent pursuant to clause 10.
9.2 INDEMNITY BY NOTE AGENT
Each Note 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 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 Offered 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, Offered 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 Offered 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
Offered Notes).
10.2 RESIGNATION
Subject to this clause 10, an Agent may resign its appointment under
this Agreement at any
17
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 Offered Notes).
10.3 LIMITATION OF APPOINTMENT AND TERMINATION
Notwithstanding clauses 10.1 and 10.2:
(a) (PRINCIPAL PAYING AGENT AND OFFERED NOTE REGISTRARS): the
resignation by, or the termination of, the appointment of the
Principal Paying Agent or an Offered Note Registrar will not
take effect until a new Principal Paying Agent or Offered Note
Registrar, as the case may be, approved in writing by the
Offered Note Trustee has been appointed on terms previously
approved in writing by the Offered 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 Offered Note Trustee
and appointed on terms previously approved in writing by the
Offered 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) (OFFICE OF PAYING AGENT IN THE REPUBLIC OF IRELAND): so long
as the Offered Notes are listed on the Daily Official List of
the Irish Stock Exchange and the listing rules of the Irish
Stock Exchange require the appointment of a paying agent which
has an office in the Republic of Ireland as a condition of
such listing, the resignation by, or the termination of the
appointment of, the Offered Note Irish Paying Agent will not
take effect if, as a result of the resignation or termination,
there would not be a Paying Agent which has an specified
office in the Republic of Ireland;
(e) (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
(f) (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
18
for payment of principal or interest in respect of any Offered Note and
must deliver to the successor Paying Agent all records maintained by it
and all documents (including any Offered Notes) held by it pursuant to
this Agreement.
10.5 RECORDS HELD BY AN OFFERED NOTE REGISTRAR
If the appointment of an Offered Note Registrar is terminated, that
Offered Note Registrar must, on the date on which that termination
takes effect, deliver to its successor Offered Note Registrar the
applicable Offered Note Register and all records maintained by it and
all documents (including any applicable Offered Notes) held by it
pursuant to this Agreement.
10.6 SUCCESSOR TO PRINCIPAL PAYING AGENT, PAYING AGENT, AGENT BANK OR AN
OFFERED 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 Offered Note Registrar of an instrument
effecting the appointment of that successor Principal Paying
Agent, Paying Agent, Agent Bank or Offered Note Registrar that
successor Principal Paying Agent, Paying Agent, Agent Bank or
Offered 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 predecessor as if originally named as
Principal Paying Agent, Paying Agent, Agent Bank or Offered
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
Offered Note Registrar was appointed.
(b) (MERGER): Any corporation:
(i) into which the Principal Paying Agent, a Paying
Agent, the Agent Bank or an Offered Note Registrar is
merged;
(ii) with which the Principal Paying Agent, a Paying
Agent, the Agent Bank or an Offered 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 Offered Note Registrar is a party; or
(iv) to which the Principal Paying Agent, a Paying Agent,
the Agent Bank or an Offered 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 Offered 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 OFFERED NOTEHOLDERS
The Manager on behalf of the Issuer will, within 5 days of:
19
(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 Offered Noteholders notice of the termination, appointment
or resignation in accordance with Condition 11.1 of the Offered 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 Offered 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
Offered Note Trustee and the other Agents not less than 30
days' prior written notice of that change, giving the address
of the new Specified 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 Offered Notes.
(b) (NOTICE TO OFFERED 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 Offered
Noteholders notice in accordance with Condition 11.1 of the
Offered 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.
--------------------------------------------------------------------------------
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 Offered 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 Offered 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.
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11.4 ENTITLED TO DEAL
An Agent is not precluded from acquiring, holding or dealing in any
Offered 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 default or
negligence) will any Agent be liable to account to the Issuer or any
person entitled to receive amounts of principal or interest on the
Offered Notes for any profit made or fees or commissions received in
connection with this agreement or any Offered 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. An Agent is not required to provide 5 days prior notice
of the consultation specified above if, in the reasonable opinion of
that Agent, to do so would be contrary to the performance by it of its
obligations under this Agreement, provided that such Agent must provide
written notice to the Issuer and the Manager as soon as practicable
after that consultation.
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 Offered Note Conditions and no implied duties or
obligations (other than general laws as to agency) will be read into
this Agreement or the Offered 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 Offered Noteholder such
information as may be reasonably required to enable such Offered
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.
--------------------------------------------------------------------------------
12. FEES AND EXPENSES
12.1 PAYMENT OF FEE
The Issuer will pay to each Note Agent during the period that any of
the Offered Notes or the Class A-2 Notes remain outstanding the
administration fee separately agreed by that Note Agent and the Issuer.
If the appointment of a Note Agent is terminated under this Agreement,
the Note Agent must refund to the Issuer that proportion of the fee (if
any) which relates to the period during which the Note Agent's
appointment is terminated.
12.2 PAYMENT OF EXPENSES
The Issuer must pay or reimburse to each Note Agent all reasonable
costs, expenses, charges, stamp duties and other Taxes and liabilities
properly incurred by that Note Agent in the performance of the
obligations of that Note Agent under this Agreement including, without
limitation, all costs and expenses (including legal costs and expenses)
incurred by that Note
21
Agent in the enforcement of any obligations under this Agreement.
Nothing in this clause 12.2 entitles or permits a Note Agent to be
reimbursed or indemnified for general overhead costs and expenses
(including, without limitation, rents and any amounts payable by that
Note Agent to its employees in connection with their employment)
incurred directly or indirectly in connection with the business
activities of that Note 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 Note 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
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 FEES ARE EXPENSES OF THE SERIES TRUST
Notwithstanding any other provision of this Agreement, the fees
referred to in clause 12.1 (including any value added tax on such fees)
and amounts payable by the Issuer under clause 12.2 are an Expense of
the Series Trust and will be paid in accordance with the Series
Supplement.
12.7 TIMING OF PAYMENTS
All payments by the Issuer to a Note Agent under this clause 12 are
payable on the first Quarterly Distribution Date following demand by
that Note Agent from funds available for this purpose in accordance
with the Series Supplement.
--------------------------------------------------------------------------------
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 Offered 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;
22
(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.
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.
--------------------------------------------------------------------------------
14. APPOINTMENT OF CLASS A-2 IRISH PAYING AGENT
14.1 APPOINTMENT
The Issuer, at the direction of the Manager, hereby appoints the Class
A-2 Irish Paying Agent as the initial paying agent in relation to the
Class A-2 Notes. The appointment is made to fulfil the requirement
under the listing rules of the Irish Stock Exchange as a condition of
listing the Class A-2 Notes on the Daily Official List of the Irish
Stock Exchange. The Class A-2 Irish Paying Agent will have only such
duties, obligations and responsibilities as may from time to time be
agreed in writing between the Issuer, the Manager and the Class A-2
Irish Paying Agent and will have no other duties, obligations or
responsibilities under this Agreement other than as provided in this
clause 14 and clause 9.2. The Class A-2 Irish Paying Agent xxxxxx
accepts its appointment and agrees that during the term of its
appointment it will maintain an office in the Republic of Ireland. A
reference to an Agent in clauses 8.4, 11.4 and 11.5, and to a Paying
Agent in clause 10.6, includes a reference to the Class A-2 Irish
Paying Agent.
14.2 RESIGNATION AND TERMINATION
The Issuer, at the direction of the Manager, may terminate the
appointment of the Class A-2
23
Irish Paying Agent under this Agreement at any time by giving written
notice to the Class A-2 Irish Paying Agent (copied to the Manager) to
that effect. The Class A-2 Irish Paying Agent may resign its
appointment under this Agreement at any time by giving to the Issuer
and the Manager not less than 90 days' written notice to that effect.
The termination of the appointment or the retirement of the Class A-2
Irish Paying Agent will not have any effect until a replacement agent
is appointed with an office in the Republic of Ireland for so long as
the listing rules of the Irish Stock Exchange require such a paying
agent as a condition of listing the Class A-2 Notes on the Daily
Official List of the Irish Stock Exchange.
--------------------------------------------------------------------------------
15. ISSUER'S LIMITATION OF LIABILITY
15.1 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 clause 15.3) 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.
15.2 CLAIMS AGAINST ISSUER
The parties other than the Issuer may not sue 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).
15.3 BREACH OF TRUST
The provisions of this clause 15 will not apply to any obligation or
liability of the Issuer to the extent that it is not satisfied because
under the Master Trust Deed, the Series Supplement or any other
Transaction Document or by operation of law there is a reduction in the
extent of the Issuer's indemnification out of the Assets of the Series
Trust as a result of the Issuer's fraud, negligence or wilful default.
15.4 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
15.3 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.
15.5 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 15.3.
24
15.6 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 15 or
otherwise in a manner satisfactory to the Issuer in its absolute
discretion.
--------------------------------------------------------------------------------
16. GENERAL
16.1 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.
16.2 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.
16.3 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.
16.4 SURVIVAL OF INDEMNITIES
The indemnities contained in this Agreement are continuing, and survive
the termination of this Agreement.
16.5 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 Offered Notes.
16.6 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.
16.7 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,
25
are hereby expressly waived, negatived and excluded.
16.8 AMENDMENTS
The parties to this Agreement may only amend this Agreement in
accordance with clause 33.1(b) of the Series Supplement.
16.9 GOVERNING LAW
This Agreement is governed by and must be construed in accordance with
the laws of the Australian Capital Territory.
16.10 JURISDICTION
Each party irrevocably and unconditionally:
(a) (SUBMISSIONS TO JURISDICTION): submits to the non-exclusive
jurisdiction of the courts of the Australian Capital
Territory;
(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.
16.11 COUNTERPARTS
This Agreement may be executed in a number of counterparts and all such
counterparts taken together will constitute one and the same
instrument.
16.12 LIMITATION OF OFFERED NOTE TRUSTEE'S LIABILITY
The Offered Note Trustee is a party to this Agreement in its capacity
as trustee of the Offered Note Trust. The liability of the Offered Note
Trustee under this Agreement is limited in the manner and to the same
extent as under the Offered Note Trust Deed.
16.13 CONTRA PROFERENTEM
Each provision of this Agreement will be interpreted without
disadvantage to the party who (or whose representative) drafted that
provision.
16.14 KNOW YOUR CUSTOMER
Subject to any confidentiality, privacy or general trust law
obligations owed by The Bank of New York to Offered Noteholders or by
Perpetual Trustee Company Limited to Noteholders and any applicable
confidentiality or privacy laws, each party ("INFORMATION PROVIDER")
agrees to provide any information and documents reasonably required by
another party for that other party to comply with any applicable
anti-money laundering or counter-terrorism financing laws including,
without limitation, any laws imposing "know your customer" or other
identification checks or procedures on a party, but only to the extent
that such information is in the possession of, or otherwise readily
available to, the Information Provider. Any party may decline to
perform any obligation under the Transaction Documents to the extent
that it forms the view, in its reasonable opinion, that notwithstanding
that it has taken all reasonable steps to comply with such anti-money
26
laundering or counter-terrorism financing laws, it is required to
decline to perform those obligations under any such laws.
16.15 COMPLIANCE WITH REGULATION AB
Each party acting in a certain capacity under this Agreement
acknowledges and agrees with the Manager that to the extent that party
agrees with the Manager that it is "participating in the servicing
function" in relation to the Series Trust within the meaning of Item
1122 of Regulation AB, clauses 16.31(b) and (d) of the Series
Supplement will apply to this Agreement as if references to "the
Servicer" in those clauses were references to the relevant party acting
in that capacity and the definition of "Subcontractor" in clause 1.1 of
the Series Supplement will be construed accordingly.
27
EXECUTED as an agreement.
SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED
ABN 42 000 001 007
by ----------------------------------------
its Attorney under a Power of
Attorney dated and who declares Signature of Attorney
that he or she has not received any
notice of the revocation of such
Power of Attorney, in the presence
of:
----------------------------------- ----------------------------------------
Signature of Witness Name of Attorney in full
-----------------------------------
Name of Witness in full
SIGNED for and on behalf of
SECURITISATION ADVISORY SERVICES
PTY LIMITED ABN 88 064 133 946 ----------------------------------------
by
its Attorney under a Power of Signature of Attorney
Attorney dated and who declares
that he or she has not received any
notice of the revocation of such
Power of Attorney, in the presence
of:
-----------------------------------
Signature of Witness
-----------------------------------
Name of Witness in full
1
SIGNED for THE BANK OF NEW YORK by
its Authorised Signatory: ----------------------------------------
Authorised Signatory
-----------------------------------
Signature of Witness
-----------------------------------
Name of Witness in full
SIGNED for THE BANK OF NEW YORK,
LONDON BRANCH by its Authorised
Signatory: ----------------------------------------
Authorised Signatory
-----------------------------------
Signature of Witness
-----------------------------------
Name of Witness in full
2
SIGNED for and on behalf of
DEUTSCHE INTERNATIONAL CORPORATE
SERVICES (IRELAND) LIMITED ----------------------------------------
by
its Attorney under a Power of Signature of Attorney
Attorney dated and who declares
that he or she has not received any
notice of the revocation of such
Power of Attorney, in the presence
of:
-----------------------------------
Signature of Witness
-----------------------------------
Name of Witness in full
3
