Exhibit 4.5
Agency Agreement
EXHIBIT 4.5
[LETTERHEAD OF XXXXXXX XXX]
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Perpetual Trustee Company Limited
ABN 42 000 001 007
Issuer
Securitisation Advisory Services Pty Limited
ABN 88 064 133 946
Manager
The Bank of New York, New York Branch
US Dollar Note Trustee
The Bank of New York, New York Branch
US Dollar Note Registrar
The Bank of New York, New York Branch
Principal Paying Agent
The Bank of New York, New York Branch
Agent Bank
The Bank of New York, London Branch
Paying Agent
Series 2002-1G Medallion Trust
Agency Agreement
[LETTERHEAD OF XXXXXXX XXX]
Lawyers
Levels 23-35 No 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
XX Xxx X0 Xxxxxxxxx Xxxxxx Xxxxxx XXX 0000 DX 000 Xxxxxx
xxx.xxxxxxxxxx.xxx
Tel + 00 0 0000 0000 Fax + 00 0 0000 0000
Our xxx - 000/000/00000000 Xxxxxxx Xxx Xxxxxxxx
Xxxxxx o Melbourne o Brisbane o Perth o Canberra o Darwin
Liability limited by the Solicitors' Limitation of Liability Scheme
approved under the Professional Standards Act 1994 (NSW)
Table of Contents
1. Definitions and interpretation................................................................... 2
1.1 Definitions.............................................................................. 2
1.2 Series Supplement and Master Trust Deed Definitions...................................... 3
1.3 Interpretation........................................................................... 4
1.4 Issuer Capacity.......................................................................... 5
1.5 Transaction Document..................................................................... 5
1.6 Incorporated Definitions and other Transaction Documents and
provisions............................................................................... 5
2. Appointment of Paying Agents..................................................................... 6
2.1 Appointment.............................................................................. 6
2.2 Several Obligations of Paying Agents..................................................... 6
3. Payments......................................................................................... 6
3.1 Payment by Issuer........................................................................ 6
3.2 Payments by Paying Agents................................................................ 6
3.3 Method of Payment for Class A-1 Book-Entry Notes......................................... 6
3.4 Method of Payment for Class A-1 Definitive Notes......................................... 6
3.5 Non-Payment.............................................................................. 6
3.6 Late Payment............................................................................. 7
3.7 Reimbursement............................................................................ 7
3.8 Payment under Currency Swaps............................................................. 7
3.9 Principal Paying Agent holds funds on trust.............................................. 7
3.10 Principal Paying Agent may deal with funds............................................... 8
3.11 No Set-Off............................................................................... 8
3.12 Holders of Class A-1 Notes............................................................... 8
3.13 Repayment of Moneys...................................................................... 8
3.14 Paying Agents to Record, Notify Payments and Deliver Surrendered
Notes.................................................................................... 9
4. Appointment and duties of the Agent Bank.................. ...................................... 9
4.1 Appointment.............................................................................. 9
4.2 Determinations by Agent Bank............................................................. 9
4.3 Notification by Agent Bank............................................................... 9
4.4 US Dollar Note Trustee to Perform Agent Bank's Function.................................. 9
4.5 Documents to Agent Bank.................................................................. 10
5. Appointment and duties of the US Dollar Note Registrar........................................... 10
5.1 US Dollar Note Registrar................................................................. 10
5.2 US Dollar Note Register to be Kept....................................................... 10
5.3 Transfer or Exchange of Class A-1 Notes.................................................. 10
5.4 Replacement of Lost or Mutilated Class A-1 Notes......................................... 11
5.5 Obligations upon Transfer, Exchange or Replacement of Class A-1
Notes.................................................................................... 11
5.6 No Charge for Transfer or Exchange....................................................... 11
5.7 Restricted Period........................................................................ 11
5.8 Cancellation of Class A-1 Notes.......................................................... 12
5.9 Provision of Information and Inspection of Register...................................... 12
5.10 Correctness of Register and Information.................................................. 12
5.11 Non-recognition of Equitable Interests................................................... 12
5.12 Rectification of US Dollar Note Register................................................. 13
6. US Dollar Note Trustee's Requirements regarding Agents........................................... 13
6.1 Following Enforcement of the Charge or issue of Definitive
i.
Notes.................................................................................... 13
6.2 Good Discharge to Issuer................................................................. 14
6.3 Change of Authorised Officers............................................................ 14
7. Redemption of Class A-1 Notes.................................................................... 14
7.1 Part Redemption of Class A-1 Notes on Distribution Dates................................. 14
7.2 Early Redemption......................................................................... 14
8. General Paying Agent Matters..................................................................... 15
8.1 Notices to Class A-1 Noteholders......................................................... 15
8.2 Copies of Documents for Inspection....................................................... 15
8.3 Notice of any Withholding or Deduction................................................... 15
9. Indemnity........................................................................................ 15
9.1 Indemnity by Issuer...................................................................... 15
9.2 Indemnity by Agent....................................................................... 16
10. Changes in Agents................................................................................ 16
10.1 Appointment and Removal.................................................................. 16
10.2 Resignation.............................................................................. 16
10.3 Limitation of Appointment and Termination................................................ 17
10.4 Payment of amounts held by the Principal Paying Agent.................................... 17
10.5 Records held by US Dollar Note Registrar................................................. 17
10.6 Successor to Principal Paying Agent, Agent Bank, US Dollar Note
Registrar................................................................................ 18
10.7 Notice to Class A-1 Noteholders.......................................................... 18
10.8 Change in Specified Office............................................................... 19
11. Miscellaneous duties and protection.............................................................. 19
11.1 Agents are agents of the Issuer.......................................................... 19
11.2 Agency................................................................................... 19
11.3 Reliance................................................................................. 19
11.4 Entitled to Deal......................................................................... 19
11.5 Consultation............................................................................. 20
11.6 Duties and Obligations................................................................... 20
11.7 Income Tax Returns....................................................................... 20
11.8 Representation by each Agent............................................................. 20
12. Fees and expenses................................................................................ 20
12.1 Payment of Fee........................................................................... 20
12.2 Payment of Expenses...................................................................... 20
12.3 No Other Fees............................................................................ 20
12.4 Payment of Fees.......................................................................... 21
12.5 No Commission............................................................................ 21
12.6 Issuer Personally Liable for Fees........................................................ 21
12.7 Timing of Payments....................................................................... 21
13. Notices.......................................................................................... 21
13.1 Method of Delivery....................................................................... 21
13.2 Deemed Receipt........................................................................... 22
13.3 Communications through Principal Paying Agent............................................ 22
14. Issuer's limitation of liability................................................................. 22
14.1 Limitation on Issuer's Liability......................................................... 22
14.2 Claims against Issuer.................................................................... 22
14.3 Breach of Trust.......................................................................... 22
14.4 Acts or omissions........................................................................ 23
14.5 No Authority............................................................................. 23
ii.
14.6 No obligation............................................................................ 23
15. General.......................................................................................... 23
15.1 Waiver................................................................................... 23
15.2 Written Waiver, Consent and Approval..................................................... 23
15.3 Severability............................................................................. 23
15.4 Survival of Indemnities.................................................................. 23
15.5 Assignments.............................................................................. 24
15.6 Successors and Assigns................................................................... 24
15.7 Moratorium Legislation................................................................... 24
15.8 Amendments............................................................................... 24
15.9 Governing Law............................................................................ 24
15.10 Jurisdiction............................................................................. 24
15.11 Counterparts............................................................................. 24
15.12 Limitation of US Dollar Note Trustee's Liability......................................... 25
iii.
This Agency Agreement made at Sydney on 14 February 2002
Parties Perpetual Trustee Company Limited, ABN 42 000 001 007, a company duly
incorporated in the State of New South Wales and having an office at
Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx, in its capacity as
trustee of the Series Trust (as hereinafter defined) (hereinafter
included in the expression the "Issuer")
Securitisation Advisory Services Pty Limited, ABN 88 064 133 946, a
company duly incorporated in the State of New South Wales and having
an office at Xxxxx 0, 00 Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx (hereinafter
included by incorporation in the expression the "Manager")
The Bank of New York, New York Branch a New York banking corporation
acting through its New York branch at 000 Xxxxxxx Xxxxxx, 00X, Xxx
Xxxx, Xxx Xxxx 00000 as trustee of the US Dollar Note Trust (as
hereinafter defined) (hereinafter included by incorporation in the
expression the "US Dollar Note Trustee")
The Bank of New York, New York Branch a New York banking corporation
acting through its New York branch at 000 Xxxxxxx Xxxxxx, 00X, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter included in the expression the "US
Dollar Note Registrar")
The Bank of New York, New York Branch a New York banking corporation
acting through its New York branch at 000 Xxxxxxx Xxxxxx, 00X, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter included in the expression the
"Principal Paying Agent")
The Bank of New York, New York Branch a New York banking corporation
acting through its New York branch at 000 Xxxxxxx Xxxxxx, 00X, Xxx
Xxxx, Xxx Xxxx 00000 as trustee of the US Dollar Note Trust
(hereinafter included in the expression the "Agent Bank")
The Bank of New York, London Branch a New York banking corporation
acting through its London branch of 00xx xxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxx X00 0XX (hereinafter included in the expression the "Paying
Agent")
Recitals
A. The Issuer, in its capacity as trustee of the Series Trust, proposes to
issue US$1,000,000,000 Class A-1 Mortgage Backed Floating Rate Notes due 17
April 2033 (the "Class A-1 Notes").
B. The Class A-1 Notes will be constituted pursuant to the US Dollar Note
Trust Deed.
C. The Issuer wishes to appoint The Bank of New York, New York Branch as the
initial Principal Paying Agent, the initial US Dollar Note Registrar and
the initial Agent Bank in respect of the Class A-1 Notes and The Bank of
New York, New York Branch 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 in respect of the Class A-1 Notes and The Bank of New
York, London Branch has accepted that appointment on the terms and
conditions of this Agreement.
1.
The parties agree
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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, the US Dollar Note
Registrar, and the Agent Bank.
"Agent Bank" means initially The Bank of New York, New York Branch or, if
The Bank of New York, New York Branch resigns or its appointment is
terminated as the Issuer's reference agent in respect of the Class A-1
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 US Dollar Note Trustee, and the US Dollar Note Registrar, the
Agent Bank and the Principal Paying Agent while these are the same
person as the US Dollar Note Trustee, has the same meaning as the term
"Authorised Officer" in relation to the US Dollar Note Trustee has in
the US Dollar Note Trust Deed;
(c) The Bank of New York, London Branch as Paying Agent means a
responsible officer of the Corporate Trust Administration department
of the Paying Agent; and
(d) any other Agent, means the persons appointed from time to time by that
Agent to act as its Authorised Officers for the purposes of this
Agreement as certified in writing by 2 directors or a director and
secretary of that Agent to the other parties to this Agreement.
"Class A-1 Book Entry Note" has the same meaning as in the US Dollar Note
Trust Deed.
"Class A-1 Definitive Note" has the same meaning as in the US Dollar Note
Trust Deed.
"Class A-1 Note" has the same meaning as in the US Dollar Note Trust Deed.
"Class A-1 Noteholders" has the same meaning as in the US Dollar Note Trust
Deed.
"Issuer" means initially Perpetual Trustee Company Limited or, if Perpetual
Trustee Company Limited retires or is removed as trustee of the Series
Trust under 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.
"Paying Agent" means The Bank of New York, London Branch until it resigns
or its appointment is terminated as paying agent and each other person from
time to time appointed hereunder to perform the functions of a paying agent
and, except where the context otherwise requires, includes the Principal
Paying Agent.
"Principal Paying Agent" means The Bank of New York, New York Branch, or,
if The Bank of New York, New York Branch 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
2.
principal paying agent under this Agreement.
"Quarterly Servicing Report" has the same meaning as in the US Dollar Note
Conditions.
"Series Supplement" means a Series Supplement dated 7 February 2002 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 Series 2002-1G Medallion Trust
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 US Dollar Note Conditions or otherwise
under this Agreement as the offices of the US Dollar Note Registrar
where surrenders of Class A-1 Notes for transfer, exchange,
replacement or redemption will occur and where, in respect of one of
such offices, the US Dollar Note Register will be kept, as varied from
time to time in accordance with this Agreement;
(b) a Paying Agent, means the office of the Paying Agent specified in the
US Dollar Note Conditions or otherwise under this Agreement as the
office at which payments in respect of the Class A-1 Notes will be
made, as varied from time to time in accordance with this Agreement;
and
(c) the Agent Bank, means the office of the Agent Bank specified in the US
Dollar 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.
"Standby Swap Provider" means each Standby Swap Provider from time to time
as defined in the Currency Swap Agreement.
"UCC" means the Uniform Commercial Code of New York.
"US Dollar Note Register" means the register established in accordance with
clause 5.2.
"US Dollar Note Registrar" means The Bank of New York, New York Branch or
if The Bank of New York, New York Branch 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.
"US Dollar Note Trust" means the trust of that name constituted by the US
Dollar Note Trust Deed.
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
3.
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 Recitals;
(c) the expression "person" includes an individual, the estate of an
individual, a body politic, a corporation and a statutory or other
authority or association (incorporated or unincorporated);
(d) a reference to a person includes that person's executors,
administrators, successors, substitutes and assigns, including any
person taking by way of novation;
(e) subject to clause 1.6, a reference to any document or agreement is to
such document or agreement as amended, novated, supplemented, varied
or replaced from time to time;
(f) a reference to any legislation or to any section or provision of any
legislation includes any statutory modification or re-enactment or any
statutory provision substituted for that legislation and all
ordinances, by-laws, regulations and other statutory instruments
issued under that legislation, section or provision;
(g) words importing the singular include the plural (and vice versa) and
words denoting a given gender include all other genders;
(h) a reference to a clause is a reference to a clause of this Agreement;
(i) a reference to "wilful default" in relation to a party means, subject
to clause 1.3(j), any wilful failure by that party to comply with, or
wilful breach by that party of, any of its obligations under any
Transaction Document, other than a failure or breach which:
(i) A. arises as a result of a breach of a Transaction Document by
a person other than:
(1) that party; or
(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,
4.
agents and any other person where that party is liable for the acts or
omissions of such other person under the terms of any Transaction
Document;
(k) where any word or phrase is given a defined meaning, any other part of
speech or other grammatical form in respect of such word or phrase has
a corresponding meaning;
(l) where any day on which a payment is due to be made or a thing is due
to be done under this Agreement is not a Business Day, that payment
must be made or that thing must be done on the immediately succeeding
Business Day;
(m) a reference to the "close of business" on any day is a reference to
5.00 pm on that day;
(n) a reference to time is to local time in Sydney;
(o) subject to clause 13.2, each party will only be considered to have
knowledge or awareness of, or notice of, a thing or grounds to believe
anything by virtue of the officers of that party (or any Related Body
Corporate of that party) having day to day responsibility for the
administration or management of that party's (or a Related Body
Corporate of that party's) obligations in relation to the Series Trust
having actual knowledge, actual awareness or actual notice of that
thing, or grounds or reason to believe that thing (and similar
references will be interpreted in this way); and
(p) a reference to the enforcement of the Charge means that the Security
Trustee appoints (or the Voting Secured Creditors as contemplated by
clause 8.4 of the Security Trust Deed appoint) a Receiver over any
Charged Property, or takes possession of any Charged Property,
pursuant to the Security Trust Deed (expressions used in this clause
have the same meanings as in the Security Trust Deed).
1.4 Issuer Capacity
In this Agreement, except where provided to the contrary:
(a) (References to Issuer): a reference to the Issuer is a reference to
the Issuer in its capacity as trustee of the Series Trust only, and in
no other capacity; and
(b) (References to assets of the Issuer): a reference to the undertaking,
assets, business or money of the Issuer is a reference to the
undertaking, assets, business or money of the Issuer in the capacity
referred to in paragraph (a).
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.
5.
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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 Class A-1 Notes pursuant to the Transaction Documents at their
respective Specified Offices in accordance with the terms and conditions of
the Agreement. The Principal Paying Agent, and each other Paying Agent,
hereby accepts that appointment.
2.2 Several Obligations of Paying Agents
While there is more than one Paying Agent, the obligations of the Paying
Agents under this Agreement are several and not joint.
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3. Payments
3.1 Payment by Issuer
Subject to clause 3.8, the Issuer must not later than 10.00 am (New York
time) on each Distribution Date, pay to or to the order of the Principal
Paying Agent to an account specified by the Principal Paying Agent in same
day funds the amount in US$ as may be required (after taking account of any
money then held by the Principal Paying Agent and available for the
purpose) to be paid on that Distribution Date in respect of the Class A-1
Notes under the US Dollar Note Conditions.
3.2 Payments by Paying Agents
Subject to payment being duly made as provided in clause 3.1 (or the
Principal Paying Agent otherwise being satisfied that the 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 Class A-1 Noteholders on behalf of the
Issuer on each Distribution Date the relevant amounts of principal and
interest due in respect of the Class A-1 Notes in accordance with this
Agreement and the US Dollar Note Conditions.
3.3 Method of Payment for Class A-1 Book-Entry Notes
The Principal Paying Agent will cause all payments of principal or interest
(as the case may be) due in respect of Class A-1 Book-Entry Notes to be
made to the Depository or, if applicable, to its nominee in whose name the
Class A-1 Book-Entry Notes are registered, to the account or accounts
designated by the Depository or, if applicable, that nominee and otherwise
in accordance with Condition 8.1 of the US Dollar Note Conditions.
3.4 Method of Payment for Class A-1 Definitive Notes
The Paying Agents will cause all payments of principal or interest (as the
case may be) due in respect of Class A-1 Definitive Notes to be made in
accordance with Condition 8.1 of the US Dollar 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
6.
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 US Dollar Note
Trustee, the Issuer, the Security Trustee, the Standby Swap Provider
and the Manager if the full amount of any payment of principal or
interest in respect of the Class A-1 Notes required to be made
pursuant to the US Dollar Note Conditions is not unconditionally
received by it or to its order in accordance with this Agreement.
3.6 Late Payment
(a) (Late Payments to be paid in accordance with this Agreement): If any
payment under clause 3.1 is made late but otherwise in accordance with
the provisions of this Agreement, each Paying Agent will make the
payments required to be made by it in respect of the Class A-1 Notes
as provided in this clause 3.
(b) (Notice): If the Principal Paying Agent does not receive on a
Distribution Date the full amount of principal and interest then
payable on any Class A-1 Note in accordance with the US Dollar 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 US Dollar 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 US Dollar Note
Conditions, to the Class A-1 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 US Dollar Note Conditions and this Agreement. The
Issuer will not be responsible for the apportionment of any moneys between
the Principal Paying Agent and the other Paying Agents and a payment to the
Principal Paying Agent of any moneys due to the Paying Agents will operate
as a good discharge to the Issuer in respect of such moneys.
3.8 Payment under Currency Swaps
The payment by the Issuer of its Australian dollar payment obligations
under the Series Supplement on each Distribution Date to each Currency Swap
Provider will be a good discharge of its corresponding US Dollar
obligations under clause 3.1 (but will not relieve the Issuer of any
liability in respect of any default in payment in respect of a Class A-1
Note under any other Transaction Document).
3.9 Principal Paying Agent holds funds on trust
Each Paying Agent will hold in a separate account on trust for the US
Dollar Note Trustee and the Class A-1 Noteholders all sums held by such
Paying Agent for the payment of principal and interest with respect to the
Class A-1 Notes until such sums are paid to the US Dollar Note Trustee or
the Class A-1 Noteholders in accordance with the US Dollar Note Trust Deed
or the US Dollar Note Conditions or repaid under clause 3.13.
7.
3.10 Principal Paying Agent may deal with funds
Subject to the terms of this Agreement, the Principal Paying Agent is
entitled to deal with moneys paid to it under this Agreement in the same
manner as other moneys paid to it as a banker by its customers. The
Principal Paying Agent is entitled to retain for its own account any
interest earned on such moneys, except as required by law.
3.11 No Set-Off
No Paying Agent is entitled to exercise any right of set-off, withholding,
counterclaim or lien against, or make any deduction in any payment to, any
person entitled to receive amounts of principal or interest on the Class
A-1 Notes in respect of moneys payable by it under this Agreement.
3.12 Holders of Class A-1 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) (Class A-1 Book Entry Notes): who is, while a Class A-1 Book-Entry
Note remains outstanding, the registered owner of that Class A-1
Book-Entry Note as recorded in the US Dollar Note Register as the
absolute owner of that Class A-1 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 Depository as the holder
of any Class A-1 Note represented by a Class A-1 Book-Entry Note will
be entitled to receive from the registered owner of that Class A-1
Book-Entry Note any payment so made only in accordance with the
respective rules and procedures of the Depository;
(b) (Class A-1 Definitive Notes): who is the registered owner of any Class
A-1 Definitive Note as recorded in the US Dollar Note Register as the
absolute owner or owners of that Class A-1 Definitive Note (whether or
not that Class A-1 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) (US Dollar Note Trustee): who, when a Class A-1 Book-Entry Note in
respect of any Class A-1 Note is no longer outstanding but Class A-1
Definitive Notes in respect of the Class A-1 Notes have not been
issued, is for the time being the US Dollar Note Trustee, as the
person entrusted with the receipt of principal or interest, as
applicable, on behalf of the relevant Class A-1 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 Class A-1 Note becoming void under the US Dollar
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 US Dollar Note Trustee, by the Issuer
8.
remain unpaid.
3.14 Paying Agents to Record, Notify Payments and Deliver Surrendered Notes
Each Paying Agent must:
(a) (Notify US Dollar Note Registrar): promptly notify the US Dollar Note
Registrar of each payment made by it, or at its direction, to Class
A-1 Noteholders in respect of the Class A-1 Notes;
(b) (Records): keep a full and complete record of each payment made by it,
or at its direction, to Class A-1 Noteholders and provide copies of
such records to the Issuer, the Manager, the US Dollar Note Trustee or
the US Dollar Note Registrar upon request; and
(c) (Deliver): promptly deliver to the US Dollar Note Registrar any Class
A-1 Notes surrendered to it pursuant to Condition 8.2 of the US Dollar
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 Class A-1 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 US Dollar Note Conditions and the Currency Swap
Agreement (in respect of each Class A-1 Currency Swap as defined in the
Currency Swap Agreement) to be performed or made by it until the Class A-1
Notes are redeemed (or deemed to be redeemed) in full in accordance with
the US Dollar 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 US Dollar Note Trustee,
the Principal Paying Agent and the Currency Swap Providers thereof.
4.4 US Dollar Note Trustee to Perform Agent Bank's Function
If the Agent Bank at any time for any reason does not determine the
Interest Rate for the Class A-1 Notes, or calculate a Class A-1 Interest
Amount (each as defined in the US Dollar Note Conditions), the US Dollar
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 US Dollar Note
Conditions. In doing so, the US Dollar Note Trustee will apply the
provisions of Condition 6 of the US Dollar 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
9.
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 Class A-1
Notes and the Currency Swap Agreement.
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5. Appointment and duties of the US Dollar Note Registrar
5.1 US Dollar Note Registrar
The Issuer, at the direction of the Manager, hereby appoints 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.
5.2 US Dollar Note Register to be Kept
The US Dollar Note Registrar must keep a register, at one of its Specified
Offices, in which, subject to such reasonable regulations as the US Dollar
Note Registrar may prescribe, the US Dollar Note Registrar must keep a full
and complete record of:
(a) (Class A-1 Noteholder Details): the name, address and, where
applicable, taxation, social security or other identifying number of
each Class A-1 Noteholder, the details of the Class A-1 Notes held by
that Class A-1 Noteholder and the details of the account to which any
payments due to the Class A-1 Noteholder are to be made in each case
as notified by that Class A-1 Noteholder from time to time;
(b) (Exchange etc. of Class A-1 Notes): the issue and any exchange,
transfer, replacement, redemption (in whole or part) or cancellation
of a Class A-1 Note;
(c) (Payments): all payments made in respect of the Class A-1 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 Class
A-1 Note from time to time (as notified to it by the Manager pursuant
to clause 7.1);
(e) (Other Information): such other information as the Manager reasonably
requires or the US Dollar Note Registrar considers appropriate or
desirable.
5.3 Transfer or Exchange of Class A-1 Notes
Class A-1 Notes held by a Class A-1 Noteholder may be transferred or may be
exchanged for other Class A-1 Notes 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 Class A-1 Noteholder upon:
(a) (Surrender and Instrument of Transfer or Exchange): the surrender of
the Class A-1 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 Class A-1 Notes or
otherwise in a form satisfactory to the US Dollar Note Registrar duly
executed by the Class A-1 Noteholder, or its attorney duly authorised
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the US Dollar Note Registrar
which requirements include membership of, or participation in, STAMP
or such other "signature guarantee program" as may be determined by
the US Dollar Note Registrar in addition to, or in substitution for,
STAMP, all in accordance with the
10.
Exchange Act; and
(b) (Other Documents): the provision of such other documents as the US
Dollar Note Registrar may reasonably require,
to the US Dollar Note Registrar at a Specified Office of the US Dollar Note
Registrar.
5.4 Replacement of Lost or Mutilated Class A-1 Notes
If any Class A-1 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 Class A-1 Notes in any authorised denominations, and a
like Invested Amount, upon surrender to the US Dollar Note Registrar of the
Class A-1 Notes to be replaced (where the Class A-1 Notes have been
mutilated or defaced) at a Specified Office of the US Dollar Note
Registrar, the provision of such evidence and indemnities as the US Dollar
Note Registrar or the Issuer may reasonably require and payment of the US
Dollar 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 Class A-1 Notes
Subject to this Deed, upon compliance by the relevant Class A-1 Noteholder
with the provisions of clauses 5.3 or 5.4, as applicable, in relation to
the transfer, exchange or replacement of any Class A-1 Notes:
(a) (Advise Issuer): the US Dollar Note Registrar must within 3 Business
Days so advise the Issuer and the US Dollar Note Trustee (if it is not
the US Dollar Note Registrar) in writing and provide details of the
new Class A-1 Notes to be issued in place of those Class A-1 Notes;
(b) (Execution and Authentication): the Issuer must, within 3 Business
Days of such advice, execute and deliver to the US Dollar Note Trustee
for authentication in the name of the relevant Class A-1 Noteholder or
the designated transferee or transferees, as the case may be, one or
more new Class A-1 Notes in any authorised denominations, and a like
Invested Amount as those Class A-1 Notes (in each case as specified by
the US Dollar Note Registrar) and the US Dollar Note Trustee must
within 3 Business Days of receipt of such executed Class A-1 Notes
authenticate them and (if it is not the US Dollar Note Registrar)
deliver those Class A-1 Notes to the US Dollar Note Registrar; and
(c) (Delivery to Class A-1 Noteholder): the US Dollar Note Registrar must,
within 3 Business Days of receipt of such new Class A-1 Notes (or
authentication of such Class A-1 Notes if the US Dollar Note Registrar
is the US Dollar Note Trustee), forward to the relevant Class A-1
Noteholder (being the transferee in the case of a transfer of a Class
A-1 Note) such new Class A-1 Notes.
5.6 No Charge for Transfer or Exchange
No service charge may be made to a Class A-1 Noteholder for any transfer or
exchange of Class A-1 Notes, but the US Dollar Note Registrar may require
payment by the Class A-1 Noteholder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
transfer or exchange of Class A-1 Notes.
5.7 Restricted Period
Notwithstanding the preceding provisions of this clause 5, the US Dollar
Note Registrar need not register transfers or exchanges of Class A-1 Notes,
and the Issuer is not required to execute nor the US Dollar Note Trustee to
authenticate any Class A-1 Notes, for a period of 30 days
11.
preceding the due date for any payment with respect to the Class A-1 Notes
or for such period, not exceeding 30 days, as is specified by the US Dollar
Note Trustee prior to any meeting of Relevant Investors, which includes
Class A-1 Noteholders, under the Master Trust Deed or prior to any meeting
of Voting Secured Creditors, which includes Class A-1 Noteholders, under
the Security Trust Deed.
5.8 Cancellation of Class A-1 Notes
The US Dollar Note Registrar must cancel or destroy all Class A-1 Notes
that have been surrendered to it for transfer, exchange or replacement
(including any Class A-1 Book Entry Notes surrendered pursuant to clause
3.4(b) of the US Dollar Note Trust Deed) or surrendered to a Paying Agent
for redemption and delivered to the US Dollar Note Registrar and must, upon
request, provide a certificate to the Issuer, the US Dollar Note Trustee or
the Manager with the details of all such Class A-1 Notes.
5.9 Provision of Information and Inspection of Register
The US Dollar Note Registrar must:
(a) (Information): provide to the Issuer, the Manager, the US Dollar Note
Trustee and each other Agent such information as is contained in the
US Dollar Note Register and is required by them in order to perform
any obligation pursuant to a Transaction Documents;
(b) (Inspection): make the US Dollar Note Register:
(i) available for inspection or copying by the Issuer, the Manager,
the US Dollar Note Trustee and each other Agent or their agents
or delegates; and
(ii) available for inspection by each Class A-1 Noteholder but only in
respect of information relating to that Class A-1 Noteholder,
at one of the US Dollar Note Registrar's Specified Offices during local
business hours.
5.10 Correctness of Register and Information
The Issuer, the US Dollar Note Trustee, the Manager and each Agent (other
than the US Dollar Note Registrar) may accept the correctness of the US
Dollar Note Register and any information provided to it by the US Dollar
Note Registrar and is not required to enquire into its authenticity. None
of the Issuer, the US Dollar Note Trustee, the Manager or any Agent
(including the US Dollar Note Registrar) is liable for any mistake in the
US Dollar 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 the US Dollar 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 US Dollar Note
Registrar, the US Dollar 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 Class A-1 Notes other than the
registered Class A-1 Noteholder's absolute right to the entirety of them
and the receipt of a registered Class A-1 Noteholder is a good discharge to
the Issuer, the Manager, the US Dollar Note Trustee and each Agent.
12.
5.12 Rectification of US Dollar Note Register
If:
(a) (Entry Omitted): an entry is omitted from the US Dollar Note Register;
(b) (Entry made otherwise than in accordance with this Deed): an entry is
made in the US Dollar Note Register otherwise than in accordance with
this Agreement;
(c) (Wrong entry exists): an entry wrongly exists in the US Dollar Note
Registrar;
(d) (Error or defect exists in Register); there is an error or defect in
any entry in the US Dollar Note Register; or
(e) (Default made): default is made or unnecessary delay takes place in
entering in the US Dollar Register that any person has ceased to be
the holder of Class A-1 Notes,
then the US Dollar Note Registrar may rectify the same.
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6. US Dollar 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 Class A-1 Definitive Notes
have not been issued when required in accordance with the US Dollar Note
Trust Deed, the US Dollar 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 US Dollar Note Trustee on the
terms and conditions of this Agreement in relation to
payments to be made by or on behalf of the US Dollar Note
Trustee under the terms of the US Dollar Note Trust Deed,
except that the US Dollar 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
US Dollar Note Trustee on the trust of the US Dollar Note
Trust Deed and which is available to be applied by the US
Dollar Note Trustee for that purpose; and
B. hold all Class A-1 Notes, and all amounts, documents and
records held by them in respect of the Class A-1 Notes, on
behalf of the US Dollar Note Trustee; or
(ii) to deliver up all Class A-1 Notes and all amounts, documents and
records held by them in respect of the Class A-1 Notes, to the US
Dollar Note Trustee or as the US Dollar 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
Class A-1 Notes to the order of the US Dollar 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
13.
6.1(b) of the US Dollar Note Trust Deed will not apply.
6.2 Good Discharge to Issuer
The payment by or on behalf of the Issuer of its payment obligations on
each Distribution Date under the Series Supplement and the US Dollar Note
Conditions to the US Dollar 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 US Dollar Note Trustee during the period it
is required to make payments to the US Dollar Note Trustee under clause
6.1.
6.3 Change of Authorised Officers
The US Dollar 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 US Dollar Note Trustee.
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7. Redemption of Class A-1 Notes
7.1 Part Redemption of Class A-1 Notes on Distribution Dates
(a) (Manager to Make Determinations etc): Two Business Days prior to each
Distribution Date, the Manager will make the determinations referred
to in Condition 7.11(a) of the US Dollar Note Conditions in relation
to that Distribution Date and will give to the Issuer, the US Dollar
Note Trustee, the Principal Paying Agent, the Agent Bank and the US
Dollar Note Registrar the notifications, and will cause to be made to
the Class A-1 Noteholders the publication, required by Condition
7.11(b) of the US Dollar Note Conditions. If the Manager does not at
any time for any reason make the determinations referred to in
Condition 7.11(c) of the US Dollar Note Conditions it must forthwith
advise the US Dollar Note Trustee and the Agent Bank and such
determinations must be made by the Agent Bank, or failing the Agent
Bank, by the US Dollar Note Trustee in accordance with such Condition
7.11(c) of the US Dollar 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 Depository): If any Class A-1 Book-Entry Notes are
outstanding, on receipt of a notification under Condition 7.11(b) of
the US Dollar Note Conditions, the Principal Paying Agent must notify
the Depository of any proposed redemption in accordance with the
Depository's applicable procedures, specifying the principal amount of
each Class A-1 Book-Entry Note to be redeemed and the date on which
the redemption is to occur and must provide a copy to the Depository
of the notification received under Condition 7.11(b) of the US Dollar
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 Class A-1 Notes prior to the Scheduled Maturity
Date (as defined in the US Dollar Note Conditions) pursuant to
Conditions 7.3 or 7.4 of the US Dollar Note Conditions, the Manager
will direct the Issuer to give the requisite notice to the Sellers,
the US Dollar Note Trustee, the Principal Paying Agent, the US Dollar
Note Registrar, the Agent Bank and the Class A-1 Noteholders in
accordance with Conditions 7.3 or 7.4 (as the case may be) of the US
Dollar Note Conditions and stating the date on which such Class A-1
Notes are to be redeemed.
(b) (Notice to Depository): The Principal Paying Agent will, on receipt of
a notice under clause 7.2(a), and if any Class A-1 Book Entry Notes
are outstanding, notify
14.
the Depository of the proposed redemption in accordance with the
Depository's applicable procedures, specifying the Invested Amount and
Stated Amount of each Class A-1 Book-Entry Note to be redeemed, the
amount of principal to be repaid in relation to each Class A-1
Book-Entry Note and the date on which the Class A-1 Book-Entry Notes
are to be redeemed.
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8. General Paying Agent Matters
8.1 Notices to Class A-1 Noteholders
(a) (Notices to be given by US Dollar Note Registrar): At the request of
the Issuer, the US Dollar Note Trustee, the Manager, the Security
Trustee or any other Agent, and at the expense of the Issuer, the US
Dollar Note Registrar will arrange for the delivery of all notices and
the Quarterly Servicing Report to Class A-1 Noteholders in accordance
with the US Dollar Note Conditions.
(b) (Copy to US Dollar Note Trustee): The US Dollar Note Registrar will
promptly send to the US Dollar Note Trustee one copy of the form of
every notice given to Class A-1 Noteholders in accordance with the US
Dollar Note Conditions (unless such notice is given at the request of
the US Dollar Note Trustee).
The US Dollar 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 US Dollar 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 the US Dollar Note Registrar sufficient copies
of all documents required by the US Dollar Note Conditions or the US Dollar
Note Trust Deed to be available to Class A-1 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 Class A-1 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 US Dollar Note Conditions, the Issuer must give notice to the
Principal Paying Agent, the US Dollar Note Trustee and the Class A-1
Noteholders in accordance with Condition 11.1 of the US Dollar 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 US Dollar Note Trustee such information as they require to enable each
of them to comply with the requirement.
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9. Indemnity
9.1 Indemnity by Issuer
Subject to clause 14, the Issuer undertakes to indemnify each Agent and its
directors, officers, employees and controlling persons against all losses,
liabilities, costs, claims, actions, damages, expenses or demands which any
of them may incur or which may be made against any of them as a result of
or in connection with the appointment of or the exercise of the powers and
duties by the Agent under this Agreement except as may result from its
fraud, negligence or default or that of its directors, officers, employees
or controlling persons or any of them, or breach by it of the terms of this
Agreement and notwithstanding the resignation or removal of that Agent
pursuant to clause 10.
15.
9.2 Indemnity by Agent
Each Agent undertakes to indemnify on a several basis the Issuer, the
Manager and each of their respective directors, officers, employees and
controlling persons against all losses, liabilities, costs, claims,
actions, damages, expenses or demands which any of them may incur or which
may be made against any of them as a result of (but not including any
consequential, indirect, punitive or special damages to the extent
resulting from) its default, negligence or bad faith 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 US Dollar 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, US Dollar 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 US Dollar 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 Class A-1 Notes).
10.2 Resignation
Subject to this clause 10, an Agent may resign its appointment under this
Agreement at any time by giving to the Issuer, the Manager, each Rating
Agency and (where the Agent resigning is not the Principal Paying Agent)
the Principal Paying Agent not less than 90 days' written notice to that
effect (which notice must expire not less than 30 days before, any due date
for payment on any Class A-1 Notes).
16.
10.3 Limitation of Appointment and Termination
Notwithstanding clauses 10.1 and 10.2:
(a) (Principal Paying Agent and US Dollar Note Registrar): the resignation
by, or the termination of, the appointment of the Principal Paying
Agent or the US Dollar Note Registrar will not take effect until a new
Principal Paying Agent or US Dollar Note Registrar, as the case may
be, approved in writing by the US Dollar Note Trustee has been
appointed on terms previously approved in writing by the US Dollar
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;
(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 US Dollar
Note Trustee and appointed on terms previously approved in writing by
the US Dollar Note Trustee (in each case, the approval not to be
unreasonably withheld or delayed);
(c) (Specified Office of Paying Agent in New York and London): the
resignation by, or the termination of the appointment of, any Paying
Agent will not take effect if, as a result of the resignation or
termination, there would not be a Paying Agent which has a Specified
Office in New York City or there would not be a Paying Agent which has
a Specified Office in London;
(d) (Specified Office of Agent Bank): the resignation by, or the
termination of the appointment of the Agent Bank will not take effect
until a new Agent Bank having its Specified Office in London or New
York has been appointed; and
(e) (Terms of Appointment of additional Paying Agents): the appointment of
any additional Paying Agent will be on the terms and the conditions of
this Agreement and each of the parties to this Agreement must
co-operate fully to do all further acts and things and execute any
further documents as may be necessary or desirable to give effect to
the appointment of the Paying Agent (which will not, except in the
case of an appointment under clause 10.1(a) or a termination under
clause 10.1(b)(ii), be at the cost of the Issuer or Manager).
10.4 Payment of amounts held by the Principal Paying Agent
If the appointment of the Principal Paying Agent is terminated, the
Principal Paying Agent must, on the date on which that termination takes
effect, pay to the successor Principal Paying Agent any amount held by it
for payment of principal or interest in respect of any Class A-1 Note and
must deliver to the successor Principal Paying Agent all records maintained
by it and all documents (including any Class A-1 Notes) held by it pursuant
to this Agreement.
10.5 Records held by US Dollar Note Registrar
If the appointment of the US Dollar Note Registrar is terminated, the US
Dollar Note Registrar must, on the date on which that termination takes
effect, deliver to the successor US Dollar Note Registrar the US Dollar
Note Register and all records maintained by it and all documents (including
any Class A-1 Notes) held by it pursuant to this Agreement.
17.
10.6 Successor to Principal Paying Agent, Agent Bank, US Dollar Note Registrar
(a) (Appointment and Release): On the execution by the Issuer, the Manager
and any successor Principal Paying Agent, Agent Bank or US Dollar Note
Registrar of an instrument effecting the appointment of that successor
Principal Paying Agent, Agent Bank or US Dollar Note Registrar that
successor Principal Paying Agent, Agent Bank or US Dollar 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, Agent Bank or US Dollar
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, Agent
Bank or US Dollar Note Registrar was appointed.
(b) (Merger): Any corporation:
(i) into which the Principal Paying Agent, Agent Bank or US Dollar
Note Registrar is merged;
(ii) with which the Principal Paying Agent, Agent Bank or US Dollar
Note Registrar is consolidated;
(iii)resulting from any merger or consolidation to which the
Principal Paying Agent, Agent Bank or US Dollar Note Registrar is
a party; or
(iv) to which the Principal Paying Agent, Agent Bank or US Dollar 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, Agent Bank or US
Dollar 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, Agent Bank or US Dollar Note Registrar, as the case may
be, will be references to that corporation.
10.7 Notice to Class A-1 Noteholders
The Manager on behalf of the Issuer will, within 5 days of:
(a) (Termination): the termination of the appointment of any Agent;
(b) (Resignation): the resignation of any Agent; or
(c) (Appointment): the appointment of a new Agent,
give to the Class A-1 Noteholders notice of the termination, appointment or
resignation in accordance with Condition 11.1 of the US Dollar 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 Class
A-1
18.
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 US Dollar 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 Class A-1 Notes.
(b) (Notice to Class A-1 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 Class A-1 Noteholders notice in accordance
with Condition 11.1 of the US Dollar Note Conditions of that change
and of the address of the new Specified Office, but the cost of giving
that notice must be borne by the Agent which is changing its Specified
Office and not by the Issuer or the Manager.
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11. Miscellaneous duties and protection
11.1 Agents are agents of the Issuer
(a) (Agent of the Series Trust): Subject to clause 6.1, each Agent is the
agent of the Issuer in its capacity as trustee of the Series Trust
only.
(b) (Issuer not responsible for Agents): Notwithstanding any other
provision contained in this Agreement, any other Transaction Document
or at law, the Issuer in its personal capacity is not responsible for
any act or omission of any Agent.
11.2 Agency
Subject to any other provision of this Agreement, each Agent acts solely
for and as agent of the Issuer and does not have any obligations towards or
relationship of agency or trust with any person entitled to receive
payments of principal and/or interest on the Class A-1 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 Class A-1 Note or upon any notice, resolution, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been delivered, signed or sent by
the proper party or parties.
11.4 Entitled to Deal
An Agent is not precluded from acquiring, holding or dealing in any Class
A-1 Notes or from engaging or being interested in any contract or other
financial or other transaction with the Issuer or the Manager as freely as
if it were not an agent of the Issuer under this Agreement and in no event
whatsoever (other than fraud, wilful misconduct, negligence or bad faith)
will any Agent be liable to account to the Issuer or any person entitled to
receive amounts of principal or interest on the Class A-1 Notes for any
profit made or fees or commissions received in connection with this
agreement or any Class A-1 Notes.
19.
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.
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 US Dollar Note Conditions and no implied duties or obligations (other
than general laws as to agency) will be read into this Agreement or the US
Dollar 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 Class A-1 Noteholder such
information as may be reasonably required to enable such Class A-1
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 Agent during the period that any of the Class
A-1 Notes remain outstanding the administration fee separately agreed by
that Agent and the Issuer. If the appointment of an Agent is terminated
under this Agreement, the Agent must refund to the Issuer that proportion
of the fee (if any) which relates to the period during which the Agent's
appointment is terminated.
12.2 Payment of Expenses
The Issuer must pay or reimburse to each Agent all reasonable costs,
expenses, charges, stamp duties and other Taxes and liabilities properly
incurred by that Agent in the performance of the obligations of that Agent
under this Agreement including, without limitation, all costs and expenses
(including legal costs and expenses) incurred by that Agent in the
enforcement of any obligations under this Agreement. Nothing in this clause
12.2 entitles or permits an Agent to be reimbursed or indemnified for
general overhead costs and expenses (including, without limitation, rents
and any amounts payable by that Agent to its employees in connection with
their employment) incurred directly or indirectly in connection with the
business activities of that Agent or in the exercise of its rights, powers
and discretions or the performance of its duties and obligations under this
Agreement.
12.3 No Other Fees
Except as provided in clauses 12.1 and 12.2, or as expressly provided
elsewhere in this Agreement, neither the Issuer nor the Manager has any
liability in respect of any fees or expenses of any Agent in connection
with this Agreement.
20.
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 Issuer Personally Liable for Fees
Notwithstanding any other provision of this Agreement, the Issuer must pay
to each Agent the fees referred to in clause 12.1, and any value added tax
on such fees, from its own personal funds and will not be entitled to be
indemnified from the Assets of the Series Trust with respect to such fees
or value added taxes provided that if The Bank of New York, New York Branch
or The Bank of New York, London Branch resigns or is removed as an Agent
the Issuer will only be liable to pay the fees referred to in clause 12.1,
and any value added tax on such fees, from its own personal funds to the
extent that such fees and value added tax do not exceed the amount that
would have been payable to The Bank of New York, New York Branch or the
Bank of New York, London Branch, as the case may be, if it had remained as
that Agent. The balance of such fees and value added tax, if any, will be
an Expense for which the Issuer is entitled to be indemnified from the
Assets of the Series Trust in accordance with the Series Supplement.
12.7 Timing of Payments
Except as referred to in clause 12.6, all payments by the Issuer to an
Agent under this clause 12 are payable on the first Distribution Date
following demand by that Agent from funds available for this purpose in
accordance with the Series Supplement.
--------------------------------------------------------------------------------
13. Notices
13.1 Method of Delivery
Subject to clause 13.3, any notice, request, certificate, approval, demand,
consent or other communication to be given under this Agreement (other than
notices to the Class A-1 Noteholders):
(a) (Execution): must be signed by an Authorised Officer of the party
giving the same;
(b) (In writing): must be in writing; and
(c) (Delivery): must be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the addressee;
or
(iii) sent by facsimile to the facsimile number of the addressee,
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.
21.
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; and
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient.
However, if the time of deemed receipt of any notice is not before 5.30 pm
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 Communications through Principal Paying Agent
All communications relating to this Agreement between the Issuer and the
Agent Bank and any of the other Paying Agents or between the Paying Agents
themselves will, except as otherwise provided in this Agreement, be made
through the Principal Paying Agent.
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14. Issuer's limitation of liability
14.1 Limitation on Issuer's Liability
The Issuer enters into this Agreement only in its capacity as trustee of
the Series Trust and in no other capacity. A liability incurred by the
Issuer acting in its capacity as trustee of the Series Trust arising under
or in connection with this Agreement is limited to and can be enforced
against the Issuer only to the extent to which it can be satisfied out of
the Assets of the Series Trust out of which the Issuer is actually
indemnified for the liability. This limitation of the Issuer's liability
applies despite any other provision of this Agreement (other than clauses
12.6 and 14.3) and extends to all liabilities and obligations of the Issuer
in any way connected with any representation, warranty, conduct, omission,
agreement or transaction related to this Agreement.
14.2 Claims against Issuer
The parties other than the Issuer may not xxx the Issuer in respect of any
liabilities incurred by the Issuer acting in its capacity as trustee of the
Series Trust in any capacity other than as trustee of the Series Trust
including seeking the appointment of a receiver (except in relation to the
Assets of the Series Trust) a liquidator, an administrator or any similar
person to the Issuer or prove in any liquidation, administration or similar
arrangements of or affecting the Issuer (except in relation to the Assets
of the Series Trust).
14.3 Breach of Trust
The provisions of this clause 14 will not apply to any obligation or
liability of the Issuer to the extent that it is not satisfied because
under the Master Trust Deed, the Series Supplement or any other Transaction
Document or by operation of law there is a reduction in the extent of the
Issuer's indemnification out of the Assets of the Series Trust as a result
of the Issuer's fraud, negligence or wilful default and will not apply to
any obligation or liability of the Issuer to pay amounts from its personal
funds pursuant to clause 12.6.
22.
14.4 Acts or omissions
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Issuer (including any related
failure to satisfy its obligations or any breach of representations or
warranties under this Agreement) will be considered fraudulent, negligent
or a wilful default for the purposes of clause 14.3 to the extent to which
the act or omission was caused or contributed to by any failure by any
Relevant Party or any other person appointed by the Issuer under any
Transaction Document (other than a person whose acts or omissions the
Issuer is liable for in accordance with any Transaction Document) to fulfil
its obligations relating to the Series Trust or by any other act or
omission of a Relevant Party or any other such person.
14.5 No Authority
No Agent appointed in accordance with this Agreement has authority to act
on behalf of the Issuer in a way which exposes the Issuer to any personal
liability and no act or omission of any such person will be considered
fraudulent, negligent or wilful default of the Issuer for the purposes of
clause 14.3.
14.6 No obligation
The Issuer is not obliged to enter into any commitment or obligation under
or in relation to this Agreement or any Transaction Document (including
incur any further liability) unless the Issuer's liability is limited in a
manner which is consistent with this clause 14 or otherwise in a manner
satisfactory to the Issuer in its absolute discretion.
--------------------------------------------------------------------------------
15. General
15.1 Waiver
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or
privilege under this Agreement by a party will not in any way preclude or
operate as a waiver of any further exercise or enforcement of such right,
remedy, power or privilege of the exercise or enforcement of any other
right, remedy, power or privilege under this Agreement or provided by law.
15.2 Written Waiver, Consent and Approval
Any waiver, consent or approval given by a party under this Agreement will
only be effective and will only bind that party if it is given in writing,
or given verbally and subsequently confirmed in writing, and executed by
that party or on its behalf by two Authorised Officers of that party.
15.3 Severability
Any provision of this Agreement which is illegal, void or unenforceable in
any jurisdiction is ineffective in such jurisdiction to the extent only of
such illegality, voidness or unenforceability without invalidating the
remaining provisions of this Agreement.
15.4 Survival of Indemnities
The indemnities contained in this Agreement are continuing, and survive the
termination of this Agreement.
23.
15.5 Assignments
No party may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the other parties and
confirmation from the Rating Agencies that such assignment will not lead to
a reduction, qualification or reduction of its then rating of the Class A-1
Notes.
15.6 Successors and Assigns
This Agreement is binding upon and ensures to the benefit of the parties to
this Agreement and their respective successors and permitted assigns.
15.7 Moratorium Legislation
To the fullest extent permitted by law, the provisions of all statutes
whether existing now or in the future operating directly or indirectly:
(a) (To affect obligations): to lessen or otherwise to vary or affect in
favour of any party any obligation under this Agreement; or
(b) (To affect rights): to delay or otherwise prevent or prejudicially
affect the exercise of any rights or remedies conferred on a party
under this Agreement,
are hereby expressly waived, negatived and excluded.
15.8 Amendments
The parties to this Agreement may only amend this Agreement in accordance
with clause 33.1(b) of the Series Supplement.
15.9 Governing Law
This Agreement is governed by and must be construed in accordance with the
laws of the State of New South Wales.
15.10 Jurisdiction
Each party irrevocably and unconditionally:
(a) (Submissions to jurisdiction): submits to the non-exclusive
jurisdiction of the courts of the State of New South Wales;
(b) (Waiver of inconvenient forum): waives any objection it may now or in
the future have to the bringing of proceedings in those courts and any
claim that any proceedings have been brought in an inconvenient forum;
and
(c) (Service of notice): agrees, without preventing any other mode of
service permitted by law, that any document required to be served in
any proceedings may be served in the manner in which notices and other
written communications may be given under clause 13.
15.11 Counterparts
This Agreement may be executed in a number of counterparts and all such
counterparts taken together will constitute one and the same instrument.
24.
15.12 Limitation of US Dollar Note Trustee's Liability
The US Dollar Note Trustee is a party to this Agreement in its capacity as
trustee of the US Dollar Note Trust. The liability of the US Dollar Note
Trustee under this Agreement is limited in the manner and to the same
extent as under the US Dollar Note Trust Deed.
25.
Executed as an agreement.
Signed for and on behalf of Perpetual Trustee Company Limited, ABN 42 000 001
007, by Xxxxxx Xxxx its Attorney under a Power of Attorney dated 6/2/02 and who
declares that he or she has not received any notice of the revocation of such
Power of Attorney, in the presence of:
/s/ Xxxxxx Xxxx
-----------------------------------
Signature of Attorney
/s/ Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxx
----------------------------------- -----------------------------------
Signature of Witness Name of Attorney in full
Xxxxxxxx Xxxx Xxxxxxxx
-----------------------------------
Name of Witness in full
Signed for and on behalf of Securitisation Advisory Services Pty Limited, ABN 88
064 133 946, by Xxxxxxx Xxxx See
its Attorney under a Power of Attorney dated 6/2/02 and who declares that he or
she has not received any notice of the revocation of such Power of Attorney, in
the presence of:
/s/ Xxxxxxx Xxxx See
-----------------------------------
Signature of Attorney
/s/ Xxxxxxxx Xxxx Xxxxxxxx
-----------------------------------
Signature of Witness
Xxxxxxxx Xxxx Xxxxxxxx
-----------------------------------
Name of Witness in full
26.
Signed for The Bank of New York, New York Branch by its Authorised Signatory:
/s/ Xxxxx X. Xxxx
-----------------------------------
Authorised Signatory
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
Signature of Witness
Xxxxx X. Xxxxxxx
-----------------------------------
Name of Witness in full
Signed for The Bank of New York, London Branch by its Authorised Signatory:
/s/ Xxxxx X. Xxxx
-----------------------------------
Authorised Signatory
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
Signature of Witness
Xxxxx X. Xxxxxxx
-----------------------------------
Name of Witness in full
27.
