Exhibit 4.8
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National RMBS Trust 2004-1
Agency Agreement
Date: 28 September 2004
Parties: PERPETUAL TRUSTEE COMPANY LIMITED
(ABN 42 000 001 007) having an office at
Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx, XXX
0000 in its capacity as trustee of the
National RMBS Trust 2004-1 ("Issuer Trustee")
NATIONAL GLOBAL MBS MANAGER PTY LTD (ACN 36
102 668 226) having an office at Xxxxx 00,
000 Xxxxxx Xxxxxx, Xxxxxxxxx XXX 0000
("Global Trust Manager")
THE BANK OF NEW YORK, NEW YORK, a New York
banking corporation acting through its New
York branch at 000 Xxxxxxx Xxxxxx, 00X, Xxx
Xxxx, Xxx Xxxx 00000 ("Note Trustee", "Class
A-1 Note Registrar", "Class A-3 Note
Registrar" and "Principal Paying Agent")
THE BANK OF NEW YORK, LONDON BRANCH, a New
York banking corporation acting through its
London branch at 00xx Xxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxx X00 0XX ("London Paying
Agent" and "Calculation Agent")
DEUTSCHE BANK LUXEMBOURG S.A. acting through
its Luxembourg branch at 0 xxxxxxxxx Xxxxxx
Xxxxxxxx, X-0000 Xxxxxxxxxx ("Xxxxxxxxxx
Paying Agent")
Recitals:
A. The Issuer Trustee in its capacity as trustee of the
Trust, at the direction of the Global Trust Manager,
wishes to issue the Offshore Notes.
B. The Issuer Trustee wishes to appoint each Agent in respect
of the Offshore Notes and each of them has accepted their
appointments on the terms set out in this agreement.
Operative provisions:
1 Definitions and Interpretation
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Definitions Schedule
1.1 In this agreement:
Definitions Schedule means the deed called "National RMBS
Trusts Definitions Schedule" dated 3 January 2001 and made
between the companies described in schedule 1 to that
deed.
Supplemental Deed means the deed entitled "National RMBS
Trust 2004-1 Supplemental Deed" dated on or about the date
of this agreement between the Global Trust Manager, the
Issuer Trustee and others.
1.2 Except to the extent to which words and phrases are
otherwise defined in this agreement, words and phrases
defined in the Definitions Schedule or the Supplemental
Deed in respect of the Trust shall bear the
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same meaning in this agreement. In the event of any
inconsistency between a definition in this agreement and a
definition in the Definitions Schedule, the definitions in
this agreement will prevail. In the event of any
inconsistency between a definition in the Definitions
Schedule and a definition in the Supplemental Deed, the
definition in the Supplemental Deed will prevail. Any
amendment to the Definitions Schedule will only apply to
this agreement if made in accordance with this agreement.
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions Schedule
are incorporated into this agreement as if those clauses
were set out in full with references to "this deed" being
construed as references to "this agreement".
Definitions
1.4 The following words have these meanings in this agreement
unless the contrary intention appears.
Agent means a several reference to each Paying Agent, each
Note Registrar and the Calculation Agent.
Class A-1 Note Register means the register maintained in
respect of the Class A-1 Notes in accordance with clause
12 of this agreement.
Class A-3 Note Register means the register maintained in
respect of the Class A-3 Notes in accordance with clause
12 of this agreement.
Calculation Agent means The Bank of New York, London
Branch, or if The Bank of New York, London Branch resigns
or its appointment is terminated as calculation agent, the
person from time to time appointed in its place to perform
the functions of the calculation agent under this
agreement.
Depository has the meaning set out in the Note Trust Deed.
Note Register means:
(a) the Class A-1 Note Register; or
(b) the Class A-3 Note Register,
as the context requires.
Note Registrar means:
(a) the Class A-1 Note Registrar; or
(b) the Class A-3 Note Registrar,
as the context requires.
Offshore Notes means the Class A-1 Notes and the Class A-3
Notes.
Offshore Noteholders means the Class A-1 Noteholders and
the Class A-3 Noteholders.
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Paying Agent means each of:
(a) the Luxembourg Paying Agent; and
(b) the London Paying Agent,
until any of them resigns or their appointment is
terminated as paying agent and each other person from time
to time appointed in its place 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, or, if The Bank of New York, 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.
Trust means the National RMBS Trust 2004-1.
2 Appointment of Agents
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Appointment of Agents
2.1 The Issuer Trustee:
(a) at the direction of the Global Trust Manager,
appoints the Principal Paying Agent at its Specified
Office as its initial principal paying agent;
(b) at the direction of the Global Trust Manager,
appoints each Paying Agent at its Specified Office or
Specified Offices as its initial paying agents;
(c) at the direction of the Global Trust Manager,
appoints:
(i) the Class A-1 Note Registrar at its Specified
Office as its initial Class A-1 note registrar;
and
(ii) the Class A-3 Note Registrar at its Specified
Office as its initial Class A-3 note registrar;
(d) at the direction of the Global Trust Manager,
appoints the Calculation Agent at its Specified
Office as its initial calculation agent; and
(e) authorises each Agent from time to time, to take the
action on its behalf and to exercise the rights,
powers and remedies and observe the obligations which
are specifically delegated to that Agent by or under
this agreement or which are set out in the Class A
Note Conditions and further rights and powers which
are reasonably incidental to those delegated rights
and powers or are agreed between the Issuer Trustee
and the relevant Agent from time to time including:
(i) in the case of each Note Registrar:
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(A) completing, authenticating and delivering
the relevant Book-Entry Notes and (if
required) completing, authenticating and
delivering relevant Definitive Notes; and
(B) exchanging (if required) the relevant
Book-Entry Notes for Definitive Notes in
accordance with the terms of the
Book-Entry Notes;
(ii) in respect of the Principal Paying Agent
and the Paying Agents:
(A) paying sums due on Book-Entry Notes and
Definitive Notes;
(B) if requested by the Note Trustee,
arranging on behalf of the Issuer Trustee
for notices to be communicated to the
Offshore Noteholders; and
(C) performing all other obligations and
duties imposed upon it by the Class A Note
Conditions and this agreement.
Acceptance of appointment
2.2 Each Agent accepts its appointment under clause 2.1.
Each Agent must exercise the rights, powers and
remedies, and observe the obligations which are
specifically delegated to it by or under this
agreement or which are set out in the Class A Note
Conditions. The obligations of the Agents are several
and not joint.
Representation by each Agent
2.3 Each Agent represents and warrants that it is duly
qualified to assume its obligations under this agreement.
Additional Agents
2.4 The Issuer Trustee may, at the direction of the Global
Trust Manager, from time to time, with the approval of the
Note Trustee in writing, appoint additional or substitute
paying agents, calculation agents or note registrars in
such jurisdictions and locations as it may consider
appropriate. Upon such agent delivering to the other
parties to this agreement an undertaking (in a form and
substance satisfactory to the Note Trustee) to be bound by
the provisions of this agreement, and supplying the
particulars specified in this agreement, it shall become a
party to this agreement as if originally named as a Paying
Agent, the Calculation Agent or a Note Registrar, as the
case may be. References to "Agent" shall, where the
context permits, include any additional or substitute
agents appointed pursuant to this clause 2.4.
Acknowledgment
2.5 It is acknowledged and agreed that:
(a) subject to clause 3, each Agent is the agent of the
Issuer Trustee in its capacity as trustee of the
Trust only; and
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(b) despite anything else in this agreement, any other
Transaction Document or at law, the Issuer Trustee in
its personal capacity is not responsible for any act
or omission of an Agent.
3 The Note Trustee
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Agents to act for Note Trustee
3.1 At any time after an Event of Default has occurred, the
Note Trustee may:
(a) by notice in writing to the Issuer Trustee and each
Agent, require each Agent thereafter as far as
permitted by any applicable law and until notified by
the Note Trustee to the contrary:
(i) to act as an agent of the Note Trustee under the
Note Trust Deed and the Offshore Notes
on the terms of this agreement
(with consequential amendments as
necessary and except that the
Note Trustee's liability for the
indemnification, remuneration and
expenses of the Agents will be
limited to the amounts for the
time being held by the Note
Trustee in respect of the
Offshore Notes on the terms of
the Note Trust Deed) and
thereafter to hold all Offshore
Notes and all moneys, documents
and records held by them in
respect of Offshore Notes to the
order of the Note Trustee; or
(ii) to deliver all Offshore Notes and all moneys,
documents and records held by it in respect of the
Offshore Notes to the Note Trustee or as the Note
Trustee directs in such notice other than any
documents or records which the relevant Agent is
obliged not to release by any law or regulation;
and
(b) by notice in writing to the Issuer Trustee require it
to make all subsequent payments in respect of the
Offshore Notes to or to the order of the Note Trustee
and not to the Principal Paying Agent.
Good Discharge to Issuer Trustee
3.2 The payment by or on behalf of the Issuer Trustee of its
payment obligations on each Payment Date under the
Supplemental Deed and the Class A Note Conditions to the
Note Trustee in accordance with clause 3.1(b) is a good
discharge to the Issuer Trustee and the Issuer Trustee
will not be liable for any act or omission or default of
the Note Trustee during the period it is required to make
payments to the Note Trustee under clause 3.1(b).
Notice of change of the Note Trustee
3.3 The Global Trust Manager shall promptly give notice to the
Agents of any change in the person or persons acting as
the Note Trustee from time to time at such time that it
has notice of such change.
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4 Payments
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Payments of amounts due
4.1 The Issuer Trustee shall pay to or to the order of the
Principal Paying Agent, to such account of the Principal
Paying Agent as the Principal Paying Agent shall specify
to the Issuer Trustee in US$ (in the case of Class A-1
Notes) and (euro) (in the case of Class A-3 Notes) in same
day funds, no later than 10:00am (New York time) (in the
case of Class A-1 Notes) or 10:00am (London time) (in the
case of Class A-3 Notes) on each Payment Date, an amount
sufficient to pay the interest on the Invested Amount of
the Offshore Notes as set out in the Class A Note
Conditions and any principal amount due to be paid on such
Payment Date in respect of the Offshore Notes under the
Class A Note Conditions and this agreement.
No later than 10:00am (New York time) (in the case of
Class A-1 Notes) or 10:00am (London time) (in the case of
Class A-3 Notes) on the second Business Day prior to each
Payment Date, the Global Trust Manager shall on behalf of
the Issuer Trustee notify by facsimile to the Principal
Paying Agent that it has given the bank through which the
Issuer Trustee is to make such payment irrevocable
instructions for such payment to the Principal Paying
Agent and such bank shall confirm to the Principal Paying
Agent by such means approved by the Principal Paying Agent
that such payment will be made.
The Global Trust Manager will direct the Issuer Trustee to
make all payments required to be made by the Issuer
Trustee under this clause 4.
Payments by Paying Agents
4.2 Subject to payment being duly made as provided in clause
4.1 (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 Principal Paying Agent
will:
(a) subject to paragraph (b), pay or cause to be paid to
the Offshore Noteholders on behalf of the Issuer
Trustee on each Payment Date the relevant amounts of
principal and interest due in respect of the Offshore
Notes in accordance with this agreement and the Class
A Note Conditions; and
(b) pay or cause to be paid to the relevant Depository
(or, if applicable, its nominee in whose name the
Book-Entry Notes are registered), to the account
specified by the relevant person, on each Payment
Date the relevant amounts of principal and interest
due in respect of the Offshore Notes in accordance
with this agreement and the Class A Note Conditions.
Notification
4.3 The Principal Paying Agent will promptly notify each of
the other Agents, the Note Trustee, the Security Trustee
and the Issuer Trustee if it has not, by 10:00am (New York
time) (in the case of Class A-1 Notes) or 10:00am
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(London time) (in the case of Class A-3 Notes) on the
second Business Day prior to any Payment Date, received
the confirmation referred to in clause 4.1 above or has
not, by 10:00am (New York time) (in the case of Class A-1
Notes) or 10:00am (London time) (in the case of Class A-3
Notes) on any Payment Date, received in full the amount so
due. In the absence of such notification by the Principal
Paying Agent as provided above, each of the Paying Agents
shall be entitled:
(a) to pay the interest on, and the principal of, the
Offshore Notes due on such Payment Date; and
(b) (if applicable) to claim any amounts so paid by it
from the Principal Paying Agent.
Paying Agents to Record, Notify Payments and Deliver Surrendered Notes
4.4 Each Paying Agent must:
(a) (Notify Note Registrar) promptly notify the relevant
Note Registrar of each payment made by it, or at its
direction, to Offshore Noteholders;
(b) (Records) keep a full and complete record of each
payment made by it, or at its direction, to Offshore
Noteholders and provide copies of such records to the
Issuer Trustee, the Global Trust Manager, the Note
Trustee or the relevant Note Registrar upon request;
and
(c) (Deliver) promptly deliver to the relevant Note
Registrar any Offshore Notes surrendered to it
pursuant to Condition 8.2 of the Class A Note
Conditions.
Make payments
4.5 Subject to the Principal Paying Agent being satisfied in
its discretion that payment will be duly made as provided
in clause 4.1, the Principal Paying Agent and each Paying
Agent shall pay or cause to be paid all amounts due in
respect of the Offshore Notes on behalf of the Issuer
Trustee in the manner provided in the Class A Note
Conditions. If any payment provided for in clause 4.1 is
made late but otherwise in accordance with the provisions
of this agreement, the Paying Agents shall nevertheless
make payments in respect of the Offshore Notes following
receipt by the Principal Paying Agent of such payment.
Non-Payment
4.6 If the Issuer Trustee 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 4 (but may, in its discretion, make any such
payment).
Full amount not received
4.7 If the amounts received by the Principal Paying Agent in
US$ (in the case of Class A-1 Notes) or (euro) (in the
case of Class A-3 Notes) pursuant to clause 4.1 are
insufficient to satisfy all claims in respect of all
payments then falling due in respect of the Offshore
Notes, the Paying
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Agents are not obliged to pay any such claims until the
Principal Paying Agent has received the full amount of all
such payments.
Interest on overdue amounts
4.8 Without prejudice to clauses 4.3 and 4.7, if the Principal
Paying Agent pays any amounts to the Offshore Noteholders
or to any other Paying Agent at the time when it has not
received payment in full in respect of the relevant
Offshore Notes in accordance with clause 4.1 (the excess
of the amounts so paid over the amounts so received being
the "Shortfall"), the Issuer Trustee will, in addition to
paying amounts due under clause 4.1, pay to the Principal
Paying Agent on demand interest (at a rate which
represents the Principal Paying Agent's cost of funding
the Shortfall as evidenced to the Issuer Trustee by the
provision of details of the calculation of the cost of
funding) on the Shortfall (or the unreimbursed portion
thereof) until the receipt in full by the Principal Paying
Agent of the Shortfall.
Reimburse other Agents
4.9 The Issuer Trustee authorises and directs the Principal
Paying Agent on demand to promptly reimburse each other
Paying Agent for payments in respect of Offshore Notes
properly made by such Paying Agent in accordance with this
agreement and the Class A Note Conditions unless the
Principal Paying Agent has notified the other Paying
Agents, prior to the opening of business in the location
of the office of the other Paying Agents through which
payment in respect of the Offshore Notes can be made on
the due date of a payment in respect of the Offshore
Notes, that the Principal Paying Agent does not expect to
receive the amount payable by the Issuer Trustee or
confirmation (as the case may be) under clause 4.1. The
Issuer Trustee will not be responsible for the
apportionment of any moneys between the Principal Paying
Agent and other Paying Agents and a payment to the
Principal Paying Agent of any moneys due to the Paying
Agents will operate as good discharge to the Issuer
Trustee in respect of such moneys.
Late payment
4.10 Without limiting clause 4.3, if the Principal Paying Agent
has not received on or before the due date of any payment
in respect of the Offshore Notes the full amount payable
on such date but receives such full amount later it will
forthwith:
(a) so notify the Issuer Trustee, the Security Trustee,
the other Paying Agents and the Note Trustee; and
(b) upon request by the Note Trustee give notice to the
Offshore Noteholders in accordance with the Class A
Note Conditions that it has received such full
amount.
Partial payments
4.11 If payment of only part of the amount payable in
respect of an Offshore Note is made (except as a
result of a withholding or deduction as permitted by
the Class A Note Conditions), the Paying Agent to
whom the Offshore Note is presented shall procure
that such Offshore Note is enfaced with a memorandum
of the amount paid and date of payment and such
record shall, in the absence of manifest error, be
prima facie
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evidence that the payment in question has
not to that extent been made. The Paying Agent shall
in addition notify the Note Trustee of such partial
payment.
Deductions
4.12 The Principal Paying Agent is entitled to withhold or
deduct from all payments to Offshore Noteholders any
amounts which the Issuer Trustee or the Principal Paying
Agent is required to withhold or deduct by any applicable
law but the Global Trust Manager is responsible for making
all determinations regarding any such withholding or
deduction and to notify the Issuer Trustee (which must in
turn notify the Principal Paying Agent) of any such
withholding or deduction in sufficient time for the
Principal Paying Agent to withhold or deduct from such
payment as instructed by the Issuer Trustee.
If the Issuer Trustee is, in respect of any payments,
required to withhold or deduct any amount for or on
account of taxes, duties, assessments or governmental
charges as specifically contemplated under the Class A
Note Conditions, the Global Trust Manager must give notice
thereof to the Issuer Trustee (which must in turn notify
the Principal Paying Agent) and the Note Trustee as soon
as it becomes aware of the requirement to make such
withholding or deduction and shall give to the Issuer
Trustee such information as it requires to enable it to
comply with such requirements.
Unpaid money
4.13 If any Offshore Note becomes void or claims in respect of
any principal or interest payable under any Offshore Note
become void under the Class A Note Conditions, the
Principal Paying Agent shall promptly repay to the Issuer
Trustee the amount received by the Principal Paying Agent
(if any) which would have been due on such Offshore Note
if it had been presented for payment before it became void
or such claim became prescribed.
No Set-off
4.14 No Agent is entitled to exercise any right of set-off,
withholding, counterclaim, combination of accounts or lien
against, or make any deduction in any payment to, any
person entitled to receive amounts of principal or
interest of the Offshore Notes in respect of moneys
payable by it under this agreement.
Currency Swaps
4.15 The payment by the Issuer Trustee of its payment
obligations under the Supplemental Deed on each Payment
Date to the Counterparties under the Currency Swaps will
be a good discharge of its corresponding obligations under
this clause 4.
Trust
4.16 The Principal Paying Agent shall hold on trust for the
Note Trustee and the Offshore Noteholders all sums held by
it for the payment of principal and interest with respect
to the Offshore Notes (but without any requirement to
physically segregate such payments from other funds held
by the Principal Paying Agent in any capacity) until the
relevant
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sums are paid by the Principal Paying Agent in accordance
with clause 4.2.
5 Exchange of Book-Entry Notes
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Exchange for Definitive Notes
5.1 Each Book-Entry Note shall be exchangeable in whole but
not in part for Definitive Notes in certain limited
circumstances set out in the Note Trust Deed.
Notification
5.2 The Principal Paying Agent shall notify the Issuer Trustee
forthwith upon receipt of a notice requiring exchange for
Definitive Notes in accordance with the provisions of a
Book-Entry Note and the aggregate Invested Amount of the
Book-Entry Notes to be exchanged in connection with such
request.
Outstanding amount
5.3 The Principal Paying Agent shall, upon request by the
Issuer Trustee or the Note Trustee, promptly inform the
Issuer Trustee or the Note Trustee, as the case may be, by
facsimile or other acceptable form of communication of the
aggregate Invested Amount of Offshore Notes then
outstanding at the time of such request.
6 Redemption
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Part Redemption of Notes on Payment Dates
6.1 (a) (Global Trust Manager to make determinations etc) No
later than 2 Business Days prior to each Payment
Date, the Global Trust Manager will make the
determinations referred to in Condition 7.9 of the
Class A Note Conditions in relation to that Payment
Date and will notify the Issuer Trustee, the Note
Trustee, the Principal Paying Agent, the Calculation
Agent, each Note Registrar and the Luxembourg Stock
Exchange of such.
(b) (Notify Depository) If any Book-Entry Notes are
outstanding, on receipt of a notification under
Condition 7.3 of the Class A 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 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 7.3 of the
Class A Note Conditions.
Early Redemption
6.2 (a) (Notice to Paying Agent etc): If the Issuer
Trustee intends to redeem all (but not some only) of
the Offshore Notes prior to the Final Maturity Date
pursuant to Condition 7.3 of the Class A Note
Conditions, the Global Trust Manager will direct the
Issuer Trustee to give the requisite notice to the
Seller, the Note Trustee, the Principal Paying Agent,
each Note Registrar, the
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Calculation Agent and the Offshore Noteholders in
accordance with Condition 7.3 (as the case may be) of
the Class A Note Conditions and stating the date on
which such Offshore Notes are to be redeemed.
(b) (Notice to Depository): The Principal Paying Agent
will, on receipt of a notice under clause 6.2(a), and
if any 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 Book-Entry Note to be redeemed, the amount of
principal to be repaid in relation to each Book-Entry
Note and the date on which the Book-Entry Notes are
to be redeemed.
7 General note registrar and paying agent matters
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Notices to Offshore Noteholders
7.1 (a) (Notices to be given by Note Registrars): At the
request of the Issuer Trustee, the Note Trustee, the
Global Trust Manager, the Security Trustee or any
other Agent, and at the expense of the Issuer
Trustee, each Note Registrar will arrange for the
delivery of all notices to Offshore Noteholders in
accordance with the Class A Note Conditions.
(b) (Copy to Note Trustee): Each Note Registrar will
promptly send to the Note Trustee one copy of the
form of every notice given to Offshore Noteholders in
accordance with the Class A Note Conditions (unless
such notice is given at the request of the Note
Trustee).
A 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
Trustee, the Note Trustee, the Global Trust Manager, the
Security Trustee or any other Agent pursuant to this
clause 7.1.
Copies of Documents for inspection
7.2 The Global Trust Manager will provide to each Note
Registrar sufficient copies of all documents required by
the Class A Note Conditions or the Note Trust Deed to be
available to Offshore Noteholders for issue or inspection.
Notice of any Withholding or Deduction
7.3 If the Issuer Trustee or any Paying Agent is, in respect
of any payment in respect of an Offshore Note, 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 Class A Note Conditions the Issuer Trustee must
give notice to the Principal Paying Agent, the Note
Trustee and the Offshore Noteholders in accordance with
Condition 11 of the Class A 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 Note Trustee such information as they
require to enable each of them to comply with the
requirement.
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8 Copies of documents available for inspection
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The Global Trust Manager on behalf of the Issuer Trustee
shall supply, and the Paying Agents shall hold available
for inspection at their Specified Offices during normal
business hours, copies of all documents required to be so
available by the Note Trust Deed and the Class A Note
Conditions or the rules of the Luxembourg Stock Exchange.
9 Documents and forms
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Principal Paying Agent
9.1 The Global Trust Manager shall provide to the Principal
Paying Agent in a sufficient quantity, for distribution
among the Paying Agents as required by this agreement or
the Class A Note Conditions:
(a) in the event that Definitive Notes are to be issued:
(i) such Definitive Notes, duly executed on behalf
of the Issuer Trustee;
(ii) specimens of such Offshore Notes for the purpose
of issuing replacements,
at least 14 days prior to the Exchange Date for the
relevant Book-Entry Note (and the Note Registrar
shall authenticate or procure the authentication of
such Definitive Notes immediately before their
issue); and
(b) forms of Voting Certificates and Block Voting
Instructions, together with instructions as to how to
complete, deal with and record the issue of such
forms.
9.2 The Global Trust Manager shall provide to the Principal
Paying Agent in a sufficient quantity, for distribution
among the Paying Agents as required by this agreement or
the Class A Note Conditions, all documents to be available
for inspection during business hours (and the Paying
Agents shall make such documents available for collection
or inspection to the Offshore Noteholders that are so
entitled).
Notes, etc held by Paying Agents
9.3 Each Paying Agent:
(a) acknowledges that all forms of Offshore Notes
delivered to and held by it pursuant to this
agreement shall be held by it as custodian only and
it shall not be entitled to and shall not claim any
lien or other security interest on such forms;
(b) shall only use such forms in accordance with this
agreement;
(c) shall maintain all such forms in safe custody;
(d) shall take such security measures as may reasonably
be necessary to prevent their theft, loss or
destruction; and
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(e) shall keep an inventory of all such forms and make it
available to the Issuer Trustee, the Note Trustee and
the other Paying Agents at all reasonable times.
10 Receipt of notices and voting
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Copy notices to Issuer Trustee
10.1 Promptly after the receipt by the Principal Paying Agent
of a demand or notice from any Offshore Noteholder in
accordance with the Class A Note Conditions, the Principal
Paying Agent shall forward a copy thereof to the Issuer
Trustee and the Note Trustee.
Voting
10.2 Each Paying Agent shall, at the request of any Offshore
Noteholder, issue Voting Certificates and/or Block Voting
Instructions in a form and manner which complies with the
provisions of schedule 3 to the Note Trust Deed in respect
of the Trust (except that it shall not be required to
issue the same less than 48 hours before the time fixed
for any meeting or adjourned meeting of the Offshore
Noteholders) and shall forthwith give to the Issuer
Trustee and the Note Trustee, by telex or by facsimile
transmission, notice of any revocation of or amendment to
any Block Voting Instruction. Each Paying Agent shall keep
a full and complete record of all Voting Certificates and
Block Voting Instructions issued by it and shall deliver
to the Issuer Trustee at its registered office (or such
other place as the Issuer Trustee shall have designated or
approved for the purpose), not less than 24 hours before
the time appointed for any meeting or adjourned meeting,
full particulars of all Voting Certificates and Block
Voting Instructions issued by it in respect of such
meeting or adjourned meeting. Forms for this purpose shall
be made available to the Principal Paying Agent by the
Note Trustee at the expense of the Issuer Trustee for
distribution to the other Paying Agents.
11 Duties of Calculation Agent
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Appointment
11.1 The Calculation Agent shall make all such determinations
and calculations (howsoever described) as it is required
to do under the Class A Note Conditions, all subject to
and in accordance with the Class A Note Conditions.
Quotations
11.2 The Calculation Agent shall not be responsible to the
Issuer Trustee, the Note Trustee or to any third party
(except in the event of fraud, negligence or wilful
default of the Calculation Agent, as the case may be) as a
result of the Calculation Agent having acted on any
quotation given by any reference bank which subsequently
may be found to be incorrect.
Notice
11.3 The Calculation Agent shall, as soon as practicable after
their determination or calculation (or on such earlier
date as the Luxembourg Stock Exchange may require, for so
long as the Offshore Notes are
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listed on the Luxembourg Stock Exchange) notify the Issuer
Trustee, the Global Trust Manager, the Currency Swap
Providers, the Note Trustee, the other Paying Agents and
the Luxembourg Stock Exchange (for so long as the Offshore
Notes are listed on the Luxembourg Stock Exchange) of,
inter alia, each Interest Rate, Interest Amount, Principal
Amount and Payment Date and all other amounts, rates and
dates which it is obliged to determine or calculate under
the Class A Note Conditions and of any subsequent
amendment thereto pursuant to the Class A Note Conditions.
The Calculation Agent will publish the same in accordance
with the Class A Note Conditions.
Calculations
11.4 The Calculation Agent shall use its reasonable endeavours
to cause each Interest Rate, Interest Amount, Principal
Amount and Payment Date and all other amounts, rates and
dates which it is obliged to determine or calculate under
the Class A Note Conditions to be published as required in
accordance with the Class A Note Conditions as soon as
possible after their determination or calculation.
Failure to calculate
11.5
(a) If the Calculation Agent at any time for any reason
does not determine and/or calculate and/or publish
the Interest Rate, Interest Amount, Principal Amount
and/or Payment Date in respect of any Interest Period
or any other amount, rate or dates as provided in
this clause 11 the Note Trustee will do so and each
such determination or calculation by the Note Trustee
will be as if made by the Calculation Agent. In
making such determinations and calculations, the Note
Trustee will apply the provisions of this agreement,
with any consequential amendments, to the extent that
it is able to do so and in all other respects it will
do so in such a manner as it considers to be fair and
reasonable in all the circumstances.
(b) If the Global Trust Manager does not at any time for
any reason make any of the determinations referred to
in conditions 7.9(a) or (b) of the Class A Note
Conditions, the Calculation Agent (or, failing the
Calculation Agent, the Note Trustee) must make such
determinations (only if it possesses the relevant
information) and each such determination will be
deemed to have been made by the Global Trust Manager.
12 Duties of the Note Registrars
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Offshore Note Register to be kept
12.1 Each Note Registrar must keep a register, at one of its
Specified Offices, in which, subject to such reasonable
regulations as the Note Registrar may prescribe, the Note
Registrar must keep a full and complete record of:
(a) (Offshore Noteholder Details): the name, address and,
where applicable, taxation, social security or other
identifying number of
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each Class A-1 Noteholder (in the case of the Class A-1
Note Registrar) and each Class A-3 Noteholder (in the
case of the Class A-3 Note Registrar), the details of
the account to which any payments due to such
Offshore Noteholder are to be made in each case as
notified by that Offshore Noteholder from time to
time;
(b) (Exchange etc. of Offshore Notes): the issue and any
exchange, transfer, replacement, redemption (in whole
or part) or cancellation of a Class A-1 Note (in the
case of the Class A-1 Note Registrar) and a Class A-3
Note (in the case of the Class A-3 Note Registrar);
(c) (Payments): all payments made in respect of the Class
A-1 Notes (in the case of the Class A-1 Note
Registrar) and the Class A-3 Notes (in the case of
the Class A-3 Note Registrar);
(d) (Principal): the Invested Amount and the Stated
Amount of each Class A-1 Note (in the case of the
Class A-1 Note Registrar) and each Class A-3 Note (in
the case of the Class A-3 Note Registrar) from time
to time;
(e) (Other Information): such other information as the
Global Trust Manager reasonably requires or the
relevant Note Registrar considers in its absolute
discretion appropriate or desirable.
Transfer or Exchange of Offshore Notes
12.2 Offshore Notes held by an Offshore Noteholder may be
transferred or may be exchanged for other Offshore 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 Offshore
Noteholder upon:
(a) (Surrender and Instrument of Transfer or Exchange):
the surrender of the Offshore Notes to be transferred
or exchanged duly endorsed with, or accompanied by, a
written instrument of transfer or exchange in the
form, in the case of a transfer, annexed to the
Offshore Notes or otherwise in a form satisfactory to
the relevant Note Registrar duly executed by the
relevant Offshore Noteholder, or its attorney duly
authorised in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the
requirements of the relevant Note Registrar which
requirements include membership of, or participation
in, STAMP or such other "signature guarantee program"
as may be determined by the relevant Note Registrar
in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act; and
(b) (Other Documents): the provision of such other
documents as the relevant Note Registrar may
reasonably require,
to the relevant Note Registrar at the
Specified Office of the relevant Note
Registrar.
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Replacement of Lost or Mutilated Offshore Notes
12.3 If any Offshore Note is lost, stolen, mutilated, defaced
or destroyed it may, provided that the requirements of
Section 8-405 of the UCC are met, be replaced with other
Offshore Notes in any authorised denominations, and a like
Invested Amount, upon surrender to the relevant Note
Registrar of the Offshore Notes to be replaced (where the
Offshore Notes have been mutilated or defaced) at the
Specified Office of the relevant Note Registrar, the
provision of such evidence and indemnities as that Note
Registrar or the Issuer Trustee may reasonably require and
payments of that Note Registrar's and the Issuer Trustee's
expenses incurred, and any tax or governmental charge that
may be imposed, in connection with such replacement.
Obligations upon Transfer, Exchange or Replacement of Offshore Notes
12.4 Subject to this agreement, upon compliance by the relevant
Offshore Noteholder with the provisions of clauses 12.2 or
12.3, as applicable, in relation to the transfer, exchange
or replacement of any Offshore Notes:
(a) (Advise Issuer Trustee): the relevant Note Registrar
must within 3 Business Days so advise the Issuer
Trustee and the Note Trustee (if it is not the
relevant Note Registrar) in writing and provide
details of the new Offshore Notes to be issued in
place of those Offshore Notes;
(b) (Execution and Authentication): the Issuer Trustee
must, within 3 Business Days of such advice, execute
and deliver to the relevant Note Registrar for
authentication in the name of the relevant Offshore
Noteholder or the designated transferee or
transferees, as the case may be, one or more new
Offshore Notes in any authorised denominations, and a
like Invested Amount as those Offshore Notes (in each
case as specified by the Note Registrar) and the
relevant Note Registrar must within 3 Business Days
of receipt of such executed Offshore Notes
authenticate them and (if it is not the relevant Note
Registrar) deliver those Offshore Notes to the
relevant Note Registrar; and
(c) (Delivery to Offshore Noteholder): the relevant Note
Registrar must, within 3 Business Days of receipt of
such new Offshore Notes (or authentication of such
Offshore Notes if the Note Registrar is the Note
Trustee), forward to the relevant Offshore Noteholder
(being the transferee in the case of a transfer of an
Offshore Note) such new Offshore Notes.
No Charge for Transfer or Exchange
12.5 No service charge may be made to an Offshore Noteholder
for any transfer or exchange of Offshore Notes, but the
relevant Note Registrar may require payment by the
Offshore Noteholder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in
connection with any transfer or exchange of Offshore
Notes.
Restricted Period
12.6 Notwithstanding the preceding provisions of this clause
12, a Note Registrar need not register transfers or
exchanges of Offshore Notes, and the Issuer Trustee is not
required to execute nor the relevant Note
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Registrar to authenticate any Offshore Notes, for a period
of 30 days preceding the due date for any payment with
respect to the Offshore Notes or for such period, not
exceeding 30 days, as is specified by the Note Trustee
prior to any meeting of the Offshore Noteholders, which
includes Offshore Noteholders, under the Master Trust Deed
or prior to any meeting of Voting Secured Creditors, which
includes Offshore Noteholders, under the Master Security
Trust Deed.
Cancellation of Offshore Notes
12.7 Each Note Registrar must cancel or destroy all Offshore
Notes that have been surrendered to it for transfer,
exchange or replacement (including any Book-Entry Notes
surrendered pursuant to the Note Trust Deed) or
surrendered to a Paying Agent for redemption and delivered
to the relevant Note Registrar and must, upon request,
provide a certificate to the Issuer Trustee, the Note
Trustee or the Global Trust Manager with the details of
all such Offshore Notes so cancelled or destroyed. Each
Paying Agent must cancel and deliver any Offshore Notes
surrendered to it for cancellation or destruction to the
relevant Note Registrar under this clause 12.7.
Provision of Information and Inspection of Register
12.8 Each Note Registrar must:
(a) (Information): provide to the Issuer Trustee, the
Global Trust Manager, the Note Trustee and each other
Agent such information as is contained in the
relevant Note Register and is required by them in
order to perform any obligation pursuant to a
Transaction Document;
(b) (Inspection): make the relevant Note Register:
(i) available for inspection or copying by the
Issuer Trustee, the Global Trust Manager, the
Note Trustee and each other Agent or their
agents or delegates; and
(ii) available for inspection by each Offshore
Noteholder but only in respect of information
relating to that Offshore Noteholder,
at the Note Registrar's Specified Office
during local business hours.
Correctness of Register and Information
12.9 The Issuer Trustee, the Note Trustee, the Global Trust
Manager and each Agent (other than the relevant Note
Registrar) may accept the correctness of each Note
Register and any information provided to it by the
relevant Note Registrar and is not required to enquire
into its authenticity. None of the Issuer Trustee, the
Note Trustee, the Global Trust Manager or any Agent
(including each Note Registrar) is liable for any mistake
in the Note Register or in any purported copy except to
the extent that the mistake is attributable to (in the
case of the parties other than the Issuer Trustee or the
Note Trustee) its own fraud, negligence or material breach
of obligation (or, in the case of the Issuer Trustee or
the Note Trustee), its fraud, negligence or (in the case
of the Issuer Trustee) breach of trust or (in the case of
the Note Trustee) wilful default.
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Non-recognition of Equitable Interests
12.10 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
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 Note
Trustee, each Note Registrar, the Issuer Trustee, the
Global Trust Manager or any other Agent is to be affected
by or compelled to recognise (even when having notice of
it) any right or interest in any Offshore Notes other than
the registered Offshore Noteholder's absolute right to the
entirety of them and the receipt of a registered Offshore
Noteholder is a good discharge to the Issuer, the Global
Trust Manager, the Note Trustee and each Agent.
Rectification of Note Registers
12.11 If:
(a) (Entry Omitted): an entry is omitted from a Note
Register;
(b) (Entry made otherwise than in accordance with this
agreement): an entry is made in a Note Register
otherwise than in accordance with this agreement;
(c) (Wrong entry exists): an entry wrongly exists in a
Note Register;
(d) (Error or defect exists in Register): there is an
error or defect in any entry in a Note Register; or
(e) (Default made): default is made or unnecessary delay
takes place in entering in a Note Register that any
person has ceased to be the holder of Offshore Notes,
then the relevant Note Registrar may rectify the same.
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No other obligation
13.1 Each of the Agents hereby undertakes to the Issuer Trustee
and the Note Trustee to perform such obligations and
duties, and shall be obliged to perform such duties and
only such duties, as are in this agreement, in the Class A
Note Conditions specifically set forth, and no implied
duties or obligations shall be read into this agreement,
the Note Trust Deed or the Offshore Notes against any of
the Agents, other than the duty to act honestly and in
good faith and to exercise the diligence of a reasonably
prudent agent in comparable circumstances.
Instructions
13.2 Subject to the other terms of this agreement and the Class
A Note Conditions, each Agent must act in accordance with
the instructions (if any) of the Issuer Trustee and the
Global Trust Manager in exercising its rights, powers and
discretions under this agreement.
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No instructions
13.3 Subject to the terms of this agreement, where instructions
of the Issuer Trustee are expressly required for the Agent
to take action under this agreement, in the absence of
instructions from the Issuer Trustee, no Agent is required
to take any action but may exercise its rights, powers and
discretions as it sees fit provided it does so in good
faith. Except where this agreement otherwise expressly
provides, no Agent need consult with the Issuer Trustee
before exercising a right, power or discretion under this
agreement.
Agent of the Issuer Trustee
13.4 In acting hereunder and in connection with the Offshore
Notes (and subject to clause 3.1), the Agents shall act
solely as agents of the Issuer Trustee and will not
thereby assume any obligations towards or relationship of
agency or trust for any holders of Offshore Notes except
that any funds received by the Principal Paying Agent for
the payment of any amounts in respect of the Offshore
Notes shall be held by it on trust for the relevant
holders until the earlier of the expiration of the
relevant prescription period and the date on which any
such amounts are repaid under clause 4.10.
Issuer Trustee not responsible for Agents
13.5 Notwithstanding any other provision contained in this
agreement, any other Transaction Document or at law, the
Issuer Trustee in its personal capacity is not responsible
for any act or omission of any Agent.
Reliance
13.6 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 Trustee or the Global Trust Manager or in
reliance upon any Offshore Note or upon any notice,
resolution, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed
by it to be genuine and to have been delivered, signed or
sent by the property party or parties.
Agent may employ
13.7 Each Agent may employ agents. Each of the Agents may
consult on any legal matter any legal adviser selected by
it, who may be an employee of or legal adviser to the
Issuer Trustee, and it shall be protected and shall incur
no liability for action taken, or suffered to be taken,
with respect to such matter in good faith and in
accordance with the opinion of such legal adviser.
Applicable laws
13.8 The Global Trust Manager must ensure, and no Agent has any
responsibility for ensuring, that the issue of, and
observance of obligations under, an Offshore Note complies
with all applicable laws and regulations and that all
authorisations necessary for the issue of, and observance
of obligations under, an Offshore Note are obtained and
maintained in full force and effect.
Accept deposits etc
13.9 Without any liability to account to an Offshore Noteholder
or any other person each Agent may accept deposits from,
lend money to, assume
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liabilities in relation to and generally engage in any
kind of banking, trust or other business with, the Issuer
Trustee as if it were not an Agent and may accept fees and
other consideration from the Issuer Trustee for services
in connection with this agreement or any other arrangement
without having to account for them to an Offshore
Noteholder or another person.
Dealing with money
13.10 Each Agent is entitled to deal with money paid to it
under this agreement in the same manner as other money
paid to it as banker by its customers except that:
(a) it is not entitled to exercise any lien, right of
set-off, combination of accounts or similar claim in
respect of it; and
(b) it shall not be liable to any person to account for
interest on any sums held by it under this agreement.
Income Tax Returns
13.11 The Principal Paying Agent will deliver to each Offshore
Noteholder such information as may be reasonably required
to enable such Offshore Noteholder to prepare its federal
and state income tax returns.
Holders of Notes
13.12 Except as ordered by a court of competent jurisdiction or
as required by law, each Paying Agent is entitled to treat
the person:
(a) (Book-Entry Notes) who is, while a Book-Entry Note
remains outstanding, the registered owner of that
Book-Entry Note as recorded in the relevant Note
Register as the absolute owner of each Note and as
the person entitled to receive payments of principal
or interest (as applicable) and each person shown in
the records of the relevant Depository as the holder
of any Note represented by a Book-Entry Note will be
entitled to receive from the registered owner of that
Book-Entry Note any payment so made only in
accordance with the respective rules and procedures
of the Depository;
(b) (Definitive Notes) who is the registered owner of any
Definitive Note as recorded in the relevant Note
Register as the absolute owner or owners of that
Definitive Note (whether or not that 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) (Note Trustee) who, when a Book-Entry Note in respect
of any Note is no longer outstanding but Definitive
Notes in respect of the Notes have not been issued,
is for the time being the Note Trustee, as the person
entrusted with the receipt of principal or interest,
as applicable, on behalf of the relevant Offshore
Noteholders,
in all cases and for all purposes, despite any notice to
the contrary, and will not be liable for so doing.
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Note or document believed to be genuine
13.13 Each of the Agents shall be protected and shall incur no
liability for or in respect of any action taken or omitted
or thing suffered by it in reliance upon any Note or other
document or any communication, certification, instruction,
request or order reasonably believed by it to be genuine
and to have been delivered, sent or signed by the proper
parties.
Agents as holders of Notes
13.14 Neither any Agent nor any other person whether acting for
itself or in any other capacity will be precluded from
becoming the owner of, or acquiring any interest in,
holding or disposing of any Offshore Note or any shares or
securities of the Issuer Trustee, with the same rights as
it would have had if such Agent were not acting as Agent
or from entering into or being interested in any contracts
or transactions with the Issuer Trustee, or from acting
on, or as depositary, trustee or agent for, any committee
or body of holders of any securities of the Issuer
Trustee, and will not be liable to account for any profit.
Communication between the Parties
13.15 A copy of all communications relating to the subject
matter of this agreement between the Issuer Trustee or the
Note Trustee and the Offshore Noteholders and any of the
Paying Agents (other than the Principal Paying Agent)
shall be sent to the Principal Paying Agent by the
relevant Paying Agent.
Termination
13.16 An Agent may resign its appointment under this agreement
and the Global Trust Manager may, with the prior written
approval of the Note Trustee and the Issuer Trustee,
terminate the appointment of an Agent under this agreement
at any time by giving not less than 45 days' written
notice to that effect to the Global Trust Manager or the
Agent respectively (which shall not expire less than 15
days before or after any Payment Date) provided that:
(a) no such resignation or termination of the appointment
of the Principal Paying Agent shall take effect until
a successor has been appointed by the Issuer Trustee
(at the direction of the Global Trust Manager) on
terms approved in writing by the Note Trustee and the
Issuer Trustee;
(b) no such resignation or termination shall take effect
if as a result of such resignation or termination
there would cease to be Agents as required in the
Class A Note Conditions; and
(c) there must at all times be a Paying Agent in
Luxembourg.
If the Global Trust Manager does not appoint a successor
Principal Paying Agent by the day falling 10 days before
the expiration of such 45 days, the Principal Paying Agent
may appoint as a successor Principal Paying Agent a
reputable financial institution of good standing which the
Issuer Trustee and the Note Trustee approve (such approval
not to be unreasonably withheld) or it may petition a
court of competent jurisdiction to do so. Any successor
Principal Paying Agent must forthwith enter into an
agreement on substantially the same terms as this
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agreement and each Current Rating Agency must be notified
of any appointment by the Global Trust Manager.
If the appointment of the Principal Paying Agent
terminates, the Principal Paying Agent shall, 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 Note,
and shall deliver to the successor Principal Paying Agent
all records maintained by it pursuant to this agreement
and all documents (including any Definitive Notes) held by
it.
Publication
13.17 Immediately following the receipt of any notice of
resignation of any Agent and forthwith on giving notice
appointing an Agent or terminating any Agent's appointment
hereunder, the Global Trust Manager shall publish or cause
to be published notice thereof to the holders of the
Offshore Notes in accordance with the Class A Note
Conditions. On the date on which any such termination or
resignation takes effect, the relevant Agent shall deliver
to the Issuer Trustee, or as the Issuer Trustee may
direct, all records maintained by it, and any Offshore
Notes in its possession, pursuant hereto and shall resign,
it shall in addition pay to or to the order of the Issuer
Trustee any amount held by it, and received from the
Issuer Trustee for payment in respect of the Offshore
Notes. Upon its resignation or termination of appointment
taking effect, the relevant Paying Agent shall be entitled
to the payment by the Issuer Trustee of its commissions,
fees and expenses then unpaid and shall continue to be
entitled to the benefit of clause 14.2 in respect of the
period of its appointment.
Termination of appointment
13.18 The appointment of any Agent shall forthwith terminate if
at any time:
(a) an Insolvency Event occurs in relation to that Agent;
or
(b) the Agent ceases to conduct business; or
(c) it fails to remedy within 5 Business Days after prior
written notice by the Issuer Trustee or the Global
Trust Manager any material breach of this agreement
on the part of the Agent.
The Issuer Trustee acting on the direction of the Global
Trust Manager may appoint a successor Agent which shall be
a reputable financial institution of good standing
approved by the Note Trustee.
New Agents
13.19 Upon its appointment becoming effective, a successor
Agent shall, without further act, deed or conveyance,
become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of its
predecessor or, as the case may be, a Paying Agent with
like effect as if originally named as an Agent under this
agreement.
Merger
13.20 Any corporation into which any Agent or its agency
business may be merged, sold or converted or any
corporation with which such Agent
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may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which such Agent
shall be a party shall, to the extent permitted by
applicable law, be the successor Agent under this
agreement without any further formality. Notice of any
such merger, conversion or consolidation shall forthwith
be given by that Agent to the Issuer Trustee, Note Trustee
and the other Agents.
Notice to Offshore Noteholder
13.21 The Global Trust Manager on behalf of the Issuer Trustee
will, within 5 days of:
(a) (Termination): the termination of the appointment of
any Agent;
(b) (Resignation): the resignation of any Agent; or
(c) (Appointment): the appointment of a new Agent,
give to the Offshore Noteholders notice of the
termination, appointment or resignation in accordance with
Condition 11 of the Class A Note Conditions (in the case
of a termination under clause 13.18 at the cost of the
outgoing Agent). Notwithstanding clause 13.18, neither the
termination of the appointment of an Agent, nor the
resignation of an Agent, will take effect until notice
thereof is given to the Offshore Noteholders in accordance
with this clause 13.21.
Change of specified office
13.22 If any Agent changes its Specified Office, it shall give
to the Issuer Trustee, the Global Trust Manager, the Note
Trustee and each other Agent written notice of the address
of the new Specified Office stating the date on which such
change is to take effect, which date shall be not less
than 30 days after the date of such notice, provided that
an Agent shall not change its Specified Office to another
city without the prior consent of the Issuer Trustee and
the Global Trust Manager. The Global Trust Manager shall
within 15 days of receipt of any such notice (unless the
appointment of the Principal Paying Agent or the relevant
Paying Agent is to terminate pursuant to any of the
foregoing clauses on or prior to the date of such change)
publish or cause to be published notice thereof to the
Offshore Noteholders in accordance with the Class A Note
Conditions.
13.23 Anything in this agreement to the contrary
notwithstanding, in no event shall the Agent by liable
under or in connection with this agreement for indirect,
special, incidental, punitive or consequential losses or
damages of any kind whatsoever, including but not limited
to lost profits, whether or not foreseeable, even if the
Agent has been advised to the possibility thereof and
regardless of the form of action in which such damages are
sought.
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14 Stamp duties and indemnities
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Stamp duties
14.1 The Issuer Trustee agrees to pay any and all stamp and
other documentary taxes or duties which may be payable in
the Commonwealth of Australia, the Australian Capital
Territory, the United States, United Kingdom and
Luxembourg by the Paying Agents or the Note Trustee in
connection with the execution, delivery, performance and
enforcement of this agreement.
Indemnity by Issuer Trustee
14.2 Subject to clause 16, the Issuer Trustee shall indemnify
each Agent against any loss, liability, cost, claim,
action, demand or expense (including, but not limited to,
all reasonable costs, charges and expenses paid or
incurred in disputing or defending any of the foregoing)
that it may incur or that may be made against it arising
out of or in relation to or in connection with its
appointment or the exercise of its functions, except such
as may result from a breach by it of this agreement or its
own negligence, bad faith or breach of trust or that of
its officers, employees or agents.
15 Commissions and Expenses
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Principal Paying Agent
15.1 The Issuer Trustee agrees to pay to the Principal Paying
Agent, from its own funds and not from the Assets of the
Trust, such fees and commissions as the Issuer Trustee and
the Principal Paying Agent shall separately agree in
respect of the services of the Principal Paying Agent and
the other Paying Agents under this agreement together with
any reasonable out-of-pocket expenses (including legal,
printing, postage, fax, cable and advertising expenses and
GST (if any)) incurred by the Principal Paying Agent and
the other Paying Agents in connection with this agreement
and its supply of services. If the appointment of an Agent
is terminated under and in accordance with clause 13.18 of
this agreement or where the Agent resigns under and in
accordance with clause 13.16 of this agreement, the
Principal Paying Agent must refund to the Issuer Trustee
their proportion of the fee (if any) which relates to the
period during which the Agent's appointment is terminated
or comes to an end, as the case may be.
Other Agents
15.2 The Principal Paying Agent will make payment of the fees
and commissions due hereunder to the other Agents and will
reimburse their expenses promptly after the receipt of the
relevant moneys from the Issuer Trustee in each case
unless otherwise agreed with the Issuer Trustee. The
Issuer Trustee shall not be responsible for any such
payment or reimbursement by the Principal Paying Agent to
the other Agents.
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16 Issuer Trustee's limitation of liability
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Clause 2 of the Definitions Schedule applies to this
agreement as if set out in full in it (with any
consequential changes as are necessary to give effect to
that clause in this agreement).
17 Notices
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Form
17.1 Subject to clauses 17.4 and 17.5, a notice, approval,
consent or other communication in connection with this
agreement:
(a) may be given by an Authorised Person of the relevant
party;
(b) must be in writing; and
(c) must be left at the address of the addressee or sent
by prepaid ordinary post to the address of the
addressee or sent by facsimile to the facsimile
number of the addressee, or sent by e-mail to the
e-mail address of the addressee specified in clause
17.2 or any other address, facsimile number or e-mail
address any party may from time to time notify to the
other parties as its address for service of
communications pursuant to this agreement.
Initial addresses
17.2 The initial address and facsimile numbers of the Issuer
Trustee, the Global Trust Manager, the Principal Paying
Agent, the Paying Agent and the Note Trustee are set out
in the schedule to this agreement.
Time effective
17.3 Unless a later time is specified in it, a notice,
approval, consent or other communication takes effect from
the time it is received.
Receipt
17.4 A letter, e-mail or facsimile is taken to be received:
(a) in the case of a posted letter, on the third
(seventh, if posted to or from a place outside
Australia) day after posting;
(b) in the case of a facsimile, on production of a
transmission report by the machine from which the
facsimile was sent which indicates that the facsimile
was sent in its entirety to the facsimile number of
the recipient notified for the purpose of this clause
17; and
(c) in the case of an e-mail, on receipt by the sender of
an e-mail from the recipient stating that the e-mail
was delivered in its entirety and the contents and
attachments of the e-mail have been received.
However, if the time of deemed receipt of any notice is
not before 4.00 p.m. (local time at the address of the
recipient) on a Business Day it is
26
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deemed to have been received at the commencement of
business on the next following Business Day.
17.5 All notices are valid if despatched by prepaid ordinary
post (airmail if posted to a place outside Australia) to
the relevant party's registered office (or, in the case of
registered Offshore Noteholders, to the address specified
in the relevant Note Register and, in the case of joint
holders, to the person whose name first appears in the
relevant Note Register). Such notice is taken to be
received on the third (seventh, if posted to a place
outside Australia) day after posting.
17.6 Where a notice or other communication is to be provided
under this agreement to an Offshore Noteholder of a Note
in bearer form, the notice may be given in accordance with
the relevant Note Trust Deed.
18 Miscellaneous
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Certificate
18.1 A certificate signed by the parties or its solicitors
about a matter or about a sum payable to the parties to
this agreement in connection with this agreement is
sufficient evidence of the matter or sum stated in the
certificate unless the matter or sum is proved to be
false.
Exercise of rights
18.2 The parties to this agreement or an attorney appointed
under this agreement may exercise a right, power or remedy
at its discretion, and separately or concurrently with
another right, power or remedy. A single or partial
exercise of a right, power or remedy by the person does
not prevent a further exercise of that or an exercise of
any other right, power or remedy. Failure by the person to
exercise or delay in exercising a right, power or remedy
does not prevent its exercise. The person with the right,
power or remedy is not liable for any loss caused by its
exercise, attempted exercise, failure to exercise or delay
in exercising it except in the case of its fraud or wilful
default or, in the case of the Issuer Trustee, negligence,
fraud or breach of trust.
Waiver and variation
18.3 A provision of or a right created under this agreement may
not be waived or varied except in writing signed by the
party or parties to be bound.
Supervening legislation
18.4 Any present or future legislation which operates to vary
the obligations of the parties to this agreement in
connection with this agreement with the result that the
rights, powers or remedies of the parties are adversely
affected (including, without limitation, by way of delay
or postponement) is excluded except to the extent that its
exclusion is prohibited or rendered ineffective by law.
Approvals and consent
18.5 The parties to this agreement or an attorney appointed
under this agreement may give conditionally or
unconditionally or withhold their
27
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approval or consent in their absolute discretion, unless
this agreement expressly provides otherwise.
Remedies cumulative
18.6 The rights, powers and remedies provided in this agreement
are cumulative with and not exclusive of the rights,
powers or remedies provided by law independently of this
agreement.
Indemnities
18.7 Each indemnity in this agreement is a continuing
obligation, separate and independent from the other
obligations of the parties to this agreement and survives
termination of this agreement. It is not necessary for the
parties to this agreement to incur expense or make payment
before enforcing a right of indemnity conferred by this
agreement.
Time of the essence
18.8 Time is of the essence in this agreement in respect of an
obligation of any of the parties to this agreement to pay
money.
Receipts
18.9 The receipt of a Receiver, or an Authorised Person of the
parties to this agreement, releases the person paying
money to the Receiver or the parties to this agreement in
connection with this agreement from:
(a) liability for the money paid or expressed to be
received; and
(b) being concerned to see to its application or being
answerable or accountable for its loss or
misapplication.
Acknowledgment
18.10 The parties acknowledge and agree that in exercising
their powers and discretions under this agreement, and in
performing their obligations under this agreement, they
must act in accordance with their duties and obligations
under this agreement, and they may exercise such powers
and discretions as provided in this agreement, and
(without limitation) in forming any opinion may obtain and
act upon the advice of persons who are not parties to this
agreement.
18.11 The parties acknowledge that they are bound by the terms
of this agreement.
Disclosure of information
18.12 Subject to this agreement, the parties to this agreement
are not required (unless ordered so to do by a court of
competent jurisdiction) to disclose to any Unitholder,
Secured Creditor or any other person confidential,
financial or other information made available to the
parties to this agreement in connection with this
agreement.
Rights cumulative
18.13 The rights, powers and remedies provided in this
agreement are cumulative and not exclusive of the rights,
powers or remedies provided by law independently of this
agreement.
28
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Signatures
18.14 The parties to this agreement may rely on the validity of
any signature on any transfer, form of application or
other instrument or document unless the parties to this
agreement (as the case may be) have reasonable grounds to
believe that the signature is not genuine. None of the
parties to this agreement are liable to make good out of
their own funds any loss incurred by any person if a
signature is forged or otherwise fails to bind the person
whose signature it purports to be or on whose behalf it
purports to be made. Any such loss, subject to any right
of reimbursement from any other person (including the
parties to this agreement) is to be borne by the relevant
Trust in respect of which the loss is incurred.
Limitation of Note Trustee's Liability
18.15 The Note Trustee is a party to this agreement in its
capacity as trustee of the Note Trust. The liability of
the Note Trustee under this agreement is limited in the
manner and to the same extent as under the Note Trust
Deed.
19 Amendment
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This agreement may be amended by the Issuer Trustee, the
Note Trustee and the Agents without the consent of any
holder of Offshore Notes or Coupons if the amendment:
(a) is in the opinion of the Note Trustee and based upon
such independent legal advice as it may require made
to correct a manifest error or is of a formal,
technical or administrative nature; or
(b) is considered by the Note Trustee and based upon such
independent legal advice as it may require not to be
materially prejudicial to the interests of the
Offshore Noteholders.
Any amendment must be notified to each Current Rating
Agency.
20 Governing law and submission to jurisdiction
-------------------------------------------------------------------------------
Governing Law
20.1 This agreement is governed by the law in force in the
Australian Capital Territory and the rights, liabilities
and obligations of the parties to this agreement are
governed by the laws in force in the Australian Capital
Territory.
Submission to jurisdiction
20.2 Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of the Australian
Capital Territory and courts of appeal from them. Each
party waives any right it has to object to an action being
brought in those courts including, without limitation, by
claiming that the action has been brought in an
inconvenient forum or that those courts do not have
jurisdiction.
29
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Service
20.3 Without preventing any other mode of service, any document
in an action (including, without limitation, any writ of
summons or other originating process or any third or other
party notice) may be served on any party by being
delivered to or left for that party at its address for
service of notices under clause 17.
21 Counterparts
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This agreement may consist of a number of counterparts and
the counterparts taken together constitute one and the
same instrument.
EXECUTED as an agreement.
30
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Schedule Initial Contact Details
-----------------------------------------------------------------
Issuer Trustee
Address: Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Attention: Manager, Securitisation
Facsimile: (00) 0000 0000
Email: as notified from time to time
Global Trust Manager
Address: Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Attention: Manager, Group Funding
Facsimile: (00) 0000 0000
Email: as notified from time to time
Note Trustee
Address: 000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx
Xxx Xxxx 00000
Attention: Global Structured Products Unit
Facsimile: (000) 000 0000
Email: as notified from time to time
Copy to:
Address: Xxx Xxxxxxx Xxxxxx
#00-00 Xxxxxxxx Xxxxx
Xxxxxxxxx 000000
Attention: Structured Finance Unit
Facsimile: (00) 0000 0000
Email: as notified from time to time
Class A-1 Note Registrar
Address: 000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx
Xxx Xxxx 00000
Attention: Global Structured Products Unit
Facsimile: (000) 000 0000
Email: as notified from time to time
31
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Copy to:
Address: Xxx Xxxxxxx Xxxxxx
#00-00 Xxxxxxxx Xxxxx
Xxxxxxxxx 000000
Attention: Structured Finance Unit
Facsimile: (00) 0000 0000
Email: as notified from time to time
Principal Paying Agent
Address: 000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx
Xxx Xxxx 00000
Attention: Global Structured Products Unit
Facsimile: (000) 000 0000
Email: as notified from time to time
Copy to:
Address: Xxx Xxxxxxx Xxxxxx
#00-00 Xxxxxxxx Xxxxx
Xxxxxxxxx 000000
Attention: Structured Finance Unit
Facsimile: (00) 0000 0000
Email: as notified from time to time
Class A-3 Note Registrar, Calculation Agent and London
Paying Agent
Address: 00xx Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Attention: Global Structured Products Unit
Facsimile: (000) 000 0000
Email: as notified from time to time
Copy to:
Address: Xxx Xxxxxxx Xxxxxx
#00-00 Xxxxxxxx Xxxxx
Xxxxxxxxx 000000
Attention: Structured Finance Unit
Facsimile: (00) 0000 0000
Email: as notified from time to time
Luxembourg Paying Agent
Address: 2 boulevard Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxx: as notified from time to time
Facsimile: as notified from time to time
Email: as notified from time to time
32
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33
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Execution Page
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ISSUER TRUSTEE
SIGNED by Xxxx Xxxxxxx )
.................... )
as attorney for PERPETUAL )
TRUSTEE COMPANY LIMITED under )
power of attorney dated )
21 September 2004 )
............................... )
in the presence of: )
)
)
/s/ Xxx Xxxxxxx-Xxxxxx )
............................... )
Signature of witness ) /s/ Xxxx Xxxxxxx
) ............................
Xxx Xxxxxxx-Xxxxxx ) By executing this agreement
............................... ) the attorney states that
Name of witness (block ) the attorney has received
letters) no notice of revocation of
the power of attorney
..............................
GLOBAL TRUST MANAGER
SIGNED by Xxxxxxx Xxxxx )
)
as attorney for NATIONAL )
GLOBAL MBS MANAGER PTY LTD )
under power of attorney dated )
21 September 2004 )
in the presence of: ) /s/ Xxxxxxx Xxxxx
) ..............................
) By executing this agreement
) the attorney states that
/s/ Xxxxx Xxxxxxx ) the signatory has received
............................... ) no notice of revocation of
Signature of witness ) the power of attorney
)
Xxxxx Xxxxxxx )
............................... )
Name of witness (block
letters)
34
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NOTE TRUSTEE, CLASS A-1 NOTE REGISTRAR AND PRINCIPAL PAYING
AGENT
SIGNED by Xxxxxx Xxx........ )
as authorised signatory for )
THE BANK OF NEW YORK, NEW )
YORK in the presence of: )
)
)
/s/ Xxxxxxx Xxx ) /s/ Xxxxxx Xxx
............................. ) ...............................
Signature of witness ) By executing this agreement
) the signatory states that
Xxxxxxx Xxx................. ) the signatory has received
Name of witness (block ) no notice of revocation of
letters) the authority under which
this agreement is signed
LONDON PAYING AGENT, CALCULATION AGENT AND CLASS A-3 NOTE
REGISTRAR
SIGNED by Xxxxxx Xxx........ )
as authorised signatory for )
THE BANK OF NEW YORK, LONDON )
BRANCH in the presence of: )
)
)
/s/ Xxxxxxx Xxx............. ) /s/ Xxxxxx Xxx......................
Signature of witness ) By executing this agreement
) the signatory states that
Xxxxxxx Xxx................. ) the signatory has received
Name of witness (block ) no notice of revocation of
letters) the authority under which
this agreement is signed
35
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LUXEMBOURG PAYING AGENT
SIGNED by Authorised Signatory )
as attorney for DEUTSCHE BANK )
LUXEMBOURG X.X.xx the )
presence of: )
)
)
/s/ Authorised Signatory )
-------------------------- )
Signature of witness )
)
Authorised Signatory )
-------------------------- )
Name of witness (block )
letters) )
) /s/ Authorised Signatory
............................. ) ------------------------
Address of witness ) By executing this agreement
) the attorney states that
............................. ) the attorney has received
Occupation of witness no notice of revocation of
the power of attorney
-------------------------------
Dated 28 September 2004
National RMBS Trust 2004-1
Agency Agreement
Perpetual Trustee Company
Limited
("Issuer Trustee")
National Global MBS Manager,
Pty Ltd
("Global Trust Manager")
and
The Bank of New York, New York
("Note Trustee", "Class A-1
Note Registrar", "Class A-3
Note Registrar" and
"Principal Paying Agent")
The Bank of New York, London
Branch ("London Paying Agent"
and "Calculation Agent")
Deutsche Bank Luxembourg S.A.
("Luxembourg Paying Agent")
Mallesons Xxxxxxx Xxxxxx
Solicitors
Governor Xxxxxxx Xxxxx
0 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Telephone (00 0) 0000 0000
Fax (00 0) 0000 0000
DX 000 Xxxxxx
Ref: EN:SRF
(C)Mallesons Xxxxxxx Xxxxxx
(i)
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Contents National RMBS Trust 2004-1 Agency Agreement
-------------------------------------------------------------------------------
1 Definitions and Interpretation 1
Definitions Schedule 1
Definitions 2
2 Appointment of Agents 3
Appointment of Agents 3
Acceptance of appointment 4
Representation by each Agent 4
Additional Agents 4
Acknowledgment 4
3 The Note Trustee 5
Agents to act for Note Trustee 5
Good Discharge to Issuer Trustee 5
Notice of change of the Note Trustee 5
4 Payments 6
Payments of amounts due 6
Payments by Paying Agents 6
Notification 6
Paying Agents to Record, Notify Payments
and Deliver Surrendered Notes 7
Make payments 7
Non-Payment 7
Full amount not received 7
Interest on overdue amounts 8
Reimburse other Agents 8
Late payment 8
Partial payments 8
Deductions 9
Unpaid money 9
No Set-off 9
Currency Swaps 9
Trust 9
5 Exchange of Book-Entry Notes 10
Exchange for Definitive Notes 10
Notification 10
Outstanding amount 10
6 Redemption 10
Part Redemption of Notes on Payment
Dates 10
Early Redemption 10
7 General note registrar and paying agent
matters 11
Notices to Offshore Noteholders 11
Copies of Documents for inspection 11
Notice of any Withholding or Deduction 11
8 Copies of documents available for
inspection 12
9 Documents and forms 12
(ii)
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Principal Paying Agent 12
Notes, etc held by Paying Agents 12
10 Receipt of notices and voting 13
Copy notices to Issuer Trustee 13
Voting 13
11 Duties of Calculation Agent 13
Appointment 13
Quotations 14
Notice 14
Calculations 14
Failure to calculate 14
12 Duties of the Note Registrars 15
Offshore Note Register to be kept 15
Transfer or Exchange of Offshore Notes 15
Replacement of Lost or Mutilated
Offshore Notes 16
Obligations upon Transfer, Exchange
or Replacement of Offshore Notes 16
No Charge for Transfer or Exchange 17
Restricted Period 17
Cancellation of Offshore Notes 17
Provision of Information and Inspection
of Register 17
Correctness of Register and Information 17
Non-recognition of Equitable Interests 18
Rectification of Note Registers 18
13 Relationship 18
No other obligation 18 Instructions 19
No instructions 19
Agent of the Issuer Trustee 19
Issuer Trustee not responsible for
Agents 19
Reliance 19
Agent may employ 19
Applicable laws 20
Accept deposits etc 20
Dealing with money 20
Income Tax Returns 20
Holders of Notes 20
Note or document believed to be genuine 21
Agents as holders of Notes 21
Communication between the Parties 21
Termination 21
Publication 22
Termination of appointment 22
New Agents 23
Merger 23
Notice to Offshore Noteholder 23
Change of specified office 23
14 Stamp duties and indemnities 24
Stamp duties 24
(iii)
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Indemnity by Issuer Trustee 24
15 Commissions and Expenses 24
Principal Paying Agent 24
Other Agents 24
16 Issuer Trustee's limitation of
liability 25
17 Notices 25
Form 25
Initial addresses 25
Time effective 25
Receipt 25
18 Miscellaneous 26
Certificate 26
Exercise of rights 26
Waiver and variation 26
Supervening legislation 26
Approvals and consent 26
Remedies cumulative 27
Indemnities 27
Time of the essence 27
Receipts 27
Acknowledgment 27
Disclosure of information 27
Rights cumulative 27
Signatures 28
Limitation of Note Trustee's Liability 28
19 Amendment 28
20 Governing law and submission to
jurisdiction 28
Governing Law 28
Submission to jurisdiction 28
Service 29
21 Counterparts 29
