Exhibit 4.5
Draft: 9 March 2000
Series 2000-1G Medallion Trust
Agency Agreement
Date:
Perpetual Trustee Company Limited
Issuer
Securitisation Advisory Services Pty. Limited
Manager
The Bank of New York, New York Branch
Class A-1 Note Trustee
Class A-1 Note Registrar
Principal Paying Agent
Agent Bank
The Bank of New York, London Branch
Paying Agent
XXXXXXX XXX
Lawyers
Levels 27-35
Xx.0 X'Xxxxxxx Xxxxxx
XXXXXX XXX 0000
XXXXXXXXX
(C) Copyright Xxxxxxx Xxx
Liability is limited by the Solicitors Scheme under the Professional Standards
TABLE OF CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Series Supplement and Master Trust Deed Definitions 3
1.3 Interpretation 3
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 5
2.1 Appointment 5
2.2 Several Obligations of Paying Agents 5
3. PAYMENTS 5
3.1 Payment by Issuer 5
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 6
3.7 Reimbursement 7
3.8 Payment under Currency Swap 7
3.9 Principal Paying Agent holds funds on trust 7
3.10 Principal Paying Agent may deal with funds 7
3.11 No Set-Off 7
3.12 Holders of Class A-1 Notes 7
3.13 Repayment of Moneys 8
3.14 Paying Agents to Record, Notify Payments and Deliver Surrendered Notes 8
4. APPOINTMENT AND DUTIES OF THE AGENT BANK 8
4.1 Appointment 8
4.2 Determinations by Agent Bank 8
4.3 Notification by Agent Bank 9
4.4 Class A-1 Note Trustee to Perform Agent Bank's Function 9
4.5 Documents to Agent Bank 9
5. APPOINTMENT AND DUTIES OF THE CLASS A-1 NOTE REGISTRAR 9
5.1 Class A-1 Note Xxxxxxxxx 0
5.2 Class A-1 Note Register to be Kept 9
5.3 Transfer or Exchange of Class A-1 Notes 10
5.4 Replacement of Lost or Mutilated Class A-1 Notes 10
5.5 Obligations upon Transfer, Exchange or Replacement of Class A-1 Notes 10
5.6 No Charge for Transfer or Exchange 11
5.7 Restricted Period 11
5.8 Cancellation of Class A-1 Notes 11
5.9 Provision of Information 11
5.10 Correctness of Register and Information 11
5.11 Non-recognition of Equitable Interests 12
5.12 Rectification of Class A-1 Note Register 12
(i)
TABLE OF CONTENTS
Clause Page
6. CLASS A-1 NOTE TRUSTEE'S REQUIREMENTS REGARDING AGENTS 12
6.1 Following Enforcement of the Charge or issue of Definitive Notes 12
6.2 Good Discharge to Issuer 13
6.3 Change of Authorised Officers 13
7. REDEMPTION OF CLASS A-1 NOTES 13
7.1 Part Redemption of Class A-1 Notes on Distribution Dates 13
7.2 Early Redemption 14
8. GENERAL PAYING AGENT MATTERS 14
8.1 Notices to Class A-1 Noteholders 14
8.2 Copies of Documents for Inspection 14
8.3 Notice of any Withholding or Deduction 14
9. INDEMNITY 15
9.1 Indemnity by Issuer 15
9.2 Indemnity by Agent 15
10. CHANGES IN AGENTS 15
10.1 Appointment and Removal 15
10.2 Resignation 16
10.3 Limitation of Appointment and Termination 16
10.4 Payment of amounts held by the Principal Paying Agent 16
10.5 Records held by Class A-1 Note Xxxxxxxxx 00
10.6 Successor to Principal Paying Agent, Agent Bank, Class A-1 Note
Xxxxxxxxx 00
10.7 Notice to Class A-1 Noteholders 17
10.8 Change in Specified Office 18
11. MISCELLANEOUS DUTIES AND PROTECTION 18
11.1 Agents are agents of the Issuer 18
11.2 Agency 18
11.3 Reliance 18
11.4 Entitled to Deal 18
11.5 Consultation 19
11.6 Duties and Obligations 19
11.7 Income Tax Returns 19
11.8 Representation by each Agent 19
12. FEES AND EXPENSES 19
12.1 Payment of Fee 19
12.2 Payment of Expenses 19
12.3 No Other Fees 19
12.4 Payment of Fees 19
12.5 No Commission 20
12.6 Issuer Personally Liable for Fees 20
12.7 Timing of Payments 20
13. NOTICES 20
13.1 Method of Delivery 20
13.2 Deemed Receipt 20
(ii)
TABLE OF CONTENTS
Clause Page
13.3 Communications through Principal Paying Agent 21
14. ISSUER'S LIMITATION OF LIABILITY 21
14.1 Limitation on Issuer's Liability 21
14.2 Claims against Issuer 21
14.3 Breach of Trust 21
14.4 Acts or omissions 21
14.5 No Authority 22
14.6 No obligation 22
15. GENERAL 22
15.1 Waiver 22
15.2 Written Waiver, Consent and Approval 22
15.3 Severability 22
15.4 Survival of Indemnities 22
15.5 Assignments 22
15.6 Successors and Assigns 23
15.7 Moratorium Legislation 23
15.8 Amendments 23
15.9 Governing Law 23
15.10 Jurisdiction 23
15.11 Counterparts 23
15.12 Limitation of Class A-1 Note Trustee's Liability 23
(iii)
THIS AGENCY AGREEMENT is made on 2000
BETWEEN PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007, a company
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")
AND SECURITISATION ADVISORY SERVICES PTY. LIMITED, ACN 064 133 946, a
company 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")
AND 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 Class X-
0 Trust (as hereinafter defined) (hereinafter included by
incorporation in the expression the "Class A-1 Note Trustee")
AND 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 "Class A-1 Note Registrar")
AND 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")
AND 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 "Agent Bank")
AND 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 (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$[] Class A-1 Mortgage Backed Floating Rate Notes due 12 July 2031
(the "Class A-1 Notes").
B. The Class A-1 Notes will be constituted pursuant to the Class A-1 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 Class A-1 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.
THE PARTIES AGREE as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, unless the contrary intention appears:
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"Agent" means a several reference to each Paying Agent, the Class A-1 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 Class A-1 Note Trustee, and the Class A-1 Note Registrar, the
Agent Bank and the Principal Paying Agent while these are the same
person as the Class A-1 Note Trustee, has the same meaning as the term
"Authorised Officer" in relation to the Class A-1 Note Trustee has in
the Class A-1 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 Class A-1 Note
Trust Deed.
"Class A-1 Definitive Note" has the same meaning as in the Class A-1 Note
Trust Deed.
"Class A-1 Noteholders" has the same meaning as in the Class A-1 Note Trust
Deed.
"Class A-1 Note Register" means the register established in accordance with
clause 5.2.
"Class A-1 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.
"Class A-1 Trust" means the trust of that name constituted by the Class A-1
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 principal paying
agent under this Agreement.
"Quarterly Servicing Report" has the same meaning as in the Class A-1 Note
Conditions.
"Series Supplement" means a Series Supplement dated [] between
Commonwealth Bank
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of Australia, ACN 123 123 124 (as Seller and initial Servicer), the Manager
and the Issuer.
"Series Trust" means the trust known as the Series 2000-1G Medallion Trust
established pursuant to the Master Trust Deed and the Series Supplement.
"Specified Office" in relation to:
(a) the Class A-1 Note Registrar, means the offices of the Class A-1 Note
Registrar as specified in the Class A-1 Note Conditions or otherwise
under this Agreement as the offices of the Class A-1 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 Class A-1 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
Class A-1 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
Class A-1 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 Agreements.
"UCC" means the Uniform Commercial Code of New York.
1.2 Series Supplement and Master Trust Deed Definitions
Subject to clause 1.6, unless defined in this Agreement, words and phrases
defined in either or both of the Master Trust Deed and the Series
Supplement have the same meaning in this Agreement. Where there is any
inconsistency in a definition between this Agreement (on the one hand) and
the Master Trust Deed or the Series Supplement (on the other hand), this
Agreement prevails. Where there is any inconsistency in a definition
between the Master Trust Deed and the Series Supplement, the Series
Supplement prevails over the Master Trust Deed in respect of this
Agreement. Subject to clause 1.6, where words or phrases used but not
defined in this Agreement are defined in the Master Trust Deed in relation
to a Series Trust (as defined in the Master Trust Deed) and/or an Other
Trust such words or phrases are to be construed in this Agreement, where
necessary, as being used only in relation to the Series Trust (as defined
in this Agreement) and/or the CBA Trust, as the context requires.
1.3 Interpretation
In this Agreement, unless the contrary intention appears:
(a) headings are for convenience only and do not affect the
interpretation of this Agreement;
(b) a reference to this "Agreement" includes the 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;
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(e) subject to clause 1.6, a reference to any document or agreement is to
such document or agreement as amended, novated, supplemented, varied
or replaced from time to time;
(f) a reference to any legislation or to any section or provision of any
legislation includes any statutory modification or re-enactment or any
statutory provision substituted for that legislation and all
ordinances, by-laws, regulations and other statutory instruments
issued under that legislation, section or provision;
(g) words importing the singular include the plural (and vice versa) and
words denoting a given gender include all other genders;
(h) a reference to a clause is a reference to a clause of this Agreement;
(i) a reference to "wilful default" in relation to a party means, subject
to clause 1.3(j), any wilful failure by that party to comply with, or
wilful breach by the 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 the that party
and of its officers, employees, agents and any other person where that
party is liable for the acts or omissions of such other person under
the terms of any Transaction Document;
(k) where any word or phrase is given a defined meaning, any other part of
speech or other grammatical form in respect of such word or phrase has
a corresponding meaning;
(l) where any day on which a payment is due to be made or a thing is due
to be done under this Agreement is not a Business Day, that payment
must be made or that thing must be done on the immediately succeeding
Business Day;
(m) a reference to the "close of business" on any day is a reference to
5.00 pm on that day;
(n) a reference to time is to local time in Sydney;
(o) subject to clause 13, 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
4
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.
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.
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
5
available for the purpose) to be paid on that Distribution Date in respect
of the Class A-1 Notes under the Class A-1 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 Class A-1 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.
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 Class A-1 Note Conditions.
3.5 Non-Payment
(a) (No obligation on Paying Agents): If the Issuer fails to make any
payment, unless and until the full amount of the payment has been
made under the terms of this Agreement (except as to the time of
making the payment) or other arrangements satisfactory to the
Principal Paying Agent have been made, none of the Principal
Paying Agent nor any of the other Paying Agents is bound to make
any payment in accordance with this clause 3 (but may, in its
discretion, make any such payment).
(b) (Notice of Non-receipt): The Principal Paying Agent will
immediately notify by facsimile the other Paying Agents, the
Class A-1 Note Trustee, the Issuer, the Security Trustee, the
Standby Swap Providers 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 Class A-1 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 Class A-1
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 Class A-1 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 Class A-1
Note Conditions, to the Class A-1 Noteholders that it has
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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 Class A-1 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 Swap
The payment by the Issuer of its Australian dollar payment obligations
under the Series Supplement on each Distribution Date to the Currency Swap
Providers 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 Class X-
0 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 Class A-1 Note Trustee or the
Class A-1 Noteholders in accordance with the Class A-1 Note Trust Deed or
the Class A-1 Note Conditions or repaid under clause 3.13.
3.10 Principal Paying Agent may deal with funds
Subject to the terms of this Agreement, the Principal Paying Agent is
entitled to deal with moneys paid to it under this Agreement in the same
manner as other moneys paid to it as a banker by its customers. The
Principal Paying Agent is entitled to retain for its own account any
interest earned on such moneys, except as required by law.
3.11 No Set-Off
No Paying Agent is entitled to exercise any right of set-off, withholding,
counterclaim or lien against, or make any deduction in any payment to, any
person entitled to receive amounts of principal or interest on the Class X-
0 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 Class A-1 Note
Register as the absolute owner of each 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 Class A-1 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
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or any notice of previous loss or theft or of any trust or other
interest in it); and
(b) (Class A-1 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 Class A-1 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 Class A-1 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 Class A-1 Note Trustee, by the
Issuer remain unpaid.
3.14 Paying Agents to Record, Notify Payments and Deliver Surrendered
Notes
Each Paying Agent must:
(a) (Notify Class A-1 Note Registrar): promptly notify the Class A-1
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 Class A-1
Note Trustee or the Class A-1 Note Registrar upon request; and
(c) (Deliver): promptly deliver to the Class A-1 Note Registrar any
Class A-1 Notes surrendered to it pursuant to Condition 8.2 of
the Class A-1 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.
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 Class A-1 Note Conditions and the Currency Swap
Agreements 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
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Class A-1 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 Class A-1 Note Trustee,
the Principal Paying Agent and the Currency Swap Providers thereof.
4.4 Class A-1 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 Class A-1 Note Conditions), the Class A-1
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 Class A-1 Note
Conditions. In doing so, the Class A-1 Note Trustee will apply the
provisions of Condition 6 of the Class A-1 Note Conditions, with any
necessary consequential amendments, to the extent that it can and, in all
other respects it will do so in such a manner as it considers fair and
reasonable in all the circumstances.
4.5 Documents to Agent Bank
The Manager and the Issuer will provide to the Agent Bank such documents
and other information as the Agent Bank reasonably requires in order for
the Agent Bank to properly fulfil its duties in respect of the Class A-1
Notes and the Currency Swap Agreements.
5. APPOINTMENT AND DUTIES OF THE CLASS A-1 NOTE REGISTRAR
5.1 Class A-1 Note Registrar
The Issuer, at the direction of the Manager, hereby appoints the Class A-1
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
Class A-1 Note Registrar hereby accepts that appointment.
5.2 Class A-1 Note Register to be Kept
The Class A-1 Note Registrar must keep a register, at one of its Specified
Offices, in which, subject to such reasonable regulations as the Class A-1
Note Registrar may prescribe, the Class A-1 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 Class A-1 Note Registrar considers
appropriate or desirable.
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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 Class A-1 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 Class A-1 Note
Registrar which requirements include membership of, or
participation in, STAMP or such other "signature guarantee
program" as may be determined by the Class A-1 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
Class A-1 Note Registrar may reasonably require,
to the Class A-1 Note Registrar at a Specified Office of the Class A-1 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 Class A-1 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 Class A-1 Note
Registrar, the provision of such evidence and indemnities as the Class A-1
Note Registrar or the Issuer may reasonably require and payment of the
Class A-1 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 Class A-1 Note Registrar must within 3
Business Days so advise the Issuer and the Class A-1 Note Trustee
(if it is not the Class A-1 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 Class X-
0 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 Class A-1 Note
Registrar) and the Class A-1 Note Trustee must within 3 Business
Days of receipt of such executed Class A-1 Notes authenticate
them and (if it is not the Class A-1 Note Registrar) deliver
those Class A-1 Notes to the Class A-1 Note Registrar; and
(c) (Delivery to Class A-1 Noteholder): the Class A-1 Note Xxxxxxxxx
00
must, within 3 Business Days of receipt of such new Class A-1
Notes (or authentication of such Class A-1 Notes if the Class A-1
Note Registrar is the Class A-1 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 Class A-1 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 Class A-1
Note Registrar need not register transfers or exchanges of Class A-1 Notes,
and the Issuer is not required to execute nor the Class A-1 Note Trustee to
authenticate any Class A-1 Notes, for a period of 30 days 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 Class A-1 Note
Trustee prior to any meeting of Relevant Investors, which includes Class X-
0 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 Class A-1 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 Class A-1 Note Trust Deed) or surrendered to a Paying Agent
for redemption and delivered to the Class A-1 Note Registrar and must, upon
request, provide a certificate to the Issuer, the Class A-1 Note Trustee or
the Manager with the details of all such Class A-1 Notes so cancelled or
destroyed.
5.9 Provision of Information and Inspection of Register
The Class A-1 Note Registrar must:
(a) (Information): provide to the Issuer, the Manager, the Class A-1
Note Trustee and each other Agent such information as is
contained in the Class A-1 Note Register and is required by them
in order to perform any obligation pursuant to a Transaction
Documents;
(b) (Inspection): make the Class A-1 Note Register:
(i) available for inspection or copying by the Issuer, the
Manager, the Class A-1 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 Class A-1 Note Registrar's Specified Offices during local
business hours.
5.10 Correctness of Register and Information
The Issuer, the Class A-1 Note Trustee, the Manager and each Agent (other
than the Class A-1 Note Registrar) may accept the correctness of the Class
A-1 Note Register and any information provided to it by the Class A-1 Note
Registrar and is not required to enquire into its authenticity. None of the
Issuer, the Class A-1 Note Trustee, the Manager or any Agent (including the
Class A-1 Note Registrar) is liable for any mistake in the Class A-1 Note
Register or in any purported copy except to the extent that the mistake is
attributable
11
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 Class A-1 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 Class A-1 Note
Registrar, the Class A-1 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 Class A-1 Note Trustee and each Agent.
5.12 Rectification of Class A-1 Note Register
If:
(a) (Entry Omitted): an entry is omitted from the Class A-1 Note
Register;
(b) (Entry made otherwise than in accordance with this Deed): an
entry is made in the Class A-1 Note Register otherwise than in
accordance with this Agreement;
(c) (Wrong entry exists): an entry wrongly exists in the Class A-1
Note Registrar;
(d) (Error or defect exists in Register); there is an error or defect
in any entry in the Class A-1 Note Register; or
(e) (Default made): default is made or unnecessary delay takes place
in entering in the Class A-1 Register that any person has ceased
to be the holder of Class A-1 Notes,
then the Class A-1 Note Registrar may rectify the same.
6. CLASS A-1 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 Class A-1 Note
Trust Deed, the Class A-1 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 Class A-1 Note Trustee on
the terms and conditions of this Agreement in relation
to payments to be made by or on behalf of the Class A-1
Note Trustee under the terms of the Class A-1 Note
Trust Deed, except that the Class A-1 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 Class A-1 Note
Trustee on the trust of the Class A-1 Note Trust Deed
and which is available to be applied by the Class A-1
Note Trustee for that purpose; and
12
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 Class A-1 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 Class A-1 Note Trustee or as
the Class A-1 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 Class
A-1 Note Trustee and not to the Principal Paying Agent and,
with effect from the issue of that notice to the Issuer and
until that notice is withdrawn, clause 6.1(b) of the Class
A-1 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 Class A-1 Note
Conditions to the Class A-1 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 Class A-1 Note Trustee during the period
it is required to make payments to the Class A-1 Note Trustee under clause
6.1.
6.3 Change of Authorised Officers
The Class A-1 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 Class A-1 Note Trustee.
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
Class A-1 Note Conditions in relation to that Distribution
Date and will give to the Issuer, the Class A-1 Note
Trustee, the Principal Paying Agent, the Agent Bank, the
Class A-1 Note Registrar and the London Stock Exchange the
notifications, and will cause to be made to the Class A-1
Noteholders the publication, required by Condition 7.11(b)
of the Class A-1 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 Class A-1 Note Conditions it
must forthwith advise the Class A-1 Note Trustee and the
Agent Bank and such determinations must be made by the Agent
Bank, or failing the Agent Bank, by the Class A-1 Note
Trustee in accordance with such Condition 7.11(c) of the
Class A-1 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 Class A-1 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 X-
0 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
13
the Class A-1 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 Class A-1 Note Conditions)
pursuant to Conditions 7.3 or 7.4 of the Class A-1 Note
Conditions, the Manager will direct the Issuer to give the
requisite notice to the Seller, the Class A-1 Note Trustee, the
Principal Paying Agent, the Class A-1 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 Class A-1 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 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.
8. GENERAL PAYING AGENT MATTERS
8.1 Notices to Class A-1 Noteholders
(a) (Notices to be given by Class A-1 Note Registrar): At the request
of the Issuer, the Class A-1 Note Trustee, the Manager, the
Security Trustee or any other Agent, and at the expense of the
Issuer, the Class A-1 Note Registrar will arrange for the
delivery of all notices and the Quarterly Servicing Report to
Class A-1 Noteholders in accordance with the Class A-1 Note
Conditions.
(b) (Copy to Class A-1 Note Trustee): The Class A-1 Note Registrar
will promptly send to the Class A-1 Note Trustee one copy of the
form of every notice given to Class A-1 Noteholders in accordance
with the Class A-1 Note Conditions (unless such notice is given
at the request of the Class A-1 Note Trustee).
The Class A-1 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 Class A-1 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 Class A-1 Note Registrar sufficient copies
of all documents required by the Class A-1 Note Conditions or the Class A-1
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 Class A-1 Note Conditions, the Issuer must give notice to the
Principal Paying Agent, the Class A-1 Note Trustee and the Class A-1
Noteholders in accordance with Condition 11.1 of the Class A-1 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 Class A-1 Note Trustee such information as they require to enable each
of them to comply with the requirement.
14
9. INDEMNITY
9.1 Indemnity by Issuer
Subject to clause 14, the Issuer undertakes to indemnify each Agent and
its directors, officers, employees and controlling persons against all
losses, liabilities, costs, claims, actions, damages, expenses or demands
which any of them may incur or which may be made against any of them as a
result of or in connection with the appointment of or the exercise of the
powers and duties by the Agent under this Agreement except as may result
from its fraud, negligence or default or that of its directors, officers,
employees or controlling persons or any of them, or breach by it of the
terms of this Agreement and notwithstanding the resignation or removal of
that Agent pursuant to clause 10.
9.2 Indemnity by Agent
Each Agent undertakes to indemnify on a several basis the Issuer, the
Manager and each of their respective directors, officers, employees and
controlling persons against all losses, liabilities, costs, claims,
actions, damages, expenses or demands which any of them may incur or which
may be made against any of them as a result of (but not including any
consequential, indirect, punitive or special damages to the extent
resulting from) its 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.
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 Class A-1 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, Class A-1 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 Class A-1 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).
15
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).
10.3 Limitation of Appointment and Termination
Notwithstanding clauses 10.1 and 10.2:
(a) (Principal Paying Agent and Class A-1 Note Registrar): the
resignation by, or the termination of, the appointment of the
Principal Paying Agent or the Class A-1 Note Registrar will not
take effect until a new Principal Paying Agent or Class A-1 Note
Registrar, as the case may be, approved in writing by the Class
A-1 Note Trustee has been appointed on terms previously approved
in writing by the Class A-1 Note Trustee (in each case, the
approval not to be unreasonably withheld or delayed) and with, in
the case of the Class A-1 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 Class A-1 Note Trustee and appointed
on terms previously approved in writing by the Class A-1 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.
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10.5 Records held by Class A-1 Note Registrar
If the appointment of the Class A-1 Note Registrar is terminated, the Class
A-1 Note Registrar must, on the date on which that termination takes
effect, deliver to the successor Class A-1 Note Registrar the Class A-1
Note Register and all records maintained by it and all documents (including
any Class A-1 Notes) held by it pursuant to this Agreement.
10.6 Successor to Principal Paying Agent, Agent Bank, Class A-1 Note
Registrar
(a) (Appointment and Release): On the execution by the Issuer, the
Manager and any successor Principal Paying Agent, Agent Bank or
Class A-1 Note Registrar of an instrument effecting the
appointment of that successor Principal Paying Agent, Agent Bank
or Class A-1 Note Registrar that successor Principal Paying
Agent, Agent Bank or Class A-1 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 Class
A-1 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 Class A-1 Note Registrar
was appointed.
(b) (Merger): Any corporation:
(i) into which the Principal Paying Agent, Agent Bank or Class
A-1 Note Registrar is merged;
(ii) with which the Principal Paying Agent, Agent Bank or Class
A-1 Note Registrar is consolidated;
(iii) resulting from any merger or consolidation to which the
Principal Paying Agent, Agent Bank or Class A-1 Note
Registrar is a party; or
(iv) to which the Principal Paying Agent, Agent Bank or Class X-
0 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 Class
A-1 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 Class A-1 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 Class A-1 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
17
Agent, nor the resignation of an Agent, will take effect until notice
thereof is given to the Class A-1 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
Class A-1 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
Class A-1 Note Conditions of that change and of the address of
the new Specified Office, but the cost of giving that notice must
be borne by the Agent which is changing its Specified Office and
not by the Issuer or the Manager.
11. MISCELLANEOUS DUTIES AND PROTECTION
11.1 Agents are agents of the Issuer
(a) (Agent of the Series Trust): Subject to clause 6.1, each Agent
is the agent of the Issuer in its capacity as trustee of the
Series Trust only.
(b) (Issuer not responsible for Agents): Notwithstanding any other
provision contained in this Agreement, any other Transaction
Document or at law, the Issuer in its personal capacity is not
responsible for any act or omission of any Agent.
11.2 Agency
Subject to any other provision of this Agreement, each Agent acts solely
for and as agent of the Issuer and does not have any obligations towards or
relationship of agency or trust with any person entitled to receive
payments of principal and/or interest on the 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.
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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 Class A-1 Note Conditions and no implied duties or obligations (other
than general laws as to agency) will be read into this Agreement or the
Class A-1 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.
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
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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
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.
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
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(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.
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.
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 or representation or
warranty 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.
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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
(a) (Obligations under this Agreement or any Transaction Document):
The Issuer is not obliged to enter into any commitment or
obligation under this Agreement or any Transaction Document
unless the Issuer's liability is limited in a manner which is
consistent with this clause 14. For the avoidance of doubt, the
Issuer agrees and acknowledges that its liability for any
commitment or obligation it has entered into under this Agreement
is limited in a manner which is consistent with this clause 14.
(b) (Obligations not contained in this Agreement or any Transaction
Document): The Issuer is not obliged to enter into any commitment
or obligation contemplated by but not contained in this Agreement
or any Transaction Document unless the Issuer's liability in
relation to that commitment or obligation is limited 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.
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.
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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
No amendments to this Agreement will be effective unless in writing and
executed by each of the parties to this Agreement. The Manager must give
each Rating Agency 10 Business Days' prior notice of any amendment to this
Agreement.
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.
15.12 Limitation of Class A-1 Note Trustee's Liability
The Class A-1 Note Trustee is a party to this Agreement in its capacity as
trustee of the Class A-1 Trust. The liability of the Class A-1 Note Trustee
under this Agreement is limited in the manner and to the same extent as
under the Class A-1 Note Trust Deed.
EXECUTED as an agreement
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SIGNED for and on behalf of )
PERPETUAL TRUSTEE COMPANY ) ................................
LIMITED, ACN 000 001 007, by ) (Signature)
)
its Attorney under a Power of Attorney )
dated and who )
declares that he or she has not received )
any notice of the revocation of such Power )
of Attorney in the presence of: )
.......................................
(Signature of Witness)
.......................................
(Name of Witness in Full)
SIGNED for and on behalf of )
SECURITISATION ADVISORY ) ................................
SERVICES PTY. LIMITED, ACN 064 ) (Signature)
133 946, by )
)
its Attorney under a Power of Attorney )
dated and who )
declares that he or she has not received )
any notice of the revocation of such Power )
of Attorney in the presence of: )
.......................................
(Signature of Witness)
.......................................
(Name of Witness in Full)
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THE COMMON SEAL of THE BANK OF NEW )
YORK, NEW YORK BRANCH was affixed to )
this Agreement in the presence of: )
....................................
(Signature of Witness)
....................................
(Name of Witness in Full)
THE COMMON SEAL of THE BANK OF NEW )
YORK, LONDON BRANCH was affixed to )
this Agreement in the presence of: )
....................................
(Signature of Witness)
....................................
(Name of Witness in Full)
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