[CLAYTON UTZ LOGO]
Medallion Trust Series 2005-1G
Agency Agreement
Perpetual Trustee Company Limited
ABN 42 000 001 007
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
The Bank of New York
The Bank of New York, London Branch
AIB/BNY Fund Management (Ireland) Limited
If you have any questions about the details of this document
PLEASE CONTACT LOUISE MCCOACH ON +61 2 9353 4679
Clayton Utz
Lawyers
Levels 19-35 No. 1 O'Connell Street Sydney NSW 2000 Australia
PO Box H3 Australia Square Sydney NSW 1215
T + 61 2 9353 4000 F + 61 2 8220 6700
WWW.CLAYTONUTZ.COM
Our reference 174/657/80019362
TABLE OF CONTENTS
1........DEFINITIONS AND
INTERPRETATION......................................2
1.1
Definitions.................................................2
1.2 Series Supplement and Master Trust Deed
Definitions.........4
1.3
Interpretation..............................................4
1.4 Issuer
Capacity.............................................6
1.5 Transaction
Document........................................6
1.6 Incorporated Definitions and other Transaction
Documents and
provisions....................................6
2........APPOINTMENT OF PAYING
AGENTS........................................6
2.1
Appointment.................................................6
2.2 Several Obligations of Paying
Agents........................7
3........PAYMENTS............................................................7
3.1 Payment by
Issuer...........................................7
3.2 Payments by Paying
Agents...................................7
3.3 Method of Payment for Offered Book-Entry
Notes..............7
3.4 Method of Payment for Offered Definitive
Notes..............7
3.5
Non-Payment.................................................7
3.6 Late
Payment................................................8
3.7
Reimbursement...............................................8
3.8 Payment under Currency
Swaps................................8
3.9 Paying Agent holds funds on
trust...........................9
3.10 Principal Paying Agent may deal with
funds..................9
3.11 No
Set-Off..................................................9
3.12 Holders of Offered
Notes....................................9
3.13 Repayment of
Moneys.........................................9
3.14 Paying Agents to Record, Notify Payments and
Deliver Surrendered
Notes..................................10
4........APPOINTMENT AND DUTIES OF THE AGENT
BANK...........................10
4.1
Appointment................................................10
4.2 Determinations by Agent
Bank...............................10
4.3 Notification by Agent
Bank.................................10
4.4 Offered Note Trustee to Perform Agent Bank's
Function......11
4.5 Documents to Agent
Bank....................................11
5........APPOINTMENT AND DUTIES OF THE OFFERED NOTE
REGISTRARS..............11
5.1 Offered Note
Registrars....................................11
5.2 Offered Note Registers to be
Kept..........................11
5.3 Transfer or Exchange of Offered
Notes......................12
5.4 Replacement of Lost or Mutilated Offered
Notes.............12
5.5 Obligations upon Transfer, Exchange or Replacement
of Offered
Notes...........................................12
5.6 No Charge for Transfer or
Exchange.........................13
5.7 Restricted
Period..........................................13
5.8 Cancellation of Offered
Notes..............................13
5.9 Provision of Information and Inspection of
Registers.......13
5.10 Correctness of Register and
Information....................13
5.11 Non-recognition of Equitable
Interests.....................14
5.12 Rectification of an Offered Note
Register..................14
i
6........OFFERED NOTE TRUSTEE'S REQUIREMENTS REGARDING
AGENTS...............14
6.1 Following Enforcement of the Charge or issue of
Definitive
Notes...........................................14
6.2 Good Discharge to
Issuer...................................15
6.3 Change of Authorised
Officers..............................15
7........REDEMPTION OF OFFERED
NOTES........................................15
7.1 Part Redemption of Offered Notes on Quarterly
Distribution
Dates.........................................15
7.2 Early
Redemption...........................................16
8........GENERAL AGENT
MATTERS..............................................16
8.1 Notices to Offered
Noteholders.............................16
8.2 Copies of Documents for
Inspection.........................16
8.3 Notice of any Withholding or
Deduction.....................17
8.4 Information and
Forms......................................17
9........INDEMNITY..........................................................17
9.1 Indemnity by
Issuer........................................17
9.2 Indemnity by Note
Agent....................................17
10.......CHANGES IN
AGENTS..................................................17
10.1 Appointment and
Removal....................................17
10.2
Resignation................................................18
10.3 Limitation of Appointment and
Termination..................18
10.4 Payment of amounts held by the Paying
Agent................19
10.5 Records held by an Offered Note
Registrar..................19
10.6 Successor to Principal Paying Agent, Paying Agent,
Agent Bank or an Offered Note
Registrar....................19
10.7 Notice to Offered
Noteholders..............................20
10.8 Change in Specified
Office.................................20
11.......MISCELLANEOUS DUTIES AND
PROTECTION................................21
11.1 Agents are agents of the
Issuer............................21
11.2
Agency.....................................................21
11.3
Reliance...................................................21
11.4 Entitled to
Deal...........................................21
11.5
Consultation...............................................21
11.6 Duties and
Obligations.....................................21
11.7 Income Tax
Returns.........................................22
11.8 Representation by each
Agent...............................22
12.......FEES AND
EXPENSES..................................................22
12.1 Payment of
Fee.............................................22
12.2 Payment of
Expenses........................................22
12.3 No Other
Fees..............................................22
12.4 Payment of
Fees............................................22
12.5 No
Commission..............................................22
12.6 Issuer Personally Liable for
Fees..........................23
12.7 Timing of
Payments.........................................23
13.......NOTICES............................................................23
13.1 Method of
Delivery.........................................23
13.2 Deemed
Receipt.............................................23
13.3
Email......................................................24
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13.4 Communications through Principal Paying
Agent..............24
14.......APPOINTMENT OF CLASS A-2 IRISH PAYING
AGENT........................24
14.1
Appointment................................................24
14.2 Resignation and
Termination................................24
15.......ISSUER'S LIMITATION OF
LIABILITY...................................24
15.1 Limitation on Issuer's
Liability...........................24
15.2 Claims against
Issuer......................................25
15.3 Breach of
Trust............................................25
15.4 Acts or
omissions..........................................25
15.5 No
Authority...............................................25
15.6 No
obligation..............................................25
16.......GENERAL............................................................26
16.1
Waiver.....................................................26
16.2 Written Waiver, Consent and
Approval.......................26
16.3
Severability...............................................26
16.4 Survival of
Indemnities....................................26
16.5
Assignments................................................26
16.6 Successors and
Assigns.....................................26
16.7 Moratorium
Legislation.....................................26
16.8
Amendments.................................................26
16.9 Governing
Law..............................................27
16.10
Jurisdiction...............................................27
16.11
Counterparts...............................................27
16.12 Limitation of Offered Note Trustee's
Liability.............27
16.13 Contra
proferentem.........................................27
iii
THIS AGENCY AGREEMENT MADE AT SYDNEY ON 21 JANUARY 2005
PARTIES PERPETUAL TRUSTEE COMPANY LIMITED ABN 42 000 001
007 of Level
7, 9 Castlereagh Street, Sydney, Australia, in its
capacity as
trustee of the Series Trust (as hereinafter
defined)
(hereinafter included in the expression the
"ISSUER")
SECURITISATION ADVISORY SERVICES PTY LIMITED ABN
88 064 133 946
of Level 7, 48 Martin Place, Sydney, Australia
(hereinafter
included by incorporation in the expression the
"MANAGER")
THE BANK OF NEW YORK of 101 Barclay Street, 21W,
New York, New
York 10286 as trustee of the Offered Note Trust
(as hereinafter
defined) (hereinafter included by incorporation in
the
expression the "OFFERED NOTE TRUSTEE")
THE BANK OF NEW YORK of 101 Barclay Street, 21W,
New York, New
York 10286 (hereinafter included in the expression
the "US
DOLLAR NOTE REGISTRAR")
THE BANK OF NEW YORK of 101 Barclay Street, 21W,
New York, New
York 10286 (hereinafter included in the expression
the
"PRINCIPAL PAYING AGENT")
THE BANK OF NEW YORK of 101 Barclay Street, 21W,
New York,
New York 10286 (hereinafter included in the
expression the
"AGENT BANK")
THE BANK OF NEW YORK, LONDON BRANCH of 48th floor,
One Canada
Square, London E14 5AL (hereinafter included in
the expression
the "PAYING AGENT")
THE BANK OF NEW YORK, LONDON BRANCH of 48th floor,
One Canada
Square, London E14 5AL (hereinafter included in
the expression
the "EURO NOTE REGISTRAR")
AIB/BNY FUND MANAGEMENT (IRELAND) LIMITED a
company duly
incorporated in the Republic of Ireland and having
registered
office at Guild House, Guild Street, Dublin 1,
Republic of
Ireland, (hereinafter included in the expression
the "CLASS A-2
IRISH PAYING AGENT" and "OFFERED NOTE IRISH PAYING
AGENT")
BACKGROUND
A. The Issuer, in its capacity as trustee of the Series
Trust, proposes to
issue Offered Notes.
B. The Offered Notes will be constituted pursuant to the
Offered Note
Trust Deed.
C. The Issuer wishes to appoint The Bank of New York as the
initial
Principal Paying Agent, the initial US Dollar Note
Registrar and the
initial Agent Bank in respect of the Offered Notes and The
Bank of New
York has accepted these appointments on the terms and
conditions of
this Agreement.
D. The Issuer wishes to appoint The Bank of New York, London
Branch as an
initial Paying Agent and the initial Euro Note Registrar
in respect of
the Offered Notes and The Bank of New York, London Branch
has accepted
that appointment on the terms and conditions of this
Agreement.
E. The Issuer also wishes to appoint AIB/BNY Fund Management
(Ireland)
Limited as the initial paying agent in the Republic of
Ireland in
respect of the Offered Notes and the Class A-2 Notes and
AIB/BNY Fund
Management (Ireland) Limited has accepted that appointment
on the terms
and conditions of this Agreement.
1
BACKGROUND
--------------------------------------------------------------------------------
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the contrary intention appears:
"AGENT" means a several reference to each Paying Agent,
each Offered
Note Registrar, and the Agent Bank.
"AGENT BANK" means initially The Bank of New York or, if
The Bank of
New York resigns or its appointment is terminated as the
Issuer's
reference agent in respect of the Offered Notes, the
person from time
to time appointed in its place to perform the functions of
such
reference agent under this Agreement.
"AUTHORISED OFFICER" in relation to:
(a) the Issuer and the Manager, has the same meaning
as in the
Master Trust Deed;
(b) the Offered Note Trustee, the US Dollar Note
Registrar, the
Agent Bank and the Principal Paying Agent while
these are the
same person as the Offered Note Trustee, has the
same meaning
as the term "Authorised Officer" in relation to
the Offered
Note Trustee has in the Offered Note Trust Deed;
(c) The Bank of New York, London Branch as Paying
Agent and Euro
Note Registrar means a responsible officer of the
Corporate
Trust Administration department of The Bank of
New York,
London Branch; and
(d) any other Note Agent, means the persons appointed
from time to
time by that Note Agent to act as its Authorised
Officers for
the purposes of this Agreement as certified in
writing by 2
directors or a director and secretary of that
Note Agent to
the other parties to this Agreement.
"CLASS A-2 IRISH PAYING AGENT" means AIB/BNY Fund
Management (Ireland)
Limited or, if AIB/BNY Fund Management (Ireland) Limited
resigns or its
appointment is terminated as paying agent in the Republic
of Ireland in
respect of the Class A-2 Notes, the person from time to
time appointed
in its place to perform the functions of such paying agent
under this
Agreement.
"EURO NOTE REGISTER" means the register established by the
Euro Note
Registrar in respect of the Class A-3 Notes in accordance
with clause
5.2.
"EURO NOTE REGISTRAR" means The Bank of New York, London
Branch or if
The Bank of New York, London Branch resigns or its
appointment is
terminated as note registrar in respect of the Class A-3
Notes, the
person from time to time appointed in its place to perform
the
functions of such note registrar under this Agreement.
"IRISH BUSINESS DAY" means a day (other than a Saturday,
Sunday or
public holiday in Dublin) on which the Irish Stock
Exchange is open.
"ISSUER" means initially Perpetual Trustee Company Limited
or, if
Perpetual Trustee Company Limited retires or is removed as
trustee of
the Series Trusts (as defined in the Master Trust Deed),
the then
Substitute Trustee and includes the Manager when acting as
the trustee
of the Series Trust in accordance with the Master Trust
Deed.
"MASTER TRUST DEED" means the Master Trust Deed dated 8
October 1997
between the Issuer
2
and the Manager, as amended from time to time.
"NOTE AGENT" means a several reference to each Agent and
the Class A-2
Irish Paying Agent.
"OFFERED BOOK ENTRY NOTE" has the same meaning as in the
Offered Note
Trust Deed.
"OFFERED DEFINITIVE NOTE" has the same meaning as in the
Offered Note
Trust Deed.
"OFFERED NOTE" has the same meaning as in the Offered Note
Trust Deed.
"OFFERED NOTE IRISH PAYING AGENT" means AIB/BNY Fund
Management
(Ireland) Limited or, if AIB/BNY Fund Management (Ireland)
Limited
resigns or the appointment is terminated as paying agent
in the
Republic of Ireland in respect of the Offered Notes, the
person from
time to time appointed in its place to perform the
functions of such
paying agent under this Agreement.
"OFFERED NOTE REGISTER" means, as the context requires,
the Euro Note
Register, the US Dollar Note Register, or both.
"OFFERED NOTE REGISTRAR" means, as the context requires,
the Euro Note
Registrar, the US Dollar Note Registrar, or both.
"OFFERED NOTE TRUST" means the trust of that name
constituted by the
Offered Note Trust Deed.
"OFFERED NOTEHOLDERS" has the same meaning as in the
Offered Note Trust
Deed.
"PAYING AGENT" means:
(a) except where the context otherwise requires, the
Principal
Paying Agent;
(b) the Bank of New York, London Branch until it
resigns or its
appointment is terminated as paying agent;
(c) if an application is made to admit the Offered
Notes to the
Daily Official List of the Irish Stock Exchange,
the Offered
Note Irish Paying Agent; and
(d) each other person from time to time appointed
hereunder to
perform the functions of a paying agent, but does
not include
the Class A-2 Irish Paying Agent.
"PRINCIPAL PAYING AGENT" means The Bank of New York or, if
The Bank of
New York resigns or its appointment is terminated as
principal paying
agent, the person from time to time appointed in its place
to perform
the functions of the principal paying agent under this
Agreement.
"QUARTERLY SERVICING REPORT" has the same meaning as in
the Offered
Note Conditions.
"SERIES SUPPLEMENT" means a Series Supplement dated on or
about the
date of this Agreement between Commonwealth Bank of
Australia ABN 48
123 123 124, Homepath Pty Limited ABN 35 081 986 530, the
Manager and
the Issuer.
"SERIES TRUST" means the trust known as the Medallion
Trust Series
2005-1G established pursuant to the Master Trust Deed and
the Series
Supplement.
"SPECIFIED OFFICE" in relation to:
(a) the US Dollar Note Registrar, means the offices
of the US
Dollar Note Registrar as specified in the Offered
Note
Conditions or otherwise under this Agreement as
the
3
offices of the US Dollar Note Registrar where
surrenders of
Class A-1 Notes for transfer, exchange,
replacement or
redemption will occur and where, in respect of
one of such
offices, the US Dollar Note Register will be
kept, as varied
from time to time in accordance with this
Agreement;
(b) the Euro Note Registrar, means the offices of the
Euro Note
Registrar as specified in the Offered Note
Conditions or
otherwise under this Agreement as the offices of
the Euro Note
Registrar where surrenders of Class A-3 Notes for
transfer,
exchange, replacement or redemption will occur
and where, in
respect of one of such offices, the Euro Note
Register will be
kept, as varied from time to time in accordance
with this
Agreement;
(c) a Paying Agent, means the office of the Paying
Agent specified
in the Offered Note Conditions or otherwise under
this
Agreement as the office at which payments in
respect of the
Offered Notes will be made, as varied from time
to time in
accordance with this Agreement; and
(d) the Agent Bank, means the office of the Agent
Bank specified
in the Offered Note Conditions or otherwise under
this
Agreement as the office at which the Agent Bank
will carry out
its duties under this Agreement, as varied from
time to time
in accordance with this Agreement.
"STAMP" means the Securities Transfer Agents Medallion
Program.
"UCC" means the Uniform Commercial Code of New York.
"US DOLLAR NOTE REGISTER" means the register established
by the US
Dollar Note Registrar in respect of the Class A-1 Notes in
accordance
with clause 5.2.
"US DOLLAR NOTE REGISTRAR" means The Bank of New York or
if The Bank of
New York resigns or its appointment is terminated as note
registrar in
respect of the Class A-1 Notes, the person from time to
time appointed
in its place to perform the functions of such note
registrar under this
Agreement.
1.2 SERIES SUPPLEMENT AND MASTER TRUST DEED DEFINITIONS
Subject to clause 1.6, unless defined in this Agreement,
words and
phrases defined in either or both of the Master Trust Deed
and the
Series Supplement have the same meaning in this Agreement.
Where there
is any inconsistency in a definition between this
Agreement (on the one
hand) and the Master Trust Deed or the Series Supplement
(on the other
hand), this Agreement prevails. Where there is any
inconsistency in a
definition between the Master Trust Deed and the Series
Supplement, the
Series Supplement prevails over the Master Trust Deed in
respect of
this Agreement. Subject to clause 1.6, where words or
phrases used but
not defined in this Agreement are defined in the Master
Trust Deed in
relation to a Series Trust (as defined in the Master Trust
Deed) and/or
an Other Trust such words or phrases are to be construed
in this
Agreement, where necessary, as being used only in relation
to the
Series Trust (as defined in this Agreement) and/or the CBA
Trust, as
the context requires.
1.3 INTERPRETATION
In this Agreement, unless the contrary intention appears:
(a) headings are for convenience only and do not
affect the
interpretation of this Agreement;
(b) a reference to this "AGREEMENT" includes the
Background;
4
(c) the expression "PERSON" includes an individual,
the estate of
an individual, a body politic, a corporation and
a statutory
or other authority or association (incorporated
or
unincorporated);
(d) a reference to a person includes that person's
executors,
administrators, successors, substitutes and
assigns, including
any person taking by way of novation;
(e) subject to clause 1.6, a reference to any
document or
agreement is to such document or agreement as
amended,
novated, supplemented, varied or replaced from
time to time;
(f) a reference to any legislation or to any section
or provision
of any legislation includes any statutory
modification or
re-enactment or any statutory provision
substituted for that
legislation and all ordinances, by-laws,
regulations and other
statutory instruments issued under that
legislation, section
or provision;
(g) words importing the singular include the plural
(and vice
versa) and words denoting a given gender include
all other
genders;
(h) a reference to a clause is a reference to a
clause of this
Agreement;
(i) a reference to "WILFUL DEFAULT" in relation to a
party means,
subject to clause 1.3(j), any wilful failure by
that party to
comply with, or wilful breach by that party of,
any of its
obligations under any Transaction Document, other
than a
failure or breach which:
(i) A. arises as a result of a breach of
a Transaction
Document by a person other than:
(1) that party; or
(2) any other person referred
to in clause
1.3(j); and
B. the performance of the action (the
non-performance of which gave rise
to such
breach) is a pre-condition to that
party
performing the said obligation; or
(ii) is in accordance with a lawful court
order or
direction or is required by law; or
(iii) is in accordance with a proper
instruction or
direction of Investors given at a
meeting convened
under any Transaction Document;
(j) a reference to the "FRAUD", "NEGLIGENCE" or
"WILFUL DEFAULT"
of a party means the fraud, negligence or wilful
default of
that party and of its officers, employees, 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;
5
(n) a reference to time is to local time in Sydney;
(o) subject to clause 13.2, each party will only be
considered to
have knowledge or awareness of, or notice of, a
thing or
grounds to believe anything by virtue of the
officers of that
party (or any Related Body Corporate of that
party) having day
to day responsibility for the administration or
management of
that party's (or a Related Body Corporate of that
party's)
obligations in relation to the Series Trust
having actual
knowledge, actual awareness or actual notice of
that thing, or
grounds or reason to believe that thing (and
similar
references will be interpreted in this way); and
(p) a reference to the enforcement of the Charge
means that the
Security Trustee appoints (or the Voting Secured
Creditors as
contemplated by clause 8.4 of the Security Trust
Deed appoint)
a Receiver over any Charged Property, or takes
possession of
any Charged Property, pursuant to the Security
Trust Deed
(expressions used in this clause have the same
meanings as in
the Security Trust Deed).
1.4 ISSUER CAPACITY
In this Agreement, except where provided to the contrary:
(a) (REFERENCES TO ISSUER): a reference to the Issuer
is a
reference to the Issuer in its capacity as
trustee of the
Series Trust only, and in no other capacity; and
(b) (REFERENCES TO ASSETS OF THE ISSUER): a reference
to the
undertaking, assets, business or money of the
Issuer is a
reference to the undertaking, assets, business or
money of the
Issuer in the capacity referred to in paragraph
(a).
1.5 TRANSACTION DOCUMENT
For the purposes of the Master Trust Deed and the Series
Supplement,
this Agreement is a Transaction Document.
1.6 INCORPORATED DEFINITIONS AND OTHER TRANSACTION DOCUMENTS
AND
PROVISIONS
Where in this Agreement a word or expression is defined by
reference to
its meaning in another Transaction Document or there is a
reference to
another Transaction Document or to a provision of another
Transaction
Document, any amendment to the meaning of that word or
expression or to
that other Transaction Document or provision (as the case
may be) will
be of no effect for the purposes of this Agreement unless
and until the
amendment is consented to by the parties to this
Agreement.
--------------------------------------------------------------------------------
2. APPOINTMENT OF PAYING AGENTS
2.1 APPOINTMENT
The Issuer, at the direction of the Manager, hereby
appoints the
Principal Paying Agent as its initial principal paying
agent, and each
other Paying Agent from time to time as its paying agent,
for making
payments in respect of the Offered Notes pursuant to the
Transaction
Documents at their respective Specified Offices in
accordance with the
terms and conditions of the Agreement. The Principal
Paying Agent, and
each other Paying Agent, hereby accepts that appointment.
6
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 on each Quarterly
Distribution
Date, pay to or to the order of the Principal Paying Agent
to an
account specified by the Principal Paying Agent in same
day funds:
(a) (CLASS A-1 NOTES): not later than 10.00 am (New
York time) the
amount in US$ as may be required (after taking
account of any
money then held by the Principal Paying Agent and
available
for the purpose) to be paid on that Quarterly
Distribution
Date in respect of the Class A-1 Notes; and
(b) (CLASS A-3 NOTES): not later than 10.00 am
(London time) the
amount in Euro as may be required (after taking
account of any
money then held by the Principal Paying Agent and
available
for the purpose) to be paid on that Quarterly
Distribution
Date in respect of the Class A-3 Notes,
in each case, under the Offered Note Conditions.
3.2 PAYMENTS BY PAYING AGENTS
Subject to payment being duly made as provided in clause
3.1(a) in the
case of the Class A-1 Notes and in clause 3.1(b) in the
case of the
Class A-3 Notes (or the Principal Paying Agent otherwise
being
satisfied that the relevant payment will be duly made on
the due date),
and subject to clause 6, the Paying Agents will pay or
cause to be paid
to the Offered Noteholders on behalf of the Issuer on each
Quarterly
Distribution Date the relevant amounts of principal and
interest due in
respect of the Offered Notes in accordance with this
Agreement and the
Offered Note Conditions.
3.3 METHOD OF PAYMENT FOR OFFERED BOOK-ENTRY NOTES
The Principal Paying Agent will cause all payments of
principal or
interest (as the case may be) due in respect of Offered
Book-Entry
Notes to be made to the relevant Depository or, if
applicable, to that
Depository's nominee in whose name Offered Book-Entry
Notes are
registered, to the account or accounts designated by that
Depository
or, if applicable, that nominee and otherwise in
accordance with
Condition 8.1 of the Offered Note Conditions.
3.4 METHOD OF PAYMENT FOR OFFERED DEFINITIVE NOTES
The Paying Agents will cause all payments of principal or
interest (as
the case may be) due in respect of Offered Definitive
Notes to be made
in accordance with Condition 8.1 of the Offered Note
Conditions.
3.5 NON-PAYMENT
(a) (NO OBLIGATION ON PAYING AGENTS): If the Issuer
fails to make
any payment, unless and until the full amount of
the payment
has been made under the terms of this Agreement
(except as to
the time of making the payment) or other
arrangements
satisfactory to the Principal Paying Agent have
been made,
none of the Principal Paying Agent nor any of the
other Paying
Agents is bound to make any payment in
7
accordance with this clause 3 (but may, in its
discretion,
make any such payment).
(b) (NOTICE OF NON-RECEIPT): The Principal Paying
Agent will
immediately notify by facsimile the other Paying
Agents, the
Offered Note Trustee, the Issuer, the Security
Trustee and the
Manager if the full amount of any payment of
principal or
interest in respect of the Offered Notes required
to be made
pursuant to the Offered Note Conditions is not
unconditionally
received by it or to its order in accordance with
this
Agreement.
3.6 LATE PAYMENT
(a) (LATE PAYMENTS TO BE PAID IN ACCORDANCE WITH THIS
AGREEMENT):
If any payment under clause 3.1 is made late but
otherwise in
accordance with the provisions of this Agreement,
each Paying
Agent will make the payments required to be made
by it in
respect of the Offered Notes as provided in this
clause 3.
(b) (NOTICE): If the Principal Paying Agent does not
receive on a
Quarterly Distribution Date the full amount of
principal and
interest then payable on any Offered Note in
accordance with
the Offered Note Conditions, but receives the
full amount
later, it will:
(i) forthwith upon receipt of the full
amount notify the
other Paying Agents, the Issuer, the
Offered Note
Trustee, the Security Trustee and the
Manager; and
(ii) as soon as practicable after receipt of
the full
amount give notice, in accordance with
Condition 11.1
of the Offered Note Conditions, to the
Offered
Noteholders that it has received the
full amount.
3.7 REIMBURSEMENT
The Principal Paying Agent will (provided that it has been
placed in
funds by the Issuer) on demand promptly reimburse each
other Paying
Agent for payments of principal and interest properly made
by that
Paying Agent in accordance with the Offered Note
Conditions and this
Agreement. The Issuer will not be responsible for the
apportionment of
any moneys between the Principal Paying Agent and the
other Paying
Agents and a payment to the Principal Paying Agent of any
moneys due to
the Paying Agents will operate as a good discharge to the
Issuer in
respect of such moneys.
3.8 PAYMENT UNDER CURRENCY SWAPS
The payment by the Issuer of its Australian dollar payment
obligations
under the Series Supplement on each Quarterly Distribution
Date to:
(a) (CLASS A-1 CURRENCY SWAP): the Currency Swap
Provider in
respect of the Class A-1 Currency Swap will be a
good
discharge of its corresponding US Dollar
obligations under
clause 3.1; and
(b) (CLASS A-3 CURRENCY SWAP): the Currency Swap
Provider in
respect of the Class A-3 Currency Swap will be a
good
discharge of its corresponding Euro obligations
under clause
3.1,
but, in each case, will not relieve the Issuer of any
liability in
respect of any default in payment in respect of an Offered
Note under
any other Transaction Document.
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3.9 PAYING AGENT HOLDS FUNDS ON TRUST
Each Paying Agent will hold in a separate account on trust
for the
Offered Note Trustee and the Offered Noteholders all sums
held by such
Paying Agent for the payment of principal and interest
with respect to
Offered Notes until such sums are paid to the Offered Note
Trustee or
the applicable Offered Noteholders in accordance with the
Offered Note
Trust Deed or the Offered Note Conditions or repaid under
clause 3.13.
3.10 PRINCIPAL PAYING AGENT MAY DEAL WITH FUNDS
Subject to the terms of this Agreement, the Principal
Paying Agent is
entitled to deal with moneys paid to it under this
Agreement in the
same manner as other moneys paid to it as a banker by its
customers.
The Principal Paying Agent is entitled to retain for its
own account
any interest earned on such moneys, except as required by
law.
3.11 NO SET-OFF
No Paying Agent is entitled to exercise any right of
set-off,
withholding, counterclaim or lien against, or make any
deduction in any
payment to, any person entitled to receive amounts of
principal or
interest on the Offered Notes in respect of moneys payable
by it under
this Agreement.
3.12 HOLDERS OF OFFERED NOTES
Except as ordered by a court of competent jurisdiction or
as required
by law, each Paying Agent is entitled to treat the person:
(a) (OFFERED BOOK-ENTRY NOTES): who is, while an
Offered
Book-Entry Note remains outstanding, the
registered owner of
that Offered Book-Entry Note as recorded in the
applicable
Offered Note Register as the absolute owner of
that Offered
Book-Entry Note and as the person entitled to
receive payments
of principal or interest (as applicable) and each
person shown
in the records of the applicable Depository as
the holder of
any Offered Note represented by that Offered
Book-Entry Note
will be entitled to receive from the registered
owner of that
Offered Book-Entry Note any payment so made only
in accordance
with the respective rules and procedures of that
Depository;
(b) (OFFERED DEFINITIVE NOTES): who is the registered
owner of any
Offered Definitive Note as recorded in the
applicable Offered
Note Register as the absolute owner or owners of
that Offered
Definitive Note (whether or not that Offered
Definitive Note
is overdue and despite any notice of ownership or
writing on
it or any notice of previous loss or theft or of
any trust or
other interest in it); and
(c) (OFFERED NOTE TRUSTEE): who, when an Offered
Book-Entry Note
in respect of any Offered Note is no longer
outstanding but
Offered Definitive Notes in respect of the
Offered Notes have
not been issued, is for the time being the
Offered Note
Trustee, as the person entrusted with the receipt
of principal
or interest, as applicable, on behalf of the
relevant Offered
Noteholders,
in all cases and for all purposes, despite any notice to
the contrary,
and will not be liable for so doing.
3.13 REPAYMENT OF MONEYS
(a) (PRESCRIPTION): Immediately on any entitlement to
receive
principal or interest under any Offered Note
becoming void
under the Offered Note Conditions, the Principal
Paying Agent
will repay to the Issuer the amount which would
have been
9
due in respect of that principal or interest if
it had been
paid before the entitlement became void, together
with any
fees applicable to that payment or entitlement
(pro rated as
to the amount and time) to the extent already
paid under
clause 12.
(b) (NO REPAYMENT WHILE OUTSTANDING AMOUNTS DUE):
Notwithstanding
clause 3.13(a) the Principal Paying Agent is not
obliged to
make any repayment to the Issuer while any fees
and expenses
which should have been paid to or to the order of
the
Principal Paying Agent or, if applicable, the
Offered Note
Trustee, by the Issuer remain unpaid.
3.14 PAYING AGENTS TO RECORD, NOTIFY PAYMENTS AND DELIVER
SURRENDERED
NOTES
Each Paying Agent must:
(a) (NOTIFY OFFERED NOTE REGISTRARS): promptly notify
the
applicable Offered Note Registrar of each payment
made by it,
or at its direction, to Offered Noteholders in
respect of the
Offered Notes;
(b) (RECORDS): keep a full and complete record of
each payment
made by it, or at its direction, to Offered
Noteholders and
provide copies of such records to the Issuer, the
Manager, the
Offered Note Trustee or the applicable Offered
Note Registrar
upon request; and
(c) (DELIVER): promptly deliver to the applicable
Offered Note
Registrar any Offered Notes surrendered to it
pursuant to
Condition 8.2 of the Offered Note Conditions.
A record by a Paying Agent under this clause 3.14 is
sufficient
evidence, unless the contrary is proved, of the relevant
payments
having been made or not made.
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4. APPOINTMENT AND DUTIES OF THE AGENT BANK
4.1 APPOINTMENT
The Issuer, at the direction of the Manager, hereby
appoints the Agent
Bank as its initial reference agent in respect of the
Offered Notes
upon the terms and conditions contained in this Agreement
and the Agent
Bank hereby accepts that appointment.
4.2 DETERMINATIONS BY AG
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