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EXHIBIT 4.8
------------------------------------
DATED 2001
HOMESIDE MORTGAGE SECURITIES
TRUST 2001-1
AGENCY AGREEMENT
PERPETUAL TRUSTEE COMPANY LIMITED
("ISSUER TRUSTEE")
HOMESIDE GLOBAL MBS MANAGER, INC.
("GLOBAL TRUST MANAGER")
AND
THE BANK OF NEW YORK, NEW YORK
BRANCH
("NOTE TRUSTEE")
THE BANK OF NEW YORK, NEW YORK
BRANCH
("CLASS A NOTE REGISTRAR")
THE BANK OF NEW YORK, NEW YORK
BRANCH
("PRINCIPAL PAYING AGENT" AND
"CALCULATION AGENT")
THE BANK OF NEW YORK, LONDON
BRANCH
KREDIETBANK S.A. LUXEMBOURGEOISE
("LUXEMBOURG PAYING AGENT")
MALLESONS STEPHEN JAQUES
Solicitors
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Telephone (61 2) 9296 2000
Fax (61 2) 9296 3999
DX 113 Sydney
Ref: SRF:CD3
-C-Mallesons Stephen Jaques
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CONTENTS HOMESIDE MORTGAGE SECURITIES TRUST 2001-1 AGENCY AGREEMENT
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<TABLE>
<S> <C>
1 DEFINITIONS AND INTERPRETATION 2
Definitions Schedule 2
Definitions 3
2 APPOINTMENT OF AGENTS 4
Appointment of Agents 4
Acceptance of appointment 4
Representation by each Agent 4
Additional Agents 5
3 THE NOTE TRUSTEE 5
Agents to act for Note Trustee 5
Good Discharge to Issuer Trustee 5
Notice of change of the Note Trustee 6
4 PAYMENTS 6
Payments of amounts due 6
Payments by Paying Agents 6
Notification 6
Paying Agents to Record, Notify Payments and Deliver
Surrendered Notes 7
Make payments 7
Non-Payment 7
Full amount not received 7
Interest on overdue amounts 8
Reimburse other Agents 8
Late payment 8
Partial payments 8
Deductions 9
Unpaid money 9
No Set-off 9
Currency Swaps 9
5 EXCHANGE OF CLASS A BOOK ENTRY NOTES 10
Exchange for Class A Definitive Notes 10
Notification 10
Outstanding amount 10
6 REDEMPTION 10
Part Redemption of Notes on Payment Dates 10
Early Redemption 11
7 GENERAL NOTE REGISTRAR AND PAYING AGENT MATTERS 11
Notices to Class A Noteholders 11
Copies of Documents for inspection 11
Notice of any Withholding or Deduction 11
8 COPIES OF DOCUMENTS AVAILABLE FOR INSPECTION 12
9 DOCUMENTS AND FORMS 12
Principal Paying Agent 12
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Notes, etc held by Paying Agents 12
10 RECEIPT OF NOTICES AND VOTING 13
Copy notices to Issuer Trustee 13
Voting 13
11 DUTIES OF CALCULATION AGENT 13
Appointment 13
Quotations 14
Notice 14
Calculations 14
Failure to calculate 14
12 DUTIES OF THE CLASS A NOTE REGISTRAR 15
Class A Note Register to be kept 15
Transfer or Exchange of Class A Notes 15
Replacement of Lost or Mutilated Class A Notes 16
Obligations upon Transfer, Exchange or Replacement of
Class A Notes 16
No Charge for Transfer or Exchange 16
Restricted Period 17
Cancellation of Class A Notes 17
Provision of Information and Inspection of Register 17
Correctness of Register and Information 17
Non-recognition of Equitable Interests 18
Rectification of Class A Note Register 18
13 RELATIONSHIP 18
No other obligation 18
Instructions 19
No instructions 19
Agent of the Issuer Trustee 19
Issuer Trustee not responsible for Agents 19
Reliance 19
Agent may employ 19
Applicable laws 19
Accept deposits etc 20
Dealing with money 19
Income Tax Returns 20
Holders of Notes 20
Note or document believed to be genuine 21
Agents as holders of Notes 21
Communication between the Parties 21
Termination 21
Publication 22
Termination of appointment 22
New Agents 23
Merger 23
Notice to Class A Noteholder 23
Change of specified office 23
14 STAMP DUTIES AND INDEMNITIES 24
Stamp duties 24
Indemnity by Issuer Trustee 24
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Indemnity by Agents 24
15 COMMISSIONS AND EXPENSES 24
Principal Paying Agent 24
Other Agents 25
16 ISSUER TRUSTEE'S LIMITATION OF LIABILITY 25
17 NOTICES 25
Form 25
Initial addresses 25
Time effective 25
Receipt 25
18 MISCELLANEOUS 26
Certificate 26
Exercise of rights 26
Waiver and variation 26
Supervening legislation 26
Approvals and consent 27
Remedies cumulative 27
Indemnities 27
Time of the essence 27
Receipts 27
Acknowledgment 27
Disclosure of information 27
Rights cumulative 28
Signatures 28
Limitation of Note Trustee's Liability 28
19 AMENDMENT 28
20 GOVERNING LAW AND SUBMISSION TO JURISDICTION 28
Governing Law 28
Submission to jurisdiction 28
Service 29
21 COUNTERPARTS 29
SCHEDULE INITIAL CONTACT DETAILS 30
</TABLE>
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HOMESIDE MORTGAGE SECURITIES TRUST 2001-1
AGENCY AGREEMENT
DATE: 2001
PARTIES: PERPETUAL TRUSTEE COMPANY LIMITED
(ABN 42 000 001 007) having its registered office at
Level 7, 39 Hunter Street, Sydney, NSW 2000 in its capacity
as trustee of the HomeSide Mortgage Securities Trust 2001-1
("ISSUER TRUSTEE")
HOMESIDE GLOBAL MBS MANAGER, INC. having an office at
7301 Baymeadows Way, Jacksonville, Florida, United States
of America("GLOBAL TRUST MANAGER")
THE BANK OF NEW YORK, NEW YORK BRANCH, a New York banking
corporation acting through its New York branch at 101
Barclay Street, 21W, New York, New York 10286 ("NOTE
TRUSTEE")
THE BANK OF NEW YORK, NEW YORK BRANCH, a New York banking
corporation acting through its New York branch at
101 Barclay Street, 21W, New York, New York 10286 ("CLASS A
NOTE REGISTRAR")
THE BANK OF NEW YORK, NEW YORK BRANCH, a New York banking
corporation acting through its New York branch at
101 Barclay Street, 21W, New York, New York 10286
("PRINCIPAL PAYING AGENT" AND "CALCULATION AGENT")
THE BANK OF NEW YORK, LONDON BRANCH, a New York banking
corporation acting through its London branch at 48th Floor,
One Canada Square, London E14 5AL
KREDIETBANK S.A. LUXEMBOURGEOISE having its registered
office at 43 Boulevard Royal, L-2955 Luxembourg ("LUXEMBOURG
PAYING AGENT")
RECITALS:
A. The Issuer Trustee in its capacity as trustee of the Trust
wishes to issue the Class A Notes.
B. The Issuer Trustee wishes to appoint each Agent in respect
of the Class A Notes and each of them has accepted their
appointments on the terms set out in this agreement.
OPERATIVE PROVISIONS:
1 DEFINITIONS AND INTERPRETATION
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DEFINITIONS SCHEDULE
1.1 In this agreement:
DEFINITIONS SCHEDULE means the deed called "HomeSide
Mortgage Securities Trusts Definitions Schedule" dated 3
January 2001 and made between the companies described in
schedule 1 to that deed.
SUPPLEMENTAL DEED means the deed entitled "HomeSide Mortgage
Securities Trust 2001-1 Supplemental Deed" dated on or about
the
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date of this agreement between the Global Trust Manager,
the Issuer Trustee and others.
1.2 Except to the extent to which words and phrases are
otherwise defined in this agreement, words and phrases
defined in the Definitions Schedule or the Supplemental Deed
in respect of the Trust shall bear the same meaning in this
agreement. In the event of any inconsistency between a
definition in this agreement and a definition in the
Definitions Schedule, the definitions in this agreement will
prevail. In the event of any inconsistency between a
definition in the Definitions Schedule and a definition in
the Supplemental Deed, the definition in the Supplemental
Deed will prevail. Any amendment to the Definitions Schedule
will only apply to this agreement if made in accordance with
this agreement.
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions Schedule
are incorporated into this agreement as if those clauses
were set out in full with references to "this deed" being
construed as references to "this agreement".
DEFINITIONS
1.4 The following words have these meanings in this agreement
unless the contrary intention appears.
AGENT means a several reference to each Paying Agent, the
Class A Note Registrar and the Calculation Agent.
CALCULATION 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 calculation agent, the
person from time to time appointed in its place to perform
the functions of the calculation agent under this agreement.
PAYING AGENT means each of the Luxembourg Paying Agent and
The Bank of New York, London Branch, until any of them
resigns or their appointment is terminated as paying agent
and each other person from time to time appointed in its
place to perform the functions of a paying agent and, except
where the context otherwise requires, includes the Principal
Paying Agent.
PRINCIPAL PAYING AGENT means The Bank of New York, New York
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.
TRUST means the HomeSide Mortgage Securities Trust 2001-1.
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2 APPOINTMENT OF AGENTS
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APPOINTMENT OF AGENTS
2.1 The Issuer Trustee:
(a) at the direction of the Global Trust Manager, appoints
the Principal Paying Agent at its Specified Office as
its initial principal paying agent;
(b) at the direction of the Global Trust Manager, appoints
each Paying Agent at its Specified Office or Specified
Offices as its paying agents;
(c) at the direction of the Global Trust Manager, appoints
the Class A Note Registrar at its Specified Office as
its initial Class A Note Registrar;
(d) at the direction of the Global Trust Manager, appoints
the Calculation Agent at its Specified Office as its
initial calculation agent; and
(e) authorises each Paying Agent from time to time, as its
paying agent, to take the action on its behalf and to
exercise the rights, powers and remedies and observe
the obligations which are specifically delegated to
that Paying Agent by or under this agreement or which
are set out in the Class A Note Conditions and further
rights and powers which are reasonably incidental to
those delegated rights and powers or are agreed between
the Issuer Trustee and the relevant Paying Agent from
time to time including, in the case of the Principal
Paying Agent:
(i) paying sums due on Class A Book Entry Notes
and Class A Definitive Notes;
(ii) if requested by the Note Trustee, arranging on
behalf of the Issuer Trustee for notices to be
communicated to the Class A Noteholders; and
(iii) performing all other obligations and duties
imposed upon it by the Class A Note Conditions
and this agreement.
ACCEPTANCE OF APPOINTMENT
2.2 Each Agent accepts its appointment under clause 2.1. Each
Agent must exercise the rights, powers and remedies, and
observe the obligations which are specifically delegated to
it by or under this agreement or which are set out in the
Class A Note Conditions. The obligations of the Agents are
several and not joint.
REPRESENTATION BY EACH AGENT
2.3 Each Agent represents and warrants that it is duly qualified
to assume its obligations under this agreement.
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ADDITIONAL AGENTS
2.4 The Issuer Trustee may from time to time, with the approval
of the Note Trustee, appoint additional or substitute paying
agents, calculation agents or note registrars in such
jurisdictions and locations as it may consider appropriate.
Upon such agent delivering to the other parties to this
agreement an undertaking (in a form and substance
satisfactory to the Note Trustee) to be bound by the
provisions of this agreement, and supplying the particulars
specified in this agreement, it shall become a party to this
agreement as if originally named as the Paying Agent, the
Calculation Agent or the Class A Note Registrar, as the case
may be. References to "Agent" shall, where the context
permits, include any additional or substitute agents
appointed pursuant to this clause 2.4.
3 THE NOTE TRUSTEE
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AGENTS TO ACT FOR NOTE TRUSTEE
3.1 At any time after an Event of Default has occurred, the Note
Trustee may:
(a) by notice in writing to the Issuer Trustee and each
Agent, require each Agent thereafter as far as
permitted by any applicable law and until notified by
the Note Trustee to the contrary:
(i) to act as an agent of the Note Trustee under the
Note Trust Deed and the Class A Notes on the
terms of this agreement (with consequential
amendments as necessary and except that the Note
Trustee's liability for the indemnification,
remuneration and expenses of the Agents will be
limited to the amounts for the time being held by
the Note Trustee in respect of the Class A Notes
on the terms of the Note Trust Deed) and
thereafter to hold all Class A Notes and all
moneys, documents and records held by them in
respect of Class A Notes to the order of the Note
Trustee; or
(ii) to deliver all Class A Notes and all moneys,
documents and records held by it in respect of
the Class A Notes to the Note Trustee or as the
Note Trustee directs in such notice other than
any documents or records which the relevant Agent
is obliged not to release by any law or
regulation; and
(b) by notice in writing to the Issuer Trustee require it
to make all subsequent payments in respect of the Class
A Notes to or to the order of the Note Trustee and not
to the Principal Paying Agent.
GOOD DISCHARGE TO ISSUER TRUSTEE
3.2 The payment by or on behalf of the Issuer Trustee of its
payment obligations on each Payment Date under the
Supplemental Deed and the Class A Note Conditions to the
Note Trustee in accordance with
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clause 3.1 is a good discharge to the Issuer Trustee and
the Issuer Trustee will not be liable for any act or
omission or default of the Note Trustee during the period
it is required to make payments to the Note Trustee under
clause 3.1.
NOTICE OF CHANGE OF THE NOTE TRUSTEE
3.3 The Issuer Trustee shall forthwith give notice to the Agents
of any change in the person or persons acting as the Note
Trustee from time to time.
4 PAYMENTS
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PAYMENTS OF AMOUNTS DUE
4.1 The Issuer Trustee shall pay to or to the order of the
Paying Agents, to such account of the Paying Agents as the
Paying Agents shall specify in U.S. Dollars in same day
funds, no later than 10.00am (New York time) on each Payment
Date, an amount sufficient to pay the interest on the
Invested Amount of the Class A Notes as set out in the Class
A Note Conditions and any principal amount due be paid on
such Payment Date in respect of the Class A Notes under the
Class A Note Conditions and this agreement.
The Issuer Trustee shall, no later than 10.00am (New York
time) on the second Business Day prior to each Payment
Date, confirm by facsimile to the Principal Paying Agent
that it has given the bank through which the Issuer
Trustee is to make such payment irrevocable instructions
for such payment to the Paying Agents and such bank shall
confirm to the Principal Paying Agent by such means
approved by the Paying Agents that such payment will be
made.
PAYMENTS BY PAYING AGENTS
4.2 Subject to payment being duly made as provided in clause 4.1
(or the Principal Paying Agent otherwise being satisfied
that the payment will be duly made on the due date), and
subject to clause 6, the Paying Agents will:
(a) subject to paragraph (b), pay or cause to be paid to
the Class A Noteholders on behalf of the Issuer Trustee
on each Payment Date the relevant amounts of principal
and interest due in respect of the Class A Notes in
accordance with this agreement and the Class A Note
Conditions; and
(b) pay or cause to be paid to the Depository (or, if
applicable, its nominee in whose name the Class A Book
Entry Notes are registered), to the account specified
by the relevant person, on each Payment Date the
relevant amounts of principal and interest due in
respect of the Class A Notes in accordance with this
agreement and the Class A Note Conditions.
NOTIFICATION
4.3 The Principal Paying Agent will promptly notify each of the
other Agents, the Note Trustee and the Issuer Trustee if it
has not, by 10.00 am (New York time) on the second Business
Day prior to any Payment Date, received the confirmation
referred to in clause 4.1
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above or has not, by 10.00 am (New York time) on any
Payment Date, received in full the amount so due. In the
absence of such notification by the Principal Paying Agent
as provided above, each of the Paying Agents shall be
entitled:
(a) to pay the interest on, and the principal of, the Class
A Notes due on such Payment Date; and
(b) (if applicable) to claim any amounts so paid by it from
the Principal Paying Agent.
PAYING AGENTS TO RECORD, NOTIFY PAYMENTS AND DELIVER SURRENDERED NOTES
4.4 Each Paying Agent must:
(a) (NOTIFY CLASS A NOTE REGISTRAR) promptly notify the
Class A Note Registrar of each payment made by it, or a
its direction, to Class A Noteholders in respect of the
Class A Notes;
(b) (RECORDS) keep a full and complete record of each
payment made by it, or at its direction, to Class A
Noteholders and provide copies of such records to the
Issuer Trustee, the Global Trust Manager, the Note
Trustee or the Class A Note Registrar upon request; and
(c) (DELIVER) promptly deliver to the Class A Note
Registrar any Class A Notes surrendered to it pursuant
to Condition 8.2 of the Class A Note Conditions.
MAKE PAYMENTS
4.5 Subject to the Principal Paying Agent being satisfied in its
discretion that payment will be duly made as provided in
clause 4.1, the Principal Paying Agent and each Paying Agent
shall pay or cause to be paid all amounts due in respect of
the Class A Notes on behalf of the Issuer Trustee in the
manner provided in the Class A Note Conditions. If any
payment provided for in clause 4.1 is made late but
otherwise in accordance with the provisions of this
agreement, the Paying Agents shall nevertheless make
payments in respect of the Class A Notes following receipt
by the Principal Paying Agent of such payment.
NON-PAYMENT
4.6 (NO OBLIGATION ON PAYING AGENTS): If the Issuer Trustee
fails to make any payment, unless and until the full amount
of the payment has been made under the terms of this
agreement (except as to the time of making the payment) or
other arrangements satisfactory to the Principal Paying
Agent have been made, none of the Principal Paying Agent nor
any of the other Paying Agents is bound to make any payment
in accordance with this clause 4 (but may, in its
discretion, make any such payment).
FULL AMOUNT NOT RECEIVED
4.7 If the amounts received by the Principal Paying Agent in
respect of the Class A Notes pursuant to clause 4.1 are
insufficient to satisfy all claims in respect of all
payments then falling due in respect of the Class A Notes,
the Paying Agents are not obliged to pay any such
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claims until the Principal Paying Agent has received the
full amount of all such payments.
INTEREST ON OVERDUE AMOUNTS
4.8 Without prejudice to clauses 4.3 and 4.7, if the Principal
Paying Agent pays any amounts to the Class A Noteholders or
to any other Paying Agent at the time when it has not
received payment in full in respect of the relevant Class A
Notes in accordance with clause 4.1 (the excess of the
amounts so paid over the amounts so received being the
"SHORTFALL"), the Issuer Trustee will, in addition to paying
amounts due under clause 4.1, pay to the Principal Paying
Agent on demand interest (at a rate which represents the
Principal Paying Agent's cost of funding the Shortfall as
evidenced to the Issuer Trustee by the provision of details
of the calculation of the cost of funding) on the Shortfall
(or the unreimbursed portion thereof) until the receipt in
full by the Principal Paying Agent of the Shortfall.
REIMBURSE OTHER AGENTS
4.9 The Issuer Trustee authorises and directs the Principal
Paying Agent on demand to promptly reimburse each other
Paying Agent for payments in respect of Class A Notes
properly made by such Paying Agent in accordance with this
agreement and the Class A Note Conditions unless the
Principal Paying Agent has notified the other Paying Agents
prior to the opening of business in the location of the
office of the other Paying Agents through which payment in
respect of the Class A Notes can be made on the due date of
a payment in respect of the Class A Notes, that the
Principal Paying Agent does not expect to receive the amount
payable by the Issuer Trustee or confirmation (as the case
may be) under clause 4.1. The Issuer Trustee will not be
responsible for the apportionment of any moneys between the
Principal Paying Agent and other Paying Agents and a payment
to the Principal Paying Agent of any moneys due to the
Paying Agents will operate as good discharge to the Issuer
Trustee in respect of such moneys.
LATE PAYMENT
4.10 Without limiting clause 4.3, if the Principal Paying Agent
has not received on or before the due date of any payment in
respect of the Class A Notes the full amount payable on such
date but receives such full amount later it will forthwith:
(a) so notify the Issuer Trustee, the other Paying Agents
and the Note Trustee; and
(b) upon request by the Note Trustee give notice to the
Class A Noteholders in accordance with the Class A Note
Conditions that it has received such full amount.
PARTIAL PAYMENTS
4.11 If payment of only part of the amount payable in respect of
a Class A Note is made (except as a result of a withholding
or deduction as permitted by the Class A Note Conditions),
the Paying Agent to whom the Class A Note is presented shall
procure that such Class A Note is enfaced with a memorandum
of the amount paid and date of payment
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and such record shall, in the absence of manifest error,
be prima facie evidence that the payment in question has
not to that extent been made. The Paying Agent shall in
addition notify the Note Trustee of such partial payment.
DEDUCTIONS
4.12 The Principal Paying Agent is entitled to withhold or deduct
from all payments to Class A Noteholders any amounts which
the Issuer Trustee or the Principal Paying Agent is required
to withhold or deduct by any applicable law but the Global
Trust Manager is responsible for making all determinations
regarding any such withholding or deduction and to notify
the Issuer Trustee (which must in turn notify the Principal
Paying Agent) of any such withholding or deduction in
sufficient time for the Principal Paying Agent to withhold
or deduct from such payment as instructed by the Issuer
Trustee.
If the Issuer Trustee is, in respect of any payments,
required to withhold or deduct any amount for or on account
of taxes, duties, assessments or governmental charges as
specifically contemplated under the Class A Note Conditions,
the Global Trust Manager must give notice thereof to the
Issuer Trustee (which must in turn notify the Principal
Paying Agent) and the Note Trustee as soon as it becomes
aware of the requirement to make such withholding or
deduction and shall give to the Issuer Trustee such
information as it requires to enable it to comply with such
requirements.
UNPAID MONEY
4.13 If any Class A Note becomes void or claims in respect of any
principal or interest payable under any Class A Note become
void under the Class A Conditions, the Principal Paying
Agent shall promptly repay to the Issuer Trustee the amount
received by the Principal Paying Agent (if any) which would
have been due on such Class A Note if it had been presented
for payment before it became void or such claim became
prescribed.
NO SET-OFF
4.14 No Agent is entitled to exercise any right of set-off,
withholding, counterclaim, combination of accounts or lien
against or make any deduction in any payment to, any person
entitled to receive amounts of principal or interest of the
Class A Notes in respect of moneys payable by it under this
agreement.
CURRENCY SWAPS
4.15 The payment by the Issuer Trustee of its payment obligations
under the Supplemental Deed on each Payment Date to the
Counterparties under the Currency Swaps will be a good
discharge of its corresponding obligations under this clause
4.
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5 EXCHANGE OF CLASS A BOOK ENTRY NOTES
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EXCHANGE FOR CLASS A DEFINITIVE NOTES
5.1 Each Class A Book Entry Note shall be exchangeable in whole
but not in part for Class A Definitive Notes in certain
limited circumstances set out in the Note Trust Deed.
NOTIFICATION
5.2 The Principal Paying Agent shall notify the Issuer Trustee
forthwith upon receipt of a notice requiring exchange for
Class A Definitive Notes in accordance with the provisions
of a Class A Book Entry Note and the aggregate Invested
Amount of such Class A Book Entry Note to be exchanged in
connection with such request.
OUTSTANDING AMOUNT
5.3 The Principal Paying Agent shall, upon request by the Issuer
Trustee or the Note Trustee, promptly inform the Issuer
Trustee or the Note Trustee, as the case may be, by
facsimile or other acceptable form of communication of the
aggregate Invested Amount of Class A Notes then outstanding
at the time of such request.
6 REDEMPTION
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PART REDEMPTION OF NOTES ON PAYMENT DATES
6.1 (a) (GLOBAL TRUST MANAGER TO MAKE DETERMINATIONS ETC) No
later than 2 Business Days prior to each Payment
Date, the Global Trust Manager will make the
determinations referred to in Condition 7.11 of the
Class A Note Conditions in relation to that Payment
Date and will notify the Issuer Trustee, the Note
Trustee, the Principal Paying Agent, the Calculation
Agent, the Class A Note Registrar and the Luxembourg
Stock Exchange of such. If the Global Trust Manager
does not at any time for any reason make the
determinations referred to in Condition 7.11 of the
Class A Note Conditions it must forthwith advise the
Note Trustee and the Calculation Agent and such
determinations must be made by the Calculation Agent,
or failing the Calculation Agent, by the Note Trustee
in accordance with such Condition 7.11 of the Class A
Note Conditions (but based on the information in its
possession) and each such determination will be
deemed to have been made by the Global Trust Manager.
(b) (NOTIFY DEPOSITORY) If any Class A Book Entry Notes
are outstanding, on receipt of a notification under
Condition 7.3 of the Class A Note Conditions, the
Principal Paying Agent must notify the Depository of
any proposed redemption in accordance with the
Depository's applicable procedures, specifying the
principal amount of each Class A 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 7.3 of the
Class A Note Conditions.
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EARLY REDEMPTION
6.2 (a) (NOTICE TO PAYING AGENT ETC): If the Issuer Trustee
intends to redeem all (but not some only) of the
Class A Notes prior to the Final Maturity Date
pursuant to Condition 7.3 of the Class A Note
Conditions, the Global Trust Manager will direct the
Issuer Trustee to give the requisite notice to the
Seller, the Note Trustee, the Principal Paying Agent,
the Class A Note Registrar, the Calculation Agent and
the Class A Noteholders in accordance with Condition
7.3 (as the case may be) of the Class A Note
Conditions and stating the date on which such Class A
Notes are to be redeemed.
(b) (NOTICE TO DEPOSITORY): The Principal Paying Agent
will, on receipt of a notice under clause 6.2(a), and
if any Class A 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 Book Entry Note to be
redeemed, the amount of principal to be repaid in
relation to each Class A Book Entry Note and the date
on which the Class A Book Entry Notes are to be
redeemed.
7 GENERAL NOTE REGISTRAR AND PAYING AGENT MATTERS
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NOTICES TO CLASS A NOTEHOLDERS
7.1 (a) (NOTICES TO BE GIVEN BY CLASS A NOTE REGISTRAR): At the
request of the Issuer Trustee, the Note Trustee, the
Global Trust Manager, the Security Trustee or any
other Agent, and at the expense of the Issuer
Trustee, the Class A Note Registrar will arrange for
the delivery of all notices to Class A Noteholders in
accordance with the Class A Note Conditions.
(b) (COPY TO NOTE TRUSTEE): The Class A Note Registrar
will promptly send to the Note Trustee one copy of the
form of every notice given to Class A Noteholders in
accordance with the Class A Note Conditions (unless
such notice is given at the request of the Note
Trustee).
The Class A Note Registrar will not be responsible for, or
liable to any person in respect of, the contents of any
notices or reports delivered by it at the request of the
Issuer Trustee, the Note Trustee, the Global Trust Manager,
the Security Trustee or any other Agent pursuant to this
clause 7.1.
COPIES OF DOCUMENTS FOR INSPECTION
7.2 The Global Trust Manager will provide to the Class A Note
Registrar sufficient copies of all documents required by the
Class A Note Conditions or the Note Trust Deed to be
available to Class A Noteholders for issue or inspection.
NOTICE OF ANY WITHHOLDING OR DEDUCTION
7.3 If the Issuer Trustee or any Paying Agent is, in respect of
any payment in respect of the Class A Notes, compelled to
withhold or deduct any
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amount for or on account of any taxes, duties or charges
as contemplated by Condition 8.4 of the Class A Note
Conditions the Issuer Trustee must give notice to the
Principal Paying Agent, the Note Trustee and the Class A
Noteholders in accordance with Condition 11 of the Class
A Note Conditions immediately after becoming aware of the
requirement to make the withholding or deduction and must
give to the Principal Paying Agent and the Note Trustee
such information as they require to enable each of them
to comply with the requirement.
8 COPIES OF DOCUMENTS AVAILABLE FOR INSPECTION
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The Issuer Trustee shall supply, and the Paying Agents shall
hold available for inspection at their Specified Offices
during normal business hours, copies of all documents
required to be so available by the Note Trust Deed and the
Class A Note Conditions or the rules of the Luxembourg Stock
Exchange.
9 DOCUMENTS AND FORMS
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PRINCIPAL PAYING AGENT
9.1 The Issuer Trustee shall provide to the Principal Paying
Agent in a sufficient quantity, for distribution among the
Paying Agents as required by this agreement or the Class A
Note Conditions:
(a) in the event that Class A Definitive Notes are to be
issued:
(i) such Class A Definitive Notes, duly executed on
behalf of the Issuer Trustee;
(ii) specimens of such Class A Notes for the purpose
of issuing replacements,
at least 14 days prior to the Exchange Date for
the relative Class A Book Entry Note (and the
Note Trustee shall authenticate or procure the
authentication of such Class A Definitive Notes
immediately before their issue);
(b) forms of Voting Certificates and Block Voting
Instructions, together with instructions as to how to
complete, deal with and record the issue of such forms.
9.2 The Global Trust Manager shall provide to the Principal
Paying Agent in a sufficient quantity, for distribution
among the Paying Agents as required by this agreement or the
Class A Note Conditions, all documents to be available for
inspection during business hours (and the Paying Agents
shall make such documents available for collection or
inspection to the Class A Noteholders that are so entitled).
NOTES, ETC HELD BY PAYING AGENTS
9.3 Each Paying Agent:
(a) acknowledges that all forms of Class A Notes delivered
to and held by it pursuant to this agreement shall be
held by it as
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custodian only and it shall not be entitled to and
shall not claim any lien or other security interest
on such forms;
(b) shall only use such forms in accordance with this
agreement;
(c) shall maintain all such forms in safe custody;
(d) shall take such security measures as may reasonably be
necessary to prevent their theft, loss or destruction;
and
(e) shall keep an inventory of all such forms and make it
available to the Issuer Trustee, the Note Trustee and
the other Paying Agents at all reasonable times.
10 RECEIPT OF NOTICES AND VOTING
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COPY NOTICES TO ISSUER TRUSTEE
10.1 Promptly after the receipt by the Principal Paying Agent of
a demand or notice from any Class A Noteholder in accordance
with the Class A Note Conditions the Principal Paying Agent
shall forward a copy thereof to the Issuer Trustee and the
Note Trustee.
VOTING
10.2 Each Paying Agent shall, at the request of any Class A
Noteholder, issue Voting Certificates and/or Block Voting
Instructions in a form and manner which complies with the
provisions of schedule 2 to the Note Trust Deed in respect
of the Trust (except that it shall not be required to issue
the same less than 48 hours before the time fixed for any
meeting or adjourned meeting of the Class A Noteholders) and
shall forthwith give to the Issuer Trustee and the Note
Trustee, by telex or by facsimile transmission, notice of
any revocation of or amendment to any Block Voting
Instruction. Each Paying Agent shall keep a full and
complete record of all Voting Certificates and Block Voting
Instructions issued by it and shall deliver to the Issuer
Trustee at its registered office (or such other place as the
Issuer Trustee shall have designated or approved for the
purpose), not less than 24 hours before the time appointed
for any meeting or adjourned meeting, full particulars of
all Voting Certificates and Block Voting Instructions issued
by it in respect of such meeting or adjourned meeting. Forms
for this purpose shall be made available to the Principal
Paying Agent by the Note Trustee at the expense of the
Issuer Trustee for distribution to the other Paying Agents.
11 DUTIES OF CALCULATION AGENT
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APPOINTMENT
11.1 The Calculation Agent shall make all such determinations and
calculations (howsoever described) as it is required to do
under the Class A Note Conditions, all subject to and in
accordance with the Class A Note Conditions.
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QUOTATIONS
11.2 The Calculation Agent shall not be responsible to the Issuer
Trustee, the Note Trustee or to any third party (except in
the event of negligence, default or bad faith of the
Calculation Agent, as the case may be) as a result of the
Calculation Agent having acted on any quotation given by any
reference bank which subsequently may be found to be
incorrect.
NOTICE
11.3 The Calculation Agent shall, as soon as practicable after
their determination or calculation (or on such earlier date
as the Luxembourg Stock Exchange may require, for so long as
the Class A Notes are listed on the Luxembourg Stock
Exchange) notify the Issuer Trustee, the Global Trust
Manager, the Currency Swap Providers, the Note Trustee, the
other Paying Agents and the Luxembourg Stock Exchange (for
so long as the Class A Notes are listed on the Luxembourg
Stock Exchange) of, inter alia, each Interest Rate, Interest
Amount, Principal Amount and Payment Date and all other
amounts, rates and dates which it is obliged to determine or
calculate under the Class A Note Conditions and of any
subsequent amendment thereto pursuant to the Class A Note
Conditions. The Calculation Agent will publish the same in
accordance with the Class A Note Conditions.
CALCULATIONS
11.4 The Calculation Agent shall use its best endeavours to cause
each Interest Rate, Interest Amount, Principal Amount and
Payment Date and all other amounts, rates and dates which it
is obliged to determine or calculate under the Class A Note
Conditions to be published as required in accordance with
the Class A Note Conditions as soon as possible after their
determination or calculation.
FAILURE TO CALCULATE
11.5
(a) If the Calculation Agent at any time for any reason
does not determine and/or calculate and/or publish the
Interest Rate, Interest Amount, Principal Amount and/or
Payment Date in respect of any Interest Period or any
other amount, rate or dates as provided in this clause
the Note Trustee will do so and each such determination
or calculation by the Note Trustee will be as if made
by the Calculation Agent. In making such determinations
and calculations, the Note Trustee will apply the
provisions of this agreement, with any consequential
amendments, to the extent that it is able to do so and
in all other respects it will do so in such a manner as
it considers to be fair and reasonable in all the
circumstances.
(b) If the Global Trust Manager does not at any time for
any reason make any of the determinations referred to
in the Class A Note Conditions, the Calculation Agent
(or, failing the Calculation Agent, the Note Trustee)
must make such determinations (based on the information
in its possession) and each such determination will be
deemed to have been made by the Global Trust Manager.
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12 DUTIES OF THE CLASS A NOTE REGISTRAR
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CLASS A NOTE REGISTER TO BE KEPT
12.1 The Class A Note Registrar must keep a register, at one of
its Specified Offices, in which, subject to such reasonable
regulations as the Class A Note Registrar may prescribe, the
Class A Note Registrar must keep a full and complete record
of:
(a) (CLASS A NOTEHOLDER DETAILS): the name, address and,
where applicable, taxation, social security or other
identifying number of each Class A Noteholder, the
details of the account to which any payments due to the
Class A Noteholder are to be made in each case as
notified by that Class A Noteholder from time to time;
(b) (EXCHANGE ETC. OF CLASS A NOTES): the issue and any
exchange, transfer, replacement, redemption (in whole
or part) or cancellation of a Class A Note;
(c) (PAYMENTS): all payments made in respect of the Class A
Notes;
(d) (PRINCIPAL): the Invested Amount and the Stated Amount
of each Class A Note from time to time;
(e) (OTHER INFORMATION): such other information as the
Global Trust Manager reasonably requires or the Class A
Note Registrar considers appropriate or desirable.
TRANSFER OR EXCHANGE OF CLASS A NOTES
12.2 Class A Notes held by a Class A Noteholder may be
transferred or may be exchanged for other Class A 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 Noteholder
upon:
(a) (SURRENDER AND INSTRUMENT OF TRANSFER OR EXCHANGE): the
surrender of the Class A 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 Notes
or otherwise in a form satisfactory to the Class A Note
Registrar duly executed by the Class A Noteholder, or
its attorney duly authorised in writing, with such
signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Class A
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
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 Note Registrar may reasonably
require,
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to the Class A Note Registrar at the Specified Office
of the Class A Note Registrar.
REPLACEMENT OF LOST OR MUTILATED CLASS A NOTES
12.3 If any Class A 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
Notes in any authorised denominations, and a like Invested
Amount, upon surrender to the Class A Note Registrar of the
Class A Notes to be replaced (where the Class A Notes have
been mutilated or defaced) at the Specified Office of the
Class A Note Registrar, the provision of such evidence and
indemnities as the Class A Note Registrar or the Issuer
Trustee may reasonably require and payments of the Class A
Note Registrar's and the Issuer Trustee's expenses incurred,
and any tax or governmental charge that may be imposed, in
connection with such replacement.
OBLIGATIONS UPON TRANSFER, EXCHANGE OR REPLACEMENT OF CLASS A NOTES
12.4 Subject to this agreement, upon compliance by the relevant
Class A Noteholder with the provisions of clauses 12.2 or
12.3, as applicable, in relation to the transfer, exchange
or replacement of any Class A Notes:
(a) (ADVISE ISSUER TRUSTEE): the Class A Note Registrar
must within 3 Business Days so advise the Issuer
Trustee and the Note Trustee (if it is not the Class A
Note Registrar) in writing and provide details of the
new Class A Notes to be issued in place of those Class
A Notes;
(b) (EXECUTION AND AUTHENTICATION): the Issuer Trustee
must, within 3 Business Days of such advice, execute
and deliver to the Note Trustee for authentication in
the name of the relevant Class A Noteholder or the
designated transferee or transferees, as the case may
be, one or more new Class A Notes in any authorised
denominations, and a like Invested Amount as those
Class A Notes (in each case as specified by the Class A
Note Registrar) and the Note Trustee must within 3
Business Days of receipt of such executed Class A Notes
authenticate them and (if it is not the Class A Note
Registrar) deliver those Class A Notes to the Class A
Note Registrar; and
(c) (DELIVERY TO CLASS A NOTEHOLDER): the Class A Note
Registrar must, within 3 Business Days of receipt of
such new Class A Notes (or authentication of such Class
A Notes if the Class A Note Registrar is the Note
Trustee), forward to the relevant Class A Noteholder
(being the transferee in the case of a transfer of a
Class A Note) such new Class A Notes.
NO CHARGE FOR TRANSFER OR EXCHANGE
12.5 No service charge may be made to a Class A Noteholder for
any transfer or exchange of Class A Notes, but the Class A
Note Registrar may require payment by the Class A 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 Notes.
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RESTRICTED PERIOD
12.6 Notwithstanding the preceding provisions of this clause 12,
the Class A Note Registrar need not register transfers or
exchanges of Class A Notes, and the Issuer Trustee is not
required to execute nor the Note Trustee to authenticate any
Class A Notes, for a period of 30 days preceding the due
date for any payment with respect to the Class A Notes or
for such period, not exceeding 30 days, as is specified by
the Note Trustee prior to any meeting of the Class A
Noteholders, which includes Class A Noteholders, under the
Master Trust Deed or prior to any meeting of Voting Secured
Creditors, which includes Class A Noteholders, under the
Master Security Trust Deed.
CANCELLATION OF CLASS A NOTES
12.7 The Class A Note Registrar must cancel or destroy all Class
A Notes that have been surrendered to it for transfer,
exchange or replacement (including any Class A Book Entry
Notes surrendered pursuant to the Note Trust Deed) or
surrendered to a Paying Agent for redemption and delivered
to the Class A Note Registrar and must, upon request,
provide a certificate to the Issuer Trustee, the Note
Trustee or the Global Trust Manager with the details of all
such Class A Notes so cancelled or destroyed.
PROVISION OF INFORMATION AND INSPECTION OF REGISTER
12.8 The Class A Note Registrar must:
(a) (INFORMATION): provide to the Issuer Trustee, the
Global Trust Manager, the Note Trustee and each other
Agent such information as is contained in the Class A
Note Register and is required by them in order to
perform any obligation pursuant to a Transaction
Document;
(b) (INSPECTION): make the Class A Note Register:
(i) available for inspection or copying by the Issuer
Trustee, the Global Trust Manager, the Note
Trustee and each other Agent or their agents or
delegates; and
(ii) available for inspection by each Class A
Noteholder but only in respect of information
relating to that Class A Noteholder,
at the Class A Note Registrar's Specified Office during
local business hours.
CORRECTNESS OF REGISTER AND INFORMATION
12.9 The Issuer Trustee, the Note Trustee, the Global Trust
Manager and each Agent (other than the Class A Note
Registrar) may accept the correctness of the Class A Note
Register and any information provided to it by the Class A
Note Registrar and is not required to enquire into its
authenticity. None of the Issuer Trustee, the Note Trustee,
the Global Trust Manager or any Agent (including the Class A
Note Registrar) is liable for any mistake in the Class A
Note Register or in any purported copy except to the extent
that the mistake is attributable to (in the case of the
parties other than the Issuer Trustee or the Note
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Trustee) its own fraud, negligence or material breach of
obligation (or, in the case of the Issuer Trustee or the
Note Trustee), its fraud, negligence or breach of trust).
NON-RECOGNITION OF EQUITABLE INTERESTS
12.10 Except as required by statute or as ordered by a court of
competent jurisdiction, no notice of any trust, whether
express, implied or constructive, is to be entered in the
Class A 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
Note Registrar, the Note Trustee, the Issuer Trustee, the
Global Trust Manager or any other Agent is to be affected by
or compelled to recognise (even when having notice of it)
any right or interest in any Class A Notes other than the
registered Class A Noteholder's absolute right to the
entirety of them and the receipt of a registered Class A
Noteholder is a good discharge to the Issuer, the Global
Trust Manager, the Note Trustee and each Agent.
RECTIFICATION OF CLASS A NOTE REGISTER
12.11 If:
(a) (ENTRY OMITTED): an entry is omitted from the Class A
Note Register;
(b) (ENTRY MADE OTHERWISE THAN IN ACCORDANCE WITH THIS
DEED): an entry is made in the Class A Note Register
otherwise than in accordance with this agreement;
(c) (WRONG ENTRY EXISTS): an entry wrongly exists in the
Class A Note Registrar;
(d) (ERROR OR DEFECT EXISTS IN REGISTER): there is an error
or defect in any entry in the Class A Note Register; or
(e) (DEFAULT MADE): default is made or unnecessary delay
takes place in entering in the Class A Register that
any person has ceased to be the holder of Class A
Notes, then the Class A Note Registrar may rectify the
same.
13 RELATIONSHIP
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NO OTHER OBLIGATION
13.1 Each of the Agents hereby undertakes to the Issuer Trustee
and the Note Trustee to perform such obligations and duties,
and shall be obliged to perform such duties and only such
duties, as are in this agreement, in the Class A Note
Conditions specifically set forth, and no implied duties or
obligations shall be read into this agreement, the Note
Trust Deed or the Class A Notes against any of the Agents,
other than the duty to act honestly and in good faith and to
exercise the diligence of a reasonably prudent agent in
comparable circumstances.
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INSTRUCTIONS
13.2 Subject to the other terms of this agreement and the Class A
Note Conditions, each Agent must act in accordance with the
instructions (if any) of the Issuer Trustee and the Global
Trust Manager in exercising its rights, powers and
discretions under this agreement.
NO INSTRUCTIONS
13.3 Subject to the terms of this agreement, where instructions
of the Issuer Trustee are expressly required for the Agent
to take action under this agreement, in the absence of
instructions from the Issuer Trustee, no Agent is required
to take any action but may exercise its rights, powers and
discretions as it sees fit provided it does so in good
faith. Except where this agreement otherwise expressly
provides, no Agent need consult with the Issuer Trustee
before exercising a right, power or discretion under this
agreement.
AGENT OF THE ISSUER TRUSTEE
13.4 In acting hereunder and in connection with the Class A Notes
(and subject to clause 3.1), the Agents shall act solely as
agents of the Issuer Trustee and will not thereby assume any
obligations towards or relationship of agency or trust for
any holders of Class A Notes except that any funds received
by the Principal Paying Agent for the payment of any amounts
in respect of the Class A Notes shall be held by it on trust
for the relevant holders until the earlier of the expiration
of the relevant prescription period and the date on which
any such amounts are repaid under clause 4.10.
ISSUER TRUSTEE NOT RESPONSIBLE FOR AGENTS
13.5 Notwithstanding any other provision contained in this
agreement, any other Transaction Document or at law, the
Issuer Trustee in its personal capacity is not responsible
for any act or omission of any Agent.
RELIANCE
13.6 Each Agent is protected and will incur no liability for or
in respect of any action taken, omitted or suffered by it in
reliance upon any instruction, request or order from the
Issuer Trustee or the Global Trust Manager or in reliance
upon any Class A Note or upon any notice, resolution,
direction, consent, certificate, affidavit, statement or
other paper or document reasonably believed by it to be
genuine and to have been delivered, signed or sent by the
property party or parties.
AGENT MAY EMPLOY
13.7 Each Agent may employ agents. Each of the Agents may consult
on any legal matter any legal adviser selected by it, who
may be an employee of or legal adviser to the Issuer
Trustee, and it shall be protected and shall incur no
liability for action taken, or suffered to be taken, with
respect to such matter in good faith and in accordance with
the opinion of such legal adviser.
APPLICABLE LAWS
13.8 The Global Trust Manager must ensure, and no Agent has any
responsibility for ensuring, that the issue of, and
observance of obligations under, a Class A Note complies
with all applicable laws
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and regulations and that all authorisations necessary for
the issue of, and observance of obligations under, a Class
A Note are obtained and maintained in full force and effect.
ACCEPT DEPOSITS ETC
13.9 Without any liability to account to a Class A Noteholder or
any other person each Agent may accept deposits from, lend
money to, assume liabilities in relation to and generally
engage in any kind of banking, trust or other business with,
the Issuer Trustee as if it were not an Agent and may accept
fees and other consideration from the Issuer Trustee for
services in connection with this agreement or any other
arrangement without having to account for them to a Class A
Noteholder or another person.
DEALING WITH MONEY
13.10 Each Agent is entitled to deal with money paid to it under
this agreement in the same manner as other money paid to it
as banker by its customers except that:
(a) it is not entitled to exercise any lien, right of
set-off, combination of accounts or similar claim in
respect of it; and
(b) it shall not be liable to any person to account for
interest on any sums held by it under this agreement.
INCOME TAX RETURNS
13.11 The Principal Paying Agent will deliver to each Class A
Noteholder such information as may be reasonably required to
enable such Class A Noteholder to prepare its federal and
state income tax returns.
HOLDERS OF NOTES
13.12 Except as ordered by a court of competent jurisdiction or
as required by law, each Paying Agent is entitled to treat
the person:
(a) (CLASS A BOOK ENTRY NOTES) who is, while a Class A Book
Entry Note remains outstanding, the registered owner of
that Class A Book Entry Note as recorded in the Class A
Note Register as the absolute owner of each Note and as
the person entitled to receive payments of principal or
interest (as applicable) and each person shown in the
records of the Depository as the holder of any Note
represented by a Class A Book Entry Note will be
entitled to receive from the registered owner of that
Class A Book Entry Note any payment so made only in
accordance with the respective rules and procedures of
the Depository;
(b) (CLASS A DEFINITIVE NOTES) who is the registered owner
of any Class A Definitive Note as recorded in the Class
A Note Register as the absolute owner or owners of that
Class A Definitive Note (whether or not that Class A
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
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(c) (NOTE TRUSTEE) who, when a Class A Book Entry Note in
respect of any Note is no longer outstanding but Class
A Definitive Notes in respect of the Notes have not
been issued, is for the time being the Note Trustee, as
the person entrusted with the receipt of principal or
interest, as applicable, on behalf of the relevant
Class A Noteholders,
in all cases and for all purposes, despite any notice to the
contrary, and will not be liable for so doing.
NOTE OR DOCUMENT BELIEVED TO BE GENUINE
13.13 Each of the Agents shall be protected and shall incur no
liability for or in respect of any action taken or omitted
or thing suffered by it in reliance upon any Note or other
document or any communication, certification, instruction,
request or order reasonably believed by it to be genuine and
to have been delivered, sent or signed by the proper
parties.
AGENTS AS HOLDERS OF NOTES
13.14 Neither any Agent nor any other person whether acting for
itself or in any other capacity will be precluded from
becoming the owner of, or acquiring any interest in, holding
or disposing of any Class A Note or any shares or securities
of the Issuer Trustee, with the same rights as it would have
had if such Agent were not acting as Agent or from entering
into or being interested in any contracts or transactions
with the Issuer Trustee, or from acting on, or as
depositary, trustee or agent for, any committee or body of
holders of any securities of the Issuer Trustee, and will
not be liable to account for any profit.
COMMUNICATION BETWEEN THE PARTIES
13.15 A copy of all communications relating to the subject matter
of this agreement between the Issuer Trustee or the Note
Trustee and the Class A Noteholders and any of the Paying
Agents (other than the Principal Paying Agent) shall be sent
to the Principal Paying Agent by the relevant Paying Agent.
TERMINATION
13.16 An Agent may resign its appointment under this agreement
and the Global Trust Manager may, with the prior written
approval of the Note Trustee and the Issuer Trustee,
terminate the appointment of an Agent under this agreement
at any time by giving not less than 45 days' written notice
to that effect to the Global Trust Manager or the Agent
respectively (which shall not expire less than 15 days
before or after any Payment Date) provided that:
(a) no such resignation or termination of the appointment
of the Principal Paying Agent shall take effect until a
successor has been appointed by the Issuer Trustee (at
the direction of the Global Trust Manager) on terms
approved in writing by the Note Trustee;
(b) no such resignation or termination shall take effect if
as a result of such resignation or termination there
would cease to be Agents as required in the Class A
Note Conditions; and
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(c) there must at all times be a Paying Agent in
Luxembourg.
If the Global Trust Manager does not appoint a successor
Principal Paying Agent by the day falling 10 days before the
expiration of such 45 days, the Principal Paying Agent may
appoint as a successor Principal Paying Agent a reputable
financial institution of good standing which the Issuer
Trustee and the Note Trustee approve (such approval not to
be unreasonably withheld) or it may petition a court of
competent jurisdiction to do so. Any successor Principal
Paying Agent must forthwith enter into an agreement on
substantially the same terms as this agreement and each
Current Rating Agency must be notified of any appointment by
the Global Trust Manager.
If the appointment of the Principal Paying Agent terminates,
the Principal Paying Agent shall, on the date on which that
termination takes effect, pay to the successor Principal
Paying Agent any amount held by it for payment of principal
or interest in respect of any Note, and shall deliver to the
successor Principal Paying Agent all records maintained by
it pursuant to this agreement and all documents (including
any Class A Definitive Notes) held by it.
PUBLICATION
13.17 Immediately following the receipt of any notice of
resignation of any Agent and forthwith on giving notice
appointing an Agent or terminating any Agent's appointment
hereunder, the Global Trust Manager shall publish or cause
to be published notice thereof to the holders of the Class A
Notes in accordance with the Class A Note Conditions. On the
date on which any such termination or resignation takes
effect, the relevant Agent shall deliver to the Issuer
Trustee, or as the Issuer Trustee may direct, all records
maintained by it, and any Class A Notes in its possession,
pursuant hereto and shall resign, it shall in addition pay
to or to the order of the Issuer Trustee any amount held by
it, and received from the Issuer Trustee for payment in
respect of the Class A Notes. Upon its resignation or
termination of appointment taking effect, the relevant
Paying Agent shall be entitled to the payment by the Issuer
Trustee of its commissions, fees and expenses then unpaid
and shall continue to be entitled to the benefit of clause
14.2 in respect of the period of its appointment.
TERMINATION OF APPOINTMENT
13.18 The appointment of any Agent shall forthwith terminate if
at any time:
(a) an Insolvency Event occurs in relation to that Agent;
or
(b) the Agent ceases to conduct business; or
(c) it fails to remedy within 5 Business Days after prior
written notice by the Issuer Trustee or the Global
Trust Manager any material breach of this agreement on
the part of the Agent.
The Issuer Trustee acting on the direction of the Global
Trust Manager may appoint a successor Agent which shall be a
reputable financial institution of good standing approved by
the Note Trustee.
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NEW AGENTS
13.19 Upon its appointment becoming effective, a successor Agent
shall, without further act, deed or conveyance, become
vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of its predecessor or, as
the case may be, a Paying Agent with like effect as if
originally named as an Agent under this agreement.
MERGER
13.20 Any corporation into which any Agent or its agency business
may be merged, sold or converted or any corporation with
which such Agent may be consolidated or any corporation
resulting from any merger, conversion or consolidation to
which such Agent shall be a party shall, to the extent
permitted by applicable law, be the successor Agent under
this agreement without any further formality. Notice of any
such merger, conversion or consolidation shall forthwith be
given by that Agent to the Issuer Trustee, Note Trustee and
the other Agents.
NOTICE TO CLASS A NOTEHOLDER
13.21 The Global Trust Manager on behalf of the Issuer Trustee
will, within 5 days of:
(a) (TERMINATION): the termination of the appointment of
any Agent;
(b) (RESIGNATION): the resignation of any Agent; or
(c) (APPOINTMENT): the appointment of a new Agent,
give to the Class A Noteholders notice of the termination,
appointment or resignation in accordance with Condition 11
of the Class A Note Conditions (in the case of a termination
under clause 13.18 at the cost of the outgoing Agent).
Notwithstanding clause 13.18, neither the termination of the
appointment of an Agent, nor the resignation of an Agent,
will take effect until notice thereof is given to the Class
A Noteholders in accordance with this clause 13.21.
CHANGE OF SPECIFIED OFFICE
13.22 If any Agent changes its Specified Office, it shall give to
the Issuer Trustee, the Global Trust Manager, the Note
Trustee and each other Agent written notice of the address
of the new Specified Office stating the date on which such
change is to take effect, which date shall be not less than
30 days after the date of such notice, provided that an
Agent shall not change its Specified Office to another city
without the prior consent of the Issuer Trustee and the
Global Trust Manager. The Global Trust Manager shall within
15 days of receipt of any such notice (unless the
appointment of the Principal Paying Agent or the relevant
Paying Agent is to terminate pursuant to any of the
foregoing clauses on or prior to the date of such change)
publish or cause to be published notice thereof to the Class
A Noteholders in accordance with the Class A Note
Conditions.
13.23 Anything in this agreement to the contrary notwithstanding,
in no event shall the Agent by liable under or in connection
with this agreement for indirect, special, incidental,
punitive or consequential
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losses or damages of any kind whatsoever, including but not
limited to lost profits, whether or not foreseeable, even
if the Agent has been advised to the possibility thereof
and regardless of the form of action in which such damages
are sought.
14 STAMP DUTIES AND INDEMNITIES
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STAMP DUTIES
14.1 The Issuer Trustee agrees to pay any and all stamp and other
documentary taxes or duties which may be payable in the
Commonwealth of Australia, the Australian Capital Territory,
the United States and Luxembourg by the Paying Agents or the
Note Trustee in connection with the execution, delivery,
performance and enforcement of this agreement.
INDEMNITY BY ISSUER TRUSTEE
14.2 Subject to clause 16, the Issuer Trustee shall indemnify
each Agent against any loss, liability, cost, claim, action,
demand or expense (including, but not limited to, all
reasonable costs, charges and expenses paid or incurred in
disputing or defending any of the foregoing) that it may
incur or that may be made against it arising out of or in
relation to or in connection with its appointment or the
exercise of its functions, except such as may result from a
breach by it of this agreement or its own negligence, bad
faith or breach of trust or that of its officers, employees
or agents.
INDEMNITY BY AGENTS
14.3 Each Agent severally shall indemnify the Issuer Trustee and
the Global Trust Manager against any loss, liability, cost,
claim, action, demand or expense (including, but not limited
to, all reasonable costs, charges and expenses paid or
incurred in disputing or defending any of the foregoing)
that the Issuer Trustee may incur or that may be made
against it as a result of such Agent's fraud, negligence or
material breach of obligation or that of its officers,
employees or agents.
15 COMMISSIONS AND EXPENSES
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PRINCIPAL PAYING AGENT
15.1 The Issuer Trustee agrees to pay to the Principal Paying
Agent, from its own funds and not from the Assets of the
Trust, such fees and commissions as the Issuer Trustee and
the Principal Paying Agent shall separately agree in respect
of the services of the Principal Paying Agent and the other
Paying Agents under this agreement together with any
reasonable out-of-pocket expenses (including legal,
printing, postage, fax, cable and advertising expenses and
GST (if any)) incurred by the Principal Paying Agent and the
other Paying Agents in connection with this agreement and
its supply of services. If the appointment of an Agent is
terminated under this agreement, the Principal Paying Agent
must refund to the Issuer Trustee their proportion of the
fee (if any) which relates to the period during which the
Agent's appointment is terminated.
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OTHER AGENTS
15.2 The Principal Paying Agent will make payment of the fees and
commissions due hereunder to the other Agents and will
reimburse their expenses promptly after the receipt of the
relevant moneys from the Issuer Trustee in each case unless
otherwise agreed with the Issuer Trustee. The Issuer Trustee
shall not be responsible for any such payment or
reimbursement by the Principal Paying Agent to the other
Agents.
16 ISSUER TRUSTEE'S LIMITATION OF LIABILITY
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Clause 2 of the Definitions Schedule applies to this
agreement as if set out in full in it (with any
consequential changes as are necessary to give effect to
that clause in this agreement).
17 NOTICES
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FORM
17.1 Subject to clauses 17.4 and 17.5, a notice, approval,
consent or other communication in connection with this
agreement:
(a) may be given by an Authorised Person of the relevant
party;
(b) must be in writing; and
(c) must be left at the address of the addressee or sent by
prepaid ordinary post to the address of the addressee
or sent by facsimile to the facsimile number of the
addressee, or sent by e-mail to the e-mail address of
the addressee specified in clause 17.2 or any other
address, facsimile number or e-mail address any party
may from time to time notify to the other parties as
its address for service of communications pursuant to
this agreement.
INITIAL ADDRESSES
17.2 The initial address and facsimile numbers of the Issuer
Trustee, the Global Trust Manager, the Principal Paying
Agent, the Paying Agent and the Note Trustee are set out in
the schedule to this agreement.
TIME EFFECTIVE
17.3 Unless a later time is specified in it, a notice, approval,
consent or other communication takes effect from the time it
is received.
RECEIPT
17.4 A letter, e-mail or facsimile is taken to be received:
(a) in the case of a posted letter, on the third (seventh,
if posted to or from a place outside Australia) day
after posting;
(b) in the case of a facsimile, on production of a
transmission report by the machine from which the
facsimile was sent which indicates that the facsimile
was sent in its entirety to the
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facsimile number of the recipient notified for the
purpose of this clause; and
(c) in the case of an e-mail, on receipt by the sender of
an e-mail from the recipient stating that the e-mail
was delivered in its entirety and the contents and
attachments of the e-mail have been received.
However, if the time of deemed receipt of any notice is not
before 4.00 p.m. (local time at the address of the
recipient) on a Business Day it is deemed to have been
received at the commencement of business on the next
following Business Day.
17.5 All notices are valid if despatched by prepaid ordinary post
(airmail if posted to a place outside Australia) to the
relevant party's registered office (or, in the case of
Registered Class A Noteholders, to the address specified in
the Register and, in the case of joint holders, to the
person whose name first appears in the Register). Such
notice is taken to be received on the third (seventh, if
posted to a place outside Australia) day after posting.
17.6 Where a notice or other communication is to be provided
under this agreement to a Class A Noteholder of a Note in
bearer form, the notice may be given in accordance with the
relevant Note Trust Deed.
18 MISCELLANEOUS
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CERTIFICATE
18.1 A certificate signed by the parties or its solicitors about
a matter or about a sum payable to the parties to this
agreement in connection with this agreement is sufficient
evidence of the matter or sum stated in the certificate
unless the matter or sum is proved to be false.
EXERCISE OF RIGHTS
18.2 The parties to this agreement or an attorney appointed under
this agreement may exercise a right, power or remedy at its
discretion, and separately or concurrently with another
right, power or remedy. A single or partial exercise of a
right, power or remedy by the person does not prevent a
further exercise of that or an exercise of any other right,
power or remedy. Failure by the person to exercise or delay
in exercising a right, power or remedy does not prevent its
exercise. The person with the right, power or remedy is not
liable for any loss caused by its exercise, attempted
exercise, failure to exercise or delay in exercising it
except in the case of its fraud or wilful default or, in the
case of the Issuer Trustee, negligence, fraud or breach of
trust.
WAIVER AND VARIATION
18.3 A provision of or a right created under this agreement may
not be waived or varied except in writing signed by the
party or parties to be bound.
SUPERVENING LEGISLATION
18.4 Any present or future legislation which operates to vary the
obligations of the parties to this agreement in connection
with this agreement with
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the result that the rights, powers or remedies of the
parties are adversely affected (including, without
limitation, by way of delay or postponement) is excluded
except to the extent that its exclusion is prohibited or
rendered ineffective by law.
APPROVALS AND CONSENT
18.5 The parties to this agreement or an attorney appointed under
this agreement may give conditionally or unconditionally or
withhold their approval or consent in their absolute
discretion, unless this agreement expressly provides
otherwise.
REMEDIES CUMULATIVE
18.6 The rights, powers and remedies provided in this agreement
are cumulative with and not exclusive of the rights, powers
or remedies provided by law independently of this agreement.
INDEMNITIES
18.7 Each indemnity in this agreement is a continuing obligation,
separate and independent from the other obligations of the
parties to this agreement and survives termination of this
agreement. It is not necessary for the parties to this
agreement to incur expense or make payment before enforcing
a right of indemnity conferred by this agreement.
TIME OF THE ESSENCE
18.8 Time is of the essence in this agreement in respect of an
obligation of any of the parties to this agreement to pay
money.
RECEIPTS
18.9 The receipt of a Receiver, or an Authorised Person of the
parties to this agreement, releases the person paying money
to the Receiver or the parties to this agreement in
connection with this agreement from:
(a) liability for the money paid or expressed to be
received; and
(b) being concerned to see to its application or being
answerable or accountable for its loss or
misapplication.
ACKNOWLEDGMENT
18.10 The parties acknowledge and agree that in exercising their
powers and discretions under this agreement, and in
performing their obligations under this agreement, they must
act in accordance with their duties and obligations under
this agreement, and they may exercise such powers and
discretions as provided in this agreement, and (without
limitation) in forming any opinion may obtain and act upon
the advice of persons who are not parties to this agreement.
18.11 The parties acknowledge that they are bound by the terms of
this agreement.
DISCLOSURE OF INFORMATION
18.12 Subject to this agreement, the parties to this agreement is
not required (unless ordered so to do by a court of
competent jurisdiction) to disclose to any Unitholder,
Secured Creditor or any other person
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confidential, financial or other information made available
to the parties to this agreement in connection with this
agreement.
RIGHTS CUMULATIVE
18.13 The rights, powers and remedies provided in this agreement
are cumulative and not exclusive of the rights, powers or
remedies provided by law independently of this agreement.
SIGNATURES
18.14 The parties to this agreement may rely on the validity of
any signature on any transfer, form of application or other
instrument or document unless the parties to this agreement
(as the case may be) have reasonable grounds to believe that
the signature is not genuine. None of the parties to this
agreement are liable to make good out of their own funds any
loss incurred by any person if a signature is forged or
otherwise fails to bind the person whose signature it
purports to be or on whose behalf it purports to be made.
Any such loss, subject to any right of reimbursement from
any other person (including the parties to this agreement)
is to be borne by the relevant Trust in respect of which the
loss is incurred.
LIMITATION OF NOTE TRUSTEE'S LIABILITY
18.15 The Note Trustee is a party to this agreement in its
capacity as trustee of the Note Trust. The liability of the
Note Trustee under this agreement is limited in the manner
and to the same extent as under the Note Trust Deed.
19 AMENDMENT
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This agreement may be amended by the Issuer Trustee, the
Note Trustee and the Agents without the consent of any
holder of Notes, Coupons if the amendment:
(a) is in the opinion of the Note Trustee made to correct a
manifest error or is of a formal, technical or
administrative nature; or
(b) is considered by the Note Trustee not to be materially
prejudicial to the interests of the Class A
Noteholders.
Any amendment must be notified to each Current Rating
Agency.
20 GOVERNING LAW AND SUBMISSION TO JURISDICTION
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GOVERNING LAW
20.1 This agreement is governed by the law in force in the
Australian Capital Territory and the rights, liabilities and
obligations of the parties to this agreement are governed by
the laws in force in the Australian Capital Territory.
SUBMISSION TO JURISDICTION
20.2 Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of the Australian
Capital Territory
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and courts of appeal from them. Each party waives any
right it has to object to an action being brought in
those courts including, without limitation, by claiming
that the action has been brought in an inconvenient forum
or that those courts do not have jurisdiction.
SERVICE
20.3 Without preventing any other mode of service, any document
in an action (including, without limitation, any writ of
summons or other originating process or any third or other
party notice) may be served on any party by being delivered
to or left for that party at its address for service of
notices under clause 17.
21 COUNTERPARTS
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This agreement may consist of a number of counterparts and
the counterparts taken together constitute one and the same
instrument.
EXECUTED as an agreement.
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SCHEDULE INITIAL CONTACT DETAILS
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ISSUER TRUSTEE
Address: Level 3
39 Hunter Street
Sydney NSW 2000
Attention: Manager, Securitisation
Facsimile: (02) 9221 7870
Email: as notified from time to time
GLOBAL TRUST MANAGER
Address: 7301 Baymeadows Way
Jacksonville Florida 32256
United States of America
Attention: General Counsel
Facsimile: 904 281 3062
Email: [email protected]
NOTE TRUSTEE
Address: 101 Barclay Street, 21W
New York
New York 10286
Attention: Global Structured Products Unit
Facsimile: (212) 815 3522
Email: as notified from time to time
CLASS A NOTE REGISTRAR
Address: 101 Barclay Street, 21W
New York
New York 10286
Attention: Global Structured Products Unit
Facsimile: (212) 815 3522
Email: as notified from time to time
PRINCIPAL PAYING AGENT and CALCULATION AGENT
Address: 101 Barclay Street, 21W
New York
New York 10286
Attention: Global Structured Products Unit
Facsimile: (212) 815 3522
Email: as notified from time to time
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THE BANK OF NEW YORK, LONDON BRANCH
Address: 48th Floor
One Canada Square
London E14 5AL`
Attention: [ ]
Facsimile: [ ]
Email: as notified from time to time
LUXEMBOURG PAYING AGENT
Address: 43 Boulevard Royal
L-2955 Luxembourg
Attention: Corporate Trust
Facsimile: 352 4797 73 951
Email: as notified from time to time
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EXECUTION PAGE
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<TABLE>
<S><C>
ISSUER TRUSTEE
SIGNED by )
as attorney for PERPETUAL )
TRUSTEE COMPANY LIMITED in )
the presence of: )
)
)
)
................................................ )
Signature of witness )
)
................................................ )
Name of witness (block letters) )
)
................................................ ) ................................................
Address of witness ) By executing this agreement the attorney states
) that the attorney has received no notice of
................................................ ) revocation of the power of attorney
Occupation of witness )
GLOBAL TRUST MANAGER
SIGNED by )
on behalf of HOMESIDE GLOBAL MBS MANAGER, INC. )
in the presence of: )
)
)
................................................ )
Signature of witness )
)
................................................ ) ................................................
Name of witness (block letters) ) By executing this agreement the signatory
) states that the signatory has received no
................................................ ) notice of revocation of the authority under
Address of witness ) which this agreement is executed
)
................................................ )
Occupation of witness )
<PAGE>
33
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NOTE TRUSTEE
SIGNED by )
as authorised signatory for THE BANK )
OF NEW YORK, NEW YORK )
BRANCH in the presence of: )
)
)
)
................................................ )
Signature of witness )
)
................................................ ) ................................................
Name of witness (block letters) ) By executing this agreement the signatory
) states that the signatory has received no
................................................ ) notice of revocation of the authority under
Address of witness ) which this agreement is signed
)
................................................ )
Occupation of witness )
CLASS A NOTE REGISTRAR
SIGNED by )
as authorised signatory for THE BANK )
OF NEW YORK, NEW YORK )
BRANCH in the presence of: )
)
)
)
................................................ )
Signature of witness )
)
................................................ ) ................................................
Name of witness (block letters) ) By executing this agreement the signatory
) states that the signatory has received no
................................................ ) notice of revocation of the authority under
Address of witness ) which this agreement is signed
)
................................................ )
Occupation of witness )
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PRINCIPAL PAYING AGENT AND CALCULATION AGENT
SIGNED by )
as authorised signatory for THE BANK )
OF NEW YORK, NEW YORK )
BRANCH in the presence of: )
)
)
)
................................................ )
Signature of witness )
)
................................................ ) ................................................
Name of witness (block letters) ) By executing this agreement the signatory
) states that the signatory has received no
................................................ ) notice of revocation of the authority under
Address of witness ) which this agreement is signed
)
................................................ )
Occupation of witness )
PAYING AGENT
SIGNED by )
as authorised signatory for THE BANK )
OF NEW YORK, LONDON )
BRANCH in the presence of: )
)
)
)
................................................ )
Signature of witness )
)
................................................ ) ................................................
Name of witness (block letters) ) By executing this agreement the signatory
) states that the signatory has received no
................................................ ) notice of revocation of the authority under
Address of witness ) which this agreement is signed
)
................................................ )
Occupation of witness )
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SIGNED by )
as attorney for KREDIETBANK S.A. )
LUXEMBOURGEOISE in the presence )
of: )
)
)
................................................ )
Signature of witness )
)
................................................ )
Name of witness (block letters) )
)
................................................ ) ................................................
Address of witness ) By executing this agreement the attorney states
) that the attorney has received no notice of
................................................ ) revocation of the power of attorney
Occupation of witness )
</TABLE>
