Exhibit 10.5
Paying Agency Agreement
PERMANENT CUSTODIANS LIMITED
AUSTRALIAN SECURITISATION MANAGEMENT PTY LIMITED
THE BANK OF NEW YORK
ARMS II Global Fund 3
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Paying Agency Agreement
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Bond Trust Deed Definitions 2
1.3 Interpretation 2
1.4 Status of this Agreement 3
1.5 Liability of Issuer 3
1.6 Liability of Bond Trustee 3
2. APPOINTMENT OF PAYING AGENTS 4
3. PAYMENT 4
3.1 Payment by Issuer 4
3.2 Confirmation and Information 4
3.3 Payments by Paying Agents 5
3.4 Method of Payment - Global Bonds 5
3.5 Method of payment - Definitive Bonds 5
3.6 Late payment 5
3.7 Payment Obligation 6
3.8 Notice of non-receipt 6
3.9 Reimbursement 6
3.10 Method of payment 6
3.11 Trust 6
3.12 No Liability 6
4. REPAYMENT 7
5. APPOINTMENT OF THE CALCULATION AGENT 7
6. DUTIES OF THE CALCULATION AGENT 7
7. PAYMENTS TO BOND TRUSTEE 8
7.1 Bond Trustee's requirements following an Event of Default 8
7.2 Discharge 8
8. EARLY REDEMPTION OF OFFSHORE BONDS 8
9. REDEMPTION AND CANCELLATION OF BONDS 9
10. NOTICES TO OFFSHORE BONDHOLDERS 9
11. DOCUMENTS AND FORMS 9
12. AUTHENTICATION 10
13. INDEMNITY 10
13.1 Indemnity 10
13.2 Survival of Indemnity 10
14. THE US$ REGISTER 10
14.1 Appointment of US$ ▇▇▇▇▇▇▇▇▇ ▇▇
14.2 Details to be kept on the US$ Register 10
14.3 Correctness of US$ Register 10
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15. THE EURO REGISTER 11
15.1 Appointment of EURO ▇▇▇▇▇▇▇▇▇ ▇▇
15.2 Details to be kept on the EURO Register 11
15.3 Correctness of EURO Register 11
16. GENERAL 11
16.1 Meetings of Offshore Bondholders 11
16.2 Agency 11
16.3 Identity 11
16.4 No set-off 12
16.5 Reliance 12
16.6 Entitled to deal 12
16.7 Consultation 12
16.8 Duties 12
17. CHANGES IN PAYING AGENTS AND CALCULATION AGENT 13
17.1 Removal 13
17.2 Resignation 13
17.3 Limitation 13
17.4 Delivery of amounts 14
17.5 Successor Agents 14
17.6 Notice to Offshore Bondholders 15
17.7 Change in Paying Office or Specified Office 15
18. FEES AND EXPENSES 15
19. WAIVERS, REMEDIES CUMULATIVE 16
20. SEVERABILITY OF PROVISIONS 16
21. ASSIGNMENTS 16
22. NOTICES 16
22.1 Notices generally 16
22.2 Communication through Principal Paying Agent 18
23. COUNTERPARTS 18
24. GOVERNING LAW 18
25. SUCCESSOR TRUSTEE 18
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DATE
PARTIES
1. PERMANENT CUSTODIANS LIMITED (ACN 001 426 384) of ▇▇▇▇▇ ▇, ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ (the ISSUER);
2. AUSTRALIAN SECURITISATION MANAGEMENT PTY LIMITED (ACN 103 852
428) of ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ (the
TRUST MANAGER); and
3. THE BANK OF NEW YORK, a New York banking corporation, as
principal paying agent for the Offshore Bonds described below
(the PRINCIPAL PAYING AGENT, which expression shall, wherever the
context requires, include any successor principal paying agent
from time to time under this Agreement) and as trustee for the
Offshore Bondholders (the BOND TRUSTEE, which expression shall,
wherever the context requires, include any other trustee or
trustees from time to time under the Bond Trust Deed) and as
calculation agent in relation to the Offshore Bonds described
below (the CALCULATION AGENT, which expression shall, wherever
the context requires, include any successor reference agent from
time to time) and as US$ Registrar in relation to the US$ Bonds
described below (the US$ REGISTRAR, which expression shall,
wherever the context requires, include any successor US$
Registrar from time to time under this Agreement) and as EURO
Registrar in relation to the EURO Bonds described below (the EURO
REGISTRAR, which expression shall, wherever the context requires,
include any successor EURO Registrar from time to time under this
Agreement).
RECITALS
A The Issuer proposes to issue US$[*] of Class A-1(a) Mortgage
Backed Floating Rate Bonds, EURO [*] of Class A-1(b) Mortgage
Backed Floating Rate Bonds, US$[*] of Class B-1(a) Mortgage
Backed Floating Rate Bonds and EURO [*] of Class B-1(b) Mortgage
Backed Floating Rate Bonds (the OFFSHORE BONDS).
B The Offshore Bonds, upon original issue, will be issued in the
form of Global Bonds. The Issuer shall, on the date of this
Agreement, deliver or arrange the delivery on its behalf of each
Global Bond to the Principal Paying Agent, as agent for the
relevant Clearing Agency. Each Global Bond shall initially be
registered on the US$ Register or the EURO Register (as the case
may be) in the name of the relevant Common Depository, as nominee
of the relevant Clearing Agency, and no Bond Owner will receive a
Definitive Bond representing such Bond Owner's interest in such
Offshore Bond, except as provided in the Bond Trust Deed.
C The Offshore Bonds will be constituted by the Bond Trust Deed,
the Conditions and the Master Trust Deed.
D The Offshore Bonds will be secured on the terms of the Security
Trust Deed.
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E The Issuer wishes to appoint the Principal Paying Agent as
principal paying agent in respect of the Offshore Bonds and has
entered into this Agreement to provide for the terms and
conditions of that appointment.
F The Issuer wishes to appoint the Calculation Agent as its
reference agent in respect of the Offshore Bonds and has entered
into this Agreement to provide for the terms and conditions of
that appointment.
G The Issuer wishes to appoint the US$ Registrar as bond registrar
in respect of the US$ Bonds and the EURO Registrar as bond
registrar in respect of the EURO Bonds and has entered into this
Agreement to provide for the terms and conditions of that
appointment.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
AGENT means each Paying Agent, the Calculation Agent, the US$
Registrar and the EURO Registrar.
BOND TRUST DEED means the deed, so entitled, dated on or about the
date of this Agreement between the parties to this Agreement,
Australian Mortgage Securities Ltd and Permanent Registry Limited.
PAYING AGENT means any person for the time being appointed as a paying
agent under this Agreement, including the Principal Paying Agent.
PAYING OFFICE means, in relation to a Paying Agent, the office of the
Paying Agent specified in clause 22.1(e), being the office at which
payments in respect of the Offshore Bonds will be made, as changed
from time to time in accordance with this Agreement.
SPECIFIED OFFICE means, in relation to the Calculation Agent, the
office of the Calculation Agent specified under this Agreement as the
office at which the Calculation Agent will carry out its duties under
this Agreement.
1.2 BOND TRUST DEED DEFINITIONS
Words and expressions which are defined in the Bond Trust Deed
(including by incorporation by reference) have the same meanings when
used in this Agreement unless the context otherwise requires or unless
otherwise defined in this Agreement.
1.3 INTERPRETATION
In this Agreement, unless the context indicates a contrary intention:
(a) PERSON includes an individual, a body politic, a corporation and
a statutory or other authority or association (incorporated or
unincorporated);
(b) references to a party include that party's executors,
administrators, successors, substitutes and assigns, including
any person taking by way of novation;
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(c) references to any legislation or to any section or provision
thereof includes any statutory modification or re-enactment or
any statutory provision substituted therefor and all ordinances,
by-laws, regulations and other statutory instruments issued
thereunder;
(d) CORPORATION means any body corporate wherever formed or
incorporated, including any public authority or any
instrumentality of the Crown;
(e) the expression CERTIFIED means:
(i) in the case of The Bank of New York, certified in writing
by an Authorised Signatory of The Bank of New York; or
(ii) in the case of any other corporation or person, certified
in writing by 2 Authorised Signatories of the corporation
or by that person respectively,
and CERTIFY and like expressions shall be construed accordingly;
(f) words importing the singular shall include the plural (and vice
versa) and words denoting a given gender shall include all other
genders;
(g) headings are for convenience only and shall not affect the
interpretation of this Agreement;
(h) references to a clause or a Schedule are to a clause or a
Schedule of this Agreement;
(i) where any word or phrase is given a defined meaning, any other
part of speech or other grammatical form of that word or phrase
has a corresponding meaning;
(j) if the due date for payment of any amount, or the doing of any
thing, in respect of this Agreement is not a Business Day, then
the Modified Following Business Day Convention (as defined in the
ISDA Definitions) shall apply to the making of that payment or
the doing of that thing;
(k) all accounting terms shall be interpreted in accordance with the
Approved Accounting Standards;
(l) MONTH means calendar month; and
(m) a reference to any document or agreement is to such document or
agreement as amended, varied, supplemented or novated from time
to time.
1.4 STATUS OF THIS AGREEMENT
This Agreement is:
(a) the Initial
Paying Agency Agreement for the purposes of the Bond
Trust Deed; and
(b) a Transaction Document in relation to the Fund.
1.5 LIABILITY OF ISSUER
Clause 1.5 of the Bond Trust Deed is incorporated into this Agreement
as if set out in full in this Agreement except that references to THIS
DEED shall be construed as references to THIS AGREEMENT.
1.6 LIABILITY OF BOND TRUSTEE
(a) The Bond Trustee is a party to this Agreement in its capacity as
trustee of the Bond Trust. The liability of the Bond Trustee
under this Agreement is limited in the manner and to the extent
provided under the Bond Trust Deed.
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(b) Notwithstanding any other provision of this Agreement or any
other Transaction Document, the Bond Trustee's rights and
obligations under this Agreement only apply to the Offshore Bonds
and the Bond Trustee is not in any way responsible for the Fast
Prepayment Bonds.
2. APPOINTMENT OF PAYING AGENTS
(a) Subject to the terms of this Agreement, the Issuer (acting on the
direction of the Trust Manager) appoints the Principal Paying
Agent as its principal paying agent for making payments at its
Paying Office in respect of the Offshore Bonds in accordance with
the Transaction Documents in relation to the Fund. The Principal
Paying Agent accepts such appointment.
(b) If at any time there is more than one Paying Agent, the
obligations of the Paying Agents under this Agreement shall be
several and not joint.
(c) It is acknowledged and agreed that:
(i) subject to clause 7, each Paying Agent is the agent of the
Issuer in its capacity as trustee of the Fund only; and
(ii) despite anything else in this Agreement, any other
Transaction Document or at law, the Issuer in its personal
capacity is not responsible for any act or omission of any
Paying Agent.
3. PAYMENT
3.1 PAYMENT BY ISSUER
(a) The Issuer must, at the direction of the Trust Manager, by not
later than 10.00 am (New York time) on each Payment Date on which
a payment is due in respect of the Offshore Bonds, in accordance
with the Conditions, pay to or to the order of, or procure
payment to or to the order of, the Principal Paying Agent the
amount in immediately available funds in US$ or EURO (as the case
may be) as is required to be paid on that date for the purposes
of such payment.
(b) The Principal Paying Agent acknowledges that the Issuer may
comply with its payment obligations under paragraph (a) by
procuring that the relevant Currency Swap Counterparty pays the
relevant amount direct to the Principal Paying Agent.
3.2 CONFIRMATION AND INFORMATION
(a) Not later than 4.00 pm (Sydney time) on each Determination Date,
the Trust Manager on behalf of the Issuer must notify, or procure
notification to, the Principal Paying Agent and the Bond Trustee
of the amount of interest and principal payable in respect of the
Offshore Bonds on the Payment Date following that Determination
Date. The Issuer, or the Trust Manager on its behalf, must also
forward to the Principal Paying Agent at that time confirmation
that the payments provided for in clause 3.1(a) will be made
unconditionally and irrevocably.
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(b) The Trust Manager agrees to provide to the Principal Paying Agent
such other information as the Principal Paying Agent may
reasonably request from time to time in order to enable the
Principal Paying Agent to comply with its obligations under this
Agreement.
3.3 PAYMENTS BY PAYING AGENTS
Subject to clause 7 and to payment being duly made as provided in
clause 3.1 (or the Principal Paying Agent otherwise being satisfied
that the payment will be duly made on the due date), the Paying Agents
must pay or cause to be paid on behalf of the Issuer on each Payment
Date the relevant amounts of principal and interest due in respect of
the Offshore Bonds in accordance with the Conditions.
3.4 METHOD OF PAYMENT - GLOBAL BONDS
The Principal Paying Agent must cause all payments of principal and
interest due and received by it in respect of Offshore Bonds
represented by a Global Bond to be made to the relevant Common
Depository in accordance with Condition 10.8 for credit to the account
of the persons appearing from time to time in the records of the
relevant Common Depository as registered account holders with respect
to, and whilst any of the Offshore Bonds are represented by, a Global
Bond.
3.5 METHOD OF PAYMENT - DEFINITIVE BONDS
Payments of principal and interest on the Definitive Bonds must be
made in accordance with the Conditions.
3.6 LATE PAYMENT
(a) If any payment under clause 3.1 is made late but otherwise in
accordance with the provisions of this Agreement, each Paying
Agent must:
(i) in the case of any payment made on or prior to 1.00pm (New
York time) on a Payment Date, make the payments required
to be made by it in respect of the Offshore Bonds as
provided in this clause 3 (other than clauses 3.6(a)(ii)
and 3.6(a)(iii));
(ii) in the case of any payment made after 1.00pm (New York
time) on a Payment Date, make the payments required to be
made by it in respect of the Offshore Bonds by 9.00am (New
York time) the next Business Day occurring after that
Payment Date and otherwise as provided in this clause 3;
and
(iii) in the case of any payment made after a Payment Date, make
the payments required to be made by it in respect of the
Offshore Bonds as soon as reasonably practicable and
otherwise as provided in this clause 3.
(b) If the Principal Paying Agent has not received on a Payment Date
the full amount of principal and interest then payable on any
Offshore Bond in accordance with the Conditions, but receives the
full amount later, it shall:
(i) forthwith upon full receipt notify the other Paying Agents
(if any), the Issuer, the Bond Trustee, the Security
Trustee and the Trust Manager; and
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(ii) as soon as practicable after such full receipt, give due
notice, in accordance with Condition 15 (unless the Bond
Trustee agrees otherwise), to the Offshore Bondholders
that it has received the full amount.
3.7 PAYMENT OBLIGATION
Unless and until the full amount of any payment in respect of the
Offshore Bonds required to be made under the Transaction Documents has
been made to or to the order of the Principal Paying Agent in
accordance with clause 3.1, no Paying Agent shall be bound to make any
payment under this clause 3.
3.8 NOTICE OF NON-RECEIPT
The Principal Paying Agent must immediately notify by facsimile the
other Paying Agents (if any), the Bond Trustee, the Issuer, the
Security Trustee and the Trust Manager if the full amount of any
payment of principal or interest required to be made by the Conditions
in respect of a Offshore Bond is not unconditionally received by it or
to its order in accordance with this Agreement.
3.9 REIMBURSEMENT
The Principal Paying Agent must (provided that it has been placed in
funds by the Issuer) on demand promptly reimburse each other Paying
Agent for each payment of principal and/or interest properly made by
that Paying Agent in accordance with the Conditions and this
Agreement. The Issuer shall not be concerned with the apportionment of
any moneys between the Principal Paying Agent and any other Paying
Agent and payment to the Principal Paying Agent of any moneys due to
any Paying Agent shall operate as a good discharge to the Issuer in
respect of such moneys.
3.10 METHOD OF PAYMENT
(a) The Principal Paying Agent must, promptly after each Payment
Date, confirm in writing to the Issuer, in accordance with clause
22, that the Principal Paying Agent has paid the relevant amount
to each relevant Common Depository or the relevant Bond Owners
(as the case may be).
(b) Except as otherwise provided under the terms of this Agreement,
the Principal Paying Agent shall be 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 except that it may
not exercise any lien, right of set-off or similar claim in
respect of such moneys. The Principal Paying Agent shall be
entitled to retain for its own account any interest earned on the
sums held by it under this Agreement and it need not segregate
such sums from other amounts held by it, except as required by
law.
3.11 TRUST
The Principal Paying Agent shall hold on trust for the Bond Trustee
and the Offshore Bondholders all sums held by it for the payment of
principal and interest with respect to the Offshore Bonds until all
relevant sums are paid to the Bond Trustee or the Offshore Bondholders
or otherwise disposed of in accordance with the Bond Trust Deed.
3.12 NO LIABILITY
The Principal Paying Agent shall not be liable for acting upon any
written instruction of the Issuer.
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4. REPAYMENT
(a) Immediately on any entitlement to receive principal or interest
under any Offshore Bond becoming void under the Conditions, the
Principal Paying Agent must repay to the Issuer the amount which
would have been due in respect of that principal or interest if
it had been paid before the entitlement under any Offshore Bond
became void.
(b) Despite paragraph (a), the Principal Paying Agent shall not be
obliged to make any repayment to the Issuer so long as any amount
which should have been paid to or to the order of the Principal
Paying Agent or, if applicable, the Bond Trustee by the Issuer
remains unpaid.
5. APPOINTMENT OF THE CALCULATION AGENT
(a) The Issuer (acting on the direction of the Trust Manager)
appoints the Calculation Agent as its reference agent in respect
of the Offshore Bonds upon the terms and conditions set forth in
this Agreement. The Calculation Agent accepts that appointment.
(b) It is acknowledged and agreed that:
(i) the Calculation Agent is the agent of the Issuer in its
capacity as trustee of the Fund only; and
(ii) despite anything else in this Agreement, any other
Transaction Document or at law, the Issuer in its personal
capacity is not responsible for any act or omission of the
Calculation Agent.
6. DUTIES OF THE CALCULATION AGENT
(a) The Calculation Agent must, until the Offshore Bonds have been
finally redeemed in accordance with Condition 10.10:
(i) perform such duties at its Specified Office as are set
forth in this Agreement and in the Conditions and any
other duties which are reasonably incidental to those
duties at the request of the Issuer, the Trust Manager,
the Bond Trustee or the Principal Paying Agent;
(ii) as soon as practicable on each Determination Date:
(A) determine the Interest Rate for all Offshore Bonds
for the Interest Accrual Period commencing on the
next Payment Date; and
(B) notify the Issuer, the Trust Manager, the Bond
Trustee, each of the relevant Offshore Bondholders
(in accordance with Condition 15) and each of the
Paying Agents of the Interest Rate so determined
specifying to the Trust Manager the basis of such
determination.
(b) If for any reason the Calculation Agent does not make the
determination under paragraph (a)(ii), the Trust Manager must
request the Bond Trustee to make, and the Bond Trustee must make,
that determination as if it were the Calculation Agent. Any such
determination will be deemed to have been made by the Calculation
Agent.
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7. PAYMENTS TO BOND TRUSTEE
7.1 BOND TRUSTEE'S REQUIREMENTS FOLLOWING AN EVENT OF DEFAULT
At any time after an Event of Default or a Potential Event of Default
has occurred and is continuing unremedied, the Bond Trustee may, so
far as permitted by applicable law:
(a) by notice in writing to the Issuer and each Paying Agent require
the Paying Agents, until notified by the Bond Trustee to the
contrary, to:
(i) act as agents of the Bond Trustee and the Offshore
Bondholders on the terms of this Agreement; and
(ii) hold all Offshore Bonds and all moneys, documents and
records held by them in respect of the Bonds to the order
of the Bond Trustee; and
(b) by notice in writing to the Issuer, require it to make all
subsequent payments in respect of the Offshore Bonds to or to the
order of the Bond Trustee and not to the Paying Agents.
7.2 DISCHARGE
Any payment made by the Issuer in accordance with clause 7.1(b) will
to that extent be a good discharge to the Issuer.
8. EARLY REDEMPTION OF OFFSHORE BONDS
(a) If the Issuer (at the direction of the Trust Manager) intends to
redeem the Offshore Bonds under Condition 8 prior to their Final
Maturity Date, the Issuer (or the Trust Manager on its behalf)
must, at least 14 days prior to the latest date for giving the
notice of redemption required to be given to Bondholders under
Condition 8.3(d), give notice of its intention to the Principal
Paying Agent (who must promptly give notice to the other Paying
Agents (if any)) and the Bond Trustee stating the date on which
such Offshore Bonds are to be redeemed and the Face Value of the
Offshore Bonds to be redeemed.
(b) The Principal Paying Agent must, on receipt of a notice under
paragraph (a):
(i) if any of the Offshore Bonds are Global Bonds:
(A) notify the relevant Common Depository of the proposed
redemption, specifying:
(1) the aggregate Face Value of Offshore Bonds to be
redeemed; and
(2) the date on which the Offshore Bonds are to be
redeemed; and
(B) direct the relevant Common Depository to record the
details referred to in sub-paragraphs (A)(1) and
(A)(2) above on the schedule to the relevant Global
Bonds; and
(ii) promptly and in accordance with Conditions 8.3(d) and 15,
on behalf of and at the expense of the Issuer, give the
notices required in connection with that redemption.
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9. REDEMPTION AND CANCELLATION OF BONDS
(a) If any Offshore Bonds are redeemed in whole or in part in
accordance with the Conditions or the other Transaction
Documents, the Principal Paying Agent must cause the US$
Registrar or the EURO Registrar (as the case may be) to record
all relevant details in the US$ Register or the Register EURO (as
the case may be).
(b) The Principal Paying Agent must as soon as practicable, and in
any event within three months after the date of any such
redemption, furnish to each of the Issuer and the Bond Trustee a
certificate setting out the aggregate Face Value of the Offshore
Bonds which have been so redeemed.
(c) If the Face Value of a Global Bond surrendered to it is reduced
to nil, the Principal Paying Agent must:
(i) destroy the relevant Global Bond;
(ii) issue a destruction certificate to the Bond Trustee; and
(iii) send a copy of that certificate to the Issuer, the Trust
Manager and the Bond Trustee.
10. NOTICES TO OFFSHORE BONDHOLDERS
(a) Each of the Principal Paying Agent and the US$ Registrar or the
EURO Registrar (as the case may be) must, at the request of the
Trust Manager, arrange for the publication of all notices to
Offshore Bondholders in accordance with the Conditions. The cost
of any arrangements so made will be an EXPENSE of the Fund.
(b) Each of the Principal Paying Agent and the US$ Registrar or the
EURO Registrar (as the case may be) must promptly send to the
Bond Trustee one copy of the form of every notice given to
Offshore Bondholders in accordance with Condition 15.
(c) None of the Principal Paying Agent, the US$ Registrar or the EURO
Registrar will be responsible for, or liable to any person in
respect of, the contents of any notices published by it at the
request of the Trust Manager in accordance with this clause 10.
11. DOCUMENTS AND FORMS
(a) The Trust Manager must provide to the Principal Paying Agent for
distribution to each Paying Agent:
(i) sufficient copies of all documents required by the
Conditions or the Bond Trust Deed to be available to
Offshore Bondholders for issue or inspection (and the
Paying Agents must make them so available to the Offshore
Bondholders);
(ii) in the event of a meeting of Offshore Bondholders being
called, forms of voting certificates and block voting
instructions, together with instructions from the Issuer
(those instructions having previously been approved by the
Bond Trustee) as to the manner of completing, dealing with
and recording the issue of such forms (and the Paying
Agents must make them so available to the Offshore
Bondholders); and
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(iii) if Definitive Bonds are issued, specimens of those
Definitive Bonds.
(b) The Trust Manager and the Issuer must provide to the Calculation
Agent such documents as the Calculation Agent may reasonably
require from the Trust Manager or the Issuer in order for the
Calculation Agent properly to fulfil its duties in respect of the
Offshore Bonds.
12. AUTHENTICATION
The Principal Paying Agent must authenticate or cause to be
authenticated the Global Bonds and (if required) the Definitive Bonds
(whether on initial issue or on replacement).
13. INDEMNITY
13.1 INDEMNITY
The Issuer will, on demand, indemnify each Agent and its directors,
officers, employees, agents and delegates 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) which the Agent may incur
or which may be made against it as a result of:
(a) a breach by the Issuer of this Agreement; or
(b) the exercise by that Agent of its powers or its acceptance of or
the performance of its obligations under this Agreement,
except to the extent such losses, liabilities, costs, claims, actions,
demands or expenses are a result of a breach of this Agreement by that
Agent or the fraud, negligence or wilful misconduct of that Agent.
13.2 SURVIVAL OF INDEMNITY
The indemnity in clause 13.1 shall survive the termination of this
Agreement and the resignation or removal of an Agent in accordance
with this Agreement.
14. THE US$ REGISTER
14.1 APPOINTMENT OF US$ REGISTRAR
As contemplated by clause 11.8 of the Bond Trust Deed, the Issuer
appoints The Bank of New York to be the initial US$ Registrar in
accordance with the Transaction Documents. The Bank of New York
accepts that appointment.
14.2 DETAILS TO BE KEPT ON THE US$ REGISTER
The US$ Registrar must keep the US$ Register in accordance with the
Bond Trust Deed.
14.3 CORRECTNESS OF US$ REGISTER
The US$ Registrar shall not be liable for any mistake, error or
omission on the US$ Register or in any purported copy except to the
extent that the mistake, error or omission is attributable to a breach
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by the US$ Registrar of its obligations under this Agreement or the
Bond Trust Deed or its fraud, negligence or wilful misconduct.
15. THE EURO REGISTER
15.1 APPOINTMENT OF EURO REGISTRAR
As contemplated by clause 11.8 of the Bond Trust Deed, the Issuer
appoints The Bank of New York to be the initial EURO Registrar in
accordance with the Transaction Documents. The Bank of New York
accepts that appointment.
15.2 DETAILS TO BE KEPT ON THE EURO REGISTER
The EURO Registrar must keep the EURO Register in accordance with the
Bond Trust Deed.
15.3 CORRECTNESS OF EURO REGISTER
The EURO Registrar shall not be liable for any mistake, error or
omission on the EURO Register or in any purported copy except to the
extent that the mistake, error or omission is attributable to a breach
by the EURO Registrar of its obligations under this Agreement or the
Bond Trust Deed or its fraud, negligence or wilful misconduct.
16. GENERAL
16.1 MEETINGS OF OFFSHORE BONDHOLDERS
In the event of a meeting of the Offshore Bondholders (including an
adjourned meeting), the Principal Paying Agent must issue voting
certificates and block voting instructions and otherwise act as
provided in the Bond Trust Deed. Each Paying Agent must:
(a) keep a full and complete record of all voting certificates and/or
block voting instructions issued by it; and
(b) deliver to the Issuer, the Trust Manager and the Bond Trustee not
later than 48 hours before the time appointed for holding that
meeting, full particulars of all voting certificates and block
voting instructions issued by it in respect of that meeting.
16.2 AGENCY
Subject to any other provision of this Agreement, each Agent shall:
(a) act solely for, and as agent of, the Issuer;
(b) not have any obligation towards or relationship of agency or
trust with any person entitled to receive payments of principal
and/or interest on the Offshore Bonds; and
(c) be responsible only for performance of the duties and obligations
expressly imposed upon it in this Agreement.
16.3 IDENTITY
Each Paying Agent shall (except as ordered by a court of competent
jurisdiction or as required by law) be entitled to treat the person:
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(a) who is, while a Global Bond remains outstanding, the registered
owner of that Global Bond as the person entitled to receive
payments of principal and interest in respect of that Offshore
Bond and each person shown in the records of the relevant Common
Depository as the holder of any Offshore Bond represented by a
Global Bond shall be entitled to receive from the relevant Common
Depository any payment so made in accordance with the respective
rules and procedures of the relevant Common Depository and on the
terms and subject to the conditions of that Global Bond;
(b) who is the registered owner of any Definitive Bond as the
absolute owner of that Definitive Bond (whether or not that
Definitive Bond 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),
despite any notice to the contrary and shall not be liable for so
doing.
16.4 NO SET-OFF
No Paying Agent shall exercise any right of set-off, withholding,
counterclaim or lien against, or make any deduction from any moneys
payable by it to any Offshore Bondholder under this Agreement.
16.5 RELIANCE
Each Agent shall be protected and shall incur no liability for or in
respect of any action taken, omitted or suffered by it in reliance
upon any instruction, request or order from the Issuer or the Trust
Manager or in reliance upon any notice, resolution, direction,
consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been delivered,
signed or sent by the proper party or parties.
16.6 ENTITLED TO DEAL
No Agent or director or officer of any Agent shall:
(a) be precluded from acquiring, holding or dealing in any Offshore
Bonds or from engaging or being interested in any contract or
other financial or other transaction or arrangement with the
Issuer or the Trust Manager as freely as if it were not an agent
of the Issuer under this Agreement; and
(b) be liable to account to the Issuer or any person entitled to
receive principal or interest on the Offshore Bonds for any
profit made or fees or commissions received in connection with
this Agreement or any Offshore Bonds.
16.7 CONSULTATION
Each Agent may consult as to legal matters with lawyers selected by
it, who may be employees of or lawyers to the Issuer, the Trust
Manager or any other Agent.
16.8 DUTIES
Each Agent shall perform the duties, and only the duties, contained in
or reasonably incidental to this Agreement, the Bond Trust Deed and
the Conditions and no implied duties or obligations (other than
general laws as to agency) shall be read into this Agreement or the
Offshore Bonds against any Agent. No Agent shall be required to take
any action under this Agreement which would require it to incur any
expense or liability in respect of which it has not been indemnified
to its satisfaction.
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17. CHANGES IN PAYING AGENTS AND CALCULATION AGENT
17.1 REMOVAL
The Issuer (or the Trust Manager with the consent of the Issuer (such
consent not to be unreasonably withheld)) may at any time:
(a) appoint:
(i) additional or alternative Paying Agents; or
(ii) an alternative Calculation Agent;
(b) subject to this clause 17, terminate the appointment of any Agent
by giving written notice to that effect to each Designated Rating
Agency, the Agent and the Principal Paying Agent:
(i) with effect immediately on that notice, if:
(A) an Insolvency Event has occurred in relation to the
Agent;
(B) the Agent has ceased its business;
(C) the Agent fails to comply with any of its obligations
under this Agreement and, if capable of remedy, such
failure is not remedied within five days after the
earlier of:
(1) the Agent becoming aware of that failure; and
(2) the receipt by the Agent of written notice from
the Issuer or Trust Manager requiring the Agent
to remedy that failure; or
(ii) with effect not less than 60 days' from that notice, which
date shall be not less than 10 days before nor 10 days
after any due date for payment of any Offshore Bonds.
17.2 RESIGNATION
Subject to this clause 17, an Agent may resign its appointment under
this Agreement at any time by giving to the Issuer, the Trust Manager,
each Designated Rating Agency and (where a Paying Agent is resigning
and the Paying Agent is not the Principal Paying Agent) the Principal
Paying Agent, not less than 60 days' written notice to that effect,
which notice shall expire not less than 10 days before or 10 days
after any due date for payment of any Offshore Bonds.
17.3 LIMITATION
Despite clauses 17.1 and 17.2:
(a) no resignation by or termination of the appointment of the
Principal Paying Agent shall take effect until a new Principal
Paying Agent has been appointed;
(b) subject to clause 17.3(a), if any Agent resigns in accordance
with clause 17.2, but by the day falling 15 days before the
expiry of any notice under clause 17.2 the Issuer or the Trust
Manager has not appointed a new Agent then the Agent may appoint
in its place any reputable bank or trust company of good
standing;
(c) no appointment or termination of the appointment of any Agent
shall take effect unless and until notice has been given to the
Offshore Bondholders in accordance with Condition 15;
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(d) the appointment of any additional Paying Agent shall be on the
terms and subject to the conditions of this Agreement and each of
the parties to this Agreement shall co-operate fully to do all
acts and things and execute all documents as may be necessary or
desirable to give effect to the appointment of that additional
Paying Agent (which shall not, except in the case of an
appointment under clause 17.1(a), a termination under clause
17.1(b)(ii) or a resignation under clause 17.2, be at the cost of
the Issuer); and
(e) the Issuer, at the direction of the Trust Manager, must
immediately appoint and maintain a Paying Agent with a Paying
Office in New York City if, at any time, there is no Paying Agent
with a Paying Office in new York City.
17.4 DELIVERY OF AMOUNTS
If the appointment of the Principal Paying Agent is terminated in
accordance with this Agreement, the Principal Paying Agent must, on
the date on which that termination takes effect:
(a) pay to the successor Principal Paying Agent any amount held by it
for payment of principal or interest in respect of any Offshore
Bond; and
(b) deliver to the successor Principal Paying Agent all records
maintained by it pursuant to this Agreement and all documents
(including any Definitive Bonds) held by it pursuant to this
Agreement.
17.5 SUCCESSOR AGENTS
(a) On the execution by the Issuer, the Trust Manager and any
successor Agent of an instrument effecting the appointment of
that successor Agent, that successor Agent shall, without any
further act, deed or conveyance, become vested with all the
authority, rights, powers, trusts, immunities, duties and
obligations of its predecessor as if originally named as Agent
(or in the case of a successor Principal Paying Agent, as if
originally named as Principal Paying Agent) in this Agreement and
that predecessor, on payment to it of the pro rata proportion of
its administration fee and disbursements then unpaid (if any),
shall have no further liabilities under this Agreement, except
for any accrued liabilities arising from or relating to any act
or omission occurring prior to the date on which the successor
Agent is appointed.
(b) Any corporation:
(i) into which a Agent is merged;
(ii) with which an Agent is consolidated;
(iii) resulting from any merger or consolidation to which an
Agent is a party;
(iv) to which an Agent sells or otherwise transfers all or
substantially all the assets of its corporate trust
business,
shall, on the date when that merger, conversion, consolidation,
sale or transfer becomes effective and to the extent permitted by
applicable law, become a successor Agent under this Agreement
without the execution or filing of any agreement or document or
any further act on the part of the parties to this Agreement,
unless otherwise required by the Issuer or the Trust Manager, and
after that effective date all references in this Agreement to an
Agent
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(or in the case of a successor Principal Paying Agent, to the
Principal Paying Agent) shall be references to that corporation.
17.6 NOTICE TO OFFSHORE BONDHOLDERS
The Trust Manager on behalf of the Issuer must, within 14 days of:
(a) the termination of the appointment of any Agent;
(b) the appointment of a new Agent; or
(c) the resignation of any Agent,
give to the Offshore Bondholders notice of the termination,
appointment or resignation in accordance with Condition 15 (in the
case of a termination under clause 17.1(b)(i), at the cost of the
outgoing Agent).
17.7 CHANGE IN PAYING OFFICE OR SPECIFIED OFFICE
(a) If any Paying Agent proposes to change its Paying Office or to
nominate a further Paying Office (which must be within the same
city as its previous Paying Office), it must give to the Issuer,
the Trust Manager, the Bond Trustee and, in the case of a change
in the Paying Office of a Paying Agent other than the Principal
Paying Agent, the Principal Paying Agent, not less than 30 days'
prior written notice of that change, giving the address of the
new Paying Office and stating the date on which the change is to
take effect.
(b) If the Calculation Agent proposes to change its Specified Office
(which must be in New York City or such other jurisdiction as the
Calculation Agent, the Issuer and the Trust Manager agree from
time to time) or to nominate a further Specified Office, it must
give to the Issuer, the Trust Manager and the Bond Trustee, not
less than 30 days' prior written notice of that change, giving
the address of the new Specified Office and stating the date on
which the change is to take effect.
(c) The Trust Manager, on behalf of the Issuer, must, within 14 days
of receipt of a notice under paragraph (a) or (b) (unless the
appointment is to terminate pursuant to clause 17.1 on or prior
to the date of that change) give to the Offshore Bondholders
notice in accordance with Condition 15 of that change and of the
address of the new Paying Office or Specified Office (as the case
may be).
18. FEES AND EXPENSES
(a) The Issuer must pay to each Agent during the period when any of
the Offshore Bonds remain outstanding, the administration fee
separately agreed by that Agent and the Trust Manager, on behalf
of the Issuer, together with any out-of-pocket expenses properly
incurred by that Agent in the performance of its obligations
under this Agreement (including any legal fees and expenses). If
the appointment of an Agent is terminated or an Agent resigns in
accordance with this Agreement, that Agent must refund to the
Issuer that proportion of the fee (if any) which relates to the
period after such termination or resignation.
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(b) Save as provided in paragraph (a) or as expressly provided
elsewhere in this Agreement, neither the Issuer nor the Trust
Manager shall have any liability in respect of any fees or
expenses of any Agent in connection with this Agreement.
(c) The above fees, payments and expenses must be paid in [US$] and
the Issuer must in addition pay any GST which may be applicable.
The Principal Paying Agent must arrange for payment of
commissions to the other Paying Agents (if any) and arrange for
the reimbursement of their expenses promptly upon demand,
supported by evidence of that expenditure and, provided that
payment is made to the Principal Paying Agent, the Issuer shall
not be concerned with or liable in respect of that payment.
19. WAIVERS, REMEDIES CUMULATIVE
(a) No failure to exercise and no delay in exercising any right,
power or remedy under this Agreement operates as a waiver. Nor
does any single or partial exercise of any right, power or remedy
preclude any other or further exercise of that or any other
right, power or remedy.
(b) The rights, powers and remedies provided to a party in this
Agreement are in addition to, and do not exclude or limit, any
right, power or remedy provided by law.
20. SEVERABILITY OF PROVISIONS
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction is ineffective as to that jurisdiction to the
extent of the prohibition or unenforceability. That does not
invalidate the remaining provisions of this Agreement nor affect the
validity or enforceability of that provision in any other
jurisdiction.
21. ASSIGNMENTS
Subject to clause 17.5(b), no party other than the Bond Trustee acting
in accordance with clause 14 of the Bond Trust Deed or the Issuer
creating a charge under the Security Trust Deed, may assign or
transfer any of its rights or obligations under this Agreement without
the prior written consent of the other parties and confirmation from
each Designated Rating Agency that the rating of any Offshore Bond
will not be downgraded to less than the Designated Rating, qualified
or withdrawn as a result of the assignment.
22. NOTICES
22.1 NOTICES GENERALLY
Subject to clause 22.2, every notice to be served, given or made under
the terms of this Agreement on or to a party to this Agreement:
(a) must be in writing in order to be valid;
(b) must be deemed to have been duly served, given or made in
relation to a party if it is:
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(i) delivered to the address of that party set out in
paragraph (e) (or at such other address as may be notified
in writing by that party to the other party from time to
time); or
(ii) posted by prepaid registered post to such address; or
(iii) sent by facsimile to the facsimile number set out in
sub-paragraph (e) (or to such other number as may be
notified in writing by that party to the other party from
time to time);
(c) shall be sufficient if executed by the party giving, serving or
making the same or on its behalf by a then Authorised Signatory
of such party;
(d) shall be deemed to be given, served or made:
(i) (in the case of prepaid registered post) within 5 Business
Days after posting;
(ii) (in the case of facsimile) on receipt of a transmission
report confirming successful transmission; and
(iii) (in the case of delivery by hand) on delivery;
(e) the addresses and facsimile numbers for service of notices as
referred to in sub-paragraph (b) of this clause are as follows:
THE ISSUER
▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
By fax: (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Senior Manager, Securitisation Trusts
THE TRUST MANAGER
▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
By fax: (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Treasurer
THE PRINCIPAL PAYING AGENT
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇
By fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: Global Structured Finance Unit
THE CALCULATION AGENT
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇
By fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: Global Structured Finance Unit
THE US$ REGISTRAR
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▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇
By fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: Global Structured Finance Unit
THE EURO REGISTRAR
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
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▇▇▇
By fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: Global Structured Finance Unit
22.2 COMMUNICATION THROUGH PRINCIPAL PAYING AGENT
All communications relating to this Agreement between the Issuer or
the Trust Manager and any Agent or between the Paying Agents shall,
save as otherwise provided in this Agreement, be made through the
Principal Paying Agent.
23. COUNTERPARTS
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
24. GOVERNING LAW
This agreement is governed by the laws of
New South Wales. Each party
submits to the non-exclusive jurisdiction of the courts exercising
jurisdiction there.
25. SUCCESSOR TRUSTEE
Each Agent must do all things reasonably necessary to enable any
successor trustee appointed under clause 17 of the Master Trust Deed
to become the Issuer under this Agreement.
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EXECUTED as an agreement.
Each attorney executing this Agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.
SIGNED for PERMANENT CUSTODIANS LIMITED by
its attorneys under power of attorney ----------------------------------
in the presence of: Attorney Signature
----------------------------------
Print Name
--------------------------------------- ----------------------------------
Witness Signature Attorney Signature
--------------------------------------- ----------------------------------
Print Name Print Name
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SIGNED for AUSTRALIAN SECURITISATION
MANAGEMENT PTY LIMITED by its attorney
under power of attorney in the presence of:
--------------------------------------- ----------------------------------
Witness Signature Attorney Signature
--------------------------------------- ----------------------------------
Print Name Print Name
SIGNED by THE BANK OF NEW YORK in the
presence of:
--------------------------------------- ----------------------------------
Witness Signature Signature
--------------------------------------- ----------------------------------
Print Name Print Name
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