AGENCY AGREEMENT by SMART ABS Series 2013-2US Trust

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Company: SMART ABS Series 2013-2US Trust
SEC CIK: 1576441
SEC Type: EX-10.2
SIC Code: 6189
SIC Industry: ASSET-BACKED SECURITIES
Date Filed: 2013-05-21

Date Filed: 
05/21/2013
SKU: RDPKMD-D-4WLO-9
EX-10.2

Exhibit 10.2

EXECUTION VERSION

SMART ABS SERIES 2013-2US TRUST

AGENCY AGREEMENT

 

PERPETUAL TRUSTEE COMPANY LIMITED

ABN 42 000 001 007

MACQUARIE SECURITIES MANAGEMENT PTY LIMITED

ABN 26 003 435 443

THE BANK OF NEW YORK MELLON

 

 

 

 

LOGO


CONTENTS

 

Clause      Page   

1.

   Definitions and Interpretation      1   

2.

   Appointment of Paying Agents      6   

3.

   Payments      6   

4.

   Appointment and Duties of the Agent Bank      10   

5.

   Appointment and Duties of the US$ Note Registrar      11   

6.

   US$ Note Trustee’s Requirements Regarding Agents      14   

7.

   Early Redemption of US$ Notes      15   

8.

   General Paying Agent Matters      16   

9.

   Indemnity by Issuer      17   

10.      

   Indemnity by Principal Paying Agent      17   

11.

   Changes in Agents      18   

12.

   Miscellaneous Duties and Protection      21   

13.

   Expenses      24   

14.

   Notices      24   

15.

   Issuer’s Limitation of Liability      27   

16.

   General      28   

Signatories

     34   
Schedule   

1.

   Assertion of Compliance with Applicable Servicing Criteria      36   


THIS AGENCY AGREEMENT made in Sydney on 16 May 2013

PARTIES:

 

(1)

PERPETUAL TRUSTEE COMPANY LIMITED, ABN 42 000 001 007, a company incorporated in Australia and having its registered office at Level 12, Angel Place, 123 Pitt Street, Sydney, New South Wales 2000, Australia, in its capacity as trustee of the Series Trust (as hereinafter defined) (hereinafter included in the expression the Issuer).

 

(2)

MACQUARIE SECURITIES MANAGEMENT PTY LIMITED, ABN 26 003 435 443, a company incorporated in Australia and having its office at Level 1, 1 Martin Place, Sydney, New South Wales 2000, Australia (hereinafter included in the expression the Manager).

 

(3)

THE BANK OF NEW YORK MELLON , having its office at 101 Barclay Street, Floor 4 East, New York, New York 10286 (BNY and hereinafter included in the expressions the US$ Note Trustee, the Principal Paying Agent, the US$ Note Registrar and the Agent Bank).

BACKGROUND:

 

(A)

The Issuer, in its capacity as trustee of the Series Trust, proposes to issue various Classes or Sub-Classes of asset backed US$ Notes.

 

(B)

The US$ Notes will be constituted pursuant to the US$ Note Trust Deed.

 

(C)

The Issuer wishes to appoint BNY as the initial Principal Paying Agent, the initial US$ Note Registrar and the initial Agent Bank in respect of the US$ Notes and BNY has accepted these appointments on the terms and conditions of this Agreement.

Operative provisions

 

1.

DEFINITIONS AND INTERPRETATION

 

1.1

Definitions

In this Agreement, unless the contrary intention appears:

Agent means a several reference to each Paying Agent, the US$ Note Registrar and the Agent Bank.

Agent Bank means initially BNY or, if BNY resigns or its appointment is terminated as the Issuer’s reference agent in respect of the US$ Notes, the person from time to time appointed in its place to perform the functions of such reference agent under this Agreement.

Authorised Officer in relation to:

 

  (a)

the Manager, has the same meaning as in the Master Trust Deed;

 

  (b)

the US$ Note Trustee, has the same meaning as the term “Authorised Officer” in relation to the US$ Note Trustee has in the US$ Note Trust Deed;

 

  (c)

the Agent Bank, US$ Note Registrar and the Principal Paying Agent has the same meaning as the term “Authorised Officer” in relation to the US$ Note Trustee in the US$ Note Trust Deed except that for this purpose references in that definition to the “US$ Note Trustee” will be taken to be references to the “Principal Paying Agent”, “US$ Note Registrar” or “Agent Bank”, as applicable;

 

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  (d)

the Issuer, has the same meaning as the term “Authorised Officer” in relation to the Trustee in the Series Supplement; and

 

  (e)

any other Agent, means the persons appointed from time to time by that Agent to act as its Authorised Officers for the purposes of this Agreement as certified in writing by 2 directors or a director and secretary of that Agent to the other parties to this Agreement.

Book-Entry Note has the same meaning as in the US$ Note Trust Deed.

Definitive Note has the same meaning as in the US$ Note Trust Deed.

Exchange Act means the United States Exchange Act of 1934 as amended.

Interest Amount means, in relation to a Class or Sub-Class of US$ Notes, the “Interest Amount” specified for that Class or Sub-Class of US$ Notes in the relevant US$ Note Conditions.

Interest Rate has the same meaning as in the US$ Note Conditions.

Issuer means initially Perpetual Trustee Company Limited ABN 42 000 001 007 in its capacity as trustee of the Series Trust or, if Perpetual Trustee Company Limited ABN 42 000 001 007 retires or is removed as trustee of the Series Trusts (as defined in the Master Trust Deed), the then Substitute Trustee.

Master Trust Deed means the Master Trust Deed dated 11 March 2002 between the Manager and Permanent Custodians Limited ACN 001 426 384, the rights and obligations of which were assumed by the Issuer pursuant to the Deed of Assumption, as amended and supplemented from time to time.

MLPL means Macquarie Leasing Pty Limited ABN 38 002 674 982.

Paying Agent means each person from time to time appointed hereunder to perform the functions of a paying agent and, except where the context otherwise requires, includes the Principal Paying Agent.

Principal Paying Agent means BNY or, if BNY 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.

Regulation AB means Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such regulation may be amended from time to time, and subject to such clarification and interpretation as have been provided by the SEC in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the SEC, or as may be provided by the SEC or its staff from time to time.

SEC means the Securities and Exchange Commission of the United States of America, as from time to time constituted, created under the United States Securities Exchange Act of 1934, as amended.

Securities Act means the Securities Act of 1933 of the United States of America, as amended.

Series Supplement means the Series Supplement dated on or about the date of this Agreement between MLPL, Macquarie Bank Limited ABN 46 008 583 542, the Manager and the Issuer, as amended and supplemented from time to time.

Series Trust means the SMART ABS Series 2013-2US Trust.

Servicing Criteria means the “servicing criteria” set forth in Item 1122(d) of Regulation AB.

 

2


Specified Office in relation to:

 

  (a)

the US$ Note Registrar, means the offices of the US$ Note Registrar as specified in the US$ Note Conditions or otherwise under this Agreement as the offices of the US$ Note Registrar where surrenders of US$ Notes for transfer, exchange, replacement or redemption will occur and where, in respect of one of such offices, the US$ Note Register will be kept as varied from time to time in accordance with this Agreement;

 

  (b)

a Paying Agent, means the office of the Paying Agent specified in the US$ Note Conditions as the office at which payments in respect of the US$ Notes will be made, as varied from time to time in accordance with this Agreement; and

 

  (c)

the Agent Bank, means the office of the Agent Bank specified in the US$ Note Conditions as the office at which the Agent Bank will carry out its duties under this Agreement, as varied from time to time in accordance with this Agreement.

STAMP means the Securities Transfer Agents Medallion Program.

UCC means the Uniform Commercial Code of New York or any other applicable jurisdiction as the context may require.

US$ Class A-1 Interest Amount has the same meaning as in the US$ Note Conditions.

US$ Class A-2a Interest Amount has the same meaning as in the US$ Note Conditions.

US$ Class A-2b Interest Amount has the same meaning as in the US$ Note Conditions.

US$ Class A-3a Interest Amount has the same meaning as in the US$ Note Conditions.

US$ Class A-3b Interest Amount has the same meaning as in the US$ Note Conditions.

US$ Class A-4a Interest Amount has the same meaning as in the US$ Note Conditions.

US$ Class A-4b Interest Amount has the same meaning as in the US$ Note Conditions.

US$ Note has the same meaning as in the US$ Note Trust Deed.

US$ Noteholders has the same meaning as in the US$ Note Trust Deed.

US$ Note Register means the register established by the US$ Note Registrar in respect of the Class A-1, the Class A-2a Notes, the Class A-2b Notes, the Class A-3a Notes, the Class A-3b Notes, the Class A-4a Notes and the Class A-4b Notes in accordance with Clause 5.2.

US$ Note Registrar means BNY or if BNY resigns or its appointment as note registrar in respect of the US$ Notes is terminated, the person from time to time appointed in its place to perform the functions of such note registrar under this Agreement.

US$ Note Trust Deed means the US$ Note Trust Deed dated 7 May 2013 between the Issuer, the Manager, MLPL and BNY, as amended and supplemented from time to time.

 

1.2

Master Trust Deed, Master Sale and Servicing Deed and Series Supplement definitions

Subject to Clause 1.6, unless otherwise defined in this Agreement or unless otherwise indicated in this Agreement, words and phrases defined (including by incorporation from, or by reference to, another document) in either or each of the Master Trust Deed, the Master Sale and Servicing Deed

 

3


and the Series Supplement have the same meaning in this Agreement. Where there is any inconsistency in a definition between this Agreement (on the one hand) and the Master Trust Deed, the Master Sale and Servicing Deed or the Series Supplement (on the other hand), this Agreement prevails. Where there is any inconsistency in a definition between the Master Trust Deed or the Master Sale and Servicing Deed (on one hand) and the Series Supplement (on the other hand), the Series Supplement prevails over the Master Trust Deed and the Master Sale and Servicing Deed in respect of this Agreement. Where there is any inconsistency in a definition between the Master Trust Deed (on one hand) or the Master Sale and Servicing Deed (on the other hand), the Master Sale and Servicing Deed prevails over the Master Trust Deed in respect of this Agreement. Subject to Clause 1.6, where words or phrases used but not defined in this Agreement are defined in the Master Trust Deed or the Master Sale and Servicing Deed in relation to a Series Trust (as defined in the Master Trust Deed) such words or phrases are to be construed in this Agreement, where necessary, as being used only in relation to the Series Trust (as defined in this Agreement).

 

1.3

Interpretation

In this Agreement, unless the contrary intention appears:

 

  (a)

headings are for convenience only and do not affect the interpretation of this Agreement;

 

  (b)

a reference to this Agreement includes the Background;

 

  (c)

the expression person includes an individual, the estate of an individual, a body politic, a corporation and a statutory or other authority or association (incorporated or unincorporated);

 

  (d)

a reference to a person includes that person’s executors, administrators, successors, substitutes and assigns, including any person taking by way of novation;

 

  (e)

subject to Clause 1.6, a reference to any document or agreement is to such document or agreement as amended, novated, supplemented, varied or replaced from time to time;

 

  (f)

a reference to any legislation or to any section or provision of any legislation includes any statutory modification or re-enactment or any statutory provision substituted for that legislation and all ordinances, by-laws, regulations and other statutory instruments issued under that legislation, section or provision;

 

  (g)

words importing the singular include the plural (and vice versa) and words denoting a given gender include all other genders;

 

  (h)

a reference to a Clause is a reference to a Clause of this Agreement;

 

  (i)

a reference to wilful default in relation to a party means, subject to Clause 1.3(j), any wilful failure by that party to comply with, or wilful breach by that party of, any of its obligations under any Transaction Document, other than a failure to comply or breach which:

 

          (i)    (A)    

arises as a result of a breach of a Transaction Document by a person other than:

 

           I.

    that party; or

 

            II.

    any other person referred to in Clause 1.3(j); and

 

4


  (B)

the performance of the action (the non-performance of which gave rise to such breach) is a pre-condition to that party performing the said obligation; or

 

  (ii)

is in accordance with a lawful court order or direction or is required by law; or

 

  (iii)

is in accordance with a proper instruction or direction of:

 

  (A)

the Voting Secured Creditors given at a meeting or deemed meeting of Voting Secured Creditors convened pursuant to the Master Security Trust Deed and the General Security Deed; or

 

  (B)

the Investors given at a meeting or deemed meeting convened under any Transaction Document;

 

  (j)

a reference to the fraud, negligence or wilful default of a party means the fraud, negligence or wilful default of that party and of its officers or employees or any of its agents, delegates or any other person for whom that party is liable under the terms of any Transaction Document;

 

  (k)

where any word or phrase is given a defined meaning, any other part of speech or other grammatical form in respect of such word or phrase has a corresponding meaning;

 

  (l)

where any day on which a payment is due to be made or a thing is due to be done under this Agreement is not a Business Day, that payment must be made or that thing must be done on the immediately succeeding Business Day;

 

  (m)

a reference to the close of business on any day is a reference to 5.30 p.m. on that day;

 

  (n)

a reference to time is to local time in Sydney;

 

  (o)

the expressions includes and including are not words of limitation;

 

  (p)

subject to Clause 14.2 and unless otherwise specified, each party will only be considered to have knowledge or awareness of, or notice of, a thing or grounds to believe anything by virtue of the officers of that party (or any Related Body Corporate of that party) having day to day responsibility for the administration or management of that party’s (or a Related Body Corporate of that party’s) obligations in relation to the Series Trust having actual knowledge, actual awareness or actual notice of that thing, or grounds or reason to believe that thing (and similar references will be interpreted in this way); and

 

  (q)

a reference to the enforcement of the Security means that the Security Trustee appoints (or the Voting Secured Creditors as contemplated by clause 8.2 of the Master Security Trust Deed appoint) a Receiver over any Secured Property, or takes possession of any Secured Property, pursuant to the Master Security Trust Deed (expressions used in this Clause have the same meanings as in the Master Security Trust Deed).

 

1.4

Issuer capacity

In this Agreement, except where provided to the contrary:

 

  (a)

(References to Issuer): a reference to the Issuer is a reference to the Issuer in its capacity as trustee of the Series Trust only, and in no other capacity; and

 

5


  (b)

(References to assets of the Issuer): a reference to the undertaking, assets, business or money of the Issuer is a reference to the undertaking, assets, business or money of the Issuer in the capacity referred to in paragraph (a).

 

1.5

Transaction Document

For the purposes of the Master Trust Deed and the Series Supplement, this Agreement is a Transaction Document.

 

1.6

Incorporated definitions and other Transaction Documents and provisions

Where in this Agreement a word or expression is defined by reference to its meaning in another Transaction Document or there is a reference to another Transaction Document or to a provision of another Transaction Document, any amendment to the meaning of that word or expression or to that other Transaction Document or provision (as the case may be) will be of no effect for the purposes of this Agreement unless and until the amendment is consented to by the parties to this Agreement.

 

2.

APPOINTMENT OF PAYING AGENTS

 

2.1

Appointment

The Issuer, at the direction of the Manager, hereby appoints the Principal Paying Agent as its initial principal paying agent and each other Paying Agent from time to time (if any) as its paying agent, for making payments in respect of the US$ Notes pursuant to the Transaction Documents at their respective Specified Offices in accordance with the terms and conditions of this Agreement and subject to Clause 6.1. The Principal Paying Agent, and each other Paying Agent, hereby accepts that appointment.

 

2.2

Several obligations of Paying Agents

While there is more than one Paying Agent, the obligations of the Paying Agents under this Agreement are several and not joint.

 

3.

PAYMENTS

 

3.1

Payment by Issuer

 

  (a)

(Payment by Issuer): Subject to Clause 3.8, the Issuer must on each Distribution Date, pay to or to the order of, or procure the payment to or to the order of, the Principal Paying Agent to an account specified by the Principal Paying Agent in identifiable, freely available same day funds, no later than 10.00 a.m. London time the amount in US$ as may be required (after taking account of any money then held by the Principal Paying Agent and available for the purpose) to be paid on that Distribution Date in respect of each Class or Sub-Class of US$ Notes under the US$ Note Conditions.

 

  (b)

(Payment by Currency Swap Provider): The Issuer shall, or shall procure that the Currency Swap Provider in relation to each Class of US$ Notes shall, no later than 10.00 a.m. London time on each Distribution Date, make the payment under Clause 3.1(a) to the Principal Paying Agent and confirm the making of such payment by facsimile or email to the Principal Paying Agent.

 

6


3.2

Payments by Paying Agents

Subject to full payments being duly made and received by the Principal Paying Agent as provided in Clause 3.1 (or the Principal Paying Agent otherwise being satisfied that the payments will be duly made and received by it on the due date), and subject to Clause 6, the Paying Agents will pay or cause to be paid to the US$ Noteholders on behalf of the Issuer on each Distribution Date the relevant amounts of principal and interest due in respect of each Class of US$ Notes in accordance with the Series Supplement, this Agreement and the US$ Note Conditions.

 

3.3

Non-Payment

 

  (a)

(No obligation on Paying Agents): If the Issuer fails to make or procure any payment pursuant to Clause 3.1, unless and until the full amount of the payment has been made under the terms of this Agreement and received by the Principal Paying Agent in accordance with Clause 3.1 (except as to the time of making the payment) or other arrangements satisfactory to the Principal Paying Agent have been made, none of the Principal Paying Agent nor any of the other Paying Agents is bound to make any payment in accordance with this Clause 3 (but may, in its sole discretion, make any such payment).

 

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