AGENCY AGREEMENT
PERPETUAL TRUSTEES VICTORIA LIMITED
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED
THE BANK OF NEW YORK, NEW YORK BRANCH
Interstar Millennium Trusts
Interstar Millennium Series 2003-1G Trust
ALLENS XXXXXX XXXXXXXX
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
(C) Copyright Allens Xxxxxx Xxxxxxxx 2003
AGENCY AGREEMENT Allens Xxxxxx Xxxxxxxx
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Note Trust Deed definitions 3
1.3 Interpretation 3
1.4 Document or agreement 3
1.5 Transaction Document 3
1.6 Trustee as trustee 3
2. APPOINTMENT OF PAYING AGENTS 4
3. PAYMENT 4
3.1 Payment by Trustee 4
3.2 Confirmation 4
3.3 Payments by Paying Agents 5
3.4 Method of Payment - Global Notes 5
3.5 Method of payment - Definitive Notes 5
3.6 Late payment 5
3.7 Notice of non-receipt 5
3.8 Reimbursement 6
3.9 Method of payment 6
3.10 No fee 6
3.11 Trust 6
4. REPAYMENT 7
5. APPOINTMENT OF THE CALCULATION AGENT 7
6. DUTIES OF THE CALCULATION AGENT 7
7. NOTE TRUSTEE 8
8. EARLY REDEMPTION OF US$ NOTES 9
9. PRO RATA REDEMPTION, PURCHASES AND CANCELLATION OF NOTES 10
10. NOTICES TO US$ NOTEHOLDERS 11
11. DOCUMENTS AND FORMS 11
12. AUTHENTICATION 11
13. INDEMNITY 11
14. THE NOTE REGISTER 12
14.1 Appointment of Note Xxxxxxxxx 00
14.2 Details to be kept on the Note Register 12
14.3 Payments of Principal and Interest 13
14.4 Place of keeping Register, copies and access 13
14.5 Details on Note Register conclusive 14
14.6 Alteration of details on Note Register 14
14.7 Rectification of Note Register 14
14.8 Correctness of Note Register 14
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15. CHANGES OF NOTE XXXXXXXXX 00
15.1 Removal 15
15.2 Resignation 15
15.3 Limitation 15
16. GENERAL 15
16.1 Meetings of US$ Noteholders 15
16.2 Agency 15
16.3 Identity 16
16.4 No set-off 16
16.5 Reliance 16
16.6 Entitled to deal 16
16.7 Consultation 17
16.8 Duties 17
17. CHANGES IN PAYING AGENTS AND CALCULATION AGENT 17
17.1 Removal 17
17.2 Resignation 18
17.3 Limitation 18
17.4 Delivery of amounts 19
17.5 Successor Paying Agents 19
17.6 Successor to Calculation Agent 20
17.7 Notice to US$ Noteholders 20
17.8 Change in Paying Office or Specified Office 20
18. FEES AND EXPENSES 21
19. WAIVERS, REMEDIES CUMULATIVE 22
20. SEVERABILITY OF PROVISIONS 22
21. ASSIGNMENTS 22
22. NOTICES 22
22.1 General 22
22.2 Details 23
22.3 Communication through Principal Paying Agent 25
23. LIMITED RECOURSE 25
23.1 General 25
23.2 Liability of Trustee limited to its right to indemnity 25
23.3 Unrestricted remedies 27
23.4 Restricted remedies 27
24. COUNTERPARTS 27
25. GOVERNING LAW 27
26. SUCCESSOR TRUSTEE 27
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DATE 2003
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PARTIES
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1. PERPETUAL TRUSTEES VICTORIA LIMITED (ABN 47 004 027 258) of Xxxxx 0,
000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx in its capacity as trustee of
Interstar Millennium Series 2003-1GTrust (the TRUSTEE);
2. INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED (ACN 100 346 898) of
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx in its capacity as
Trust Manager (the TRUST MANAGER);
3. INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED (ABN 72 087 271 109) of
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx in its capacity as
Servicer (the SERVICER); and
4. THE BANK OF NEW YORK, NEW YORK BRANCH as principal paying agent for
the Class US$ Notes 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 US$ Noteholders (the NOTE TRUSTEE, which expression
shall, wherever the context requires, include any other trustee or
trustees from time to time under the Note Trust Deed) and as
calculation agent in relation to the US$ Notes described below (the
CALCULATION AGENT, which expression shall, wherever the context
requires, include any successor reference agent from time to time) and
as note registrar in relation to the US$ Notes described below (the
NOTE REGISTRAR, which expression shall, wherever the context requires,
include any successor note registrar from time to time under this
agreement).
RECITALS
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A The Trustee proposes to issue US$[*] of Class A2 Mortgage Backed
Floating Rate Notes and US$[*] of Class B1 Mortgage Backed Floating
Rate Notes (the US$ NOTES).
B The US$ Notes, upon original issue, will be issued in the form of
Global Notes. The Trustee shall, on the date of this deed, deliver or
arrange the delivery on its behalf of each Global Note to the
Principal Paying Agent, as agent for the Clearing Agency. Each Global
Note shall initially be registered on the Note Register in the name of
the Common Depository, as nominee of the Clearing Agency, and no Note
Owner will receive a Definitive Note representing such Note Owner's
interest in such US$ Note, except as provided in the Note Trust Deed.
C The US$ Notes will be constituted by the Note Trust Deed, the Series
Notice and the Master Trust Deed.
D The US$ Notes will be secured on the terms of the Security Trust Deed.
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E The Trustee wishes to appoint the Principal Paying Agent as principal
paying agent in respect of the US$ Notes and has entered into this
agreement to provide for the terms and conditions of that appointment.
F The Trustee wishes to appoint the Calculation Agent as its reference
agent in respect of the US$ Notes and has entered into this agreement
to provide for the terms and conditions of that appointment.
G The Trustee wishes to appoint the Note Registrar as note registrar in
respect of the US$ Notes and has entered into this agreement to
provide for the terms and conditions of that appointment.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
DETERMINATION DATE means, in relation to a Payment Date, the date which
is 2 Business Days before that Payment Date.
MASTER TRUST DEED means the Master Trust Deed for the Interstar
Millennium Trusts dated 2 December 1999 between the Trustee as trustee
and Interstar Securities (Australia) Pty Limited.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust dated
[*] issued under the Master Trust Deed in relation to the Trust.
PAYING AGENT means any person for the time being appointed as a Paying
Agent under this agreement and includes the Principal Paying Agent.
PAYING OFFICE means, in relation to a Paying Agent, the office of the
Paying Agent specified in the US$ Notes or otherwise under this
agreement or the Note Trust Deed as the office at which payments in
respect of the US$ Notes will be made as changed from time to time in
accordance with this agreement.
SERIES NOTICE means the Series Notice dated on or about the date of
this agreement relating to the Trust.
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.
TRUST means the trust known as the Interstar Millennium Series 2003-1G
Trust established under the Notice of Creation of Trust, the Master
Trust Deed and the Series Notice.
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1.2 NOTE TRUST DEED DEFINITIONS
(a) Words and expressions which are defined in the Master Trust Deed
(as amended by the Series Notice), the Series Notice, the Note
Trust Deed and the Conditions (including by reference to another
agreement) have the same meanings when used in this agreement
unless the context otherwise requires or unless otherwise defined
in this agreement.
(b) If a definition in any of the documents in paragraph (a) above is
inconsistent, the definitions will prevail in the following
order:
(i) definition in this agreement;
(ii) definition in the Series Notice;
(iii) definition in the Master Trust Deed;
(iv) definition in the Note Trust Deed;
(v) definition in the Conditions.
1.3 INTERPRETATION
Clause 1.2 of the Master Trust Deed applies to this agreement as if
set out in full and:
(a) a reference to an ASSET includes any real or personal, present or
future, tangible or intangible property or asset and any right,
interest, revenue or benefit in, under or derived from the
property or asset; and
(b) a reference to an amount for which a person is CONTINGENTLY
LIABLE includes an amount which that person may become actually
or contingently liable to pay if a contingency occurs, whether or
not that liability will actually arise.
1.4 DOCUMENT OR AGREEMENT
A reference to:
(a) an AGREEMENT includes a Security Interest, Guarantee,
undertaking, deed, agreement or legally enforceable arrangement
whether or not in writing; and
(b) a DOCUMENT includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the
extent prohibited by this agreement.
1.5 TRANSACTION DOCUMENT
This agreement is a TRANSACTION DOCUMENT for the purposes of the Master
Trust Deed.
1.6 TRUSTEE AS TRUSTEE
(a) In this agreement, except where provided to the contrary:
(i) a reference to the Trustee is a reference to the Trustee
in its capacity as trustee of the Trust only, and in no
other capacity; and
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(ii) a reference to the assets, business, property or
undertaking of the Trustee is a reference to the assets,
business, property or undertaking of the Trustee only in
the capacity described in sub-paragraph (i) above.
(b) The rights and obligations of the parties under this agreement
relate only to the Trust, and do not relate to any other Trust
(as defined in the Master Trust Deed).
2. APPOINTMENT OF PAYING AGENTS
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(a) Subject to the terms of this agreement, the Trustee (acting on the
direction of the Trust Manager) appoints the Principal Paying Agent as
its principal paying agent and each other Paying Agent as its paying
agent, for making payments in respect of the US$ Notes in accordance
with the Transaction Documents and the Conditions at their respective
Paying Offices. The Principal Paying Agent and each other Paying Agent
appointed under this agreement accepts such appointment.
(b) Except in clause 17 and as the context otherwise requires, references
to the Principal Paying Agent are to it acting solely through its
Paying Office.
(c) 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.
(d) It is acknowledged and agreed that:
(i) subject to clause 7, each of the Principal Paying Agent and each
other Paying Agent is the agent of the Trustee in its capacity as
trustee of the Trust only, and
(ii) despite anything else in this agreement, any other Transaction
Document or at law, the Trustee in its personal capacity is not
responsible for any act or omission of the Principal Paying Agent
or any other Paying Agent.
3. PAYMENT
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3.1 PAYMENT BY TRUSTEE
The Trustee shall, with the assistance of and at the direction of the
Trust Manager, not later than 10.00 am (New York time) on each Payment
Date, pay to or to the order of, or procure payment to or to the order
of, the Principal Paying Agent the amount in US$ as may be required
(after taking account of any cash then held by the Principal Paying
Agent and available for the purpose) to be made on that Payment Date
under the Series Notice and the Conditions.
3.2 CONFIRMATION
Not later than 4.00 pm (Sydney time) on each Determination Date, the
Trust Manager on behalf of the Trustee shall notify, or procure
notification to, the Principal Paying Agent and the Note Trustee of the
amount of interest or principal payable in respect of each Class of US$
Notes on the Payment Date following that Determination Date. The
Trustee or if required by the Trustee, the Trust Manager on its behalf
shall also forward to the Principal Paying Agent at that time
confirmation that the payments provided for in clause 3.1 will be made
unconditionally.
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3.3 PAYMENTS BY PAYING AGENTS
Subject to payment being duly made as provided in clause 3.1 (or the
Principal Paying Agent otherwise being satisfied that the payment will
be duly made on the due date), and subject to clause 7, the Paying
Agents shall pay or cause to be paid on behalf of the Trustee on each
Payment Date the relevant amounts of principal and interest due in
respect of the US$ Notes in accordance with the Series Notice and the
Conditions.
3.4 METHOD OF PAYMENT - GLOBAL NOTES
The Principal Paying Agent shall cause all payments of principal or
interest (as the case may be) due and received by it in respect of US$
Notes represented by a Global Note to be made to the Common Depository
for credit to the account of the persons appearing from time to time in
the records of the Common Depository as account holders with respect
to, and whilst any of the US$ Notes are represented by, a Global Note.
3.5 METHOD OF PAYMENT - DEFINITIVE NOTES
Payments of principal or interest on the Definitive Notes shall be made
in accordance with the Conditions and the Series Notice.
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 shall make payments required to be made by it in respect
of the US$ Notes as provided in this clause 3. However, unless
and until the full amount of any payment in respect of the US$
Notes required to be made under the Transaction Documents has
been made under clause 3.1 to or to the order of the Principal
Paying Agent, no Paying Agents shall be bound to make a
payment under 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 US$ Note in accordance with the Series Notice and the
Conditions, but receives the full amount later, it shall:
(i) forthwith upon full receipt notify the other Paying
Agents (if any), the Trustee, the Note Trustee, the
Security Trustee and the Trust Manager; and
(ii) as soon as practicable after such full receipt give
due notice, in accordance with Condition 12 (unless
the Note Trustee agrees otherwise), to the US$
Noteholders that it has received the full amount.
3.7 NOTICE OF NON-RECEIPT
The Principal Paying Agent shall immediately notify by telex or
facsimile (if appropriate) the other Paying Agents (if any), the Note
Trustee, the Trustee, the Security Trustee and the Trust Manager if the
full amount of any payment of principal or interest required to be made
by the Series Notice and Conditions in respect of the US$ Note is not
unconditionally received by it or to its order in accordance with this
agreement.
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3.8 REIMBURSEMENT
The Principal Paying Agent shall (provided that it has been placed in
funds by the Trustee) on demand promptly reimburse the other Paying
Agents (if any) for payments of principal and interest properly made by
that Paying Agent in accordance with the Series Notice and the
Conditions and this agreement. The Trustee shall not be concerned with
the apportionment of any moneys between the Principal Paying Agent and
the other Paying Agents (if any) and payment to the Principal Paying
Agent of any moneys due to the Paying Agents shall operate as a good
discharge to the Trustee in respect of such moneys.
3.9 METHOD OF PAYMENT
(a) All sums payable by the Trustee to the Principal Paying Agent
under this agreement shall, unless otherwise provided by and
subject to a Currency Swap, be paid by the relevant Currency
Swap Provider on behalf of the Trustee in US$ to the bank
account as the Principal Paying Agent may from time to time
notify to the Trustee and the Note Trustee. Those sums shall
be held on account for payment to the US$ Noteholders and,
failing that, payment within the designated periods of
prescription specified in Condition 8, or upon the bankruptcy,
insolvency, winding up or liquidation of the Principal Paying
Agent or default being made by the Principal Paying Agent in
the payment of any amounts in respect of principal or interest
in accordance with this agreement, for repayment to the
Trustee (subject to clause 4). On repayment in accordance with
clause 4 to the Trustee all liabilities of the Principal
Paying Agent with respect to those moneys shall cease. The
Principal Paying Agent shall, promptly after each Payment
Date, confirm to the Trustee that the Principal Paying Agent
has paid the relevant amount to the Common Depository. The
Principal Paying Agent will countersign and promptly return
any such confirmation requested by the Trustee.
(b) Subject to 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. The Principal Paying Agent shall
be entitled to retain for its own account any interest earned
on the sums from time to time credited to the account referred
to in paragraph (a) and it need not segregate such sums from
other amounts held by it, except as required by law.
3.10 NO FEE
No Paying Agent will charge any commission or fee in relation to any
amount received or payment made under this agreement.
3.11 TRUST
The Principal Paying Agent shall hold on trust for the Note Trustee and
the US$ Noteholders all sums held by it for the payment of principal
and interest with respect to the US$ Notes until all relevant sums are
paid to the Note Trustee or the US$ Noteholders or otherwise disposed
of in accordance with the Note Trust Deed.
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4. REPAYMENT
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(a) Immediately on any entitlement to receive principal or
interest under any US$ Note becoming void under the relevant
Conditions, the Principal Paying Agent shall repay to the
Trustee the amount which would have been due in respect of
that principal or interest if it had been paid before the
entitlement under any US$ Note became void.
(b) Despite paragraph (a) the Principal Paying Agent shall not be
obliged to make any repayment to the Trustee so long as any
amounts which should have been paid to or to the order of the
Principal Paying Agent or, if applicable, the Note Trustee by
the Trustee remain unpaid.
5. APPOINTMENT OF THE CALCULATION AGENT
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(a) The Trustee (acting on the direction of the Trust Manager)
appoints the Calculation Agent as its reference agent in
respect of the US$ Notes upon the terms and conditions set
forth in this agreement and the Calculation Agent accepts that
appointment.
(b) It is acknowledged and agreed that:
(i) the Calculation Agent is the agent of the Trustee in
its capacity as trustee of the Trust only, and
(ii) despite anything else in this agreement, any other
Transaction Document or at law, the Trustee in its
personal capacity is not responsible for any act or
omission of the Calculation Agent.
6. DUTIES OF THE CALCULATION AGENT
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(a) The Calculation Agent shall, in relation to US$ Notes, until
their final maturity or such earlier date on which the US$
Notes are due and payable in full and in either case until the
Trustee has paid all amounts due in relation to the US$ Notes
to the Principal Paying Agent or, if applicable, the Note
Trustee:
(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 at the
request of the Trustee, the Trust Manager, the Note
Trustee or the Principal Paying Agent;
(ii) determine LIBOR for each Interest Period for the US$
Notes, and calculate the relevant Interest and the
Interest Rate on the US$ Notes in each Class of US$
Notes, in the manner set out in Condition 4 and
confirm with each Currency Swap Provider that the
LIBOR determined under this agreement is the same as
LIBOR determined by that Currency Swap Provider under
the relevant Currency Swap; and
(iii) notify the Trustee, the Trust Manager, the Note
Trustee, the Paying Agents and each Currency Swap
Provider by telex or facsimile transmission on or as
soon as possible after the first day of that Interest
Period, of the Interest Rate and the
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Interest so determined by it in relation to that
Interest Period and each Class of US$ Notes, specifying
to those parties the rates upon which they are based and
(where relevant) the names of the banks quoting those
rates.
(b) The Trust Manager on behalf of the Trustee shall cause the
Interest and the Interest Rates applicable to each Class of
US$ Notes for each Interest Period together with the relevant
Payment Date, to be published (subject to clause 23, on behalf
of and at the expense of the Trustee) in accordance with the
provisions of Conditions 4 and 12, on or as soon as possible
after the commencement of the relevant Interest Period unless
the Note Trustee otherwise agrees, provided that the Trustee,
the Calculation Agent and the Note Trustee shall co-operate
with the Trust Manager in order to effect that publication.
(c) The Interest and Interest Rate for each Class of US$ Notes and
relevant Payment Date published under paragraph (b) may
subsequently be amended (or appropriate alternative
arrangements made by way of adjustment) without notice to US$
Noteholders in the event of an amendment of the Interest
Period.
(d) If the Calculation Agent at any time for any reason does not
determine the Interest Rate for or calculate the Interest
payable on a US$ Note, the Trust Manager shall do so and each
such determination or calculation shall be deemed to have been
made by the Calculation Agent. In doing so, the Trust Manager
shall apply the provisions of this clause 6, with any
necessary consequential amendments, to the extent that, in its
opinion, it can do so, and, in all other respects it shall do
so in such a manner as it reasonably considers fair and
reasonable in all the circumstances.
(e) If the Trust Manager does not at any time for any reason
determine a Principal Payment or the Principal Amount
applicable to a US$ Note in accordance with the Transaction
Documents, the Principal Payment and the Principal Amount
shall be determined by the Calculation Agent in accordance
with the Transaction Documents (but based on the information
in its possession) and each such determination or calculation
shall be deemed to have been made by the Trust Manager. The
Calculation Agent may appoint any person as its agent for the
purpose of making any such calculation or determination.
7. NOTE TRUSTEE
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At any time after an Event of Default has occurred in relation to a US$
Note or at any time after Definitive Notes have not been issued when
required in accordance with the provisions of the Transaction
Documents, the Note Trustee may:
(a) by notice in writing to the Trustee, the Trust Manager, the
Principal Paying Agent, the other Paying Agents (if any) and
the Calculation Agent, require the Principal Paying Agent, the
other Paying Agents and the Calculation Agent either:
(i) to act as Principal Paying Agent, Paying Agent and
Calculation Agent respectively of the Note Trustee on
the terms of this agreement in relation to payments to
be made by or on behalf of the Trustee under the terms
of the Note Trust Deed, except that the Note Trustee's
liability under any provisions for the
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indemnification of the Calculation Agent and the
Paying Agents shall be limited to any amount for the
time being held by the Note Trustee on the trusts of
the Note Trust Deed and which is available to be
applied by the Note Trustee for that purpose; and
(ii) to hold all Definitive Notes and all amounts,
documents and records held by them in respect of the
US$ Notes on behalf of the Note Trustee; or
(iii) to deliver up all Definitive Notes and all amounts,
documents and records held by them in respect of the
US$ Notes to the Note Trustee or as the Note Trustee
directs in that notice, other than any documents or
records which such Paying Agent or Calculation Agent
(as the case may be) is obliged not to release by any
law or regulation; and
(b) by notice in writing to the Trustee require it to make all
subsequent payments in respect of the US$ Notes to or to the
order of the Note Trustee and not to the Principal Paying
Agent and, with effect from the issue of that notice to the
Trustee and until that notice is withdrawn, clause 2.3 of the
Note Trust Deed shall not apply.
A payment by the Trustee of its payment obligations on each Payment
Date under the Series Notice and the Conditions to the Note Trustee in
accordance with paragraph (b) shall be a good discharge to the Trustee
to the extent of such payment.
8. EARLY REDEMPTION OF US$ NOTES
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(a) If the Trustee intends to redeem all (but not some only) of
the US$ Notes prior to their Maturity Date pursuant to
Condition 5(f) or 5(g) (which it may only do at the direction
of the Trust Manager), the Trust Manager shall give not less
than 5 days' prior notice to the Principal Paying Agent and
the Note Trustee before giving the requisite period of notice
to the US$ Noteholders in accordance with Condition 5(f) or
5(g) (as the case may be) and stating the Quarterly Payment
Date on which such US$ Notes are to be redeemed.
(b) The Principal Paying Agent shall, on receipt of a notice under
paragraph (a):
(i) notify the Common Depository of the proposed redemption,
specifying:
(A) the aggregate Principal Amount of US$ Notes to
be redeemed;
(B) the amount of principal to be repaid in relation
to each US$ Note; and
(C) the date on which the US$ Notes are to be
redeemed; and
(ii) promptly and in accordance with the relevant Conditions
on behalf of and, subject to clause 23, at the expense
of the Trustee publish the notices required in
connection with that redemption.
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9. PRO RATA REDEMPTION, PURCHASES AND CANCELLATION OF NOTES
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(a) If the Trustee is required to redeem the US$ Notes prior to
their Maturity Date pursuant to Condition 5(a) the Trust
Manager shall give 2 days prior notice to the Calculation
Agent, the Principal Paying Agent and the Note Trustee, as
provided in Condition 5.
(b) On receipt of a notice under paragraph (a), the Principal
Paying Agent shall notify the Common Depository of the
proposed redemption, specifying in each case the aggregate
Principal Amount of the US$ Notes to be redeemed and the date
on which such US$ Notes are to be redeemed.
(c) The Trust Manager shall, on (or as soon as practicable after)
each Determination Date, calculate:
(i) the amount of principal to be repaid in respect of
each US$ Note due on the Payment Date next following
that Determination Date; and
(ii) the Principal Amount of each US$ Note on the first
day of the next following Interest Period for the US$
Notes (after deducting any principal due to be made
on the next Payment Date),
and shall forthwith notify or cause to be notified to the
Trustee, the Calculation Agent, the Note Trustee, the
Principal Paying Agent and each Currency Swap Provider of each
of those determinations in accordance with the Series Notice.
On receipt of that notice, the Principal Paying Agent shall
give a copy of that notice to the Common Depository.
(d) The Trust Manager will immediately cause details of each
determination under paragraph (d) to be published in
accordance with Condition 12 at least one Business Day before
the relevant Payment Date.
(e) If no principal is due to be repaid on the Class A2 Notes or
the Class B1 Notes on any Payment Date, the Trust Manager
shall give notice or shall cause a notice to this effect to be
given to the Class A2 Noteholders or the Class B1 Noteholders
(as the case may be) in accordance with Condition 12.
(f) If any Notes are redeemed in whole or in part in accordance
with the Conditions and the Transaction Documents, the
Principal Paying Agent will, if any Global Notes are still
outstanding, cause the Note Registrar to record all relevant
details in the Note Register. The Principal Paying Agent shall
as soon as possible, and in any event within three months
after the date of any redemption or purchase, furnish to each
of the Trustee and the Note Trustee a certificate setting out
the aggregate Principal Amount of US$ Notes which have been
redeemed or the aggregate Principal Amount of US$ Notes which
have been purchased. If the Principal Amount of a Global Note
is reduced to nil, the Principal Paying Agent shall destroy
the relevant Global Note and issue a destruction certificate
forthwith to the Note Trustee and shall send a copy of that
certificate to the Trustee, the Trust Manager and the Note
Trustee.
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10. NOTICES TO US$ NOTEHOLDERS
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(a) Subject to clause 23, at the request and expense of the
Trustee, the Principal Paying Agent shall arrange for the
publication of all notices to US$ Noteholders in accordance
with the Conditions.
(b) The Principal Paying Agent shall promptly send to the Note
Trustee one copy of the form of every notice given to US$
Noteholders in accordance with Condition 12.
11. DOCUMENTS AND FORMS
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(a) The Trust Manager shall provide to the Principal Paying Agent
for distribution to each Paying Agent:
(i) sufficient copies of all documents required by the
Conditions or the Note Trust Deed to be available to
US$ Noteholders for issue or inspection (including the
Note Trust Deed, the Master Trust Deed and the Series
Notice);
(ii) in the event of a meeting of US$ Noteholders being
called, forms of voting certificates and block voting
instructions, together with instructions from the
Trustee (those instructions having previously been
approved by the Note Trustee) as to the manner of
completing, dealing with and recording the issue of
such forms; and
(iii) if Definitive Notes are issued, specimens of those
Definitive Notes.
(b) The Trust Manager and the Trustee shall provide to the
Calculation Agent such documents as the Calculation Agent may
reasonably require from the Trust Manager or the Trustee (and
in the case of the Trustee only those documents that are in
the Trustee's possession or power) in order for the
Calculation Agent properly to fulfil its duties in respect of
the US$ Notes.
12. AUTHENTICATION
--------------------------------------------------------------------------------
The Principal Paying Agent shall authenticate or cause to be
authenticated the Global Notes and (if required) the Definitive Notes
(whether on initial issue or on replacement).
13. INDEMNITY
--------------------------------------------------------------------------------
(a) Subject to paragraph (b) and clause 23, the Trustee shall
indemnify each Paying Agent, the Note Registrar and the
Calculation Agent against any loss, damages, proceeding,
liability, cost, claim, action, demand or expense (in this
clause 13, each, an EXPENSE) which the Paying Agent, the Note
Registrar or the Calculation Agent, as the case may be, may
incur or which may be made against such Paying Agent, the Note
Registrar or the Calculation Agent (as the case may be), as a
result of or in connection with such Paying Agent's, the Note
Registrar's or the Calculation Agent's, as the case may be,
appointment or the exercise of such Paying Agent's, the Note
Registrar's or the Calculation Agent's, as the case may be,
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powers and performance of such Paying Agent's, the Note
Registrar or the Calculation Agent's, as the case may be,
duties under this agreement, notwithstanding the resignation
or removal of that Paying Agent, the Note Registrar or the
Calculation Agent in accordance with clause 15 or clause 17
(including any liability in respect of payment of a cheque
drawn by that Paying Agent where the cheque is collected or
sued upon or an attempt at collection is made after the amount
in respect of which it is paid has been returned to the
Trustee under clause 4).
(b) The indemnity in paragraph (a) applies to any Expense of a
Paying Agent, the Note Registrar or the Calculation Agent (as
the case may be) only:
(i) to the extent the Expense does not result from the
breach by the Paying Agent, the Note Registrar or the
Calculation Agent (as the case may be) of the terms of
this agreement or from the Paying Agent's, the Note
Registrar's or the Calculation Agent's (as the case
may be) own fraud, wilful misconduct, gross negligence
or bad faith or that of its directors, officers or
employees or servants;
(ii) if and whenever the Trustee or the Trust Manager so
requires, the Paying Agent, the Note Registrar or the
Calculation Agent (as the case may be) takes any
actions or proceedings under the control and at the
expense of the Trustee as the Trustee may reasonably
require to avoid, resist or compromise that Expense.
(c) Each of the Calculation Agent, the Note Registrar and each
Paying Agent severally indemnifies the Trustee and the Trust
Manager against any Expense which the Trustee or the Trust
Manager (as the case may be) may incur or which may be made
against it as a result of a breach by the Calculation Agent,
the Note Registrar or the Paying Agent (as the case may be) of
the terms of this agreement or its own fraud, wilful
misconduct, gross negligence or bad faith or that of its
directors, officers or employees or servants, including any
failure to obtain and maintain in existence any Authorisation
required by it for the assumption, exercise and performance of
its powers and duties under this agreement.
14. THE NOTE REGISTER
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14.1 APPOINTMENT OF NOTE REGISTRAR
The Trustee appoints The Bank of New York, New York Branch to be the
initial Note Registrar. The Bank of New York, New York Branch accepts
that appointment.
14.2 DETAILS TO BE KEPT ON THE NOTE REGISTER
The Note Registrar shall keep the Note Register with respect to the
Trust in accordance with the Note Trust Deed, on which shall be entered
the following information relating to the Trust:
(a) (NAME) the name of the Trust;
(b) (CREATION) the date of the creation of the Trust;
(c) (ISSUE DATES) the Issue Dates for US$ Notes issued in relation
to the Trust;
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(d) (INITIAL PRINCIPAL AMOUNT) the total Initial Principal Amount
of each Class of US$ Notes issued on each such Issue Date;
(e) (PRINCIPAL AMOUNT) the Principal Amount of each US$ Note from
time to time;
(f) (DETAILS OF NOTEHOLDERS) the name and address of each US$
Noteholder;
(g) (NUMBER OF NOTES) the number of US$ Notes held by each US$
Noteholder;
(h) (DATE OF ENTRY) the date on which a person was entered as the
holder of US$ Notes;
(i) (DATE OF CESSATION) the date on which a person ceased to be a
US$ Noteholder;
(j) (ACCOUNT) the account to which any payments due to a US$
Noteholder are to be made (if applicable);
(k) (PAYMENTS) a record of each payment in respect of the US$
Notes; and
(l) (ADDITIONAL INFORMATION) such other information as:
(i) is required by the Series Notice;
(ii) the Note Registrar considers necessary or desirable;
or
(iii) the Trust Manager or the Trustee reasonably requires
in writing with respect to US$ Notes.
14.3 PAYMENTS OF PRINCIPAL AND INTEREST
(a) Any payment of principal or interest on any US$ Note shall be
endorsed by the Note Registrar on the Note Register. In the
case of payments of principal, the Principal Amount of the US$
Notes shall be reduced for all purposes by the amount so paid
and endorsed on the Note Register. Any such record shall be
prima facie evidence that the payment in question has been
made.
(b) If the amount of principal or interest (as the case may be)
due for payment on any US$ Note is not paid in full (including
by reason of a deduction or withholding) the Note Registrar
shall endorse a record of that shortfall on the Note Register.
14.4 PLACE OF KEEPING REGISTER, COPIES AND ACCESS
The Note Register shall be:
(a) (PLACE KEPT) kept at the principal office of the Note
Registrar or at such place as the Trustee, the Trust Manager
and the Note Registrar may agree;
(b) (ACCESS TO TRUST MANAGER AND AUDITOR) open to the Trustee, the
Trust Manager and the Auditor of the Trust to inspect during
normal business hours;
(c) (INSPECTION BY US$ NOTEHOLDERS) open for inspection by a US$
Noteholder during normal business hours but only in respect of
information relating to that US$ Noteholder; and
(d) (NOT FOR COPYING) not available to be copied by any person
(other than the Trustee or the Trust Manager) except in
compliance with such terms and conditions (if any) as the
Trust Manager, the Trustee and the Note Registrar in their
absolute discretion nominate from time to time.
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14.5 DETAILS ON NOTE REGISTER CONCLUSIVE
(a) (RELIANCE ON REGISTER) The Trustee shall be entitled to rely
on the Note Register as being a correct, complete and
conclusive record of the matters set out in it at any time and
whether or not the information shown in the Note Register is
inconsistent with any other document, matter or thing. The
Trustee is not liable to any person in any circumstances
whatsoever for any inaccuracy in, or omission from, the Note
Register.
(b) (NO TRUSTS ETC) The Note Registrar shall not be obliged to
enter on the Note Register notice of any trust, Security
Interest or other interest whatsoever in respect of any US$
Notes and the Trustee shall be entitled to recognise a US$
Noteholder as the absolute owner of US$ Notes and the Trustee
shall not be bound or affected by any trust affecting the
ownership of any US$ Notes unless ordered by a court or
required by statute.
14.6 ALTERATION OF DETAILS ON NOTE REGISTER
On the Note Registrar being notified of any change of name or address
or payment or other details of a US$ Noteholder by the US$ Noteholder,
the Note Registrar shall alter the Note Register accordingly.
14.7 RECTIFICATION OF NOTE REGISTER
If:
(a) an entry is omitted from the Note Register;
(b) an entry is made in the Note Register otherwise than in
accordance with this agreement;
(c) an entry wrongly exists in the Note Register;
(d) there is an error or defect in any entry in the Note Register;
or
(e) default is made or unnecessary delay takes place in entering
in the Note Register that any person has ceased to be the
holder of US$ Notes,
the Note Registrar may rectify the same.
14.8 CORRECTNESS OF NOTE REGISTER
The Note Registrar shall not be liable for any mistake, error or
omission on the Note Register or in any purported copy except to the
extent that the mistake, error or omission is attributable to its
fraud, gross negligence or wilful default.
15. CHANGES OF NOTE REGISTRAR
--------------------------------------------------------------------------------
15.1 REMOVAL
The Trustee (or the Trust Manager on its behalf after advising the
Trustee) may terminate the appointment of the Note Registrar with the
prior written approval of the Note Trustee (which approval must not be
unreasonably withheld or delayed), with effect not less than 60 days
from that notice.
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15.2 RESIGNATION
Subject to this clause 15 the Note Registrar may resign its appointment
at any time by giving to the Trustee, the Trust Manager and the Note
Trustee not less than 60 days written notice to that effect.
15.3 LIMITATION
Despite clauses 15.1 and 15.2:
(a) no resignation by or termination of the appointment of the
Note Registrar shall take effect until a new Note Registrar
approved in writing by the Note Trustee has been appointed on
terms previously approved in writing by the Note Trustee (in
each case, that approval not to be unreasonably withheld or
delayed); and
(b) the appointment of a new Note Registrar shall be on the terms
and subject to the conditions of this agreement and the
outgoing Note Registrar shall co-operate fully to do all
further acts and things and execute any further documents as
may be necessary or desirable to give effect to the
appointment of the new Note Xxxxxxxxx.
00. GENERAL
--------------------------------------------------------------------------------
16.1 MEETINGS OF US$ NOTEHOLDERS
In the event of a meeting of the US$ Noteholders (including an
adjourned meeting), the Principal Paying Agent shall issue voting
certificates and block voting instructions and otherwise act as
provided in the Note Trust Deed. Each Paying Agent will:
(a) keep a full and complete record of all voting certificates
and/or block voting instructions issued by it; and
(b) deliver to the Trustee, the Trust Manager and the Note 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 including, without
limitation, clause 7, each Paying Agent, the Calculation Agent and the
Note Registrar shall act solely for and as agent of the Trustee and
shall not have any obligations towards or relationship of agency or
trust with any person entitled to receive payments of principal and/or
interest on the US$ Notes and shall 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:
(a) who is, while a Global Note remains outstanding, the
registered owner of that Global Note as the person entitled to
receive payments of principal or interest (as applicable) and
each person shown in the records of the Common Depository as
the holder of any US$ Note represented by a Global Note shall
be entitled to receive from the registered owner of that
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Global Note any payment so made in accordance with the
respective rules and procedures of the Common Depository and
on the terms and subject to the conditions of that Global
Note;
(b) who is the registered owner of any Definitive Note as the
absolute owner or owners of that Definitive Note (whether or
not that 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); or
(c) who, when a Global Note is no longer outstanding but
Definitive Notes in respect of the US$ 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 US$ Noteholders,
and in all cases and for all purposes 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 in any payment to,
any person entitled to receive amounts of principal or interest on the
US$ Notes in respect of moneys payable by it under this agreement.
16.5 RELIANCE
Each of the Calculation Agent, the Note Registrar and the Paying Agents
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 Trustee or the Trust Manager or
in reliance upon any US$ Note or upon any notice, resolution,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been
delivered, signed or sent by the proper party or parties.
16.6 ENTITLED TO DEAL
None of the Calculation Agent, the Note Registrar or the Paying Agents
shall be precluded from acquiring, holding or dealing in any US$ Notes
or from engaging or being interested in any contract or other financial
or other transaction with the Trustee, the Trust Manager or the
Servicer as freely as if it were not an agent of the Trustee under this
agreement and in no event whatsoever (other than fraud, wilful
misconduct, gross negligence or bad faith) shall any Paying Agent, the
Note Registrar or the Calculation Agent be liable to account to the
Trustee or any person entitled to receive amounts of principal or
interest on the US$ Notes for any profit made or fees or commissions
received in connection with this agreement or any US$ Notes.
16.7 CONSULTATION
Each of the Calculation Agent, the Note Registrar and the Paying Agents
may consult as to legal matters with lawyers selected by it, who may be
employees of or lawyers to the Trustee, the Trust Manager, the relevant
Paying Agent, the Note Registrar or the Calculation Agent.
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16.8 DUTIES
Each of the Calculation Agent, the Note Registrar and the Paying Agents
shall perform the duties, and only the duties, contained in or
reasonably incidental to this agreement and the Conditions and in the
US$ Notes and no implied duties or obligations (other than general laws
as to agency) shall be read into this agreement or the US$ Notes
against any Paying Agents, the Note Registrar or the Calculation Agent.
None of the Calculation Agent, the Note Registrar or the Paying Agents
shall be required to take any action under this agreement which would
require it to incur any expense or liability, for which (in its
reasonable opinion) either it would not be reimbursed within a
reasonable time or in respect of which it has not been indemnified to
its satisfaction.
17. CHANGES IN PAYING AGENTS AND CALCULATION AGENT
--------------------------------------------------------------------------------
17.1 REMOVAL
The Trustee (or the Trust Manager with the consent of the Trustee (such
consent not to be unreasonably withheld)) may at any time:
(a) with the prior written approval of the Note Trustee appoint:
(i) additional or alternative Paying Agents; or
(ii) an alternative Calculation Agent;
(b) subject to this clause 17, terminate the appointment of any
Paying Agent or the Calculation Agent by giving written notice
to that effect to each Designated Rating Agency, the
Calculation Agent (if its appointment is to be terminated),
the Principal Paying Agent and (if different) the Paying Agent
whose appointment is to be terminated:
(i) with effect immediately on that notice, if any of the
following occurs in relation to the Paying Agent or
Calculation Agent (as the case may be):
(A) an Insolvency Event has occurred in relation
to the Paying Agent or Calculation Agent;
(B) the Paying Agent or Calculation Agent has
ceased its business;
(C) the Paying Agent or Calculation 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 Paying Agent or
the Calculation Agent, as the case may be,
having become aware or that failure and (2)
the receipt by the Paying Agent or the
Calculation Agent, as the case may be, of
written notice with respect thereto from the
Trustee or Trust Manager; or
(ii) otherwise, with the prior written approval of the Note
Trustee (which approval must not be unreasonably
withheld or delayed) 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 US$ Notes.
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17.2 RESIGNATION
Subject to this clause 17, a Paying Agent or the Calculation Agent may
resign its appointment under this agreement at any time by giving to
the Trustee, 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 30 days before or 30 days after any due date for payment of any
US$ Notes.
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 approved in writing by the Note Trustee has been
appointed on terms previously approved in writing by the Note
Trustee (in each case, that approval not to be unreasonably
withheld or delayed);
(b) subject to clause 17.3(a), if any Paying Agent or the
Calculation 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 Trustee or the Trust Manager has not
appointed a new Paying Agent or Calculation Agent then the
relevant Paying Agent or Calculation Agent (as the case may
be) may appoint in its place any reputable bank or trust
company of good standing approved in writing by the Note
Trustee and appointed on terms previously approved in writing
by the Note Trustee (in each case, that approval not to be
unreasonably withheld or delayed);
(c) no appointment or termination of the appointment of any Paying
Agent or the Calculation Agent (as the case may be) shall take
effect unless and until notice has been given to the US$
Noteholders in accordance with the Conditions;
(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 further acts and things and execute any further documents
as may be necessary or desirable to give effect to the
appointment of the Paying Agent (which shall not, except in
the case of an appointment under clause 17.1(a) or a
termination under clause 17.1(b)(ii) or a resignation under
clause 17.2, be at the cost of the Trustee or Trust Manager).
(e) In addition, the Trustee at the direction of the Trust Manager
shall forthwith appoint a Paying Agent in New York City in the
circumstances described in Condition 6(b) (if there is no such
Paying Agent at the time) and while such circumstances subsist
maintain such a Paying Agent. Notice of any such termination
or appointment and of any change in the office through which
any Paying Agent will act will be given by the Trust Manager
on behalf of the Trustee in accordance with Condition 12.
17.4 DELIVERY OF AMOUNTS
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 US$
Note and shall deliver to
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the successor Principal Paying Agent all records maintained by it
pursuant to this agreement and all documents (including any Definitive
Notes) held by it.
17.5 SUCCESSOR PAYING AGENTS
(a) On the execution by the Trustee, the Trust Manager and any
successor Paying Agent of an instrument effecting the
appointment of that successor Paying Agent, that successor
Paying 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 with effect as if originally named as Paying 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 Paying Agent is appointed.
(b) Any corporation:
(i) into which a Paying Agent is merged;
(ii) with which a Paying Agent is consolidated;
(iii) resulting from any merger or consolidation to which a
Paying Agent is a party;
(iv) to which a Paying 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 Paying
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 Trustee or the Trust Manager, and after that effective
date all references in this agreement to a Paying Agent (or in
the case of a successor Principal Paying Agent, to the
Principal Paying Agent) shall be references to that
corporation.
17.6 SUCCESSOR TO CALCULATION AGENT
(a) On the execution by the Trustee, the Trust Manager and any
successor Calculation Agent of an instrument effecting the
appointment of that successor Calculation Agent, that
successor Calculation 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 with effect as if originally named as
Calculation 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
Calculation Agent is appointed.
(b) Any corporation:
(i) into which the Calculation Agent is merged;
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(ii) with which the Calculation Agent is consolidated;
(iii) resulting from any merger or consolidation to which
the Calculation Agent is a party;
(iv) to which the Calculation 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 the successor
Calculation 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 Trustee or the Trust Manager, and after that
effective date all references in this agreement to the
Calculation Agent shall be references to that corporation.
17.7 NOTICE TO US$ NOTEHOLDERS
The Trust Manager on behalf of the Trustee shall, within 14 days of:
(a) the termination of the appointment of any Paying Agent or the
Calculation Agent;
(b) the appointment of a new Paying Agent or Calculation Agent; or
(c) the resignation of any Paying Agent or Calculation Agent,
give to the US$ Noteholders notice of the termination, appointment or
resignation in accordance with Condition 12 (in the case of a
termination under clause 17.1(b)(i) at the cost of the outgoing Paying
Agent or the Calculation Agent, as the case may be).
17.8 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
Trustee, the Trust Manager, the Note 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. No change of Paying Office
may occur within the period between 30 days before and 30 days
after any due date for payment of any US$ Notes.
(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 Trustee and the
Trust Manager agree from time to time), or to nominate a
further Specified Office, it must give to the Trustee, the
Trust Manager and the Note 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 Trustee, must, within 14
days of receipt of a notice under paragraph (a) (unless the
appointment is to terminate pursuant to clause 17.1 on or
prior to the date of that change) give to the US$ Noteholders
notice in accordance with the
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Conditions 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 Trustee shall pay to the Principal Paying Agent during the
period when any of the US$ Notes remain outstanding the
administration fee separately agreed by the Principal Paying
Agent and the Trustee, together with any out-of-pocket
expenses properly incurred (including any legal fees and
expenses). If the appointment of the Principal Paying Agent is
terminated under this agreement, the Principal Paying Agent
must refund to the Trustee that proportion of the fee (if any)
which relates to the period during which the Principal Paying
Agent will not be the Principal Paying Agent.
(b) The Trustee shall pay to the Calculation Agent during the
period when any of the US$ Notes remain outstanding the fee
separately agreed by the Calculation Agent, the Trust Manager
and the Trustee, together with any out-of-pocket expenses
properly incurred (including any legal fees and expenses). If
the appointment of the Calculation Agent is terminated under
this agreement, the Calculation Agent must refund to the
Trustee that proportion of the fee (if any) which relates to
the period during which the Calculation Agent will not be the
Calculation Agent.
(c) The Trustee shall pay to the Note Registrar during the period
when any of the US$ Notes remain outstanding the fee
separately agreed by the Note Registrar, the Trust Manager and
the Trustee, together with any out-of-pocket expenses
reasonably incurred (including any legal fees and expenses).
If the appointment of the Note Registrar is terminated under
this agreement, the Note Registrar must refund to the Trustee
that proportion of the fee (if any) which relates to the
period during which the Note Registrar will not be the Note
Registrar.
(d) Save as provided in paragraphs (a), (b) and (c), or as
expressly provided elsewhere in this agreement, neither the
Trustee nor the Trust Manager shall have any liability in
respect of any fees or expenses of the Calculation Agent, Note
Registrar, Principal Paying Agent or any other Paying Agent in
connection with this agreement.
(e) The above fees, payments and expenses shall be paid in US
dollars and the Trustee shall in addition pay any GST which
may be applicable. The Principal Paying Agent shall arrange
for payment of commissions to the other Paying Agents and
arrange for the reimbursement of their expenses promptly upon
demand, supported by evidence of that expenditure, and
provided that payment is made as required by paragraph (a) the
Trustee 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.
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(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
--------------------------------------------------------------------------------
No party may assign or transfer any of its rights or obligations under
this agreement without the prior written consent of the other parties,
or if the rating of any US$ Notes would be withdrawn or reduced as a
result of the assignment, except for the creation of a charge by the
Trustee under the Security Trust Deed.
22. NOTICES
--------------------------------------------------------------------------------
22.1 GENERAL
All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the
recipient shown in clause 22.2 or to any other address
which it may have notified by the recipient to the
sender under this clause 22;
(ii) (in the case of facsimile transmission) on receipt of
a transmission report confirming successful
transmission to the number shown in clause 22.2 or any
other number notified by the recipient to the sender
under this clause 22; and
(iii) (in the case of a telex) on receipt by the sender of
the answerback code of the recipient at the end of
transmission to the number shown in clause 22.2 or any
other number notified by the recipient to the sender
under this clause 22 (with the exception of the
Trustee, which cannot receive any notices by telex),
but if delivery or receipt is on a day on which business is
not generally carried on in the place to which the
communication is sent or is later than 4.00 pm (local time),
it will be taken to have been duly given or made at the
commencement of business on the next day on which business is
generally carried on in that place.
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AGENCY AGREEMENT Allens Xxxxxx Xxxxxxxx
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Any party may by notice to each party change its address,
facsimile, telex or telephone number under this clause 22.1.
22.2 DETAILS
The address, facsimile and telex of each party at the date of this
agreement are as follows:
THE TRUSTEE
PERPETUAL TRUSTEES VICTORIA LIMITED
Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel: 00 0 0000 0000
Fax: 00 0 0000 0000
Attention: Manager - Securitisation
THE TRUST MANAGER
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Xxxxxxxxx
Tel: 00 0 0000 0000
Fax: 00 0 0000 0000
Attention: Chief Executive Officer
THE SERVICER
INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED
Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Xxxxxxxxx
Tel: 00 0 0000 0000
Fax: 00 0 0000 0000
Attention: Chief Executive Officer
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AGENCY AGREEMENT Allens Xxxxxx Xxxxxxxx
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THE NOTE TRUSTEE
THE BANK OF NEW YORK, NEW YORK BRANCH
000 Xxxxxxx Xxxxxx
00X Xxx Xxxx
Xxx Xxxx 00000
Xxxxxx Xxxxxx
Tel: 00 000 000 0000 (c/o London)
Telex: N/A
Fax: 00 000 000 0000 (c/o London)
Attention: Corporate Trust - Global Structured Finance
with a copy to:
THE BANK OF NEW YORK, LONDON BRANCH
Xxx Xxxxxx Xxxxxx
Xxxxxx, X00 0XX
Xxxxxx Xxxxxxx
THE PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, NEW YORK BRANCH
000 Xxxxxxx Xxxxxx
00X Xxx Xxxx
Xxx Xxxx 00000
Xxxxxx Xxxxxx
Tel: 00 000 000 0000 (c/o London)
Telex: N/A
Fax: 00 000 000 0000 (c/o London)
Attention: Corporate Trust - Global Structured Finance
with a copy to:
THE BANK OF NEW YORK, LONDON BRANCH
Xxx Xxxxxx Xxxxxx
Xxxxxx, X00 0XX
Xxxxxx Xxxxxxx
THE NOTE REGISTRAR
THE BANK OF NEW YORK, NEW YORK BRANCH
000 Xxxxxxx Xxxxxx
00X Xxx Xxxx
Xxx Xxxx 00000
Xxxxxx Xxxxxx
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AGENCY AGREEMENT Allens Xxxxxx Xxxxxxxx
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Tel: 00 000 000 0000 (c/o London)
Telex: N/A
Fax: 00 000 000 0000 (c/o London)
Attention: Corporate Trust - Global Structured Finance
with a copy to:
THE BANK OF NEW YORK, LONDON BRANCH
Xxx Xxxxxx Xxxxxx
Xxxxxx, X00 0XX
Xxxxxx Xxxxxxx
22.3 COMMUNICATION THROUGH PRINCIPAL PAYING AGENT
All communications relating to this agreement between the Trustee or
the Trust Manager, the Note Registrar and the Calculation Agent and any
of the Paying Agents or between the Paying Agents themselves shall,
save as otherwise provided in this agreement, be made through the
Principal Paying Agent.
23. LIMITED RECOURSE
--------------------------------------------------------------------------------
23.1 GENERAL
Clause 32 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Trust Manager under this agreement.
23.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT TO INDEMNITY
(a) The Trustee enters into the Transaction Documents and issues
the Notes only in its capacity as trustee of the Trust and in
no other capacity. A liability incurred by the Trustee acting
in its capacity as trustee of the Trust arising under or in
connection with the Transaction Documents or the Trust or in
respect of the Notes is limited to and can be enforced against
the Trustee only to the extent to which it can be satisfied
out of the Assets of the Trust out of which the Trustee is
actually indemnified for the liability. This limitation of the
Trustee's liability applies despite any other provision of the
Transaction Documents and extends to all liabilities and
obligations of the Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to the Transaction Documents or the Trust.
(b) The parties other than the Trustee may not xxx the Trustee in
any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except in relation to the Assets of
the Trust), liquidator, administrator or similar person to the
Trustee or prove in any liquidation, administration or
arrangements of or affecting the Trustee (except in relation
to the Assets of the Trust).
(c) The provisions of this clause 23.2 do not apply to any
obligation or liability of the Trustee to the extent that it
is not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Trustee's indemnification out of the Assets of the Trust as a
result of the Trustee's fraud, negligence, or wilful default.
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AGENCY AGREEMENT Allens Xxxxxx Xxxxxxxx
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(d) It is acknowledged that the Relevant Parties are responsible
under the Transaction Documents for performing a variety of
obligations relating to the Trust. No act or omission of the
Trustee (including any related failure to satisfy its
obligations or breach of representation or warranty under the
Transaction Documents) will be considered fraud, negligence or
wilful default of the Trustee for the purpose of paragraph
(iii) of this clause 23.2 to the extent to which the act or
omission was caused or contributed to by any failure by the
Relevant Parties (other than a person whose acts or omissions
the Trustee is liable for in accordance with the Transaction
Documents) to fulfil its obligations relating to the Trust or
by any other act or omission of the Relevant Parties (other
than a person whose acts or omissions the Trustee is liable
for in accordance with the Transaction Documents) regardless
of whether or not that act or omission is purported to be done
on behalf of the Trustee.
(e) No attorney, agent, receiver or receiver and manager appointed
in accordance with a Transaction Document has authority to act
on behalf of the Trustee in a way which exposes the Trustee to
any personal liability and no act or omission of any such
person will be considered fraud, negligence or wilful default
of the Trustee for the purpose of paragraph (c) of this clause
23.2, provided (in the case of any person selected and
appointed by the Trustee) that the Trustee has exercised
reasonable care in the selection of such persons.
(f) In this clause 23.2, "RELEVANT PARTY" means each of the Trust
Manager, the Servicer, the Calculation Agent, each Paying
Agent, the Note Trustee and any Support Facility Provider.
23.3 UNRESTRICTED REMEDIES
Nothing in clause 23.2 limits a Paying Agent or the Calculation Agent
in:
(a) obtaining an injunction or other order to restrain any breach
of this agreement by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
23.4 RESTRICTED REMEDIES
Except as provided in clauses 23.3 and 23.2(c) neither any Paying Agent
nor the Calculation Agent shall:
(a) (JUDGMENT) obtain a judgment for the payment of money or
damages by the Trustee;
(b) (STATUTORY DEMAND) issue any demand under s459E(1) of the
Corporations Act (or any analogous provision under any other
law) against the Trustee;
(c) (WINDING UP) apply for the winding up or dissolution of the
Trustee;
(d) (EXECUTION) levy or enforce any distress or other execution
to, on, or against any assets of the Trustee;
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a
court of a receiver to any of the assets of the Trustee;
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Trustee; or
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AGENCY AGREEMENT Allens Xxxxxx Xxxxxxxx
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(g) (ADMINISTRATOR) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and each Paying Agent and the
Calculation Agent waives its rights to make those applications and take
those proceedings.
24. COUNTERPARTS
--------------------------------------------------------------------------------
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
25. 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.
26. SUCCESSOR TRUSTEE
--------------------------------------------------------------------------------
Each Paying Agent, the Calculation Agent and the Note Registrar shall
do all things reasonably necessary to enable any successor Trustee
appointed under clause 23 of the Master Trust Deed to become the
Trustee under this agreement.
EXECUTED as an agreement.
Each attorney executing this agreement states that he has no notice of
revocation or suspension of his power of attorney.
TRUSTEE
SIGNED on behalf of )
PERPETUAL TRUSTEES VICTORIA LIMITED )
)
in the presence of: )
-----------------------------------------
Signature
----------------------------------- -----------------------------------------
Signature Print name
----------------------------------- -----------------------------------------
Print name Office held
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AGENCY AGREEMENT Allens Xxxxxx Xxxxxxxx
-------------------------------------------------------------------------------
TRUST MANAGER
SIGNED on behalf of )
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED )
)
in the presence of: )
-----------------------------------------
Signature
----------------------------------- -----------------------------------------
Signature Print name
----------------------------------- -----------------------------------------
Print name Office held
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AGENCY AGREEMENT Allens Xxxxxx Xxxxxxxx
-------------------------------------------------------------------------------
SERVICER
SIGNED on behalf of )
INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED )
)
in the presence of: )
-----------------------------------------
Signature
----------------------------------- -----------------------------------------
Signature Print name
----------------------------------- -----------------------------------------
Print name Office held
NOTE TRUSTEE
SIGNED on behalf of )
THE BANK OF NEW YORK, LONDON BRANCH )
)
in the presence of: )
-----------------------------------------
Signature
----------------------------------- -----------------------------------------
Signature Print name
----------------------------------- -----------------------------------------
Print name Office held
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AGENCY AGREEMENT Allens Xxxxxx Xxxxxxxx
-------------------------------------------------------------------------------
PRINCIPAL PAYING AGENT
SIGNED on behalf of )
THE BANK OF NEW YORK, NEW YORK BRANCH )
)
in the presence of: )
-----------------------------------------
Signature
----------------------------------- -----------------------------------------
Signature Print name
----------------------------------- -----------------------------------------
Print name Office held
CALCULATION AGENT
SIGNED on behalf of )
THE BANK OF NEW YORK, NEW YORK BRANCH )
)
in the presence of: )
-----------------------------------------
Signature
----------------------------------- -----------------------------------------
Signature Print name
----------------------------------- -----------------------------------------
Print name Office held
NOTE REGISTRAR
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AGENCY AGREEMENT Allens Xxxxxx Xxxxxxxx
-------------------------------------------------------------------------------
SIGNED on behalf of )
THE BANK OF NEW YORK, NEW YORK BRANCH )
in the presence of: )
-----------------------------------------
Signature
----------------------------------- -----------------------------------------
Signature Print name
----------------------------------- -----------------------------------------
Print name Office held
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Page 31
