Agency Agreement
PERPETUAL TRUSTEES VICTORIA LIMITED
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED
THE BANK OF NEW YORK, NEW YORK BRANCH
THE BANK OF NEW YORK (LUXEMBOURG) S.A.
Interstar Millennium Trusts
Interstar Millennium Series 2002-1G Trust
ALLENS ARTHUR ROBINSON
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allens Arthur Robinson 2002
Agency Agreement [Allens Arthur Robinson Logo]
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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 4
1.6 Trustee as trustee 4
2. APPOINTMENT OF PAYING AGENTS 4
3. PAYMENT 4
3.1 Payment by Trustee 4
3.2 Confirmation 5
3.3 Payments by Paying Agents 5
3.4 Method of Payment - Global Note 5
3.5 Method of payment - Definitive Notes 5
3.6 Late payment 5
3.7 Notice of non-receipt 6
3.8 Reimbursement 6
3.9 Method of payment 6
3.10 No fee 7
3.11 Trust 7
4. REPAYMENT 7
5. APPOINTMENT OF THE CALCULATION AGENT 7
6. DUTIES OF THE CALCULATION AGENT 7
7. NOTE TRUSTEE 9
8. EARLY REDEMPTION OF CLASS A2 NOTES 9
9. PRO RATA REDEMPTION, PURCHASES AND CANCELLATION OF NOTES 10
10. NOTICES TO CLASS A2 NOTEHOLDERS 11
11. DOCUMENTS AND FORMS 11
12. AUTHENTICATION 12
13. INDEMNITY 12
14. THE NOTE REGISTER 13
14.1 Appointment of Note Registrar 13
14.2 Details to be kept on the Note Register 13
14.3 Payments of Principal and Interest 14
14.4 Place of keeping Register, copies and access 14
14.5 Details on Note Register conclusive 14
14.6 Alteration of details on Note Register 14
14.7 Rectification of Note Register 15
14.8 Correctness of Note Register 15
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15. CHANGES OF NOTE REGISTRAR 15
15.1 Removal 15
15.2 Resignation 15
15.3 Limitation 15
16. GENERAL 16
16.1 Meetings of Class A2 Noteholders 16
16.2 Agency 16
16.3 Identity 16
16.4 No set-off 17
16.5 Reliance 17
16.6 Entitled to deal 17
16.7 Consultation 17
16.8 Duties 17
17. CHANGES IN PAYING AGENTS AND CALCULATION AGENT 18
17.1 Removal 18
17.2 Resignation 18
17.3 Limitation 18
17.4 Delivery of amounts 19
17.5 Successor Paying Agents 20
17.6 Successor to Calculation Agent 20
17.7 Notice to Class A2 Noteholders 21
17.8 Change in Paying Office or Specified Office 21
18. FEES AND EXPENSES 22
19. WAIVERS, REMEDIES CUMULATIVE 22
20. SEVERABILITY OF PROVISIONS 23
21. ASSIGNMENTS 23
22. NOTICES 23
22.1 General 23
22.2 Details 24
22.3 Communication through Principal Paying Agent 25
23. LIMITED RECOURSE 26
23.1 General 26
23.2 Liability of Trustee limited to its right to indemnity 26
23.3 Unrestricted remedies 27
23.4 Restricted remedies 27
24. COUNTERPARTS 28
25. GOVERNING LAW 28
26. SUCCESSOR TRUSTEE 28
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DATE 2002
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PARTIES
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1. PERPETUAL TRUSTEES VICTORIA LIMITED (ABN 42 004 027 258) of Level 4,
333 Collins Street, Melbourne, Victoria in its capacity as trustee of
Interstar Millennium Series 2002-1G Trust (the TRUSTEE);
2. INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED (ACN 100 346 898) of
Level 28, 367 Collins Street, Melbourne, Victoria in its capacity as
Trust Manager (the TRUST MANAGER);
3. INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED (ABN 72 087 271 109) of
Level 31, 367 Collins Street, Melbourne, Victoria in its capacity as
Trust Manager (the SERVICER);
4. THE BANK OF NEW YORK, NEW YORK BRANCH as principal paying agent for
the Class A2 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 Class A2 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 Class A2
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 Class A2
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); and
5. THE BANK OF NEW YORK (LUXEMBOURG) S.A. as Luxembourg paying agent
(the LUXEMBOURG PAYING AGENT), which expression shall, wherever the
context requires, include any successor Luxembourg paying agent from
time to time under this agreement).
RECITALS
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A The Trustee proposes to issue US$[1,000,000,000] of Class A2 Mortgage
Backed Pass Through Floating Rate Notes due 2033.
B The Class A2 Notes, upon original issue, will be issued in the form
of a Global Note. The Trustee shall, on the date of this deed,
deliver or arrange the delivery on its behalf of the Global Note to
the Principal Paying Agent, as agent for the Clearing Agency. The
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 Class
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A2 Note Owner will receive a Definitive Note representing such Class
A2 Note Owner's interest in such Class A2 Note, except as provided in
the Note Trust Deed.
C The Class A2 Notes will be constituted by the Note Trust Deed, the
Series Notice and the Master Trust Deed.
D The Class A2 Notes will be secured on the terms of the Security Trust
Deed.
E The Trustee wishes to appoint the Principal Paying Agent as principal
paying agent in respect of the Class A2 Notes and has entered into
this agreement to provide for the terms and conditions of that
appointment.
F The Trustee wishes to appoint the Luxembourg Paying Agent as its
paying agent in Luxembourg in respect of the Class A2 Notes and has
entered into this agreement to provide for the terms and conditions
of that appointment.
G The Trustee wishes to appoint the Calculation Agent as its reference
agent in respect of the Class A2 Notes and has entered into this
agreement to provide for the terms and conditions of that
appointment.
H The Trustee wishes to appoint the Note Registrar as note registrar in
respect of the Class A2 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
[*] 2002 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 and
the Luxembourg Paying Agent.
PAYING OFFICE means, in relation to a Paying Agent, the office of the
Paying Agent specified in the Class A2 Notes or otherwise under this
agreement or the Note Trust Deed as the office at which payments in
respect of the Class A2 Notes will be made as changed from time to time
in accordance with this agreement.
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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 2002-1G
Trust established under the Notice of Creation of Trust, the Master
Trust Deed and the Series Notice.
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:
(c) (i) definition in this agreement;
(d) (ii) definition in the Series Notice;
(e) (iii) definition in the Master Trust Deed;
(f) (iv) definition in the Note Trust Deed;
(g) (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.
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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
(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, the Luxembourg Paying Agent as its
paying agent with a Paying Office in Luxembourg and each other
Paying Agent as its paying agent, for making payments in respect of
the Class A2 Notes in accordance with the Transaction Documents and
the Conditions at their respective Paying Offices. The Principal
Paying Agent, the Luxembourg Paying Agent, and each other Paying
Agent appointed under this agreement accepts that 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
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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 the Class A2
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.
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 Class A2 Notes in accordance with the Series Notice and
the Conditions.
3.4 METHOD OF PAYMENT - GLOBAL NOTE
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
Class A2 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 the 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
Class A2 Notes as provided in this clause 3. However, unless and
until the full amount of any payment in respect of the Class A2
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 Class
A2 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
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(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 Class A2 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 Class A2 Note is
not unconditionally received by it or to its order in accordance with
this agreement.
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
the Currency Swap, be paid by the 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
Class A2 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.
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3.10 NO FEE
No Paying Agent will charge any commission or fee in relation to any
payment under this agreement.
3.11 TRUST
The Principal Paying Agent shall hold in trust for the Note Trustee and
the Class A2 Noteholders all sums held by it for the payment of
principal and interest with respect to the Class A2 Notes until all
relevant sums are paid to the Note Trustee or the Class A2 Noteholders
or otherwise disposed of in accordance with the Note Trust Deed.
4. REPAYMENT
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(a) Immediately on any entitlement to receive principal or interest
under any Class A2 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 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
Class A2 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 Class A2 Notes, until
their final maturity or such earlier date on which the Class A2
Notes are due and payable in full and in either case until the
Trustee has paid all amounts in relation to the Class A2 Notes to
the Principal Paying Agent or, if applicable, the Note Trustee:
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(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, and calculate the
relevant Interest and the Interest Rate on the Class A2
Notes, in the manner set out in Condition 4 and confirm with
the Currency Swap Provider that the LIBOR determined under
this agreement is the same as LIBOR determined by the
Currency Swap Provider under the Currency Swap; and
(iii) notify the Trustee, the Trust Manager, the Note Trustee, the
Paying Agents, the Currency Swap Provider and the Luxembourg
Stock Exchange (for so long as the Class A2 Notes are listed
on the Luxembourg Stock Exchange) 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 Interest
so determined by it in relation to that Interest Period,
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 the Class A2 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, Interest Rate and relevant Payment Date published
under paragraph (b) may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without notice
to Class A2 Noteholders in the event of a shortening 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 Class A2 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 Class A2
Notes 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
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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
Class A2 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, Luxembourg 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 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 Class A2 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 Class A2 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 Class A2 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 CLASS A2 NOTES
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(a) If the Trustee intends to redeem all (but not some only) of the
Class A2 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 Class A2 Noteholders
in accordance with
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Condition 5(f) or 5(g) (as the case may be) and stating the date on
which such Class A2 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 Class A2 Notes to be
redeemed;
(B) the amount of principal to be repaid in relation to each
Class A2 Note; and
(C) the date on which the Class A2 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.
9. PRO RATA REDEMPTION, PURCHASES AND CANCELLATION OF NOTES
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(a) If the Trustee is required to redeem the Class A2 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 Class A2 Notes to be redeemed and the date on which such
Class A2 Notes are to be redeemed.
(c) For so long as the Class A2 Notes are listed on the Luxembourg
Stock Exchange, the Trust Manager on behalf of the Trustee shall
ensure that notice of the matters referred to in paragraph (a) is
provided to the Luxembourg Stock Exchange or such other alternative
exchange as agreed between the Trustee, the Note Trustee and the
Trust Manager (if required).
(d) The Servicer shall, on (or as soon as practicable after) each
Determination Date, calculate:
(i) the amount of principal to be repaid in respect of each Class
A2 Note due on the Payment Date next following that
Determination Date; and
(ii) the Principal Amount of each Class A2 Note on the first day of
the next following Interest Period (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 Trust Manager, the Calculation Agent, the Note Trustee, the
Principal Paying Agent and the 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.
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(e) 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.
(f) If no principal is due to be repaid on the Class A2 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 in
accordance with Condition 12.
(g) 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 Class A2
Notes which have been redeemed or the aggregate Principal Amount of
Class A2 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.
10. NOTICES TO CLASS A2 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 Class A2 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 Class A2 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 Class A2
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 Class A2 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.
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(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 Class A2 Notes.
12. AUTHENTICATION
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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
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(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, 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,
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.
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(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, 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 Class A2 Notes issued in relation
to the Trust;
(d) (INITIAL PRINCIPAL AMOUNT) the total Initial Principal Amount of
Class A2 Notes issued on each such Issue Date;
(e) (PRINCIPAL AMOUNT) the Principal Amount of each Class A2 Note from
time to time;
(f) (DETAILS OF NOTEHOLDERS) the name and address of each Class A2
Noteholder;
(g) (NUMBER OF NOTES) the number of Class A2 Notes held by each Class
A2 Noteholder;
(h) (DATE OF ENTRY) the date on which a person was entered as the
holder of Class A2 Notes;
(i) (DATE OF CESSATION) the date on which a person ceased to be a Class
A2 Noteholder;
(j) (ACCOUNT) the account to which any payments due to a Class A2
Noteholder are to be made (if applicable);
(k) (PAYMENTS) a record of each payment in respect of the Class A2
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
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(iii) the Trust Manager or the Trustee reasonably requires in
writing with respect to Class A2 Notes.
14.3 PAYMENTS OF PRINCIPAL AND INTEREST
(a) Any payment of principal or interest on any Class A2 Note shall be
endorsed by the Note Registrar on the Note Register. In the case of
payments of principal, the Principal Amount of the Class A2 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 Class A2 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 CLASS A2 NOTEHOLDERS) open for inspection by a Class
A2 Noteholder during normal business hours but only in respect of
information relating to that Class A2 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.
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 Class A2 Notes and the
Trustee shall be entitled to recognise a Class A2 Noteholder as the
absolute owner of Class A2 Notes and the Trustee shall not be bound
or affected by any trust affecting the ownership of any Class A2
Notes unless ordered by a court or required by statute.
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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 Class A2 Noteholder by the Class A2
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 Class
A2 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, negligence or wilful default.
15. CHANGES OF NOTE REGISTRAR
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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.
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
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(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 Registrar.
16. GENERAL
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16.1 MEETINGS OF CLASS A2 NOTEHOLDERS
In the event of a meeting of the Class A2 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 Class A2 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
Class A2 Note represented by a Global Note shall be entitled to
receive from the registered owner of that 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 Class A2 Notes have not been issued, is for
the time being the Note Trustee,
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as the person entrusted with the receipt of principal or interest,
as applicable, on behalf of the relevant Class A2 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
Class A2 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 Class A2 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 Class A2
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, 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 Class A2 Notes for any profit made or fees or commissions received
in connection with this agreement or any Class A2 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.
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
Class A2 Notes and no implied duties or obligations (other than general
laws as to agency) shall be read into this agreement or the Class A2
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
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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
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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 Class A2 Notes.
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'
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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 Class
A2 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 resignation by or termination of the appointment of the
Luxembourg Paying Agent shall take effect if as a result of that
resignation or termination there would cease to be a Paying Agent
which has a Paying Office in Luxembourg;
(d) 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 Class A2
Noteholders in accordance with the Conditions;
(e) 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).
(f) 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 Class
A2 Note and shall deliver to the successor Principal Paying Agent all
records
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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:
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(i) into which the Calculation Agent is merged;
(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 CLASS A2 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 Class A2 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 Class
A2 Notes or Coupons.
(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 Class A2 Noteholders
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notice in accordance with the 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
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(a) The Trustee shall pay to the Principal Paying Agent during the
period when any of the Class A2 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 Class A2 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 Class A 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 Australian
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.
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19. WAIVERS, REMEDIES CUMULATIVE
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(a) No failure to exercise and no delay in exercising any right, power
or remedy under this agreement operates as a waiver. Nor does any
single or partial exercise of any right, power or remedy preclude
any other or further exercise of that or any other right, power or
remedy.
(b) The rights, powers and remedies provided to a party in this
agreement are in addition to, and do not exclude or limit, any
right, power or remedy provided by law.
20. SEVERABILITY OF PROVISIONS
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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
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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 the Class A2 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
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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
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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.
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
Level 7
9 Castlereagh Street
Sydney NSW 2000
Australia
Tel: 61 2 9229 9000
Fax: 61 2 9221 7870
Attention: Manager - Securitisation
THE TRUST MANAGER
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
Level 28
367 Collins Street
Melbourne VIC 3000
Australia
Tel: 61 3 9612 1111
Fax: 61 3 9621 2368
Attention: Chief Executive Officer
THE SERVICER
INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED
Level 28
367 Collins Street
Melbourne VIC 3000
Australia
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Tel: 61 3 9612 1111
Fax: 61 3 9621 2368
Attention: Chief Executive Officer
THE NOTE TRUSTEE
THE BANK OF NEW YORK, NEW YORK BRANCH
101 Barclay Street
21W New York
New York 10286
United States
Tel: [*]
Telex: [*]
Fax: [*]
Attention: [*]
THE PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, NEW YORK BRANCH
101 Barclay Street
21W New York
New York 10286
United States
Tel: [*]
Telex: [*]
Fax: [*]
Attention: [*]
THE LUXEMBOURG PAYING AGENT
THE BANK OF NEW YORK (LUXEMBOURG) S.A.
[*]
Tel: [*]
Fax: [*]
Attention: [*]
THE NOTE REGISTRAR
[*]
Tel: [*]
Fax: [*]
Attention: [*]
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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
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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 sue 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.
(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
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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 Law (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
(g) (ADMINISTRATOR) appoint, or agree to the appointment, of any
administrator to the Trustee,
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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
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This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
25. GOVERNING LAW
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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
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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: )
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Signature
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Signature Print name
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Print name Office held
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TRUST MANAGER
SIGNED on behalf of )
INTERSTAR SECURITISATION )
MANAGEMENT PTY LIMITED )
in the presence of: )
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Signature
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Signature Print name
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Print name Office held
SERVICER
SIGNED on behalf of )
INTERSTAR SECURITIES (AUSTRALIA) )
PTY LIMITED )
in the presence of: )
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Signature
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Signature Print name
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Print name Office held
NOTE TRUSTEE
SIGNED on behalf of )
THE BANK OF NEW YORK, LONDON )
BRANCH )
in the presence of: )
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Signature
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Signature Print name
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Print name Office held
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PRINCIPAL PAYING AGENT
SIGNED on behalf of )
THE BANK OF NEW YORK, NEW YORK )
BRANCH )
in the presence of: )
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Signature
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Signature Print name
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Print name Office held
CALCULATION AGENT
SIGNED on behalf of )
THE BANK OF NEW YORK, NEW YORK )
BRANCH )
in the presence of: )
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Signature
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Signature Print name
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Print name Office held
LUXEMBOURG PAYING AGENT
SIGNED on behalf of )
THE BANK OF NEW YORK )
(LUXEMBOURG) S.A. )
in the presence of: )
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Signature
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Signature Print name
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Print name Office held
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NOTE REGISTRAR
SIGNED on behalf of )
THE BANK OF NEW YORK, NEW YORK )
BRANCH )
in the presence of: )
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Signature
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Signature Print name
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Print name Office held
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