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 2003-3G Trust
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The Chifley Tower
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Table of Contents
1. Definitions and Interpretation 2
1.1 Definitions 2
1.2 Definitions in Master Trust Deed, Series Notice, Note Trust Deed and Conditions 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 5
3.1 Payment by Trustee 5
3.2 Confirmation 5
3.3 Payments by Paying Agents 5
3.4 Method of Payment - Global Notes 5
3.5 Method of payment - Definitive Notes 6
3.6 Late payment 6
3.7 Notice of non-receipt 7
3.8 Reimbursement 7
3.9 Method of payment 7
3.10 No fee 8
3.11 Trust 8
4. Repayment 8
5. Appointment of the Calculation Agent 8
6. Duties of the Calculation Agent 9
7. Note Trustee 10
8. Early redemption of Non-A$ Notes 11
9. Pro Rata Redemption, Purchases and Cancellation of Notes 11
10. Notices to Non-A$ Noteholders 15
11. Documents and forms 15
12. Authentication 16
13. Indemnity 16
14. The Note Register 17
14.1 Appointment of Note ▇▇▇▇▇▇▇▇▇ ▇▇
14.2 Details to be kept on the Note Register 17
14.3 Payments of Principal and Interest 17
14.4 Place of keeping Register, copies and access 18
14.5 Details on Note Register conclusive 18
14.6 Alteration of details on Note Register 18
14.7 Rectification of Note Register 18
14.8 Correctness of Note Register 19
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15. Changes of Note ▇▇▇▇▇▇▇▇▇ ▇▇
15.1 Removal 19
15.2 Resignation 19
15.3 Limitation 19
15.4 Successor to Note ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. General 20
16.1 Meetings of Non-A$ Noteholders 20
16.2 Agency 20
16.3 Identity 20
16.4 No set-off 21
16.5 Reliance 21
16.6 Entitled to deal 21
16.7 Consultation 21
16.8 Duties 22
17. Changes in Paying Agents and Calculation Agent 22
17.1 Removal 22
17.2 Resignation 23
17.3 Limitation 23
17.4 Delivery of amounts 23
17.5 Successor Paying Agents 24
17.6 Successor to Calculation Agent 24
17.7 Notice to Non-A$ Noteholders 25
17.8 Change in Paying Office or Specified Office 25
18. Fees and expenses 26
19. Waivers, remedies cumulative 26
20. Severability of provisions 27
21. Assignments 27
22. Notices 27
22.1 General 27
22.2 Details 27
22.3 Communication through Principal Paying Agent 30
23. Limited recourse 30
23.1 General 30
23.2 Liability of Trustee limited to its right to indemnity 30
23.3 Unrestricted remedies 31
23.4 Restricted remedies 31
24. Counterparts 32
25. Governing law 32
26. Successor trustee 32
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Date 2003
Parties
1. Perpetual Trustees Victoria Limited (ABN 47 004 027 258) of ▇▇▇▇▇ ▇,
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Interstar Millennium Series 2003-3G Trust (the Trustee);
2. Interstar Securitisation Management Pty Limited (ABN 56 100 346 898)
of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ in its capacity
as Trust Manager (the Trust Manager);
3. Interstar Securities (Australia) Pty Limited (ABN 72 087 271 109) of
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ in its capacity as
Servicer (the Servicer); and
4. [The Bank of New York, New York Branch] as principal paying agent for
the Non-A$ 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 Non-A$ 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 Non-A$ 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 Non-A$ 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
A The Trustee proposes to issue US$[500,000,000] of Class A2 Mortgage
Backed Floating Rate Notes and US$[*] of Class B1 Mortgage Backed
Floating Rate Notes (the US$ Notes) and (euro)[*] of Class A3 Mortgage
Backed Floating Rate Notes (the Class A3 Notes and, together with the
US$ Notes, the Non-A$ Notes).
B The US$ Notes, upon original issue, will be issued in the form of a
Class A2 Global Note (in the case of the Class A2 Notes) and a Class
B1 Global Note (in the case of the Class B1 Notes). The Trustee shall,
on the date of this deed, deliver or arrange the delivery on its
behalf of each Global Note for US$ Notes to the Principal Paying
Agent, as agent for the relevant Clearing Agency. Each Global Note for
US$ Notes shall initially be registered on the Note Register in the
name of Cede & Co, as nominee of DTC, 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 Class A3 Notes will be represented initially by the Temporary
Class A3 Global Note. Interests in the Temporary Class A3 Global Note
will be exchangeable (provided that certification of non-US beneficial
ownership has been received by the Principal Paying
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Agent) 40 days after the Closing Date for the Permanent Class A3
Global Note in accordance with the terms of the Temporary Class A3
Global Note. The Temporary Class A3 Global Note will be deposited on
the date of this agreement with the common depository for each of
Euroclear and Clearstream, Luxembourg, for the respective accounts of
Euroclear and Clearstream, Luxembourg. The Class A3 Notes so
represented shall be credited to the respective accounts of the Class
A3 Noteholders. The Permanent Class A3 Global Note will be deposited
on the date of this agreement with the common depository for each of
Euroclear and Clearstream, Luxembourg, to be held for exchange (in
whole or in part) from the Temporary Class A3 Global Note in
accordance with the terms of the Temporary Class A3 Global Note. The
Global Notes for Class A3 Notes will be exchangeable for Class A3
Notes in definitive form with Coupons and Talons, in the circumstances
specified in those Global Notes.
D The Non-A$ Notes will be constituted by the Note Trust Deed, the
Series Notice and the Master Trust Deed.
E The Non-A$ Notes will be secured on the terms of the Security Trust
Deed.
F The Trustee wishes to appoint the Principal Paying Agent as principal
paying agent in respect of the Non-A$ 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 Non-A$ 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 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
4 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 [*]
2003 issued under the Master Trust Deed in relation to the Trust.
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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 and any Non-A$ Notes,
the office of the Paying Agent specified in those Non-A$ Notes or otherwise
under this agreement or the Note Trust Deed as the office at which payments
in respect of those Non-A$ Notes or Coupons (if any) 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 2003-3G
Trust established under the Notice of Creation of Trust, the Master Trust
Deed and the Series Notice.
1.2 Definitions in Master Trust Deed, Series Notice, Note Trust Deed and
Conditions
(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 relevant 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 relevant 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;
(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; and
(c) all references to costs or charges or expenses include GST, any value
added tax or similar tax charged or chargeable in respect of the
charge or expense.
1.4 Document or agreement
A reference to:
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(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
(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 Non-A$ Notes in
accordance with the Transaction Documents and the relevant 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.
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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) (in respect of US$ Notes)
and [10.00am] ([London] time) (in respect of Class A3 Notes) 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$ (in respect of US$
Notes) and the amount in Euros (in respect of Class A3 Notes) 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 relevant 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 Non-A$ 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 Non-A$
Notes in accordance with the Series Notice and the relevant Conditions.
3.4 Method of Payment - Global Notes
(a) 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
Non-A$ Notes represented by a Global Note to be made to the relevant
Common Depository for credit to the account of the persons appearing
from time to time in the records of the relevant Common Depository as
account holders with respect to, and whilst any of the relevant Non-A$
Notes are represented by, a Global Note.
(b) In relation to the Class A3 Notes:
(i) after making a payment in respect of a Class A3 Note under
paragraph (a), the Principal Paying Agent shall cause the
schedule to the relevant Class A3 Global Note to be annotated so
as to evidence the amount and date of that payment. If the amount
of principal or interest (as the case may be) then due for
payment in respect of a Class A3 Global Note is not paid in full,
the Principal Paying Agent shall cause a record of that shortfall
to be made on the schedule to the relevant Global Note;
(ii) an annotation of the Principal Paying Agent or of the relevant
Common Depository under paragraph (b)(i) shall be sufficient
evidence (unless the contrary is proved) of the relevant payments
having been made or not made; and
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(iii) any payment in respect of the Class A3 Global Notes will only be
made to the extent that certification of non-U.S. beneficial
ownership (in the form of Exhibit A to the Temporary Class A3
Global Note) has been previously received by the Principal Paying
Agent from Euroclear or Clearstream, Luxembourg (as appropriate).
3.5 Method of payment - Definitive Notes
(a) Payments of principal or interest on the Definitive Notes shall be
made in accordance with the relevant Conditions and the Series Notice.
(b) If a Definitive Note for a Class A3 Note is issued and the amount of
the principal or interest (as the case may be) then due for payment on
that Class A3 Note or any relevant Coupon is not paid in full
(including by reason of a deduction or withholding), the Paying Agent
to whom that Class A3 Note or Coupon is presented shall enface that
Class A3 Note or Coupon with a memorandum of the amount paid and the
date of that payment.
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:
(i) in the case of any payment in respect of the US$ Notes made on or
prior to 1.00pm (New York time) on a Payment Date, make payments
required to be made by it in respect of the US$ Notes as provided
in this clause 3 (other than clause 3.6(a)(ii));
(ii) in the case of any payment in respect of the US$ Notes made after
1.00pm (New York time) on a Payment Date, make payments required
to be made by it in respect of the US$ Notes on the next Business
Day occurring after that Payment Date and otherwise as provided
in this clause 3;
(iii) in the case of any payment in respect of the Class A3 Notes or
Coupons made on or prior to [1.00pm] ([London] time) on a Payment
Date, make payments required to be made by it in respect of the
Class A3 Notes or Coupons as provided in this clause 3 (other
than clause 3.6(a)(iv)); and
(iv) in the case of any payment in respect of the Class A3 Notes or
Coupons made after [1.00pm] ([London] time) on a Payment Date,
make payments required to be made by it in respect of the Class
A3 Notes or Coupons on the next Business Day occurring after that
Payment Date and otherwise as provided in this clause 3.
However, unless and until the full amount of any payment in respect of
the Non-A$ 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 Non-A$ Note
or Coupon in accordance with the Series Notice and the relevant
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 the relevant Condition 12 (unless the Note
Trustee agrees otherwise), to the Non-A$ 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 the relevant Conditions in respect of the Non-A$ Note or any
Coupon 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 relevant 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 in respect of US$ Notes or US$ Noteholders 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 the
relevant 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, in
accordance with clause 22, 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) All sums payable by the Trustee to the Principal Paying Agent under
this agreement in respect of Class A3 Notes or Class A3 Noteholders
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 Euros 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 A3 Noteholders and,
failing that, payment within the designated periods of prescription
specified in the relevant Condition 8, or upon the bankruptcy,
insolvency, winding up or liquidation of the Principal Paying Agent or
default being made
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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, in accordance with clause 22, 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.
(c) 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 accounts referred to in paragraph (a) and paragraph
(b) 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 or, if Talons have been
printed, exchanges of Talons for Coupons.
3.11 Trust
The Principal Paying Agent shall hold on trust for the Note Trustee and the
Non-A$ Noteholders all sums held by it for the payment of principal and
interest with respect to the Non-A$ Notes until all relevant sums are paid
to the Note Trustee or the Non-A$ 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 Non-A$ Note or Coupon 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 Non-A$ Note or Coupon (as
the case may be) 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 Non-A$
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:
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(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 Non-A$ Notes, until their
final maturity or such earlier date on which the Non-A$ Notes are due
and payable in full and in either case until the Trustee has paid all
amounts due in relation to the Non-A$ 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 relevant 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 the
relevant Condition 4 and confirm with each Currency Swap Provider
(using the contact details notified by each Currency Swap
Provider to the Calculation Agent) that the LIBOR determined
under this agreement is the same as the LIBOR determined by that
Currency Swap Provider under the relevant Currency Swap;
(iii) determine EURIBOR for each Interest Period for the Class A3
Notes, and calculate the relevant Interest and the Interest Rate
on the Class A3 Notes, in the manner set out in the relevant
Condition 4 and confirm with the Currency Swap Provider under the
Class A3 Currency Swap (using the contact details notified by
that Currency Swap Provider to the Calculation Agent) that the
EURIBOR determined under this agreement is the same as the
EURIBOR determined by that Currency Swap Provider under the Class
A3 Currency Swap; and
(iv) 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
Interest so determined by it in relation to that Interest Period
and each Class of Non-A$ 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 Non-A$ 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 the relevant
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.
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(c) The Interest and Interest Rate for each Class of Non-A$ 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 Non-A$ 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 Non-A$
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 Non-A$ 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 Non-A$
Note or at any time after Definitive Notes or Coupons or Talons relating to
those 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
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, Coupons and Talons and all amounts,
documents and records held by them in respect of the Non-A$
Notes, Coupons and Talons on behalf of the Note Trustee; or
(iii) to deliver up all Definitive Notes, Coupons and Talons and all
amounts, documents and records held by them in respect of the
Non-A$ Notes, Coupons and Talons 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
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(b) by notice in writing to the Trustee require it to make all subsequent
payments in respect of the Non-A$ 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 relevant 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 Non-A$ Notes
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(a) If the Trustee intends to redeem all (but not some only) of the Non-A$
Notes prior to their Maturity Date pursuant to the relevant Condition
5(g) or 5(h) (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 Non-A$ Noteholders in
accordance with the relevant Condition 5(g) or 5(h) (as the case may
be) and stating the Payment Date on which such Non-A$ Notes are to be
redeemed.
(b) The Principal Paying Agent shall, on receipt of a notice under
paragraph (a):
(i) notify each Common Depository of the proposed redemption,
specifying:
(A) the aggregate Principal Amount of Non-A$ Notes to be
redeemed;
(B) the amount of principal to be repaid in relation to each
Non-A$ Note; and
(C) the date on which the Non-A$ 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 Non-A$ Notes prior to their
Maturity Date pursuant to the relevant 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 the
relevant Condition 5.
(b) On receipt of a notice under paragraph (a), the Principal Paying Agent
shall notify each Common Depository of the proposed redemption,
specifying in each case the aggregate Principal Amount of the Non-A$
Notes to be redeemed and the date on which such Non-A$ 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 Non-A$
Note due on the Payment Date next following that Determination
Date; and
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(ii) the Principal Amount of each Non-A$ Note on the first day of the
next following Interest Period for the Non-A$ 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 each Common
Depository.
(d) The Trust Manager will immediately cause details of each determination
under paragraph (c) to be published in accordance with the relevant
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, the Class
A3 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, the Class A3 Noteholders or the Class B1
Noteholders (as the case may be) in accordance with the relevant
Condition 12.
(f) If any Notes are redeemed in whole or in part in accordance with the
relevant Conditions and the Transaction Documents, the Principal
Paying Agent will:
(i) if any Class A2 Global Note or Class B1 Global Note is still
outstanding, cause the Note Registrar to record all relevant
details in the Note Register; and
(ii) if any Class A3 Global Note is still outstanding, cause the
relevant Common Depository to record all relevant details on the
schedule to any such Global Note.
(g) All Definitive Notes for the Class A3 Notes which are redeemed in
their entirety (but not partial redemptions in accordance with the
relevant Condition 5(a)), together with any unmatured or unused
Coupons or Talons attached to, or surrendered with, those Definitive
Notes at the time of redemption or presentation, and all Coupons which
are paid and all Talons which are exchanged for further Coupons shall
be forthwith cancelled by perforation by the Paying Agent by or
through which they are redeemed, paid or exchanged. If that Paying
Agent is not the Principal Paying Agent, that Paying Agent shall
promptly give all relevant details and forward the cancelled
Definitive Notes, Coupons and Talons to the Principal Paying Agent.
(h) The Principal Paying Agent shall as soon as possible, and in any event
within 70 days after the date of any redemption, presentation or
payment of Definitive Notes for the Class A3 Notes, furnish to each of
the Trustee, the Trust Manager and the Note Trustee a certificate
stating:
(i) the aggregate Principal Amount of Definitive Notes for the Class
A3 Notes which have been redeemed in full and the aggregate
amounts in respect of Coupons which have been paid or, as the
case may require, the aggregate amounts of principal and interest
paid in respect of the Class A3 Global Notes;
(ii) the serial numbers of those Definitive Notes;
(iii) the total number by Maturity Date of relevant Coupons;
(iv) the aggregate Principal Amounts of Definitive Notes for the Class
A3 Notes
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which have been surrendered and replaced, the serial numbers of
those Definitive Notes and the total number by Maturity Date of
Coupons which have been surrendered and replaced; and
(v) the total number of Talons which have been exchanged.
(i) Unless otherwise previously instructed by the Trustee or the Trust
Manager, the Principal Paying Agent shall destroy any cancelled
Definitive Notes for the Class A3 Notes, Coupons and Talons in its
possession and furnish each of the Trustee, the Trust Manager and the
Note Trustee with a destruction certificate which lists the serial
numbers of those Definitive Notes in numerical sequence and gives
particulars of the Coupons and Talons attached to or surrendered with
those Definitive Notes and shall, in the case of Coupons which are
destroyed, show the total number by Maturity Date of those Coupons and
the aggregate amount paid in respect of those Coupons.
(j) The Principal Paying Agent shall:
(i) keep a full and complete record of:
(A) all Definitive Notes, Coupons and Talons issued (other than
the serial numbers of Coupons);
(B) the redemption, purchase, cancellation, payment, exchange,
surrender for replacement or destruction of all Definitive
Notes, Coupons or Talons; and
(C) all replacement Definitive Notes, Coupons or Talons issued
in substitution for lost, stolen, mutilated, defaced or
destroyed Definitive Notes, Coupons or Talons;
(ii) in respect of Coupons of each Maturity Date, retain until the
expiry of five years (in the case of Interest Coupons) and ten
years (in the case of Principal Coupons) after that Maturity Date
either a list of all paid Coupons with that Maturity Date or a
record of the total number of Coupons with that Maturity Date
still remaining unpaid;
(iii) in respect of Coupons and Talons in place of which replacement
Coupons or Talons have been issued, and Coupons or Talons which
have become void, retain a record of the serial numbers of those
Coupons and Talons; and
(iv) make those records available at all reasonable times to the
Trustee, the Trust Manager and the Note Trustee.
(k) The Trust Manager shall, where Definitive Notes for the Class A3
Notes, Coupons or Talons have been issued, cause a sufficient quantity
of additional Definitive Notes for the Class A3 Notes, Coupons and
Talons to be made available, upon request by the Principal Paying
Agent, for the purpose of issuing replacement Definitive Notes,
Coupons and Talons as provided below.
(l) The Principal Paying Agent shall, subject to and in accordance with
the Conditions for the Class A3 Notes, the Transaction Documents and
this clause, issue any replacement Definitive Notes for the Class A3
Notes, Coupons or Talons in place of Definitive Notes for the Class A3
Notes or Coupons or Talons which have been lost, stolen, mutilated,
defaced or destroyed.
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(m) The Principal Paying Agent shall, subject to and in accordance with
the Conditions for the Class A3 Notes and the Transaction Documents,
issue Coupons in exchange for Talons.
(n) In the case of a mutilated or defaced Definitive Note for a Class A3
Note, the Principal Paying Agent shall ensure that (unless otherwise
covered by an indemnity and/or security as the Trustee or Trust
Manager may require) any replacement Definitive Note will only have
attached to it Coupons and a Talon corresponding to those attached to
the mutilated or defaced Definitive Note which is presented for
replacement.
(o) The Principal Paying Agent shall not issue any replacement Definitive
Note for a Class A3 Note, Coupon or Talon unless and until the
relevant applicant has:
(i) paid all costs (including the fees and costs of the Principal
Paying Agent and of any Paying Agent through which the
replacement Definitive Note, Coupon or Talon is issued) as may be
incurred in connection with that replacement;
(ii) in the case of a lost, stolen, defaced or destroyed Definitive
Note, Coupon or Talon, furnished the Principal Paying Agent with
any evidence (including evidence as to the serial number of the
Definitive Note, Coupon or Talon in question) and indemnity in
respect of that loss, theft, defacement or destruction as the
Trustee or the Trust Manager and the Principal Paying Agent may
reasonably require; and
(iii) in the case of a mutilated or defaced Definitive Note, Coupon or
Talon, surrendered to the Principal Paying Agent the mutilated or
defaced Definitive Note, Coupon or Talon which is to be replaced.
(p) The Principal Paying Agent shall cancel any mutilated or defaced
Definitive Note for a Class A3 Note, Coupon or Talon replaced under
this clause and shall furnish the Trustee, the Trust Manager and the
Note Trustee, on the first day of each month, with a certificate
stating the serial numbers of Definitive Notes for Class A3 Notes,
Coupons and Talons cancelled during that month. Unless otherwise
previously instructed by the Trustee or the Trust Manager, the
Principal Paying Agent shall destroy any cancelled Definitive Notes
for the Class A3 Notes, Coupons and Talons and furnish the Trustee,
the Trust Manager and the Note Trustee with a destruction certificate
containing the information specified in paragraph (i).
(q) The Principal Paying Agent shall, on issuing any replacement
Definitive Note for a Class A3 Note, Coupon or Talon, forthwith inform
each of the other Paying Agents, the Trustee, the Trust Manager and
the Note Trustee of the Principal Amount and the serial number of that
replacement Definitive Note, Coupon or Talon issued and the serial
number of the Definitive Note, Coupon or Talon in place of which the
replacement Definitive Note, Coupon or Talon has been issued.
(r) Whenever any Definitive Note for a Class A3 Note, Coupon or Talon
which is alleged to have been lost, stolen or destroyed (and in
replacement for which a new Definitive Note, Coupon or Talon has been
issued) is presented to any Paying Agent for payment or for the
delivery of additional Coupons, the Paying Agent to which that
Definitive Note, Coupon or Talon is presented shall immediately notify
the Trustee, the Trust Manager, the Note Trustee and (if presentation
is not made to the Principal Paying Agent) the Principal Paying
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Agent. The Principal Paying Agent shall, on receipt of that notice or
(as the case may be) on presentation of the Definitive Note for the
Class A3 Note, Coupon or Talon to it and after consultation with the
Trustee, take appropriate steps (subject to being indemnified to its
reasonable satisfaction as to cost) to recover the amount covered by
the indemnity with respect to the allegedly lost, stolen or destroyed
Definitive Note, Coupon or Talon. The Principal Paying Agent shall
account to the Trustee for any amount so collected.
(s) No replacement Definitive Note for a Class A3 Note, Coupon or Talon
shall be delivered in the United States.
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 Non-A$ Notes which have been redeemed or the
aggregate Principal Amount of Non-A$ 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 Non-A$ 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 Non-A$ Noteholders in accordance with the relevant
Conditions.
(b) The Principal Paying Agent shall promptly send to the Note Trustee one
copy of the form of every notice given to Non-A$ Noteholders in
accordance with the relevant 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 relevant
Conditions or the Note Trust Deed to be available to Non-A$
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 Non-A$ 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, Coupons or Talons are issued, specimens of
those Definitive Notes, Coupons and Talons.
(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 Non-A$ Notes.
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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 a 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, 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.
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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;
(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.
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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.
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.
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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, wilful misconduct,
gross negligence or bad faith.
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
(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.
15.4 Successor to Note Registrar
(a) On the execution by the Trustee, the Trust Manager and any successor
Note Registrar of an instrument effecting the appointment of that
successor Note Registrar, that successor Note Registrar 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 Note
Registrar 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 Note Registrar is appointed.
(b) Any corporation:
(i) into which the Note Registrar is merged;
(ii) with which the Note Registrar is consolidated;
(iii) resulting from any merger or consolidation to which the Note
Registrar is a party;
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(iv) to which the Note Registrar 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 Note Registrar 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 Note
Registrar shall be references to that corporation.
16. General
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16.1 Meetings of Non-A$ Noteholders
In the event of a meeting of the Non-A$ 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
Non-A$ Notes, Coupons and Talons 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:
(i) while a Class A2 Global Note or Class B1 Global Note remains
outstanding, the registered owner of that Global Note; and
(ii) while a Class A3 Global Note remains outstanding, the bearer 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 a Common
Depository as the holder of any Non-A$ Note represented by a Global
Note shall be entitled to receive from:
(iii) while a Class A2 Global Note or a Class B1 Global Note remains
outstanding, the registered owner of that Global Note; and
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(iv) while a Class A3 Global Note remains outstanding, the bearer of
that Global Note,
any payment so made in accordance with the respective rules and
procedures of that Common Depository and on the terms and subject to
the conditions of that Global Note;
(b) who:
(i) in the case of a US$ Note, is the registered owner; and
(ii) in the case of a Class A3 Note, the bearer,
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 Non-A$ 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 Non-A$
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 Non-A$
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 Non-A$ Note, Coupon or Talon 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 or
any director or officer of the same shall be precluded from acquiring,
holding or dealing in any Non-A$ Notes, Coupon or Talons or from engaging
or being interested in any contract or other financial or other transaction
or arrangement 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 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 Non-A$ Notes
for any profit made or fees or commissions received in connection with this
agreement or any Non-A$ 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 Non-A$ Notes,
the Coupons and the Talons and no implied duties or obligations (other than
general laws as to agency) shall be read into this agreement or the Non-A$
Notes, the Coupons or the Talons 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
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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 Non-A$ Notes or Coupons.
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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 Non-A$ Notes or Coupons.
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 Non-A$ Noteholders in
accordance with the relevant 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 and/or [London] (as
the case may be) in the circumstances described in the relevant
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 the relevant
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 Non-A$ Note or Coupon and shall
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deliver to the successor Principal Paying Agent all records maintained by
it pursuant to this agreement and all documents (including any Definitive
Notes and Coupons or Talons) held by it pursuant to this agreement.
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;
(ii) with which the Calculation Agent is consolidated;
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(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 Non-A$ 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 Non-A$ Noteholders notice of the termination, appointment or
resignation in accordance with the relevant 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.
(b) If the Calculation Agent proposes to change its Specified Office
(which must be in New York City in relation to US$ Notes and [London]
in relation to Class A3 Notes, 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 Non-A$ Noteholders notice in accordance with the
relevant Conditions of that change and of the address of the new
Paying Office or Specified Office (as the case may be).
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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 Non-A$ 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 Non-A$ 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 Non-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 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
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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.
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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
--------------------------------------------------------------------------------
Subject to clauses 15.4(b), 17.5(b) and 17.6(b), 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 Non-A$
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 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:
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The Trustee
PERPETUAL TRUSTEES VICTORIA LIMITED
▇▇▇▇▇ ▇
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Tel: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Attention: Manager - Securitisation
The Trust Manager
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Tel: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Attention: Chief Executive Officer
The Servicer
INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Tel: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Attention: Chief Executive Officer
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The Note Trustee
[THE BANK OF NEW YORK, NEW YORK BRANCH
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: N/A
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/5917
Attention: Corporate Trust - Global Structured Finance]
The Principal Paying Agent
[THE BANK OF NEW YORK, NEW YORK BRANCH
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: N/A
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/5917
Attention: Corporate Trust - Global Structured Finance]
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The Note Registrar
[THE BANK OF NEW YORK, NEW YORK BRANCH
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: N/A
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/5917
Attention: Corporate Trust - Global Structured Finance]
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 (as amended by the Series Notice)
applies to the obligations and liabilities of the Trustee and the Trust
Manager under this agreement, except that any reference to Trust refers to
the Trust.
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 ▇▇▇ 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).
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(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 (c) 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) 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;
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(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,
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 or she has no notice of
revocation or suspension of his or her power of attorney.
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TRUSTEE
SIGNED on behalf of )
PERPETUAL TRUSTEES VICTORIA )
LIMITED )
in the presence of: )
---------------------------------------
Signature
-------------------------------------- ---------------------------------------
Signature Print name
-------------------------------------- ---------------------------------------
Print name Office held
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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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, NEW YORK )
BRANCH] )
in the presence of: )
---------------------------------------
Signature
-------------------------------------- ---------------------------------------
Signature Print name
-------------------------------------- ---------------------------------------
Print name Office held
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
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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
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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