<DOCUMENT>
<TYPE>EX-4.5
<SEQUENCE>7
<FILENAME>file006.txt
<DESCRIPTION>FORM OF AGENCY AGREEMENT
<TEXT>
<PAGE>
AGENCY AGREEMENT
PERPETUAL TRUSTEES VICTORIA LIMITED
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED
THE BANK OF NEW YORK
Interstar Millennium Trusts
Interstar Millennium Series 2004-2G 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 2004
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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 3
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 Notes 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 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 US$ NOTES 9
9. PRO RATA REDEMPTION, PURCHASES AND CANCELLATION OF NOTES 10
10. NOTICES TO US$ NOTEHOLDERS 11
11. DOCUMENTS AND FORMS 11
12. AUTHENTICATION 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 13
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 14
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
15.4 Successor to Note Registrar 15
16. GENERAL 16
16.1 Meetings of US$ 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 18
16.8 Duties 18
17. CHANGES IN PAYING AGENTS AND CALCULATION AGENT 18
17.1 Removal 18
17.2 Resignation 19
17.3 Limitation 19
17.4 Delivery of amounts 20
17.5 Successor Paying Agents 20
17.6 Successor to Calculation Agent 20
17.7 Notice to US$ Noteholders 21
17.8 Change in Paying Office or Specified Office 21
18. FEES AND EXPENSES 22
19. WAIVERS, REMEDIES CUMULATIVE 23
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 26
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 200[*]
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PARTIES
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1. PERPETUAL TRUSTEES VICTORIA LIMITED (ABN 47 004 027 258) of Level 28,
360 Collins Street, Melbourne, Victoria in its capacity as trustee of
Interstar Millennium Series 2004-2G Trust (the TRUSTEE);
2. INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED (ABN 56 100 346 898) 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 28, 367 Collins Street, Melbourne, Victoria in its capacity as
Servicer (the SERVICER); and
4. THE BANK OF NEW YORK as principal paying agent for the US$ Notes
described below (the PRINCIPAL PAYING AGENT, which expression shall,
wherever the context requires, include any successor principal paying
agent from time to time under this agreement) and as trustee for the
US$ Noteholders (the NOTE TRUSTEE, which expression shall, wherever the
context requires, include any other trustee or trustees from time to
time under the Note Trust Deed) and as calculation agent in relation to
the US$ Notes described below (the CALCULATION AGENT, which expression
shall, wherever the context requires, include any successor calculation
agent from time to time) and as note registrar in relation to the US$
Notes described below (the NOTE REGISTRAR, which expression shall,
wherever the context requires, include any successor note registrar
from time to time under this agreement).
RECITALS
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A The Trustee proposes to issue US$[*] of Class A Mortgage Backed
Floating Rate Notes, US$[*] of Class AB Mortgage Backed Floating Notes
and US$[*] of Class B Mortgage Backed Floating Rate Notes (the US$
NOTES).
B The US$ Notes, upon original issue, will be issued in the form of two
Class A Global Notes (in the case of the Class A Notes), a Class AB
Global Note (in the case of the Class AB Notes) and a Class B Global
Note (in the case of the Class B 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.
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C The US$ Notes will be constituted by the Note Trust Deed, the Series
Notice and the Master Trust Deed.
D The US$ Notes will be secured on the terms of the Security Trust Deed.
E The Trustee wishes to appoint the Principal Paying Agent as principal
paying agent in respect of the US$ Notes and has entered into this
agreement to provide for the terms and conditions of that appointment.
F The Trustee wishes to appoint the Calculation Agent as its reference
agent in respect of the US$ Notes and has entered into this agreement
to provide for the terms and conditions of that appointment.
G The Trustee wishes to appoint the Note Registrar as note registrar in
respect of the US$ Notes and has entered into this agreement to provide
for the terms and conditions of that appointment.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
DETERMINATION DATE means, in relation to a Payment Date, the date which
is 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
31 December 2003 issued under the Master Trust Deed in relation to the
Trust.
PAYING AGENT means any person for the time being appointed as a Paying
Agent under this agreement and includes the Principal Paying Agent.
PAYING OFFICE means, in relation to a Paying Agent and any US$ Notes,
the office of the Paying Agent specified in those US$ Notes or
otherwise under this agreement or the Note Trust Deed as the office at
which payments in respect of those US$ Notes will be made as changed
from time to time in accordance with this agreement.
SERIES NOTICE means the Series Notice dated on or about the date of
this agreement relating to the Trust.
SPECIFIED OFFICE means, in relation to the Calculation Agent, the
office of the Calculation Agent specified under this agreement as the
office at which the Calculation Agent will carry out its duties under
this agreement.
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TRUST means the trust known as the Interstar Millennium Series 2004-2G
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:
(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.
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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 US$
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.
3. PAYMENT
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3.1 PAYMENT BY TRUSTEE
The Trustee shall, with the assistance of and at the direction of the
Trust Manager, not later than 10.00 am (New York time) on each Payment
Date, pay to or to the order of, or procure payment to or to the order
of, the Principal Paying Agent the amount in US$ as may be required
(after taking account of any cash then held by the Principal Paying
Agent and available for the purpose) to be made on that Payment Date
under the Series Notice in respect of US$ Notes and the relevant
Conditions.
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3.2 CONFIRMATION
Not later than 4.00 pm (Sydney time) on each Determination Date, the
Trust Manager on behalf of the Trustee shall notify, or procure
notification to, the Principal Paying Agent and the Note Trustee of the
amount of interest or principal payable in respect of each Class of US$
Notes on the Payment Date following that Determination Date. The
Trustee or if required by the Trustee, the Trust Manager on its behalf
shall also forward to the Principal Paying Agent at that time
confirmation that the payments provided for in clause 3.1 will be made
unconditionally.
3.3 PAYMENTS BY PAYING AGENTS
Subject to payment being duly made as provided in clause 3.1 (or the
Principal Paying Agent otherwise being satisfied that the payment will
be duly made on the due date), and subject to clause 7, the Paying
Agents shall pay or cause to be paid on behalf of the Trustee on each
Payment Date the relevant amounts of principal and interest due in
respect of the US$ Notes in accordance with the Series Notice and the
relevant Conditions.
3.4 METHOD OF PAYMENT - GLOBAL NOTES
The Principal Paying Agent shall cause all payments of principal or
interest (as the case may be) due and received by it in respect of US$
Notes represented by a Global Note to be made to the 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 US$ Notes are
represented by, a Global Note.
3.5 METHOD OF PAYMENT - DEFINITIVE NOTES
Payments of principal or interest on the Definitive Notes shall be made
in accordance with the relevant 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:
(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)); and
(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.
However, unless and until the full amount of any payment in
respect of the US$ Notes required to be made under the
Transaction Documents has been made under clause 3.1 to or to the
order of the Principal Paying Agent, no Paying Agents shall be
bound to make a payment under clause 3.
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(b) If the Principal Paying Agent has not received on a Payment Date
the full amount of principal and interest then payable on any US$
Note in accordance with the Series Notice and the 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
(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 US$
Noteholders that it has received the full amount.
3.7 NOTICE OF NON-RECEIPT
The Principal Paying Agent shall immediately notify by telex or
facsimile (if appropriate) the other Paying Agents (if any), the Note
Trustee, the Trustee, the Security Trustee and the Trust Manager if the
full amount of any payment of principal or interest required to be made
by the Series Notice and the relevant Conditions in respect of the US$
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 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.
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(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 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 TRUST
The Principal Paying Agent shall hold on trust for the Note Trustee and
the US$ Noteholders all sums held by it for the payment of principal
and interest with respect to the US$ Notes until all relevant sums are
paid to the Note Trustee or the US$ Noteholders or otherwise disposed
of in accordance with the Note Trust Deed.
4. REPAYMENT
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(a) Immediately on any entitlement to receive principal or interest
under any US$ Note becoming void under the relevant Conditions,
the Principal Paying Agent shall repay to the Trustee the amount
which would have been due in respect of that principal or
interest if it had been paid before the entitlement under any US$
Note became void.
(b) Despite paragraph (a) the Principal Paying Agent shall not be
obliged to make any repayment to the Trustee so long as any
amounts which should have been paid to or to the order of the
Principal Paying Agent or, if applicable, the Note Trustee by the
Trustee remain unpaid.
5. APPOINTMENT OF THE CALCULATION AGENT
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(a) The Trustee (acting on the direction of the Trust Manager)
appoints the Calculation Agent as its reference agent in respect
of the US$ Notes upon the terms and conditions set forth in this
agreement and the Calculation Agent accepts that appointment.
(b) It is acknowledged and agreed that:
(i) the Calculation Agent is the agent of the Trustee in
its capacity as trustee of the Trust only, and
(ii) despite anything else in this agreement, any other
Transaction Document or at law, the Trustee in its
personal capacity is not responsible for any act or
omission of the Calculation Agent.
6. DUTIES OF THE CALCULATION AGENT
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(a) The Calculation Agent shall, in relation to US$ Notes, until
their final maturity or such earlier date on which the US$ Notes
are due and payable in full and in either case until the Trustee
has paid all amounts due in relation to the US$ Notes to the
Principal Paying Agent or, if applicable, the Note Trustee:
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(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; and
(iii) notify the Trustee, the Trust Manager, the Note
Trustee, the Paying Agents and each Currency Swap
Provider by telex or facsimile transmission on or as
soon as possible after the first day of that Interest
Period, of the Interest Rate and the Interest so
determined by it in relation to that Interest Period
and each Class of US$ Notes, specifying to those
parties the rates upon which they are based and (where
relevant) the names of the banks quoting those rates.
(b) The Trust Manager on behalf of the Trustee shall cause the
Interest and the Interest Rates applicable to each Class of US$
Notes for each Interest Period together with the relevant Payment
Date, to be published (subject to clause 23, on behalf of and at
the expense of the Trustee) in accordance with the provisions of
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.
(c) The Interest and Interest Rate for each Class of US$ Notes and
relevant Payment Date published under paragraph (b) may
subsequently be amended (or appropriate alternative arrangements
made by way of adjustment) without notice to US$ Noteholders in
the event of an amendment of the Interest Period.
(d) If the Calculation Agent at any time for any reason does not
determine the Interest Rate for or calculate the Interest payable
on a US$ Note, the Trust Manager shall do so and each such
determination or calculation shall be deemed to have been made by
the Calculation Agent. In doing so, the Trust Manager shall apply
the provisions of this clause 6, with any necessary consequential
amendments, to the extent that, in its opinion, it can do so,
and, in all other respects it shall do so in such a manner as it
reasonably considers fair and reasonable in all the
circumstances.
(e) If the Trust Manager does not at any time for any reason
determine a Principal Payment or the Principal Amount applicable
to a US$ Note in accordance with the Transaction Documents, the
Principal Payment and the Principal Amount shall be determined by
the Calculation Agent in accordance with the Transaction
Documents (but based on the information in its possession) and
each such determination or calculation shall be deemed
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to have been made by the Trust Manager. The Calculation Agent may
appoint any person as its agent for the purpose of making any
such calculation or determination.
7. NOTE TRUSTEE
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At any time after an Event of Default has occurred in relation to a US$
Note or at any time after Definitive Notes have not been issued when
required in accordance with the provisions of the Transaction
Documents, the Note Trustee may:
(a) by notice in writing to the Trustee, the Trust Manager, the
Principal Paying Agent, the other Paying Agents (if any) and the
Calculation Agent, require the Principal Paying Agent, the other
Paying Agents and the Calculation Agent either:
(i) to act as Principal Paying Agent, Paying Agent and
Calculation Agent respectively of the Note Trustee on
the terms of this agreement in relation to payments to
be made by or on behalf of the Trustee under the terms
of the Note Trust Deed, except that the Note Trustee's
liability under any provisions for the indemnification
of the Calculation Agent and the Paying Agents shall be
limited to any amount for the time being held by the
Note Trustee on the trusts of the Note Trust Deed and
which is available to be applied by the Note Trustee
for that purpose; and
(ii) to hold all Definitive Notes, and all amounts,
documents and records held by them in respect of the
US$ Notes on behalf of the Note Trustee; or
(iii) to deliver up all Definitive Notes, and all amounts,
documents and records held by them in respect of the
US$ Notes to the Note Trustee or as the Note Trustee
directs in that notice, other than any documents or
records which such Paying Agent or Calculation Agent
(as the case may be) is obliged not to release by any
law or regulation; and
(b) by notice in writing to the Trustee require it to make all
subsequent payments in respect of the US$ Notes to or to the
order of the Note Trustee and not to the Principal Paying Agent
and, with effect from the issue of that notice to the Trustee and
until that notice is withdrawn, clause 2.3 of the Note Trust Deed
shall not apply.
A payment by the Trustee of its payment obligations on each Payment
Date under the Series Notice and the 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 US$ NOTES
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(a) If the Trustee intends to redeem the US$ Notes prior to their
Maturity Date pursuant to the relevant Condition 5(b)(ii),
5(b)(iii), 5(f) or 5(g) (which it may only do at the direction of
the Trust Manager), the Trust Manager shall give not less than 5
days' prior notice to the Principal Paying Agent and the Note
Trustee before giving the requisite period of notice to the US$
Noteholders in accordance with the relevant Condition 5(b)(ii),
5(b)(iii), 5(f) or
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5(g) (as the case may be) and stating the Payment Date on which
such US$ Notes are to be redeemed.
(b) The Principal Paying Agent shall, on receipt of a notice under
paragraph (a):
(i) notify each Common Depository of the proposed
redemption, specifying:
(A) the aggregate Principal Amount of US$ Notes to be
redeemed;
(B) the amount of principal to be repaid in relation
to each US$ Note; and
(C) the date on which the US$ Notes are to be
redeemed; and
(ii) promptly and in accordance with the relevant Conditions
on behalf of and, subject to clause 23, at the expense
of the Trustee publish the notices required in
connection with that redemption.
9. PRO RATA REDEMPTION, PURCHASES AND CANCELLATION OF NOTES
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(a) If the Trustee is required to redeem the US$ Notes prior to their
Maturity Date pursuant to 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 US$ Notes to be redeemed and the date on which such
US$ Notes are to be redeemed.
(c) The Trust Manager shall, on (or as soon as practicable after)
each Determination Date, calculate:
(i) the amount of principal to be repaid in respect of each
US$ Note due on the Payment Date next following that
Determination Date; and
(ii) the Principal Amount of each US$ Note on the first day
of the next following Interest Period for the US$ Notes
(after deducting any principal due to be made on the
next Payment Date),
and shall forthwith notify or cause to be notified to the
Trustee, the Calculation Agent, the Note Trustee, the Principal
Paying Agent and each Currency Swap Provider of each of those
determinations in accordance with the Series Notice. On receipt
of that notice, the Principal Paying Agent shall give a copy of
that notice to 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 A Notes, the
Class AB Notes or the Class B 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 A Noteholders, the Class AB
Noteholders or the Class B Noteholders (as the case may be) in
accordance with the relevant Condition 12.
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(f) If any US$ Notes are redeemed in whole or in part in accordance
with the relevant Conditions and the Transaction Documents, the
Principal Paying Agent will if any Class A Global Note, Class AB
Global Note or Class B Global Note is still outstanding, cause
the Note Registrar to record all relevant details in the Note
Register.
10. NOTICES TO US$ NOTEHOLDERS
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(a) Subject to clause 23, at the request and expense of the Trustee,
the Principal Paying Agent shall arrange for the publication of
all notices to US$ Noteholders in accordance with the relevant
Conditions.
(b) The Principal Paying Agent shall promptly send to the Note
Trustee one copy of the form of every notice given to US$
Noteholders in accordance with 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 US$ Noteholders for issue or inspection
(including the Note Trust Deed, the Master Trust Deed
and the Series Notice);
(ii) in the event of a meeting of US$ Noteholders being
called, forms of voting certificates and block voting
instructions, together with instructions from the
Trustee (those instructions having previously been
approved by the Note Trustee) as to the manner of
completing, dealing with and recording the issue of
such forms; and
(iii) if Definitive Notes are issued, specimens of those
Definitive Notes.
(b) The Trust Manager and the Trustee shall provide to the
Calculation Agent such documents as the Calculation Agent may
reasonably require from the Trust Manager or the Trustee (and in
the case of the Trustee only those documents that are in the
Trustee's possession or power) in order for the Calculation Agent
properly to fulfil its duties in respect of the US$ Notes.
12. AUTHENTICATION
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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
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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.
14. THE NOTE REGISTER
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14.1 APPOINTMENT OF NOTE REGISTRAR
The Trustee appoints The Bank of New York to be the initial Note
Registrar. The Bank of New York 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:
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(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.
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
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(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.
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.
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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
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 has been
appointed; 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;
(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.
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16. GENERAL
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16.1 MEETINGS OF US$ NOTEHOLDERS
In the event of a meeting of the US$ Noteholders (including an
adjourned meeting), the Principal Paying Agent shall issue voting
certificates and block voting instructions and otherwise act as
provided in the Note Trust Deed. Each Paying Agent will:
(a) keep a full and complete record of all voting certificates and/or
block voting instructions issued by it; and
(b) deliver to the Trustee, the Trust Manager and the Note Trustee
not later than 48 hours before the time appointed for holding
that meeting full particulars of all voting certificates and
block voting instructions issued by it in respect of that
meeting.
16.2 AGENCY
Subject to any other provision of this agreement including, without
limitation, clause 7, each Paying Agent, the Calculation Agent and the
Note Registrar shall act solely for and as agent of the Trustee and
shall not have any obligations towards or relationship of agency or
trust with any person entitled to receive payments of principal and/or
interest on the US$ Notes and shall be responsible only for performance
of the duties and obligations expressly imposed upon it in this
agreement.
16.3 IDENTITY
Each Paying Agent shall (except as ordered by a court of competent
jurisdiction or as required by law) be entitled to treat the person:
(a) who is, while a Class A Global Note, Class AB Global Note or
Class B 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 a Common Depository as the holder of any US$ Note
represented by a Global Note shall be entitled to receive from,
while a Class A Global Note, a Class AB Global Note or a Class B
Global Note remains outstanding, the registered owner of that
Global Note; and
any payment so made in accordance with the respective rules and
procedures of that Clearing Agency and on the terms and subject
to the conditions of that Global Note;
(b) who is the registered owner of any Definitive Note as the
absolute owner or owners of that Definitive Note (whether or not
that Definitive Note is overdue and despite any notice of
ownership or writing on it or any notice of previous loss or
theft or of any trust or other interest in it); or
(c) who, when a Global Note is no longer outstanding but Definitive
Notes in respect of the US$ Notes have not been issued, is for
the time being the Note Trustee, as the person entrusted with the
receipt of principal or interest, as applicable, on behalf of the
relevant US$ Noteholders,
and in all cases and for all purposes despite any notice to the
contrary and shall not be liable for so doing.
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16.4 NO SET-OFF
No Paying Agent shall exercise any right of set-off, withholding,
counterclaim or lien against, or make any deduction in any payment to,
any person entitled to receive amounts of principal or interest on the
US$ Notes in respect of moneys payable by it under this agreement.
16.5 RELIANCE
Each of the Calculation Agent, the Note Registrar and the Paying Agents
shall be protected and shall incur no liability for or in respect of
any action taken, omitted or suffered by it in reliance upon any
instruction, request or order from the Trustee or the Trust Manager or
in reliance upon any US$ Note or upon any notice, resolution,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been
delivered, signed or sent by the proper party or parties.
16.6 ENTITLED TO DEAL
None of the Calculation Agent, the Note Registrar or the Paying Agents
or any director or officer of the same shall be precluded from
acquiring, holding or dealing in any US$ Note 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 US$
Notes for any profit made or fees or commissions received in connection
with this agreement or any US$ Notes.
16.7 CONSULTATION
Each of the Calculation Agent, the Note Registrar and the Paying Agents
may consult as to legal matters with lawyers selected by it, who may be
employees of or lawyers to the Trustee, the Trust Manager, the relevant
Paying Agent, the Note Registrar or the Calculation Agent.
16.8 DUTIES
Each of the Calculation Agent, the Note Registrar and the Paying Agents
shall perform the duties, and only the duties, contained in or
reasonably incidental to this agreement and the Conditions and in the
US$ Notes and no implied duties or obligations (other than general laws
as to agency) shall be read into this agreement or the US$ Notes
against any Paying Agents, the Note Registrar or the Calculation Agent.
None of the Calculation Agent, the Note Registrar or the Paying Agents
shall be required to take any action under this agreement which would
require it to incur any expense or liability, for which (in its
reasonable opinion) either it would not be reimbursed within a
reasonable time or in respect of which it has not been indemnified to
its satisfaction.
17. CHANGES IN PAYING AGENTS AND CALCULATION AGENT
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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:
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(a) appoint:
(i) additional or alternative Paying Agents; or
(ii) an alternative Calculation Agent;
(b) subject to this clause 17, terminate the appointment of any
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 effect not less than 60 days' from that
notice, which date shall be not less than 10 days
before nor 10 days after any due date for payment of
any US$ Notes.
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 not be given
less than 30 days before or 30 days after any due date for payment of
any US$ Notes.
17.3 LIMITATION
Despite clauses 17.1 and 17.2:
(a) no resignation by or termination of the appointment of the
Principal Paying Agent shall take effect until a new Principal
Paying Agent has been appointed;
(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;
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(c) no appointment or termination of the appointment of any Paying
Agent or the Calculation Agent (as the case may be) shall take
effect unless and until notice has been given to the US$
Noteholders in accordance with the relevant Conditions; and
(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).
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 US$
Note and shall deliver to the successor Principal Paying Agent all
records maintained by it pursuant to this agreement and all documents
(including any Definitive Notes) 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; or
(iv) to which a Paying Agent sells or otherwise transfers
all or substantially all the assets of its corporate
trust business,
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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;
(iii) resulting from any merger or consolidation to which the
Calculation Agent is a party; or
(iv) to which the Calculation Agent sells or otherwise
transfers all or substantially all the assets of its
corporate trust business,
shall, on the date when that merger, conversion, consolidation,
sale or transfer becomes effective and to the extent permitted by
applicable law, become the successor Calculation Agent under this
agreement without the execution or filing of any agreement or
document or any further act on the part of the parties to this
agreement, unless otherwise required by the Trustee or the Trust
Manager, and after that effective date all references in this
agreement to the Calculation Agent shall be references to that
corporation.
17.7 NOTICE TO US$ NOTEHOLDERS
The Trust Manager on behalf of the Trustee shall, within 14 days of:
(a) the termination of the appointment of any Paying Agent or the
Calculation Agent;
(b) the appointment of a new Paying Agent or Calculation Agent; or
(c) the resignation of any Paying Agent or Calculation Agent,
give to the US$ Noteholders notice of the termination, appointment or
resignation in accordance with 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).
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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, or such other jurisdiction as
the Calculation Agent, the Trustee and the Trust Manager agree
from time to time), or to nominate a further Specified Office, it
must give to the Trustee, the Trust Manager and the Note Trustee,
not less than 30 days' prior written notice of that change,
giving the address of the new Specified Office and stating the
date on which the change is to take effect.
(c) The Trust Manager, on behalf of the Trustee, must, within 14 days
of receipt of a notice under paragraph (a) (unless the
appointment is to terminate pursuant to clause 17.1 on or prior
to the date of that change) give to the US$ Noteholders notice in
accordance with the relevant 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 US$ Notes remain outstanding the
administration fee separately agreed by the Principal Paying
Agent and the Trust Manager (on behalf of the Trustee), together
with any out-of-pocket expenses properly incurred (including any
legal fees and expenses). If the appointment of the Principal
Paying Agent is terminated under this agreement, the Principal
Paying Agent must refund to the Trustee that proportion of the
fee (if any) which relates to the period during which the
Principal Paying Agent will not be the Principal Paying Agent.
(b) The Trustee shall pay to the Calculation Agent during the period
when any of the US$ Notes remain outstanding the fee separately
agreed by the Calculation Agent, the Trust Manager and the
Trustee, together with any out-of-pocket expenses properly
incurred (including any legal fees and expenses). If the
appointment of the Calculation Agent is terminated under this
agreement, the Calculation Agent must refund to the Trustee that
proportion of the fee (if any) which relates to the period during
which the Calculation Agent will not be the Calculation Agent.
(c) The Trustee shall pay to the Note Registrar during the period
when any of the US$ Notes remain outstanding the fee separately
agreed by the Note Registrar, the Trust Manager and the Trustee,
together with any out-of-pocket expenses reasonably incurred
(including any legal fees and expenses). If the appointment of
the Note Registrar is terminated under this agreement, the Note
Registrar must refund to the Trustee that proportion of the fee
(if any) which relates to the period during which the Note
Registrar will not be the Note Registrar.
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(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.
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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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
US$ Notes would be withdrawn or reduced as a result of the assignment,
except for the creation of a charge by the Trustee under the Security
Trust Deed.
22. NOTICES
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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:
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(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:
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
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THE SERVICER
INTERSTAR SECURITIES (AUSTRALIA) 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 NOTE TRUSTEE
THE BANK OF NEW YORK
101 Barclay Street
21W New York, New York 10286
United States
Tel: +1 212 815 5881
Telex: N/A
Fax: +1 212 815 5915/5917
Attention: Corporate Trust - Global Structured Finance
THE PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
101 Barclay Street
21W New York, New York 10286
United States
Tel: +1 212 815 5881
Telex: N/A
Fax: +1 212 815 5915/5917
Attention: Corporate Trust - Global Structured Finance
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THE NOTE REGISTRAR
THE BANK OF NEW YORK
101 Barclay Street
21W New York, New York 10286
United States
Tel: +1 212 815 5881
Telex: N/A
Fax: +1 212 815 5915/5917
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 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
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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;
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a court
of a receiver to any of the assets of the Trustee;
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(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 )
in the presence of: )
-----------------------------------
Signature
----------------------------------- -----------------------------------
Signature Print name
----------------------------------- -----------------------------------
Print name Office held
PRINCIPAL PAYING AGENT
SIGNED on behalf of )
THE BANK OF NEW YORK )
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 )
in the presence of: )
-----------------------------------
Signature
----------------------------------- -----------------------------------
Signature Print name
----------------------------------- -----------------------------------
Print name Office held
NOTE REGISTRAR
SIGNED on behalf of )
THE BANK OF NEW YORK )
in the presence of: )
-----------------------------------
Signature
----------------------------------- -----------------------------------
Signature Print name
----------------------------------- -----------------------------------
Print name Office held
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</TEXT>
</DOCUMENT>