Agency Agreement
PERPETUAL TRUSTEES VICTORIA LIMITED
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
INTERSTAR WHOLESALE FINANCE PTY LIMITED
THE BANK OF NEW YORK
AIB/BNY FUND MANAGEMENT (IRELAND) LIMITED
Interstar Millennium Trusts
Interstar Millennium Series 2005-1G Trust
ALLENS ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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
1.7 GST 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 5
3.6 Late payment 6
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 8
7. NOTE TRUSTEE 9
8. EARLY REDEMPTION OF CLASS A NOTES 10
9. PRO RATA REDEMPTION, PURCHASES AND CANCELLATION OF NOTES 10
10. NOTICES TO CLASS A NOTEHOLDERS 11
11. DOCUMENTS AND FORMS 11
12. AUTHENTICATION 12
13. INDEMNITY 12
14. THE NOTE REGISTER 13
14.1 Appointment of Note ▇▇▇▇▇▇▇▇▇ ▇▇
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 ▇▇▇▇▇▇▇▇▇ ▇▇
15.1 Removal 15
15.2 Resignation 15
15.3 Limitation 15
15.4 Successor to Note ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. GENERAL 16
16.1 Meetings of Class A Noteholders 16
16.2 Agency 16
16.3 Identity 16
16.4 No set-off 17
16.5 Reliance 17
16.6 Entitled to deal 17
16.7 Consultation 17
16.8 Duties 17
16.9 European Union Tax Directive 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 19
17.5 Successor Paying Agents 19
17.6 Successor to Calculation Agent 20
17.7 Notice to Class A Noteholders 21
17.8 Change in Paying Office or Specified Office 21
18. FEES AND EXPENSES 21
19. WAIVERS, REMEDIES CUMULATIVE 22
20. SEVERABILITY OF PROVISIONS 22
21. ASSIGNMENTS 23
22. NOTICES 23
22.1 General 23
22.2 Details 23
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 2005
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PARTIES
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1. PERPETUAL TRUSTEES VICTORIA LIMITED (ABN 47 004 027 258) of ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ in its capacity as trustee of
Interstar Millennium Series 2005-1G 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 WHOLESALE FINANCE PTY LIMITED (ABN 72 087 271 109) of ▇▇▇▇▇
▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ in its capacity as
Servicer (the SERVICER); and
4. THE BANK OF NEW YORK of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇ as principal paying agent for the Class 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 Class
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 Class A 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 Class 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).
5. AIB/BNY FUND MANAGEMENT (IRELAND) LIMITED of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ of Ireland as Irish paying agent (the
IRISH PAYING AGENT, which expression shall, wherever the context
requires, include any successor Irish paying agent from time to time
under this agreement).
RECITALS
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A The Trustee proposes to issue US$[1,000,000,000] of Class A Mortgage
Backed Floating Rate Notes (the CLASS A NOTES).
B The Class A Notes, upon original issue, will be issued in the form of
a Class A Global Note. The Trustee shall, on the date of this deed,
deliver or arrange the delivery on its behalf of each Global Note for
Class A Notes to the Principal Paying Agent, as agent for the
relevant Clearing Agency. Each Global Note for Class A 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 Class A Note,
except as provided in the Note Trust Deed.
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C The Class A Notes will be constituted by the Note Trust Deed, the
Series Notice and the Master Trust Deed.
D The Class A Notes will be secured on the terms of the Security Trust
Deed.
E The Trustee wishes to appoint the Principal Paying Agent as principal
paying agent in respect of the Class A 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 Class 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 Note Registrar as note registrar in
respect of the Class 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 Irish Paying Agent as its paying
agent in the Republic of Ireland in respect of the Class A Notes only
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.
EU TAX DIRECTIVE means the European Union Council Directive 2003/48/EC on
the taxation of savings income which was adopted on 3 June 2003, or any law
or regulation implementing or complying with, or introduced to conform with
such directive.
MASTER TRUST DEED means the Master Trust Deed for the Interstar Millennium
Trusts dated 2 December 1999 between the Trustee as trustee and the
Servicer.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust dated
[[27] April] 2005 issued under the Master Trust Deed in relation to the
Trust.
PAYING AGENT means any person for the time being appointed as a Paying
Agent under this agreement and includes the Principal Paying Agent and the
Irish Paying Agent.
PAYING OFFICE means, in relation to a Paying Agent and any Class A Notes,
the office of the Paying Agent specified in those Class A Notes or
otherwise under this agreement or the Note Trust Deed as the office at
which payments in respect of those Class A Notes will be made as changed
from time to time in accordance with this agreement.
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SERIES NOTICE means the Series Notice dated on or about the date of this
agreement relating to the Trust.
SPECIFIED OFFICE means, in relation to the Calculation Agent, the office of
the Calculation Agent specified under this agreement as the office at which
the Calculation Agent will carry out its duties under this agreement.
TRUST means the trust known as the Interstar Millennium Series 2005-1G
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.
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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).
1.7 GST
If a payment to a party (the SUPPLIER) by another party (the RECIPIENT)
under this agreement is calculated by reference to a loss, cost, expense or
outgoing incurred by the Supplier, then the calculation of that payment is
to be reduced by the amount of any input tax credit to which the Supplier
is entitled for that loss, cost, expense or outgoing. The Recipient must
pay to the Supplier an additional amount on account of GST (equal to the
GST payable by the Supplier to the Australian Taxation Office) where the
reimbursement is consideration for a taxable supply made by the Supplier.
2. APPOINTMENT OF PAYING AGENTS
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(a) Subject to the terms of this agreement, the Trustee (acting on the
direction of the Trust Manager) appoints the Principal Paying Agent as
its principal paying agent, the Irish Paying Agent as its paying agent
with a Paying Office in the Republic of Ireland and each other Paying
Agent as its paying agent, for making payments in respect of the Class
A Notes in accordance with the Transaction Documents and the relevant
Conditions at their respective Paying Offices. The Principal Paying
Agent and the Irish 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.
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(d) It is acknowledged and agreed that:
(i) subject to clause 7, each of the Principal Paying Agent and the
Irish Paying Agent 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 Class A Notes 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 Class 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 Class
A 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 Class 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 Class A 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.
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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 Class A 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 Class A
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 Class A Notes made
after 1.00pm (New York time) on a Payment Date, make payments
required to be made by it in respect of the Class A 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 Class 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 Class A 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 Class 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 Class A 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 Class A Notes or Class A Noteholders
shall, unless otherwise provided by and
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subject to the Class A Currency Swap, be paid by the Class A Currency
Swap Provider on behalf of the Trustee in US$ to the bank account as
the Principal Paying Agent may from time to time notify to the Trustee
and the Note Trustee. Those sums shall be held on account for payment
to the Class A 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) 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
Class A Noteholders all sums held by it for the payment of principal and
interest with respect to the Class A Notes until all relevant sums are paid
to the Note Trustee or the Class 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 Class A 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 Class A 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 Class 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 Class A Notes, until their
final maturity or such earlier date on which the Class A Notes are due
and payable in full and in either case until the Trustee has paid all
amounts due in relation to the Class 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 Class A Notes,
and calculate the relevant Interest and the Interest Rate on the
Class A Notes, in the manner set out in the relevant Condition 4
and confirm with the Class A Currency Swap Provider (using the
contact details notified by the Class A Currency Swap Provider to
the Calculation Agent) that the LIBOR determined under this
agreement is the same as the LIBOR determined by the Class A
Currency Swap Provider under the Class A Currency Swap; and
(iii) notify the Trustee, the Trust Manager, the Note Trustee, the
Paying Agents, the Irish Stock Exchange (for so long as the Class
A Notes are listed on the Irish Stock Exchange) and the Class A
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 the Class 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 the Class 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.
(c) The Interest and Interest Rate for the Class 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 Class 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 Class A
Note, the Trust Manager shall do so and each
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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 Class 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 Class A
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, Calculation Agent
and Irish Paying Agent (in relation to the Class A Notes)
respectively of the Note Trustee on the terms of this agreement
in relation to payments to be made by or on behalf of the Trustee
under the terms of the Note Trust Deed, except that the Note
Trustee's liability under any provisions for the indemnification
of the Calculation Agent and the Paying Agents shall be limited
to any amount for the time being held by the Note Trustee on the
trusts of the Note Trust Deed and which is available to be
applied by the Note Trustee for that purpose; and
(ii) to hold all Definitive Notes, and all amounts, documents and
records held by them in respect of the Class A Notes on behalf of
the Note Trustee; or
(iii) to deliver up all Definitive Notes, and all amounts, documents
and records held by them in respect of the Class A Notes to the
Note Trustee or as the Note Trustee directs in that notice, other
than any documents or records which such Paying Agent or
Calculation Agent (as the case may be) is obliged not to release
by any law or regulation; and
(b) by notice in writing to the Trustee require it to make all subsequent
payments in respect of the Class 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.
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8. EARLY REDEMPTION OF CLASS A NOTES
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(a) If the Trustee intends to redeem the Class A 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 Class A Noteholders in
accordance with the relevant Condition 5(b)(ii), 5(b)(iii), 5(f) or
5(g) (as the case may be) and stating the Payment Date on which such
Class 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 Class A Notes to be
redeemed;
(B) the amount of principal to be repaid in relation to Class A
Notes; and
(C) the date on which the Class 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 Class 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 Class A
Notes to be redeemed and the date on which such Class A Notes are to
be redeemed.
(c) For so long as the Class A Notes are listed on the Irish Stock
Exchange, the Trust Manager on behalf of the Trustee shall ensure that
notice of the matters referred to in paragraph (a) is provided to the
Irish Stock Exchange or such other alternative exchange as agreed
between the Trustee, the Note Trustee and the Trust Manager (if
required).
(d) 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 Class A
Note due on the Payment Date next following that Determination
Date; and
(ii) the Principal Amount of each Class A Note on the first day of the
next following Interest Period for the Class 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, the
Irish Paying Agent and the Class A Currency
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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.
(e) 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.
(f) If no principal is due to be repaid on the Class A 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 in
accordance with the relevant Condition 12.
(g) If any Class A 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 is still
outstanding, cause the Note Registrar to record all relevant details
in the Note Register.
10. NOTICES TO CLASS 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 Class 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 Class 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 or the Irish Stock Exchange
(for so long as the Class A Notes are listed on the Irish Stock
Exchange) to be available to Class 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 Class 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 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 Class 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). The Principal Paying Agent shall not be required
to authenticate or cause to be authenticated any Global Note or Definitive
Note unless directed to do so in writing by the Trust Manager, or by the
Trustee at the direction of the Trust Manager.
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 default or gross negligence 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 default or gross negligence 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 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:
(a) (NAME) the name of the Trust;
(b) (CREATION) the date of the creation of the Trust;
(c) (ISSUE DATES) the Issue Dates for Class A Notes issued in relation to
the Trust;
(d) (INITIAL PRINCIPAL AMOUNT) the total Initial Principal Amount of Class
A Notes issued on each such Issue Date;
(e) (PRINCIPAL AMOUNT) the Principal Amount of each Class A Note from time
to time;
(f) (DETAILS OF NOTEHOLDERS) the name and address of each Class A
Noteholder;
(g) (NUMBER OF NOTES) the number of Class A Notes held by each Class A
Noteholder;
(h) (DATE OF ENTRY) the date on which a person was entered as the holder
of Class A Notes;
(i) (DATE OF CESSATION) the date on which a person ceased to be a Class A
Noteholder;
(j) (ACCOUNT) the account to which any payments due to a Class A
Noteholder are to be made (if applicable);
(k) (PAYMENTS) a record of each payment in respect of the Class A 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 Class A Notes.
14.3 PAYMENTS OF PRINCIPAL AND INTEREST
(a) Any payment of principal or interest on any Class A Note shall be
endorsed by the Note Registrar on the Note Register. In the case of
payments of principal, the Principal Amount of the Class A Notes shall
be reduced for all purposes by the amount so paid and endorsed on the
Note Register. Any such record shall be prima facie evidence that the
payment in question has been made.
(b) If the amount of principal or interest (as the case may be) due for
payment on any Class A 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 CLASS A NOTEHOLDERS) open for inspection by a Class A
Noteholder during normal business hours but only in respect of
information relating to that Class A Noteholder; and
(d) (NOT FOR COPYING) not available to be copied by any person (other than
the Trustee or the Trust Manager) except in compliance with such terms
and conditions (if any) as the Trust Manager, the Trustee and the Note
Registrar in their absolute discretion nominate from time to time.
14.5 DETAILS ON NOTE REGISTER CONCLUSIVE
(a) (RELIANCE ON REGISTER) The Trustee shall be entitled to rely on the
Note Register as being a correct, complete and conclusive record of
the matters set out in it at any time and whether or not the
information shown in the Note Register is inconsistent with any other
document, matter or thing. The Trustee is not liable to any person in
any circumstances whatsoever for any inaccuracy in, or omission from,
the Note Register.
(b) (NO TRUSTS ETC) The Note Registrar shall not be obliged to enter on
the Note Register notice of any trust, Security Interest or other
interest whatsoever in respect of any Class A Notes and the Trustee
shall be entitled to recognise a Class A Noteholder as the absolute
owner of Class A Notes and the Trustee shall not be bound or affected
by any trust affecting the ownership of any Class A 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 Class A Noteholder by the Class A Noteholder,
the Note Registrar shall alter the Note Register accordingly.
14.7 RECTIFICATION OF NOTE REGISTER
If:
(a) an entry is omitted from the Note Register;
(b) an entry is made in the Note Register otherwise than in accordance
with this agreement;
(c) an entry wrongly exists in the Note Register;
(d) there is an error or defect in any entry in the Note Register; or
(e) default is made or unnecessary delay takes place in entering in the
Note Register that any person has ceased to be the holder of Class A
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 default or
gross negligence.
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,
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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 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 CLASS A NOTEHOLDERS
In the event of a meeting of the Class 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
Class A 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 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 Class A Note represented by a Global Note shall be entitled to
receive from, while a Class A 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 Class A Notes have not been issued, is for the time
being the Note Trustee, as the person
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entrusted with the receipt of principal or interest, as applicable, on
behalf of the relevant Class 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 Class 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 Class A 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 Class A 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 Class A Notes for any profit made or fees
or commissions received in connection with this agreement or any Class 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.
16.8 DUTIES
Each of the Calculation Agent, the Note Registrar and the Paying Agents
shall perform the duties, and only the duties, contained in or reasonably
incidental to this agreement and the Conditions and in the Class A Notes
and no implied duties or obligations (other than general laws as to agency)
shall be read into this agreement or the Class A 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.
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16.9 EUROPEAN UNION TAX DIRECTIVE
(a) The obligations of the Paying Agent with respect to the Class A Notes
under this agreement are subject to:
(i) the provisions of the EU Tax Directive; adn
(ii) the "beneficial owner" (as defined in the EU Tax Directive)
providing to that Paying Agent such information and documents (if
any) required by that Paying Agent in order for it to comply with
the EU Tax Directive.
(b) The Trustee authorises each Paying Agent to make mandatory disclosures
required by the EU Tax Directive to be made to the competent authority
of the member state of the European Union of that Paying Agent.
(c) The Trustee is not liable in any way for any loss or reduction in
payment in relation to a Class A Note due to the operation of this
clause 16.9.
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) 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 Class A Notes.
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17.2 RESIGNATION
Subject to this clause 17, a Paying Agent or the Calculation Agent may
resign its appointment under this agreement at any time by giving to the
Trustee, the Trust Manager, each Designated Rating Agency and (where a
Paying Agent is resigning and the Paying Agent is not the Principal Paying
Agent) the Principal Paying Agent not less than 60 days' written notice to
that effect, which notice shall not be given less than 30 days before or 30
days after any due date for payment of any Class A 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;
(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 Class A 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 Class A 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
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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,
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
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Agent under this agreement without the execution or filing of any
agreement or document or any further act on the part of the parties to
this agreement, unless otherwise required by the Trustee or the Trust
Manager, and after that effective date all references in this
agreement to the Calculation Agent shall be references to that
corporation.
17.7 NOTICE TO CLASS 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 Class 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, or such other jurisdiction as the
Calculation Agent, the Trustee and the Trust Manager agree from time
to time), or to nominate a further Specified Office, it must give to
the Trustee, the Trust Manager and the Note Trustee, not less than 30
days' prior written notice of that change, giving the address of the
new Specified Office and stating the date on which the change is to
take effect.
(c) The Trust Manager, on behalf of the Trustee, must, within 14 days of
receipt of a notice under paragraph (a) (unless the appointment is to
terminate pursuant to clause 17.1 on or prior to the date of that
change) give to the Class 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).
18. FEES AND EXPENSES
--------------------------------------------------------------------------------
(a) The Trustee shall pay to the Principal Paying Agent during the period
when any of the Class A 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 legal, notarial, communications
and travelling 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.
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(b) The Trustee shall pay to the Calculation Agent during the period when
any of the Class 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 legal,
notarial, communications and travelling fees and expenses). If the
appointment of the Calculation Agent is terminated under this
agreement, the Calculation Agent must refund to the Trustee that
proportion of the fee (if any) which relates to the period during
which the Calculation Agent will not be the Calculation Agent.
(c) The Trustee shall pay to the Note Registrar during the period when any
of the Class A Notes remain outstanding the fee separately agreed by
the Note Registrar, the Trust Manager and the Trustee, together with
any out-of-pocket expenses reasonably incurred (including legal,
notarial, communications and travelling fees and expenses). If the
appointment of the Note Registrar is terminated under this agreement,
the Note Registrar must refund to the Trustee that proportion of the
fee (if any) which relates to the period during which the Note
Registrar will not be the Note Registrar.
(d) Save as provided in paragraphs (a), (b) and (c), or as expressly
provided elsewhere in this agreement, neither the Trustee nor the
Trust Manager shall have any liability in respect of any fees or
expenses of the Calculation Agent, Note Registrar, Principal Paying
Agent or any other Paying Agent in connection with this agreement.
(e) The above fees, payments and expenses shall be paid in US dollars and
the Trustee shall in addition pay any GST which may be applicable. The
Principal Paying Agent shall arrange for payment of commissions to the
other Paying Agents and arrange for the reimbursement of their
expenses promptly upon demand, supported by evidence of that
expenditure, and provided that payment is made as required by
paragraph (a) the Trustee shall not be concerned with or liable in
respect of that payment.
19. WAIVERS, REMEDIES CUMULATIVE
--------------------------------------------------------------------------------
(a) No failure to exercise and no delay in exercising any right, power or
remedy under this agreement operates as a waiver. Nor does any single
or partial exercise of any right, power or remedy preclude any other
or further exercise of that or any other right, power or remedy.
(b) The rights, powers and remedies provided to a party in this agreement
are in addition to, and do not exclude or limit, any right, power or
remedy provided by law.
20. SEVERABILITY OF PROVISIONS
--------------------------------------------------------------------------------
Any provision of this agreement which is prohibited or unenforceable in any
jurisdiction is ineffective as to that jurisdiction to the extent of the
prohibition or unenforceability. That does not invalidate the remaining
provisions of this agreement nor affect the validity or enforceability of
that provision in any other jurisdiction.
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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 Class 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
--------------------------------------------------------------------------------
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:
THE TRUSTEE
PERPETUAL TRUSTEES VICTORIA LIMITED
▇▇▇▇▇ ▇
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Tel: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Attention: Manager, Securitisation
THE TRUST MANAGER
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Tel: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Attention: Chief Financial Officer
THE SERVICER
INTERSTAR WHOLESALE FINANCE PTY LIMITED
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Tel: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Attention: Chief Financial Officer
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THE NOTE TRUSTEE
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10286
United States of America
Tel: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: N/A
Fax: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Corporate Trust - Global Structured Finance
THE PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10286
United States of America
Tel: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: N/A
Fax: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Corporate Trust - Global Structured Finance
THE NOTE REGISTRAR
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: N/A
Fax: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Corporate Trust - Global Structured Finance
THE IRISH PAYING AGENT
AIB/BNY FUND MANAGEMENT (IRELAND) LIMITED
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
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Telex: Not applicable
Fax: ▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Attention: Chief Operating Officer
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).
(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
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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
Registrar, the Approved Seller, 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;
(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.
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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
--------------------------------------------------------------------------------
This agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of the courts exercising
jurisdiction there.
26. SUCCESSOR TRUSTEE
--------------------------------------------------------------------------------
Each Paying Agent, the Calculation Agent and the Note Registrar shall do
all things reasonably necessary to enable any successor Trustee appointed
under clause 23 of the Master Trust Deed to become the Trustee under this
agreement.
EXECUTED as an agreement.
Each attorney executing this agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.
TRUSTEE
SIGNED on behalf of )
PERPETUAL TRUSTEES VICTORIA )
LIMITED )
in the presence of: )
--------------------------------------
Signature
----------------------------------------- --------------------------------------
Signature Print name
----------------------------------------- --------------------------------------
Print name Office held
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TRUST MANAGER
SIGNED on behalf of )
INTERSTAR SECURITISATION )
MANAGEMENT PTY LIMITED )
in the presence of: )
--------------------------------------
Signature
----------------------------------------- --------------------------------------
Signature Print name
----------------------------------------- --------------------------------------
Print name Office held
SERVICER
SIGNED on behalf of )
INTERSTAR WHOLESALE FINANCE 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
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PRINCIPAL PAYING AGENT
SIGNED on behalf of )
THE BANK OF NEW YORK )
in the presence of: )
--------------------------------------
Signature
----------------------------------------- --------------------------------------
Signature Print name
----------------------------------------- --------------------------------------
Print name Office held
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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IRISH PAYING AGENT
SIGNED on behalf of )
AIB/BNY FUND MANAGEMENT )
(IRELAND) LIMITED
in the presence of: )
--------------------------------------
Signature
----------------------------------------- --------------------------------------
Signature Print name
----------------------------------------- --------------------------------------
Print name Office held
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