Exhibit 4.8
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DATED [ ] 2001
KINGFISHER TRUST 2001-1G
AGENCY AGREEMENT
PERPETUAL TRUSTEE COMPANY LIMITED
("TRUSTEE")
ANZ CAPEL COURT LIMITED
("TRUST MANAGER")
THE BANK OF NEW YORK, NEW YORK
BRANCH
("NOTE TRUSTEE")
THE BANK OF NEW YORK, NEW YORK
BRANCH
("CLASS A NOTE REGISTRAR")
THE BANK OF NEW YORK, NEW YORK
BRANCH
("PRINCIPAL PAYING AGENT" AND
"CALCULATION AGENT")
THE BANK OF NEW YORK, LONDON
BRANCH ("LONDON PAYING AGENT")
MALLESONS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Solicitors
Governor ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Telephone (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Fax (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
DX ▇▇▇ ▇▇▇▇▇▇
Ref: SRF:BCC
Copyright--Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(i)
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CONTENTS KINGFISHER TRUST 2001-1G AGENCY AGREEMENT
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1 DEFINITIONS AND INTERPRETATION 1
Definitions Schedule 1
Definitions 2
2 APPOINTMENT OF AGENTS 3
Appointment of Agents 3
Acceptance of appointment 3
Representation by each Agent 3
Additional Agents 4
3 THE NOTE TRUSTEE 4
Agents to act for Note Trustee 4
Good Discharge to Trustee 4
Notice of change of the Note Trustee 5
4 PAYMENTS 5
Payments of amounts due 5
Payments by Principal Paying Agent 5
Notification 5
Paying Agents to Record, Notify Payments and
Deliver Surrendered Notes 6
Make payments 6
Non-Payment 6
Full amount not received 6
Interest on overdue amounts 7
Reimburse other Agents 7
Late payment 7
Partial payments 7
Deductions 8
Unpaid money 8
No Set-off 8
Currency Swaps 8
5 EXCHANGE OF CLASS A BOOK ENTRY NOTES 8
Exchange for Class A Definitive Notes 8
Notification 9
Outstanding amount 9
6 REDEMPTION 9
Part Redemption of Notes on Payment Dates 9
Early Redemption 9
7 GENERAL NOTE REGISTRAR AND PAYING AGENT
MATTERS 10
Notices to Class A Note Holders 10
Copies of Documents for inspection 10
Notice of any Withholding or Deduction 10
8 COPIES OF DOCUMENTS AVAILABLE FOR INSPECTION 11
9 DOCUMENTS AND FORMS 11
Principal Paying Agent 11
(ii)
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Notes, etc held by Paying Agents 11
10 RECEIPT OF NOTICES AND VOTING 12
Copy notices to Trustee 12
Voting 12
11 DUTIES OF CALCULATION AGENT 12
Appointment 12
Quotations 12
Notice 12
Calculations 13
Failure to calculate 13
12 DUTIES OF THE CLASS A NOTE ▇▇▇▇▇▇▇▇▇ ▇▇
Class A Note Register to be kept 13
Transfer or Exchange of Class A Notes 14
Replacement of Lost or Mutilated Class A Notes 14
Obligations upon Transfer, Exchange or
Replacement of Class A Notes 15
No Charge for Transfer or Exchange 15
Restricted Period 15
Cancellation of Class A Notes 16
Provision of Information and Inspection of
Register 16
Correctness of Register and Information 16
Non-recognition of Equitable Interests 16
Rectification of Class A Note Register 17
13 RELATIONSHIP 17
No other obligation 17
Instructions 17
No instructions 17
Agent of the Trustee 18
Trustee not responsible for Agents 18
Reliance 18
Agent may employ 18
Applicable laws 18
Accept deposits etc 18
Dealing with money 19
Income Tax Returns 19
Holders of Notes 19
Note or document believed to be genuine 19
Agents as holders of Notes 20
Communication between the Parties 20
Termination 20
Publication 21
Termination of appointment 21
New Agents 21
Merger 21
Notice to Class A Note Holder 22
Change of specified office 22
14 STAMP DUTIES AND INDEMNITIES 22
Stamp duties 22
Indemnity by Trustee 23
(iii)
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Indemnity by Agents 23
15 COMMISSIONS AND EXPENSES 23
Principal Paying Agent 23
Other Agents 23
16 TRUSTEE'S LIMITATION OF LIABILITY 24
Limitation on Trustee's liability 24
Claims against Trustee 24
Breach of Trust 24
Acts or omissions 24
17 NOTICES 25
Form 25
Initial addresses 25
Time effective 25
Receipt 25
18 MISCELLANEOUS 26
Certificate 26
Exercise of rights 26
Waiver and variation 26
Supervening legislation 26
Approvals and consent 27
Remedies cumulative 27
Indemnities 27
Time of the essence 27
Receipts 27
Acknowledgment 27
Disclosure of information 27
Rights cumulative 28
Signatures 28
Limitation of Note Trustee's Liability 28
19 AMENDMENT 28
20 GOVERNING LAW AND SUBMISSION TO JURISDICTION 28
Governing Law 28
Submission to jurisdiction 28
Service 29
21 COUNTERPARTS 29
SCHEDULE INITIAL CONTACT DETAILS 30
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KINGFISHER TRUST 2001-1G
AGENCY AGREEMENT
DATE: [ ] 2001
PARTIES: PERPETUAL TRUSTEE COMPANY LIMITED
(ABN 42 000 001 007) having its registered office at
▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ in its
capacity as trustee of the Kingfisher Trust 2001-1G
("TRUSTEE")
ANZ CAPEL COURT LIMITED (ABN 30 004 768 807) having its
registered office at ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ("TRUST MANAGER") THE BANK OF
NEW YORK, NEW YORK BRANCH, a New York banking corporation
acting through its New York branch at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("NOTE TRUSTEE") THE BANK
OF NEW YORK, NEW YORK BRANCH, a New York banking
corporation acting through its New York branch at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("CLASS A
NOTE REGISTRAR") THE BANK OF NEW YORK, NEW YORK BRANCH, a
New York banking corporation acting through its New York
branch at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("PRINCIPAL PAYING AGENT" AND "CALCULATION Agent")
THE BANK OF NEW YORK, LONDON BRANCH, a New York banking
corporation acting through its London branch at ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("LONDON PAYING
AGENT")
RECITALS:
A. The Trustee in its capacity as trustee of the Trust
wishes to issue the Class A Notes.
B. The Trustee wishes to appoint each Agent in respect of
the Class A Notes and each of them has accepted their
appointments on the terms set out in this agreement.
OPERATIVE PROVISIONS:
1 DEFINITIONS AND INTERPRETATION
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DEFINITIONS SCHEDULE
1.1 In this agreement:
DEFINITIONS SCHEDULE means the deed entitled "Kingfisher
Master Trusts Master Definitions Schedule" dated 1 August
2000 between the Trust Manager, the Trustee and P.T.
Limited as amended by the deed entitled "Kingfisher
Master Trusts Amending Deed" dated 16 May 2001.
SUPPLEMENTAL DEED means the deed entitled "Kingfisher
Trust 2001-1G Supplemental Deed" dated on or about the
date of this agreement between the Trust Manager, the
Trustee and others.
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1.2 Except to the extent to which words and phrases are
otherwise defined in this agreement, words and phrases
defined in the Definitions Schedule or the Supplemental
Deed in respect of the Trust shall bear the same meaning
in this agreement with references to "this deed" being
construed as references to "this agreement". In the event
of any inconsistency between a definition in this
agreement and a definition in the Definitions Schedule,
the definitions in this agreement will prevail. In the
event of any inconsistency between a definition in the
Definitions Schedule and a definition in the Supplemental
Deed, the definition in the Supplemental Deed will
prevail. Any amendment to the Definitions Schedule will
only apply to this agreement if made in accordance with
this agreement.
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions
Schedule are incorporated into this agreement as if those
clauses were set out in full with references to "this
deed" being construed as references to "this agreement".
DEFINITIONS
1.4 The following words have these meanings in this agreement
unless the contrary intention appears.
AGENT means a several reference to each Paying Agent, the
Class A Note Registrar and the Calculation Agent.
CALCULATION AGENT means The Bank of New York, New York
Branch, or if The Bank of New York, New York Branch
resigns or its appointment is terminated as calculation
agent, the person from time to time appointed in its
place to perform the functions of the calculation agent
under this agreement.
CLASS A NOTE REGISTRAR means The Bank of New York, New
York Branch, or if The Bank of New York, New York Branch
resigns or its appointment is terminated as Class A Note
registrar, the person from time to time appointed in its
place to perform the functions of the Class A Note
registrar under this agreement.
PAYING AGENT means the London Paying Agent, or, if the
London Paying Agent resigns or its appointment is
terminated as paying agent, the person from time to time
appointed in its place to perform the functions of a
paying agent under this agreement and, except where the
context otherwise requires, includes the Principal Paying
Agent.
PRINCIPAL PAYING AGENT means The Bank of New York, New
York Branch, or, if The Bank of New York, New York Branch
resigns or its appointment is terminated as principal
paying agent, the person from time to time appointed in
its place to perform the functions of the principal
paying agent under this agreement.
TRUST means the Kingfisher Trust 2001-1G.
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2 APPOINTMENT OF AGENTS
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APPOINTMENT OF AGENTS
2.1 The Trustee:
(a) at the direction of the Trust Manager, appoints
the Principal Paying Agent at its Specified
Office as its initial principal paying agent;
(b) at the direction of the Trust Manager, appoints
each Paying Agent at its Specified Office or
Specified Offices as its initial paying agents;
(c) at the direction of the Trust Manager, appoints the
Class A Note Registrar at its Specified Office as
its initial Class A Note Registrar;
(d) at the direction of the Trust Manager, appoints
the Calculation Agent at its Specified Office
as its initial calculation agent; and
(e) authorises each Paying Agent from time to time,
as its paying agent, to take the action on its
behalf and to exercise the rights, powers and
remedies and observe the obligations which are
specifically delegated to that Paying Agent by
or under this agreement or which are set out in
the Class A Note Conditions and further rights
and powers which are reasonably incidental to
those delegated rights and powers or are agreed
between the Trustee and the relevant Paying
Agent from time to time including, in the case
of the Principal Paying Agent:
(i) paying sums due on Class A Book Entry
Notes and Class A Definitive Notes;
(ii) if requested by the Note Trustee,
arranging on behalf of the Trustee for
notices to be communicated to the Class A
Note Holders; and
(iii) performing all other obligations and duties
imposed upon it by the Class A Note
Conditions and this agreement.
ACCEPTANCE OF APPOINTMENT
2.2 Each Agent accepts its appointment under clause 2.1. Each
Agent must exercise the rights, powers and remedies, and
observe the obligations which are specifically delegated
to it by or under this agreement or which are set out in
the Class A Note Conditions. The obligations of the
Agents are several and not joint.
REPRESENTATION BY EACH AGENT
2.3 Each Agent represents and warrants that it is duly
qualified to assume its obligations under this agreement.
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ADDITIONAL AGENTS
2.4 The Trustee may from time to time, with the approval
of the Note Trustee, appoint additional or substitute
paying agents, calculation agents or note registrars
in such jurisdictions and locations as it may
consider appropriate. Upon such agent delivering to
the other parties to this agreement an undertaking
(in a form and substance satisfactory to the Note
Trustee) to be bound by the provisions of this
agreement, and supplying the particulars specified in
this agreement, it shall become a party to this
agreement as if originally named as a Paying Agent,
the Calculation Agent or the Class A Note Registrar,
as the case may be. References to "Agent" shall,
where the context permits, include any additional or
substitute agents appointed pursuant to this clause
2.4.
3 THE NOTE TRUSTEE
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AGENTS TO ACT FOR NOTE TRUSTEE
3.1 At any time after an Event of Default has occurred, the
Note Trustee may:
(a) by notice in writing to the Trustee and each Agent,
require each Agent thereafter as far as permitted
by any applicable law and until notified by the
Note Trustee to the contrary:
(i) to act as an agent of the Note Trustee
under the Note Trust Deed and the Class A
Notes on the terms of this agreement
(with consequential amendments as
necessary and except that the Note
Trustee's liability for the
indemnification, remuneration and
expenses of the Agents will be limited to
the amounts for the time being held by
the Note Trustee in respect of the Class
A Notes on the terms of the Note Trust
Deed) and thereafter to hold all Class A
Notes and all moneys, documents and
records held by them in respect of Class
A Notes to the order of the Note Trustee;
or
(ii) to deliver all Class A Notes and all moneys,
documents and records held by it in respect
of the Class A Notes to the Note Trustee or
as the Note Trustee directs in such notice
other than any documents or records which the
relevant Agent 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.
GOOD DISCHARGE TO TRUSTEE
3.2 The payment by or on behalf of the Trustee of its payment
obligations on each Payment Date under the Supplemental
Deed and the Class A Note Conditions to the Note Trustee
in accordance with clause 3.1 is a good discharge to the
Trustee and the Trustee will not be liable for any
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act or omission or default of the Note Trustee during the
period it is required to make payments to the Note
Trustee under clause 3.1.
NOTICE OF CHANGE OF THE NOTE TRUSTEE
3.3 The Trustee shall forthwith give notice to the Agents of
any change in the person or persons acting as the Note
Trustee from time to time.
4 PAYMENTS
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PAYMENTS OF AMOUNTS DUE
4.1 The Trustee shall pay to or to the order of the Principal
Paying Agent, to such account of the Principal Paying
Agent as the Principal Paying Agent shall specify in U.S.
Dollars in same day funds, no later than 12.00pm (New
York time) on each Payment Date, an amount sufficient to
pay the interest on the Invested Amount of the Class A
Notes as set out in the Class A Note Conditions and any
principal amount due to be paid on such Payment Date in
respect of the Class A Notes under the Class A Note
Conditions and this agreement.
The Trustee shall, no later than 12.00pm (New York time)
on the second Business Day prior to each Payment Date,
confirm by facsimile to the Principal Paying Agent that
it has given the bank through which the Trustee is to
make such payment irrevocable instructions for such
payment to the Principal Paying Agent and such bank shall
confirm to the Principal Paying Agent by such means
approved by the Principal Paying Agent that such payment
will be made.
PAYMENTS BY PRINCIPAL PAYING AGENT
4.2 Subject to payment being duly made as provided in clause
4.1 (or the Principal Paying Agent otherwise being
satisfied that the payment will be duly made on the due
date), and subject to clause 6, the Principal Paying
Agent will:
(a) subject to paragraph (b), pay or cause to be paid
to the Class A Note Holders 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 this agreement and
the Class A Note Conditions; and
(b) pay or cause to be paid to the Depository (or,
if applicable, its nominee in whose name the
Class A Book Entry Notes are registered), to
the account specified by the relevant person,
on each Payment Date the relevant amounts of
principal and interest due in respect of the
Class A Notes in accordance with this agreement
and the Class A Note Conditions.
NOTIFICATION
4.3 The Principal Paying Agent will promptly notify each of
the other Agents, the Note Trustee and the Trustee if it
has not, by 12.00pm (New York time) on the second
Business Day prior to any Payment Date, received the
confirmation referred to in clause 4.1 above or has not,
by 12.00pm (New York time) on any Payment Date, received
in full the amount so due. In the absence of such
notification by the
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Principal Paying Agent as provided above, the London
Paying Agent shall be entitled:
(a) to pay the interest on, and the principal of,
the Class A Notes due on such Payment Date; and
(b) (if applicable) to claim any amounts so paid by
it from the Principal Paying Agent.
PAYING AGENTS TO RECORD, NOTIFY PAYMENTS AND DELIVER SURRENDERED NOTES
4.4 Each Paying Agent must:
(a) (NOTIFY CLASS A NOTE REGISTRAR) promptly notify the
Class A Note Registrar of each payment made by it,
or at its direction, to Class A Note Holders in
respect of the Class A Notes;
(b) (RECORDS) keep a full and complete record of each
payment made by it, or at its direction, to Class A
Note Holders and provide copies of such records to
the Trustee, the Trust Manager, the Note Trustee or
the Class A Note Registrar upon request; and
(c) (DELIVER) promptly deliver to the Class A Note
Registrar any Class A Notes surrendered to it
pursuant to Condition 8.2 of the Class A Note
Conditions.
MAKE PAYMENTS
4.5 Subject to the Principal Paying Agent being satisfied in
its discretion that payment will be duly made as provided
in clause 4.1, the Principal Paying Agent and the London
Paying Agent shall pay or cause to be paid all amounts
due in respect of the Class A Notes on behalf of the
Trustee in the manner provided in the Class A Note
Conditions. If any payment provided for in clause 4.1 is
made late but otherwise in accordance with the provisions
of this agreement, the Paying Agents shall nevertheless
make payments in respect of the Class A Notes following
receipt by the Principal Paying Agent of such payment.
NON-PAYMENT
4.6 (NO OBLIGATION ON PAYING AGENTS): If the Trustee fails to
make any payment, unless and until the full amount of the
payment has been made under the terms of this agreement
(except as to the time of making the payment) or other
arrangements satisfactory to the Principal Paying Agent
have been made, none of the Paying Agents are bound to
make any payment in accordance with this clause 4 (but
may, in its discretion, make any such payment).
FULL AMOUNT NOT RECEIVED
4.7 If the amounts received by the Principal Paying Agent in
respect of the Class A Notes pursuant to clause 4.1 are
insufficient to satisfy all claims in respect of all
payments then falling due in respect of the Class A
Notes, the Paying Agents are not obliged to pay any such
claims until the Principal Paying Agent has received the
full amount of all such payments.
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INTEREST ON OVERDUE AMOUNTS
4.8 Without prejudice to clauses 4.3 and 4.7, if the
Principal Paying Agent pays any amounts to the Class A
Note Holders or to the London Paying Agent at the time
when it has not received payment in full in respect of
the relevant Class A Notes in accordance with clause 4.1
(the excess of the amounts so paid over the amounts so
received being the "SHORTFALL"), the Trustee will, in
addition to paying amounts due under clause 4.1, pay to
the Principal Paying Agent on demand, interest (at a rate
which represents the Principal Paying Agent's cost of
funding the Shortfall as evidenced to the Trustee by the
provision of details of the calculation of the cost of
funding) on the Shortfall (or the unreimbursed portion
thereof) until the receipt in full by the Principal
Paying Agent of the Shortfall.
REIMBURSE OTHER AGENTS
4.9 The Trustee authorises and directs the Principal Paying
Agent on demand to promptly reimburse the London Paying
Agent for payments in respect of Class A Notes properly
made by the London Paying Agent in accordance with this
agreement and the Class A Note Conditions unless the
Principal Paying Agent has notified the London Paying
Agent prior to the opening of business in the location of
the office of the London Paying Agent through which
payment in respect of the Class A Notes can be made on
the due date of a payment in respect of the Class A
Notes, that the Principal Paying Agent does not expect to
receive the amount payable by the Trustee or confirmation
(as the case may be) under clause 4.1. The Trustee will
not be responsible for the apportionment of any moneys
between the Principal Paying Agent and the London Paying
Agent and a payment to the Principal Paying Agent of any
moneys due to the Paying Agents will operate as good
discharge to the Trustee in respect of such moneys.
LATE PAYMENT
4.10 Without limiting clause 4.3, if the Principal Paying
Agent has not received on or before the due date of any
payment in respect of the Class A Notes the full amount
payable on such date but receives such full amount later
it will forthwith:
(a) so notify the Trustee, the London Paying Agent
and the Note Trustee; and
(b) upon request by the Note Trustee give notice to the
Class A Note Holders in accordance with the Class A
Note Conditions that it has received such full
amount.
PARTIAL PAYMENTS
4.11 If payment of only part of the amount payable in respect
of a Class A Note is made (except as a result of a
withholding or deduction as permitted by the Class A Note
Conditions), the Paying Agent shall record the amount
paid and date of payment and such record shall, in the
absence of manifest error, be prima facie evidence that
the payment in question has not to that
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extent been made. The Paying Agent shall in addition
notify the Note Trustee of such partial payment.
DEDUCTIONS
4.12 The Principal Paying Agent is entitled to withhold or
deduct from all payments to Class A Note Holders any
amounts which the Trustee or the Principal Paying Agent
is required to withhold or deduct by any applicable law
but the Trust Manager is responsible for making all
determinations regarding any such withholding or
deduction and to notify the Trustee (which must in turn
notify the Principal Paying Agent) of any such
withholding or deduction in sufficient time for the
Principal Paying Agent to withhold or deduct from such
payment as instructed by the Trustee.
If the Trustee is, in respect of any payments, required
to withhold or deduct any amount for or on account of
taxes, duties, assessments or governmental charges as
specifically contemplated under the Class A Note
Conditions, the Trust Manager must give notice thereof to
the Trustee (which must in turn notify the Principal
Paying Agent) and the Note Trustee as soon as it becomes
aware of the requirement to make such withholding or
deduction and shall give to the Trustee such information
as it requires to enable it to comply with such
requirements.
UNPAID MONEY
4.13 If any Class A Note becomes void or claims in respect of
any principal or interest payable under any Class A Note
become void under the Class A Note Conditions, the
Principal Paying Agent shall promptly repay to the
Trustee the amount received by the Principal Paying Agent
(if any) which would have been due on such Class A Note
if it had been presented for payment before it became
void or such claim became prescribed.
NO SET-OFF
4.14 No Agent is entitled to exercise any right of set-off,
withholding, counterclaim, combination of accounts or
lien against or make any deduction in any payment to, any
person entitled to receive amounts of principal or
interest of the Class A Notes in respect of moneys
payable by it under this agreement.
CURRENCY SWAPS
4.15 The payment by the Trustee of its payment obligations
under the Supplemental Deed on each Payment Date to the
Counterparties under the Currency Swaps will be a good
discharge of its corresponding obligations under this
clause 4.
5 EXCHANGE OF CLASS A BOOK ENTRY NOTES
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EXCHANGE FOR CLASS A DEFINITIVE NOTES
5.1 Each Class A Book Entry Note shall be exchangeable in
whole but not in part for Class A Definitive Notes in
certain limited circumstances set out in the Note Trust
Deed.
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NOTIFICATION
5.2 The Principal Paying Agent shall notify the Trustee
forthwith upon receipt of a notice requiring exchange for
Class A Definitive Notes in accordance with the
provisions of a Class A Book Entry Note and the aggregate
Invested Amount of such Class A Book Entry Note to be
exchanged in connection with such request.
OUTSTANDING AMOUNT
5.3 The Principal Paying Agent shall, upon request by the
Trustee or the Note Trustee, promptly inform the Trustee
or the Note Trustee, as the case may be, by facsimile or
other acceptable form of communication of the aggregate
Invested Amount of Class A Notes then outstanding at the
time of such request.
6 REDEMPTION
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PART REDEMPTION OF NOTES ON PAYMENT DATES
6.1 (a) (TRUST MANAGER TO MAKE DETERMINATIONS ETC) No
later than 2 Business Days prior to each
Payment Date, the Trust Manager will make the
determinations referred to in Condition 7.9 of
the Class A Note Conditions in relation to that
Payment Date and will notify the Trustee, the
Note Trustee, the Principal Paying Agent, the
Calculation Agent, the Class A Note Registrar
and the London Stock Exchange of such
determinations. If the Trust Manager does not
at any time for any reason make the
determinations referred to in Condition 7.9 of
the Class A Note Conditions it must forthwith
advise the Note Trustee and the Calculation
Agent and such determinations must be made by
the Calculation Agent, or failing the
Calculation Agent, by the Note Trustee in
accordance with such Condition 7.9 of the Class
A Note Conditions (but based on the information
in its possession) and each such determination
will be deemed to have been made by the Trust
Manager.
(b) (NOTIFY DEPOSITORY) If any Class A Book Entry
Notes are outstanding, on receipt of a
notification under Condition 7.3 of the Class A
Note Conditions, the Principal Paying Agent
must notify the Depository of any proposed
redemption in accordance with the Depository's
applicable procedures, specifying the principal
amount of each Class A Book Entry Note to be
redeemed and the date on which the redemption
is to occur and must provide a copy to the
Depository of the notification received under
Condition 7.3 of the Class A Note Conditions.
EARLY REDEMPTION
6.2 (a) (NOTICE TO PAYING AGENT ETC): If the Trustee
intends to redeem all (but not some only) of
the Class A Notes prior to the Final Maturity
Date pursuant to Condition 7.3 of the Class A
Note Conditions, the Trust Manager will direct
the Trustee to give the requisite notice to the
Seller, the Note Trustee, the Principal Paying
Agent, the Class A Note Registrar, the
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Calculation Agent and the Class A Note Holders
in accordance with Condition 7.3 (as the case
may be) of the Class A Note Conditions and
stating the date on which such Class A Notes
are to be redeemed.
(b) (NOTICE TO DEPOSITORY): The Principal Paying
Agent will, on receipt of a notice under clause
6.2(a), and if any Class A Book Entry Notes are
outstanding, notify the Depository of the
proposed redemption in accordance with the
Depository's applicable procedures, specifying
the Invested Amount and Stated Amount of each
Class A Book Entry Note to be redeemed, the
amount of principal to be repaid in relation to
each Class A Book Entry Note and the date on
which the Class A Book Entry Notes are to be
redeemed.
7 GENERAL NOTE REGISTRAR AND PAYING AGENT MATTERS
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NOTICES TO CLASS A NOTE HOLDERS
7.1 (a) (NOTICES TO BE GIVEN BY CLASS A NOTE
Registrar): At the request of the Trustee, the
Note Trustee, the Trust Manager, the Security
Trustee or any other Agent, and at the expense
of the Trustee, the Class A Note Registrar will
arrange for the delivery of all notices to
Class A Note Holders in accordance with the
Class A Note Conditions.
(b) (COPY TO NOTE TRUSTEE): The Class A Note Registrar
will promptly send to the Note Trustee one copy of
the form of every notice given to Class A Note
Holders in accordance with the Class A Note
Conditions (unless such notice is given at the
request of the Note Trustee).
The Class A Note Registrar will not be responsible for,
or liable to any person in respect of, the contents of
any notices or reports delivered by it at the request of
the Trustee, the Note Trustee, the Trust Manager, the
Security Trustee or any other Agent pursuant to this
clause 7.1.
COPIES OF DOCUMENTS FOR INSPECTION
7.2 The Trust Manager will provide to the Class A Note
Registrar sufficient copies of all documents required by
the Class A Note Conditions or the Note Trust Deed to be
available to Class A Note Holders for issue or
inspection.
NOTICE OF ANY WITHHOLDING OR DEDUCTION
7.3 If the Trustee or any Paying Agent is, in respect of any
payment in respect of the Class A Notes, compelled to
withhold or deduct any amount for or on account of any
taxes, duties or charges as contemplated by Condition 8.4
of the Class A Note Conditions the Trustee must give
notice to the Principal Paying Agent, the Note Trustee
and the Class A Note Holders in accordance with Condition
11 of the Class A Note Conditions immediately after
becoming aware of the requirement to make the withholding
or deduction and must give to the Principal Paying Agent
and the Note Trustee such information as they require to
enable each of them to comply with the requirement.
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8 COPIES OF DOCUMENTS AVAILABLE FOR INSPECTION
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The Trustee shall supply, and the Paying Agents shall
hold available for inspection at their Specified Offices
during normal business hours, copies of all documents
required to be so available by the Note Trust Deed and
the Class A Note Conditions or the rules of the United
Kingdom Listing Authority.
9 DOCUMENTS AND FORMS
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PRINCIPAL PAYING AGENT
9.1 The Trustee shall provide to the Principal Paying Agent
in a sufficient quantity, for distribution between the
Paying Agents as required by this agreement or the Class
A Note Conditions:
(a) in the event that Class A Definitive Notes are
to be issued:
(i) such Class A Definitive Notes, duly
executed on behalf of the Trustee;
(ii) specimens of such Class A Notes for the
purpose of issuing replacements,
at least 14 days prior to the Exchange Date for the
relative Class A Book Entry Note (and the Note
Trustee shall authenticate or procure the
authentication of such Class A Definitive Notes
immediately before their issue);
(b) forms of Voting Certificates and Block Voting
Instructions, together with instructions as to how
to complete, deal with and record the issue of such
forms.
9.2 The Trust Manager shall provide to the Principal Paying
Agent in a sufficient quantity, for distribution between
the Paying Agents as required by this agreement or the
Class A Note Conditions, all documents to be available
for inspection during business hours (and the Paying
Agents shall make such documents available for collection
or inspection to the Class A Note Holders that are so
entitled).
NOTES, ETC HELD BY PAYING AGENTS
9.3 Each Paying Agent:
(a) acknowledges that all forms of Class A Notes
delivered to and held by it pursuant to this
agreement shall be held by it as custodian only and
it shall not be entitled to and shall not claim any
lien or other security interest on such forms;
(b) shall only use such forms in accordance with
this agreement;
(c) shall maintain all such forms in safe custody;
(d) shall take such security measures as may
reasonably be necessary to prevent their theft,
loss or destruction; and
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(e) shall keep an inventory of all such forms and make
it available to the Trustee, the Note Trustee and
the other Paying Agent at all reasonable times.
10 RECEIPT OF NOTICES AND VOTING
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COPY NOTICES TO TRUSTEE
10.1 Promptly after the receipt by the Principal Paying Agent
of a demand or notice from any Class A Note Holder in
accordance with the Class A Note Conditions the Principal
Paying Agent shall forward a copy thereof to the Trustee
and the Note Trustee.
VOTING
10.2 Each Paying Agent shall, at the request of any Class A
Note Holder, issue Voting Certificates and/or Block
Voting Instructions in a form and manner which complies
with the provisions of schedule 2 to the Note Trust Deed
in respect of the Trust (except that it shall not be
required to issue the same less than 48 hours before the
time fixed for any meeting or adjourned meeting of the
Class A Note Holders) and shall forthwith give to the
Trustee and the Note Trustee, by facsimile transmission,
notice of any revocation of or amendment to any Block
Voting Instruction. Each Paying Agent shall keep a full
and complete record of all Voting Certificates and Block
Voting Instructions issued by it and shall deliver to the
Trustee at its registered office (or such other place as
the Trustee shall have designated or approved for the
purpose), not less than 24 hours before the time
appointed for any meeting or adjourned meeting, full
particulars of all Voting Certificates and Block Voting
Instructions issued by it in respect of such meeting or
adjourned meeting. Forms for this purpose shall be made
available to the Principal Paying Agent by the Note
Trustee at the expense of the Trustee for distribution to
the London Paying Agent.
11 DUTIES OF CALCULATION AGENT
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APPOINTMENT
11.1 The Calculation Agent shall make all such determinations
and calculations (howsoever described) as it is required
to do under the Class A Note Conditions, all subject to
and in accordance with the Class A Note Conditions.
QUOTATIONS
11.2 The Calculation Agent shall not be responsible to the
Trustee, the Note Trustee or to any third party (except
in the event of negligence, default or bad faith of the
Calculation Agent, as the case may be) as a result of the
Calculation Agent having acted on any quotation given by
any reference bank which subsequently may be found to be
incorrect.
NOTICE
11.3 The Calculation Agent shall, as soon as practicable after
their determination or calculation (or on such earlier
date as the London Stock Exchange or the United Kingdom
Listing Authority may require,
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for so long as the Class A Notes are listed on the London
Stock Exchange) notify the Trustee, the Trust Manager,
the Currency Swap Providers, the Note Trustee, the Paying
Agents and the London Stock Exchange (for so long as the
Class A Notes are listed on the London Stock Exchange)
of, inter alia, each Interest Rate, Interest Amount,
Principal Amount and Payment Date and all other amounts,
rates and dates which it is obliged to determine or
calculate under the Class A Note Conditions and of any
subsequent amendment thereto pursuant to the Class A Note
Conditions. The Calculation Agent will publish the same
in accordance with the Class A Note Conditions.
CALCULATIONS
11.4 The Calculation Agent shall use its best endeavours to
cause each Interest Rate, Interest Amount, Principal
Amount and Payment Date and all other amounts, rates and
dates which it is obliged to determine or calculate under
the Class A Note Conditions to be published as required
in accordance with the Class A Note Conditions as soon as
possible after their determination or calculation.
FAILURE TO CALCULATE
11.5 (a) If the Calculation Agent at any time for any
reason does not determine and/or calculate
and/or publish the Interest Rate, Interest
Amount, Principal Amount and/or Payment Date in
respect of any Interest Period or any other
amount, rate or dates as provided in this
clause the Note Trustee will do so and each
such determination or calculation by the Note
Trustee will be as if made by the Calculation
Agent. In making such determinations and
calculations, the Note Trustee will apply the
provisions of this agreement, with any
consequential amendments, to the extent that it
is able to do so and in all other respects it
will do so in such a manner as it considers to
be fair and reasonable in all the circumstances.
(b) If the Trust Manager does not at any time for
any reason make any of the determinations
referred to in conditions 7.9(a) or (b) of the
Class A Note Conditions, the Calculation Agent
(or, failing the Calculation Agent, the Note
Trustee) must make such determinations (based
on the information in its possession) and each
such determination will be deemed to have been
made by the Trust Manager.
12 DUTIES OF THE CLASS A NOTE REGISTRAR
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CLASS A NOTE REGISTER TO BE KEPT
12.1 The Class A Note Registrar must keep a register, at one
of its Specified Offices, in which, subject to such
reasonable regulations as the Class A Note Registrar may
prescribe, the Class A Note Registrar must keep a full
and complete record of:
(a) (CLASS A NOTE HOLDER DETAILS): the name, address
and, where applicable, taxation, social security or
other identifying number of each Class A Note
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Holder, the details of the account to which any
payments due to the Class A Note Holder are to be
made in each case as notified by that Class A Note
Holder from time to time;
(b) (EXCHANGE ETC. OF CLASS A NOTES): the issue and
any exchange, transfer, replacement, redemption
(in whole or part) or cancellation of a Class A
Note;
(c) (PAYMENTS): all payments made in respect of the
Class A Notes;
(d) (PRINCIPAL): the Invested Amount and the Stated
Amount of each Class A Note from time to time;
(e) (OTHER INFORMATION): such other information as
the Trust Manager reasonably requires or the
Class A Note Registrar considers appropriate or
desirable.
TRANSFER OR EXCHANGE OF CLASS A NOTES
12.2 Class A Notes held by a Class A Note Holder may be
transferred or may be exchanged for other Class A Notes
in any authorised denominations and a like Invested
Amount, provided in each case that the requirements of
Section 8-401(a) of the UCC are met, by that Class A Note
Holder upon:
(a) (SURRENDER AND INSTRUMENT OF TRANSFER OR
EXCHANGE): the surrender of the Class A Notes
to be transferred or exchanged duly endorsed
with, or accompanied by, a written instrument
of transfer or exchange in the form, in the
case of a transfer, annexed to the Class A
Notes or otherwise in a form satisfactory to
the Class A Note Registrar duly executed by the
Class A Note Holder, or its attorney duly
authorised in writing, with such signature
guaranteed by an "eligible guarantor
institution" meeting the requirements of the
Class A Note Registrar which requirements
include membership of, or participation in,
STAMP or such other "signature guarantee
program" as may be determined by the Class A
Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Exchange Act; and
(b) (OTHER DOCUMENTS): the provision of such other
documents as the Class A Note Registrar may
reasonably require,
to the Class A Note Registrar at the Specified Office of
the Class A Note Registrar.
REPLACEMENT OF LOST OR MUTILATED CLASS A NOTES
12.3 If any Class A Note is lost, stolen, mutilated, defaced
or destroyed it may, provided that the requirements of
Section 8-405 of the UCC are met, be replaced with other
Class A Notes in any authorised denominations, and a like
Invested Amount, upon surrender to the Class A Note
Registrar of the Class A Notes to be replaced (where the
Class A Notes have been mutilated or defaced) at the
Specified Office of the Class A Note Registrar, the
provision of such evidence and indemnities as the Class A
Note Registrar or the Trustee may
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reasonably require and payments of the Class A Note
Registrar's and the Trustee's expenses incurred, and any
tax or governmental charge that may be imposed, in
connection with such replacement.
OBLIGATIONS UPON TRANSFER, EXCHANGE OR REPLACEMENT OF CLASS A NOTES
12.4 Subject to this agreement, upon compliance by the
relevant Class A Note Holder with the provisions of
clauses 12.2 or 12.3, as applicable, in relation to the
transfer, exchange or replacement of any Class A Notes:
(a) (ADVISE TRUSTEE): the Class A Note Registrar must
within 3 Business Days so advise the Trustee and
the Note Trustee (if it is not the Class A Note
Registrar) in writing and provide details of the
new Class A Notes to be issued in place of those
Class A Notes;
(b) (EXECUTION AND AUTHENTICATION): the Trustee
must, within 3 Business Days of such advice,
execute and deliver to the Note Trustee for
authentication in the name of the relevant
Class A Note Holder or the designated
transferee or transferees, as the case may be,
one or more new Class A Notes in any authorised
denominations, and a like Invested Amount as
those Class A Notes (in each case as specified
by the Class A Note Registrar) and the Note
Trustee must within 3 Business Days of receipt
of such executed Class A Notes authenticate
them and (if it is not the Class A Note
Registrar) deliver those Class A Notes to the
Class A Note Registrar; and
(c) (DELIVERY TO CLASS A NOTE HOLDER): the Class A
Note Registrar must, within 3 Business Days of
receipt of such new Class A Notes (or
authentication of such Class A Notes if the
Class A Note Registrar is the Note Trustee),
forward to the relevant Class A Note Holder
(being the transferee in the case of a transfer
of a Class A Note) such new Class A Notes.
NO CHARGE FOR TRANSFER OR EXCHANGE
12.5 No service charge may be made to a Class A Note Holder
for any transfer or exchange of Class A Notes, but the
Class A Note Registrar may require payment by the Class A
Note Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection
with any transfer or exchange of Class A Notes.
RESTRICTED PERIOD
12.6 Notwithstanding the preceding provisions of this clause
12, the Class A Note Registrar need not register
transfers or exchanges of Class A Notes, and the Trustee
is not required to execute nor the Note Trustee to
authenticate any Class A Notes, for a period of 30 days
preceding the due date for any payment with respect to
the Class A Notes or for such period, not exceeding 30
days, as is specified by the Note Trustee prior to any
meeting of the Class A Note Holders, which includes Class
A Note Holders, under the Master Trust Deed or prior to
any meeting of Voting Secured Creditors, which includes
Class A Note Holders, under the Global Master Security
Trust Deed.
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CANCELLATION OF CLASS A NOTES
12.7 The Class A Note Registrar must cancel or destroy all
Class A Notes that have been surrendered to it for
transfer, exchange or replacement (including any Class A
Book Entry Notes surrendered pursuant to the Note Trust
Deed) or surrendered to a Paying Agent for redemption and
delivered to the Class A Note Registrar and must, upon
request, provide a certificate to the Trustee, the Note
Trustee or the Trust Manager with the details of all such
Class A Notes so cancelled or destroyed. Each Paying
Agent must cancel and deliver any Class A Notes
surrendered to it for cancellation or destruction to the
Class A Note Registrar under this clause.
PROVISION OF INFORMATION AND INSPECTION OF REGISTER
12.8 The Class A Note Registrar must:
(a) (INFORMATION): provide to the Trustee, the Trust
Manager, the Note Trustee and each other Agent such
information as is contained in the Class A Note
Register and is required by them in order to
perform any obligation pursuant to a Transaction
Document;
(b) (INSPECTION): make the Class A Note Register:
(i) available for inspection or copying by the
Trustee, the Trust Manager, the Note Trustee
and each other Agent or their agents or
delegates; and
(ii) available for inspection by each Class A Note
Holder but only in respect of information
relating to that Class A Note Holder,
at the Class A Note Registrar's Specified Office during
local business hours.
CORRECTNESS OF REGISTER AND INFORMATION
12.9 The Trustee, the Note Trustee, the Trust Manager and each
Agent (other than the Class A Note Registrar) may accept
the correctness of the Class A Note Register and any
information provided to it by the Class A Note Registrar
and is not required to enquire into its authenticity.
None of the Trustee, the Note Trustee, the Trust Manager
or any Agent (including the Class A Note Registrar) is
liable for any mistake in the Class A Note Register or in
any purported copy except to the extent that the mistake
is attributable to its fraud, gross negligence or wilful
default.
NON-RECOGNITION OF EQUITABLE INTERESTS
12.10 Except as required by statute or as ordered by a court of
competent jurisdiction, no notice of any trust, whether
express, implied or constructive, is to be entered in the
Class A Note Register and except as otherwise provided in
any Transaction Document, or required by statute or
ordered by a court of competent jurisdiction, none of the
Class A Note Registrar, the Note Trustee, the Trustee,
the Trust Manager or any other Agent is to be affected by
or compelled to recognise (even when having notice of it)
any right or interest in any
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Class A Notes other than the registered Class A Note
Holder's absolute right to the entirety of them and the
receipt of a registered Class A Note Holder is a good
discharge to the Trustee, the Trust Manager, the Note
Trustee and each Agent.
RECTIFICATION OF CLASS A NOTE REGISTER
12.11 If:
(a) (ENTRY OMITTED): an entry is omitted from the
Class A Note Register;
(b) (ENTRY MADE OTHERWISE THAN IN ACCORDANCE WITH
THIS AGREEMENT): an entry is made in the Class
A Note Register otherwise than in accordance
with this agreement;
(c) (WRONG ENTRY EXISTS): an entry wrongly exists
in the Class A Note Registrar;
(d) (ERROR OR DEFECT EXISTS IN REGISTER): there is
an error or defect in any entry in the Class A
Note Register; or
(e) (DEFAULT MADE): default is made or unnecessary
delay takes place in entering in the Class A
Register that any person has ceased to be the
holder of Class A Notes,
then the Class A Note Registrar may rectify the same.
13 RELATIONSHIP
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NO OTHER OBLIGATION
13.1 Each of the Agents hereby undertakes to the Trustee and
the Note Trustee to perform such obligations and duties,
and shall be obliged to perform such duties and only such
duties, as are in this agreement, in the Class A Note
Conditions specifically set forth, and no implied duties
or obligations shall be read into this agreement, the
Note Trust Deed or the Class A Notes against any of the
Agents, other than the duty to act honestly and in good
faith and to exercise the diligence of a reasonably
prudent agent in comparable circumstances.
INSTRUCTIONS
13.2 Subject to the other terms of this agreement and the
Class A Note Conditions, each Agent must act in
accordance with the instructions (if any) of the Trustee
and the Trust Manager in exercising its rights, powers
and discretions under this agreement.
NO INSTRUCTIONS
13.3 Subject to the terms of this agreement, where
instructions of the Trustee are expressly required for
the Agent to take action under this agreement, in the
absence of instructions from the Trustee, no Agent is
required to take any action but may exercise its rights,
powers and discretions as it sees fit provided it does so
in good faith. Except where this agreement otherwise
expressly provides, no Agent need
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consult with the Trustee before exercising a right, power
or discretion under this agreement.
AGENT OF THE TRUSTEE
13.4 In acting hereunder and in connection with the Class A
Notes (and subject to clause 3.1), the Agents shall act
solely as agents of the Trustee and will not thereby
assume any obligations towards or relationship of agency
or trust for any holders of Class A Notes except that any
funds received by the Principal Paying Agent for the
payment of any amounts in respect of the Class A Notes
shall be held by it on trust for the relevant holders
until the earlier of the expiration of the relevant
prescription period and the date on which any such
amounts are repaid under clause 4.10.
TRUSTEE NOT RESPONSIBLE FOR AGENTS
13.5 Notwithstanding any other provision contained 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 any Agent.
RELIANCE
13.6 Each Agent is protected and will 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
property party or parties.
AGENT MAY EMPLOY
13.7 Each Agent may employ agents. Each of the Agents may
consult on any legal matter any legal adviser selected by
it, who may be an employee of or legal adviser to the
Trustee, and it shall be protected and shall incur no
liability for action taken, or suffered to be taken, with
respect to such matter in good faith and in accordance
with the opinion of such legal adviser.
APPLICABLE LAWS
13.8 The Trust Manager must ensure, and no Agent has any
responsibility for ensuring, that the issue of, and
observance of obligations under, a Class A Note complies
with all applicable laws and regulations and that all
authorisations necessary for the issue of, and observance
of obligations under, a Class A Note are obtained and
maintained in full force and effect.
ACCEPT DEPOSITS ETC
13.9 Without any liability to account to a Class A Note Holder
or any other person each Agent may accept deposits from,
lend money to, assume liabilities in relation to and
generally engage in any kind of banking, trust or other
business with, the Trustee as if it were not an Agent and
may accept fees and other consideration from the Trustee
for services in connection with this agreement or any
other arrangement without having to account for them to a
Class A Note Holder or another person.
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DEALING WITH MONEY
13.10 Each Agent is entitled to deal with money paid to it
under this agreement in the same manner as other money
paid to it as banker by its customers except that:
(a) it is not entitled to exercise any lien, right
of set-off, combination of accounts or similar
claim in respect of it; and
(b) it shall not be liable to any person to account for
interest on any sums held by it under this
agreement.
INCOME TAX RETURNS
13.11 The Principal Paying Agent will deliver to each Class A
Note Holder such information as may be reasonably
required to enable such Class A Note Holder to prepare
its federal and state income tax returns.
HOLDERS OF NOTES
13.12 Except as ordered by a court of competent
jurisdiction or as required by law, each Paying Agent
is entitled to treat the person:
(a) (CLASS A BOOK ENTRY NOTES) who is, while a
Class A Book Entry Note remains outstanding, the
registered owner of that Class A Book Entry Note as
recorded in the Class A Note Register as the
absolute owner of each Note and as the person
entitled to receive payments of principal or
interest (as applicable) and each person shown in
the records of the Depository as the holder of any
Note represented by a Class A Book Entry Note will
be entitled to receive from the registered owner of
that Class A Book Entry Note any payment so made
only in accordance with the respective rules and
procedures of the Depository;
(b) (CLASS A DEFINITIVE NOTES) who is the
registered owner of any Class A Definitive Note
as recorded in the Class A Note Register as the
absolute owner or owners of that Class A
Definitive Note (whether or not that Class A
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); and
(c) (NOTE TRUSTEE) who, when a Class A Book Entry
Note in respect of any Note is no longer
outstanding but Class A Definitive Notes in
respect of the 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 Class A Note Holders,
in all cases and for all purposes, despite any notice
to the contrary, and will not be liable for so doing.
NOTE OR DOCUMENT BELIEVED TO BE GENUINE
13.13 Each of the Agents shall be protected and shall incur no
liability for or in respect of any action taken or
omitted or thing suffered by it in reliance upon any Note
or other document or any communication,
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certification, instruction, request or order reasonably
believed by it to be genuine and to have been delivered,
sent or signed by the proper parties.
AGENTS AS HOLDERS OF NOTES
13.14 Neither any Agent nor any other person whether acting for
itself or in any other capacity will be precluded from
becoming the owner of, or acquiring any interest in,
holding or disposing of any Class A Note or any shares or
securities of the Trustee, with the same rights as it
would have had if such Agent were not acting as Agent or
from entering into or being interested in any contracts
or transactions with the Trustee, or from acting on, or
as depositary, trustee or agent for, any committee or
body of holders of any securities of the Trustee, and
will not be liable to account for any profit.
COMMUNICATION BETWEEN THE PARTIES
13.15 A copy of all communications relating to the subject
matter of this agreement between the Trustee or the Note
Trustee and the Class A Note Holders and the London
Paying Agent shall be sent to the Principal Paying Agent
by the London Paying Agent.
TERMINATION
13.16 An Agent may resign its appointment under this agreement
and the Trust Manager may, with the prior written
approval of the Note Trustee and the Trustee, terminate
the appointment of an Agent under this agreement at any
time by giving not less than 45 days' written notice to
that effect to the Trust Manager or the Agent
respectively (which shall not expire less than 15 days
before or after any Payment Date) provided that:
(a) no such resignation or termination of the
appointment of the Principal Paying Agent shall
take effect until a successor has been appointed by
the Trustee (at the direction of the Trust Manager)
on terms approved in writing by the Note Trustee
and the Trustee;
(b) no such resignation or termination shall take
effect if as a result of such resignation or
termination there would cease to be Agents as
required in the Class A Note Conditions; and
(c) there must at all times be a Paying Agent in
London.
If the Trust Manager does not appoint a successor
Principal Paying Agent by the day falling 10 days before
the expiration of such 45 days, the Principal Paying
Agent may appoint as a successor Principal Paying Agent a
reputable financial institution of good standing which
the Trustee and the Note Trustee approve (such approval
not to be unreasonably withheld) or it may petition a
court of competent jurisdiction to do so. Any successor
Principal Paying Agent must forthwith enter into an
agreement on substantially the same terms as this
agreement and each Designated Rating Agency must be
notified of any appointment by the Trust Manager.
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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
Note, and shall deliver to the successor Principal Paying
Agent all records maintained by it pursuant to this
agreement and all documents (including any Class A
Definitive Notes) held by it.
PUBLICATION
13.17 Immediately following the receipt of any notice of
resignation of any Agent and forthwith on giving notice
appointing an Agent or terminating any Agent's
appointment hereunder, the Trust Manager shall publish or
cause to be published notice thereof to the holders of
the Class A Notes in accordance with the Class A Note
Conditions. On the date on which any such termination or
resignation takes effect, the relevant Agent shall
deliver to the Trustee, or as the Trustee may direct, all
records maintained by it, and any Class A Notes in its
possession, pursuant hereto and shall resign, it shall in
addition pay to or to the order of the Trustee any amount
held by it, and received from the Trustee for payment in
respect of the Class A Notes. Upon its resignation or
termination of appointment taking effect, the relevant
Paying Agent shall be entitled to the payment by the
Trustee of its commissions, fees and expenses then unpaid
and shall continue to be entitled to the benefit of
clause 14.2 in respect of the period of its appointment.
TERMINATION OF APPOINTMENT
13.18 The appointment of any Agent shall forthwith
terminate if at any time:
(a) an Insolvency Event occurs in relation to that
Agent; or
(b) the Agent ceases to conduct business; or
(c) it fails to remedy within 5 Business Days after
prior written notice by the Trustee or the Trust
Manager any material breach of this agreement on
the part of the Agent.
The Trustee acting on the direction of the Trust Manager
may appoint a successor Agent which shall be a reputable
financial institution of good standing approved by the
Note Trustee.
NEW AGENTS
13.19 Upon its appointment becoming effective, a successor
Agent shall, without further act, deed or conveyance,
become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of its
predecessor or, as the case may be, a Paying Agent with
like effect as if originally named as an Agent under this
agreement.
MERGER
13.20 Any corporation into which any Agent or its agency
business may be merged, sold or converted or any
corporation with which such Agent may be consolidated or
any corporation resulting from any merger, conversion or
consolidation to which such Agent shall be a party shall,
to the extent permitted by applicable law, be the
successor Agent
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under this agreement without any further formality.
Notice of any such merger, conversion or consolidation
shall forthwith be given by that Agent to the Trustee,
the Trust Manager, Note Trustee and the other Agents.
NOTICE TO CLASS A NOTE HOLDER
13.21 The Trust Manager on behalf of the Trustee will, within 5
days of:
(a) (TERMINATION): the termination of the
appointment of any Agent;
(b) (RESIGNATION): the resignation of any Agent; or
(c) (APPOINTMENT): the appointment of a new Agent,
give to the Class A Note Holders notice of the
termination, appointment or resignation in accordance
with Condition 11 of the Class A Note Conditions (in the
case of a termination under clause 13.18 at the cost of
the outgoing Agent). Notwithstanding clause 13.18,
neither the termination of the appointment of an Agent,
nor the resignation of an Agent, will take effect until
notice thereof is given to the Class A Note Holders in
accordance with this clause 13.21.
CHANGE OF SPECIFIED OFFICE
13.22 If any Agent changes its Specified Office, it shall give
to the Trustee, the Trust Manager, the Note Trustee and
each other Agent written notice of the address of the new
Specified Office stating the date on which such change is
to take effect, which date shall be not less than 30 days
after the date of such notice, provided that an Agent
shall not change its Specified Office to another city
without the prior consent of the Trustee and the Trust
Manager. The Trust Manager shall within 15 days of
receipt of any such notice (unless the appointment of the
relevant Agent is to terminate pursuant to any of the
foregoing clauses on or prior to the date of such change)
publish or cause to be published notice thereof to the
Class A Note Holders in accordance with the Class A Note
Conditions.
13.23 Anything in this agreement to the contrary
notwithstanding, in no event shall the Agent be liable
under or in connection with this agreement for indirect,
special, incidental, punitive or consequential losses or
damages of any kind whatsoever, including but not limited
to lost profits, whether or not foreseeable, even if the
Agent has been advised to the possibility thereof and
regardless of the form of action in which such damages
are sought.
14 STAMP DUTIES AND INDEMNITIES
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STAMP DUTIES
14.1 The Trustee agrees to pay any and all stamp and other
documentary taxes or duties which may be payable in the
Commonwealth of Australia, the Australian Capital
Territory, New South Wales, the United States and the
United Kingdom by the Paying Agents or the
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Note Trustee in connection with the execution, delivery,
performance and enforcement of this agreement.
INDEMNITY BY TRUSTEE
14.2 Subject to clause 16, the Trustee shall indemnify each
Agent against any loss, liability, cost, claim, action,
demand or expense (including, but not limited to, all
reasonable costs, charges and expenses paid or incurred
in disputing or defending any of the foregoing) that it
may incur or that may be made against it arising out of
or in relation to or in connection with its appointment
or the exercise of its functions, except such as may
result from a breach by that Agent of this agreement or
its own negligence, bad faith or breach of duty or that
of its officers, employees or agents.
INDEMNITY BY AGENTS
14.3 Each Agent severally shall indemnify the Trustee and the
Trust Manager against any loss, liability, cost, claim,
action, demand or expense (including, but not limited to,
all reasonable costs, charges and expenses paid or
incurred in disputing or defending any of the foregoing,
but in no event punitive, indirect or special damages or
loss of profits) that the Trustee or the Trust Manager
may incur or that may be made against it as a result of
such Agent's fraud, gross negligence or wilful default or
that of its officers, employees or agents.
15 COMMISSIONS AND EXPENSES
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PRINCIPAL PAYING AGENT
15.1 In consideration of the Principal Paying Agent and the
other Agents performing their functions and duties under
this agreement and the other Transaction Documents, the
Note Trustee shall, out of the fee payable to it in
accordance with clause 10.1 of the Note Trust Deed, pay a
fee to each Agent, in an amount and calculated in such
manner as may be agreed between the Note Trustee and the
relevant Agent from time to time. If an Agent resigns
under this agreement (but not if it is removed or its
appointment is terminated in accordance with clause
13.18), the Note Trustee must refund to the Trustee their
portion of the fee (if any) which relates to the period
which the relevant Agent's resignation is effective.
15.2 The Note Trustee shall also, on each Payment Date,
receive an amount representing indemnification for any
reasonable out-of-pocket expenses (if any) incurred by
each Agent in connection with this agreement and each
Agent's supply of services.
15.3 Amounts paid to the Note Trustee under this clause 15
will be paid in accordance with and are limited to the
order of payment set out in clauses 15.8 and 15.18 of the
Supplemental Deed.
OTHER AGENTS
15.4 The Note Trustee will make payment of the fees and
commissions due hereunder to each Agent and will
reimburse their expenses promptly after the receipt of
the relevant moneys. Neither the Trustee, nor the
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Trust Manager shall be responsible for any such payment
or reimbursement by the Note Trustee to each Agent.
15.5 If an Agent resigns or its appointment is terminated
under this agreement, the fee payable to the Note Trustee
will be reduced by an amount which fairly represents the
fee that would be otherwise separately payable to that
Agent.
16 TRUSTEE'S LIMITATION OF LIABILITY
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LIMITATION ON TRUSTEE'S LIABILITY
16.1 The Trustee enters into agreement only in its capacity as
trustee of the Trust and in no other capacity. A
liability incurred by the Trustee arising under or in
connection with agreement or the Trust is limited to and
can be enforced against the Trustee only to the extent to
which it can be satisfied out of 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 agreement (other
than clause 16.3) 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 this agreement or the Trust.
CLAIMS AGAINST TRUSTEE
16.2 The parties other than the Trustee may not ▇▇▇ the
Trustee in any capacity other than trustee of the Trust,
including seeking the appointment of a receiver (except
in relation to the Assets of the Trust), or a liquidator,
an administrator or any 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)
BREACH OF TRUST
16.3 The provisions of this clause 16 limiting the Trustee's
liability will not apply to any obligation or liability
of the Trustee to the extent that it is not satisfied
because under this agreement or any other Transaction
Document in relation to the Trust 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, gross negligence or wilful
default.
ACTS OR OMISSIONS
16.4 It is acknowledged that the Relevant Parties are
responsible under this agreement and the other
Transaction Documents in relation to the Trust 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 this agreement) will be
considered fraud, gross negligence or wilful default for
the purpose of clause 16.3 if and to the extent the act
or omission was caused or contributed to by any failure
by any Relevant Party or any other person appointed by
the Trustee under any Transaction Document (other than a
person whose acts or omissions the Trustee is liable for
in accordance with any Transaction Document) to fulfil
its obligations relating to the Trust or by any other act
or omission of any
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Relevant Party or any other such person regardless of
whether or not the act or omission is purported to be
done on behalf of the Trustee.
16.5 No attorney, agent, receiver or receiver and manager
appointed in accordance with this agreement or any other
Transaction Document has authority to act on behalf of
the Trustee in a way that exposes the Trustee to any
personal liability, and no act or omission of any such
person will be considered fraud, gross negligence or
wilful default of the Trustee for the purpose of clause
16.3.
16.6 The Trustee is not obliged to do anything or refrain from
doing anything under or in connection with this agreement
(including incur a liability) unless the Trustee's
liability is limited in the same manner as set out in
this clause.
17 NOTICES
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FORM
17.1 Subject to clauses 17.4 and 17.5, a notice, approval,
consent or other communication in connection with this
agreement:
(a) may be given by an Authorised Officer of the
relevant party;
(b) must be in writing; and
(c) must be left at the address of the addressee or
sent by prepaid ordinary post to the address of the
addressee or sent by facsimile to the facsimile
number of the addressee specified in clause 17.2
(or as are notified by a party to each other party
pursuant to this agreement).
INITIAL ADDRESSES
17.2 The initial address and facsimile numbers of the Trustee,
the Trust Manager, the Principal Paying Agent, the
Calculation Agent, the Class A Note Registrar, the London
Paying Agent and the Note Trustee are set out in the
schedule to this agreement.
TIME EFFECTIVE
17.3 Unless a later time is specified in it, a notice,
approval, consent or other communication takes effect
from the time it is received.
RECEIPT
17.4 A communication is taken to be received:
(a) in the case of a posted letter, on the third
(seventh, if posted to or from a place outside
Australia) day after posting; and
(b) in the case of a facsimile, on production of a
transmission report by the machine from which the
facsimile was sent which indicates that the
facsimile was sent in its entirety to the facsimile
number of the recipient notified for the purpose of
this clause,
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However, if the time of deemed receipt of any notice is
not before 4.00 p.m. (local time at the address of the
recipient) on a Business Day it is deemed to have been
received at the commencement of business on the next
following Business Day.
17.5 All notices are valid if despatched by prepaid ordinary
post (airmail if posted to a place outside Australia) to
the relevant party's registered office (or, in the case
of registered Class A Note Holders, to the address
specified in the Class A Note Register and, in the case
of joint holders, to the person whose name first appears
in the Class A Note Register). Such notice is taken to be
received on the third (seventh, if posted to a place
outside Australia) day after posting.
17.6 Where a notice or other communication is to be provided
under this agreement to a Class A Note Holder of a Note
in bearer form, the notice may be given in accordance
with the relevant Note Trust Deed.
18 MISCELLANEOUS
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CERTIFICATE
18.1 A certificate signed by the parties or its solicitors
about a matter or about a sum payable to the parties to
this agreement in connection with this agreement is
sufficient evidence of the matter or sum stated in the
certificate unless the matter or sum is proved to be
false.
EXERCISE OF RIGHTS
18.2 The parties to this agreement or an attorney appointed
under this agreement may exercise a right, power or
remedy at its discretion, and separately or concurrently
with another right, power or remedy. A single or partial
exercise of a right, power or remedy by the person does
not prevent a further exercise of that or an exercise of
any other right, power or remedy. Failure by the person
to exercise or delay in exercising a right, power or
remedy does not prevent its exercise. The person with the
right, power or remedy is not liable for any loss caused
by its exercise, attempted exercise, failure to exercise
or delay in exercising it except in the case of its
fraud, gross negligence or wilful default.
WAIVER AND VARIATION
18.3 A provision of or a right created under this agreement
may not be waived or varied except in writing signed by
the party or parties to be bound.
SUPERVENING LEGISLATION
18.4 Any present or future legislation which operates to vary
the obligations of the parties to this agreement in
connection with this agreement with the result that the
rights, powers or remedies of the parties are adversely
affected (including, without limitation, by way of delay
or postponement) is excluded except to the extent that
its exclusion is prohibited or rendered ineffective by
law.
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APPROVALS AND CONSENT
18.5 The parties to this agreement or an attorney appointed
under this agreement may give conditionally or
unconditionally or withhold their approval or consent in
their absolute discretion, unless this agreement
expressly provides otherwise.
REMEDIES CUMULATIVE
18.6 The rights, powers and remedies provided in this
agreement are cumulative with and not exclusive of the
rights, powers or remedies provided by law independently
of this agreement.
INDEMNITIES
18.7 Each indemnity in this agreement is a continuing
obligation, separate and independent from the other
obligations of the parties to this agreement and survives
termination of this agreement. It is not necessary for
the parties to this agreement to incur expense or make
payment before enforcing a right of indemnity conferred
by this agreement.
TIME OF THE ESSENCE
18.8 Time is of the essence in this agreement in respect of an
obligation of any of the parties to this agreement to pay
money.
RECEIPTS
18.9 The receipt of a Receiver, or an Authorised Officer of
the parties to this agreement, releases the person paying
money to the Receiver or the parties to this agreement in
connection with this agreement from:
(a) liability for the money paid or expressed to be
received; and
(b) being concerned to see to its application or
being answerable or accountable for its loss or
misapplication.
ACKNOWLEDGMENT
18.10 The parties acknowledge and agree that in exercising
their powers and discretions under this agreement, and in
performing their obligations under this agreement, they
must act in accordance with their duties and obligations
under this agreement, and they may exercise such powers
and discretions as provided in this agreement, and
(without limitation) in forming any opinion may obtain
and act upon the advice of persons who are not parties to
this agreement.
18.11 The parties acknowledge that they are bound by the terms
of this agreement.
DISCLOSURE OF INFORMATION
18.12 Subject to this agreement, the parties to this agreement
are not required (unless ordered so to do by a court of
competent jurisdiction) to disclose to any Unitholder,
Secured Creditor or any other person confidential,
financial or other information made available to the
parties to this agreement in connection with this
agreement.
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RIGHTS CUMULATIVE
18.13 The rights, powers and remedies provided in this
agreement are cumulative and not exclusive of the rights,
powers or remedies provided by law independently of this
agreement.
SIGNATURES
18.14 The parties to this agreement may rely on the validity of
any signature on any transfer, form of application or
other instrument or document unless the parties to this
agreement (as the case may be) have reasonable grounds to
believe that the signature is not genuine. None of the
parties to this agreement are liable to make good out of
their own funds any loss incurred by any person if a
signature is forged or otherwise fails to bind the person
whose signature it purports to be or on whose behalf it
purports to be made.
LIMITATION OF NOTE TRUSTEE'S LIABILITY
18.15 The Note Trustee is a party to this agreement in its
capacity as trustee of the Note Trust. The liability of
the Note Trustee under this agreement is limited in the
manner and to the same extent as under the Note Trust
Deed.
19 AMENDMENT
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This agreement may be amended by the Trustee, the Note
Trustee and the Agents without the consent of any holder
of Notes if the amendment:
(a) is in the opinion of the Note Trustee made to
correct a manifest error or is of a formal,
technical or administrative nature; or
(b) is considered by the Note Trustee not to be
materially prejudicial to the interests of the
Class A Note Holders.
Any amendment must be notified to each Designated Rating
Agency.
20 GOVERNING LAW AND SUBMISSION TO JURISDICTION
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GOVERNING LAW
20.1 This agreement is governed by the law in force in New
South Wales and the rights, liabilities and obligations
of the parties to this agreement are governed by the laws
in force in New South Wales.
SUBMISSION TO JURISDICTION
20.2 Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of New South
Wales and courts of appeal from them. Each party waives
any right it has to object to an action being brought in
those courts including, without limitation, by claiming
that the action has been brought in an inconvenient forum
or that those courts do not have jurisdiction.
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SERVICE
20.3 Without preventing any other mode of service, any
document in an action (including, without limitation, any
writ of summons or other originating process or any third
or other party notice) may be served on any party by
being delivered to or left for that party at its address
for service of notices under clause 17.
21 COUNTERPARTS
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This agreement may consist of a number of counterparts
and the counterparts taken together constitute one and
the same instrument.
EXECUTED as an agreement.
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SCHEDULE INITIAL CONTACT DETAILS
--------------------------------------------------------------------------------
TRUSTEE
Address: ▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Manager, Securitisation
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
TRUST MANAGER
Address: ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Manager, Primary Markets Group
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
NOTE TRUSTEE
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Structured Products Unit
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
CLASS A NOTE REGISTRAR
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Structured Products Unit
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
PRINCIPAL PAYING AGENT and CALCULATION AGENT
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Structured Products Unit
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
LONDON PAYING AGENT
Address: ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Global Structured Products Unit
Facsimile: 44 027 964 6061
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EXECUTION PAGE
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TRUSTEE
SIGNED by )
as attorney for PERPETUAL TRUSTEE )
COMPANY LIMITED in the presence of: )
)
)
................................. )
Signature of witness )
)
................................. )
Name of witness (block letters) )
)
................................. )
Address of witness ) .................................
) By executing this agreement the
................................. ) attorney states that the
Occupation of witness ) attorney has received no notice
) of revocation of the power of
attorney
GLOBAL TRUST MANAGER
SIGNED by )
on behalf of ANZ CAPEL COURT )
LIMITED )
in the presence of: )
)
)
................................. )
Signature of witness )
)
................................. ) .................................
Name of witness (block letters) ) By executing this agreement the
) signatory states that the
................................. ) signatory has received no notice
Address of witness ) of revocation of the authority
) under which this agreement is
................................. ) executed
Occupation of witness )
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NOTE TRUSTEE, CLASS A NOTE REGISTRAR, PRINCIPAL PAYING AGENT AND CALCULATION
AGENT
SIGNED by )
as authorised signatory for THE )
BANK OF NEW YORK, NEW YORK BRANCH )
in the presence of: )
)
)
................................. )
Signature of witness )
)
................................. ) .................................
Name of witness (block letters) ) By executing this agreement the
) signatory states that the
................................. ) signatory has received no notice
Address of witness ) of revocation of the authority
) under which this agreement is
................................. ) signed
Occupation of witness )
LONDON PAYING AGENT
SIGNED by )
as authorised signatory for THE )
BANK OF NEW YORK, LONDON BRANCH in )
the presence of: )
)
)
................................. )
Signature of witness )
)
................................. ) .................................
Name of witness (block letters) ) By executing this agreement the
) signatory states that the
................................. ) signatory has received no notice
Address of witness ) of revocation of the authority
) under which this agreement is
................................. ) signed
Occupation of witness )