Agency Agreement
Perpetual Trustees Consolidated Limited
(Trustee)
Crusade Management Limited
(Manager)
Deutsche Bank Trust Company Americas
(Principal Paying Agent)
Deutsche Bank Trust Company Americas
(Note Trustee)
Deutsche Bank Trust Company Americas
(Calculation Agent)
Deutsche Bank Trust Company Americas
(Note Registrar)
Crusade Global Trust No. 1 of 2004
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
xxx.xxx.xxx.xx
(C) Copyright Allens Xxxxxx Xxxxxxxx 2004
Agency Agreement Allens Xxxxxx Xxxxxxxx
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Table of Contents
1. Definitions and Interpretation 4
1.1 Definitions 4
1.2 Note Trust Deed definitions 5
1.3 Interpretation 5
1.4 Document or agreement 5
1.5 Transaction Document 5
1.6 Trustee as trustee 5
2. Appointment of Paying Agents 6
3. Payment 6
3.1 Payment by Trustee 6
3.2 Confirmation 6
3.3 Payments by Paying Agents 7
3.4 Method of Payment - Book-Entry Notes 7
3.5 Method of payment - Definitive Notes 7
3.6 Late payment 7
3.7 Notice of non-receipt 7
3.8 Reimbursement 8
3.9 Method of payment 8
3.10 No fee 8
3.11 Trust 8
4. Repayment 9
5. Appointment of the Calculation Agent 9
6. Duties of the Calculation Agent 9
7. Note Trustee 10
8. Early Redemption of Notes 11
9. Pro Rata Redemption, Purchases and Cancellation of Notes 12
10. Notices to Noteholders 13
11. Documents and Forms 13
12. Authentication 13
13. Indemnity 13
14. The Note Register 14
14.1 Appointment of Note Xxxxxxxxx 00
14.2 Details to be kept on the Note Register 15
14.3 Payments of Principal and Interest 15
14.4 Place of keeping Register, copies and access 15
14.5 Details on Note Register conclusive 16
14.6 Alteration of details on Note Register 16
14.7 Rectification of Note Register 16
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14.8 Correctness of Note Register 17
15. Changes of Note Xxxxxxxxx 00
15.1 Removal 17
15.2 Resignation 17
15.3 Limitation 17
16. General 17
16.1 Communications to Class A-1 Noteholders 17
16.2 Agency 18
16.3 Identity 18
16.4 No set-off 18
16.5 Reliance 18
16.6 Entitled to deal 19
16.7 Consultation 19
16.8 Duties 19
16.9 Income Tax Returns 19
16.10 Obligations of Note Parties 19
17. Changes in Paying Agents and Calculation Agent 19
17.1 Removal 19
17.2 Resignation 20
17.3 Limitation 20
17.4 Delivery of amounts 21
17.5 Successor to Principal Paying Agent 21
17.6 Successor to Calculation Agent 22
17.7 Successor to Note Xxxxxxxxx 00
17.8 Notice to Class A-1 Noteholders 23
17.9 Change in Paying Office or Specified Office 23
18. Fees and Expenses 24
19. Waivers, Remedies Cumulative 25
20. Severability of Provisions 25
21. Assignments 25
22. Notices 25
22.1 General 25
22.2 Details 26
22.3 Communication through Principal Paying Agent 27
23. Limited Recourse 27
23.1 General 27
23.2 Liability of Trustee limited to its right to indemnity 28
23.3 Unrestricted remedies 29
23.4 Restricted remedies 29
24. Counterparts 29
25. Governing Law 29
26. Successor Trustee 29
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Date 2004
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Parties
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1. Perpetual Trustees Consolidated Limited (ABN 81 004 029 841)
incorporated in Australia and registered in Victoria of Xxxxx 0, 0
Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000 in its capacity as
trustee of the Crusade Global Trust No. 1 of 2004 (the Trustee);
2. Crusade Management Limited (ABN 90 072 715 916) incorporated in
Australia and registered in New South Wales of 0-00 Xxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxx Xxxxx Xxxxx 0000, as Manager in relation to the
Crusade Global Trust No. 1 of 2004 (the Manager);
3. Deutsche Bank Trust Company Americas acting through its office at
0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 as
principal paying agent for the Notes described below (the Principal
Paying Agent, which expression shall, wherever the context requires,
include any successor principal paying agent from time to time and,
except where the context otherwise requires, the Principal Paying
Agent and any additional paying agent or paying agents are Paying
Agents);
4. Deutsche Bank Trust Company Americas acting through its office at
0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 as
trustee for the Class A-1 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);
5. Deutsche Bank Trust Company Americas acting through its office at
0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 as
reference agent in relation to the Notes described below (the
Calculation Agent) which expression shall, whenever the context
requires, include any successor reference agent from time to time);
and
6. Deutsche Bank Trust Company Americas acting through its office at
0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 as note
registrar in relation to the Class A-1 Notes described below (the
Note Registrar) which expression shall, whenever the context
requires, include any successor note registrar from time to time.
Recitals
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A The Trustee proposes to issue US$1,000,000,000 of Class A-1 mortgage
backed pass through floating rate Notes (the Class A-1 Notes) each
with a Final Maturity Date falling in January 2035 and
A$[532,300,000] of mortgage backed pass through floating rates Notes
comprising $[500,000,000] Class A-2 Notes, A$ [28,000,000] Class B
Notes and $[4,300,000] Class C Notes (together the $A Notes) each
with a Final Maturity Date falling in January 2035.
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B The Class A-1 Notes will be represented initially by one or more
Book-Entry Notes (the Book-Entry Notes).
C The Class A-1 Notes, upon original issue, will be issued in the form
of typewritten Book-Entry Notes representing the Book-Entry Notes.
The Trustee shall, on the date of this deed, deliver or arrange the
delivery on its behalf of the Book-Entry Notes to the Principal
Paying Agent, as agent for the Clearing Agency. The Book-Entry Notes
shall initially be registered on the Note Register in the name of
the Common Depository, as nominee of the Clearing Agency, and no
Class A-1 Note Owner will receive a Definitive Note representing
such Class A-1 Note Owner's interest in such Class A-1 Note, except
as provided in the Note Trust Deed.
D The Class A-1 Notes will be constituted by the Note Trust Deed, the
Supplementary Terms Notice and the Master Trust Deed.
E The Class A-1 Notes will be secured on the terms of the Security
Trust Deed.
F The Trustee wishes to appoint the Principal Paying Agent as
principal paying agent in respect of the Class A-1 Notes only and
has entered into this agreement to provide for the terms and
conditions of that appointment.
G The Trustee wishes to appoint the Calculation Agent as its reference
agent in respect of the Class A-1 Notes only and has entered into
this agreement to provide for the terms and conditions of that
appointment.
H The Trustee wishes to appoint the Note Registrar in respect of the
Class A-1 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.
Master Trust Deed means the Master Trust Deed for the Crusade Euro Trusts
dated 14 March 1998 between the Trustee as trustee, Xx.Xxxxxx Bank Limited
and the Manager.
Notice of Creation of Trust means the Notice of Creation of Trust dated 31
December 2003 issued under the Master Trust Deed in relation to the Trust.
Paying Office means, in relation to a Paying Agent, the office of the
Paying Agent specified in the Class A-1 Notes or otherwise under this
agreement or the Note Trust Deed as the office at which payments in
respect of the Class A-1 Notes will be made as changed from time to time
in accordance with this agreement.
Supplementary Terms Notice means the Supplementary Terms Notice dated on
or about the date of this agreement relating to the Trust.
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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, and initially means its office at 0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000-0000 (ATTN: Trust Administration ST0401).
Trust means the trust known as the Crusade Global Trust No. 1 of 2004
established under the Notice of Creation of Trust, the Master Trust Deed
and the Supplementary Terms Notice.
1.2 Note Trust Deed definitions
Words and expressions which are defined in the Note Trust Deed (including
by reference to another agreement and including the Conditions) have the
same meanings when used in this agreement unless the context otherwise
requires or unless otherwise defined in this agreement.
1.3 Interpretation
Clause 1.2 of the Master Trust Deed applies to this agreement as if set
out in full and:
(a) a reference to an asset includes any real or personal, present or
future, tangible or intangible property or asset and any right,
interest, revenue or benefit in, under or derived from the property
or asset; and
(b) a reference to an amount for which a person is contingently liable
includes an amount which that person may become actually or
contingently liable to pay if a contingency occurs, whether or not
that liability will actually arise.
1.4 Document or agreement
A reference to:
(a) an agreement includes a Security Interest, Guarantee, undertaking,
deed, agreement or legally enforceable arrangement whether or not in
writing; and
(b) a document includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the extent
prohibited by this agreement.
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.
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(b) The rights and obligations of the parties under this agreement
relate only to the Trust, and do not relate to any other Trust (as
defined in the Master Trust Deed).
2. Appointment of Paying Agents
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(a) Subject to the terms of this agreement, the Trustee (acting on the
direction of the Manager) appoints the Principal Paying Agent as its
principal paying agent, and each other Paying Agent as its paying
agent, for making payments in respect of the Class A-1 Notes in
accordance with the Transaction Documents and the Conditions at
their respective Paying Offices. The Principal Paying Agent, and
each other Paying Agent appointed under this agreement accepts that
appointment.
(b) Except in clause 17 and as the context otherwise requires,
references to the Principal Paying Agent are to it acting solely
through its Paying Office.
(c) If at any time there is more than one Paying Agent, the obligations
of the Paying Agents under this agreement shall be several and not
joint.
It is acknowledged and agreed that:
(i) each of the Principal Paying Agent and the other Paying Agents
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 except to the extent of
losses, costs, claims or damages caused by the fraud,
negligence or Default of the Trustee.
3. Payment
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3.1 Payment by Trustee
The Trustee shall, with the assistance of and, at the direction of the
Manager, not later than 11:00 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 (including where relevant in clause 3.9) 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
each Class A-1 Note on that Payment Date under the Supplementary Terms
Notice and the Conditions.
3.2 Confirmation
Not later than 4:00 pm (Sydney time) on each Determination Date, the
Manager on behalf of the Trustee shall notify, or procure notification to,
the Principal Paying Agent and the Note Trustee of the amount of interest
or principal payable in respect of the Class A-1 Notes on the Payment Date
following that Determination Date. The Trustee or if required by the
Trustee, the Manager on its behalf shall also forward to the Principal
Paying Agent at that time confirmation that all amounts required to be
paid to the Currency Swap Provider under any Confirmation relating to the
Class A-1 Notes on the Payment Date following that Determination Date will
be made unconditionally.
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3.3 Payments by Paying Agents
Subject to payment being duly made as provided in clause 3.1 (or to 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-1 Notes in accordance with the Supplementary Terms Notice and the
Conditions.
3.4 Method of Payment - Book-Entry Notes
The Principal Paying Agent shall cause all payments of principal or
interest (as the case may be) due in respect of Class A-1 Notes
represented by a Book-Entry Note to be made to the Common Depository for
credit to the account of the persons appearing from time to time in the
records of the Common Depository as account holder with respect to the
Book-Entry Note.
3.5 Method of payment - Definitive Notes
Payments of principal or interest on the Definitive Notes, if any, shall
be made in accordance with the Conditions and the Supplementary Terms
Notice.
3.6 Late payment
(a) If any payment under clause 3.1 is made late but otherwise in
accordance with the provisions of this agreement, each Paying Agent
shall make payments required to be made by it in respect of the
Class A-1 Notes as provided in this clause 3. However, unless and
until the full amount of any payment in respect of the Class A-1
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 except to the extent that non-payment is caused by fraud,
wilful misconduct, negligence or bad faith on the part of that
Paying Agent or of any of its directors, officers, employees or
servants.
(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-1
Note in accordance with the Supplementary Terms Notice and the
Conditions, but receives the full amount later, it shall:
(i) forthwith upon full receipt notify the other Paying Agents (if
any), the Trustee, the Note Trustee, the Security Trustee and
the Manager; and
(ii) as soon as practicable after such full receipt give due
notice, in accordance with Condition 12 (unless the Note
Trustee agrees otherwise), to the Class A-1 Noteholders that
it has received the full amount.
3.7 Notice of non-receipt
The Principal Paying Agent shall immediately notify by facsimile (if
appropriate) the other Paying Agents (if any), the Note Trustee, the
Trustee, the Security Trustee, the Currency Swap Provider and the Manager
if the full amount of any payment of principal or interest required to be
made by the Supplementary Terms Notice and Conditions in respect of the
Class A-1 Notes is not unconditionally received by it or to its order in
accordance with this agreement.
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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 Supplementary Terms Notice, the
Conditions and this agreement. The Trustee shall not be concerned with the
apportionment of any moneys between the Principal Paying Agent, the other
Paying Agents (if any) and payment to the Principal Paying Agent of any
moneys due to the Paying Agents shall operate as a good discharge to the
Trustee in respect of such moneys.
3.9 Method of payment
(a) All sums payable by the Trustee to the Principal Paying Agent under
this agreement shall, unless otherwise provided by and subject to
the Currency Swap, be paid by the Currency Swap Provider on behalf
of the Trustee in US$ to the account, with the bank outside
Australia as the Principal Paying Agent may from time to time notify
to the Trustee and the Note Trustee. Those sums shall be held in an
account for payment to the Class A-1 Noteholders, as the case may
be, and, failing that payment within the designated periods of
prescription specified in Condition 8, or upon the bankruptcy,
insolvency, winding up or liquidation of the Principal Paying Agent
or default being made by the Principal Paying Agent in the payment
of any amounts in respect of principal or interest in accordance
with this agreement, on trust for repayment to the Trustee (subject
to clause 4). On repayment in accordance with clause 4 to the
Trustee that trust shall terminate and all liabilities of the
Principal Paying Agent with respect to those moneys shall cease. The
Principal Paying Agent shall, promptly after each Payment Date,
confirm to the Trustee that the Principal Paying Agent has paid the
relevant amount to the Common Depository.
(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 separate account referred to in paragraph
(a) and it need not segregate such sums from other amounts held by
it.
3.10 No fee
Subject to clause 18, no Paying Agent will charge any commission or fee in
relation to any payment under this agreement.
3.11 Trust
The Principal Paying Agent shall hold in trust for the Note Trustee and
the Class A-1 Noteholders all sums held by it for the payment of principal
and interest with respect to the Class A-1 Notes until all relevant sums
are paid to the Note Trustee or the Class A-1 Noteholders or otherwise
disposed of in accordance with the Note Trust Deed.
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4. Repayment
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(a) Immediately on any entitlement to receive principal or interest
under any Class A-1 Note becoming void under the Conditions, the
Principal Paying Agent shall repay to the Trustee the amount which
would have been due in respect of that principal or interest if it
had been paid before the entitlement became void, together with any
fees applicable to that payment or entitlement (pro rata as to the
amount and time) to the extent already paid under clause 18.
(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 Manager) appoints the
Calculation Agent as its reference agent in respect of the Class A-1
Notes upon the terms and conditions set forth in this agreement and
the Calculation Agent accepts that appointment.
(b) It is acknowledged and agreed that:
(i) the Calculation Agent is the agent of the Trustee in its
capacity as trustee of the Trust only; and
(ii) despite anything else in this agreement, any other Transaction
Document or at law, the Trustee in its personal capacity is
not responsible for any act or omission of the Calculation
Agent except to the extent of losses, costs, claims or damages
caused by the fraud, negligence or Default of the Trustee.
6. Duties of the Calculation Agent
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(a) The Calculation Agent shall, in relation to the Class A-1 Notes,
until their final maturity or such earlier date on which the Class
A-1 Notes are due and payable in full and in either case until the
Trustee has paid all amounts in relation to the Class A-1 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 Conditions and any other duties
which are reasonably incidental at the request of the Trustee,
the Manager, the Note Trustee or the Principal Paying Agent;
(ii) determine LIBOR for each Interest Period, and calculate the
relevant Interest and Interest Rate on Class A-1 Notes, in the
manner set out in Condition 4 and confirm with the Currency
Swap Provider that the LIBOR determined under this agreement
is the same as LIBOR determined by the Currency Swap Provider
under the Currency Swap;
(iii) notify the Trustee, the Manager, the Note Trustee and the
Paying Agents by facsimile transmission on or as soon as
possible after the first day of that Interest
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Period, of the Interest Rate and the Interest so determined by
it in relation to that Interest Period, specifying to the
Trustee and the Manager the rates upon which they are based
and (where relevant) the names of the banks quoting those
rates; and
(iv) cause the Interest and Interest Rates applicable to the Class
A-1 Notes for each Interest Period together with the relevant
Payment Date, to be published (at the expense of the Trustee)
in accordance with the provisions of Conditions 4 and 12, on
or as soon as possible after the commencement of the relevant
Interest Period, provided that the Trustee and the Manager and
the Note Trustee shall co-operate with the Calculation Agent
in order to effect that publication.
(b) The Interest, Interest Rate and relevant Payment Date published
under sub-paragraph (iv) may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without notice
to Class A-1 Noteholders in the event of a shortening of the
Interest Period.
(c) If the Calculation Agent at any time and for any reason does not
determine the Interest Rate or calculate the Interest for the Class
A-1 Notes, the Manager shall do so and each such determination or
calculation shall be deemed to have been made by the Calculation
Agent. In doing so, the 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 shall deem fair and reasonable in
all the circumstances.
(d) If the Manager does not at any time and for any reason determine a
Principal Payment, the Invested Amount or the Stated Amount
applicable to Class A-1 Notes in accordance with the Transaction
Documents, the Principal Payment, Invested Amount and the Stated
Amount shall be determined by the Calculation Agent in accordance
with the Transaction Documents (but based solely on the information
in its possession) and each such determination or calculation shall
be deemed to have been made by the 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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(a) At any time after an Event of Default has occurred in relation to a
Class A-1 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:
(i) by notice in writing to the Trustee, the Manager, the
Calculation Agent, the Principal Paying Agent and any other
Paying Agents require the Principal Paying Agent, the other
Paying Agents and the Calculation Agent either:
(A)
(1) to act as Principal Paying Agent, Paying Agents
and Calculation Agent, respectively, of the Note
Trustee on the terms of this agreement in relation
to payments to be made by or on behalf of the
Trustee under the terms of the Note Trust Deed,
except that
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the Note Trustee's liability under any provisions
of this agreement 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
(2) to hold all Definitive Notes and all amounts,
documents and records held by them in respect of
the Class A-1 Notes on behalf of the Note Trustee;
or
(B) to deliver up all Definitive Notes, and all amounts,
documents and records held by them in respect of the
Class A-1 Notes, to the Note Trustee or as the Note
Trustee directs in that notice, other than any documents
or records which the Calculation Agent or Paying Agent
(as the case may be) is obliged not to release by any
law or regulation; and
(ii) by notice in writing to the Trustee require it to make (or
arrange to be made) all subsequent payments in respect of the
Class A-1 Notes 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.
(b) The payment by the Trustee of its payment obligations on each
Payment Date under the Supplementary Terms Notice and the Conditions
to the Note Trustee in accordance with this paragraph (b) shall be a
good discharge to the Trustee and the Trustee shall not be liable
for any act or omission or default of the Note Trustee during the
period it is required to make payment to the Note Trustee under this
paragraph (b).
(c) The Note Trustee shall forthwith upon request give notice to the
Manager, the Trustee, the Security Trustee, the Calculation Agent
and the Principal Paying Agent of any change in the Authorised
Signatories of the Note Trustee.
8. Early Redemption of Notes
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(a) If the Trustee intends to redeem all (but not some only) of the
Class A-1 Notes prior to its Final Maturity Date pursuant to
Condition 5(j) (which it may only do at the direction of the
Manager), the 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-1 Noteholders in
accordance with Condition 5(i) or 5(j) and stating the date on which
the Class A-1 Notes are to be redeemed.
(b) The Principal Paying Agent shall, on receipt of a notice under
paragraph (a):
(i) notify the Common Depository of the proposed redemption,
specifying:
(A) the aggregate Invested Amount or Stated Amount (as the
case may be) of the Class A-1 Notes to be redeemed;
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(B) the amount of principal to be repaid in relation to the
Class A-1 Notes; and
(C) the date on which the Class A-1 Notes are to be
redeemed; and
(ii) promptly and in accordance with the relevant Conditions on
behalf of and 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 some (but not all) of the Class
A-1 Notes prior to its Final Maturity Date pursuant to Condition
5(a) the Manager shall on each Determination Date give prior notice
to the Calculation Agent, the Principal Paying Agent and the Note
Trustee, as provided in Condition 5.
(b) On receipt of a notice under paragraph (a), the Principal Paying
Agent shall notify the Common Depository of the proposed redemption,
specifying in each case the aggregate principal amount of the Class
A-1 Notes to be redeemed and the date on which such Class A-1 Notes
are to be redeemed.
(c) The Manager shall, on (or as soon as practicable after) each
Quarterly Determination Date in respect of the Class A-1 Notes,
calculate:
(i) the amount of principal to be repaid in respect of the Class
A-1 Notes due on the Payment Date next following that
Determination Date;
(ii) the Stated Amount and Invested Amount of the Class A-1 Note on
the first day of the next following Interest Period (after
deducting any principal due to be made on the next Payment
Date); and
(iii) the Class A-1 Bond Factor on each Quarterly Determination Date
in respect of the Collection Period ending before that
Quarterly Determination Date, and shall forthwith notify or
cause to be notified to the Trustee, the Calculation Agent,
the Note Trustee and the Principal Paying Agent of each of
those determinations in accordance with the Supplementary
Terms Notice. On receipt of that notice, the Principal Paying
Agent shall give a copy of that notice to the Common
Depository in accordance with the requirements of the Note
Depository Agreement.
(d) The Manager will immediately cause details of each determination
under paragraph (c) to be published in accordance with Condition 12
by one Business Day before the relevant Payment Date.
(e) If no principal is due to be repaid on the Class A-1 Notes on any
Payment Date, the Manager shall give notice or shall cause a notice
to this effect to be given to the Class A-1 Noteholders in
accordance with Condition 12.
(f) If the Class A-1 Notes are redeemed in whole or in part in
accordance with the Conditions and the Transaction Documents, the
Principal Paying Agent will, if any Book-Entry Notes are still
outstanding in relation to that Class, cause the Note Registrar to
record all relevant
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details in the Note Register. The Principal Paying Agent shall as
soon as possible, and in any event within three months after the
date of any redemption or purchase, furnish to each of the Trustee
and, if the Principal Paying Agent is not also the Note Trustee, the
Note Trustee a certificate setting out the aggregate Invested Amount
and Stated Amount of Class A-1 Notes which have been redeemed or the
aggregate Invested Amount and Stated Amount of Class A-1 Notes which
have been purchased. If the Invested Amount of a Book-Entry Note is
reduced to nil, the Principal Paying Agent shall destroy the
relevant Book-Entry Note and issue a destruction certificate
forthwith to the Note Trustee and shall send a copy of that
certificate to the Trustee and the Manager.
10. Notices to Noteholders
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(a) Subject to clause 23 at the expense of the Trustee, the Principal
Paying Agent shall arrange for the publication of all notices to
Class A-1 Noteholders in accordance with the Conditions.
(b) The Principal Paying Agent shall, if the Principal Paying Agent is
not also the Note Trustee, promptly send to the Note Trustee one
copy of the form of every notice given to Class A-1 Noteholders in
accordance with the Conditions.
11. Documents and Forms
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(a) The Manager shall provide to the Principal Paying Agent for
distribution to each Paying Agent sufficient copies of all documents
required by the Conditions or the Note Trust Deed to be available to
the Class A-1 Noteholders for issue or inspection (including the
Note Trust Deed, the Master Trust Deed and the Supplementary Terms
Notice).
(b) The Manager and the Trustee shall provide to the Calculation Agent
such documents as the Calculation Agent may reasonably require from
the 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-1Notes.
12. Authentication
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The Principal Paying Agent upon written direction of the Manager shall
authenticate or cause to be authenticated the Book-Entry Notes and (if
required) the Definitive Notes (whether on initial issue or on
replacement).
13. Indemnity
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(a) Subject to paragraph (b) and clause 23, the Trustee shall indemnify
each Paying Agent, the Note Registrar and the Calculation Agent
against any loss, damages, proceeding, liability, cost, claim,
action, demand or expense (in this clause 13, each, an Expense)
which the Paying Agent, the Note Registrar or the Calculation Agent,
as the case may be, may incur or which may be made against the
Paying Agent, the Note Registrar or the Calculation Agent (as the
case may be), as a result of or in connection with the Paying
Agent's, the Note Registrar's or the Calculation Agent's, as the
case may be, appointment or the proper exercise of the Paying
Agent's, the Note
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Registrar's or the Calculation Agent's, as the case may be, powers
and proper performance of the Paying Agent's, the Note Registrar's
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's or the Calculation Agent in accordance
with clause 17 (including any liability in respect of payment of a
cheque drawn by that Paying Agent or Calculation Agent (as the case
may be) 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 which
breach arises out of the Paying Agent's, the Note Registrar's
or the Calculation Agent's (as the case may be) own fraud,
wilful misconduct, negligence or bad faith or that of its
directors, officers or employees or servants;
(ii) if the Paying Agent, the Note Registrar or the Calculation
Agent (as the case may be) gives notice of the Expense to the
Trustee and the Manager promptly upon the Paying Agent, the
Note Registrar or the Calculation Agent (as the case may be)
becoming aware of the Expense; and
(iii) if and whenever the Trustee or the 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 the Paying
Agents severally indemnifies the Trustee and the Manager against any
Expense which the Trustee or the Manager (as the case may be) may
incur or which may be made against it as a result of a breach by the
Calculation Agent, the Note Registrar or the Paying Agent (as the
case may be) of the terms of this agreement or its own fraud, wilful
misconduct, negligence or bad faith or that of its directors,
officers or employees or servants, including any failure to obtain
and maintain in existence any Authorisation required by it for the
assumption, exercise and performance of its powers and duties under
this agreement.
14. The Note Register
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14.1 Appointment of Note Registrar
The Trustee appoints Deutsche Bank Trust Company Americas to be the
initial Note Registrar. Deutsche Bank Trust Company Americas accepts that
appointment.
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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 terms of this agreement and 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-1 Notes issued in relation
to the Trust;
(d) (Initial Invested Amount) the total Initial Invested Amount of Class
A-1 Notes issued on each such Issue Date;
(e) (Invested Amount) the Invested Amount of each Class A-1 Note from
time to time;
(f) (Stated Amount) the Stated Amount of each Class A-1 Note from time
to time;
(g) (Series) details of relevant Classes of Class A-1 Notes;
(h) (details of Noteholders) the name and address of each Class A-1
Noteholder;
(i) (number of Notes) the number of Class A-1 Notes held by each Class
A-1 Noteholder;
(j) (date of entry) the date on which a person was entered as the holder
of Class A-1 Notes;
(k) (date of cessation) the date on which a person ceased to be a Class
A-1 Noteholder;
(l) (account) the account to which any payments due to a Class A-1
Noteholder are to be made (if applicable);
(m) (payments) a record of each payment in respect of the Class A-1
Notes; and
(n) (additional information) such other information as:
(i) is required by the Supplementary Terms Notice;
(ii) the Note Registrar considers necessary or desirable; or
(iii) the Manager or the Trustee reasonably requires in writing with
respect to Class A-1 Notes.
14.3 Payments of Principal and Interest
(a) Any payment of principal or interest on any Class A-1 Note shall be
endorsed by the Note Registrar on the Note Register. In the case of
payments of principal, the Invested Amount of the Class A-1 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-1 Note is not paid in full (including
Carryover Charge Offs and by reason of a deduction or withholding)
the Note Registrar shall endorse a record of that shortfall on the
Note Register.
14.4 Place of keeping Register, copies and access
The Note Register shall be:
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(a) (place kept) kept at the office of the Note Registrar at 0000 Xxxx
Xx. Xx Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 or at such
place as the Trustee, the Manager and the Note Registrar may agree;
(b) (access to Manager and Auditor) open to the Trustee, the Manager,
the Note Trustee and the Auditor of the Trust to inspect during
normal business hours;
(c) (inspection by Class A-1 Noteholders) open for inspection by the
Note Trustee or a Class A-1 Noteholder during normal business hours
but, in the case of a Class A-1 Noteholder, only in respect of
information relating to that Class A-1 Noteholder; and
(d) (not for copying) not available to be copied by any person (other
than the Trustee, the Manager or the Note Trustee) except in
compliance with such terms and conditions (if any) as the 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-1 Notes and the
Trustee shall be entitled to recognise a Class A-1 Noteholder as the
absolute owner of Class A-1 Notes and the Trustee shall not be bound
or affected by any trust affecting the ownership of any Class A-1
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-1 Noteholder by the Class A-1
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 deed;
(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-1 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, negligence or
wilful default.
15. Changes of Note Registrar
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15.1 Removal
The Trustee (or the Manager on its behalf after advising the Trustee) may
terminate the appointment of the Note Registrar with the prior written
approval of the Note Trustee (which approval must not be unreasonably
withheld or delayed), with effect not less than 60 days from that notice.
15.2 Resignation
Subject to this clause 15 the Note Registrar may resign its appointment at
any time by giving to the Trustee, the Manager and the Note Registrar not
less than 60 days written notice to that effect.
15.3 Limitation
Despite clauses 15.1 and 15.2:
(a) no resignation by or termination of the appointment of the Note
Registrar shall take effect until a new Note Registrar approved in
writing by the Note Trustee has been appointed on terms previously
approved in writing by the Note Trustee (in each case, that approval
not to be unreasonably withheld or delayed); and
(b) the appointment of a new Note Registrar shall be on the terms and
subject to the conditions of this agreement and the outgoing Note
Registrar shall co-operate fully to do all further acts and things
and execute any further documents as may be necessary or desirable
to give effect to the appointment of the new Note Xxxxxxxxx.
00. General
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16.1 Communications to Class A-1 Noteholders
The Principal Paying Agent shall, upon receipt from the Trustee, Manager,
Security Trustee or Note Trustee of any communication to be delivered to
Class A-1 Noteholders or Class A-1 Note Owners, including any
communications pursuant to clauses 3.3, 7.1, 18(a), 22.1 or 23.2 of the
Note Trust Deed or any other solicitation of notice from or consent of the
Class A-1 Noteholders or Class A-1 Note Owners pursuant to or relating to
the Note Trust Deed or this agreement, forward such communications to the
Class A-1 Noteholders, along with instructions that the responses relating
to such communications be returned to the Principal Paying Agent. Such
communication shall include the date upon which the response to such
solicitation shall be delivered (the Response Date). The Principal Paying
Agent shall treat any Class A-1 Noteholder who has not delivered its
response as of the Response Date as having withheld its consent to the
proposed action. The Principal Paying Agent shall notify the Trustee,
Manager and Note Trustee of the results of any such solicitations of
consent.
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16.2 Agency
Subject to any other provision of this agreement, each of the Paying
Agents, the Calculation Agent and the Note Registrar (each a Note Party)
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-1
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 Book-Entry Note remains outstanding, the registered
owner of that Book-Entry Note as the person entitled to receive
payments of principal or interest (as applicable) and each person
shown in the records of the Common Depository as the holder of any
Class A-1 Note represented by a Book-Entry Note shall be entitled to
receive from the registered owner of that Book-Entry Note any
payment so made in accordance with the respective rules and
procedures of the Common Depository and on the terms and subject to
the conditions of that Book-Entry Note;
(b) who is the registered owner of any relevant 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 Book-Entry Note in respect of any Class A-1 Note is no
longer outstanding but Definitive Notes in respect of the Class of
Class A-1 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-1
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-1 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 Agent(s)
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 Manager or in reliance upon any
Class A-1 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.
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16.6 Entitled to deal
A Note Party shall not be precluded from acquiring, holding or dealing in
any Class A-1 Notes or from engaging or being interested in any contract
or other financial or other transaction with the Trustee, the Manager or
the Servicer as freely as if it were not an agent of the Trustee under
this agreement and in no event whatsoever (other than fraud, wilful
misconduct, negligence or bad faith) shall any Note Party be liable to
account to the Trustee or any person entitled to receive amounts of
principal or interest on the Class A-1 Notes for any profit made or fees
or commissions received in connection with this agreement or any Class A-1
Notes.
16.7 Consultation
Each Note Party may, with the consent of the Trustee and the Manager (such
consent not to be unreasonably withheld), consult as to legal matters with
lawyers selected by it, who may be employees of or lawyers to the Trustee,
the Manager or the relevant Paying Agent or the Calculation Agent.
16.8 Duties
Each Note Party shall perform the duties, and only the duties, contained
in or reasonably incidental to this agreement and the Conditions and in
the Class A-1 Notes, and no implied duties or obligations (other than
general laws as to agency) shall be read into this agreement, the Class
A-1 Notes against any Note Party. A Note Party shall not 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.
16.9 Income Tax Returns
The Principal Paying Agent shall, subject always to compliance with
mandatory provisions of law, deliver to each Class A-1 Noteholder such
information as may be reasonably required to enable such Class A-1
Noteholder to prepare its federal and state income tax returns.
16.10 Obligations of Note Parties
Each Note Party represents and warrants that it is duly qualified to
assume its obligations under this agreement and has obtained all necessary
approvals required to perform its obligations under this agreement.
17. Changes in Paying Agents and Calculation Agent
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17.1 Removal
The Trustee (or the Manager with the consent of the Trustee (such consent
not to be unreasonably withheld)) may at any time:
(a) with the prior written approval of the Note Trustee appoint:
(i) additional or alternative Paying Agents; or
(ii) an alternative Calculation Agent;
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(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 Note Trustee, 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 (x) the Paying Agent or
the Calculation Agent, as the case may be, having become
aware of that failure and (y) 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
Manager; or
(ii) otherwise, with the prior written approval of the Note Trustee
(which approval must not be unreasonably withheld or delayed)
with effect not less than 60 days' from that notice, which
date shall be not less than 30 days before nor 30 days after
any due date for payment of any Class A-1 Notes.
17.2 Resignation
Subject to this clause 17, a Paying Agent or the Calculation Agent may
resign its appointment under this agreement at any time by giving to the
Trustee, the Manager, each Designated Rating Agency and (where a Paying
Agent is resigning and the Paying Agent is not the Principal Paying Agent)
the Principal Paying Agent not less than 60 days' written notice to that
effect, which notice shall expire not less than 30 days before or 30 days
after any due date for payment of any Class A-1 Notes.
17.3 Limitation
Despite clauses 17.1 and 17.2:
(a) no resignation by or termination of the appointment of the Principal
Paying Agent shall take effect until a new Principal Paying Agent
approved in writing by the Note Trustee has been appointed on terms
previously approved in writing by the Note Trustee (in each case,
that approval not to be unreasonably withheld or delayed);
(b) subject to clause 17.3(a), if any Paying Agent or the Calculation
Agent resigns in accordance with clause 17.2, but by the day falling
15 days before the expiry of any notice under clause 17.2 the
Trustee or the Manager has not appointed a new Paying Agent or
Calculation Agent then the relevant Paying Agent or Calculation
Agent (as the case may be) may appoint in its place any reputable
bank or trust company of good standing approved in writing by the
Note Trustee and appointed on terms previously approved in writing
by the Note Trustee (in each case, that approval not to be
unreasonably withheld or delayed);
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(c) no resignation by or termination of the appointment of any Paying
Agent shall take effect if as a result of that resignation or
termination there would cease to be a Paying Agent which has a
Paying Office in New York City, California or such other
jurisdiction as the Paying Agent, the Manager and the Trustee may
agree from time to time;
(d) no appointment or termination of the appointment of any Paying Agent
or the Calculation Agent (as the case may be) shall take effect
unless and until notice has been given to the Class A-1 Noteholders
in accordance with the Conditions;
(e) no resignation by or termination of the appointment of the
Calculation Agent shall take effect until a new Calculation Agent
having its Specified Office in New York City, California or such
other jurisdiction as the Calculation Agent, the Manager and the
Trustee may agree from time to time has been appointed; and
(f) 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 be, in the case of an appointment under
clause 17.1(a) or a termination under clause 17.1(b)(ii), at the
cost of the relevant Paying Agent).
In addition, the Trustee shall forthwith appoint a Paying Agent in New
York City in the circumstances described in Condition 6(b) in any Note (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 in accordance with Condition 12.
17.4 Delivery of amounts
If the appointment of the Principal Paying Agent terminates, the Principal
Paying Agent shall, on the date on which that termination takes effect,
pay to the successor Principal Paying Agent any amount held by it for
payment of principal or interest in respect of any Class A-1 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.
17.5 Successor to Principal Paying Agent
(a) On the execution by the Trustee, the Manager and any successor
Principal Paying Agent of an instrument effecting the appointment of
that successor Principal Paying Agent, that successor Principal
Paying Agent shall, without any further act, deed or conveyance,
become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of its predecessor with effect as
if originally named as 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 Principal Paying
Agent is appointed.
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(b) Any corporation:
(i) into which the Principal Paying Agent is merged;
(ii) with which the Principal Paying Agent is consolidated;
(iii) resulting from any merger or consolidation to which the
Principal Paying Agent is a party; or
(iv) to which the Principal 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 the successor Principal 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 Manager,
and after that effective date all references in this agreement 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 Manager and any successor
Calculation Agent of an instrument effecting the appointment of that
successor Calculation Agent, that successor Calculation Agent shall,
without any further act, deed or conveyance, become vested with all
the authority, rights, powers, trusts, immunities, duties and
obligations of its predecessor with effect as if originally named as
Calculation Agent in this agreement and that predecessor, on payment
to it of the pro rata proportion of its administration fee and
disbursements then unpaid (if any), shall have no further
liabilities under this agreement, except for any accrued liabilities
arising from or relating to any act or omission occurring prior to
the date on which the successor Calculation Agent is appointed.
(b) Any corporation:
(i) into which the Calculation Agent is merged;
(ii) with which the Calculation Agent is consolidated;
(iii) resulting from any merger or consolidation to which the
Calculation Agent is a party; or
(iv) to which the Calculation Agent sells or otherwise transfers
all or substantially all the assets of its corporate trust
business,
shall, on the date when that merger, conversion, consolidation, sale
or transfer becomes effective and to the extent permitted by
applicable law, become the successor Calculation Agent under this
agreement without the execution or filing of any agreement or
document or any further act on the part of the parties to this
agreement, unless otherwise required by the Trustee or the Manager,
and after that effective date all references in this agreement to
the Calculation Agent shall be references to that corporation.
17.7 Successor to Note Registrar
(a) On the execution by the Trustee, the Manager and any successor Note
Registrar of an instrument effecting the appointment of that
successor Note
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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; or
(iv) to which the Note Registrar sells or otherwise transfers all
or substantially all the assets of its corporate trust
business,
shall, on the date when that merger, conversion, consolidation, sale
or transfer becomes effective and to the extent permitted by
applicable law, become the successor Note Registrar under this
agreement without the execution or filing of any agreement or
document or any further act on the part of the parties to this
agreement, unless otherwise required by the Trustee or the Manager,
and after that effective date all references in this agreement to
the Note Registrar shall be references to that corporation.
17.8 Notice to Class A-1 Noteholders
The Manager on behalf of the Trustee shall, within 14 days of:
(a) the termination of the appointment of any Paying Agent, the Note
Registrar or the Calculation Agent;
(b) the appointment of a new Paying Agent, the Note Registrar or
Calculation Agent; or
(c) the resignation of any Paying Agent or Calculation Agent,
give to the Class A-1 Noteholders notice of the termination, appointment
or resignation in accordance with Condition 12 (in the case of a
termination under clause 17.1(b)(i) or 17.2 at the cost of the outgoing
Paying Agent or the Calculation Agent, as the case may be).
17.9 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 in New York City,
California or such other jurisdiction as the Paying Agent, the
Manager and the Trustee may agree from time to time), it must give
to the Trustee, the Manager, the Note Trustee, the Class A-1
Noteholders (which notice, in the case of the Class A-1 Noteholders,
must be given in accordance with Condition 12) 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
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take effect. No change of Paying Office may occur within the period
between 30 days before and 30 days after any due date for payment of
any Class A-1 Notes.
(b) If the Calculation Agent proposes to change its Specified Office
(which must be in New York City, California or such other
jurisdiction as the Calculation Agent, the Manager and the Trustee
may agree from time to time), or to nominate a further Specified
Office, it must give to the Trustee, the Manager, the Class A-1
Noteholders (which notice, in the case of the Class A-1 Noteholders,
must be given in accordance with Condition 12) 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. No change of specified office
may occur within the period between 30 days before and 30 days after
any due date for payment of any Class A-1 Notes.
(c) The 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 or 17.2 on or prior to the date
of that change) give to the Class A-1 Noteholders notice in
accordance with the Conditions of that change and of the address of
the new Paying Office or Specified Office (as the case may be) but
the costs of giving that notice shall be borne by the Paying Agent
or the Calculation Agent (as the case may be) which is changing its
Paying Office and not by the Trustee or the Manager.
18. Fees and Expenses
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(a) The Trustee shall pay to the Principal Paying Agent during the
period when any of the Class A-1 Notes remain outstanding the
administration fee separately agreed by the Principal Paying Agent,
the Manager and the Trustee, together with any out-of-pocket
expenses reasonably incurred (including any legal fees and
expenses). If the appointment of the Principal Paying Agent is
terminated under this agreement, the Principal Paying Agent must
refund to the Trustee that proportion of the fee (if any) which
relates to the period during which the Principal Paying Agent will
not be the Principal Paying Agent.
(b) The Trustee shall pay to the Calculation Agent during the period
when any of the Class A-1 Notes remain outstanding the fee
separately agreed by the Calculation Agent, the Manager and the
Trustee, together with any out-of-pocket expenses reasonably
incurred (including any legal fees and expenses). If the appointment
of the Calculation Agent is terminated under this agreement, the
Calculation Agent must refund to the Trustee that proportion of the
fee (if any) which relates to the period during which the
Calculation Agent will not be the Calculation Agent.
(c) The Trustee shall pay to the Note Registrar during the period when
any of the Class A-1 Notes remain outstanding the fee separately
agreed by the Note Registrar and the Trustee, together with any
out-of-pocket expenses reasonably incurred (including any legal fees
and expenses). If the appointment of the Note Registrar is
terminated under this agreement, the Note Registrar must refund to
the Trustee that proportion of the fee (if any) which relates to the
period during which the Note Registrar will not be the Note
Registrar.
(d) Save as provided in paragraphs (a), (b) and (c), or as expressly
provided elsewhere in this agreement, neither the Trustee nor the
Manager shall have any liability in respect of any
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fees or expenses of the Calculation Agent, Principal Paying Agent,
any other Paying Agent or the Note Registrar in connection with this
agreement.
(e) The above fees, payments and expenses shall be paid in Australian
dollars and the Trustee shall in addition pay any goods and services
tax which may be applicable. The Principal Paying Agent shall
arrange for payment of commissions to the other Paying Agents and
arrange for the reimbursement of their expenses promptly upon
demand, supported by evidence of that expenditure, and provided that
payment is made as required by paragraph (a) the Trustee shall not
be concerned with or liable in respect of that payment.
19. Waivers, Remedies Cumulative
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(a) No failure to exercise and no delay in exercising any right, power
or remedy under this agreement operates as a waiver. Nor does any
single or partial exercise of any right, power or remedy preclude
any other or further exercise of that or any other right, power or
remedy.
(b) The rights, powers and remedies provided to a party in this
agreement are in addition to, and do not exclude or limit, any
right, power or remedy provided by law.
20. Severability of Provisions
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Any provision of this agreement which is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the extent of
the prohibition or unenforceability. That does not invalidate the
remaining provisions of this agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
21. Assignments
--------------------------------------------------------------------------------
No party may assign or transfer any of its rights or obligations under
this agreement without the prior written consent of the other parties, or
if the rating of the Class A-1 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. A party who assigns or transfers
any of its rights or obligations under this agreement must promptly notify
each Designated Rating Agency of that assignment.
22. Notices
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22.1 General
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
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(i) (in the case of delivery in person or by post) when delivered,
received or left at the address of the recipient shown in
clause 22.2 or to any other address 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,
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 5:00 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, telephone and facsimile of each party at the date of this
agreement are as follows:
The Trustee
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxx Xxxxx 0000
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Manager Securitisation
The Manager
CRUSADE MANAGEMENT LIMITED
0-00 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxx Xxxxx 0000
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Executive Manager, Securitisation
The Principal Paying Agent
DEUTSCHE BANK TRUST COMPANY AMERICAS
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
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Tel: 000 000 0000
Fax: 000 000 0000
Attention: Trust Xxxxxxxxxxxxxx XX0000
The Calculation Agent
DEUTSCHE BANK TRUST COMPANY AMERICAS
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Tel: 000 000 0000
Fax: 000 000 0000
Attention: Trust Xxxxxxxxxxxxxx XX0000
The Note Trustee
DEUTSCHE BANK TRUST COMPANY AMERICAS
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Tel: 000 000 0000
Fax: 000 000 0000
Attention: Trust Xxxxxxxxxxxxxx XX0000
The Note Registrar
DEUTSCHE BANK TRUST COMPANY AMERICAS
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Tel: 000 000 0000
Fax: 000 000 0000
Attention: Trust Xxxxxxxxxxxxxx XX0000
And solely for purposes of transfer, the Note Registrar shall act through
the offices of its agent, DTC Transfer Agent Services, at 00 Xxxxx Xxxxxx,
Xxxxxxxx Xxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
22.3 Communication through Principal Paying Agent
All communications relating to this agreement between the Trustee or the
Manager, 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 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Manager under this agreement.
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23.2 Liability of Trustee limited to its right to indemnity
(a) The Trustee enters into this agreement only in its capacity as
trustee of the Trust and in no other capacity (except where the
Transaction Documents provide otherwise). Subject to paragraph (c)
below, a liability arising under or in connection with this
agreement or the Trust can be enforced against the Trustee only to
the extent to which it can be satisfied out of the assets and
property of the Trust which are available to satisfy the right of
the Trustee to be exonerated or indemnified for the liability. This
limitation of the Trustee's liability applies despite any other
provision of this agreement 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.
(b) Subject to paragraph (c) below, no person (including any Relevant
Party) may take action against the Trustee in any capacity other
than as trustee of the Trust or seek the appointment of a receiver
(except under the Security Trust Deed), or a liquidator, an
administrator or any similar person to the Trustee or prove in any
liquidation, administration or arrangement of or affecting the
Trustee.
(c) The provisions of this clause 23.2 shall 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 or
exoneration out of the Assets of the Trust as a result of the
Trustee's fraud, negligence, or Default.
(d) It is acknowledged that the Relevant Parties are responsible under
this agreement or the other 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 under this agreement) will be considered fraud,
negligence or Default of the Trustee for the purpose of paragraph
(c) above to the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or any person
who has been delegated or appointed by the Trustee in accordance
with the Transaction Documents to fulfil its obligations relating to
the Trust or by any other act or omission of a Relevant Party or any
such person.
(e) In exercising their powers under the Transaction Documents, each of
the Trustee, the Security Trustee and the Class A-1 Noteholders must
ensure that no attorney, agent, delegate, receiver or receiver and
manager appointed by it in accordance with this agreement or any
other Transaction Documents 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 Default of the Trustee for the purpose of paragraph
(c) above.
(f) In this clause, Relevant Parties means each of the Manager, the
Servicer, the Custodian, the Calculation Agent, each Paying Agent,
the Note Trustee, the Note Registrar and the provider of any Support
Facility.
(g) Nothing in this clause limits the obligations expressly imposed on
the Trustee under the Transaction Documents.
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23.3 Unrestricted remedies
Nothing in clause 23.2 limits a Paying Agent or the Calculation Agent in:
(a) obtaining an injunction or other order to restrain any breach of
this agreement by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
23.4 Restricted remedies
Except as provided in clauses 23.3 and 23.2(c) neither any Paying Agent
nor the Calculation Agent shall:
(a) (judgment) obtain a judgment for the payment of money or damages by
the Trustee;
(b) (statutory demand) issue any demand under section 459E(1) of the
Corporations Xxx 0000 (Cth) (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.
24. Counterparts
--------------------------------------------------------------------------------
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 shall do all things reasonably necessary to enable any
successor Trustee appointed under clause 20 of the Master Trust Deed to
become the Trustee under this agreement.
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Agency Agreement Allens Xxxxxx Xxxxxxxx
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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 for Perpetual Trustees Consolidated
Limited by its attorney under power
of attorney in the presence of:
---------------------------------------- --------------------------------
Witness Signature Attorney Signature
---------------------------------------- --------------------------------
Print Name Print Name
MANAGER
Signed for Crusade Management Limited by
its attorney under power of attorney in
the presence of:
---------------------------------------- --------------------------------
Witness Signature Attorney Signature
---------------------------------------- --------------------------------
Print Name Print Name
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Agency Agreement Allens Xxxxxx Xxxxxxxx
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PRINCIPAL PAYING AGENT
Signed by Deutsche Bank Trust Company Americas in
the presence of:
----------------------------- -------------------------------------
Witness Signature Signature
----------------------------- -------------------------------------
Print Name Print Name
----------------------------- -------------------------------------
Witness Signature Signature
----------------------------- -------------------------------------
Print Name Print Name
NOTE TRUSTEE
Signed by Deutsche Bank Trust Company
Americas in the presence of:
------------------------------ ------------------------------------
Witness Signature Signature
------------------------------ ------------------------------------
Print Name Print Name
------------------------------ ------------------------------------
Witness Signature Signature
------------------------------ ------------------------------------
Print Name Print Name
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CALCULATION AGENT
Signed by Deutsche Bank Trust Company
Americas in the presence of:
-------------------------------------- -------------------------------------
Witness Signature Signature
-------------------------------------- -------------------------------------
Print Name Print Name
-------------------------------------- -------------------------------------
Witness Signature Signature
-------------------------------------- -------------------------------------
Print Name Print Name
NOTE REGISTRAR
Signed by Deutsche Bank Trust Company
Americas in the presence of:
-------------------------------------- -------------------------------------
Witness Signature Signature
-------------------------------------- -------------------------------------
Print Name Print Name
-------------------------------------- -------------------------------------
Witness Signature Signature
-------------------------------------- -------------------------------------
Print Name Print Name
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