Agency Agreement
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(Trustee)
CRUSADE MANAGEMENT LIMITED
(Manager)
THE BANK OF NEW YORK
(Principal Paying Agent)
THE BANK OF NEW YORK
(Note Trustee)
THE BANK OF NEW YORK
(Calculation Agent)
THE BANK OF NEW YORK
(Note Registrar)
AIB/BNY FUND MANAGEMENT (IRELAND) LIMITED
(Irish Paying Agent)
Crusade Global Trust No. 1 of 2005
ALLENS XXXXXX XXXXXXXX
The Xxxxxxx Xxxxx
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Tel 00 0 0000 0000
Fax 00 0 0000 0000
xxx.xxx.xxx.xx
(C) Copyright Allens Xxxxxx Xxxxxxxx 2005
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 3
1.1 Definitions 3
1.2 Definitions in Master Trust Deed, Supplementary
Terms Notice, Note Trust Deed and Conditions 3
1.3 Interpretation 4
1.4 Document or agreement 4
1.5 Transaction Document 4
1.6 Trustee as trustee 4
1.7 Note Trustee as note trustee 4
2. APPOINTMENT OF PAYING AGENTS 5
3. PAYMENT 5
3.1 Payment by Trustee 5
3.2 Confirmation 6
3.3 Payments by Paying Agents 6
3.4 Method of Payment - Book-Entry Notes 6
3.5 Method of payment - Definitive Notes 6
3.6 Late payment 6
3.7 Notice of non-receipt 7
3.8 Reimbursement 7
3.9 Method of payment 8
3.10 No fee 8
3.11 Trust 8
3.12 Forms and information 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 OFFSHORE NOTES 11
9. PRO RATA REDEMPTION AND CANCELLATION OF NOTES 12
10. CANCELLATION, DESTRUCTION AND RECORDS WHERE OFFSHORE NOTES IN
DEFINITIVE FORM HAVE BEEN ISSUED 13
11. ISSUE OF REPLACEMENT DEFINITIVE NOTES WHERE DEFINITIVE NOTES
HAVE BEEN ISSUED 14
12. NOTICES TO NOTEHOLDERS 15
13. DOCUMENTS AND FORMS 15
14. AUTHENTICATION 15
15. INDEMNITY 16
16. THE NOTE REGISTER 17
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
16.1 Appointment of Note Xxxxxxxxx 00
16.2 Details to be kept on the Note Register 17
16.3 Payments of Principal and Interest 18
16.4 Place of keeping Register, copies and access 18
16.5 Details on Note Register conclusive 18
16.6 Alteration of details on Note Register 19
16.7 Rectification of Note Register 19
16.8 Correctness of Note Register 19
17. CHANGES OF NOTE XXXXXXXXX 00
17.1 Removal 19
17.2 Resignation 19
17.3 Limitation 20
18. GENERAL 20
18.1 Communications to Offshore Noteholders 20
18.2 Agency 20
18.3 Identity 20
18.4 No set-off 21
18.5 Reliance 21
18.6 Entitled to deal 21
18.7 Consultation 21
18.8 Duties 22
18.9 Income Tax Returns 22
18.10 Taxes 22
18.11 Written instructions 22
18.12 No representations 22
18.13 European Union Tax Directive 22
19. CHANGES IN PAYING AGENTS AND CALCULATION AGENT 23
19.1 Removal 23
19.2 Resignation 23
19.3 Limitation 23
19.4 Delivery of amounts 24
19.5 Successor to Paying Agents 24
19.6 Successor to Calculation Agent 25
19.7 Successor to Note Xxxxxxxxx 00
19.8 Notice to Offshore Noteholders 26
19.9 Change in Paying Office or Specified Office 27
20. FEES AND EXPENSES 27
21. WAIVERS, REMEDIES CUMULATIVE 28
22. SEVERABILITY OF PROVISIONS 28
23. ASSIGNMENTS 28
24. NOTICES 29
24.1 General 29
24.2 Details 29
24.3 Communication through Principal Paying Agent 32
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
25. LIMITED RECOURSE 32
25.1 General 32
25.2 Liability of Trustee limited to its right to indemnity 32
25.3 Unrestricted remedies 33
25.4 Restricted remedies 33
26. COUNTERPARTS 34
27. GOVERNING LAW 34
28. SUCCESSOR TRUSTEE 34
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
DATE 2005
---------
PARTIES
---------
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 2005
(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 2005 (the MANAGER);
3. THE BANK OF NEW YORK acting through its office at 000 Xxxxxxx
Xxxxxx, Xxxxx 21 West, New York, New York 10286, United States
of America as principal paying agent for the Class A-1 Notes
described below and acting through its office at 00xx Xxxxx, 0
Xxxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx as principal
paying agent for the Class A-2 Notes described below (together
the PRINCIPAL PAYING AGENT, which expression shall, wherever the
context requires, include any successor principal paying agent
from time to time under this agreement and, except where the
context otherwise requires, the Principal Paying Agent, the
Irish Paying Agent (as defined below) and any additional paying
agent or paying agents appointed under this agreement are PAYING
AGENTS and each of them is a PAYING AGENT); as note registrar in
relation to the Offshore Notes described below (the NOTE
REGISTRAR, which expression shall, whenever the context
requires, include any successor note registrar from time to time
under this agreement); and as trustee for the Offshore
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);
4. THE BANK OF NEW YORK of 00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx X00
0XX, Xxxxxx Xxxxxxx as calculation agent in relation to the
Offshore Notes described below (the CALCULATION AGENT, which
expression shall, wherever the context requires, include any
successor calculation agent from time to time); and
5. AIB/BNY FUND MANAGEMENT (IRELAND) LIMITED of Xxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxx 0, Xxxxxxxx of Ireland as Irish paying agent (the
IRISH PAYING AGENT, which expression shall, wherever the context
requires, include any successor Irish paying agent from time to
time under this agreement).
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
RECITALS
---------
A The Trustee proposes to issue US$[*] of Class A-1 mortgage
backed pass through floating rate Notes (the CLASS A-1 NOTES),
(euro)[*] of Class A-2 mortgage backed pass through floating
rates Notes (the CLASS A-2 NOTES), and A$[*] of mortgage backed
pass through floating rate Notes comprising A$[*] Class A-3
Notes, A$[*] Class B Notes and A$[*] Class C Notes (together the
A$ NOTES) each with a Final Maturity Date falling in [*].
B The Offshore Notes will be represented initially by one or more
Class A-1 Book-Entry Notes and one or more Class A-2 Book-Entry
Notes (the BOOK-ENTRY NOTES).
C The Offshore 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 relevant Common Depository, as agent for the relevant
Clearing Agency. The Book-Entry Notes shall initially be
registered on the Note Register in the name of the relevant
Common Depository, as nominee of the relevant Clearing Agency,
and no Class A Note Owner will receive a Definitive Class A Note
representing such Class A Note Owner's interest in such Offshore
Note, except as provided in the Note Trust Deed.
D The Offshore Notes will be constituted by the Note Trust Deed,
the Supplementary Terms Notice and the Master Trust Deed.
E The Offshore 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 Offshore 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 Offshore 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 Offshore Notes only and has entered into this agreement to
provide for the terms and conditions of that appointment.
I The Trustee wishes to appoint the Irish Paying Agent as its
paying agent in Ireland in respect of the Class A-2 Notes only
and has entered into this agreement to provide for the terms and
conditions of that appointment.
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
EUROPEAN UNION TAX DIRECTIVE means the European union Council Directive
2003/48/EC on the taxation of savings income which was adopted on 3
June 2003, or any law or regulation implementing or complying with, or
introduced to conform with such directive.
MASTER TRUST DEED means the Master Trust Deed for the Crusade Trusts
dated 14 March 1998 between the Trustee as trustee, Xx.Xxxxxx Bank
Limited and the Manager.
NOTE PARTY has the meaning given to that term in clause 18.2.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust dated
[*] 2005 issued under the Master Trust Deed in relation to the Trust.
OFFSHORE NOTES means each of the Class A-1 Notes and the Class A-2
Notes.
PAYING OFFICE means, in relation to a Paying Agent and any Offshore
Notes, the office of the Paying Agent specified in the relevant
Offshore Notes or otherwise under this agreement or the Note Trust Deed
as the office at which payments in respect of the Offshore Notes will
be made as changed from time to time in accordance with this agreement.
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 00xx Xxxxx, 0 Xxxxxx
Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx.
SUPPLEMENTARY TERMS NOTICE means the Supplementary Terms Notice dated
on or about the date of this agreement relating to the Trust.
TRUST means the trust known as the Crusade Global Trust No. 1 of 2005
established under the Notice of Creation of Trust, the Master Trust
Deed and the Supplementary Terms Notice.
1.2 DEFINITIONS IN MASTER TRUST DEED, SUPPLEMENTARY TERMS NOTICE, NOTE
TRUST DEED AND CONDITIONS
(a) Words and expressions which are defined in the Master Trust Deed
(as amended by the Supplementary Terms Notice), the Supplementary
Terms Notice, the Note Trust Deed and the relevant Conditions
(including by reference to another agreement) have the same
meanings when used in this agreement unless the context otherwise
requires or unless otherwise defined in this agreement.
(b) If a definition in any of the documents in paragraph (a) above is
inconsistent, the definitions will prevail in the following
order:
(i) definition in this agreement;
(ii) definition in the Supplementary Terms Notice;
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
(iii) definition in the Master Trust Deed;
(iv) definition in the Note Trust Deed;
(v) definition in the relevant Conditions.
1.3 INTERPRETATION
Clause 1.2 of the Master Trust Deed applies to this agreement as if set
out in full and:
(a) a reference to an ASSET includes any real or personal, present or
future, tangible or intangible property or asset and any right,
interest, revenue or benefit in, under or derived from the
property or asset;
(b) a reference to an amount for which a person is CONTINGENTLY
LIABLE includes an amount which that person may become actually
or contingently liable to pay if a contingency occurs, whether or
not that liability will actually arise; and
(c) all references to costs or charges or expenses include GST, any
value added tax or similar tax charged or chargeable in respect
of the charge or expense.
1.4 DOCUMENT OR AGREEMENT
A reference to:
(a) an AGREEMENT includes a Security Interest, guarantee,
undertaking, deed, agreement or legally enforceable arrangement
whether or not in writing; and
(b) a DOCUMENT includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the
extent prohibited by this agreement.
1.5 TRANSACTION DOCUMENT
This agreement is a TRANSACTION DOCUMENT for the purposes of the Master
Trust Deed.
1.6 TRUSTEE AS TRUSTEE
(a) In this agreement, except where provided to the contrary:
(i) a reference to the Trustee is a reference to the
Trustee in its capacity as trustee of the Trust only,
and in no other capacity; and
(ii) a reference to the assets, business, property or
undertaking of the Trustee is a reference to the
assets, business, property or undertaking of the
Trustee only in the capacity described in sub-paragraph
(i) above.
(b) The rights and obligations of the parties under this agreement
relate only to the Trust, and do not relate to any other Trust
(as defined in the Master Trust Deed).
1.7 NOTE TRUSTEE AS NOTE TRUSTEE
The Note Trustee enters into this agreement for itself and for and as
trustee for and on behalf of the Offshore Noteholders from time to time
under and subject to the terms of the Note Trust Deed.
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
2. APPOINTMENT OF PAYING AGENTS
--------------------------------------------------------------------------------
(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, the Irish Paying Agent as its
paying agent with a Paying Office in Ireland and each other
Paying Agent as its paying agent, for making payments in respect
of the Offshore Notes in accordance with the Transaction
Documents and the relevant Conditions at their respective Paying
Offices. The Principal Paying Agent and the Irish Paying Agent
accepts its appointment under this agreement.
(b) Except in clause 19 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) subject to clause 7, each of the Principal Paying Agent
and the Irish Paying Agent is the agent of the Trustee
in its capacity as trustee of the Trust only;
(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; and
(iii) there will be at all times a Paying Agent in a member
state of the European Union that is not obliged to
withhold or deduct tax pursuant to the European Union
Tax Directive.
3. PAYMENT
--------------------------------------------------------------------------------
3.1 PAYMENT BY TRUSTEE
(a) The Trustee shall, with the assistance of and, at the direction
of the Manager, not later than 10.00 am (New York time) on each
Payment Date, pay to or to the order of, or procure payment to or
to the order of, the Principal Paying Agent (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
Payment Date under the Supplementary Terms Notice in respect of
the Class A-1 Notes and the relevant Conditions.
(b) The Trustee shall, with the assistance of and at the direction of
the Manager, not later than 10.00 am (London 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 Euros as may be required
(after taking account of any cash then held by the Principal
Paying Agent and available for the purpose) to be made on that
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
Payment Date under the Supplementary Terms Notice in respect of
the Class A-2 Notes and the relevant 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 Offshore 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 the
payments provided for in clause 3.1 will be made unconditionally.
3.3 PAYMENTS BY PAYING AGENTS
Subject to payment being duly made as provided in clause 3.1 (or 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 Offshore Notes in accordance with the Supplementary
Terms Notice and the relevant 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 Offshore Notes
represented by one or more Book-Entry Notes to be made to the relevant
Common Depository for credit to the account of the persons appearing
from time to time in the records of the relevant Common Depository as
account holder with respect to that Book-Entry Note.
3.5 METHOD OF PAYMENT - DEFINITIVE NOTES
(a) Payments of principal or interest on the Definitive Notes (if
any) shall be made in accordance with the relevant Conditions and
the Supplementary Terms Notice.
(b) If a Definitive Note is issued and the amount of the principal or
interest (as the case may be) then due for payment on that
Offshore Note is not paid in full (including by reason of a
deduction or withholding), the Paying Agent to whom that Offshore
Note is presented shall enface that Offshore Note with a
memorandum of the amount paid and the date of that payment.
3.6 LATE PAYMENT
(a) If any payment under clause 3.1 is made late but otherwise in
accordance with the provisions of this agreement, each Paying
Agent shall:
(i) in the case of any payment in respect of the Class A-1
Notes made on or prior to 1.00 pm (New York time) on a
Payment Date, make payments required to be made by it
in respect of the Class A-1 Notes as provided in this
clause 3 (other than clause 3.6(a)(ii));
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
(ii) in the case of any payment in respect of the Class A-1
Notes made after 1.00pm (New York time) on a Payment
Date, make payments required to be made by it in
respect of the Class A-1 Notes on the next Business Day
occurring after that Payment Date and otherwise as
provided in this clause 3;
(iii) in the case of any payment in respect of the Class A-2
Notes made on or prior to 1.00pm (London time) on a
Payment Date, make payments required to be made by it
in respect of the Class A-2 Notes as provided in this
clause 3 (other than clause 3.6(a)(iv)); and
(iv) in the case of any payment in respect of the Class A-2
Notes made after 1.00pm (London time) on a Payment
Date, make payments required to be made by it in
respect of the Class A-2 Notes on the next Business Day
occurring after that Payment Date and otherwise as
provided in this clause 3.
However, unless and until the full amount of any payment in
respect of the Offshore Notes required to be made under the
Transaction Documents has been made under clause 3.1 to or to the
order of the Principal Paying Agent, no Paying Agents shall be
bound to make a payment under clause 3.
(b) If the Principal Paying Agent has not received on a Payment Date
the full amount of principal and interest then payable on any
Offshore Note in accordance with the Supplementary Terms Notice
and the relevant Conditions, but receives the full amount later,
it shall:
(i) forthwith upon full receipt notify the other Paying
Agents (if any), the Trustee, the Note Trustee, the
Security Trustee and the Manager; and
(ii) as soon as practicable after such full receipt give due
notice, in accordance with the relevant Condition 12
(unless the Note Trustee agrees otherwise), to the
relevant Offshore Noteholders that it has received the
full amount.
3.7 NOTICE OF NON-RECEIPT
The Principal Paying Agent shall immediately notify by telex or
facsimile (if appropriate) the other Paying Agents (if any), the Note
Trustee, the Trustee, the Security Trustee, 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 the
relevant Conditions in respect of the Offshore Notes is not
unconditionally received by it or to its order in accordance with this
agreement.
3.8 REIMBURSEMENT
The Principal Paying Agent shall (provided that it has been placed in
funds by the Trustee) on demand promptly reimburse the other Paying
Agents (if any) for payments of principal and interest properly made by
that Paying Agent in accordance with the Supplementary Terms Notice,
the relevant Conditions and this agreement. The Trustee shall not be
concerned with the apportionment of any moneys between the Principal
Paying Agent and the other Paying Agents (if any) and payment to the
Principal Paying Agent of any moneys due to the Paying Agents shall
operate as a good discharge to the Trustee in respect of such moneys.
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
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 relevant Currency Swap, be paid by the Currency
Swap Provider on behalf of the Trustee in US$ (in the case of the
Class A-1 Notes or Class A-1 Noteholders) or Euros (in the case
of the Class A-2 Notes or Class A-2 Noteholders) to such bank
accounts 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 Offshore Noteholders and:
(i) failing that payment within the designated periods of
prescription specified in the relevant Condition 8; or
(ii) upon the bankruptcy, insolvency, winding up or
liquidation of the Principal Paying Agent or on default
being made by the Principal Paying Agent in the payment
of any amounts in respect of principal or interest in
accordance with this agreement,
for repayment to the Trustee (subject to clause 4). On repayment
in accordance with clause 4 to the Trustee, all liabilities of
the Principal Paying Agent with respect to those moneys shall
cease. The Principal Paying Agent shall, promptly after each
Payment Date, confirm to the Trustee, in accordance with clause
24, that the Principal Paying Agent has paid the relevant amount
to the relevant Common Depository. The Principal Paying Agent
will countersign and promptly return any such confirmation
requested by the Trustee.
(b) Subject to the terms of this agreement, the Principal Paying
Agent shall be entitled to deal with moneys paid to it under this
agreement in the same manner as other moneys paid to it as a
banker by its customers. The Principal Paying Agent shall be
entitled to retain for its own account any interest earned on the
sums from time to time credited to the account referred to in
paragraph (a) and it need not segregate such sums from other
amounts held by it, except as required by law.
3.10 NO FEE
Subject to clause 20, no Paying Agent will charge any commission or fee
in relation to any payment under this agreement to the person receiving
or entitled to receive the payment or make the exchange.
3.11 TRUST
The Principal Paying Agent shall hold on trust for the Note Trustee and
the Offshore Noteholders all sums held by it for the payment of
principal and interest with respect to the Offshore Notes until all
relevant sums are paid to the Note Trustee or the Offshore Noteholders
or otherwise disposed of in accordance with the Note Trust Deed.
3.12 FORMS AND INFORMATION
The Manager shall provide each Paying Agent with any forms and such
other information reasonably required by that Paying Agent in
connection with any withholding Tax imposed on any payment under the
Offshore Notes.
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
4. REPAYMENT
--------------------------------------------------------------------------------
(a) Immediately on any entitlement to receive principal or interest
under any Offshore Note becoming void under the relevant
Conditions, the Principal Paying Agent shall repay to the Trustee
the amount which would have been due in respect of that principal
or interest if it had been paid before the entitlement 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 20.
(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
--------------------------------------------------------------------------------
(a) The Trustee (acting on the direction of the Manager) appoints the
Calculation Agent as its reference agent in respect of the
Offshore 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
--------------------------------------------------------------------------------
(a) The Calculation Agent shall, in relation to the Offshore Notes,
until their final maturity or such earlier date on which the
Offshore Notes are due and payable in full and in either case
until the Trustee has paid all amounts in relation to the
Offshore Notes to the Principal Paying Agent or, if applicable,
the Note Trustee:
(i) perform such duties at its Specified Office as are set
forth in this agreement and in the relevant Conditions
and any other duties which are reasonably incidental at
the request of the Trustee, the Manager, the Note
Trustee or the Principal Paying Agent;
(ii) determine LIBOR (in respect of the Class A-1 Notes) and
EURIBOR (in respect of the Class A-2 Notes) for each
Interest Period, and calculate the relevant Interest
and Interest Rate on the relevant Offshore Notes, in
the manner set out in the relevant Condition 4 and
confirm with the Currency Swap Provider (using the
contact details notified by that Currency Swap Provider
to the Calculation Agent) that the LIBOR and EURIBOR
determined under this agreement is the same as
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
the LIBOR and EURIBOR determined by the Currency Swap
Provider under the relevant Currency Swap;
(iii) notify the Trustee, the Manager, the Note Trustee, the
Paying Agents, the Irish Stock Exchange (for so long as
the Class A-2 Notes are listed on the Irish Stock
Exchange) and the Currency Swap Provider by telex or
facsimile transmission on or as soon as possible after
the first day of each Interest Period, of the Interest
Rates and the Interest so determined by it in relation
to that Interest Period, specifying to those parties
the rates upon which they are based and (where
relevant) the names of the banks quoting those rates.
(b) The Manager shall on behalf of the Trustee cause the Interest and
Interest Rates applicable to the relevant Offshore Notes for each
Interest Period, together with the relevant Payment Date, to be
published (subject to clause 20, at the expense of the Trustee)
in accordance with the provisions of the relevant Conditions 4
and 12, on or as soon as possible after the commencement of the
relevant Interest Period unless the Note Trustee otherwise
agrees, provided that the Trustee, the Calculation Agent and the
Note Trustee shall co-operate with the Manager in order to effect
that publication.
(c) The Interest, Interest Rate and relevant Payment Date published
under paragraph (b) may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without
notice to Offshore Noteholders in the event of an amendment to
the Interest Period.
(d) If the Calculation Agent at any time and for any reason does not
determine the Interest Rate for or calculate the Interest payable
on an Offshore Note, 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.
7. NOTE TRUSTEE
--------------------------------------------------------------------------------
(a) At any time after:
(i) an Event of Default has occurred in relation to an
Offshore Note; or
(ii) Definitive Notes have not been issued when required in
accordance with the provisions of the Transaction
Documents,
the Note Trustee may:
(iii) by notice in writing to the Trustee, the Manager, the
Calculation Agent, the Principal Paying Agent and the
other Paying Agents (if any) require the Principal
Paying Agent, the other Paying Agents and the
Calculation Agent either:
(A) to act as Principal Paying Agent, Paying Agent,
Calculation Agent and Irish Paying Agent (in
relation to the Class A-2 Notes), respectively, of
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
the Note Trustee on the terms of this agreement in
relation to payments to be made by or on behalf of
the Trustee under the terms of the Note Trust
Deed, except that the Note Trustee's liability
under any provisions 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
(B) to hold all Definitive Notes and all amounts,
documents and records held by them in respect of
the Offshore Notes on behalf of the Note Trustee;
or
(C) to deliver up all Definitive Notes, and all
amounts, documents and records held by them in
respect of the Offshore 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
(D) by notice in writing to the Trustee require it to
make (or arrange to be made) all subsequent
payments in respect of the Offshore 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.
A payment by the Trustee of its payment obligations on each
Payment Date under the Supplementary Terms Notice and the
relevant Conditions to the Note Trustee in accordance with
paragraph (a)(iii)(D) shall be a good discharge to the Note
Trustee to the extent of such payment.
(b) The Note Trustee shall promptly 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 OFFSHORE NOTES
--------------------------------------------------------------------------------
(a) If the Trustee intends to redeem the Offshore Notes prior to
their Final Maturity Date pursuant to the relevant Condition 5
(which it may only do at the direction of the Manager), the
Manager shall give not less than 5 days' prior written notice to
the Principal Paying Agent and the Note Trustee before giving the
requisite period of notice to the Offshore Noteholders in
accordance with the relevant Condition 5 and stating the Payment
Date on which such Offshore Notes are to be redeemed.
(b) The Principal Paying Agent shall, on receipt of a notice under
paragraph (a):
(i) notify the relevant Common Depository of the proposed
redemption, specifying:
(A) the aggregate Invested Amount or Stated Amount (as
the case may be) of the Offshore Notes to be
redeemed;
(B) the amount of principal to be repaid in relation
to the Offshore Notes; and
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
(C) the date on which the Offshore 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 AND CANCELLATION OF NOTES
--------------------------------------------------------------------------------
(a) If the Trustee is required to redeem some (but not all) of the
Offshore Notes prior to their Final Maturity Date pursuant to the
relevant Condition 5 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 the relevant Condition
5.
(b) On receipt of a notice under paragraph (a), the Principal Paying
Agent shall notify the relevant Common Depository of the proposed
redemption, specifying in each case the aggregate Invested Amount
of the Offshore Notes to be redeemed and the date on which such
Offshore Notes are to be redeemed.
(c) For so long as the Class A-2 Notes are listed on the Irish Stock
Exchange, the Manager on behalf of the Trustee shall ensure that
notice of the matters referred to in paragraph (a) is provided to
the Irish Stock Exchange or such other alternative exchange as
agreed between the Trustee, the Note Trustee and the Manager (if
required).
(d) The Manager shall, on (or as soon as practicable after) each
Quarterly Determination Date calculate:
(i) the amount of principal to be repaid in respect of each
Offshore Note due on the Payment Date next following
that Determination Date;
(ii) the Stated Amount and Invested Amount of each Offshore
Note on the first day of the next following Interest
Period for the Offshore Notes (after deducting any
principal due to be made on the next Payment Date); and
(iii) the Class A 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, the Principal
Paying Agent, the Irish Stock Exchange and each Currency Swap
Provider 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
relevant Common Depository.
(e) The Manager will immediately cause details of each determination
under paragraph (d) to be published in accordance with the
relevant Condition 12 at least one Business Day before the
relevant Payment Date.
(f) If no principal is due to be repaid on the Offshore Notes on any
Payment Date, the Manager shall give notice or shall cause a
notice to this effect to be given to the relevant Offshore
Noteholders in accordance with the relevant Condition 12.
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
(g) If any Offshore 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, cause the Note Registrar to record all relevant
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 Offshore Notes which have
been redeemed or the aggregate Invested Amount and Stated Amount
of Offshore 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, the Manager and
the Note Trustee.
10. CANCELLATION, DESTRUCTION AND RECORDS WHERE OFFSHORE NOTES IN
DEFINITIVE FORM HAVE BEEN ISSUED
--------------------------------------------------------------------------------
(a) All Definitive Notes which are redeemed in their entirety (but
not partial redemptions of Definitive Notes in accordance with
the relevant Condition 5), shall be forthwith cancelled by
perforation by the Paying Agent by or through which they are
redeemed, paid or exchanged. If that Paying Agent is not the
Principal Paying Agent, that Paying Agent shall promptly give all
relevant details and forward the cancelled Definitive Notes to
the Principal Paying Agent.
(b) The Principal Paying Agent shall as soon as possible, and in any
event within 70 days after the date of any redemption,
presentation or payment of Definitive Notes, furnish to each of
the Trustee, the Manager and the Note Trustee a certificate
stating:
(i) the aggregate Invested Amount of Definitive Notes which
have been redeemed in full or, as the case may require,
the aggregate amounts of principal and interest paid in
respect of the Book-Entry Notes;
(ii) the serial numbers of those Definitive Notes; and
(iii) the aggregate Invested Amounts of Definitive Notes
which have been surrendered and replaced and the serial
numbers of those Definitive Notes.
(c) Unless otherwise previously instructed by the Trustee or the
Manager, the Principal Paying Agent shall destroy any cancelled
Definitive Notes in its possession and furnish each of the
Trustee, the Manager and the Note Trustee with a destruction
certificate which lists the Class and serial numbers of those
Definitive Notes in numerical sequence.
(d) The Principal Paying Agent shall:
(i) keep a full and complete record of:
(A) all Definitive Notes issued;
(B) the redemption, purchase, cancellation, payment,
exchange, surrender for replacement or destruction
of the Definitive Notes; and
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
(C) all replacement Definitive Notes issued in
substitution for lost, stolen, mutilated, defaced
or destroyed Definitive Notes; and
(ii) make those records available at all reasonable times to
the Trustee, the Manager and the Note Trustee.
11. ISSUE OF REPLACEMENT DEFINITIVE NOTES WHERE DEFINITIVE NOTES HAVE
BEEN ISSUED
--------------------------------------------------------------------------------
(a) The Manager shall, where Definitive Notes have been issued, cause
a sufficient quantity of additional Definitive Notes to be made
available, upon request by the Principal Paying Agent, for the
purpose of issuing replacement Definitive Notes as provided
below.
(b) The Principal Paying Agent shall, subject to and in accordance
with the Conditions, the Transaction Documents and this clause,
issue any replacement Definitive Notes, in place of Definitive
Notes which have been lost, stolen, mutilated, defaced or
destroyed.
(c) The Principal Paying Agent shall not issue any replacement
Definitive Note unless and until the relevant applicant has:
(i) paid all costs (including the fees and costs of the
Principal Paying Agent and of any Paying Agent through
which the replacement Definitive Note is issued) as may
be incurred in connection with that replacement;
(ii) in the case of a lost, stolen, defaced or destroyed
Definitive Note, furnished the Principal Paying Agent
with any evidence (including evidence as to the Class
and serial number of the Definitive Note in question)
and indemnity in respect of that loss, theft,
defacement or destructions as the Trustee or the
Manager and the Principal Paying Agent may reasonably
require; and
(iii) in the case of a mutilated or defaced Definitive Note,
surrendered to the Principal Paying Agent the mutilated
or defaced Definitive Note which is to be replaced.
(d) The Principal Paying Agent shall cancel any mutilated or defaced
Definitive Note replaced under this clause and shall furnish the
Trustee, the Manager and the Note Trustee, on the first day of
each month, with a certificate stating the Class and serial
numbers of Definitive Notes cancelled during that month. Unless
otherwise previously instructed by the Trustee or the Manager,
the Principal Paying Agent shall destroy any cancelled Definitive
Notes and furnish the Trustee, the Manager and the Note Trustee
with a destruction certificate containing the information
specified in clause 10(b).
(e) The Principal Paying Agent shall, on issuing any replacement
Definitive Note, forthwith inform each of the other Paying
Agents, the Trustee, the Manager and the Note Trustee of the
Invested Amount and the Class and serial number of that
replacement Definitive Note issued and the Class and serial
number of the Definitive Note in place of which the replacement
Definitive Note has been issued.
(f) Whenever any Definitive Note which is alleged to have been lost,
stolen or destroyed (and in replacement for which a new
Definitive Note has been issued) is presented to any Paying
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
Agent for payment, the Paying Agent to which that Definitive Note
is presented shall immediately notify the Trustee, the Manager,
the Note Trustee and (if presentation is not made to the
Principal Paying Agent) the Principal Paying Agent. The Principal
Paying Agent shall, on receipt of that notice or (as the case may
be) on presentation of the Definitive Note to it and after
consultation with the Trustee, take appropriate steps (subject to
being indemnified to its reasonable satisfaction as to cost) to
recover the amount covered by the indemnity with respect to the
allegedly lost, stolen or destroyed Definitive Note. The
Principal Paying Agent shall account to the Trustee for any
amount so collected.
12. NOTICES TO NOTEHOLDERS
--------------------------------------------------------------------------------
(a) At the request and expense of the Trustee, the Principal Paying
Agent shall arrange for the publication of all notices to
Offshore Noteholders in accordance with the relevant Conditions.
(b) The Principal Paying Agent shall promptly send to the Note
Trustee one copy of the form of every notice given to Offshore
Noteholders in accordance with the relevant Conditions.
13. DOCUMENTS AND FORMS
--------------------------------------------------------------------------------
(a) The Manager shall provide to the Principal Paying Agent for
distribution to each Paying Agent:
(i) sufficient copies of all documents required by the
relevant Conditions, the Prospectus (in relation to the
Class A-1 Notes), the Offering Circular (in relation to
the Class A-2 Notes), the Note Trust Deed or the Irish
Stock Exchange (for so long as the Class A-2 Notes are
listed on the Irish Stock Exchange) to be available to
Offshore Noteholders for issue or inspection (including
the Note Trust Deed, the Master Trust Deed and the
Supplementary Terms Notice);
(ii) in the event of a meeting of Offshore Noteholders being
called, forms of voting certificates and block voting
instructions, together with instructions from the
Trustee (those instructions having previously been
approved by the Note Trustee) as to the manner of
completing, dealing with and recording the issue of
such forms; and
(iii) if Definitive Notes are issued, specimens of those
Definitive Notes.
(b) The 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 Offshore Notes.
14. AUTHENTICATION
--------------------------------------------------------------------------------
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
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
or on replacement). The Principal Paying Agent shall not be required to
authenticate or cause to be authenticated any Book-Entry Notes or
Definitive Notes unless directed to do so in writing by the Manager, or
the Trustee at the direction of the Manager.
15. INDEMNITY
--------------------------------------------------------------------------------
(a) Subject to paragraph (b) and clause 25, 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
15, each, an EXPENSE) which that Paying Agent, the Note Registrar
or the Calculation Agent, as the case may be, may incur or which
may be made against that Paying Agent, the Note Registrar or the
Calculation Agent (as the case may be), as a result of or in
connection with that Paying Agent's, the Note Registrar's or the
Calculation Agent's, as the case may be, appointment or the
exercise of that Paying Agent's, the Note Registrar's or the
Calculation Agent's, as the case may be, powers and 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 or the Calculation Agent in accordance with
clause 19 (including any liability in respect of payment of a
cheque drawn by that Paying Agent or the 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 default
or negligence or that of its directors, officers or
employees or servants; and
(ii) 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) Subject to paragraph (d), each of the Calculation Agent, the Note
Registrar and the Paying Agents severally indemnifies the Trustee
and the Manager against all losses, liabilities, costs, claims,
actions, damages, expenses or demands 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 any
term of this agreement or its own fraud, wilful default or
negligence or that of its directors, officers, 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.
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
(d) Notwithstanding any other provision in this agreement, each of
the Calculation Agent, the Note Registrar and the Paying Agents
shall:
(i) not be liable to indemnify the Trustee or the Manager
(as the case may be) for any loss caused by events
beyond its reasonable control including, any
malfunction, interruption or error in the transmission
of information caused by any machine or systems or
interception of communication facilities, abnormal
operating conditions or acts of God; and
(ii) have no liability whatsoever for any consequential,
special, indirect or speculative loss or damages
(including, but not limited to, loss of profits,
whether or not foreseeable) suffered by the Trustee or
the Manager in connection with the transactions
contemplated by and the relationship established by
this agreement even if the Calculation Agent, the Note
Registrar or the relevant Paying Agent (as the case may
be) has been advised as to the possibility of the same.
16. THE NOTE REGISTER
--------------------------------------------------------------------------------
16.1 APPOINTMENT OF NOTE REGISTRAR
The Trustee appoints the Bank of New York to be the initial Note
Registrar. The Bank of New York accepts that appointment.
16.2 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 Offshore Notes issued in
relation to the Trust;
(d) (INITIAL INVESTED AMOUNT) the total Initial Invested Amount of
Offshore Notes issued on each such Issue Date;
(e) (INVESTED AMOUNT) the Invested Amount of each Offshore Note from
time to time;
(f) (STATED AMOUNT) the Stated Amount of each Offshore Note from time
to time;
(g) (SERIES) details of relevant Classes of Offshore Notes;
(h) (DETAILS OF NOTEHOLDERS) the name and address of each Offshore
Noteholder;
(i) (NUMBER OF NOTES) the number of Offshore Notes held by each
Offshore Noteholder;
(j) (DATE OF ENTRY) the date on which a person was entered as the
holder of Offshore Notes;
(k) (DATE OF CESSATION) the date on which a person ceased to be a
Offshore Noteholder;
(l) (ACCOUNT) the account to which any payments due to a Offshore
Noteholder are to be made (if applicable);
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
(m) (PAYMENTS) a record of each payment in respect of the Offshore
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 Offshore Notes.
16.3 PAYMENTS OF PRINCIPAL AND INTEREST
(a) Any payment of principal or interest on any Offshore Note shall
be endorsed by the Note Registrar on the Note Register. In the
case of payments of principal, the Invested Amount of the
Offshore 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 Offshore 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.
16.4 PLACE OF KEEPING REGISTER, COPIES AND ACCESS
The Note Register shall be:
(a) (PLACE KEPT) kept at the office of the Note Registrar at 000
Xxxxxxx Xxxxxx, 21st Floor West, New York NY 10286, United States
of America 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 OFFSHORE NOTEHOLDERS) open for inspection by the
Note Trustee or an Offshore Noteholder during normal business
hours but, in the case of an Offshore Noteholder, only in respect
of information relating to that Offshore 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.
16.5 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.
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
(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
Offshore Notes and the Trustee shall be entitled to recognise
an Offshore Noteholder as the absolute owner of Offshore Notes
and the Trustee shall not be bound or affected by any trust
affecting the ownership of any Offshore Notes unless ordered
by a court or required by statute.
16.6 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 an Offshore Noteholder by the Offshore
Noteholder, the Note Registrar shall alter the Note Register
accordingly.
16.7 RECTIFICATION OF NOTE REGISTER
If:
(a) an entry is omitted from the Note Register;
(b) an entry is made in the Note Register otherwise than in
accordance with this agreement;
(c) an entry wrongly exists in the Note Register;
(d) there is an error or defect in any entry in the Note Register; or
(e) default is made or unnecessary delay takes place in entering in
the Note Register that any person has ceased to be the holder of
Offshore Notes,
the Note Registrar may rectify the same.
16.8 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 or that of its directors, officers
or employees who have day to day responsibility for the administration
of the Note Trust or Note Register.
17. CHANGES OF NOTE REGISTRAR
--------------------------------------------------------------------------------
17.1 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.
17.2 RESIGNATION
Subject to this clause 17 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 prior written notice to that effect.
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
17.3 LIMITATION
Despite clauses 17.1 and 17.2:
(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
--------------------------------------------------------------------------------
18.1 COMMUNICATIONS TO OFFSHORE NOTEHOLDERS
The Principal Paying Agent shall, upon receipt from the Trustee,
Manager, Security Trustee or Note Trustee of any communication to be
delivered to Offshore Noteholders or Class A Note Owners (as the case
may be) including any communications pursuant to clauses 3.3, 3.4, 7.1,
11(n)(i), 18(a), 22.3 or 23.2 of the Note Trust Deed or any other
solicitation of notice from or consent of the Offshore Noteholders or
Class A Note Owners pursuant to or relating to the Note Trust Deed or
this agreement, forward such communications to the Offshore Noteholders
or Class A Note Owners, 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 Offshore Noteholder or Class
A Note Owner 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.
18.2 AGENCY
Subject to any other provision of this agreement including clause 7,
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 Offshore Notes and shall be responsible only for
performance of the duties and obligations expressly imposed upon it in
this agreement.
18.3 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 relevant Common
Depository as
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
the holder of any Offshore 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 that 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 Offshore Note is no
longer outstanding but Definitive Notes in respect of the
Offshore 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 Offshore
Noteholders; or
and in all cases and for all purposes despite any notice to the
contrary and shall not be liable for so doing.
18.4 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
Offshore Notes in respect of moneys payable by it under this agreement.
18.5 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 Offshore 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.
18.6 ENTITLED TO DEAL
A Note Party or any of its directors or officers shall not be precluded
from acquiring, holding or dealing in any Offshore Notes or from
engaging or being interested in any contract or other financial or
other transaction or arrangement 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 default
or negligence) shall any Note Party be liable to account to the Trustee
or any person entitled to receive amounts of principal or interest on
the Offshore Notes for any profit made or fees or commissions received
in connection with this agreement or any Offshore Notes.
18.7 CONSULTATION
Each Note Party may properly 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. The Note
Party must promptly notify the Trustee and the Manager of any such
appointment or consultation.
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
18.8 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 Offshore Notes, and no implied duties or
obligations (other than general laws as to agency) shall be read into
this agreement or the Offshore 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.
18.9 INCOME TAX RETURNS
The Principal Paying Agent shall, subject always to compliance with
mandatory provisions of law, upon request from any Offshore Noteholder,
deliver to such Offshore Noteholder such information as may be
reasonably required to enable such Offshore Noteholder to prepare all
applicable income tax returns.
18.10 TAXES
Each Paying Agent shall file such returns concerning payments under
this agreement as shall be required of it by applicable law, but shall
not be responsible for the collection or withholding of Taxes due on
such payments except, and only to the extent, required of it as Paying
Agent by applicable law.
18.11 WRITTEN INSTRUCTIONS
Each Paying Agent may, at any time, apply to the Trustee for written
instructions with respect to any matter arising under this agreement
and shall be fully protected in acting in accordance with such
instructions.
18.12 NO REPRESENTATIONS
No Paying Agent makes any representation with respect to the validity
or sufficiency of the Offshore Notes, or the use or application of the
proceeds of sale or distribution of the Offshore Notes, and shall incur
no liability with respect to the foregoing.
18.13 EUROPEAN UNION TAX DIRECTIVE
(a) [The obligations of each Paying Agent under this agreement are
subject to:
(i) the provisions of the European Union Tax Directive; and
(ii) the "beneficial owner" (as defined in the European
Union Tax Directive) providing to that Paying Agent
such information and documents (if any) required by
that Paying Agent in order for it to comply with the
European Union Tax Directive.
(b) The Trustee authorises each Paying Agent to make mandatory
disclosures required by the European Union Tax Directive to be
made to the competent authority of the member state of the
European Union of that Paying Agent.]
[XXXXX XXXXX UK TO CONFIRM WORDING.]
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
19. CHANGES IN PAYING AGENTS AND CALCULATION AGENT
--------------------------------------------------------------------------------
19.1 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;
(b) subject to this clause 19, 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 (1) the Paying Agent or the Calculation Agent,
as the case may be, having become aware of that
failure and (2) the receipt by the Paying Agent or
the Calculation Agent, as the case may be, of
written notice with respect thereto from the
Trustee or 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 Offshore Notes.
19.2 RESIGNATION
Subject to this clause 19, 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 Offshore Notes.
19.3 LIMITATION
Despite clauses 19.1 and 19.2:
(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
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
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 19.3(a), if any Paying Agent or the Calculation
Agent resigns in accordance with clause 19.2, but by the day
falling 15 days before the expiry of any notice under clause 19.2
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 provided that the appointment is
made on terms previously approved in writing by the Note Trustee
(in each case, that approval not to be unreasonably withheld or
delayed);
(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 the City of New York (in the case of the Class
A-1 Notes), the United Kingdom (in the case of the Class A-2
Notes) or the Republic of Ireland (for so long as the Class A-2
Notes are listed on the Irish Stock Exchange);
(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 Offshore
Noteholders in accordance with the relevant Conditions; and
(e) the appointment of any additional Paying Agent shall be on the
terms and subject to the conditions of this agreement and each of
the parties to this agreement shall co-operate fully to do all
further acts and things and execute any further documents as may
be necessary or desirable to give effect to the appointment of
the Paying Agent (which shall not, except in the case of an
appointment under clause 19.1(a) or a termination under clause
19.1(b)(ii) or a resignation under clause 19.2, be at the cost of
the Trustee).
In addition, the Trustee at the direction of the Manager shall
forthwith appoint a Paying Agent with a Paying Office in the Republic
of Ireland and/or the United Kingdom (as the case may be) in the
circumstances described in the relevant Condition 6 (if there is no
such Paying Agent at the time) and while such circumstances subsist
maintain such a Paying Agent. Notice of any such termination or
appointment and of any change in the office through which any Paying
Agent will act will be given by the Manager on behalf of the Trustee in
accordance with the relevant Condition 12.
19.4 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
Offshore 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 under this
agreement.
19.5 SUCCESSOR TO PAYING AGENTS
(a) On the execution by the Trustee, the Manager and any successor
Paying Agent of an instrument effecting the appointment of that
successor Paying Agent, that successor Paying
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
Agent shall, without any further act, deed or conveyance, become
vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of its predecessor with effect
as if originally named as Paying Agent (or, in the case of a
successor Principal Paying Agent, as if originally named as
Principal Paying Agent) in this agreement and that predecessor,
on payment to it of the pro rata proportion of its administration
fee and disbursements then unpaid (if any), shall have no further
liabilities under this agreement, except for any accrued
liabilities arising from or relating to any act or omission
occurring prior to the date on which the successor Paying Agent
is appointed.
(b) Any corporation:
(i) into which a Paying Agent is merged;
(ii) with which a Paying Agent is consolidated;
(iii) resulting from any merger or consolidation to which a
Paying Agent is a party; or
(iv) to which a Paying Agent sells or otherwise transfers
all or substantially all the assets of its corporate
trust business,
shall, on the date when that merger, conversion, consolidation,
sale or transfer becomes effective and to the extent permitted by
applicable law, become a successor Paying Agent under this
agreement without the execution or filing of any agreement or
document or any further act on the part of the parties to this
agreement, unless otherwise required by the Trustee or the
Manager, and after that effective date all references in this
agreement to a Paying Agent (or in the case of a successor
Principal Paying Agent, to the Principal Paying Agent) shall be
references to that corporation.
19.6 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;
(iv) to which the Calculation Agent sells or otherwise
transfers all or substantially all the assets of its
corporate trust business,
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
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.
19.7 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 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.
19.8 NOTICE TO OFFSHORE 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 Offshore Noteholders notice of the termination, appointment
or resignation in accordance with the relevant Condition 12 (in the
case of a termination under clause 19.1(b)(i) or 19.2 at the cost of
the outgoing Paying Agent or the Calculation Agent, as the case may
be).
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
19.9 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 within the same
city as its previous Paying Office), it must give to the Trustee,
the Manager, the Note Trustee, the Offshore Noteholders (which
notice, in the case of the Offshore 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 take
effect.
(b) If the Calculation Agent proposes to change its Specified Office
(which must be in London or such other jurisdiction as the
Calculation Agent, the Manager and the Trustee agree from time to
time), or to nominate a further Specified Office, it must give to
the Trustee, the Manager, the Offshore Noteholders (which notice,
in the case of the Offshore 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.
(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 19.1 or 19.2 on or prior to
the date of that change) give to the Offshore Noteholders notice
in accordance with the relevant Conditions of that change and of
the address of the new Paying Office or Specified Office (as the
case may be) 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.
20. FEES AND EXPENSES
--------------------------------------------------------------------------------
(a) The Trustee shall pay to the Principal Paying Agent during the
period when any of the Offshore Notes remain outstanding the
administration fee separately agreed by the Principal Paying
Agent and the Manager (on behalf of the Trustee), together with
any out-of-pocket expenses properly incurred (including any legal
fees and expenses). If the appointment of the Principal Paying
Agent is terminated under this agreement, the Principal Paying
Agent must refund to the Trustee that proportion of the fee (if
any) which relates to the period during which the Principal
Paying Agent will not be the Principal Paying Agent.
(b) The Trustee shall pay to the Calculation Agent during the period
when any of the Offshore Notes remain outstanding the fee
separately agreed by the Calculation Agent, the Manager and the
Trustee, together with any out-of-pocket expenses properly
incurred (including any legal fees and expenses). If the
appointment of the Calculation Agent is terminated under this
agreement, the Calculation Agent must refund to the Trustee that
proportion of the fee (if any) which relates to the period during
which the Calculation Agent will not be the Calculation Agent.
(c) The Trustee shall pay to the Note Registrar during the period
when any of the Offshore Notes remain outstanding the fee
separately agreed by the Note Registrar and the Trustee,
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
together with any out-of-pocket expenses properly 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 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 Euros or
A$ (as separately agreed between each of the Trustee, the Manager
and the Principal Paying Agent (in the case of the fees, payments
and expenses referred to in paragraph (a)), each of the Trustee,
the Manager and the Calculation Agent (in the case of the fees,
payments and expenses referred to in paragraph (b)) and each of
the Trustee, the Manager and the Note Registrar (in the case of
the fees, payments and expenses referred to in paragraph (c)) and
the Trustee shall in addition pay any Value Added Tax and GST
which may be applicable. The Principal Paying Agent shall arrange
for payment of commissions to the other Paying Agents and arrange
for the reimbursement of their expenses promptly upon demand,
supported by evidence of that expenditure, and provided that
payment is made as required by paragraph (a) the Trustee shall
not be concerned with or liable in respect of that payment.
21. WAIVERS, REMEDIES CUMULATIVE
--------------------------------------------------------------------------------
(a) No failure to exercise and no delay in exercising any right,
power or remedy under this agreement operates as a waiver. Nor
does any single or partial exercise of any right, power or remedy
preclude any other or further exercise of that or any other
right, power or remedy.
(b) The rights, powers and remedies provided to a party in this
agreement are in addition to, and do not exclude or limit, any
right, power or remedy provided by law.
22. SEVERABILITY OF PROVISIONS
--------------------------------------------------------------------------------
Any provision of this agreement which is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the extent
of the prohibition or unenforceability. That does not invalidate the
remaining provisions of this agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
23. ASSIGNMENTS
--------------------------------------------------------------------------------
Subject to the other provisions of this agreement, no party may assign
or transfer any of its rights or obligations under this agreement
without the prior written consent of the other parties, or if the
rating of any Offshore 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
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
transfers any of its rights or obligations under this agreement must
promptly notify each Designated Rating Agency of that assignment or
transfer.
24. NOTICES
--------------------------------------------------------------------------------
24.1 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) subject to paragraph (d), will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the
recipient shown in clause 24.2 or to any other address
which may have been notified by the recipient to the
sender under this clause 24;
(ii) (in the case of facsimile transmission) on receipt of a
transmission report confirming successful transmission
to the number shown in clause 24.2 or any other number
notified by the recipient to the sender under this
clause 24; 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 24.2 or any
other number notified by the recipient to the sender
under this clause 24,
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.
(d) For the purposes of paragraph (c), all notices, requests,
demands, consents, approvals, agreements or other communications
to the Note Trustee, Principal Paying Agent, the Irish Paying
Agent, the Note Registrar or the Calculation Agent must be given
or made by facsimile transmission.
Any party may by notice to each party change its address, facsimile,
telex or telephone number under this clause 24.1.
24.2 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
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
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
THE BANK OF NEW YORK
IN RELATION TO THE CLASS A-1 NOTES, CLASS A-1 NOTEHOLDERS AND CLASS A-1
NOTE OWNERS:
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx
New York 10286
UNITED STATES OF AMERICA
Telex: Not applicable
Fax: + 1 212 815 5802 / 5803
Attention: Global Trust Services
IN RELATION TO THE CLASS A-2 NOTES, CLASS A-2 NOTEHOLDERS AND CLASS A-2
NOTE OWNERS:
00xx Xxxxx, 0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
XXXXXX XXXXXXX
Telex: Not applicable
Fax: + 44 20 796 46399
Attention: Global Trust Services
THE CALCULATION AGENT
THE BANK OF NEW YORK
00xx Xxxxx, 0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
XXXXXX XXXXXXX
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
Telex: Not applicable
Fax: + 44 20 796 46399
Attention: Global Trust Services
THE NOTE TRUSTEE
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx
New York 10286
UNITED STATES OF AMERICA
Telex: Not applicable
Fax: + 1 212 815 5802 / 5803
Attention: Global Trust Services
THE NOTE REGISTRAR
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx
New York 10286
UNITED STATES OF AMERICA
Telex: Not applicable
Fax: + 1 212 815 5802 / 5803
Attention: Global Trust Services
THE IRISH PAYING AGENT
AIB/BNY FUND MANAGEMENT (IRELAND) LIMITED
Xxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxx 0
XXXXXXXX XX XXXXXXX
Telex: Not applicable
Fax: x00 00 0000000
Attention: Chief Operating Officer
WITH A COPY TO:
The Note Trustee
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
24.3 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.
25. LIMITED RECOURSE
--------------------------------------------------------------------------------
25.1 GENERAL
Clause 30 of the Master Trust Deed (as amended by the Supplementary
Terms Notice) applies to the obligations and liabilities of the Trustee
and the Manager under this agreement.
25.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT TO INDEMNITY
(a) This agreement applies to the Trustee 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 25.2 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 Offshore Noteholders
must ensure that no attorney, agent,
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
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.
25.3 UNRESTRICTED REMEDIES
Nothing in clause 25.2 or 25.4 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;
(c) in relation to its rights under the Security Trust Deed; or
(d) taking any legal action against the Trustee in its personal
capacity under or as a result of the operation of clause 25.2(c).
25.4 RESTRICTED REMEDIES
Except as provided in clauses 25.3 and 25.2(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.
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
26. COUNTERPARTS
--------------------------------------------------------------------------------
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
27. 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.
28. SUCCESSOR TRUSTEE
--------------------------------------------------------------------------------
Each Paying Agent and the Calculation 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.
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
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
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
PRINCIPAL PAYING AGENT
SIGNED on behalf of THE BANK OF NEW YORK in
the presence of:
------------------------------------- -------------------------------------
Authorised Signatory Authorised Signatory
------------------------------------- -------------------------------------
Print Name Print Name
NOTE TRUSTEE
SIGNED on behalf of THE BANK OF NEW YORK in
the presence of:
------------------------------------- -------------------------------------
Authorised Signatory Authorised Signatory
------------------------------------- -------------------------------------
Print Name Print Name
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
CALCULATION AGENT
SIGNED on behalf of THE BANK OF NEW YORK in
the presence of:
------------------------------------- -------------------------------------
Authorised Signatory Authorised Signatory
------------------------------------- -------------------------------------
Print Name Print Name
NOTE REGISTRAR
SIGNED on behalf of THE BANK OF NEW YORK in
the presence of:
------------------------------------- -------------------------------------
Authorised Signatory Authorised Signatory
------------------------------------- -------------------------------------
Print Name Print Name
Agency Agreement [ALLENS XXXXXX XXXXXXXX LOGO]
--------------------------------------------------------------------------------
IRISH PAYING AGENT
SIGNED on behalf of )
AIB/BNY FUND MANAGEMENT )
(IRELAND) LIMITED
in the presence of: )
-------------------------------------
Signature
------------------------------------- -------------------------------------
Signature Print name
------------------------------------- -------------------------------------
Print name Office held