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. 2 of 2004
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 2004
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Agency Agreement
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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 4
1.3 Interpretation 4
1.4 Document or agreement 4
1.5 Transaction Document 4
1.6 Trustee as trustee 5
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 - Global Notes 6
3.6 Method of payment - Definitive Notes 7
3.7 Late payment 7
3.8 Notice of non-receipt 8
3.9 Reimbursement 8
3.10 Method of payment 8
3.11 No fee 9
3.12 Trust 9
3.13 Forms and information 9
4. REPAYMENT 9
5. APPOINTMENT OF THE CALCULATION AGENT 10
6. DUTIES OF THE CALCULATION AGENT 10
7. NOTE TRUSTEE 11
8. EARLY REDEMPTION OF OFFSHORE NOTES 12
9. PRO RATA REDEMPTION AND CANCELLATION OF NOTES 13
10. CANCELLATION, DESTRUCTION AND RECORDS WHERE OFFSHORE NOTES IN
DEFINITIVE FORM HAVE BEEN ISSUED 14
11. ISSUE OF REPLACEMENT DEFINITIVE NOTES AND COUPONS AND TALONS WHERE
DEFINITIVE NOTES HAVE BEEN ISSUED 15
12. NOTICES TO NOTEHOLDERS 17
13. DOCUMENTS AND FORMS 17
14. AUTHENTICATION 18
15. INDEMNITY 18
16. THE NOTE REGISTER 19
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16.1 Appointment of Note Xxxxxxxxx 00
16.2 Details to be kept on the Note Register 19
16.3 Payments of Principal and Interest 20
16.4 Place of keeping Register, copies and access 20
16.5 Details on Note Register conclusive 21
16.6 Alteration of details on Note Register 21
16.7 Rectification of Note Register 21
16.8 Correctness of Note Register 21
17. CHANGES OF NOTE XXXXXXXXX 00
17.1 Removal 22
17.2 Resignation 22
17.3 Limitation 22
18. GENERAL 22
18.1 Communications to Offshore Noteholders 22
18.2 Agency 23
18.3 Identity 23
18.4 No set-off 24
18.5 Reliance 24
18.6 Entitled to deal 24
18.7 Consultation 24
18.8 Duties 24
18.9 Income Tax Returns 25
18.10 Taxes 25
18.11 Written instructions 25
18.12 No representations 25
19. CHANGES IN PAYING AGENTS AND CALCULATION AGENT 25
19.1 Removal 25
19.2 Resignation 26
19.3 Limitation 26
19.4 Delivery of amounts 27
19.5 Successor to Paying Agents 27
19.6 Successor to Calculation Agent 28
19.7 Successor to Note Xxxxxxxxx 00
19.8 Notice to Offshore Noteholders 29
19.9 Change in Paying Office or Specified Office 29
20. FEES AND EXPENSES 30
21. WAIVERS, REMEDIES CUMULATIVE 31
22. SEVERABILITY OF PROVISIONS 31
23. ASSIGNMENTS 31
24. NOTICES 31
24.1 General 31
24.2 Details 32
24.3 Communication through Principal Paying Agent 34
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25. LIMITED RECOURSE 34
25.1 General 34
25.2 Liability of Trustee limited to its right to indemnity 34
25.3 Unrestricted remedies 35
25.4 Restricted remedies 36
26. COUNTERPARTS 36
27. GOVERNING LAW 36
28. SUCCESSOR TRUSTEE 36
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DATE 2004
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PARTIES
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1. PERPETUAL TRUSTEES CONSOLIDATED LIMITED (ABN 81 004 029 841)
incorporated in Australia and registered in Victoria of Xxxxx 0,
0 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000 in its
capacity as trustee of the Crusade Global Trust No. 2 of 2004
(the TRUSTEE);
2. CRUSADE MANAGEMENT LIMITED (ABN 90 072 715 916) incorporated in
Australia and registered in New South Wales of 0-00 Xxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxx Xxxxx Xxxxx 0000, as Manager in relation to
the Crusade Global Trust No. 2 of 2004 (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 Class A-1 Notes described below (the NOTE
REGISTRAR, which expression shall, whenever the context
requires, include any successor note registrar from time to time
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).
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RECITALS
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A The Trustee proposes to issue US$500,000,000 of Class A-1
mortgage backed pass through floating rate Notes (the CLASS A-1
NOTES), (euro)400,000,000 of Class A-2 mortgage backed pass
through floating rates Notes (the CLASS A-2 NOTES), and
A$533,200,000 of mortgage backed pass through floating rate
Notes comprising A$500,000,000 Class A-3 Notes, A$23,600,000
Class B Notes and A$9,600,000 Class C Notes (together the A$
NOTES) each with a Final Maturity Date falling in 2037.
B The Class A-1 Notes will be represented initially by one or more
Book-Entry Notes (the BOOK-ENTRY NOTES).
C The Class A-1 Notes, upon original issue, will be issued in the
form of typewritten Book-Entry Notes representing the Book-Entry
Notes. The Trustee shall, on the date of this deed, deliver or
arrange the delivery on its behalf of the Book-Entry Notes to
the Common Depository, as agent for the Clearing Agency. The
Book-Entry Notes shall initially be registered on the Note
Register in the name of the Common Depository, as nominee of the
Clearing Agency, and no Class A-1 Note Owner will receive a
Definitive Class A-1 Note representing such Class A-1 Note
Owner's interest in such Class A-1 Note, except as provided in
the Note Trust Deed.
D The Class A-2 Notes will be represented initially by a single
temporary global note without coupons or talons.
E Interests in a Temporary Global Note will be exchangeable
(provided that certification of non-US beneficial ownership has
been received by the Principal Paying Agent) 40 days after the
Note Issue Date for interests in a single permanent global note
without coupons or talons attached (in accordance with the terms
of the relevant Temporary Global Note).
F The Temporary Global Notes will be deposited on the Note Issue
Date with the Common Depository for Euroclear and Clearstream,
Luxembourg, for the respective accounts of Euroclear and
Clearstream, Luxembourg. The Class A-2 Notes so represented
shall be credited to the respective accounts of the Class A-2
Noteholders. Class A-2 Permanent Global Notes will be deposited
on the Note Issue Date to be held for exchange (in whole or in
part) for the relevant Temporary Global Note in accordance with
the terms of that Temporary Global Note. The Global Notes will
be exchangeable for Class A-2 Notes in definitive form with
interest and/or principal coupons and talons for further Coupons
attached, in the circumstances specified in the Global Notes.
G The Offshore Notes will be constituted by the Note Trust Deed,
the Supplementary Terms Notice and the Master Trust Deed.
H The Offshore Notes will be secured on the terms of the Security
Trust Deed.
I The Trustee wishes to appoint the Principal Paying Agent as
principal paying agent in respect
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of the Offshore Notes only and has entered into this agreement
to provide for the terms and conditions of that appointment.
J 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.
K The Trustee wishes to appoint the Note Registrar in respect of
the Class A-1 Notes only and has entered into this agreement to
provide for the terms and conditions of that appointment.
L 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.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
MASTER TRUST DEED means the Master Trust Deed for the Crusade 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
31 December 2003 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 or
relevant Coupons 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. 2 of 2004
established under the Notice of Creation of Trust, the Master Trust
Deed and the Supplementary Terms Notice.
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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;
(iii) definition in the Master Trust Deed;
(iv) definition in the Note Trust Deed;
(v) definition in the relevant Conditions.
1.3 INTERPRETATION
Clause 1.2 of the Master Trust Deed applies to this agreement as if set
out in full and:
(a) a reference to an ASSET includes any real or personal, present or
future, tangible or intangible property or asset and any right,
interest, revenue or benefit in, under or derived from the
property or asset;
(b) a reference to an amount for which a person is CONTINGENTLY
LIABLE includes an amount which that person may become
actually or contingently liable to pay if a contingency
occurs, whether or not that liability will actually arise; and
(c) all references to costs or charges or expenses include GST,
any value added tax or similar tax charged or chargeable in
respect of the charge or expense.
1.4 DOCUMENT OR AGREEMENT
A reference to:
(a) an AGREEMENT includes a Security Interest, guarantee, undertaking,
deed, agreement or legally enforceable arrangement whether or not
in writing; and
(b) a DOCUMENT includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the
extent prohibited by this agreement.
1.5 TRANSACTION DOCUMENT
This agreement is a TRANSACTION DOCUMENT for the purposes of the
Master Trust Deed.
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1.6 TRUSTEE AS TRUSTEE
(a) In this agreement, except where provided to the contrary:
(i) a reference to the Trustee is a reference to the Trustee in
its capacity as trustee of the Trust only, and in no other
capacity; and
(ii) a reference to the assets, business, property or undertaking
of the Trustee is a reference to the assets, business,
property or undertaking of the Trustee only in the capacity
described in sub-paragraph (i) above.
(b) The rights and obligations of the parties under this agreement
relate only to the Trust, and do not relate to any other Trust (as
defined in the Master Trust Deed).
2. APPOINTMENT OF PAYING AGENTS
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(a) Subject to the terms of this agreement, the Trustee (acting on the
direction of the 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; and
(ii) despite anything else in this agreement, any other
Transaction Document or at law, the Trustee in its personal
capacity is not responsible for any act or omission of the
Principal Paying Agent or any other Paying Agent except to
the extent of losses, costs, claims or damages caused by the
fraud, negligence or Default of the Trustee.
3. PAYMENT
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3.1 PAYMENT BY TRUSTEE
(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 3.10) 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 Payment
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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 3.10) 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 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 Class A-1 Notes
represented by a Book-Entry Note to be made to the Common Depository
for credit to the account of the persons appearing from time to time in
the records of the Common Depository as account holder with respect to
that Book-Entry Note.
3.5 METHOD OF PAYMENT - GLOBAL NOTES
(a) The Principal Paying Agent shall cause all payments of principal
or interest (as the case may be) due and received by it in respect
of Class A-2 Notes represented by a Global Note to be made to the
Common Depository for credit to the account of the persons
appearing from time to time in the records of the Common
Depository (being Euroclear and Clearstream, Luxembourg) as
account holders with respect to that Global Note.
(b) After making a payment under paragraph (a) the Principal Paying
Agent shall cause the schedule to the relevant Global Note to be
annotated so as to evidence the amounts and dates of that payment.
If the amount of principal or interest (as the case may be) then
due for payment in respect of a Global Note is not paid in full
the Principal Paying Agent shall cause a record of that shortfall
to be made on the schedule to the relevant Global Note.
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(c) An annotation of the Principal Paying Agent or of the Common
Depository under this clause 3.5 shall be sufficient evidence
(unless the contrary is proved) of the relevant payments having
been made or not made.
(d) Any payment in respect of the Global Notes will only be made to
the extent that certification of non-US beneficial ownership (in
the form of Exhibit A to the relevant Temporary Global Note) has
been previously received by the Principal Paying Agent from
Euroclear or Clearstream, Luxembourg (as appropriate).
3.6 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 or any relevant Coupon is not paid in full
(including by reason of a deduction or withholding), the Paying
Agent to whom that Offshore Note or Coupon is presented shall
enface that Offshore Note or Coupon with a memorandum of the
amount paid and the date of that payment.
3.7 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
or Coupons 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 or Coupons as provided in
this clause 3 (other than clause 3.7(a)(ii));
(ii) in the case of any payment in respect of the Class A-1 Notes
or Coupons made after 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 or Coupons 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
or Coupons made on or prior to 1.00 pm (London time) on a
Payment Date, make payments required to be made by it in
respect of the Class A-2 Notes or Coupons as provided in
this clause 3 (other than clause 3.7(a)(iv)); and
(iv) in the case of any payment in respect of the Class A-2 Notes
or Coupons made after 1.00 pm (London time) on a Payment
Date, make payments required to be made by it in respect of
the Class A-2 Notes or Coupons 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.
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(b) If the Principal Paying Agent has not received on a Payment Date
the full amount of principal and interest then payable on any
Offshore Note or Coupon 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.
3.8 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 or Coupons is not
unconditionally received by it or to its order in accordance with this
agreement.
3.9 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.
3.10 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 or
Couponholders, as the case may be, 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
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moneys shall cease. The Principal Paying Agent shall, promptly
after each Payment Date, confirm to the Trustee, in accordance
with clause 22, that the Principal Paying Agent has paid the
relevant amount to the Common Depository. The Principal Paying
Agent will countersign and promptly return any such confirmation
requested by the Trustee.
(b) Subject to the terms of this agreement, the Principal Paying Agent
shall be entitled to deal with moneys paid to it under this
agreement in the same manner as other moneys paid to it as a
banker by its customers. The Principal Paying Agent shall be
entitled to retain for its own account any interest earned on the
sums from time to time credited to the account referred to in
paragraph (a) and it need not segregate such sums from other
amounts held by it, except as required by law.
3.11 NO FEE
Subject to clause 20, no Paying Agent will charge any commission or fee
in relation to any payment under this agreement, or if definitive
Talons have been printed, exchanges of Talons for Coupons, to the
person receiving or entitled to receive the payment or make the
exchange.
3.12 TRUST
The Principal Paying Agent shall hold on trust (as bare trustee) 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.
3.13 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.
4. REPAYMENT
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(a) Immediately on any entitlement to receive principal or interest
under any Offshore Note or Coupon 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.
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5. APPOINTMENT OF THE CALCULATION AGENT
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(a) The Trustee (acting on the direction of the Manager) appoints the
Calculation Agent as its reference agent in respect of the
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
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(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 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 and each
Interest Coupon for each Interest Period, together with the
relevant Payment Date, to be published (subject to clause 20, at
the expense of the
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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
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(a) At any time after:
(i) an Event of Default has occurred in relation to an Offshore
Note; or
(ii) Definitive Notes or Coupons or Talons relating to those
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 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, Coupons and Talons and
all amounts, documents and records held by them in
respect of the Offshore Notes, the Coupons and Talons
on behalf of the Note Trustee; or
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(C) to deliver up all Definitive Notes, Coupons and Talons,
and all amounts, documents and records held by them in
respect of the Offshore Notes, Coupons and Talons, 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
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(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 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 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
(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.
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9. PRO RATA REDEMPTION AND CANCELLATION OF NOTES
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(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 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 Common Depository in
accordance with the requirements of the Note Depository Agreement.
(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.
(g) If any Class A-1 Notes are redeemed in whole or in part in
accordance with the Conditions and the Transaction Documents, the
Principal Paying Agent will, if any Book-Entry Notes are still
outstanding, 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
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and, if the Principal Paying Agent is not also the Note Trustee,
the Note Trustee a certificate setting out the aggregate Invested
Amount and Stated Amount of Class A-1 Notes which have been
redeemed or the aggregate Invested Amount and Stated Amount of
Class A-1 Notes which have been purchased. If the Invested Amount
of a Book-Entry Note is reduced to nil, the Principal Paying Agent
shall destroy the relevant Book-Entry Note and issue a destruction
certificate forthwith to the Note Trustee and shall send a copy of
that certificate to the Trustee, the Manager and the Note Trustee.
(h) If any Class A-2 Notes are redeemed in whole or in part in
accordance with the relevant Conditions and the Transaction
Documents, the Principal Paying Agent will, if any Global Notes
are still outstanding, cause the Common Depository to record all
relevant details on the schedule to those Global Notes. The
Principal Paying Agent shall as soon as possible, and in any event
within three months after the date of any redemption or purchase,
furnish to each of the Trustee and, if the Principal Paying Agent
is not also the Note Trustee, the Note Trustee a certificate
setting out the aggregate Invested Amount and Stated Amount of
Class A-2 Notes which have been redeemed or the aggregate Invested
Amount or Stated Amount of Class A-2 Notes which have been
purchased. If the Invested Amount of a Global Note is reduced to
nil, the Principal Paying Agent shall destroy the relevant Global
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
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(a) All Definitive Notes which are redeemed in their entirety (but not
partial redemptions of Definitive Notes in accordance with the
relevant Condition 5), together with any unmatured or unused
Coupons or Talons attached to, or surrendered with, those
Definitive Notes at the time of redemption or presentation, and
all Coupons which are paid and all Talons which are exchanged for
further Coupons 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, Coupons and Talons 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 and the aggregate amounts in respect
of Coupons which have been paid or, as the case may require,
the aggregate amounts of principal and interest paid in
respect of the Book-Entry Notes (in the case of the Class
A-1 Notes) or Global Notes (in the case of the Class A-2
Notes);
(ii) the serial numbers of those Definitive Notes;
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(iii) the total number by Maturity Date of relevant Coupons (if
applicable);
(iv) the aggregate Invested Amounts of Definitive Notes which
have been surrendered and replaced and the serial numbers of
those Definitive Notes and the total number by Maturity Date
of Coupons which have been surrendered and replaced; and
(v) the total number of Talons which have been exchanged (if
applicable).
(c) Unless otherwise previously instructed by the Trustee or the
Manager, the Principal Paying Agent shall destroy any cancelled
Definitive Notes, Coupons and Talons 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 and gives
particulars of the Coupons and Talons attached to or surrendered
with those Definitive Notes and shall, in the case of Coupons
which are destroyed, show the total number by Maturity Date of
those Coupons and the aggregate amount paid in respect of those
Coupons.
(d) The Principal Paying Agent shall:
(i) keep a full and complete record of:
(A) all Definitive Notes, Coupons and Talons issued (other
than the serial numbers of Coupons);
(B) the redemption, purchase, cancellation, payment,
exchange, surrender for replacement or destruction of
the Definitive Notes, Coupons or Talons; and
(C) all replacement Definitive Notes, Coupons or Talons
issued in substitution for lost, stolen, mutilated,
defaced or destroyed Definitive Notes or Coupons or
Talons;
(ii) in respect of Coupons of each Maturity Date, retain until
the expiry of five years (in the case of Coupons relating to
interest) and ten years (in the case of Coupons relating to
principal) after that Maturity Date either a list of all
paid Coupons with that Maturity Date or a record of the
total number of Coupons with that Maturity Date still
remaining unpaid;
(iii) in respect of Coupons and Talons in place of which
replacement Coupons or Talons have been issued, and Coupons
or Talons which have become void, retain a record of the
serial numbers of those Coupons and Talons; and
(iv) make those records available at all reasonable times to the
Trustee, the Manager and the Note Trustee.
11. ISSUE OF REPLACEMENT DEFINITIVE NOTES AND COUPONS AND TALONS WHERE
DEFINITIVE NOTES HAVE BEEN ISSUED
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(a) The Manager shall, where Definitive Notes, Coupons or Talons have
been issued, cause a sufficient quantity of additional Definitive
Notes, Coupons and Talons to be made available,
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upon request by the Principal Paying Agent, for the purpose of
issuing replacement Definitive Notes, Coupons and Talons 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, Coupons or Talons in place
of Definitive Notes or Coupons or Talons which have been lost,
stolen, mutilated, defaced or destroyed.
(c) The Principal Paying Agent shall, subject to and in accordance
with the Conditions and the Transaction Documents, issue Coupons
in exchange for Talons.
(d) In the case of a mutilated or defaced Definitive Note, the
Principal Paying Agent shall ensure that (unless otherwise covered
by an indemnity and/or security as the Trustee or Manager may
require) any replacement Definitive Note will only have attached
to it Coupons and a Talon corresponding to those attached to the
mutilated or defaced Definitive Note which is presented for
replacement.
(e) The Principal Paying Agent shall not issue any replacement
Definitive Note, Coupon or Talon 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, Coupon or Talon is issued)
as may be incurred in connection with that replacement;
(ii) in the case of a lost, stolen, defaced or destroyed
Definitive Note, Coupon or Talon, furnished the Principal
Paying Agent with any evidence (including evidence as to the
Class and serial number of the Definitive Note, Coupon or
Talon 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,
Coupon or Talon, surrendered to the Principal Paying Agent
the mutilated or defaced Definitive Note, Coupon or Talon
which is to be replaced.
(f) The Principal Paying Agent shall cancel any mutilated or defaced
Definitive Note, Coupon or Talon 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, Coupons and Talons
cancelled during that month. Unless otherwise previously
instructed by the Trustee or the Manager, the Principal Paying
Agent shall destroy any cancelled Definitive Notes, Coupons and
Talons and furnish the Trustee, the Manager and the Note Trustee
with a destruction certificate containing the information
specified in clause 10(b).
(g) The Principal Paying Agent shall, on issuing any replacement
Definitive Note, Coupon or Talon, 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, Coupon or Talon issued and the Class
and serial number of the Definitive
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Note, Coupon or Talon in place of which the replacement Definitive
Note, Coupon or Talon has been issued.
(h) Whenever any Definitive Note, Coupon or Talon which is alleged to
have been lost, stolen or destroyed (and in replacement for which
a new Definitive Note, Coupon or Talon has been issued) is
presented to any Paying Agent for payment or for the delivery of
additional Coupons, the Paying Agent to which that Definitive
Note, Coupon or Talon 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, Coupon or
Talon 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, Coupon or Talon. The Principal Paying Agent shall
account to the Trustee for any amount so collected.
(i) In the case of Class A-2 Notes only, no replacement Definitive
Note, Coupon or Talon shall be delivered in the United States.
12. NOTICES TO NOTEHOLDERS
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(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
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(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 or
Couponholders 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
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(iii) if Definitive Notes, Coupons or Talons are issued, specimens
of those Definitive Notes, Coupons and Talons.
(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
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The Principal Paying Agent upon written direction of the Manager shall
authenticate or cause to be authenticated the Book-Entry Notes, the
Global Notes and (if required) the Definitive Notes (whether on initial
issue or on replacement). The Principal Paying Agent shall not be
required to authenticate or cause to be authenticated any Book-Entry
Notes, Global 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
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(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 the 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, negligence or bad faith 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
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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.
(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
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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 Class A-1 Notes issued in
relation to the Trust;
(d) (INITIAL INVESTED AMOUNT) the total Initial Invested Amount of
Class A-1 Notes issued on each such Issue Date;
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(e) (INVESTED AMOUNT) the Invested Amount of each Class A-1 Note from
time to time;
(f) (STATED AMOUNT) the Stated Amount of each Class A-1 Note from time
to time;
(g) (SERIES) details of relevant Classes of Class A-1 Notes;
(h) (DETAILS OF NOTEHOLDERS) the name and address of each Class A-1
Noteholder;
(i) (NUMBER OF NOTES) the number of Class A-1 Notes held by each Class
A-1 Noteholder;
(j) (DATE OF ENTRY) the date on which a person was entered as the
holder of Class A-1 Notes;
(k) (DATE OF CESSATION) the date on which a person ceased to be a
Class A-1 Noteholder;
(l) (ACCOUNT) the account to which any payments due to a Class A-1
Noteholder are to be made (if applicable);
(m) (PAYMENTS) a record of each payment in respect of the Class A-1
Notes; and
(n) (ADDITIONAL INFORMATION) such other information as:
(i) is required by the Supplementary Terms Notice;
(ii) the Note Registrar considers necessary or desirable; or
(iii) the Manager or the Trustee reasonably requires in writing
with respect to Class A-1 Notes.
16.3 PAYMENTS OF PRINCIPAL AND INTEREST
(a) Any payment of principal or interest on any Class A-1 Note shall
be endorsed by the Note Registrar on the Note Register. In the
case of payments of principal, the Invested Amount of the Class
A-1 Notes shall be reduced for all purposes by the amount so paid
and endorsed on the Note Register. Any such record shall be prima
facie evidence that the payment in question has been made.
(b) If the amount of principal or interest (as the case may be) due
for payment on any Class A-1 Note is not paid in full (including
Carryover Charge Offs and by reason of a deduction or withholding)
the Note Registrar shall endorse a record of that shortfall on the
Note Register.
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, 00xx Xxxxx Xxxx, Xxx Xxxx XX 00000 or at such
place as the Trustee, the Manager and the Note Registrar may
agree;
(b) (ACCESS TO MANAGER AND AUDITOR) open to the Trustee, the Manager,
the Note Trustee and the Auditor of the Trust to inspect during
normal business hours;
(c) (INSPECTION BY CLASS A-1 NOTEHOLDERS) open for inspection by the
Note Trustee or a Class A-1 Noteholder during normal business
hours but, in the case of a Class A-1 Noteholder, only in respect
of information relating to that Class A-1 Noteholder; and
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(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.
(b) (NO TRUSTS ETC) The Note Registrar shall not be obliged to enter
on the Note Register notice of any trust, Security Interest or
other interest whatsoever in respect of any Class A-1 Notes and
the Trustee shall be entitled to recognise a Class A-1 Noteholder
as the absolute owner of Class A-1 Notes and the Trustee shall not
be bound or affected by any trust affecting the ownership of any
Class A-1 Notes unless ordered by a court or required by statute.
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 a Class A-1 Noteholder by the Class A-1
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
Class A-1 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,
employees or servants.
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17. CHANGES OF NOTE REGISTRAR
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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 written notice to that effect.
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
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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, Couponholders or Class A-1 Note
Owners (as the case may be) including any communications pursuant to
clauses 3.5, 7.1, 18(a), 22.1 or 23.2 of the Note Trust Deed or any
other solicitation of notice from or consent of the Offshore
Noteholders, Couponholders or Class A-1 Note Owners pursuant to or
relating to the Note Trust Deed or this agreement, forward such
communications to the Offshore Noteholders, Couponholders or Class A-1
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, Couponholder or Class
A-1 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.
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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, Coupons or Talons 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 Common Depository as the holder
of any Class A-1 Note represented by a Book-Entry Note shall be
entitled to receive from the registered owner of that Book-Entry
Note any payment so made in accordance with the respective rules
and procedures of the Common Depository and on the terms and
subject to the conditions of that Book-Entry Note;
(b) who is the registered owner of any relevant Definitive Note, as
the absolute owner or owners of that Definitive Note, (whether or
not that Definitive Note, is overdue and despite any notice of
ownership or writing on it or any notice of previous loss or theft
or of any trust or other interest in it);
(c) who, when a Book-Entry Note in respect of any Class A-1 Note is no
longer outstanding but Definitive Notes in respect of the Class
A-1 Notes have not been issued, is for the time being the Note
Trustee, as the person entrusted with the receipt of principal or
interest, as applicable, on behalf of the Class A-1 Noteholders;
(d) who is, while a Global Note remains outstanding, the bearer of
that Global Note as the person entitled to receive payments of
principal or interest (as applicable) and each person shown in the
records of Euroclear or Clearstream, Luxembourg as the holder of
any Class A-2 Note represented by a Global Note shall be entitled
to receive from the bearer of that Global Note any payment so made
in accordance with the respective rules and procedures of
Euroclear or Clearstream, Luxembourg (as the case may be) and on
the terms and subject to the conditions of that Global Note;
(e) who is the bearer of any relevant Definitive Note, Coupon or Talon
as the absolute owner or owners of that Definitive Note, Coupon or
Talon (whether or not that Definitive Note, Coupon or Talon 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
(f) who, when a Global Note is no longer outstanding but Definitive
Notes, Coupons and Talons in respect of the Class A-2 Notes have
not been issued, is for the time being the Note Trustee, as the
person entrusted with the receipt of principal or interest, as
applicable, on behalf of the relevant Class A-2 Noteholders or
Couponholders,
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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, Coupon or Talon 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, Coupons or
Talons 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 misconduct, negligence or bad faith) shall any Note Party
be liable to account to the Trustee or any person entitled to receive
amounts of principal or interest on the 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.
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, Coupons and Talons, and no
implied duties or obligations (other than general laws as to agency)
shall be read into this agreement, the Offshore Notes, Coupons or
Talons 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.
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18.9 INCOME TAX RETURNS
The Principal Paying Agent shall, subject always to compliance with
mandatory provisions of law, deliver to each Class A-1 Noteholder such
information as may be reasonably required to enable such Class A-1
Noteholder to prepare its federal and state income tax returns.
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.
19. CHANGES IN PAYING AGENTS AND CALCULATION AGENT
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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
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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
or Coupons.
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
or Coupons.
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 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 the Irish
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 Republic of Ireland;
(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
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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 Ireland and/or
London (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 or Coupon 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, Coupons or Talon)
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 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
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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,
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;
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(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).
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
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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 Class A-1 Notes remain outstanding the fee separately
agreed by the Note Registrar and the Trustee, 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)) and 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 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.
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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 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
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(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 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
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 OR CLASS A-1
NOTE OWNERS:
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx
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Xxx Xxxx 00000
XXXXXX XXXXXX OF AMERICA
Telex: Not applicable
Fax: + 1 212 815 5802 / 5803
Attention: Corporate Trust Services
IN RELATION TO THE CLASS A-2 NOTES AND CLASS A-2 NOTEHOLDERS:
00xx Xxxxx, 0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
XXXXXX XXXXXXX
Fax: + 44 20 796 4639
Attention: Global Trust Services
THE CALCULATION AGENT
THE BANK OF NEW YORK
00xx Xxxxx, 0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
XXXXXX XXXXXXX
Fax: + 44 20 796 4639
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: Corporate Trust Services
THE NOTE REGISTRAR
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx
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Xxx Xxxx 00000
XXXXXX XXXXXX OF AMERICA
Telex: Not applicable
Fax: + 1 212 815 5802 / 5803
Attention: Corporate Trust Services
THE IRISH PAYING AGENT
AIB/BNY FUND MANAGEMENT (IRELAND) LIMITED
Xxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxx 0
XXXXXXXX XX XXXXXXX
Fax: x00 00 0000000
Attention: Chief Operating Officer
WITH A COPY TO:
The Note Trustee
Solely for purposes of transfer of any Class A-1 Note, the Note
Registrar shall act through its office at 000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
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
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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) The Trustee enters into this agreement only in its capacity as
trustee of the Trust and in no other capacity (except where the
Transaction Documents provide otherwise). Subject to paragraph (c)
below, a liability arising under or in connection with this
agreement or the Trust can be enforced against the Trustee only to
the extent to which it can be satisfied out of the assets and
property of the Trust which are available to satisfy the right of
the Trustee to be exonerated or indemnified for the liability.
This limitation of the Trustee's liability applies despite any
other provision of this agreement and extends to all liabilities
and
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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, 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 limits a Paying Agent or the Calculation Agent
in:
(a) obtaining an injunction or other order to restrain any breach of
this agreement by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
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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.
26. COUNTERPARTS
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This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
27. GOVERNING LAW
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This agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of the courts exercising
jurisdiction there.
28. SUCCESSOR TRUSTEE
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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.
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EXECUTED as an agreement.
Each attorney executing this agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.
TRUSTEE
SIGNED for PERPETUAL TRUSTEES CONSOLIDATED LIMITED by its attorney under power
of attorney in the presence of:
----------------------------------- -------------------------------------
Witness Signature Attorney Signature
----------------------------------- -------------------------------------
Print Name Print Name
MANAGER
SIGNED for CRUSADE MANAGEMENT LIMITED by its attorney under power of attorney in
the presence of:
----------------------------------- -------------------------------------
Witness Signature Attorney Signature
----------------------------------- -------------------------------------
Print Name Print Name
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PRINCIPAL PAYING AGENT
SIGNED on behalf of THE BANK OF NEW YORK in the presence of:
----------------------------------- -------------------------------------
Signature Signature
----------------------------------- -------------------------------------
Print Name Print Name
NOTE TRUSTEE
SIGNED on behalf of THE BANK OF NEW YORK in the presence of:
----------------------------------- -------------------------------------
Signature Signature
----------------------------------- -------------------------------------
Print Name Print Name
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CALCULATION AGENT
SIGNED on behalf of THE BANK OF NEW YORK in the presence of:
----------------------------------- -------------------------------------
Signature Signature
----------------------------------- -------------------------------------
Print Name Print Name
NOTE REGISTRAR
SIGNED on behalf of THE BANK OF NEW YORK in the presence of:
----------------------------------- -------------------------------------
Signature Signature
----------------------------------- -------------------------------------
Print Name Print Name
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IRISH PAYING AGENT
SIGNED on behalf of )
AIB/BNY FUND MANAGEMENT (IRELAND) LIMITED )
in the presence of: )
-----------------------------
Signature
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Signature Print name
------------------------------------------------ -----------------------------
Print name Office held
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