AGENCY AGREEMENT
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(Trustee)
CRUSADE MANAGEMENT LIMITED
(Manager)
DEUTSCHE BANK TRUST COMPANY AMERICAS
(Principal Paying Agent)
WILMINGTON TRUST COMPANY
(Note Trustee)
DEUTSCHE BANK TRUST COMPANY AMERICAS
(Calculation Agent)
DEUTSCHE BANK TRUST COMPANY AMERICAS
(Note Registrar)
Crusade Global Trust No. 2 of 2003
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
xxx.xxx.xxx.xx
(C) Copyright Allens Xxxxxx Xxxxxxxx 2003
AGENCY AGREEMENT [Allens Xxxxxx Xxxxxxxx LOGO]
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 4
1.1 Definitions 4
1.2 Note Trust Deed definitions 5
1.3 Interpretation 5
1.4 Document or agreement 5
1.5 Transaction Document 5
1.6 Trustee as trustee 5
2. APPOINTMENT OF PAYING AGENTS 6
3. PAYMENT 6
3.1 Payment by Trustee 6
3.2 Confirmation 6
3.3 Payments by Paying Agents 7
3.4 Method of Payment - Book-Entry Notes 7
3.5 Method of payment - Definitive Notes 7
3.6 Late payment 7
3.7 Notice of non-receipt 8
3.8 Reimbursement 8
3.9 Method of payment 8
3.10 No fee 8
3.11 Trust 9
4. REPAYMENT 9
5. APPOINTMENT OF THE CALCULATION AGENT 9
6. DUTIES OF THE CALCULATION AGENT 9
7. NOTE TRUSTEE 11
8. EARLY REDEMPTION OF NOTES 12
9. PRO RATA REDEMPTION, PURCHASES AND CANCELLATION OF NOTES 12
10. NOTICES TO NOTEHOLDERS 13
11. DOCUMENTS AND FORMS 14
12. AUTHENTICATION 14
13. INDEMNITY 14
14. THE NOTE REGISTER 15
14.1 Appointment of Note Xxxxxxxxx 00
14.2 Details to be kept on the Note Register 15
14.3 Payments of Principal and Interest 16
14.4 Place of keeping Register, copies and access 16
14.5 Details on Note Register conclusive 17
14.6 Alteration of details on Note Register 17
14.7 Rectification of Note Register 17
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14.8 Correctness of Note Register 17
15. CHANGES OF NOTE XXXXXXXXX 00
15.1 Removal 17
15.2 Resignation 18
15.3 Limitation 18
16. GENERAL 18
16.1 Communications to Class A Noteholders 18
16.2 Agency 18
16.3 Identity 19
16.4 No set-off 19
16.5 Reliance 19
16.6 Entitled to deal 19
16.7 Consultation 20
16.8 Duties 20
16.9 Income Tax Returns 20
16.10 Obligations of Note Parties 20
17. CHANGES IN PAYING AGENTS AND CALCULATION AGENT 20
17.1 Removal 20
17.2 Resignation 21
17.3 Limitation 21
17.4 Delivery of amounts 22
17.5 Successor to Principal Paying Agent 22
17.6 Successor to Calculation Agent 23
17.7 Successor to Note Xxxxxxxxx 00
17.8 Notice to Class A Noteholders 24
17.9 Change in Paying Office or Specified Office 24
18. FEES AND EXPENSES 25
19. WAIVERS, REMEDIES CUMULATIVE 26
20. SEVERABILITY OF PROVISIONS 26
21. ASSIGNMENTS 26
22. NOTICES 27
22.1 General 27
22.2 Details 27
22.3 Communication through Principal Paying Agent 29
23. LIMITED RECOURSE 29
23.1 General 29
23.2 Liability of Trustee limited to its right to indemnity 29
23.3 Unrestricted remedies 30
23.4 Restricted remedies 30
24. COUNTERPARTS 31
25. GOVERNING LAW 31
26. SUCCESSOR TRUSTEE 31
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DATE 2003
=========
PARTIES
=========
1. PERPETUAL TRUSTEES CONSOLIDATED LIMITED (ABN 81 004 029 841)
incorporated in Australia and registered in Victoria of Xxxxx 0,
0 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000 in its
capacity as trustee of the Crusade Global Trust No. 2 of 2003
(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 2003 (the MANAGER);
3. DEUTSCHE BANK TRUST COMPANY AMERICAS acting through its office at
0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 as
principal paying agent for the Notes described below (the
PRINCIPAL PAYING AGENT, which expression shall, wherever the
context requires, include any successor principal paying agent
from time to time and, except where the context otherwise
requires, the Principal Paying Agent and any additional paying
agent or paying agents are PAYING AGENTS);
4. WILMINGTON TRUST COMPANY acting through its office at Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, as trustee for the Class A Noteholders (the NOTE
TRUSTEE, which expression shall, wherever the context requires,
include any other trustee or trustees from time to time under the
Note Trust Deed);
5. DEUTSCHE BANK TRUST COMPANY AMERICAS acting through its office at
0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 as
reference agent in relation to the Notes described below (the
CALCULATION AGENT) which expression shall, whenever the context
requires, include any successor reference agent from time to
time); and
6. DEUTSCHE BANK TRUST COMPANY AMERICAS acting through its office at
0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 as
note registrar in relation to the Class A Notes described below
(the NOTE REGISTRAR) which expression shall, whenever the context
requires, include any successor note registrar from time to time.
RECITALS
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A The Trustee proposes to issue US$[*] of Class A mortgage backed
pass through floating rate Notes (the CLASS A NOTES) each with a
Final Maturity Date falling in [*] and A$[*] of mortgage backed
pass through floating rates Notes comprising $[*] Class
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B Notes and $[*] Class C Notes (together the $A NOTES) each with
a Final Maturity Date falling in [*].
B The Class A Notes will be represented initially by one or more
Book-Entry Notes (the BOOK-ENTRY NOTES).
C The Class A Notes, upon original issue, will be issued in the
form of typewritten Book-Entry Notes representing the Book-Entry
Notes. The Trustee shall, on the date of this deed, deliver or
arrange the delivery on its behalf of the Book-Entry Notes to the
Principal Paying Agent, as agent for the Clearing Agency. The
Book-Entry Notes shall initially be registered on the Note
Register in the name of the Common Depository, as nominee of the
Clearing Agency, and no Class A Note Owner will receive a
Definitive Note representing such Class A Note Owner's interest
in such Class A Note, except as provided in the Note Trust Deed.
D The Class A Notes will be constituted by the Note Trust Deed, the
Supplementary Terms Notice and the Master Trust Deed.
E The Class A Notes will be secured on the terms of the Security
Trust Deed.
F The Trustee wishes to appoint the Principal Paying Agent as
principal paying agent in respect of the Class A Notes only and
has entered into this agreement to provide for the terms and
conditions of that appointment.
G The Trustee wishes to appoint the Calculation Agent as its
reference agent in respect of the Class A Notes only and has
entered into this agreement to provide for the terms and
conditions of that appointment.
H The Trustee wishes to appoint the Note Registrar in respect of
the Class A Notes only and has entered into this agreement to
provide for the terms and conditions of that appointment.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
MASTER TRUST DEED means the Master Trust Deed for the Crusade Euro
Trusts dated 14 March 1998 between the Trustee as trustee, Xx.Xxxxxx
Bank Limited and the Manager.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust dated
on or about the date of this agreement issued under the Master Trust
Deed in relation to the Trust.
PAYING OFFICE means, in relation to a Paying Agent, the office of the
Paying Agent specified in the Class A Notes or otherwise under this
agreement or the Note Trust Deed as
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the office at which payments in respect of the Class A Notes will be
made as changed from time to time in accordance with this agreement.
SUPPLEMENTARY TERMS NOTICE means the Supplementary Terms Notice dated
on or about the date of this agreement relating to the Trust.
SPECIFIED OFFICE means, in relation to the Calculation Agent, the
office of the Calculation Agent specified under this agreement as the
office at which the Calculation Agent will carry out its duties under
this agreement, and initially means its office at 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000 (ATTN: Trust Administration
STO302).
TRUST means the trust known as the Crusade Global Trust No. 2 of 2003
established under the Notice of Creation of Trust, the Master Trust
Deed and the Supplementary Terms Notice.
1.2 NOTE TRUST DEED DEFINITIONS
Words and expressions which are defined in the Note Trust Deed
(including by reference to another agreement and including the
Conditions) have the same meanings when used in this agreement unless
the context otherwise requires or unless otherwise defined in this
agreement.
1.3 INTERPRETATION
Clause 1.2 of the Master Trust Deed applies to this agreement as if set
out in full and:
(a) a reference to an ASSET includes any real or personal, present or
future, tangible or intangible property or asset and any right,
interest, revenue or benefit in, under or derived from the
property or asset; and
(b) a reference to an amount for which a person is CONTINGENTLY
LIABLE includes an amount which that person may become actually
or contingently liable to pay if a contingency occurs, whether or
not that liability will actually arise.
1.4 DOCUMENT OR AGREEMENT
A reference to:
(a) an AGREEMENT includes a Security Interest, Guarantee,
undertaking, deed, agreement or legally enforceable arrangement
whether or not in writing; and
(b) a DOCUMENT includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the
extent prohibited by this agreement.
1.5 TRANSACTION DOCUMENT
This agreement is a TRANSACTION DOCUMENT for the purposes of the Master
Trust Deed.
1.6 TRUSTEE AS TRUSTEE
(a) In this agreement, except where provided to the contrary:
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(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, and each other Paying Agent as its
paying agent, for making payments in respect of the Class A Notes
in accordance with the Transaction Documents and the Conditions
at their respective Paying Offices. The Principal Paying Agent,
and each other Paying Agent appointed under this agreement
accepts that appointment.
(b) Except in clause 17 and as the context otherwise requires,
references to the Principal Paying Agent are to it acting solely
through its Paying Office.
(c) If at any time there is more than one Paying Agent, the
obligations of the Paying Agents under this agreement shall be
several and not joint.
It is acknowledged and agreed that:
(i) each of the Principal Paying Agent and the other Paying
Agents is the agent of the Trustee in its capacity as
trustee of the Trust only; and
(ii) despite anything else in this agreement, any other
Transaction Document or at law, the Trustee in its personal
capacity is not responsible for any act or omission of the
Principal Paying Agent or any other Paying Agent except to
the extent of losses, costs, claims or damages caused by the
fraud, negligence or Default of the Trustee.
3. PAYMENT
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3.1 PAYMENT BY TRUSTEE
The Trustee shall, with the assistance of and, at the direction of the
Manager, not later than 11:00 am (New York time) on each Payment Date,
pay to or to the order of, or procure payment to or to the order of,
the Principal Paying Agent (including where relevant in clause 3.9) the
amount in US$ as may be required (after taking account of any cash then
held by the Principal Paying Agent and available for the purpose) to be
made on each Class A Note on that Payment Date under the Supplementary
Terms Notice and the Conditions.
3.2 CONFIRMATION
Not later than 4:00 pm (Sydney time) on each Determination Date, the
Manager on behalf of the Trustee shall notify, or procure notification
to, the Principal Paying Agent and the
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Note Trustee of the amount of interest or principal payable in respect
of the Class A Notes on the Payment Date following that Determination
Date. The Trustee or if required by the Trustee, the Manager on its
behalf shall also forward to the Principal Paying Agent at that time
confirmation that all amounts required to be paid to the Currency Swap
Provider under any Confirmation relating to the Class A Notes on the
Payment Date following that Determination Date 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 Class A Notes in accordance with the Supplementary Terms
Notice and the Conditions.
3.4 METHOD OF PAYMENT - BOOK-ENTRY NOTES
The Principal Paying Agent shall cause all payments of principal or
interest (as the case may be) due in respect of Class A Notes
represented by a Book-Entry Note to be made to the Common Depository
for credit to the account of the persons appearing from time to time in
the records of the Common Depository as account holder with respect to
the Book-Entry Note.
3.5 METHOD OF PAYMENT - DEFINITIVE NOTES
Payments of principal or interest on the Definitive Notes, if any,
shall be made in accordance with the Conditions and the Supplementary
Terms Notice.
3.6 LATE PAYMENT
(a) If any payment under clause 3.1 is made late but otherwise in
accordance with the provisions of this agreement, each Paying
Agent shall make payments required to be made by it in respect of
the Class A Notes as provided in this clause 3. However, unless
and until the full amount of any payment in respect of the Class
A Notes required to be made under the Transaction Documents has
been made under clause 3.1 to or to the order of the Principal
Paying Agent, no Paying Agents shall be bound to make a payment
under clause 3 except to the extent that non-payment is caused by
fraud, wilful misconduct, negligence or bad faith on the part of
that Paying Agent or of any of its directors, officers, employees
or servants.
(b) If the Principal Paying Agent has not received on a Payment Date
the full amount of principal and interest then payable on any
Class A Note in accordance with the Supplementary Terms Notice
and the Conditions, but receives the full amount later, it shall:
(i) forthwith upon full receipt notify the other Paying Agents
(if any), the Trustee, the Note Trustee, the Security
Trustee and the Manager; and
(ii) as soon as practicable after such full receipt give due
notice, in accordance with Condition 12 (unless the Note
Trustee agrees otherwise), to the Class A Noteholders that
it has received the full amount.
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3.7 NOTICE OF NON-RECEIPT
The Principal Paying Agent shall immediately notify by facsimile (if
appropriate) the other Paying Agents (if any), the Note Trustee, the
Trustee, the Security Trustee, the Currency Swap Provider and the
Manager if the full amount of any payment of principal or interest
required to be made by the Supplementary Terms Notice and Conditions in
respect of the Class A Notes is not unconditionally received by it or
to its order in accordance with this agreement.
3.8 REIMBURSEMENT
The Principal Paying Agent shall (provided that it has been placed in
funds by the Trustee) on demand promptly reimburse the other Paying
Agents (if any) for payments of principal and interest properly made by
that Paying Agent in accordance with the Supplementary Terms Notice,
the Conditions and this agreement. The Trustee shall not be concerned
with the apportionment of any moneys between the Principal Paying
Agent, the other Paying Agents (if any) and payment to the Principal
Paying Agent of any moneys due to the Paying Agents shall operate as a
good discharge to the Trustee in respect of such moneys.
3.9 METHOD OF PAYMENT
(a) All sums payable by the Trustee to the Principal Paying Agent
under this agreement shall, unless otherwise provided by and
subject to the Currency Swap, be paid by the Currency Swap
Provider on behalf of the Trustee in US$ to the account, with the
bank outside Australia as the Principal Paying Agent may from
time to time notify to the Trustee and the Note Trustee. Those
sums shall be held in an account for payment to the Class A
Noteholders, as the case may be, and, failing that payment within
the designated periods of prescription specified in Condition 8,
or upon the bankruptcy, insolvency, winding up or liquidation of
the Principal Paying Agent or default being made by the Principal
Paying Agent in the payment of any amounts in respect of
principal or interest in accordance with this agreement, on trust
for repayment to the Trustee (subject to clause 4). On repayment
in accordance with clause 4 to the Trustee that trust shall
terminate and all liabilities of the Principal Paying Agent with
respect to those moneys shall cease. The Principal Paying Agent
shall, promptly after each Payment Date, confirm to the Trustee
that the Principal Paying Agent has paid the relevant amount to
the Common Depository.
(b) Subject to the terms of this agreement, the Principal Paying
Agent shall be entitled to deal with moneys paid to it under this
agreement in the same manner as other moneys paid to it as a
banker by its customers. The Principal Paying Agent shall be
entitled to retain for its own account any interest earned on the
sums from time to time credited to the separate account referred
to in paragraph (a) and it need not segregate such sums from
other amounts held by it.
3.10 NO FEE
Subject to clause 18, no Paying Agent will charge any commission or fee
in relation to any payment under this agreement.
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3.11 TRUST
The Principal Paying Agent shall hold in trust for the Note Trustee and
the Class A Noteholders all sums held by it for the payment of
principal and interest with respect to the Class A Notes until all
relevant sums are paid to the Note Trustee or the Class A Noteholders
or otherwise disposed of in accordance with the Note Trust Deed.
4. REPAYMENT
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(a) Immediately on any entitlement to receive principal or interest
under any Class A Note becoming void under the Conditions, the
Principal Paying Agent shall repay to the Trustee the amount
which would have been due in respect of that principal or
interest if it had been paid before the entitlement became void,
together with any fees applicable to that payment or entitlement
(pro rata as to the amount and time) to the extent already paid
under clause 18.
(b) Despite paragraph (a) the Principal Paying Agent shall not be
obliged to make any repayment to the Trustee so long as any
amounts which should have been paid to or to the order of the
Principal Paying Agent or, if applicable, the Note Trustee by the
Trustee remain unpaid.
5. APPOINTMENT OF THE CALCULATION AGENT
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(a) The Trustee (acting on the direction of the Manager) appoints the
Calculation Agent as its reference agent in respect of the Class
A Notes upon the terms and conditions set forth in this agreement
and the Calculation Agent accepts that appointment.
(b) It is acknowledged and agreed that:
(i) the Calculation Agent is the agent of the Trustee in its
capacity as trustee of the Trust only; and
(ii) despite anything else in this agreement, any other
Transaction Document or at law, the Trustee in its personal
capacity is not responsible for any act or omission of the
Calculation Agent except to the extent of losses, costs,
claims or damages caused by the fraud, negligence or Default
of the Trustee.
6. DUTIES OF THE CALCULATION AGENT
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(a) The Calculation Agent shall, in relation to the Class A Notes,
until their final maturity or such earlier date on which the
Class A Notes are due and payable in full and in either case
until the Trustee has paid all amounts in relation to the Class A
Notes to the Principal Paying Agent or, if applicable, the Note
Trustee:
(i) perform such duties at its Specified Office as are set forth
in this agreement and in the 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;
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(ii) determine LIBOR for each Interest Period, and calculate the
relevant Interest and Interest Rate on Class A Notes, in
the manner set out in Condition 4 and confirm with the
Currency Swap Provider that the LIBOR determined under this
agreement is the same as LIBOR determined by the Currency
Swap Provider under the Currency Swap;
(iii) notify the Trustee, the Manager, the Note Trustee and the
Paying Agents by facsimile transmission on or as soon as
possible after the first day of that Interest Period, of
the Interest Rate and the Interest so determined by it in
relation to that Interest Period, specifying to the Trustee
and the Manager the rates upon which they are based and
(where relevant) the names of the banks quoting those
rates; and
(iv) cause the Interest and Interest Rates applicable to the
Class A Notes for each Interest Period together with the
relevant Payment Date, to be published (at the expense of
the Trustee) in accordance with the provisions of
Conditions 4 and 12, on or as soon as possible after the
commencement of the relevant Interest Period, provided that
the Trustee and the Manager and the Note Trustee shall
co-operate with the Calculation Agent in order to effect
that publication.
(b) The Interest, Interest Rate and relevant Payment Date published
under sub-paragraph (iv) may subsequently be amended (or
appropriate alternative arrangements made by way of adjustment)
without notice to Class A Noteholders in the event of a
shortening of the Interest Period.
(c) If the Calculation Agent at any time and for any reason does not
determine the Interest Rate or calculate the Interest for the
Class A Notes, the Manager shall do so and each such
determination or calculation shall be deemed to have been made by
the Calculation Agent. In doing so, the Manager shall apply the
provisions of this clause 6, with any necessary consequential
amendments, to the extent that, in its opinion, it can do so,
and, in all other respects it shall do so in such a manner as it
shall deem fair and reasonable in all the circumstances.
(d) If the Manager does not at any time and for any reason determine
a Principal Payment, the Invested Amount or the Stated Amount
applicable to Class A Notes in accordance with the Transaction
Documents, the Principal Payment, Invested Amount and the Stated
Amount shall be determined by the Calculation Agent in accordance
with the Transaction Documents (but based solely on the
information in its possession) and each such determination or
calculation shall be deemed to have been made by the Manager. The
Calculation Agent may appoint any person as its agent for the
purpose of making any such calculation or determination.
7. NOTE TRUSTEE
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(a) At any time after an Event of Default has occurred in relation to
a Class A Note or at any time after Definitive Notes have not
been issued when required in accordance with the provisions of
the Transaction Documents, the Note Trustee may:
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(i) by notice in writing to the Trustee, the Manager, the
Calculation Agent, the Principal Paying Agent and any other
Paying Agents require the Principal Paying Agent, the other
Paying Agents and the Calculation Agent either:
(A)
(1) to act as Principal Paying Agent, Paying Agents
and Calculation Agent, respectively, of the Note
Trustee on the terms of this agreement in
relation to payments to be made by or on behalf
of the Trustee under the terms of the Note Trust
Deed, except that the Note Trustee's liability
under any provisions of this agreement for the
indemnification of the Calculation Agent and the
Paying Agents shall be limited to any amount for
the time being held by the Note Trustee on the
trusts of the Note Trust Deed and which is
available to be applied by the Note Trustee for
that purpose; and
(2) to hold all Definitive Notes and all amounts,
documents and records held by them in respect of
the Class A Notes on behalf of the Note Trustee;
or
(B) to deliver up all Definitive Notes, and all amounts,
documents and records held by them in respect of the
Class A Notes, to the Note Trustee or as the Note
Trustee directs in that notice, other than any
documents or records which the Calculation Agent or
Paying Agent (as the case may be) is obliged not to
release by any law or regulation; and
(ii) by notice in writing to the Trustee require it to make (or
arrange to be made) all subsequent payments in respect of
the Class A Notes to the order of the Note Trustee and not
to the Principal Paying Agent and, with effect from the
issue of that notice to the Trustee and until that notice is
withdrawn clause 2.3 of the Note Trust Deed shall not apply.
(b) The payment by the Trustee of its payment obligations on each
Payment Date under the Supplementary Terms Notice and the
Conditions to the Note Trustee in accordance with this paragraph
(b) shall be a good discharge to the Trustee and the Trustee
shall not be liable for any act or omission or default of the
Note Trustee during the period it is required to make payment to
the Note Trustee under this paragraph (b).
(c) The Note Trustee shall forthwith upon request give notice to the
Manager, the Trustee, the Security Trustee, the Calculation Agent
and the Principal Paying Agent of any change in the Authorised
Signatories of the Note Trustee.
(d) If the Calculation Agent at any time for any reason does not
determine the Interest Rate or calculate the Interest for a Class
A Note, the Note Trustee shall do so and each such determination
or calculation shall be deemed to have been made by the
Calculation Agent. In doing so, the Note Trustee shall apply the
provisions of
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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.
8. EARLY REDEMPTION OF NOTES
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(a) If the Trustee intends to redeem all (but not some only) of the
Class A Notes prior to its Final Maturity Date pursuant to
Condition 5(j) (which it may only do at the direction of the
Manager), the Manager shall give not less than 5 days' prior
notice to the Principal Paying Agent and the Note Trustee before
giving the requisite period of notice to the Class A Noteholders
in accordance with Condition 5(i) or 5(j) and stating the date on
which the Class A Notes are to be redeemed.
(b) The Principal Paying Agent shall, on receipt of a notice under
paragraph (a):
(i) notify the Common Depository of the proposed redemption,
specifying:
(A) the aggregate Invested Amount or Stated Amount (as
the case may be) of the Class A Notes to be redeemed;
(B) the amount of principal to be repaid in relation to
the Class A Notes; and
(C) the date on which the Class A Notes are to be
redeemed; and
(ii) promptly and in accordance with the relevant Conditions on
behalf of and at the expense of the Trustee publish the
notices required in connection with that redemption.
9. PRO RATA REDEMPTION, PURCHASES AND CANCELLATION OF NOTES
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(a) If the Trustee is required to redeem some (but not all) of the
Class A Notes prior to its Final Maturity Date pursuant to
Condition 5(a) the Manager shall on each Determination Date give
prior notice to the Calculation Agent, the Principal Paying Agent
and the Note Trustee, as provided in Condition 5.
(b) On receipt of a notice under paragraph (a), the Principal Paying
Agent shall notify the Common Depository of the proposed
redemption, specifying in each case the aggregate principal
amount of the Class A Notes to be redeemed and the date on which
such Class A Notes are to be redeemed.
(c) The Manager shall, on (or as soon as practicable after) each
Quarterly Determination Date in respect of the Class A Notes,
calculate:
(i) the amount of principal to be repaid in respect of the
Class A Notes due on the Payment Date next following that
Determination Date;
(ii) the Stated Amount and Invested Amount of the Class A Note
on the first day of the next following Interest Period
(after deducting any principal due to be made on the next
Payment Date); and
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(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 and the
Principal Paying Agent of each of those determinations in
accordance with the Supplementary Terms Notice. On receipt of
that notice, the Principal Paying Agent shall give a copy of that
notice to the Common Depository in accordance with the
requirements of the Note Depository Agreement.
(d) The Manager will immediately cause details of each determination
under paragraph (c) to be published in accordance with Condition
12 by one Business Day before the relevant Payment Date.
(e) If no principal is due to be repaid on the Class A Notes on any
Payment Date, the Manager shall give notice or shall cause a
notice to this effect to be given to the Class A Noteholders in
accordance with Condition 12.
(f) If the Class A Notes are redeemed in whole or in part in
accordance with the Conditions and the Transaction Documents, the
Principal Paying Agent will, if any Book-Entry Notes are still
outstanding in relation to that Class, cause the Note Registrar
to record all relevant details in the Note Register. The
Principal Paying Agent shall as soon as possible, and in any
event within three months after the date of any redemption or
purchase, furnish to each of the Trustee and the Note Trustee a
certificate setting out the aggregate Invested Amount and Stated
Amount of Class A Notes which have been redeemed or the aggregate
Invested Amount and Stated Amount of Class A Notes which have
been purchased. If the Invested Amount of a Book-Entry Note is
reduced to nil, the Principal Paying Agent shall destroy the
relevant Book-Entry Note and issue a destruction certificate
forthwith to the Note Trustee and shall send a copy of that
certificate to the Trustee, the Manager and the Note Trustee.
10. NOTICES TO NOTEHOLDERS
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(a) Subject to clause 23 at the expense of the Trustee, the Principal
Paying Agent shall arrange for the publication of all notices to
Class A Noteholders in accordance with the Conditions.
(b) The Principal Paying Agent shall promptly send to the Note
Trustee one copy of the form of every notice given to Class A
Noteholders in accordance with the Conditions.
11. DOCUMENTS AND FORMS
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(a) The Manager shall provide to the Principal Paying Agent for
distribution to each Paying Agent sufficient copies of all
documents required by the Conditions or the Note Trust Deed to be
available to the Class A Noteholders for issue or inspection
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(including the Note Trust Deed, the Master Trust Deed and the
Supplementary Terms Notice).
(b) The Manager and the Trustee shall provide to the Calculation
Agent such documents as the Calculation Agent may reasonably
require from the Manager or the Trustee (and in the case of the
Trustee only those documents that are in the Trustee's possession
or power) in order for the Calculation Agent properly to fulfil
its duties in respect of the Class A Notes.
12. AUTHENTICATION
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The Principal Paying Agent upon written direction of the Manager shall
authenticate or cause to be authenticated the Book-Entry Notes and (if
required) the Definitive Notes (whether on initial issue or on
replacement).
13. INDEMNITY
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(a) Subject to paragraph (b) and clause 23, the Trustee shall
indemnify each Paying Agent, the Note Registrar and the
Calculation Agent against any loss, damages, proceeding,
liability, cost, claim, action, demand or expense (in this clause
13, each, an EXPENSE) which the Paying Agent, the Note Registrar
or the Calculation Agent, as the case may be, may incur or which
may be made against the Paying Agent, the Note Registrar or the
Calculation Agent (as the case may be), as a result of or in
connection with the Paying Agent's, the Note Registrar's or the
Calculation Agent's, as the case may be, appointment or the
proper exercise of the Paying Agent's, the Note Registrar's or
the Calculation Agent's, as the case may be, powers and proper
performance of the Paying Agent's, the Note Registrar's or the
Calculation Agent's, as the case may be, duties under this
agreement, notwithstanding the resignation or removal of that
Paying Agent, the Note Registrar's or the Calculation Agent in
accordance with clause 17 (including any liability in respect of
payment of a cheque drawn by that Paying Agent or Calculation
Agent (as the case may be) where the cheque is collected or sued
upon or an attempt at collection is made after the amount in
respect of which it is paid has been returned to the Trustee
under clause 4).
(b) The indemnity in paragraph (a) applies to any Expense of a Paying
Agent, the Note Registrar or the Calculation Agent (as the case
may be) only:
(i) to the extent the Expense does not result from the breach
by the Paying Agent, the Note Registrar or the Calculation
Agent (as the case may be) of the terms of this agreement
or which breach arises out of the Paying Agent's, the Note
Registrar's or the Calculation Agent's (as the case may be)
own fraud, wilful misconduct, negligence or bad faith or
that of its directors, officers or employees or servants;
(ii) if the Paying Agent, the Note Registrar or the Calculation
Agent (as the case may be) gives notice of the Expense to
the Trustee and the Manager
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promptly upon the Paying Agent, the Note Registrar or the
Calculation Agent (as the case may be) becoming aware of
the Expense; and
(iii) if and whenever the Trustee or the Manager so requires, the
Paying Agent, the Note Registrar or the Calculation Agent
(as the case may be) takes any actions or proceedings under
the control and at the expense of the Trustee as the
Trustee may reasonably require to avoid, resist or
compromise that Expense.
(c) Each of the Calculation Agent, the Note Registrar and the Paying
Agents severally indemnifies the Trustee and the Manager against
any Expense which the Trustee or the Manager (as the case may be)
may incur or which may be made against it as a result of a breach
by the Calculation Agent, the Note Registrar or the Paying Agent
(as the case may be) of the terms of this agreement or its own
fraud, wilful misconduct, negligence or bad faith or that of its
directors, officers or employees or servants, including any
failure to obtain and maintain in existence any Authorisation
required by it for the assumption, exercise and performance of
its powers and duties under this agreement.
14. THE NOTE REGISTER
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14.1 APPOINTMENT OF NOTE REGISTRAR
The Trustee appoints Deutsche Bank Trust Company Americas to be the
initial Note Registrar. Deutsche Bank Trust Company Americas accepts
that appointment.
14.2 DETAILS TO BE KEPT ON THE NOTE REGISTER
The Note Registrar shall keep the Note Register with respect to the
Trust in accordance with the terms of this agreement and Note Trust
Deed, on which shall be entered the following information relating to
the Trust:
(a) (NAME) the name of the Trust;
(b) (CREATION) the date of the creation of the Trust;
(c) (ISSUE DATES) the Issue Dates for Class A Notes issued in
relation to the Trust;
(d) (INITIAL INVESTED AMOUNT) the total Initial Invested Amount of
Class A Notes issued on each such Issue Date;
(e) (INVESTED AMOUNT) the Invested Amount of each Class A Note from
time to time;
(f) (STATED AMOUNT) the Stated Amount of each Class A Note from time
to time;
(g) (SERIES) details of relevant Classes of Class A Notes;
(h) (DETAILS OF NOTEHOLDERS) the name and address of each Class A
Noteholder;
(i) (NUMBER OF NOTES) the number of Class A Notes held by each Class
A Noteholder;
(j) (DATE OF ENTRY) the date on which a person was entered as the
holder of Class A Notes;
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(k) (DATE OF CESSATION) the date on which a person ceased to be a
Class A Noteholder;
(l) (ACCOUNT) the account to which any payments due to a Class A
Noteholder are to be made (if applicable);
(m) (PAYMENTS) a record of each payment in respect of the Class A
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 Notes.
14.3 PAYMENTS OF PRINCIPAL AND INTEREST
(a) Any payment of principal or interest on any Class A Note shall be
endorsed by the Note Registrar on the Note Register. In the case
of payments of principal, the Invested Amount of the Class A
Notes shall be reduced for all purposes by the amount so paid and
endorsed on the Note Register. Any such record shall be prima
facie evidence that the payment in question has been made.
(b) If the amount of principal or interest (as the case may be) due
for payment on any Class A Note is not paid in full (including
Carryover Charge Offs and by reason of a deduction or
withholding) the Note Registrar shall endorse a record of that
shortfall on the Note Register.
14.4 PLACE OF KEEPING REGISTER, COPIES AND ACCESS
The Note Register shall be:
(a) (PLACE KEPT) kept at the principal office of the Note Registrar
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 NOTEHOLDERS) open for inspection by the
Note Trustee or a Class A Noteholder during normal business hours
but, in the case of a Class A Noteholder, only in respect of
information relating to that Class A Noteholder; and
(d) (NOT FOR COPYING) not available to be copied by any person (other
than the Trustee, the Manager or the Note Trustee) except in
compliance with such terms and conditions (if any) as the
Manager, the Trustee and the Note Registrar in their absolute
discretion nominate from time to time.
14.5 DETAILS ON NOTE REGISTER CONCLUSIVE
(a) (RELIANCE ON REGISTER) The Trustee shall be entitled to rely on
the Note Register as being a correct, complete and conclusive
record of the matters set out in it at any time and whether or
not the information shown in the Note Register is inconsistent
with any other document, matter or thing. The Trustee is not
liable to any person
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in any circumstances whatsoever for any inaccuracy in, or
omission from, the Note Register.
(b) (NO TRUSTS ETC) The Note Registrar shall not be obliged to enter
on the Note Register notice of any trust, Security Interest or
other interest whatsoever in respect of any Class A Notes and the
Trustee shall be entitled to recognise a Class A Noteholder as
the absolute owner of Class A Notes and the Trustee shall not be
bound or affected by any trust affecting the ownership of any
Class A Notes unless ordered by a court or required by statute.
14.6 ALTERATION OF DETAILS ON NOTE REGISTER
On the Note Registrar being notified of any change of name or address
or payment or other details of a Class A Noteholder by the Class A
Noteholder, the Note Registrar shall alter the Note Register
accordingly.
14.7 RECTIFICATION OF NOTE REGISTER
If:
(a) an entry is omitted from the Note Register;
(b) an entry is made in the Note Register otherwise than in
accordance with this deed;
(c) an entry wrongly exists in the Note Register;
(d) there is an error or defect in any entry in the Note Register; or
(e) default is made or unnecessary delay takes place in entering in
the Note Register that any person has ceased to be the holder of
Class A Notes,
the Note Registrar may rectify the same.
14.8 CORRECTNESS OF NOTE REGISTER
The Note Registrar shall not be liable for any mistake, error or
omission on the Note Register or in any purported copy except to the
extent that the mistake, error or omission is attributable to its
fraud, negligence or wilful default.
15. CHANGES OF NOTE REGISTRAR
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15.1 REMOVAL
The Trustee (or the Manager on its behalf after advising the Trustee)
may terminate the appointment of the Note Registrar with the prior
written approval of the Note Trustee (which approval must not be
unreasonably withheld or delayed), with effect not less than 60 days
from that notice.
15.2 RESIGNATION
Subject to this clause 15 the Note Registrar may resign its appointment
at any time by giving to the Trustee, the Manager and the Note
Registrar not less than 60 days written notice to that effect.
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15.3 LIMITATION
Despite clauses 15.1 and 15.2:
(a) no resignation by or termination of the appointment of the Note
Registrar shall take effect until a new Note Registrar approved
in writing by the Note Trustee has been appointed on terms
previously approved in writing by the Note Trustee (in each case,
that approval not to be unreasonably withheld or delayed); and
(b) the appointment of a new Note Registrar shall be on the terms and
subject to the conditions of this agreement and the outgoing Note
Registrar shall co-operate fully to do all further acts and
things and execute any further documents as may be necessary or
desirable to give effect to the appointment of the new Note
Xxxxxxxxx.
00. GENERAL
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16.1 COMMUNICATIONS TO CLASS A NOTEHOLDERS
The Principal Paying Agent shall, upon receipt from the Trustee,
Manager, Security Trustee or Note Trustee of any communication to be
delivered to Class A Noteholders or Class A Note Owners, including any
communications pursuant to clauses 3.3, 7.1, 18(a), 22.1 or 23.2 of the
Note Trust Deed or any other solicitation of notice from or consent of
the Class A Noteholders or Class A Note Owners pursuant to or relating
to the Note Trust Deed or this agreement, forward such communications
to the Class A Noteholders, along with instructions that the responses
relating to such communications be returned to the Principal Paying
Agent. Such communication shall include the date upon which the
response to such solicitation shall be delivered (the RESPONSE DATE).
The Principal Paying Agent shall treat any Class A Noteholder who has
not delivered its response as of the Response Date as having withheld
its consent to the proposed action. The Principal Paying Agent shall
notify the Trustee, Manager and Note Trustee of the results of any such
solicitations of consent.
16.2 AGENCY
Subject to any other provision of this agreement, each of the Paying
Agents, the Calculation Agent and the Note Registrar (each a NOTE
PARTY) shall act solely for and as agent of the Trustee and shall not
have any obligations towards or relationship of agency or trust with
any person entitled to receive payments of principal and/or interest on
the Class A Notes and shall be responsible only for performance of the
duties and obligations expressly imposed upon it in this agreement.
16.3 IDENTITY
Each Paying Agent shall (except as ordered by a court of competent
jurisdiction or as required by law) be entitled to treat the person:
(a) who is, while a Book-Entry Note remains outstanding, the
registered owner of that Book-Entry Note as the person entitled
to receive payments of principal or interest (as applicable) and
each person shown in the records of the Common Depository as the
holder of any Class A Note represented by a Book-Entry Note shall
be entitled
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to receive from the registered owner of that Book-Entry Note any
payment so made in accordance with the respective rules and
procedures of the Common Depository and on the terms and subject
to the conditions of that Book-Entry Note;
(b) who is the registered owner of any relevant Definitive Note, as
the absolute owner or owners of that Definitive Note, (whether or
not that Definitive Note, is overdue and despite any notice of
ownership or writing on it or any notice of previous loss or
theft or of any trust or other interest in it); or
(c) who, when a Book-Entry Note in respect of any Class A Note is no
longer outstanding but Definitive Notes in respect of the Class
of Class A 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 Noteholders,
and in all cases and for all purposes despite any notice to the
contrary and shall not be liable for so doing.
16.4 NO SET-OFF
No Paying Agent shall exercise any right of set-off, withholding,
counterclaim or lien against, or make any deduction in any payment to,
any person entitled to receive amounts of principal or interest on the
Class A Notes in respect of moneys payable by it under this agreement.
16.5 RELIANCE
Each of the Calculation Agent, the Note Registrar and the Paying
Agent(s) shall be protected and shall incur no liability for or in
respect of any action taken, omitted or suffered by it in reliance upon
any instruction, request or order from the Trustee or the Manager or in
reliance upon any Class A Note or upon any notice, resolution,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been
delivered, signed or sent by the proper party or parties.
16.6 ENTITLED TO DEAL
A Note Party shall not be precluded from acquiring, holding or dealing
in any Class A Notes or from engaging or being interested in any
contract or other financial or other transaction with the Trustee, the
Manager or the Servicer as freely as if it were not an agent of the
Trustee under this agreement and in no event whatsoever (other than
fraud, wilful misconduct, negligence or bad faith) shall any Note Party
be liable to account to the Trustee or any person entitled to receive
amounts of principal or interest on the Class A Notes for any profit
made or fees or commissions received in connection with this agreement
or any Class A Notes.
16.7 CONSULTATION
Each Note Party may, with the consent of the Trustee and the Manager
(such consent not to be unreasonably withheld), consult as to legal
matters with lawyers selected by it, who may be employees of or lawyers
to the Trustee, the Manager or the relevant Paying Agent or the
Calculation Agent.
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16.8 DUTIES
Each Note Party shall perform the duties, and only the duties,
contained in or reasonably incidental to this agreement and the
Conditions and in the Class A Notes, and no implied duties or
obligations (other than general laws as to agency) shall be read into
this agreement, the Class A Notes against any Note Party. A Note Party
shall not be required to take any action under this agreement which
would require it to incur any expense or liability, for which (in its
reasonable opinion) either it would not be reimbursed within a
reasonable time or in respect of which it has not been indemnified to
its satisfaction.
16.9 INCOME TAX RETURNS
The Principal Paying Agent shall, subject always to compliance with
mandatory provisions of law, deliver to each Class A Noteholder such
information as may be reasonably required to enable such Class A
Noteholder to prepare its federal and state income tax returns.
16.10 OBLIGATIONS OF NOTE PARTIES
Each Note Party represents and warrants that it is duly qualified to
assume its obligations under this agreement and has obtained all
necessary approvals required to perform its obligations under this
agreement.
17. CHANGES IN PAYING AGENTS AND CALCULATION AGENT
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17.1 REMOVAL
The Trustee (or the Manager with the consent of the Trustee (such
consent not to be unreasonably withheld)) may at any time:
(a) with the prior written approval of the Note Trustee appoint:
(i) additional or alternative Paying Agents; or
(ii) an alternative Calculation Agent;
(b) subject to this clause 17, terminate the appointment of any
Paying Agent or the Calculation Agent by giving written notice to
that effect to each Designated Rating Agency, the Note Trustee,
the Calculation Agent (if its appointment is to be terminated),
the Principal Paying Agent and (if different) the Paying Agent
whose appointment is to be terminated:
(i) with effect immediately on that notice, if any of the
following occurs in relation to the Paying Agent or
Calculation Agent (as the case may be):
(A) an Insolvency Event has occurred in relation to the
Paying Agent or Calculation Agent;
(B) the Paying Agent or Calculation Agent has ceased its
business;
(C) the Paying Agent or Calculation Agent fails to comply
with any of its obligations under this agreement and,
if capable of remedy, such failure is not remedied
within five days after the earlier of (x) the Paying
Agent or the Calculation Agent, as the case may be,
having
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become aware of that failure and (y) the receipt by
the Paying Agent or the Calculation Agent, as the
case may be, of written notice with respect thereto
from the Trustee or Manager; or
(ii) otherwise, with the prior written approval of the Note
Trustee (which approval must not be unreasonably withheld
or delayed) with effect not less than 60 days' from that
notice, which date shall be not less than 30 days before
nor 30 days after any due date for payment of any Class A
Notes.
17.2 RESIGNATION
Subject to this clause 17, a Paying Agent or the Calculation Agent may
resign its appointment under this agreement at any time by giving to
the Trustee, the Manager, each Designated Rating Agency and (where a
Paying Agent is resigning and the Paying Agent is not the Principal
Paying Agent) the Principal Paying Agent not less than 60 days' written
notice to that effect, which notice shall expire not less than 30 days
before or 30 days after any due date for payment of any Class A Notes.
17.3 LIMITATION
Despite clauses 17.1 and 17.2:
(a) no resignation by or termination of the appointment of the
Principal Paying Agent shall take effect until a new Principal
Paying Agent approved in writing by the Note Trustee has been
appointed on terms previously approved in writing by the Note
Trustee (in each case, that approval not to be unreasonably
withheld or delayed);
(b) subject to clause 17.3(a), if any Paying Agent or the Calculation
Agent resigns in accordance with clause 17.2, but by the day
falling 15 days before the expiry of any notice under clause 17.2
the Trustee or the Manager has not appointed a new Paying Agent
or Calculation Agent then the relevant Paying Agent or
Calculation Agent (as the case may be) may appoint in its place
any reputable bank or trust company of good standing approved in
writing by the Note Trustee and appointed on terms previously
approved in writing by the Note Trustee (in each case, that
approval not to be unreasonably withheld or delayed);
(c) no resignation by or termination of the appointment of any Paying
Agent shall take effect if as a result of that resignation or
termination there would cease to be a Paying Agent which has a
Paying Office in New York City, California or such other
jurisdiction as the Paying Agent, the Manager and the Trustee may
agree from time to time;
(d) no appointment or termination of the appointment of any Paying
Agent or the Calculation Agent (as the case may be) shall take
effect unless and until notice has been given to the Class A
Noteholders in accordance with the Conditions;
(e) no resignation by or termination of the appointment of the
Calculation Agent shall take effect until a new Calculation Agent
having its Specified Office in New York City, California or such
other jurisdiction as the Calculation Agent, the Manager and the
Trustee may agree from time to time has been appointed; and
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(f) the appointment of any additional Paying Agent shall be on the
terms and subject to the conditions of this agreement and each of
the parties to this agreement shall co-operate fully to do all
further acts and things and execute any further documents as may
be necessary or desirable to give effect to the appointment of
the Paying Agent (which shall be, in the case of an appointment
under clause 17.1(a) or a termination under clause 17.1(b)(ii),
at the cost of the relevant Paying Agent).
In addition, the Trustee shall forthwith appoint a Paying Agent in New
York City in the circumstances described in Condition 6(b) in any Note
(if there is no such Paying Agent at the time) and while such
circumstances subsist maintain such a Paying Agent. Notice of any such
termination or appointment and of any change in the office through
which any Paying Agent will act will be given in accordance with
Condition 12.
17.4 DELIVERY OF AMOUNTS
If the appointment of the Principal Paying Agent terminates, the
Principal Paying Agent shall, on the date on which that termination
takes effect, pay to the successor Principal Paying Agent any amount
held by it for payment of principal or interest in respect of any Class
A Note and shall deliver to the successor Principal Paying Agent all
records maintained by it pursuant to this agreement and all documents
(including any Definitive Notes) held by it.
17.5 SUCCESSOR TO PRINCIPAL PAYING AGENT
(a) On the execution by the Trustee, the Manager and any successor
Principal Paying Agent of an instrument effecting the appointment
of that successor Principal Paying Agent, that successor
Principal Paying Agent shall, without any further act, deed or
conveyance, become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of its predecessor
with effect as if originally named as Principal Paying Agent in
this agreement and that predecessor, on payment to it of the pro
rata proportion of its administration fee and disbursements then
unpaid (if any), shall have no further liabilities under this
agreement, except for any accrued liabilities arising from or
relating to any act or omission occurring prior to the date on
which the successor Principal Paying Agent is appointed.
(b) Any corporation:
(i) into which the Principal Paying Agent is merged;
(ii) with which the Principal Paying Agent is consolidated;
(iii) resulting from any merger or consolidation to which the
Principal Paying Agent is a party; or
(iv) to which the Principal Paying Agent sells or otherwise
transfers all or substantially all the assets of its
corporate trust business,
shall, on the date when that merger, conversion, consolidation,
sale or transfer becomes effective and to the extent permitted by
applicable law, become the successor Principal Paying Agent under
this agreement without the execution or filing of any agreement
or document or any further act on the part of the parties to
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this agreement, unless otherwise required by the Trustee or the
Manager, and after that effective date all references in this
agreement to the Principal Paying Agent shall be references to
that corporation.
17.6 SUCCESSOR TO CALCULATION AGENT
(a) On the execution by the Trustee, the Manager and any successor
Calculation Agent of an instrument effecting the appointment of
that successor Calculation Agent, that successor Calculation
Agent shall, without any further act, deed or conveyance, become
vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of its predecessor with effect
as if originally named as Calculation Agent in this agreement and
that predecessor, on payment to it of the pro rata proportion of
its administration fee and disbursements then unpaid (if any),
shall have no further liabilities under this agreement, except
for any accrued liabilities arising from or relating to any act
or omission occurring prior to the date on which the successor
Calculation Agent is appointed.
(b) Any corporation:
(i) into which the Calculation Agent is merged;
(ii) with which the Calculation Agent is consolidated;
(iii) resulting from any merger or consolidation to which the
Calculation Agent is a party; or
(iv) to which the Calculation Agent sells or otherwise transfers
all or substantially all the assets of its corporate trust
business,
shall, on the date when that merger, conversion, consolidation,
sale or transfer becomes effective and to the extent permitted by
applicable law, become the successor Calculation Agent under this
agreement without the execution or filing of any agreement or
document or any further act on the part of the parties to this
agreement, unless otherwise required by the Trustee or the
Manager, and after that effective date all references in this
agreement to the Calculation Agent shall be references to that
corporation.
17.7 SUCCESSOR TO NOTE REGISTRAR
(a) On the execution by the Trustee, the Manager and any successor
Note Registrar of an instrument effecting the appointment of that
successor Note 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:
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(i) into which the Note Registrar is merged;
(ii) with which the Note Registrar is consolidated;
(iii) resulting from any merger or consolidation to which the
Note Registrar is a party; or
(iv) to which the Note Registrar sells or otherwise transfers
all or substantially all the assets of its corporate trust
business,
shall, on the date when that merger, conversion, consolidation,
sale or transfer becomes effective and to the extent permitted by
applicable law, become the successor Note Registrar under this
agreement without the execution or filing of any agreement or
document or any further act on the part of the parties to this
agreement, unless otherwise required by the Trustee or the
Manager, and after that effective date all references in this
agreement to the Note Registrar shall be references to that
corporation.
17.8 NOTICE TO CLASS A NOTEHOLDERS
The Manager on behalf of the Trustee shall, within 14 days of:
(a) the termination of the appointment of any Paying Agent, the Note
Registrar or the Calculation Agent;
(b) the appointment of a new Paying Agent, the Note Registrar or
Calculation Agent; or
(c) the resignation of any Paying Agent or Calculation Agent,
give to the Class A Noteholders notice of the termination, appointment
or resignation in accordance with Condition 12 (in the case of a
termination under clause 17.1(b)(i) or 17.2 at the cost of the outgoing
Paying Agent or the Calculation Agent, as the case may be).
17.9 CHANGE IN PAYING OFFICE OR SPECIFIED OFFICE
(a) If any Paying Agent proposes to change its Paying Office or to
nominate a further Paying Office (which must be in New York City,
California or such other jurisdiction as the Paying Agent, the
Manager and the Trustee may agree from time to time), it must
give to the Trustee, the Manager, the Note Trustee, the Class A
Noteholders (which notice, in the case of the Class A
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. No change of
Paying Office may occur within the period between 30 days before
and 30 days after any due date for payment of any Class A Notes.
(b) If the Calculation Agent proposes to change its Specified Office
(which must be in New York City, California or such other
jurisdiction as the Calculation Agent, the Manager and the
Trustee may agree from time to time), or to nominate a further
Specified Office, it must give to the Trustee, the Manager, the
Class A Noteholders (which notice, in the case of the Class A
Noteholders, must be given in accordance with Condition 12) and
the Note Trustee, not less than 30 days' prior written notice
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of that change, giving the address of the new Specified Office
and stating the date on which the change is to take effect. No
change of specified office may occur within the period between 30
days before and 30 days after any due date for payment of any
Class A Notes.
(c) The Manager, on behalf of the Trustee, must, within 14 days of
receipt of a notice under paragraph (a) (unless the appointment
is to terminate pursuant to clause 17.1 or 17.2 on or prior to
the date of that change) give to the Class A Noteholders notice
in accordance with the Conditions of that change and of the
address of the new Paying Office or Specified Office (as the case
may be) but the costs of giving that notice shall be borne by the
Paying Agent or the Calculation Agent (as the case may be) which
is changing its Paying Office and not by the Trustee or the
Manager.
18. FEES AND EXPENSES
--------------------------------------------------------------------------------
(a) The Trustee shall pay to the Principal Paying Agent during the
period when any of the Class A Notes remain outstanding the
administration fee separately agreed by the Principal Paying
Agent, the Manager and the Trustee, together with any
out-of-pocket expenses reasonably incurred (including any legal
fees and expenses). If the appointment of the Principal Paying
Agent is terminated under this agreement, the Principal Paying
Agent must refund to the Trustee that proportion of the fee (if
any) which relates to the period during which the Principal
Paying Agent will not be the Principal Paying Agent.
(b) The Trustee shall pay to the Calculation Agent during the period
when any of the Class A Notes remain outstanding the fee
separately agreed by the Calculation Agent, the Manager and the
Trustee, together with any out-of-pocket expenses reasonably
incurred (including any legal fees and expenses). If the
appointment of the Calculation Agent is terminated under this
agreement, the Calculation Agent must refund to the Trustee that
proportion of the fee (if any) which relates to the period during
which the Calculation Agent will not be the Calculation Agent.
(c) The Trustee shall pay to the Note Registrar during the period
when any of the Class A Notes remain outstanding the fee
separately agreed by the Note Registrar and the Trustee, together
with any out-of-pocket expenses reasonably incurred (including
any legal fees and expenses). If the appointment of the Note
Registrar is terminated under this agreement, the Note Registrar
must refund to the Trustee that proportion of the fee (if any)
which relates to the period during which the Note Registrar will
not be the Note Registrar.
(d) Save as provided in paragraphs (a), (b) and (c), or as expressly
provided elsewhere in this agreement, neither the Trustee nor the
Manager shall have any liability in respect of any fees or
expenses of the Calculation Agent, Principal Paying Agent, any
other Paying Agent or the Note Registrar in connection with this
agreement.
(e) The above fees, payments and expenses shall be paid in Australian
dollars and the Trustee shall in addition pay any goods and
services tax which may be applicable. The Principal Paying Agent
shall arrange for payment of commissions to the other
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Paying Agents and arrange for the reimbursement of their expenses
promptly upon demand, supported by evidence of that expenditure,
and provided that payment is made as required by paragraph (a)
the Trustee shall not be concerned with or liable in respect of
that payment.
19. WAIVERS, REMEDIES CUMULATIVE
--------------------------------------------------------------------------------
(a) No failure to exercise and no delay in exercising any right,
power or remedy under this agreement operates as a waiver. Nor
does any single or partial exercise of any right, power or remedy
preclude any other or further exercise of that or any other
right, power or remedy.
(b) The rights, powers and remedies provided to a party in this
agreement are in addition to, and do not exclude or limit, any
right, power or remedy provided by law.
20. SEVERABILITY OF PROVISIONS
--------------------------------------------------------------------------------
Any provision of this agreement which is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the extent
of the prohibition or unenforceability. That does not invalidate the
remaining provisions of this agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
21. ASSIGNMENTS
--------------------------------------------------------------------------------
No party may assign or transfer any of its rights or obligations under
this agreement without the prior written consent of the other parties,
or if the rating of the Class A Notes would be withdrawn or reduced as
a result of the assignment, except for the creation of a charge by the
Trustee under the Security Trust Deed. A party who assigns or transfers
any of its rights or obligations under this agreement must promptly
notify each Designated Rating Agency of that assignment.
22. NOTICES
--------------------------------------------------------------------------------
22.1 GENERAL
All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and (c)
will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the recipient
shown in clause 22.2 or to any other address notified by
the recipient to the sender under this clause 22;
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(ii) (in the case of facsimile transmission) on receipt of a
transmission report confirming successful transmission to
the number shown in clause 22.2 or any other number
notified by the recipient to the sender under this clause
22; and
(iii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission
to the number shown in clause 22.2 or any other number
notified by the recipient to the sender under this clause
22,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is
sent or is later than 5:00 pm (local time), it will be taken to
have been duly given or made at the commencement of business on
the next day on which business is generally carried on in that
place.
Any party may by notice to each party change its address, facsimile,
telex or telephone number under this clause 22.1.
22.2 DETAILS
The address, facsimile and telex of each party at the date of this
agreement are as follows:
THE TRUSTEE
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxx Xxxxx 0000
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Manager Securitisation
THE MANAGER
CRUSADE MANAGEMENT LIMITED
0-00 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxx Xxxxx 0000
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Executive Manager, Securitisation
THE PRINCIPAL PAYING AGENT
DEUTSCHE BANK TRUST COMPANY AMERICAS
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Tel: 000 000 0000
Fax: 000 000 0000
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Attention: Trust Administration STO302
THE CALCULATION AGENT
DEUTSCHE BANK TRUST COMPANY AMERICAS
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Tel: 000 000 0000
Fax: 000 000 0000
Attention: Trust Administration STO302
THE NOTE TRUSTEE
WILMINGTON TRUST COMPANY
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
XXXXXXXXXX XXXXXXXX 00000-0000
Tel: 000 000 0000
Fax: 000 000 0000
Attention: Xxxxxxxx Xxxxxxx
THE NOTE REGISTRAR
DEUTSCHE BANK TRUST COMPANY AMERICAS
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Tel: 000 000 0000
Fax: 000 000 0000
Attention: Trust Administration STO302
And solely for purposes of transfer, the Note Registrar shall act
through the offices of its agent, DTC Transfer Agent Services, at 00
Xxxxx Xxxxxx, Xxxxxxxx Xxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
22.3 COMMUNICATION THROUGH PRINCIPAL PAYING AGENT
All communications relating to this agreement between the Trustee or
the Manager, Note Registrar and the Calculation Agent and any of the
Paying Agents or between the Paying Agents themselves shall, save as
otherwise provided in this agreement, be made through the Principal
Paying Agent.
23. LIMITED RECOURSE
--------------------------------------------------------------------------------
23.1 GENERAL
Clause 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Manager under this agreement.
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23.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT TO INDEMNITY
(a) The Trustee enters into this agreement only in its capacity as
trustee of the Trust and in no other capacity (except where the
Transaction Documents provide otherwise). Subject to paragraph
(c) below, a liability arising under or in connection with this
agreement or the Trust can be enforced against the Trustee only
to the extent to which it can be satisfied out of the assets and
property of the Trust which are available to satisfy the right of
the Trustee to be exonerated or indemnified for the liability.
This limitation of the Trustee's liability applies despite any
other provision of this agreement and extends to all liabilities
and obligations of the Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this agreement or the Trust.
(b) Subject to paragraph (c) below, no person (including any Relevant
Party) may take action against the Trustee in any capacity other
than as trustee of the Trust or seek the appointment of a
receiver (except under the Security Trust Deed), or a liquidator,
an administrator or any similar person to the Trustee or prove in
any liquidation, administration or arrangement of or affecting
the Trustee.
(c) The provisions of this clause 23.2 shall not apply to any
obligation or liability of the Trustee to the extent that it is
not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Trustee's indemnification or exoneration out of the Assets of the
Trust as a result of the Trustee's fraud, negligence, or Default.
(d) It is acknowledged that the Relevant Parties are responsible
under this agreement or the other Transaction Documents for
performing a variety of obligations relating to the Trust. No act
or omission of the Trustee (including any related failure to
satisfy its obligations under this agreement) will be considered
fraud, negligence or Default of the Trustee for the purpose of
paragraph (c) above to the extent to which the act or omission
was caused or contributed to by any failure by any Relevant Party
or any person who has been delegated or appointed by the Trustee
in accordance with the Transaction Documents to fulfil its
obligations relating to the Trust or by any other act or omission
of a Relevant Party or any such person.
(e) In exercising their powers under the Transaction Documents, each
of the Trustee, the Security Trustee and the Class A Noteholders
must ensure that no attorney, agent, delegate, receiver or
receiver and manager appointed by it in accordance with this
agreement or any other Transaction Documents has authority to act
on behalf of the Trustee in a way which exposes the Trustee to
any personal liability and no act or omission of any such person
will be considered fraud, negligence, or Default of the Trustee
for the purpose of paragraph (c) above.
(f) In this clause, RELEVANT PARTIES means each of the Manager, the
Servicer, the Custodian, the Calculation Agent, each Paying
Agent, the Note Trustee, the Note Registrar and the provider of
any Support Facility.
(g) Nothing in this clause limits the obligations expressly imposed
on the Trustee under the Transaction Documents.
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23.3 UNRESTRICTED REMEDIES
Nothing in clause 23.2 limits a Paying Agent or the Calculation Agent
in:
(a) obtaining an injunction or other order to restrain any breach of
this agreement by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
23.4 RESTRICTED REMEDIES
Except as provided in clauses 23.3 and 23.2(c) neither any Paying
Agent nor the Calculation Agent shall:
(a) (JUDGMENT) obtain a judgment for the payment of money or damages
by the Trustee;
(b) (STATUTORY DEMAND) issue any demand under section 459E(1) of the
Corporations Xxx 0000 (Cth) (or any analogous provision under any
other law) against the Trustee;
(c) (WINDING UP) apply for the winding up or dissolution of the
Trustee;
(d) (EXECUTION) levy or enforce any distress or other execution to,
on, or against any assets of the Trustee;
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a court
of a receiver to any of the assets of the Trustee;
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Trustee; or
(g) (ADMINISTRATOR) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and each Paying Agent and the
Calculation Agent waives its rights to make those applications and take
those proceedings.
24. COUNTERPARTS
--------------------------------------------------------------------------------
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
25. GOVERNING LAW
--------------------------------------------------------------------------------
This agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of the courts exercising
jurisdiction there.
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26. SUCCESSOR TRUSTEE
--------------------------------------------------------------------------------
Each Paying Agent shall do all things reasonably necessary to enable
any successor Trustee appointed under clause 20 of the Master Trust
Deed to become the Trustee under this agreement.
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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 by DEUTSCHE BANK TRUST COMPANY AMERICAS
in the presence of:
-------------------------------------- --------------------------------------
Witness Signature Signature
-------------------------------------- --------------------------------------
Print Name Print Name
-------------------------------------- --------------------------------------
Witness Signature Signature
-------------------------------------- --------------------------------------
Print Name Print Name
NOTE TRUSTEE
SIGNED by WILMINGTON TRUST COMPANY in the presence of:
-------------------------------------- --------------------------------------
Witness Signature Signature
-------------------------------------- --------------------------------------
Print Name Print Name
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CALCULATION AGENT
SIGNED by DEUTSCHE BANK TRUST COMPANY AMERICAS
in the presence of:
-------------------------------------- --------------------------------------
Witness Signature Signature
-------------------------------------- --------------------------------------
Print Name Print Name
-------------------------------------- --------------------------------------
Witness Signature Signature
-------------------------------------- --------------------------------------
Print Name Print Name
NOTE REGISTRAR
SIGNED by DEUTSCHE BANK TRUST COMPANY AMERICAS
in the presence of:
-------------------------------------- --------------------------------------
Witness Signature Signature
-------------------------------------- --------------------------------------
Print Name Print Name
-------------------------------------- --------------------------------------
Witness Signature Signature
-------------------------------------- --------------------------------------
Print Name Print Name
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