▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
ALLENS ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GROUP
Agency Agreement
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AXA Trustees Limited
(Trustee)
Crusade Management Limited
(Manager)
Midland Bank plc
(Principal Paying Agent)
Bankers Trust Company
(Note Trustee)
Midland Bank plc
(Calculation Agent)
Midland Bank plc
(Note Registrar)
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
The Chifley Tower
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Tel ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
(C) Copyright ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ 1999
Agency Agreement ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
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Table of Contents
1. Definitions and Interpretation 2
1.1 Definitions 2
1.2 Note Trust Deed definitions 3
1.3 Interpretation 3
1.4 Document or agreement 3
1.5 Transaction Document 4
1.6 Trustee as trustee 4
2. Appointment of Paying Agents 4
3. Payment 5
3.1 Payment by Trustee 5
3.2 Confirmation 5
3.3 Payments by Paying Agents 5
3.4 Method of Payment - Book-Entry Notes 5
3.5 Method of payment - Definitive Notes 5
3.6 Late payment 5
3.7 Notice of non-receipt 6
3.8 Reimbursement 6
3.9 Method of payment 6
3.10 No fee 7
3.11 Trust 7
4. Repayment 7
5. Appointment of the Calculation Agent 8
6. Duties of the Calculation Agent 8
7. Note Trustee 9
8. Early Redemption of Notes 10
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9. Pro Rata Redemption, Purchases and Cancellation of Notes 11
10. Notices to Noteholders 12
11. Documents and Forms 13
12. Authentication 13
13. Indemnity 13
14. The Note Register 14
14.1 Appointment of Note ▇▇▇▇▇▇▇▇▇ ▇▇
14.2 Details to be kept on the Note Register 14
14.3 Payments of Principal and Interest 15
14.4 Place of keeping Register, copies and access 15
14.5 Details on Note Register conclusive 16
14.6 Alteration of details on Note Register 16
14.7 Rectification of Note Register 16
14.8 Correctness of Note Register 17
15. Changes of Note ▇▇▇▇▇▇▇▇▇ ▇▇
15.1 Removal 17
15.2 Resignation 17
15.3 Limitation 17
16. General 17
16.1 Communications to Class A Noteholders 17
16.2 Agency 18
16.3 Identity 18
16.4 No set-off 18
16.5 Reliance 19
16.6 Entitled to deal 19
16.7 Consultation 19
16.8 Duties 19
16.9 Income Tax Returns 19
16.10 Obligations of Note Parties 19
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17. Changes in Paying Agents and Calculation Agent 20
17.1 Removal 20
17.2 Resignation 20
17.3 Limitation 21
17.4 Delivery of amounts 22
17.5 Successor to Principal Paying Agent 22
17.6 Successor to Calculation Agent 22
17.7 Notice to Noteholders 23
17.8 Change in Paying Office or Specified Office 23
18. Fees and Expenses 24
19. Waivers, Remedies Cumulative 25
20. Severability of Provisions 25
21. Assignments 25
22. Notices 26
22.1 General 26
22.2 Details 26
22.3 Communication through Principal Paying Agent 28
23. Limited Recourse 28
23.1 General 28
23.2 Liability of Trustee limited to its right to indemnity 28
23.3 Unrestricted remedies 29
23.4 Restricted remedies 30
24. Counterparts 30
25. Governing Law 30
26. Successor Trustee 30
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Date
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Parties
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1. AXA TRUSTEES LIMITED (ACN 004 029 841) incorporated in Victoria
of ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇ in its capacity as trustee of the Crusade Global Trust No.
1 of 1999 (the Trustee);
2. CRUSADE MANAGEMENT LIMITED (ACN 072 715 916) incorporated in New
South Wales of ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, as Manager in relation to the Crusade Global Trust No. 1
of 1999 (the Manager);
3. MIDLAND BANK PLC acting through its office at HSBC Issuer
Services, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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. BANKERS TRUST COMPANY acting through its office at ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as trustee for
the 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); and
5. MIDLAND BANK PLC acting through its office at HSBC Issuer
Services, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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).
6. MIDLAND BANK PLC acting through its office at HSBC Issuer
Services, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ as note registrar in relation to the Notes described
below (the Note Registrar) which expression shall, whenever the
context requires, include any successor note registrar from time
to time).
Recitals
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A The Trustee proposes to issue US$1,000,000,000 of Class A
mortgage backed pass through floating rate Notes comprising
US$300,000,000 Class A-1 Notes (Class A-1 Notes) due on the
Quarterly Payment Date falling in August 2009, US$569,000,000
Class A-2 Notes (Class A-2 Notes) due on the Quarterly Payment
Date falling in May 2021,
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US$125,000,000 Class A-3 Notes (Class A-3 Notes) due on the
Quarterly Payment Date falling in February 2030 and the A$
equivalent of US$6,000 000 Class B Notes due on the Quarterly
Payment Date falling in February 2030.
B Each Class of 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 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 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 Notes 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, ▇▇.▇▇▇▇▇▇
Bank Limited and the Manager.
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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 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.
Trust means the trust known as the Crusade Global Trust No. 1 of 1999
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.
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1.5 Transaction Document
This agreement is a Transaction Document for the purposes of the Master
Trust Deed.
1.6 Trustee as trustee
(a) In this agreement, except where provided to the contrary:
(i) a reference to the Trustee is a reference to the
Trustee in its capacity as trustee of the Trust only,
and in no other capacity; and
(ii) a reference to the assets, business, property or
undertaking of the Trustee is a reference to the
assets, business, property or undertaking of the
Trustee only in the capacity described in
sub-paragraph (i) above.
(b) The rights and obligations of the parties under this agreement
relate only to the Trust, and do not relate to any other Trust
(as defined in the Master Trust Deed).
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 negligent act or negligent omission of
the Principal Paying Agent or any other Paying Agent.
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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 10.00 am (London time) on each Payment Date,
pay to or to the order of, or procure payment to or to the order of,
the Principal Paying Agent (including where relevant in clause 3.9) the
amount in 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 of Class A Notes on that Payment Date under the
Supplementary Terms Notice and the Conditions.
3.2 Confirmation
Not later than 4.00 pm (Sydney time) on each Determination Date, the
Manager on behalf of the Trustee shall notify, or procure notification
to, the Principal Paying Agent and the Note Trustee of the amount of
interest or principal payable in respect of each Class of 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
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 each Class 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
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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.
3.7 Notice of non-receipt
The Principal Paying Agent shall immediately notify by telex or
facsimile (if appropriate) the other Paying Agents (if any), the Note
Trustee, the Trustee, the Security Trustee 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
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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 that the Principal Paying Agent has paid the
relevant amount to the Common Depository.
(b) Subject to the terms of this agreement, the Principal Paying
Agent shall be entitled to deal with moneys paid to it under
this agreement in the same manner as other moneys paid to it
as a banker by its customers. The Principal Paying Agent shall
be entitled to retain for its own account any interest earned
on the sums from time to time credited to the separate account
referred to in paragraph (a) and it need not segregate such
sums from other amounts held by it.
3.10 No fee
Subject to clause 18, no Paying Agent will charge any commission or fee
in relation to any payment under this agreement.
3.11 Trust
The Principal Paying Agent shall hold in trust for the Note Trustee and
the Class A Noteholders all sums held by it for the payment of
principal and interest with respect to the 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 rated 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.
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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
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
negligent act or negligent omission of the
Calculation Agent.
6. Duties of the Calculation Agent
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(a) The Calculation Agent shall in relation to each Class of 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 in London
as are set forth in this agreement and in the
Conditions and any other duties which are reasonably
incidental at the request of the Trustee, the
Manager, the Note Trustee or the Principal Paying
Agent;
(ii) determine LIBOR for each Interest Period, and
calculate the relevant Interest and Interest Rate on
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 telex or 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
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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 for any reason does not
determine the Interest Rate or calculate the Interest for a
Class A 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.
(d) If the Manager does not at any time 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 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:
(i) by notice in writing 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
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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) 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 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 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 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 a
Class of Class A Notes prior to its Final Maturity Date
pursuant to Condition
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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 relevant Class A
Noteholders in accordance with Condition 5(i) or 5(j) and
stating the date on which such 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 each Class of
Class A Notes to be redeemed;
(B) the amount of principal to be repaid in
relation to each Class of Class A Notes; and
(C) the date on which each Class of 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
-------------------------------------------------------------------------------
(a) If the Trustee is required to redeem some (but not all) of a
Class of 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, the
Class of Class A Notes to be redeemed and the date on which
such Class A Notes are to be redeemed.
(c) For so long as the Class A Notes are listed on the London
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 London Stock Exchange (if required).
(d) The Manager shall, on (or as soon as practicable after) each
Determination Date in respect of each Class of the Class A
Notes, calculate:
(i) the amount of principal to be repaid in respect of
each Class of Class A Notes due on the Payment Date
next following that Determination Date;
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(ii) the Stated Amount and Invested Amount of each 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
(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 and (for so long as the Class A Notes are listed
on the London Stock Exchange) the London Stock Exchange 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 Condition 12 by one Business Day before the
relevant Payment Date.
(f) 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.
(g) If any Class of 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) 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.
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(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 (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 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 and the Calculation Agent against
any loss, damages, proceeding, liability, cost, claim, action,
demand or expense (in this clause 15, each, an Expense) which
the Paying Agent or the Calculation Agent, as the case may be,
may incur or which may be made against the Paying Agent or the
Calculation Agent (as the case may be), as a result of or in
connection with the Paying Agent's or the Calculation Agent's,
as the case may be, appointment or the proper exercise of the
Paying Agent's or the Calculation Agent's, as the case may be,
powers and proper performance of the Paying Agent's or the
Calculation Agent's, as the case may be, duties under this
agreement, notwithstanding the resignation or removal of that
Paying Agent or the Calculation Agent in accordance with
clause 17 (including any liability in respect of payment of a
cheque drawn by that Paying Agent 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).
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(b) The indemnity in paragraph (a) applies to any Expense of a
Paying Agent 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 or the Calculation Agent
(as the case may be) of the terms of this agreement
or from the Paying Agent'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 or the Calculation Agent (as the
case may be) gives notice of the Expense to the
Trustee and the Manager as soon as the Paying Agent
or the Calculation Agent (as the case may be) becomes
aware of the Expense; and
(iii) if and whenever the Trustee or the Manager so
requires, the Paying Agent 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, 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 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 Midland Bank plc to be the initial Note Registrar.
Midland Bank plc 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 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;
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(e) (Invested Amount) the Invested Amount of each Class A Note or
Class of Class A Notes from time to time;
(f) (Stated Amount) the Stated Amount of each Class A Note or
Class of Class A Notes 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;
(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.
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 and the Auditor of the Trust to inspect during normal
business hours;
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(c) (inspection by Class A Noteholders) open for inspection by a
Class A Noteholder during normal business hours but 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 or the Manager) except in compliance
with such terms and conditions (if any) as the Manager, the
Trustee and the Note Registrar in their absolute discretion
nominate from time to time.
14.5 Details on Note Register conclusive
(a) (Reliance on Register) The Trustee shall be entitled to rely
on the Note Register as being a correct, complete and
conclusive record of the matters set out in it at any time and
whether or not the information shown in the Note Register is
inconsistent with any other document, matter or thing. The
Trustee is not liable to any person in any circumstances
whatsoever for any inaccuracy in, or omission from, the Note
Register.
(b) (No trusts etc) The Note Registrar shall not be obliged to
enter on the Note Register notice of any trust, Security
Interest or other interest whatsoever in respect of any Class
A 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.
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14.8 Correctness of Note Register
The Note Registrar shall not be liable for any mistake on the Note
Register or in any purported copy except to the extent that the mistake
is attributable to its fraud, negligence or wilful default.
15. Changes of Note Registrar
------------------------------------------------------------------------------
15.1 Removal
The Trustee (or the Manager on its behalf after advising the Trustee)
may terminate the appointment of the Note Registrar with the prior
written approval of the Note Trustee (which approval must not be
unreasonably withheld or delayed), with effect not less than 60 days
from that notice.
15.2 Resignation
Subject to this clause 15 the Note Registrar may resign its appointment
at any time by giving to the Trustee, the Manager and the Note
Registrar not less than 60 days written notice to that effect.
15.3 Limitation
Despite clauses 15.1 and 15.2:
(a) no resignation by or termination of the appointment of the
Note Registrar shall take effect until a new Note Registrar
approved in writing by the Note Trustee has been appointed on
terms previously approved in writing by the Note Trustee (in
each case, that approval not to be unreasonably withheld or
delayed); and
(b) the appointment of a new Note Registrar shall be on terms 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 ▇▇▇▇▇▇▇▇▇.
▇▇. General
-------------------------------------------------------------------------------
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 Note Owners, including any
communications pursuant to clauses 3.3, 7.1 18(a), 22.1, 23.2 or
32.2(b) 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
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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 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 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 of Notes
is no longer outstanding but Definitive Notes in respect of
that Class of 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 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.
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16.5 Reliance
Each of the Calculation Agent 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.
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 deliver to each Class A Noteholder
such information as may be reasonably required to enable such Class A
Noteholder to prepare its 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.
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17. Changes in Paying Agents and Calculation Agent
-------------------------------------------------------------------------------
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
Calculation Agent (if its appointment is to be terminated),
the Principal Paying Agent and (if different) the Paying Agent
whose appointment is to be terminated:
(i) with effect immediately on that notice, if any of the
following occurs in relation to the Paying Agent or
Calculation Agent (as the case may be):
(A) an Insolvency Event has occurred in relation
to the Paying Agent or Calculation Agent;
(B) the Paying Agent or Calculation Agent has
ceased its business;
(C) the Paying Agent or Calculation Agent fails
to comply with any of its obligations under
this Agreement and, if capable of remedy,
such failure is not remedied within five
days after the earlier of (x) the Paying
Agent or the Calculation Agent, as the case
may be, having become aware of that failure
and (y) the receipt by the Paying Agent or
the Calculation Agent, as the case may be,
of written notice with respect thereto from
the Trustee or Manager; or
(ii) otherwise, with the prior written approval of the
Note Trustee (which approval must not be unreasonably
withheld or delayed) with effect not less than 60
days' from that notice, which date shall be not less
than 30 days before nor 30 days after any due date
for payment of any Class A 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.
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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 the City of New York and
the City of London;
(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; and
(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 the City of London has
been appointed; and
(f) the appointment of any additional Paying Agent shall be on the
terms and subject to the conditions of this agreement and each
of the parties to this agreement shall co-operate fully to do
all further acts and things and execute any further documents
as may be necessary or desirable to give effect to the
appointment of the Paying Agent (which shall be, in the case
of an appointment under clause 17.1(a) or a termination under
clause 17.1(b)(ii), at the cost of the relevant Paying Agent).
In addition, the Trustee shall forthwith appoint a Paying Agent in New
York City in the circumstances described in Condition 6(b) in any Note
(if there is no such Paying Agent at the time) and while such
circumstances subsist maintain such a Paying Agent. Notice of any such
termination or appointment and of any change in the office through
which any Paying Agent will act will be given in accordance with
Condition 12.
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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;
(iv) to which the Principal Paying Agent sells or
otherwise transfers all or substantially all the
assets of its corporate trust business,
shall, on the date when that merger, conversion,
consolidation, sale or transfer becomes effective and to the
extent permitted by applicable law, become the successor
Principal Paying Agent under this agreement without the
execution or filing of any agreement or document or any
further act on the part of the parties to this agreement,
unless otherwise required by the Trustee or the Manager, and
after that effective date all references in this agreement to
the Principal Paying Agent shall be references to that
corporation.
17.6 Successor to Calculation Agent
(a) On the execution by the Trustee, the Manager and any successor
Calculation Agent of an instrument effecting the appointment
of that successor Calculation Agent, that successor
Calculation Agent shall, without any further act, deed or
conveyance, become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of its
predecessor with effect as if originally named as Calculation
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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.
17.7 Notice to Noteholders
The Manager on behalf of the Trustee shall, within 14 days of:
(a) the termination of the appointment of any Paying Agent or the
Calculation Agent;
(b) the appointment of a new Paying Agent 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).
17.8 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 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 Notes.
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(b) If the Calculation Agent proposes to change its Specified
Office (which must be in the City of London), or to nominate a
further Specified Office, it must give to the Trustee, the
Manager and the Note Trustee, not less than 30 days' prior
written notice of that change, giving the address of the new
Specified Office and stating the date on which the change is
to take effect. No change of specified office may occur within
the period between 30 days before and 30 days after any due
date for payment of any Class A 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.
(d) Despite any other provision of this agreement, no Paying
Office may be located in Australia.
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
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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) and (b), 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
Value Added Tax which may be applicable. The Principal Paying
Agent shall arrange for payment of commissions to the other
Paying Agents and arrange for the reimbursement of their
expenses promptly upon demand, supported by evidence of that
expenditure, and provided that payment is made as required by
paragraph (a) the Trustee shall not be concerned with or
liable in respect of that payment.
19. Waivers, Remedies Cumulative
------------------------------------------------------------------------------
(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.
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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 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
(ii) (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
AXA TRUSTEES LIMITED
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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The Manager
CRUSADE MANAGEMENT LIMITED
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Telex: AA73550
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Executive Manager, Securitisation
The Principal Paying Agent
MIDLAND BANK PLC
HSBC Issuer Services
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: [*]
Telex: [*]
Fax: [*]
SWIFT: [*]
Attention: [*]
The Calculation Agent
MIDLAND BANK PLC
HSBC Issuer Services
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: [*]
Telex: [*]
Fax: [*]
SWIFT: [*]
Attention: [*]
The Note Trustee
BANKERS TRUST COMPANY
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: [*]
Telex: [*]
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Fax: [*]
SWIFT: [*]
Attention: [*]
The Note Registrar
MIDLAND BANK PLC
HSBC Issuer Services
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: [*]
Telex: [*]
Fax: [*]
SWIFT: [*]
Attention: [*]
22.3 Communication through Principal Paying Agent
All communications relating to this agreement between the Trustee or
the Manager 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.
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
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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 arrangements 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 and the provider of any Support
Facility.
(g) Nothing in this clause limits the obligations expressly
imposed on the Trustee under the Transaction Documents.
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.
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23.4 Restricted remedies
Except as provided in clauses 23.3 and 23.2(iii) 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 s459E(1) of the
Corporations Law (or any analogous provision under any other
law) against the Trustee;
(c) (winding up) apply for the winding up or dissolution of the
Trustee;
(d) (execution) levy or enforce any distress or other execution
to, on, or against any assets of the Trustee;
(e) (court appointed receiver) apply for the appointment by a
court of a receiver to any of the assets of the Trustee;
(f) (set-off or counterclaim) exercise or seek to exercise any
set-off or counterclaim against the Trustee; or
(g) (administrator) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and each Paying Agent and the
Calculation Agent waives its rights to make those applications and take
those proceedings.
24. Counterparts
-------------------------------------------------------------------------------
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
25. Governing Law
-------------------------------------------------------------------------------
This agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of the courts exercising
jurisdiction there.
26. Successor Trustee
-------------------------------------------------------------------------------
Each Paying Agent shall do all things reasonably necessary to enable
any successor Trustee appointed under clause 20 of the Master Trust
Deed to become the Trustee under this agreement.
Each attorney executing this agreement states that he has no notice of any
alteration to, or revocation or suspension of, his power of attorney.
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TRUSTEE
SIGNED on behalf of )
AXA TRUSTEES LIMITED )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
--------------------------------------
Signature
------------------------------------- --------------------------------------
Witness Print name
-------------------------------------
Print name
MANAGER
SIGNED on behalf of )
CRUSADE MANAGEMENT LIMITED )
by its attorney under Power of Attorney )
dated )
in the presence of: )
--------------------------------------
Signature
------------------------------------- --------------------------------------
Witness Print name
-------------------------------------
Print name
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NOTE TRUSTEE
SIGNED on behalf of )
BANKERS TRUST COMPANY )
by its attorney under Power of Attorney )
dated )
in the presence of: )
------------------------------------
Signature
---------------------------------------- ------------------------------------
Witness Print name
----------------------------------------
Print name
PRINCIPAL PAYING AGENT
SIGNED on behalf of )
MIDLAND BANK PLC )
by its attorney under Power of Attorney )
dated )
in the presence of: )
-------------------------------------
Signature
--------------------------------------- -------------------------------------
Witness Print name
---------------------------------------
Print name
CALCULATION AGENT
SIGNED on behalf of )
MIDLAND BANK PLC )
by its attorney under Power of Attorney )
dated )
in the presence of: )
-----------------------------------
Signature
----------------------------------------- -----------------------------------
Witness Print name
-----------------------------------------
Print name
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NOTE REGISTRAR
SIGNED on behalf of )
MIDLAND BANK PLC )
by its attorney under Power of Attorney )
dated )
in the presence of: )
-----------------------------------
Signature
------------------------------------------ -----------------------------------
Witness Print name
------------------------------------------
Print name