Agency Agreement
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(Trustee)
CRUSADE MANAGEMENT LIMITED
(Manager)
THE BANK OF NEW YORK
(Principal Paying Agent)
THE BANK OF NEW YORK
(Note Trustee)
THE BANK OF NEW YORK
(Calculation Agent)
THE BANK OF NEW YORK
(Class A-1 Note Registrar)
THE BANK OF NEW YORK
(Class A-2 Note Registrar)
Crusade Global Trust No. 2 of 2006
Allens Arthur Robinson
Deutsche Bank Place
Corner Hunter and Phillip Streets
Sydney
NSW
2000
Tel
61 2 9230 4000
Fax
61 2 9230 5333
www.aar.com.au
(C) Copyright Allens Arthur Robinson 2006
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TABLE OF CONTENTS
1.
DEFINITIONS AND INTERPRETATION
3
1.1
DEFINITIONS
3
1.2
DEFINITIONS IN MASTER TRUST DEED, SUPPLEMENTARY TERMS NOTICE,
NOTE TRUST DEED AND CONDITIONS
3
1.3
INTERPRETATION
4
1.4
DOCUMENT OR AGREEMENT
4
1.5
TRANSACTION DOCUMENT
4
1.6
TRUSTEE AS TRUSTEE
4
1.7
NOTE TRUSTEE AS NOTE TRUSTEE
4
2.
APPOINTMENT OF PAYING AGENTS
5
3.
PAYMENT
5
3.1
PAYMENT BY TRUSTEE
5
3.2
CONFIRMATION
5
3.3
PAYMENTS BY PAYING AGENTS
6
3.4
METHOD OF PAYMENT - BOOK-ENTRY NOTES
6
3.5
METHOD OF PAYMENT - DEFINITIVE NOTES
6
3.6
LATE PAYMENT
6
3.7
NOTICE OF NON-RECEIPT
7
3.8
REIMBURSEMENT
7
3.9
METHOD OF PAYMENT
7
3.10
NO FEE
8
3.11
TRUST
8
3.12
FORMS AND INFORMATION
8
4.
REPAYMENT
8
5.
APPOINTMENT OF THE CALCULATION AGENT
9
6.
DUTIES OF THE CALCULATION AGENT
9
7.
NOTE TRUSTEE
10
8.
EARLY REDEMPTION OF OFFSHORE NOTES
11
9.
PRO RATA REDEMPTION AND CANCELLATION OF NOTES
11
10.
CANCELLATION, DESTRUCTION AND RECORDS WHERE OFFSHORE NOTES IN
DEFINITIVE FORM HAVE BEEN ISSUED
12
11.
ISSUE OF REPLACEMENT DEFINITIVE NOTES WHERE DEFINITIVE NOTES HAVE
BEEN ISSUED
13
12.
NOTICES TO NOTEHOLDERS
14
13.
DOCUMENTS AND FORMS
15
14.
AUTHENTICATION
15
15.
INDEMNITY
15
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16.
THE NOTE REGISTER
17
16.1
APPOINTMENT OF NOTE REGISTRARS
17
16.2
DETAILS TO BE KEPT ON THE NOTE REGISTER
17
16.3
PAYMENTS OF PRINCIPAL AND INTEREST
18
16.4
PLACE OF KEEPING NOTE REGISTERS, COPIES AND ACCESS
18
16.5
DETAILS ON NOTE REGISTER CONCLUSIVE
19
16.6
ALTERATION OF DETAILS ON NOTE REGISTER
19
16.7
RECTIFICATION OF NOTE REGISTER
19
16.8
CORRECTNESS OF NOTE REGISTER
19
17.
CHANGES OF NOTE REGISTRAR
20
17.1
REMOVAL
20
17.2
RESIGNATION
20
17.3
LIMITATION
20
18.
GENERAL
20
18.1
COMMUNICATIONS TO OFFSHORE NOTEHOLDERS
20
18.2
AGENCY
20
18.3
IDENTITY
21
18.4
NO SET-OFF
21
18.5
RELIANCE
21
18.6
ENTITLED TO DEAL
21
18.7
CONSULTATION
22
18.8
DUTIES
22
18.9
INCOME TAX RETURNS
22
18.10 TAXES
22
18.11 WRITTEN INSTRUCTIONS
22
18.12 NO REPRESENTATIONS
22
18.13 EUROPEAN UNION TAX DIRECTIVE
22
18.14 KNOW YOUR CUSTOMER
23
19.
CHANGES IN PAYING AGENTS AND CALCULATION AGENT
23
19.1
REMOVAL
23
19.2
RESIGNATION
24
19.3
LIMITATION
24
19.4
DELIVERY OF AMOUNTS
25
19.5
SUCCESSOR TO PAYING AGENTS
25
19.6
SUCCESSOR TO CALCULATION AGENT
26
19.7
SUCCESSOR TO NOTE REGISTRAR
26
19.8
NOTICE TO OFFSHORE NOTEHOLDERS
27
19.9
CHANGE IN PAYING OFFICE OR SPECIFIED OFFICE
27
20.
FEES AND EXPENSES
28
21.
WAIVERS, REMEDIES CUMULATIVE
29
22.
SEVERABILITY OF PROVISIONS
29
23.
ASSIGNMENTS
29
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24.
NOTICES
29
24.1
GENERAL
29
24.2
DETAILS
30
24.3
COMMUNICATION THROUGH PRINCIPAL PAYING AGENT
32
25.
LIMITED RECOURSE
32
25.1
GENERAL
32
25.2
LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT TO INDEMNITY
32
25.3
UNRESTRICTED REMEDIES
33
25.4
RESTRICTED REMEDIES
33
26.
COUNTERPARTS
34
27.
GOVERNING LAW
34
28.
SUCCESSOR TRUSTEE
34
29.
COMPLIANCE WITH REGULATION AB: OTHER "SERVICING FUNCTION
PARTICIPANTS"
34
29.1
INTENT OF THE PARTIES, REASONABLENESS
34
29.2
INFORMATION TO BE PROVIDED BY THE SERVICING
FUNCTION PARTICIPANT
35
29.3
REPORT ON ASSESSMENT OF COMPLIANCE AND ATTESTATION
36
29.4
USE OF SUBSERVICERS AND SUBCONTRACTORS
37
30.
ANTI-MONEY LAUNDERING
37
SCHEDULE 1
41
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
41
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DATE
19 September
2006
-----------
PARTIES
-----------
1.
PERPETUAL TRUSTEES CONSOLIDATED LIMITED (ABN 81 004 029 841)
incorporated in Australia and registered in Victoria of Level 12
Angel Place, 123 Pitt Street, Sydney, New South Wales 2000 in its
capacity as trustee of the Crusade Global Trust No. 2 of 2006 (the
TRUSTEE);
2.
CRUSADE MANAGEMENT LIMITED (ABN 90 072 715 916) incorporated in
Australia and registered in New South Wales of 4-16 Montgomery
Street, Kogarah, New South Wales 2217, as Manager in relation to
the
Crusade Global Trust No. 2 of 2006 (the MANAGER);
3.
THE BANK OF NEW YORK acting through its office at 101 Barclay
Street, Floor 21 West, New York, New York 10286, United States of
America as principal paying agent for the Class A-1 Notes described
below and acting through its office at 48th Floor, 1 Canada Square,
London E14 5AL, United Kingdom as principal paying agent for the
Class A-2 Notes described below (together the PRINCIPAL PAYING
AGENT, which expression shall, wherever the context requires,
include any successor principal paying agent from time to time
under
this agreement and, except where the context otherwise requires,
the
Principal Paying Agent and any additional paying agent or paying
agents appointed under this agreement are PAYING AGENTS and each of
them is a PAYING AGENT); acting through its office at 101 Barclay
Street, Floor 21 West, New York, New York 10286, United States of
America as note registrar in relation to the Class A-1 Notes
described below (the CLASS A-1 NOTE REGISTRAR, which expression
shall, whenever the context requires, include any successor note
registrar from time to time under this agreement); acting through
its office at 48th Floor, 1 Canada Square, London E14 5AL, United
Kingdom as note registrar in relation to the Class A-2 Notes
described below (the CLASS A-2 NOTE REGISTRAR, which expression
shall, whenever the context requires, include any successor note
registrar from time to time under this agreement); and as trustee
for the Offshore Noteholders (the NOTE TRUSTEE, which expression
shall, wherever the context requires, include any other trustee or
trustees from time to time under the Note Trust Deed); and
4.
THE BANK OF NEW YORK of 48th Floor, 1 Canada Square, London E14
5AL,
United Kingdom as calculation agent in relation to the Offshore
Notes described below (the CALCULATION AGENT, which expression
shall, wherever the context requires, include any successor
calculation agent from time to time).
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RECITALS
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A
The Trustee proposes to issue US$1,200,000,000 of Class A-1
mortgage
backed pass through floating rate Notes (the CLASS A-1 NOTES),
(euro)450,000,000 of Class A-2 mortgage backed pass through
floating
rates Notes (the CLASS A-2 NOTES), and A$677,500,000 of mortgage
backed pass through floating rate Notes comprising A$600,000,000
Class A-3 Notes, A$53,200,000 Class B Notes and A$24,300,000 Class
C
Notes (together the A$ NOTES) each with a Final Maturity Date
falling in November 2037.
B
The Offshore Notes will be represented initially by one or more
Class A-1 Book-Entry Notes and one or more Class A-2 Book-Entry
Notes (the BOOK-ENTRY NOTES).
C
The Offshore Notes, upon original issue, will be issued in the form
of typewritten Book-Entry Notes representing the Book-Entry Notes.
The Trustee shall, on the date of this deed, deliver or arrange the
delivery on its behalf of the Book-Entry Notes to the relevant
Common Depository, as agent for the relevant Clearing Agency. The
Book-Entry Notes shall initially be registered on the relevant Note
Register in the name of the relevant Common Depository, as nominee
of the relevant Clearing Agency, and no Class A Note Owner will
receive a Definitive Class A Note representing such Class A Note
Owner's interest in such Offshore Note, except as provided in the
Note Trust Deed.
D
The Offshore Notes will be constituted by the Note Trust Deed, the
Supplementary Terms Notice and the Master Trust Deed.
E
The Offshore Notes will be secured on the terms of the Security
Trust Deed.
F
The Trustee wishes to appoint the Principal Paying Agent as
principal paying agent in respect of the Offshore Notes only and
has
entered into this agreement to provide for the terms and conditions
of that appointment.
G
The Trustee wishes to appoint the Calculation Agent as its
reference
agent in respect of the Offshore Notes only and has entered into
this agreement to provide for the terms and conditions of that
appointment.
H
The Trustee wishes to appoint the Class A-1 Note Registrar in
respect of the Class A-1 Notes only and the Class A-2 Note
Registrar
in respect of the Class A-2 Notes only and has entered into this
agreement to provide for the terms and conditions of that
appointment.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1
DEFINITIONS
The following definitions apply unless the context requires
otherwise.
EU TAX DIRECTIVE means the European Union Council Directive
2003/48/EC
on the taxation of savings income which was adopted on 3 June 2003,
or
any law or regulation implementing or complying with, or introduced
to
conform with such directive.
MASTER TRUST DEED means the Master Trust Deed for the Crusade
Trusts
dated 14 March 1998 between the Trustee as trustee, St.George Bank
Limited and the Manager.
NOTE PARTY has the meaning given to that term in clause 18.2.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust
dated
14 September 2006 issued under the Master Trust Deed in relation to
the
Trust.
OFFSHORE NOTES means each of the Class A-1 Notes and the Class A-2
Notes.
PAYING OFFICE means, in relation to a Paying Agent and any Offshore
Notes, the office of the Paying Agent specified in the relevant
Offshore
Notes or otherwise under this agreement or the Note Trust Deed as
the
office at which payments in respect of the Offshore Notes will be
made
as changed from time to time in accordance with this agreement.
SPECIFIED OFFICE means, in relation to the Calculation Agent, the
office
of the Calculation Agent specified under this agreement as the
office at
which the Calculation Agent will carry out its duties under this
agreement, and initially means its office at 48th Floor, 1 Canada
Square, London E14 5AL, United Kingdom.
SUPPLEMENTARY TERMS NOTICE means the Supplementary Terms Notice
dated on
or about the date of this agreement relating to the Trust.
TRUST means the trust known as the Crusade Global Trust No. 2 of
2006
established under the Notice of Creation of Trust, the Master Trust
Deed
and the Supplementary Terms Notice.
1.2
DEFINITIONS IN MASTER TRUST DEED, SUPPLEMENTARY TERMS NOTICE, NOTE
TRUST
DEED AND CONDITIONS
(a)
Words and expressions which are defined in the Master Trust Deed
(as amended by the Supplementary Terms Notice), the
Supplementary Terms Notice, the Note Trust Deed and the relevant
Conditions (including by reference to another agreement) have
the same meanings when used in this agreement unless the context
otherwise requires or unless otherwise defined in this
agreement.
(b)
If a definition in any of the documents in paragraph (a) above
is inconsistent, the definitions will prevail in the following
order:
(i)
definition in this agreement;
(ii)
definition in the Supplementary Terms Notice;
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(iii)
definition in the Master Trust Deed;
(iv)
definition in the Note Trust Deed;
(v)
definition in the relevant Conditions.
1.3
INTERPRETATION
Clause 1.2 of the Master Trust Deed applies to this agreement as if
set
out in full and:
(a)
a reference to an ASSET includes any real or personal, present
or future, tangible or intangible property or asset and any
right, interest, revenue or benefit in, under or derived from
the property or asset;
(b)
a reference to an amount for which a person is CONTINGENTLY
LIABLE includes an amount which that person may become actually
or contingently liable to pay if a contingency occurs, whether
or not that liability will actually arise; and
(c)
all references to costs or charges or expenses include GST, any
value added tax or similar tax charged or chargeable in respect
of the charge or expense.
1.4
DOCUMENT OR AGREEMENT
A reference to:
(a)
an AGREEMENT includes a Security Interest, guarantee,
undertaking, deed, agreement or legally enforceable arrangement
whether or not in writing; and
(b)
a DOCUMENT includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as
amended,
novated, supplemented or replaced from time to time, except to the
extent prohibited by this agreement.
1.5
TRANSACTION DOCUMENT
This agreement is a TRANSACTION DOCUMENT for the purposes of the
Master
Trust Deed.
1.6
TRUSTEE AS TRUSTEE
(a)
In this agreement, except where provided to the contrary:
(i)
a reference to the Trustee is a reference to the Trustee
in its capacity as trustee of the Trust only, and in no
other capacity; and
(ii)
a reference to the assets, business, property or
undertaking of the Trustee is a reference to the assets,
business, property or undertaking of the Trustee only in
the capacity described in sub-paragraph (i) above.
(b)
The rights and obligations of the parties under this agreement
relate only to the Trust, and do not relate to any other Trust
(as defined in the Master Trust Deed).
1.7
NOTE TRUSTEE AS NOTE TRUSTEE
The Note Trustee enters into this agreement for itself and for and
as
trustee for and on behalf of the Offshore Noteholders from time to
time
under and subject to the terms of the Note Trust Deed.
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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
Offshore Notes in accordance with the Transaction Documents and
the relevant Conditions at their respective Paying Offices. The
Principal Paying Agent accepts its appointment under this
agreement.
(b)
Except in clause 19 and as the context otherwise requires,
references to the Principal Paying Agent are to it acting solely
through its Paying Office.
(c)
If at any time there is more than one Paying Agent, the
obligations of the Paying Agents under this agreement shall be
several and not joint.
It is acknowledged and agreed that:
(i)
subject to clause 7, the Principal Paying Agent is the
agent of the Trustee in its capacity as trustee of the
Trust only; and
(ii)
despite anything else in this agreement, any other
Transaction Document or at law, the Trustee in its
personal capacity is not responsible for any act or
omission of the Principal Paying Agent or any other
Paying Agent except to the extent of losses, costs,
claims or damages caused by the fraud, negligence or
Default of the Trustee.
3.
PAYMENT
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3.1
PAYMENT BY TRUSTEE
(a)
The Trustee shall, with the assistance of and, at the direction
of the Manager, not later than 10.00 am (New York time) on each
Payment Date, pay to or to the order of, or procure payment to
or to the order of, the Principal Paying Agent (including where
relevant in clause 3.9) the amount in US$ as may be required
(after taking account of any cash then held by the Principal
Paying Agent and available for the purpose) to be made on each
Payment Date under the Supplementary Terms Notice in respect of
the Class A-1 Notes and the relevant Conditions.
(b)
The Trustee shall, with the assistance of and at the direction
of the Manager, not later than 10.00 am (London time) on each
Payment Date, pay to or to the order of, or procure payment to
or to the order of, the Principal Paying Agent (including where
relevant in clause 3.9) the amount in Euros as may be required
(after taking account of any cash then held by the Principal
Paying Agent and available for the purpose) to be made on that
Payment Date under the Supplementary Terms Notice in respect of
the Class A-2 Notes and the relevant Conditions.
3.2
CONFIRMATION
Not later than 4.00 pm (Sydney time) on each Determination Date,
the
Manager on behalf of the Trustee shall notify, or procure
notification
to, the Principal Paying Agent and the Note Trustee of the amount
of
interest or principal payable in respect of the Offshore Notes on
the
Payment Date following that Determination Date. The Trustee or if
required by the Trustee, the Manager on its
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behalf shall also forward to the Principal Paying Agent at that
time
confirmation that the payments provided for in clause 3.1 will be
made
unconditionally.
3.3
PAYMENTS BY PAYING AGENTS
Subject to payment being duly made as provided in clause 3.1 (or to
the
Principal Paying Agent otherwise being satisfied that the payment
will
be duly made on the due date), and subject to clause 7, the Paying
Agents shall pay or cause to be paid on behalf of the Trustee on
each
Payment Date the relevant amounts of principal and interest due in
respect of the Offshore Notes in accordance with the Supplementary
Terms
Notice and the relevant Conditions.
3.4
METHOD OF PAYMENT - BOOK-ENTRY NOTES
The Principal Paying Agent shall cause all payments of principal or
interest (as the case may be) due in respect of Offshore Notes
represented by one or more Book-Entry Notes to be made to the
relevant
Common Depository for credit to the account of the persons
appearing
from time to time in the records of the relevant Common Depository
as
account holder with respect to that Book-Entry Note.
3.5
METHOD OF PAYMENT - DEFINITIVE NOTES
(a)
Payments of principal or interest on the Definitive Notes (if
any) shall be made in accordance with the relevant Conditions
and the Supplementary Terms Notice.
(b)
If a Definitive Note is issued and the amount of the principal
or interest (as the case may be) then due for payment on that
Offshore Note is not paid in full (including by reason of a
deduction or withholding), the Paying Agent to whom that
Offshore Note is presented shall enface that Offshore Note with
a memorandum of the amount paid and the date of that payment.
3.6
LATE PAYMENT
(a)
If any payment under clause 3.1 is made late but otherwise in
accordance with the provisions of this agreement, each Paying
Agent shall:
(i)
in the case of any payment in respect of the Class A-1
Notes made on or prior to 1.00 pm (New York time) on a
Payment Date, make payments required to be made by it in
respect of the Class A-1 Notes as provided in this
clause 3 (other than clause 3.6(a)(ii));
(ii)
in the case of any payment in respect of the Class A-1
Notes made after 1.00pm (New York time) on a Payment
Date, make payments required to be made by it in respect
of the Class A-1 Notes on the next Business Day
occurring after that Payment Date and otherwise as
provided in this clause 3;
(iii)
in the case of any payment in respect of the Class A-2
Notes made on or prior to 1.00pm (London time) on a
Payment Date, make payments required to be made by it in
respect of the Class A-2 Notes as provided in this
clause 3 (other than clause 3.6(a)(iv)); and
(iv)
in the case of any payment in respect of the Class A-2
Notes made after 1.00pm (London time) on a Payment Date,
make payments required to be made by it in
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respect of the Class A-2 Notes on the next Business Day
occurring after that Payment Date and otherwise as
provided in this clause 3.
However, unless and until the full amount of any payment in
respect of the Offshore Notes required to be made under the
Transaction Documents has been made under clause 3.1 to or to
the order of the Principal Paying Agent, no Paying Agents shall
be bound to make a payment under clause 3.
(b)
If the Principal Paying Agent has not received on a Payment Date
the full amount of principal and interest then payable on any
Offshore Note in accordance with the Supplementary Terms Notice
and the relevant Conditions, but receives the full amount later,
it shall:
(i)
forthwith upon full receipt notify the other Paying
Agents (if any), the Trustee, the Note Trustee, the
Security Trustee and the Manager; and
(ii)
as soon as practicable after such full receipt give due
notice, in accordance with the relevant Condition 12
(unless the Note Trustee agrees otherwise), to the
relevant Offshore Noteholders that it has received the
full amount.
3.7
NOTICE OF NON-RECEIPT
The Principal Paying Agent shall immediately notify by facsimile
(if
appropriate) the other Paying Agents (if any), the Note Trustee,
the
Trustee, the Security Trustee, the Currency Swap Provider and the
Manager if the full amount of any payment of principal or interest
required to be made by the Supplementary Terms Notice and the
relevant
Conditions in respect of the Offshore Notes is not unconditionally
received by it or to its order in accordance with this agreement.
3.8
REIMBURSEMENT
The Principal Paying Agent shall (provided that it has been placed
in
funds by the Trustee) on demand promptly reimburse the other Paying
Agents (if any) for payments of principal and interest properly
made by
that Paying Agent in accordance with the Supplementary Terms
Notice, the
relevant Conditions and this agreement. The Trustee shall not be
concerned with the apportionment of any moneys between the
Principal
Paying Agent and the other Paying Agents (if any) and payment to
the
Principal Paying Agent of any moneys due to the Paying Agents shall
operate as a good discharge to the Trustee in respect of such
moneys.
3.9
METHOD OF PAYMENT
(a)
All sums payable by the Trustee to the Principal Paying Agent
under this agreement shall, unless otherwise provided by and
subject to the relevant Currency Swap, be paid by the Currency
Swap Provider on behalf of the Trustee in US$ (in the case of
the Class A-1 Notes or Class A-1 Noteholders) or Euros (in the
case of the Class A-2 Notes or Class A-2 Noteholders) to such
bank accounts as the Principal Paying Agent may from time to
time notify to the Trustee and the Note Trustee. Those sums
shall be held in an account for payment to the Offshore
Noteholders and:
(i)
failing that payment within the designated periods of
prescription specified in the relevant Condition 8; or
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(ii)
upon the bankruptcy, insolvency, winding up or
liquidation of the Principal Paying Agent or on default
being made by the Principal Paying Agent in the payment
of any amounts in respect of principal or interest in
accordance with this agreement,
for repayment to the Trustee (subject to clause 4). On repayment
in accordance with clause 4 to the Trustee, all liabilities of
the Principal Paying Agent with respect to those moneys shall
cease. The Principal Paying Agent shall, promptly after each
Payment Date, confirm to the Trustee, in accordance with clause
24, that the Principal Paying Agent has paid the relevant amount
to the relevant Common Depository. The Principal Paying Agent
will countersign and promptly return any such confirmation
requested by the Trustee.
(b)
Subject to the terms of this agreement, the Principal Paying
Agent shall be entitled to deal with moneys paid to it under
this agreement in the same manner as other moneys paid to it as
a banker by its customers. The Principal Paying Agent shall be
entitled to retain for its own account any interest earned on
the sums from time to time credited to the account referred to
in paragraph (a) and it need not segregate such sums from other
amounts held by it, except as required by law.
3.10
NO FEE
Subject to clause 20, no Paying Agent will charge any commission or
fee
in relation to any payment under this agreement to the person
receiving
or entitled to receive the payment or make the exchange.
3.11
TRUST
The Principal Paying Agent shall hold on trust for the Note Trustee
and
the Offshore Noteholders all sums held by it for the payment of
principal and interest with respect to the Offshore Notes until all
relevant sums are paid to the Note Trustee or the Offshore
Noteholders
or otherwise disposed of in accordance with the Note Trust Deed.
3.12
FORMS AND INFORMATION
The Manager shall provide each Paying Agent with any forms and such
other information reasonably required by that Paying Agent in
connection
with any withholding Tax imposed on any payment under the Offshore
Notes.
4.
REPAYMENT
--------------------------------------------------------------------------------
(a)
Immediately on any entitlement to receive principal or interest
under any Offshore Note becoming void under the relevant
Conditions, the Principal Paying Agent shall repay to the
Trustee the amount which would have been due in respect of that
principal or interest if it had been paid before the entitlement
became void, together with any fees applicable to that payment
or entitlement (pro rata as to the amount and time) to the
extent already paid under clause 20.
(b)
Despite paragraph (a), the Principal Paying Agent shall not be
obliged to make any repayment to the Trustee so long as any
amounts which should have been paid to or to the
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order of the Principal Paying Agent or, if applicable, the Note
Trustee by the Trustee remain unpaid.
5.
APPOINTMENT OF THE CALCULATION AGENT
--------------------------------------------------------------------------------
(a)
The Trustee (acting on the direction of the Manager) appoints
the Calculation Agent as its reference agent in respect of the
Offshore Notes upon the terms and conditions set forth in this
agreement and the Calculation Agent accepts that appointment.
(b)
It is acknowledged and agreed that:
(i)
the Calculation Agent is the agent of the Trustee in its
capacity as trustee of the Trust only; and
(ii)
despite anything else in this agreement, any other
Transaction Document or at law, the Trustee in its
personal capacity is not responsible for any act or
omission of the Calculation Agent except to the extent
of losses, costs, claims or damages caused by the fraud,
negligence or Default of the Trustee.
6.
DUTIES OF THE CALCULATION AGENT
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(a)
The Calculation Agent shall, in relation to the Offshore Notes,
until their final maturity or such earlier date on which the
Offshore Notes are due and payable in full and in either case
until the Trustee has paid all amounts in relation to the
Offshore Notes to the Principal Paying Agent or, if applicable,
the Note Trustee:
(i)
perform such duties at its Specified Office as are set
forth in this agreement and in the relevant Conditions
and any other duties which are reasonably incidental at
the request of the Trustee, the Manager, the Note
Trustee or the Principal Paying Agent;
(ii)
determine LIBOR (in respect of the Class A-1 Notes) and
EURIBOR (in respect of the Class A-2 Notes) for each
Quarterly Interest Period, and calculate the relevant
Interest and Interest Rate on the relevant Offshore
Notes, in the manner set out in the relevant Condition 4
and confirm with the Currency Swap Provider (using the
contact details notified by that Currency Swap Provider
to the Calculation Agent) that the LIBOR and EURIBOR
determined under this agreement is the same as the LIBOR
and EURIBOR determined by the Currency Swap Provider
under the relevant Currency Swap;
(iii)
notify the Trustee, the Manager, the Note Trustee, the
Paying Agents, and the Currency Swap Provider by
facsimile transmission on or as soon as possible after
the first day of each Quarterly Interest Period for each
such Class of Offshore Notes, of the Interest Rates and
the Interest so determined by it in relation to that
Quarterly Interest Period, specifying to those parties
the rates upon which they are based and (where relevant)
the names of the banks quoting those rates.
(b)
The Manager shall on behalf of the Trustee cause the Interest
and Interest Rates applicable to the relevant Offshore Notes for
each Quarterly Interest Period, together with the relevant
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Payment Date, to be published (subject to clause 20, at the
expense of the Trustee) in accordance with the provisions of the
relevant Conditions 4 and 12, on or as soon as possible after
the commencement of the relevant Quarterly Interest Period
unless the Note Trustee otherwise agrees, provided that the
Trustee, the Calculation Agent and the Note Trustee shall
co-operate with the Manager in order to effect that publication.
(c)
The Interest, Interest Rate and relevant Payment Date published
under paragraph (b) may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without
notice to Offshore Noteholders in the event of an amendment to
the Quarterly Interest Period.
(d)
If the Calculation Agent at any time and for any reason does not
determine the Interest Rate for or calculate the Interest
payable on an Offshore Note, the Manager shall do so and each
such determination or calculation shall be deemed to have been
made by the Calculation Agent. In doing so, the Manager shall
apply the provisions of this clause 6, with any necessary
consequential amendments, to the extent that, in its opinion, it
can do so, and, in all other respects it shall do so in such a
manner as it shall deem fair and reasonable in all the
circumstances.
7.
NOTE TRUSTEE
--------------------------------------------------------------------------------
(a)
At any time after:
(i)
an Event of Default has occurred in relation to an
Offshore Note; or
(ii)
Definitive Notes have not been issued when required in
accordance with the provisions of the Transaction
Documents,
the Note Trustee may:
(iii)
by notice in writing to the Trustee, the Manager, the
Calculation Agent, the Principal Paying Agent and the
other Paying Agents (if any) require the Principal
Paying Agent, the other Paying Agents and the
Calculation Agent either:
(A)
to act as Principal Paying Agent, Paying Agent
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
(B)
to hold all Definitive Notes and all amounts,
documents and records held by them in respect of
the Offshore Notes on behalf of the Note
Trustee; or
(C)
to deliver up all Definitive Notes, and all
amounts, documents and records held by them in
respect of the Offshore Notes, to the Note
Trustee or as the Note Trustee directs in that
notice, other than any documents or
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records which the Calculation Agent or Paying
Agent (as the case may be) is obliged not to
release by any law or regulation; and
(D)
by notice in writing to the Trustee require it
to make (or arrange to be made) all subsequent
payments in respect of the Offshore Notes to the
order of the Note Trustee and not to the
Principal Paying Agent and, with effect from the
issue of that notice to the Trustee and until
that notice is withdrawn clause 2.3 of the Note
Trust Deed shall not apply.
A payment by the Trustee of its payment obligations on each
Payment Date under the Supplementary Terms Notice and the
relevant Conditions to the Note Trustee in accordance with
paragraph (a)(iii)(D) shall be a good discharge to the Note
Trustee to the extent of such payment.
(b)
The Note Trustee shall promptly upon request give notice to the
Manager, the Trustee, the Security Trustee, the Calculation
Agent and the Principal Paying Agent of any change in the
Authorised Signatories of the Note Trustee.
8.
EARLY REDEMPTION OF OFFSHORE NOTES
--------------------------------------------------------------------------------
(a)
If the Trustee intends to redeem the Offshore Notes prior to
their Final Maturity Date pursuant to the relevant Condition 5
(which it may only do at the direction of the Manager), the
Manager shall give not less than 5 days' prior written notice to
the Principal Paying Agent and the Note Trustee before giving
the requisite period of notice to the Offshore Noteholders in
accordance with the relevant Condition 5 and stating the Payment
Date on which such Offshore Notes are to be redeemed.
(b)
The Principal Paying Agent shall, on receipt of a notice under
paragraph (a):
(i)
notify the relevant Common Depository of the proposed
redemption, specifying:
(A)
the aggregate Invested Amount or Stated Amount
(as the case may be) of the Offshore Notes to be
redeemed;
(B)
the amount of principal to be repaid in relation
to the Offshore Notes; and
(C)
the date on which the Offshore Notes are to be
redeemed; and
(ii)
promptly and in accordance with the relevant Conditions,
on behalf of and at the expense of the Trustee, publish
the notices required in connection with that redemption.
9.
PRO RATA REDEMPTION AND CANCELLATION OF NOTES
--------------------------------------------------------------------------------
(a)
If the Trustee is required to redeem some (but not all) of the
Offshore Notes prior to their Final Maturity Date pursuant to
the relevant Condition 5 the Manager shall on each Determination
Date give prior notice to the Calculation Agent, the Principal
Paying Agent and the Note Trustee, as provided in the relevant
Condition 5.
(b)
On receipt of a notice under paragraph (a), the Principal Paying
Agent shall notify the relevant Common Depository of the
proposed redemption, specifying in each case the
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aggregate Invested Amount of the Offshore Notes to be redeemed
and the date on which such Offshore Notes are to be redeemed.
(c)
The Manager shall, on (or as soon as practicable after) each
Quarterly Determination Date calculate:
(i)
the amount of principal to be repaid in respect of each
Offshore Note due on the Payment Date next following
that Determination Date;
(ii)
the Stated Amount and Invested Amount of each Offshore
Note on the first day of the next following Quarterly
Interest Period for the Offshore Notes (after deducting
any principal due to be made on the next Payment Date);
and
(iii)
the Class A Bond Factor on each Quarterly Determination
Date for each Class of Offshore Note,
and shall forthwith notify or cause to be notified to the
Trustee, the Calculation Agent, the Note Trustee, the Principal
Paying Agent and each Currency Swap Provider of each of those
determinations in accordance with the Supplementary Terms
Notice. On receipt of that notice, the Principal Paying Agent
shall give a copy of that notice to the relevant Common
Depository.
(d)
The Manager will immediately cause details of each determination
under paragraph (d) to be published in accordance with the
relevant Condition 12 at least one Business Day before the
relevant Payment Date.
(e)
If no principal is due to be repaid on the Offshore Notes on any
Payment Date, the Manager shall give notice or shall cause a
notice to this effect to be given to the relevant Offshore
Noteholders in accordance with the relevant Condition 12.
(f)
If any Offshore Notes are redeemed in whole or in part in
accordance with the Conditions and the Transaction Documents,
the Principal Paying Agent will, if any Book-Entry Notes are
still outstanding, cause the relevant Note Registrar to record
all relevant details in the relevant Note Register. The
Principal Paying Agent shall as soon as possible, and in any
event within three months after the date of any redemption or
purchase, furnish to each of the Trustee and, if the Principal
Paying Agent is not also the Note Trustee, the Note Trustee a
certificate setting out the aggregate Invested Amount and Stated
Amount of Offshore Notes which have been redeemed or the
aggregate Invested Amount and Stated Amount of Offshore Notes
which have been purchased. If the Invested Amount of a
Book-Entry Note is reduced to nil, the Principal Paying Agent
shall destroy the relevant Book-Entry Note and issue a
destruction certificate forthwith to the Note Trustee and shall
send a copy of that certificate to the Trustee, the Manager and
the Note Trustee.
10.
CANCELLATION, DESTRUCTION AND RECORDS WHERE OFFSHORE NOTES IN
DEFINITIVE
FORM HAVE BEEN ISSUED
--------------------------------------------------------------------------------
(a)
All Definitive Notes which are redeemed in their entirety (but
not partial redemptions of Definitive Notes in accordance with
the relevant Condition 5), shall be forthwith cancelled by
perforation by the Paying Agent by or through which they are
redeemed, paid or
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exchanged. If that Paying Agent is not the Principal Paying
Agent, that Paying Agent shall promptly give all relevant
details and forward the cancelled Definitive Notes to the
Principal Paying Agent.
(b)
The Principal Paying Agent shall as soon as possible, and in any
event within 70 days after the date of any redemption,
presentation or payment of Definitive Notes, furnish to each of
the Trustee, the Manager and the Note Trustee a certificate
stating:
(i)
the aggregate Invested Amount of Definitive Notes which
have been redeemed in full or, as the case may require,
the aggregate amounts of principal and interest paid in
respect of the Book-Entry Notes;
(ii)
the serial numbers of those Definitive Notes; and
(iii)
the aggregate Invested Amounts of Definitive Notes which
have been surrendered and replaced and the serial
numbers of those Definitive Notes.
(c)
Unless otherwise previously instructed by the Trustee or the
Manager, the Principal Paying Agent shall destroy any cancelled
Definitive Notes in its possession and furnish each of the
Trustee, the Manager and the Note Trustee with a destruction
certificate which lists the Class and serial numbers of those
Definitive Notes in numerical sequence.
(d)
The Principal Paying Agent shall:
(i)
keep a full and complete record of:
(A)
all Definitive Notes issued;
(B)
the redemption, purchase, cancellation, payment,
exchange, surrender for replacement or
destruction of the Definitive Notes; and
(C)
all replacement Definitive Notes issued in
substitution for lost, stolen, mutilated,
defaced or destroyed Definitive Notes; and
(ii)
make those records available at all reasonable times to
the Trustee, the Manager and the Note Trustee.
11.
ISSUE OF REPLACEMENT DEFINITIVE NOTES WHERE DEFINITIVE NOTES HAVE
BEEN
ISSUED
--------------------------------------------------------------------------------
(a)
The Manager shall, where Definitive Notes have been issued,
cause a sufficient quantity of additional Definitive Notes to be
made available, upon request by the Principal Paying Agent, for
the purpose of issuing replacement Definitive Notes as provided
below.
(b)
The Principal Paying Agent shall, subject to and in accordance
with the Conditions, the Transaction Documents and this clause,
issue any replacement Definitive Notes, in place of Definitive
Notes which have been lost, stolen, mutilated, defaced or
destroyed.
(c)
The Principal Paying Agent shall not issue any replacement
Definitive Note unless and until the relevant applicant has:
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(i)
paid all costs (including the fees and costs of the
Principal Paying Agent and of any Paying Agent through
which the replacement Definitive Note is issued) as may
be incurred in connection with that replacement;
(ii)
in the case of a lost, stolen, defaced or destroyed
Definitive Note, furnished the Principal Paying Agent
with any evidence (including evidence as to the Class
and serial number of the Definitive Note in question)
and indemnity in respect of that loss, theft, defacement
or destructions as the Trustee or the Manager and the
Principal Paying Agent may reasonably require; and
(iii)
in the case of a mutilated or defaced Definitive Note,
surrendered to the Principal Paying Agent the mutilated
or defaced Definitive Note which is to be replaced.
(d)
The Principal Paying Agent shall cancel any mutilated or defaced
Definitive Note replaced under this clause and shall furnish the
Trustee, the Manager and the Note Trustee, on the first day of
each month, with a certificate stating the Class and serial
numbers of Definitive Notes cancelled during that month. Unless
otherwise previously instructed by the Trustee or the Manager,
the Principal Paying Agent shall destroy any cancelled
Definitive Notes and furnish the Trustee, the Manager and the
Note Trustee with a destruction certificate containing the
information specified in clause 10(b).
(e)
The Principal Paying Agent shall, on issuing any replacement
Definitive Note, forthwith inform each of the other Paying
Agents, the Trustee, the Manager and the Note Trustee of the
Invested Amount and the Class and serial number of that
replacement Definitive Note issued and the Class and serial
number of the Definitive Note in place of which the replacement
Definitive Note has been issued.
(f)
Whenever any Definitive Note which is alleged to have been lost,
stolen or destroyed (and in replacement for which a new
Definitive Note has been issued) is presented to any Paying
Agent for payment, the Paying Agent to which that Definitive
Note is presented shall immediately notify the Trustee, the
Manager, the Note Trustee and (if presentation is not made to
the Principal Paying Agent) the Principal Paying Agent. The
Principal Paying Agent shall, on receipt of that notice or (as
the case may be) on presentation of the Definitive Note to it
and after consultation with the Trustee, take appropriate steps
(subject to being indemnified to its reasonable satisfaction as
to cost) to recover the amount covered by the indemnity with
respect to the allegedly lost, stolen or destroyed Definitive
Note. The Principal Paying Agent shall account to the Trustee
for any amount so collected.
12.
NOTICES TO NOTEHOLDERS
--------------------------------------------------------------------------------
(a)
At the request and expense of the Trustee, the Principal Paying
Agent shall arrange for the publication of all notices to
Offshore Noteholders in accordance with the relevant Conditions.
(b)
The Principal Paying Agent shall promptly send to the Note
Trustee one copy of the form of every notice given to Offshore
Noteholders in accordance with the relevant Conditions.
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13.
DOCUMENTS AND FORMS
--------------------------------------------------------------------------------
(a)
The Manager shall provide to the Principal Paying Agent for
distribution to each Paying Agent:
(i)
sufficient copies of all documents required by the
relevant Conditions, the Base Prospectus and the
Prospectus Supplement in relation to the Class A-1
Notes, the Offering Circular in relation to the Class
A-2 Notes or the Note Trust Deed to be available to the
relevant Offshore Noteholders for issue or inspection
(including the Note Trust Deed, the Master Trust Deed
and the Supplementary Terms Notice);
(ii)
in the event of a meeting of Offshore Noteholders being
called, forms of voting certificates and block voting
instructions, together with instructions from the
Trustee (those instructions having previously been
approved by the Note Trustee) as to the manner of
completing, dealing with and recording the issue of such
forms; and
(iii)
if Definitive Notes are issued, specimens of those
Definitive Notes.
(b)
The Manager and the Trustee shall provide to the Calculation
Agent such documents as the Calculation Agent may reasonably
require from the Manager or the Trustee (and in the case of the
Trustee only those documents that are in the Trustee's
possession or power) in order for the Calculation Agent properly
to fulfil its duties in respect of the Offshore Notes.
14.
AUTHENTICATION
--------------------------------------------------------------------------------
The Principal Paying Agent upon written direction of the Manager
shall
authenticate or cause to be authenticated the Book-Entry Notes and
(if
required) the Definitive Notes (whether on initial issue or on
replacement). The Principal Paying Agent shall not be required to
authenticate or cause to be authenticated any Book-Entry Notes or
Definitive Notes unless directed to do so in writing by the
Manager, or
the Trustee at the direction of the Manager.
15.
INDEMNITY
--------------------------------------------------------------------------------
(a)
Subject to paragraph (b) and clause 25, the Trustee shall
indemnify each Paying Agent, each Note Registrar and the
Calculation Agent against any loss, damages, proceeding,
liability, cost, claim, action, demand or expense (in this
clause 15, each, an EXPENSE) which that Paying Agent, that Note
Registrar or the Calculation Agent, as the case may be, may
incur or which may be made against that Paying Agent, that Note
Registrar or the Calculation Agent (as the case may be), as a
result of or in connection with that Paying Agent's, that Note
Registrar's or the Calculation Agent's, as the case may be,
appointment or the exercise of that Paying Agent's, that Note
Registrar's or the Calculation Agent's, as the case may be,
powers and performance of the Paying Agent's, that 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, that Note Registrar or the
Calculation Agent in accordance with clause 19 (including any
liability in respect of payment of a cheque drawn by that
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Paying Agent or the Calculation Agent (as the case may be) where
the cheque is collected or sued upon or an attempt at collection
is made after the amount in respect of which it is paid has been
returned to the Trustee under clause 4).
(b)
The indemnity in paragraph (a) applies to any Expense of a
Paying Agent, a Note Registrar or the Calculation Agent (as the
case may be) only:
(i)
to the extent the Expense does not result from the
breach by the Paying Agent, the Note Registrar or the
Calculation Agent (as the case may be) of the terms of
this agreement or which breach arises out of the Paying
Agent's, the Note Registrar's or the Calculation Agent's
(as the case may be) own fraud, wilful default or
negligence or that of its directors, officers or
employees or servants; and
(ii)
if and whenever the Trustee or the Manager so requires,
the Paying Agent, the Note Registrar or the Calculation
Agent (as the case may be) takes any actions or
proceedings under the control and at the expense of the
Trustee as the Trustee may reasonably require to avoid,
resist or compromise that Expense.
(c)
Subject to paragraph (d), each of the Calculation Agent, the
Note Registrars and the Paying Agents severally indemnifies the
Trustee and the Manager against all losses, liabilities, costs,
claims, actions, damages, expenses or demands which the Trustee
or the Manager (as the case may be) may incur or which may be
made against it as a result of a breach by the Calculation
Agent, the Note Registrar or the Paying Agent (as the case may
be) of any term of this agreement or its own fraud, wilful
default or negligence or that of its directors, officers,
employees or servants including any failure to obtain and
maintain in existence any Authorisation required by it for the
assumption, exercise and performance of its powers and duties
under this agreement.
(d)
Notwithstanding any other provision in this agreement, each of
the Calculation Agent, the Note Registrars and the Paying Agents
shall:
(i)
not be liable to indemnify the Trustee or the Manager
(as the case may be) for any loss caused by events
beyond its reasonable control including, any
malfunction, interruption or error in the transmission
of information caused by any machine or systems or
interception of communication facilities, abnormal
operating conditions or acts of God; and
(ii)
have no liability whatsoever for any consequential,
special, indirect or speculative loss or damages
(including, but not limited to, loss of profits, whether
or not foreseeable) suffered by the Trustee or the
Manager in connection with the transactions contemplated
by and the relationship established by this agreement
even if the Calculation Agent, the relevant Note
Registrar or the relevant Paying Agent (as the case may
be) has been advised as to the possibility of the same.
------------------------
