BASE PROSPECTUS AGATE ASSETS S.A. (a public limited liability company (société anonyme) incorporated under the laws of the Grand Duchy of Luxembourg) EUR 10,000,000,000 CLASSIC Asset Backed Medium Term Note Programme Agate Assets S.A. (together with any additional issuers that accede to this programme after the date hereof, the "Issuer") is a regulated securitisation undertaking subject to the Grand Duchy of Luxembourg ("Luxembourg") act dated 22 March 2004 on securitisation, as amended (the "Securitisation Act 2004") with its registered office at 11, avenue Emile Reuter L-2420 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg register of commerce and companies under number B166171. This document has been prepared for the purpose of providing the disclosure information with regard to the CLASSIC Asset Backed Medium Term Note Programme (the "Programme") for the issuance of series (each a "Series") of notes (the "Notes") and has been approved by the Commission de Surveillance du Secteur Financier, Luxembourg (the "CSSF"), which is the Luxembourg competent authority for the purposes of Directive 2003/71/EC (the "Prospectus Directive") and relevant implementing measures in Luxembourg, as a base prospectus ("Base Prospectus"). The Base Prospectus is issued in compliance with the Prospectus Directive and relevant implementing measures in Luxembourg for the purpose of giving information with regard to the issue of Notes under the Programme during the period of twelve months after the date hereof. Any tranche of Notes intended to be listed on the Official List of the Luxembourg Stock Exchange and admitted to trading on the Regulated Market of the Luxembourg Stock Exchange will be so admitted to listing and trading upon submission to the Luxembourg Stock Exchange and filing with the CSSF of the relevant final terms document ("Final Terms") and any other information required by the Luxembourg Stock Exchange and the CSSF, subject in each case to the issue of the relevant Notes. Prior to official listing and admission of Notes to trading, dealings will be permitted by the Luxembourg Stock Exchange in accordance with its rules. Notes issued by the Issuer under the Programme may be listed or admitted to trading, as the case may be, on such other or further stock exchanges or markets. The Issuer may also issue unlisted Notes and/or Notes not admitted to trading on any market. Notes may be rated or unrated. Whether or not each credit rating applied for in relation to the relevant Series of Notes will be issued by a credit rating agency established in the European Union and registered under Regulation (EC) No 1060/2009 (the "CRA Regulation") will be disclosed in the Final Terms. Investing in Notes issued under the Programme involves certain risks. The principal risk factors that may affect the abilities of the Issuer and the Guarantor (if applicable) to fulfil their respective obligations under the Notes are discussed under "Risk Factors" below. The Notes are limited recourse in nature and no assets of the Issuer other than the relevant Charged Assets and Supplementary Assets (if applicable) will be available to meet any shortfall, and the claims of Noteholders as against the Issuer in respect of any such shortfall shall be extinguished. The Notes have not been, and will not be, registered under the United States Securities Act of 1933, as amended (the "Securities Act") or with any securities regulatory authority of any state or other jurisdiction of the United States, and Notes in bearer form are subject to U.S. tax law requirements. The Notes may not be offered, sold or (in the case of Notes in bearer form) delivered within the United States or to, or for the account or benefit of, U.S. persons (as defined in Regulation S under the Securities Act ("Regulation S")) except in certain transactions exempt from the registration requirements of the Securities Act and applicable state securities laws. The Notes may include Notes in bearer form that are subject to U.S. Tax Law requirements. Arranger and Dealer COMMERZBANK AG The date of this Base Prospectus is 19 January 2012-1 -
IMPORTANT NOTICES Each of Agate Assets S.A. (together with any additional issuers that accede to this programme after the date hereof, the "Issuer") and, in relation to Guaranteed Notes only and in relation only to any information in respect of the Guarantor and the Guarantee, Commerzbank AG (the "Guarantor") accepts responsibility for the information contained in this document and declares that, having taken all reasonable care to ensure that such is the case, the information contained in this Base Prospectus is, to the best of its knowledge, in accordance with the facts and contains no omission likely to affect its import. ANY NOTES ISSUED UNDER THE PROGRAMME WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. ACCORDINGLY, THE NOTES MAY NOT BE OFFERED, SOLD OR DELIVERED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (AS DEFINED IN REGULATION S ("REGULATION S") UNDER THE SECURITIES ACT), EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, THE INVESTMENT COMPANY ACT OF 1940 (THE "INVESTMENT COMPANY ACT") AND THE SELLING AND TRANSFER RESTRICTIONS SET FORTH IN THE ISSUANCE DOCUMENT. ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")) WHO HOLDS A BEARER NOTE WHICH IS AN OBLIGATION IN BEARER FORM WILL BE SUBJECT TO LIMITATIONS UNDER U.S. FEDERAL INCOME TAX LAW, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE CODE. UNDER SECTIONS 165(j) AND 1287(a) OF THE CODE, ANY SUCH UNITED STATES PERSON WHO HOLDS A BEARER NOTE WHICH IS AN OBLIGATION IN BEARER FORM, WITH CERTAIN EXCEPTIONS, WILL NOT BE ENTITLED TO DEDUCT ANY LOSS ON THE BEARER NOTE AND MUST TREAT AS ORDINARY INCOME ANY GAIN REALISED ON THE SALE OR OTHER DISPOSITION (INCLUDING REDEMPTION) OF SUCH BEARER NOTE. UNLESS SPECIFIED IN ANY ISSUANCE DOCUMENT, THE NOTES WILL NOT BE SOLD TO ANY PERSON WHO IS OR WHILE NOTES ARE HELD MAY BE (i) AN "EMPLOYEE BENEFIT PLAN" OR OTHER "PLAN" SUBJECT TO THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (ii) ANOTHER EMPLOYEE BENEFIT PLAN SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW, OR NON-U.S. LAW, SUBSTANTIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE ("SIMILAR LAW"), OR (iii) AN ENTITY ANY OF WHOSE ASSETS - 2 -
ARE, OR ARE DEEMED FOR PURPOSES OF ERISA OR SECTION 4975 OF THE CODE, OR, IN THE CASE OF SUCH ANOTHER EMPLOYEE BENEFIT PLAN, SIMILAR LAW, TO BE, ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN", "PLAN" OR OTHER EMPLOYEE BENEFIT PLAN. EACH PURCHASER AND BIDDER WILL BE DEEMED TO HAVE REPRESENTED AND AGREED THAT IT IS NOT AND WILL NOT BE IN BREACH OF THE FOREGOING. Each Series of Notes will be issued on the terms set out herein under "Terms and Conditions of the Notes" (the "Conditions") as amended and/or supplemented by final terms specific to such Series (the "Final Terms") or in a separate prospectus specific to such Series (the "Drawdown Prospectus") or, in the case of a Series of unlisted Notes, a pricing supplement specific to such Series (the "Pricing Supplement", and each of the Final Terms, Drawdown Prospectus and Pricing Supplement, an "Issuance Document"). In the case of a Series of Notes which is the subject of a Drawdown Prospectus, each reference in this Base Prospectus to information being specified or identified in the relevant Issuance Document shall be read and construed as a reference to such information being specified or identified in the relevant Drawdown Prospectus unless the context requires otherwise. This Base Prospectus must be read and construed together with any amendments or supplements hereto and with any information incorporated by reference herein and must be read and construed together with the relevant Issuance Document. The Issuer and, in relation to Guaranteed Notes only and in relation only to any information in respect of the Guarantor and the Guarantee, the Guarantor have confirmed to the Dealers named herein that this Base Prospectus contains all information which is (in the context of the Programme, the issue, offering and sale of the Notes and the guarantee of the Guaranteed Notes) material; that such information is true and accurate in all material respects and is not misleading in any material respect; that any opinions, predictions or intentions expressed herein are honestly held or made and are not misleading in any material respect; that this Base Prospectus does not omit to state any material fact necessary to make such information, opinions, predictions or intentions (in the context of the Programme, the issue, offering and sale of the Notes and the guarantee of the Guaranteed Notes) not misleading in any material respect; and that all proper enquiries have been made to verify the foregoing. No person has been authorised to give any information or to make any representation not contained in or not consistent with this Base Prospectus or any other document entered into in relation to the Programme or any information supplied by the Issuer or the Guarantor or such other information as is in the public domain and, if given or made, such information or representation should not be relied upon as having been authorised by the Issuer, the Guarantor or any Dealer. Neither the Dealer nor the Arranger nor any of their respective affiliates have authorised the whole or any part of this Base Prospectus and none of them makes any representation or warranty or accepts any responsibility as to the accuracy or completeness of the information contained in this Base Prospectus. Neither the delivery of this Base Prospectus or any Issuance Document nor the offering, sale or delivery of any Note shall, in any circumstances, create any implication that the information contained in this Base Prospectus is true subsequent to the - 3 -
date hereof or the date upon which this Base Prospectus has been most recently amended or supplemented or that there has been no adverse change, or any event reasonably likely to involve any adverse change, in the prospects or financial or trading position of the Issuer or the Guarantor since the date thereof or, if later, the date upon which this Base Prospectus has been most recently amended or supplemented or that any other information supplied in connection with the Programme is correct at any time subsequent to the date on which it is supplied or, if different, the date indicated in the document containing the same. The Issuer, the Dealers and the Arranger do not represent that this Base Prospectus may be lawfully distributed, or that any of the Notes may be lawfully offered, in compliance with any applicable registration or other requirements in any jurisdiction, or pursuant to an exemption available thereunder, or assume any responsibility for facilitating any such distribution or offering. Accordingly, persons into whose possession this Base Prospectus or any of the Notes come must inform themselves about, and observe, any such restrictions. In particular, no action has been taken by the Issuer, any Dealer or the Arranger (save for the seeking of the approval of the Base Prospectus by the Luxembourg Stock Exchange) which would permit a public offering of any of the Notes or distribution of this Base Prospectus in any jurisdiction where action for that purpose is required. Accordingly, none of the Notes may be offered or sold, directly or indirectly, and neither this Base Prospectus nor any Issuance Document, advertisement or other offering material may be distributed or published in any jurisdiction, except under circumstances that will result in compliance with any applicable laws and regulations and the Dealer has represented that all offers and sales by it will be made on the same terms. Neither this Base Prospectus nor any Issuance Document nor any other information supplied in connection with the Programme or any Notes (i) is intended to provide the basis of any credit or other evaluation or (ii) should be considered as a recommendation by the Issuer or any of the Dealers or the Arranger that any recipient of this Base Prospectus or any other information supplied in connection with the Programme or any Notes should purchase any Notes. Each investor contemplating purchasing any Notes should make its own independent investigation of the financial condition and affairs, and its own appraisal of the creditworthiness, of the Issuer. Neither this Base Prospectus nor any Issuance Document nor any other information supplied in connection with the Programme or the issue of any Notes constitutes an offer or invitation by or on behalf of the Issuer, any of the Dealers or the Arranger to any person to subscribe for or to purchase any Notes. The delivery of this Base Prospectus does not at any time imply that the information contained herein concerning the Issuer is correct at any time subsequent to the date hereof or that any other financial statements or any further information supplied pursuant to the terms of the Programme or any of the Notes is correct as of any time subsequent to the date indicated in the document containing the same. The Dealer and the Arranger expressly do not undertake to review the financial condition or affairs of the Issuer during the term of the Programme. Notes issued by the Issuer under the Programme may be listed or admitted to trading, as the case may be, on such other or further stock exchanges or markets. The Issuer may also issue unlisted Notes and/or Notes not admitted to trading on any market. The Issuer may agree with - 4 -
any person intending to acquire or acquiring the Notes (an "Investor") that Notes may be issued in a form not contemplated by the Conditions as set out herein, in which case a base prospectus supplement, if appropriate, will be made available which will describe the effect of the agreement reached in relation to such Notes. The Issuer may from time to time create compartments (each, a "Compartment") in accordance with the Securitisation Act 2004 and its Articles of Incorporation (the "Articles"). In respect of any Compartment and any Note (the "Relevant Note"), and following the delivery of an Enforcement Notice in accordance with the Conditions in respect of the Relevant Note, the entitlement of the Holder of the Relevant Note will be limited to such Holder's pro rata share of the proceeds of the relevant Charged Assets applied in accordance with the Order of Priority set out in the relevant Supplemental Trust Deed and described in the relevant Issuance Document and, in the case of any Shortfall, the Supplementary Assets (if any) or (in the case of a Guaranteed Note) the benefit of the Guarantee (as such terms are defined below). If, in respect of any Relevant Note, the net proceeds of the enforcement or liquidation of the relevant Charged Assets and, as the case may be, the Supplementary Assets or the Guarantee (as applicable) applied as aforesaid are not sufficient to make all payments due in respect of the Relevant Note, no other assets of the Issuer will be available to meet such shortfall, and the claims of the holder of the Relevant Note as against the Issuer in respect of any such shortfall shall be extinguished. In all cases, neither the Holder of a Note nor any person on its behalf shall have the right to petition for the winding-up of the Issuer as a consequence of any shortfall. Noteholders, by acquiring the Notes, expressly accept, and shall be deemed to be bound by, the provisions of the Securitisation Act 2004 and, in particular, the provisions with respect to limited recourse, non-petition, subordination and priority of payments. An Investor intending to acquire or acquiring any securities from any person (an "Offeror") will do so, and offers and sales of the securities to an Investor by an Offeror will be made, in accordance with any terms and other arrangements in place between such Offeror and such Investor including as to price, allocations and settlement arrangements. The Issuer will not be a party to any such arrangements with Investors (other than the Dealers) in connection with the offer or sale of the securities and, accordingly, this Base Prospectus and any Issuance Document will not contain such information and an Investor must obtain such information from the Offeror. Information in relation to an offer to the public will be made available at the time such sub-offer is made, and such information will also be provided by the relevant Offeror. Each Investor must comply with all applicable laws and regulations in each country or jurisdiction in or from which the investor purchases, offers, sells or delivers the Notes or has in the Investor's possession or distributes this Base Prospectus or any accompanying Issuance Document. - 5 -
This Base Prospectus has been prepared on the basis that, except to the extent sub-paragraph (ii) below may apply, any offer of Notes in any Member State of the European Economic Area which has implemented the Prospectus Directive (2003/71/EC) (each, a "Relevant Member State") will be made pursuant to an exemption under the Prospectus Directive, as implemented in that Relevant Member State, from the requirement to publish a prospectus for offers of Notes. Accordingly any person making or intending to make an offer in that Relevant Member State of Notes which are the subject of an offering contemplated in this Base Prospectus as completed by an Issuance Document in relation to the offer of those Notes may only do so (i) in circumstances in which no obligation arises for the Issuer, the Guarantor or any Dealer to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive, in each case, in relation to such offer, or (ii) if a prospectus for such offer has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State and (in either case) published, all in accordance with the Prospectus Directive, provided that any such prospectus has subsequently been completed by an Issuance Document which specifies that offers may be made other than pursuant to Article 3(2) of the Prospectus Directive in that Relevant Member State and such offer is made in the period beginning and ending on the dates specified for such purpose in such prospectus or final terms or drawdown prospectus, as applicable. Except to the extent sub-paragraph (ii) above may apply, neither the Issuer, the Guarantor nor any Dealer have authorised, nor do they authorise, the making of any offer of Notes in circumstances in which an obligation arises for the Issuer, the Guarantor or any Dealer to publish or supplement a prospectus for such offer. This Base Prospectus will be published on the website of the Luxembourg Stock Exchange (www.bourse.lu) in accordance with article 16 of the Luxembourg Act dated 10 July 2005 on prospectuses for securities (the "Prospectus Act 2005"). Copies of this Base Prospectus can also be obtained at the registered office of each of the Issuer and the Guarantor and the specified office of each of the Paying Agents (as defined below), in each case at the address given at the end of this Base Prospectus. Subject as provided in the relevant Issuance Document, the only persons authorised to use this Base Prospectus in connection with an offer of Notes are the persons named in the relevant Issuance Document as the relevant Dealer or the Managers and the persons named in or identifiable in the relevant Issuance Document as financial intermediaries, as the case may be. All references in this document to " ", "pounds", "Pounds Sterling" and "Sterling" are to the lawful currency of the United Kingdom, all references to "$", "dollars", "US$", "USD" and "US dollars" are to the lawful currency of the United States of America and all references to " ", "euro" and "EUR", are to the lawful currency of the member states of the European Union that have adopted or adopt the single currency in accordance with the Treaty establishing the European Community, as amended. - 6 -
TABLE OF CONTENTS Summary... 8 General Description Of The Programme... 16 Risk Factors... 34 Information Incorporated By Reference... 61 Final Terms And Drawdown Prospectuses... 63 Forms Of The Notes... 64 Terms And Conditions Of The Notes... 75 Form Of Final Terms... 154 Use Of Proceeds... 186 Terms Of The Notes... 187 Description Of The Issuer... 188 Taxation... 191 Selling Restrictions... 195 General Information... 200 Index Of Defined Terms... 204-7 -
SUMMARY 1 This summary must be read as an introduction to this Base Prospectus and any decision to invest in the Notes should be based on a consideration of the Base Prospectus as a whole, including any information incorporated by reference. Following the implementation of the Prospectus Directive (Directive 2003/71/EC) in each Member State of the European Economic Area, no civil liability will attach to the Issuer or the Guarantor in any such Member State solely on the basis of this summary, including any translation thereof, unless it is misleading, inaccurate or inconsistent when read together with the other parts of this Base Prospectus, including any information incorporated by reference. Where a claim relating to the information contained in this Base Prospectus is brought before a court in a Member State of the European Economic Area, the plaintiff may, under the national legislation of the Member States, be required to bear the costs of translating the Base Prospectus before the legal proceedings are initiated. Words and expressions defined in the "Terms and Conditions of the Notes" or elsewhere in this Base Prospectus have the same meanings in this Summary. Issuer: Agate Assets S.A., a public limited liability company (société anonyme) regulated and supervised by the CSSF as a regulated securitisation undertaking pursuant to the Securitisation Act 2004, incorporated on 6 January 2012 with its registered office at 11, avenue Emile Reuter L-2420, Luxembourg and registered with the Luxembourg trade and companies register under number B166171. The purpose and object of the Issuer pursuant to its Articles of Incorporation (the "Articles") is to carry out securitisation transactions governed by and under the Securitisation Act 2004. As a regulated securitisation undertaking pursuant to the Securitisation Act 2004, the Issuer is authorised and supervised by the CSSF. The Issuer has no subsidiaries. The shares in the Issuer are held by Agate Assets Charitable Trust, a charitable trust incorporated in Jersey, the trustee for which is State Street Trustees (Jersey) Limited. Other issuers may from time to time accede to the Programme. Guarantor (if applicable): Commerzbank Aktiengesellschaft, a stock corporation established under German law and registered in the commercial register of the lower regional court (Amtsgericht) of Frankfurt am Main under the number HRB 32 000, which has the status of a bank. 1 NTD: Summary to be 2,500 words or less - 8 -
Pursuant to a guarantee dated as of 19 January 2012 (the "Guarantee"), the Guarantor has agreed to provide a guarantee in favour of the Holders of any Guaranteed Notes issued by the Issuer, subject to certain terms (as described below). Please refer to the information regarding Commerzbank AG in the documents incorporated herein by reference. Risk Factors: Arranger: Dealers: Trustee: Custodian: Issue Agent: Luxembourg Listing Agent: Registrar: CREST Registrar: Investing in Notes issued under the Programme involves certain risks. The principal factors that may affect the abilities of the Issuer and Guarantor to fulfil their respective obligations under the Notes are discussed under "Risk Factors" below and include risks arising from (i) the Issuer being a special purpose vehicle, (ii) factors affecting the Guarantor's creditworthiness and ability to fulfil its obligations, (iii) limitations on a Noteholder's recourse to the Issuer and the Underlying Assets and the effect of the Securitisation Act 2004 and Compartments established by the Issuer, (iv) the product structure of certain Notes, (v) modifications, waivers and consents in relation to the Conditions, (vi) taxation on amounts payable to Noteholders, (vii) the lack of an active trading market in the Notes, (viii) investment risks and suitability of the Notes for investors, (ix) the Notes being held in clearing systems, (x) transfer restrictions on the Notes and (xi) certain factors affecting Bullion Notes specifically. Commerzbank AG Commerzbank AG, and any other Dealers appointed under the Dealer Agreement Citicorp Trustee Company Limited or any other entity so named in the relevant Issuance Document Société Générale Bank & Trust and, in respect of any Precious Metals, Commerzbank AG, Luxembourg Branch Société Générale Bank & Trust or any other entity so named in the relevant Issuance Document Société Générale Bank & Trust Société Générale Bank & Trust or any other entity so named in the relevant Issuance Document In respect of Uncertificated Registered Notes only, such entity so named in the relevant Issuance Document - 9 -
Calculation Agent: Principal Paying Agent: Collateral Manager: Final Terms, Drawdown Prospectus or Pricing Supplement: Listing and Trading: Clearing Systems: Initial Programme Amount: Additional Paying Agents: Transfer Agent: Corporate Services Provider: Issuance in Series: Commerzbank AG or any other entity so named in the relevant Issuance Document Société Générale Bank & Trust or any other entity so named in the relevant Issuance Document Commerzbank AG or any other entity named as such in the relevant Issuance Document Notes issued under the Programme may be issued either pursuant to (1) this Base Prospectus and associated Final Terms; (2) a Drawdown Prospectus; or (3) this Base Prospectus and an associated Pricing Supplement. The terms and conditions applicable to any particular Series of Notes will be the Conditions as supplemented, amended and/or replaced pursuant to the relevant Final Terms, Drawdown Prospectus or Pricing Supplement. Applications have been made for Notes issued during the period of twelve months after the date hereof to be listed on the Official List and to trading on the regulated market of the Luxembourg Stock Exchange. The Programme also permits Notes to be issued which will not be admitted to listing or trading. Euroclear and/or Clearstream, Luxembourg and/or CREST and/or any other clearing system specified in the relevant Issuance Document. Up to EUR 10,000,000,000 (or its equivalent in other currencies). Such entities (if any) so named in the relevant Issuance Document Société Générale Bank & Trust or any other entity so named in the relevant Issuance Document Société Générale Bank & Trust Notes will be issued in Series. Each Series may comprise one or more Tranches. The Notes of each Series will all be subject to identical terms, except that the issue date and the amount of the first interest payment may be different in respect of different Tranches. In addition to Notes, the Issuer may also issue common and preferred securities including, without limitation, Beneficiary Shares under any - 10 -
Compartment. Underlying Assets, Compartments: In accordance with the Securitisation Act 2004 and the Articles, the board of directors of the Issuer may create one or more compartments (each a "Compartment") under Category S (a "Category S Compartment"), Category G (a "Category G Compartment") or Category C (a "Category C Compartment"). Each Series of Notes shall be issued under a Category S Compartment or a Category G Compartment. Each Compartment will comprise a pool of assets and liabilities of the Issuer separate from those relating to any other Compartment. In respect of any Series of Notes, and any Related Notes, the Underlying Assets shall include the Charged Assets. The Issuer may issue one or more Series of Notes per Category S Compartment or Category G Compartment (each as described below). The Underlying Assets are available exclusively to satisfy the claims of the relevant Secured Creditors (except as set out below). Notes issued under a Category G Compartment ("Guaranteed Notes") will have the benefit of the Guarantee to the extent the Charged Assets are insufficient to satisfy the claims of the Holders. The Guarantee will only be available to satisfy the claims of the Holders. See "General Description of the Programme" below. Supplementary Assets: The Issuer may create one or more Category C Compartments. To the extent that a Category C Compartment contains any assets ("Supplementary Assets"), such Supplementary Assets shall (A) constitute a pool of assets separate from the Charged Assets relating to any Notes; and (B) be held by the Custodian on behalf of the Issuer, subject to the provisions of the Securitisation Act 2004. As more fully described in the Conditions, the Collateral Manager on behalf of the Issuer may from time to time alter the composition of the Supplementary Assets. The Supplementary Assets will be acquired with funds raised by the issuance of securities (including, without limitation, Beneficiary Shares) under a Category C Compartment. Such securities will be held by Commerzbank AG. The rights of Commerzbank AG in respect of such securities under a Category C Compartment will be subordinated to the rights of any Holder of Category S Notes in respect of which such Category C Compartment has been specified as applicable in the relevant Issuance Document. Category S Notes: In relation to a Series of Notes issued under a Category S - 11 -
Compartment, in respect of which the net proceeds from Charged Assets are not sufficient to satisfy all outstanding claims, the Issuance Document may specify that such Noteholders shall be entitled to share equally and rateably among themselves in the relevant Available Supplementary Assets to the extent of any such shortfall (a "Shortfall"). See "General Description of the Programme" below. Related Notes: Limited Recourse: Secured Creditors: Related Agreements: Security: Order of Priority: Method of Issue: Types of Notes: Terms of Notes: Forms of Notes: A Series of Notes having the same Issue Date and issued under the same Compartment as another Series of Notes. The Issuer is subject to the Securitisation Act 2004 which provides that claims against the Issuer by the Secured Creditors will, in principle, be limited to the net assets of the relevant series included in the relevant Compartment. The Secured Creditors will be such parties as specified in the relevant Supplemental Trust Deed. Only the Secured Creditors will be entitled to share in the proceeds of the Charged Assets and to the benefit of any Security. In connection with the operation of any Compartment, the Issuer may enter into one or more Related Agreements, including derivatives agreements. Subject as provided in the relevant Issuance Document, each Series of Notes and any Related Notes will have the benefit of the Security described in Condition 4.17 (Security). The claims of the Holders of the Notes of any Series shall rank in accordance with the Order of Priority specified in the relevant Supplemental Trust Deed. Notes will be issued on either a syndicated or a non-syndicated continuous basis in series. Notes may be Floating Rate Notes, Fixed Rate Notes, Zero Coupon Notes, Index Linked Notes, Dual Currency Notes, Physical Delivery Notes, Bullion Notes (or a combination of these) or any other type of Notes, as specified in the relevant Issuance Document. The terms of the Notes will be specified in the relevant Issuance Document. Notes may be issued in bearer form or in registered form. Bearer Notes will be exchangeable for Registered Notes, but Registered Notes - 12 -
will not be exchangeable for Bearer Notes. No single Series or Tranche may comprise both Bearer Notes and Registered Notes. Bearer Notes will initially be in the form of either a Temporary Global Note or a Permanent Global Note, in each case as specified in the relevant Issuance Document. Each Global Note which is not intended to be issued in new global note form (a "Classic Global Note" or "CGN"), as specified in the relevant Issuance Document, will be deposited on or around the relevant issue date with a depositary or a common depositary for Euroclear and/or Clearstream, Luxembourg and/or any other relevant clearing system and each Global Note which is intended to be issued in new global note form (a "New Global Note" or "NGN"), as specified in the relevant Issuance Document, will be deposited on or around the relevant issue date with a common safekeeper for Euroclear and/or Clearstream, Luxembourg. Each Temporary Global Note will be exchangeable for a Permanent Global Note or, if so specified in the relevant Issuance Document, for Definitive Notes. If the TEFRA D Rules are specified in the relevant Issuance Document as applicable, certification as to non-u.s. beneficial ownership will be a condition precedent to any exchange of an interest in a Temporary Global Note or receipt of any payment of interest in respect of a Temporary Global Note. Each Permanent Global Note will be exchangeable for Definitive Notes in accordance with its terms. Definitive Notes will, if interest-bearing, have Coupons attached and, if appropriate, a Talon for further Coupons. Registered Notes will be represented by: (i) (ii) Individual Note Certificates; or one or more Unrestricted Global Note Certificates in the case of Registered Notes sold outside the United States to non-u.s. persons in reliance on Regulation S and/or one or more Restricted Global Note Certificates in the case of Registered Notes sold to QIBs in reliance on Rule 144A, in each case as specified in the relevant Issuance Document. Registered Notes will on issue be represented by a Registered Global Note which will be exchangeable for Registered Definitive Notes in certain circumstances set out in such Registered Global Note. Registered Notes will not be exchangeable for Bearer Notes and vice versa. In respect of dematerialised CREST depository interests ("CDIs"), investors will hold CDIs constituted and issued by CREST Depository - 13 -
Limited and representing indirect interests in the Notes. The CDIs will be issued and settled through CREST. Neither the Notes nor any rights thereto will be issued, held, transferred or settled within the CREST system otherwise than through the issue, holding, transfer and settlement of CDIs. Holders of CDIs will not be entitled to deal directly in Notes and accordingly all dealings in the Notes will be effected through CREST in relation to holding of CDIs. See "Forms of the Notes" below. Withholding Tax: All payments in respect of the Notes and the Guarantee will, unless required by law, be made without deduction for or on account of withholding taxes imposed by any tax jurisdiction. In the event that any such deduction is made, the Issuer or, as the case may be, the Guarantor, will not be required to pay additional amounts to cover the amounts so deducted. See risk factors relating to "Taxation" below. Issuer Restrictions: Events of Default: Status of the Notes: So long as any of the Notes remain outstanding, the Issuer will not, without the prior written consent of the Trustee, incur any indebtedness for moneys borrowed or raised other than in respect of Permitted Instruments or Permitted Indebtedness, engage in any activity other than certain activities related to the Notes or any Permitted Instrument or Permitted Indebtedness or consolidate or merge with any other person, all as more fully described in Condition 5. In respect of any Series of Notes, the Trustee at its discretion may give notice (an "Enforcement Notice") to the Issuer and (if applicable) the Guarantor that such Notes are, and they shall accordingly immediately become, due and repayable, at their Redemption Amount together with accrued interest or as otherwise specified in the relevant Issuance Document and the Security in respect of such Series shall thereupon become enforceable on the occurrence of an Event of Default. Events of Default include a default by the Issuer or Guarantor in making payment or performing its obligations under the Notes and the ceasing of the Guarantee to be in full force and effect. The Notes of each Series will be secured, limited recourse obligations of the Issuer, ranking pari passu without any preference among themselves (unless otherwise specified in the relevant Issuance Document) and secured in the manner described in the Conditions. - 14 -
The Guarantee (if applicable) constitutes an unsecured, unsubordinated and general obligation of the Guarantor. Use of Proceeds: Rating: The net proceeds from each Series will be applied by the Issuer to purchase the Charged Assets, fund any initial payment obligations under any Related Agreements and/or as set out in the relevant Issuance Document. The expected rating, if any, of certain Series of Notes to be issued may be specified in the relevant Issuance Document. Governing Law: English law; provided that the Custody Agreement, the Administrative, Corporate and Domiciliary Agent Agreement and the Directorial Services Agreement shall be governed by Luxembourg law. Selling Restrictions: There are restrictions on the offer, sale and transfer of the Notes in the European Economic Area, the United Kingdom, Luxembourg and the United States and such other restrictions as may be required in connection with the offering and sale of a Series of Notes. See "Selling Restrictions" below. - 15 -
GENERAL DESCRIPTION OF THE PROGRAMME The following General Description does not purport to be complete and is taken from, and is qualified in its entirety by, the Summary and the remainder of this Base Prospectus and, in relation to the Conditions of any particular Series of Notes, the relevant Issuance Document. The Issuer and any relevant Dealer may agree that Notes shall be issued in a form other than that contemplated in the Conditions, in which event, in the case of listed Notes only, if appropriate, a supplement to the Base Prospectus will be published pursuant to Article 16 of the Prospectus Directive and Article 13(1) of the Prospectus Act 2005. This General Description constitutes a general description of the Programme for the purposes of article 22.5(3) of Commission Regulation (EC) No 809/2004 implementing the Prospectus Directive. Unless otherwise specified, words and expressions defined in the sections headed "Terms and Conditions of the Notes" and "Forms of the Notes" shall have the same meanings in this General Description. Issuer: Guarantor (if applicable): Risk Factors: Agate Assets S.A. (a regulated securitisation undertaking, regulated and supervised by the CSSF pursuant to the Securitisation Act 2004) or such additional issuers that accede to the Programme after the date hereof. Commerzbank AG. Only Notes specified in the relevant Issuance Document to be Guaranteed Notes will have the benefit of the Guarantee. There are certain factors that may affect each of the Issuer's and (if applicable) the Guarantor's ability to fulfil its obligations with respect to Notes issued under the Programme. These are set out in the section headed "Risk Factors". The Issuer is subject to the Securitisation Act 2004 which provides that claims against the Issuer by the Secured Creditors will, in principle, be limited to the net assets of the relevant Series included in the relevant Compartment, save as provided in Conditions 4.4 to 4.10 (Supplementary Assets) with respect to Category S Notes. Accordingly, in respect of any Compartment and any Note (the "Relevant Note"), the entitlement of the Holder of the Relevant Note will be limited to such Noteholder's pro rata share of the proceeds of the relevant Charged Assets applied in accordance with the Order of Priority specified in the relevant Supplemental Trust Deed and described in the relevant Issuance Document and, in the case of any Shortfall, the Supplementary Assets (if any) or (in the case of Guaranteed Notes) the benefit of the Guarantee. If, in respect of any Relevant Note, the net proceeds of the - 16 -
enforcement or liquidation of the relevant Charged Assets and, as the case may be, the Supplementary Assets or the Guarantee (as applicable) applied as aforesaid are not sufficient to make all payments due in respect of the Relevant Note, no other assets of the Issuer will be available to meet such shortfall, and the claims of the Holder of the Relevant Note as against the Issuer in respect of any such shortfall shall be extinguished. In all cases, neither the Holder of a Note nor any person on its behalf shall have the right to petition for the winding-up of the Issuer as a consequence of any shortfall. Holders, by acquiring the Notes, expressly accept, and shall be deemed to be bound by, the provisions of the Securitisation Act 2004 and, in particular, the provisions with respect to limited recourse, non-petition, subordination and priority of payments. Description: Board of Directors of the Issuer: Arranger: Dealers: Trustee: Custodian: Issue Agent: Registrar: CREST Registrar: Calculation Agent: Continuously issued Asset Backed Medium Term Note Programme The Board shall comprise two directors who are employees of Structured Finance Management (Luxembourg) S.A., appointed pursuant to the directorial services agreement dated as of 19 January 2012 (the "Directorial Services Agreement") and one director who is an employee of Commerzbank AG. Commerzbank AG Commerzbank AG, and any other Dealers appointed in accordance with the Dealer Agreement Citicorp Trustee Company Limited or any other entity named as such in respect of a Series of Notes in the relevant Issuance Document Société Générale Bank & Trust and, in respect of any Precious Metals only, Commerzbank AG, Luxembourg Branch Société Générale Bank & Trust or any other entity named as such in respect of a Series of Notes in the relevant Issuance Document Société Générale Bank & Trust or any other entity named as such in respect of a Series of Notes in the relevant Issuance Document In respect of Uncertificated Registered Notes only, such entity named as such in respect of a Series of Notes in the relevant Issuance Document Commerzbank AG or any other entity named as such in respect of a Series of Notes in the relevant Issuance Document - 17 -
Principal Paying Agent: Additional Paying Agents: Transfer Agent: Corporate Services Provider: Market Maker: Collateral Manager: Société Générale Bank & Trust or any other entity named as such in respect of a Series of Notes in the relevant Issuance Document Such entities (if any) named as such in the relevant Issuance Document Société Générale Bank & Trust or any other entity named as such in respect of a Series of Notes in the relevant Issuance Document Société Générale Securities Services Luxembourg will provide administrative, corporate and domiciliation services to the Issuer pursuant to the administrative, corporate and domiciliary agent agreement dated as of 19 January 2012 (the "Administrative, Corporate and Domiciliary Agent Agreement"). The Issuer may appoint Commerzbank AG as a market maker (in such capacity, the "Market Maker") in respect of a Series of Notes with the purpose of ensuring a secondary market in such Notes. Such appointment will be made pursuant to a market making agreement entered into between the Issuer and the Market Maker (a "Market Making Agreement"). Under a Market Making Agreement the Issuer will undertake to purchase Notes which the Market Maker holds through purchases made in the market in the course of its market making activities, subject to and in accordance with the provisions of such agreement. The Issuer has appointed Commerzbank AG London Branch as the Collateral Manager to manage the Supplementary Assets (if any) pursuant to a collateral management agreement entered into between, inter alios, the Issuer and Commerzbank AG London Branch (the "Collateral Management Agreement"). The Issuer may from time to time appoint Commerzbank AG London Branch or other entity named as such in respect of a Series of Notes (as specified in the relevant Issuance Document) to manage the Charged Assets (including any Underlying Precious Metal) of any Series of Notes, as specified in the relevant Issuance Document. Clearing: Initial Delivery of Notes: Clearstream, Luxembourg and/or Euroclear, CREST and/or in relation to any Series, such other clearing system as may be agreed between the Issuer, the Issue Agent, the Principal Paying Agent and the relevant Dealer(s). If specified in the relevant Issuance Document or before the issue date for each Tranche, the Bearer Global Note or the Registered Global Note may (or, in the case of Notes listed on the Luxembourg Stock - 18 -
Exchange, shall) be deposited with a common depository for Euroclear and Clearstream, Luxembourg or if specified in the relevant Issuance Document with a custodian for, and registered in the name of a nominee of, DTC unless in the case of (a) any temporary Bearer Global Note or permanent Bearer Global Note, the Note is intended to be an NGN (as defined herein) or (b) any Registered Global Note, the relevant Issuance Document indicated that such Note is intended to be a NSSRGN (as defined herein) in which case it will be deposited with a common safekeeper for Euroclear and Clearstream, Luxembourg. Bearer Global Notes or Registered Global Notes relating to Notes that are not listed on the Luxembourg Stock Exchange (and not intended to be an NGN or an NSSRGN (as the case may be)) may also be deposited with any other clearing system or may be delivered outside any clearing system, provided that the method of such delivery has been agreed in advance by the Issuer, the Issue Agent, the Principal Paying Agent and the relevant Dealer(s). Registered Notes that are to be credited to one or more clearing systems on issue will be registered in the name of nominees or a common nominee for such clearing systems. Eurosystem-eligible NGN Form and Eurosystem-eligible NSSRGN Form: If indicated in the relevant Issuance Document, any Bearer Global Notes or Registered Global Notes issued from time to time may be intended to be held in a manner which will allow Eurosystem eligibility which means that they are intended to be recognised as eligible collateral for Eurosystem monetary policy and intra-day credit operations by the Eurosystem. Accordingly, Bearer Global Notes may be issued in the Eurosystem-eligible NGN form (as defined herein) and Registered Global Notes may be issued in the Eurosystem-eligible NSSRGN form (as defined herein). A temporary Bearer Global Note or a permanent Bearer Global Note, in either case where the relevant Issuance Document indicates that such Note is intended to be issued in new global note form is referred to as a "New Global Note" or "NGN" and an NGN which is intended to be held in a manner which would allow Eurosystem eligibility, as indicated in the relevant Issuance Document, is referred to as a "Eurosystem-eligible NGN". A Registered Global Note where the relevant Issuance Document indicates that such Note is intended to be issued under the new safekeeping structure is referred to as a "NSS Registered Global Note" or "NSSRGN" and an NSSRGN which is intended to be held in a manner which would allow Eurosystem eligibility, as indicated in the relevant Issuance Document, is referred to as a "Eurosystem-eligible NSSRGN". The "Eurosystem" refers to the European System of Central Banks as the term is used by the - 19 -
Governing Council of the European Central Bank. Compartments, Underlying Assets: In accordance with the Securitisation Act 2004 and the Articles, the board of directors of the Issuer may create one or more compartments (each a "Compartment") under Category S (a "Category S Compartment"), Category G (a "Category G Compartment") or Category C (a "Category C Compartment"). Each Series of Notes shall be issued under a Category S Compartment or a Category G Compartment. Each Compartment will comprise a pool of assets and liabilities of the Issuer separate from those relating to any other Compartment. In respect of any Series of Notes, and any Related Notes, the Underlying Assets shall include the Charged Assets described in the relevant Issuance Document. The Issuer may issue one or more Series of Notes per Category S Compartment or Category G Compartment. The Underlying Assets are available exclusively to satisfy the claims of the Secured Creditors (except as set out in the Conditions). Category S Notes and Supplementary Assets: If, in respect of any payments due and payable or any Delivery Amount due and deliverable in respect of a Series of Category S Notes, the amounts or assets received by the Principal Paying Agent on or prior to the due date thereof are insufficient (including, where applicable, following the enforcement or liquidation of the relevant Charged Assets) to satisfy the Issuer's obligations on such date, the relevant Holders of such Notes shall be entitled to share equally and rateably among themselves (subject to Condition 4.9) in the Available Supplementary Assets (as defined below) (if any) to the extent of any such shortfall (a "Shortfall"). Holders of such Category S Notes shall not be entitled to assets in relation to any Category C Compartment other than that specified in the relevant Issuance Document. In the event of a Shortfall, the Principal Paying Agent shall as soon as reasonably practicable notify the Trustee in writing of the amount of such Shortfall (a "Shortfall Trigger Notice"). Upon receipt of a Shortfall Trigger Notice, the Trustee shall as soon as reasonably practicable notify the Custodian and the Issuer in writing of the amount of such Shortfall (such notice, a "Shortfall Notice"), whereupon the Issuer (or the Custodian on its behalf) shall (i) promptly provide details in writing to the Trustee and any Appointee (as defined in the Trust Deed) of any Supplementary Assets available at such time (such Supplementary Assets, the "Available Supplementary Assets") and (ii) transfer such Available Supplementary Assets to the Collateral Manager to the extent of the Shortfall in such manner as requested by the Collateral Manager. The Collateral Manager shall thereafter use - 20 -