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 Xxxxxx Xxxxxxxx
Deutsche Bank Place
Corner Hunter and Xxxxxxx Xxxxxxx
Xxxxxx XXX 0000
Tel 00 0 0000 0000
Fax 00 0 0000 0000
xxx.xxx.xxx.xx
(C) Copyright Allens Xxxxxx Xxxxxxxx 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 XXXXXXXXX 00
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 XXXXXXXXX 00
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
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PARTIES
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1. PERPETUAL TRUSTEES CONSOLIDATED LIMITED (ABN 81 004 029 841)
incorporated in Australia and registered in Victoria of Xxxxx 00
Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000 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 0-00 Xxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxx Xxxxx Xxxxx 0000, 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 000 Xxxxxxx
Xxxxxx, Xxxxx 21 West, New York, New York 10286, United States of
America as principal paying agent for the Class A-1 Notes described
below and acting through its office at 00xx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxx X00 0XX, Xxxxxx Xxxxxxx as principal paying agent for the
Class A-2 Notes described below (together the PRINCIPAL PAYING
AGENT, which expression shall, wherever the context requires,
include any successor principal paying agent from time to time under
this agreement and, except where the context otherwise requires, the
Principal Paying Agent 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 000 Xxxxxxx
Xxxxxx, Xxxxx 21 West, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx 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 00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxx
Xxxxxxx 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 00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX,
Xxxxxx Xxxxxxx as calculation agent in relation to the Offshore
Notes described below (the CALCULATION AGENT, which expression
shall, wherever the context requires, include any successor
calculation agent from time to time).
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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, Xx.Xxxxxx Bank
Limited and the Manager.
NOTE PARTY has the meaning given to that term in clause 18.2.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust dated
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 00xx Xxxxx, 0 Xxxxxx
Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx.
SUPPLEMENTARY TERMS NOTICE means the Supplementary Terms Notice dated on
or about the date of this agreement relating to the Trust.
TRUST means the trust known as the Crusade Global Trust No. 2 of 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
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(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
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(a) The Trustee (acting on the direction of the Manager) appoints
the Calculation Agent as its reference agent in respect of the
Offshore Notes upon the terms and conditions set forth in this
agreement and the Calculation Agent accepts that appointment.
(b) It is acknowledged and agreed that:
(i) the Calculation Agent is the agent of the Trustee in its
capacity as trustee of the Trust only; and
(ii) despite anything else in this agreement, any other
Transaction Document or at law, the Trustee in its
personal capacity is not responsible for any act or
omission of the Calculation Agent except to the extent
of losses, costs, claims or damages caused by the fraud,
negligence or Default of the Trustee.
6. DUTIES OF THE CALCULATION AGENT
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(a) The Calculation Agent shall, in relation to the Offshore Notes,
until their final maturity or such earlier date on which the
Offshore Notes are due and payable in full and in either case
until the Trustee has paid all amounts in relation to the
Offshore Notes to the Principal Paying Agent or, if applicable,
the Note Trustee:
(i) perform such duties at its Specified Office as are set
forth in this agreement and in the relevant Conditions
and any other duties which are reasonably incidental at
the request of the Trustee, the Manager, the Note
Trustee or the Principal Paying Agent;
(ii) determine LIBOR (in respect of the Class A-1 Notes) and
EURIBOR (in respect of the Class A-2 Notes) for each
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
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(a) At any time after:
(i) an Event of Default has occurred in relation to an
Offshore Note; or
(ii) Definitive Notes 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
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(a) If the Trustee intends to redeem the Offshore Notes prior to
their Final Maturity Date pursuant to the relevant Condition 5
(which it may only do at the direction of the Manager), the
Manager shall give not less than 5 days' prior 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
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(a) If the Trustee is required to redeem some (but not all) of the
Offshore Notes prior to their Final Maturity Date pursuant to
the relevant Condition 5 the Manager shall on each Determination
Date give prior notice to the Calculation Agent, the Principal
Paying Agent and the Note Trustee, as provided in the relevant
Condition 5.
(b) On receipt of a notice under paragraph (a), the Principal Paying
Agent shall notify the 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
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(a) All Definitive Notes which are redeemed in their entirety (but
not partial redemptions of Definitive Notes in accordance with
the relevant Condition 5), 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.
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16. THE NOTE REGISTER
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16.1 APPOINTMENT OF NOTE REGISTRARS
(a) The Trustee appoints The Bank of New York to be the initial
Class A-1 Note Registrar. The Bank of New York accepts that
appointment.
(b) The Trustee appoints The Bank of New York to be the initial
Class A-2 Note Registrar. The Bank of New York accepts that
appointment.
16.2 DETAILS TO BE KEPT ON THE NOTE REGISTER
The Class A-1 Note Registrar shall keep the Class A-1 Note Register, and
the Class A-2 Note Registrar shall keep the Class A-2 Note Register, in
each case with respect to the Trust in accordance with the terms of this
agreement and Note Trust Deed, on which shall be entered the following
information relating to the Trust:
(a) (NAME) the name of the Trust;
(b) (CREATION) the date of the creation of the Trust;
(c) (ISSUE DATES) the Issue Dates for Class A-1 Notes (in the case
of the Class A-1 Note Register) or Class A-2 Notes (in the case
of the Class A-2 Note Register) issued in relation to the Trust;
(d) (INITIAL INVESTED AMOUNT) the total Initial Invested Amount of
Class A-1 Notes (in the case of the Class A-1 Note Register) or
Class A-2 Notes (in the case of the Class A-2 Note Register)
issued on each such Issue Date;
(e) (INVESTED AMOUNT) the Invested Amount of each Class A-1 Note (in
the case of the Class A-1 Note Register) or Class A-2 Note (in
the case of the Class A-2 Note Register) from time to time;
(f) (STATED AMOUNT) the Stated Amount of each Class A-1 Note (in the
case of the Class A-1 Note Register) or Class A-2 Note (in the
case of the Class A-2 Note Register) from time to time;
(g) (SERIES) details of relevant Classes of Class A-1 Notes (in the
case of the Class A-1 Note Register) or Class A-2 Notes (in the
case of the Class A-2 Note Register);
(h) (DETAILS OF NOTEHOLDERS) the name and address of each Class A-1
Noteholder (in the case of the Class A-1 Note Register) or Class
A-2 Noteholder (in the case of the Class A-2 Note Register);
(i) (NUMBER OF NOTES) the number of Class A-1 Notes (in the case of
the Class A-1 Note Register) or Class A-2 Notes (in the case of
the Class A-2 Note Register) held by each Class A-1 Noteholder
(in the case of the Class A-1 Note Register) or Class A-2 Notes
held by each Class A-2 Noteholder (in the case of the Class A-2
Note Register);
(j) (DATE OF ENTRY) the date on which a person was entered as the
holder of Class A-1 Notes (in the case of the Class A-1 Note
Register) or Class A-2 Notes (in the case of the Class A-2 Note
Register);
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(k) (DATE OF CESSATION) the date on which a person ceased to be a
Class A-1 Noteholder (in the case of the Class A-1 Note
Register) or Class A-2 Noteholder (in the case of the Class A-2
Note Register);
(l) (ACCOUNT) the account to which any payments due to a Class A-1
Noteholder (in the case of the Class A-1 Note Register) or Class
A-2 Noteholder (in the case of the Class A-2 Note Register) are
to be made (if applicable);
(m) (PAYMENTS) a record of each payment in respect of the Class A-1
Notes (in the case of the Class A-1 Note Register) or Class A-2
Notes (in the case of the Class A-2 Note Register); and
(n) (ADDITIONAL INFORMATION) such other information as:
(i) is required by the Supplementary Terms Notice;
(ii) the relevant Note Registrar considers necessary or
desirable; or
(iii) the Manager or the Trustee reasonably requires in
writing with respect to Class A-1 Notes (in the case of
the Class A-1 Note Register) or Class A-2 Notes (in the
case of the Class A-2 Note Register).
16.3 PAYMENTS OF PRINCIPAL AND INTEREST
(a) Any payment of principal or interest on any Offshore Note shall
be endorsed by the relevant Note Registrar on the relevant Note
Register. In the case of payments of principal, the Invested
Amount of the Offshore Notes shall be reduced for all purposes
by the amount so paid and endorsed on the relevant Note
Register. Any such record shall be prima facie evidence that the
payment in question has been made.
(b) If the amount of principal or interest (as the case may be) due
for payment on any Offshore Note is not paid in full (including
Carryover Charge Offs and by reason of a deduction or
withholding) the relevant Note Registrar shall endorse a record
of that shortfall on the relevant Note Register.
16.4 PLACE OF KEEPING NOTE REGISTERS, COPIES AND ACCESS
Each Note Register shall be:
(a) (PLACE KEPT) in the case of the Class A-1 Note Register, kept at
the office of the Class A-1 Note Registrar at 000 Xxxxxxx
Xxxxxx, Xxxxx 21 West, New York, New York, 10286 or at such
place as the Trustee, the Manager and the Class A-1 Note
Registrar may agree, and in the case of the Class A-2 Note
Register, kept at the office of the Class A-2 Note Registrar at
00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx or
at such place as the Trustee, the Manager and the Class A-2 Note
Registrar may agree;
(b) (ACCESS TO MANAGER AND AUDITOR) open to the Trustee, the
Manager, the Note Trustee and the Auditor of the Trust to
inspect during normal business hours;
(c) (INSPECTION BY OFFSHORE NOTEHOLDERS) open for inspection by the
Note Trustee or a relevant Offshore Noteholder during normal
business hours but, in the case of such an Offshore Noteholder,
only in respect of information relating to that Offshore
Noteholder; and
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(d) (NOT FOR COPYING) not available to be copied by any person
(other than the Trustee, the Manager or the Note Trustee) except
in compliance with such terms and conditions (if any) as the
Manager, the Trustee and the relevant Note Registrar in their
absolute discretion nominate from time to time.
16.5 DETAILS ON NOTE REGISTER CONCLUSIVE
(a) (RELIANCE ON REGISTER) The Trustee shall be entitled to rely on
a Note Register as being a correct, complete and conclusive
record of the matters set out in it at any time and whether or
not the information shown in that Note Register is inconsistent
with any other document, matter or thing. The Trustee is not
liable to any person in any circumstances whatsoever for any
inaccuracy in, or omission from, a Note Register.
(b) (NO TRUSTS ETC) No Note Registrar shall be obliged to enter on a
Note Register notice of any trust, Security Interest or other
interest whatsoever in respect of any Offshore Notes and the
Trustee shall be entitled to recognise an Offshore Noteholder as
the absolute owner of Offshore Notes and the Trustee shall not
be bound or affected by any trust affecting the ownership of any
Offshore Notes unless ordered by a court or required by statute.
16.6 ALTERATION OF DETAILS ON NOTE REGISTER
On a Note Registrar being notified of any change of name or address or
payment or other details of a relevant Offshore Noteholder by the
Offshore Noteholder, that Note Registrar shall alter the relevant Note
Register accordingly.
16.7 RECTIFICATION OF NOTE REGISTER
If:
(a) an entry is omitted from a Note Register;
(b) an entry is made in a Note Register otherwise than in accordance
with this agreement;
(c) an entry wrongly exists in a Note Register;
(d) there is an error or defect in any entry in a Note Register; or
(e) default is made or unnecessary delay takes place in entering in
a Note Register that any person has ceased to be the holder of
relevant Offshore Notes,
that Note Registrar may rectify the same.
16.8 CORRECTNESS OF NOTE REGISTER
No Note Registrar shall be liable for any mistake, error or omission on
a Note Register or in any purported copy except to the extent that the
mistake, error or omission is attributable to its fraud, negligence or
wilful default or that of its directors, officers or employees who have
day to day responsibility for the administration of the Note Trust or
that Note Register.
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17. CHANGES OF NOTE REGISTRAR
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17.1 REMOVAL
The Trustee (or the Manager on its behalf after advising the Trustee)
may terminate the appointment of a Note Registrar with the prior written
approval of the Note Trustee (which approval must not be unreasonably
withheld or delayed), with effect not less than 60 days from that
notice.
17.2 RESIGNATION
Subject to this clause 17, a Note Registrar may resign its appointment
at any time by giving to the Trustee, the Manager and the Note Manager
not less than 60 days prior written notice to that effect.
17.3 LIMITATION
Despite clauses 17.1 and 17.2:
(a) no resignation by or termination of the appointment of a Note
Registrar shall take effect until a new Note Registrar for the
applicable Offshore Notes approved in writing by the Note
Trustee has been appointed on terms previously approved in
writing by the Note Trustee (in each case, that approval not to
be unreasonably withheld or delayed); and
(b) the appointment of a new Note Registrar shall be on the terms
and subject to the conditions of this agreement and the outgoing
Note Registrar shall co-operate fully to do all further acts and
things and execute any further documents as may be necessary or
desirable to give effect to the appointment of the new Note
Xxxxxxxxx.
00. GENERAL
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18.1 COMMUNICATIONS TO OFFSHORE NOTEHOLDERS
The Principal Paying Agent shall, upon receipt from the Trustee,
Manager, Security Trustee or Note Trustee of any communication to be
delivered to Offshore Noteholders or Class A Note Owners (as the case
may be) including any communications pursuant to clauses 3.3, 3.4, 7.1,
11(n)(i), 18(a), 22.3 or 23.2 of the Note Trust Deed or any other
solicitation of notice from or consent of the Offshore Noteholders or
Class A Note Owners pursuant to or relating to the Note Trust Deed or
this agreement, forward such communications to the Offshore Noteholders
or Class A Note Owners, along with instructions that the responses
relating to such communications be returned to the Principal Paying
Agent. Such communication shall include the date upon which the response
to such solicitation shall be delivered (the RESPONSE DATE). The
Principal Paying Agent shall treat any Offshore Noteholder or Class A
Note Owner who has not delivered its response as of the Response Date as
having withheld its consent to the proposed action. The Principal Paying
Agent shall notify the Trustee, Manager and Note Trustee of the results
of any such solicitations of consent.
18.2 AGENCY
Subject to any other provision of this agreement including clause 7,
each of the Paying Agents, the Calculation Agent and the Note Registrars
(each a NOTE PARTY) shall act solely for and as agent of the Trustee and
shall not have any obligations towards or relationship of agency or
trust with any person
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entitled to receive payments of principal and/or interest on the
Offshore Notes and shall be responsible only for performance of the
duties and obligations expressly imposed upon it in this agreement.
18.3 IDENTITY
Each Paying Agent shall (except as ordered by a court of competent
jurisdiction or as required by law) be entitled to treat the person:
(a) who is, while a Book-Entry Note remains outstanding, the
registered owner of that Book-Entry Note as the person entitled
to receive payments of principal or interest (as applicable) and
each person shown in the records of the relevant Common
Depository as the holder of any Offshore Note represented by a
Book-Entry Note shall be entitled to receive from the registered
owner of that Book-Entry Note any payment so made in accordance
with the respective rules and procedures of that Common
Depository and on the terms and subject to the conditions of
that Book-Entry Note;
(b) who is the registered owner of any relevant Definitive Note, as
the absolute owner or owners of that Definitive Note, (whether
or not that Definitive Note, is overdue and despite any notice
of ownership or writing on it or any notice of previous loss or
theft or of any trust or other interest in it); or
(c) who, when a Book-Entry Note in respect of any Offshore Note is
no longer outstanding but Definitive Notes in respect of the
Offshore Notes have not been issued, is for the time being the
Note Trustee, as the person entrusted with the receipt of
principal or interest, as applicable, on behalf of the Offshore
Noteholders,
and in all cases and for all purposes despite any notice to the contrary
and shall not be liable for so doing.
18.4 NO SET-OFF
No Paying Agent shall exercise any right of set-off, withholding,
counterclaim or lien against, or make any deduction in any payment to,
any person entitled to receive amounts of principal or interest on the
Offshore Notes in respect of moneys payable by it under this agreement.
18.5 RELIANCE
Each of the Calculation Agent, the Note Registrars and the Paying
Agent(s) shall be protected and shall incur no liability for or in
respect of any action taken, omitted or suffered by it in reliance upon
any instruction, request or order from the Trustee or the Manager or in
reliance upon any Offshore Note or upon any notice, resolution,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been
delivered, signed or sent by the proper party or parties.
18.6 ENTITLED TO DEAL
A Note Party or any of its directors or officers shall not be precluded
from acquiring, holding or dealing in any Offshore Notes or from
engaging or being interested in any contract or other financial or other
transaction or arrangement with the Trustee, the Manager or the Servicer
as freely as if it were not an agent of the Trustee under this agreement
and in no event whatsoever (other than fraud,
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wilful default or negligence) shall any Note Party be liable to account
to the Trustee or any person entitled to receive amounts of principal or
interest on the Offshore Notes for any profit made or fees or
commissions received in connection with this agreement or any Offshore
Notes.
18.7 CONSULTATION
Each Note Party may properly consult as to legal matters with lawyers
selected by it, who may be employees of or lawyers to the Trustee, the
Manager or the relevant Paying Agent or the Calculation Agent. The Note
Party must promptly notify the Trustee and the Manager of any such
appointment or consultation.
18.8 DUTIES
Each Note Party shall perform the duties, and only the duties, contained
in or reasonably incidental to this agreement and the Conditions and in
the Offshore Notes, and no implied duties or obligations (other than
general laws as to agency) shall be read into this agreement or the
Offshore Notes against any Note Party. A Note Party shall not be
required to take any action under this agreement which would require it
to incur any expense or liability, for which (in its reasonable opinion)
either it would not be reimbursed within a reasonable time or in respect
of which it has not been indemnified to its satisfaction.
18.9 INCOME TAX RETURNS
The Principal Paying Agent shall, subject always to compliance with
mandatory provisions of law, upon request from any Offshore Noteholder,
deliver to such Offshore Noteholder such information as may be
reasonably required to enable such Offshore Noteholder to prepare all
applicable income tax returns.
18.10 TAXES
Each Paying Agent shall file such returns concerning payments under this
agreement as shall be required of it by applicable law, but shall not be
responsible for the collection or withholding of Taxes due on such
payments except, and only to the extent, required of it as Paying Agent
by applicable law.
18.11 WRITTEN INSTRUCTIONS
Each Paying Agent may, at any time, apply to the Trustee for written
instructions with respect to any matter arising under this agreement and
shall be fully protected in acting in accordance with such instructions.
18.12 NO REPRESENTATIONS
No Paying Agent makes any representation with respect to the validity or
sufficiency of the Offshore Notes, or the use or application of the
proceeds of sale or distribution of the Offshore Notes, and shall incur
no liability with respect to the foregoing.
18.13 EUROPEAN UNION TAX DIRECTIVE
(a) The obligations of the Paying Agent with respect to any Offshore
Notes under this agreement are subject to:
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(i) the provisions of the EU Tax Directive; and
(ii) the "beneficial owner" (as defined in the EU Tax
Directive) providing to that Paying Agent such
information and documents (if any) required by that
Paying Agent in order for it to comply with the EU Tax
Directive.
(b) The Trustee authorises each Paying Agent to make mandatory
disclosures required by the EU Tax Directive to be made to the
competent authority of the member state of the European Union of
that Paying Agent.
18.14 KNOW YOUR CUSTOMER
The Trustee and the Manager agree to, and the Offshore Noteholders may
be requested to, provide any information and documents reasonably
required by a Note Party for it to comply with any "know your customer"
or other identification checks or procedures under any law or regulation
to the extent that such information is in the possession of, or
otherwise available to the Trustee, Manager or the Offshore Noteholders
(as the case may be). The Note Party may, to the extent required by law,
decline to perform its affected obligations under the Transaction
Documents to which it is a party to the extent that such information and
documents are not provided.
19. CHANGES IN PAYING AGENTS AND CALCULATION AGENT
--------------------------------------------------------------------------------
19.1 REMOVAL
The Trustee (or the Manager with the consent of the Trustee (such
consent not to be unreasonably withheld)) may at any time:
(a) with the prior written approval of the Note Trustee appoint:
(i) additional or alternative Paying Agents; or
(ii) an alternative Calculation Agent;
(b) subject to this clause 19, terminate the appointment of any
Paying Agent or the Calculation Agent by giving written notice
to that effect to each Designated Rating Agency, the Note
Trustee, the Calculation Agent (if its appointment is to be
terminated), the Principal Paying Agent and (if different) the
Paying Agent whose appointment is to be terminated:
(i) with effect immediately on that notice, if any of the
following occurs in relation to the Paying Agent or
Calculation Agent (as the case may be):
(A) an Insolvency Event has occurred in relation to
the Paying Agent or Calculation Agent;
(B) the Paying Agent or Calculation Agent has ceased
its business;
(C) the Paying Agent or Calculation Agent fails to
comply with any of its obligations under this
agreement and, if capable of remedy, such
failure is not remedied within five days after
the earlier of (1) the Paying Agent or the
Calculation Agent, as the case may be, having
become aware of that failure and (2) the receipt
by the Paying Agent or the Calculation Agent,
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as the case may be, of written notice with
respect thereto from the Trustee or Manager; or
(ii) otherwise, with the prior written approval of the Note
Trustee (which approval must not be unreasonably
withheld or delayed) with effect not less than 60 days'
from that notice, which date shall be not less than 30
days before nor 30 days after any due date for payment
of any Offshore Notes.
19.2 RESIGNATION
Subject to this clause 19, a Paying Agent or the Calculation Agent may
resign its appointment under this agreement at any time by giving to the
Trustee, the Manager, each Designated Rating Agency and (where a Paying
Agent is resigning and the Paying Agent is not the Principal Paying
Agent) the Principal Paying Agent not less than 60 days' written notice
to that effect, which notice shall expire not less than 30 days before
or 30 days after any due date for payment of any Offshore Notes.
19.3 LIMITATION
Despite clauses 19.1 and 19.2:
(a) no resignation by or termination of the appointment of the
Principal Paying Agent shall take effect until a new Principal
Paying Agent approved in writing by the Note Trustee has been
appointed on terms previously approved in writing by the Note
Trustee (in each case, that approval not to be unreasonably
withheld or delayed);
(b) subject to clause 19.3(a), if any Paying Agent or the
Calculation Agent resigns in accordance with clause 19.2, but by
the day falling 15 days before the expiry of any notice under
clause 19.2 the Trustee or the Manager has not appointed a new
Paying Agent or Calculation Agent then the relevant Paying Agent
or Calculation Agent (as the case may be) may appoint in its
place any reputable bank or trust company of good standing
approved in writing by the Note Trustee and provided that the
appointment is made on terms previously approved in writing by
the Note Trustee (in each case, that approval not to be
unreasonably withheld or delayed);
(c) no resignation by or termination of the appointment of any
Paying Agent shall take effect if as a result of that
resignation or termination there would cease to be a Paying
Agent which has a Paying Office in the City of New York (in the
case of the Class A-1 Notes) or the United Kingdom (in the case
of the Class A-2 Notes);
(d) no appointment or termination of the appointment of any Paying
Agent or the Calculation Agent (as the case may be) shall take
effect unless and until notice has been given to the Offshore
Noteholders in accordance with the relevant Conditions; and
(e) if:
(i) the EU Tax Directive is in force; and
(ii) a Paying Agent accepts its appointment (such appointment
made in accordance with clause 11(e) of the Note Trust
Deed) on the express basis that it will act through an
office in a member country of the European Union that is
not obliged to withhold or deduct tax pursuant to the EU
Tax Directive (the EU TAX DIRECTIVE PAYING AGENT),
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no resignation by or termination of the appointment of the EU
Tax Directive Paying Agent shall take effect unless and until
a new EU Tax Directive Paying Agent has been appointed; and
(f) the appointment of any additional Paying Agent shall be on the
terms and subject to the conditions of this agreement and each
of the parties to this agreement shall co-operate fully to do
all further acts and things and execute any further documents as
may be necessary or desirable to give effect to the appointment
of the Paying Agent (which shall not, except in the case of an
appointment under clause 19.1(a) or a termination under clause
19.1(b)(ii) or a resignation under clause 19.2, be at the cost
of the Trustee).
In addition, the Trustee at the direction of the Manager shall forthwith
appoint a Paying Agent with a Paying Office in the City of New York (in
the case of the Class A-1 Notes), in the United Kingdom (in the case of
the Class A-2 Notes), and otherwise in the circumstances described in
the relevant Condition 6 (if there is no such Paying Agent at the time)
and while such circumstances subsist maintain such a Paying Agent.
Notice of any such termination or appointment and of any change in the
office through which any Paying Agent will act will be given by the
Manager on behalf of the Trustee in accordance with the relevant
Condition 12.
19.4 DELIVERY OF AMOUNTS
If the appointment of the Principal Paying Agent terminates, the
Principal Paying Agent shall, on the date on which that termination
takes effect, pay to the successor Principal Paying Agent any amount
held by it for payment of principal or interest in respect of any
Offshore Note and shall deliver to the successor Principal Paying Agent
all records maintained by it pursuant to this agreement and all
documents (including any Definitive Notes) held by it under this
agreement.
19.5 SUCCESSOR TO PAYING AGENTS
(a) On the execution by the Trustee, the Manager and any successor
Paying Agent of an instrument effecting the appointment of that
successor Paying Agent, that successor Paying Agent shall,
without any further act, deed or conveyance, become vested with
all the authority, rights, powers, trusts, immunities, duties
and obligations of its predecessor with effect as if originally
named as Paying Agent (or, in the case of a successor Principal
Paying Agent, as if originally named as Principal Paying Agent)
in this agreement and that predecessor, on payment to it of the
pro rata proportion of its administration fee and disbursements
then unpaid (if any), shall have no further liabilities under
this agreement, except for any accrued liabilities arising from
or relating to any act or omission occurring prior to the date
on which the successor Paying Agent is appointed.
(b) Any corporation:
(i) into which a Paying Agent is merged;
(ii) with which a Paying Agent is consolidated;
(iii) resulting from any merger or consolidation to which a
Paying Agent is a party; or
(iv) to which a Paying Agent sells or otherwise transfers all
or substantially all the assets of its corporate trust
business,
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shall, on the date when that merger, conversion, consolidation,
sale or transfer becomes effective and to the extent permitted
by applicable law, become a successor Paying Agent under this
agreement without the execution or filing of any agreement or
document or any further act on the part of the parties to this
agreement, unless otherwise required by the Trustee or the
Manager, and after that effective date all references in this
agreement to a Paying Agent (or in the case of a successor
Principal Paying Agent, to the Principal Paying Agent) shall be
references to that corporation.
19.6 SUCCESSOR TO CALCULATION AGENT
(a) On the execution by the Trustee, the Manager and any successor
Calculation Agent of an instrument effecting the appointment of
that successor Calculation Agent, that successor Calculation
Agent shall, without any further act, deed or conveyance, become
vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of its predecessor with
effect as if originally named as Calculation Agent in this
agreement and that predecessor, on payment to it of the pro rata
proportion of its administration fee and disbursements then
unpaid (if any), shall have no further liabilities under this
agreement, except for any accrued liabilities arising from or
relating to any act or omission occurring prior to the date on
which the successor Calculation Agent is appointed.
(b) Any corporation:
(i) into which the Calculation Agent is merged;
(ii) with which the Calculation Agent is consolidated;
(iii) resulting from any merger or consolidation to which the
Calculation Agent is a party;
(iv) to which the Calculation Agent sells or otherwise
transfers all or substantially all the assets of its
corporate trust business,
shall, on the date when that merger, conversion, consolidation,
sale or transfer becomes effective and to the extent permitted
by applicable law, become the successor Calculation Agent under
this agreement without the execution or filing of any agreement
or document or any further act on the part of the parties to
this agreement, unless otherwise required by the Trustee or the
Manager, and after that effective date all references in this
agreement to the Calculation Agent shall be references to that
corporation.
19.7 SUCCESSOR TO NOTE REGISTRAR
(a) On the execution by the Trustee, the Manager and any successor
Note Registrar of an instrument effecting the appointment of
that successor Note Registrar, that successor Note Registrar
shall, without any further act, deed or conveyance, become
vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of its predecessor with
effect as if originally named as Note Registrar in this
agreement in respect of the relevant Offshore Notes and Note
Register and that predecessor, on payment to it of the pro rata
proportion of its administration fee and disbursements then
unpaid (if any), shall have no further liabilities under this
agreement, except for any accrued liabilities arising from or
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relating to any act or omission occurring prior to the date on
which the successor Note Registrar is appointed.
(b) Any corporation:
(i) into which a Note Registrar is merged;
(ii) with which a Note Registrar is consolidated;
(iii) resulting from any merger or consolidation to which a
Note Registrar is a party; or
(iv) to which a Note Registrar sells or otherwise transfers
all or substantially all the assets of its corporate
trust business,
shall, on the date when that merger, conversion, consolidation,
sale or transfer becomes effective and to the extent permitted
by applicable law, become the relevant successor Note Registrar
under this agreement without the execution or filing of any
agreement or document or any further act on the part of the
parties to this agreement, unless otherwise required by the
Trustee or the Manager, and after that effective date all
references in this agreement to that Note Registrar shall be
references to that corporation.
19.8 NOTICE TO OFFSHORE NOTEHOLDERS
The Manager on behalf of the Trustee shall, within 14 days of:
(a) the termination of the appointment of any Paying Agent, any Note
Registrar or the Calculation Agent;
(b) the appointment of a new Paying Agent, Note Registrar or
Calculation Agent; or
(c) the resignation of any Paying Agent or Calculation Agent,
give to the Offshore Noteholders notice of the termination, appointment
or resignation in accordance with the relevant Condition 12 (in the case
of a termination under clause 19.1(b)(i) or 19.2 at the cost of the
outgoing Paying Agent or the Calculation Agent, as the case may be).
19.9 CHANGE IN PAYING OFFICE OR SPECIFIED OFFICE
(a) If any Paying Agent proposes to change its Paying Office or to
nominate a further Paying Office (which must be within the same
city as its previous Paying Office), it must give to the
Trustee, the Manager, the Note Trustee, the Offshore Noteholders
(which notice, in the case of the Offshore Noteholders, must be
given in accordance with Condition 12) and, in the case of a
change in the Paying Office of a Paying Agent other than the
Principal Paying Agent, the Principal Paying Agent, not less
than 30 days' prior written notice of that change, giving the
address of the new Paying Office and stating the date on which
the change is to take effect.
(b) If the Calculation Agent proposes to change its Specified Office
(which must be in London or such other jurisdiction as the
Calculation Agent, the Manager and the Trustee agree from time
to time), or to nominate a further Specified Office, it must
give to the Trustee, the Manager, the Offshore Noteholders
(which notice, in the case of the Offshore Noteholders, must be
given in accordance with Condition 12) and the Note Trustee, not
less than 30 days' prior written notice of that change, giving
the address of the new Specified Office and stating the date on
which the change is to take effect.
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(c) The Manager, on behalf of the Trustee, must, within 14 days of
receipt of a notice under paragraph (a) (unless the appointment
is to terminate pursuant to clause 19.1 or 19.2 on or prior to
the date of that change) give to the Offshore Noteholders notice
in accordance with the relevant Conditions of that change and of
the address of the new Paying Office or Specified Office (as the
case may be) but the costs of giving that notice shall be borne
by the Paying Agent or the Calculation Agent (as the case may
be) which is changing its Paying Office and not by the Trustee
or the Manager.
20. FEES AND EXPENSES
--------------------------------------------------------------------------------
(a) The Trustee shall pay to the Principal Paying Agent during the
period when any of the Offshore Notes remain outstanding the
administration fee separately agreed by the Principal Paying
Agent and the Manager (on behalf of the Trustee), together with
any out-of-pocket expenses properly incurred (including any
legal fees and expenses). If the appointment of the Principal
Paying Agent is terminated under this agreement, the Principal
Paying Agent must refund to the Trustee that proportion of the
fee (if any) which relates to the period during which the
Principal Paying Agent will not be the Principal Paying Agent.
(b) The Trustee shall pay to the Calculation Agent during the period
when any of the Offshore Notes remain outstanding the fee
separately agreed by the Calculation Agent, the Manager and the
Trustee, together with any out-of-pocket expenses properly
incurred (including any legal fees and expenses). If the
appointment of the Calculation Agent is terminated under this
agreement, the Calculation Agent must refund to the Trustee that
proportion of the fee (if any) which relates to the period
during which the Calculation Agent will not be the Calculation
Agent.
(c) The Trustee shall pay to each Note Registrar during the period
when any of the relevant Offshore Notes remain outstanding the
fee separately agreed by that Note Registrar and the Trustee,
together with any out-of-pocket expenses properly incurred
(including any legal fees and expenses). If the appointment of a
Note Registrar is terminated under this agreement, that Note
Registrar must refund to the Trustee that proportion of the fee
(if any) which relates to the period during which that Note
Registrar will not be the relevant Note Registrar.
(d) Save as provided in paragraphs (a), (b) and (c), or as expressly
provided elsewhere in this agreement, neither the Trustee nor
the Manager shall have any liability in respect of any fees or
expenses of the Calculation Agent, Principal Paying Agent, any
other Paying Agent or any Note Registrar in connection with this
agreement.
(e) The above fees, payments and expenses shall be paid in Euros,
US$ or A$ (as separately agreed between each of the Trustee, the
Manager and the Principal Paying Agent (in the case of the fees,
payments and expenses referred to in paragraph (a)), each of the
Trustee, the Manager and the Calculation Agent (in the case of
the fees, payments and expenses referred to in paragraph (b))
and each of the Trustee, the Manager and each Note Registrar (in
the case of the fees, payments and expenses referred to in
paragraph (c)) and the Trustee shall in addition pay any Value
Added Tax and GST which may be applicable. The Principal Paying
Agent shall arrange for payment of commissions to the other
Paying
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Agents and arrange for the reimbursement of their expenses
promptly upon demand, supported by evidence of that expenditure,
and provided that payment is made as required by paragraph (a)
the Trustee shall not be concerned with or liable in respect of
that payment.
21. WAIVERS, REMEDIES CUMULATIVE
--------------------------------------------------------------------------------
(a) No failure to exercise and no delay in exercising any right,
power or remedy under this agreement operates as a waiver. Nor
does any single or partial exercise of any right, power or
remedy preclude any other or further exercise of that or any
other right, power or remedy.
(b) The rights, powers and remedies provided to a party in this
agreement are in addition to, and do not exclude or limit, any
right, power or remedy provided by law.
22. SEVERABILITY OF PROVISIONS
--------------------------------------------------------------------------------
Any provision of this agreement which is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the extent of
the prohibition or unenforceability. That does not invalidate the
remaining provisions of this agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
23. ASSIGNMENTS
--------------------------------------------------------------------------------
Subject to the other provisions of this agreement, no party may assign
or transfer any of its rights or obligations under this agreement
without the prior written consent of the other parties, or if the rating
of any Offshore Notes would be withdrawn or reduced as a result of the
assignment, except for the creation of a charge by the Trustee under the
Security Trust Deed. A party who assigns or transfers any of its rights
or obligations under this agreement must promptly notify each Designated
Rating Agency of that assignment or transfer.
24. NOTICES
--------------------------------------------------------------------------------
24.1 GENERAL
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) subject to paragraph (d), will be taken to be duly given or
made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the
recipient shown in clause 24.2 or to any other address
which may have been notified by the recipient to the
sender under this clause 24; and
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(ii) (in the case of facsimile transmission) on receipt of a
transmission report confirming successful transmission
to the number shown in clause 24.2 or any other number
notified by the recipient to the sender under this
clause 24,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is
sent or is later than 5.00 pm (local time), it will be taken to
have been duly given or made at the commencement of business on
the next day on which business is generally carried on in that
place.
(d) For the purposes of paragraph (c), all notices, requests,
demands, consents, approvals, agreements or other communications
to the Note Trustee, Principal Paying Agent, a Note Registrar or
the Calculation Agent must be given or made by facsimile
transmission.
Any party may by notice to each party change its address, facsimile or
telephone number under this clause 24.1.
24.2 DETAILS
The address, telephone and facsimile of each party at the date of this
agreement are as follows:
THE TRUSTEE
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
Xxxxx 00 Xxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxxx Xxxxx 0000
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Manager Securitisation
THE MANAGER
CRUSADE MANAGEMENT LIMITED
0-00 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxx Xxxxx 0000
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Chief Manager, Securitisation
THE PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
IN RELATION TO THE CLASS A-1 NOTES, CLASS A-1 NOTEHOLDERS AND CLASS A-1
NOTE OWNERS:
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx
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Xxx Xxxx 00000
XXXXXX XXXXXX OF AMERICA
Fax: + 0 000 000 0000 / 5803
Attention: Global Trust Services
IN RELATION TO THE CLASS A-2 NOTES, CLASS A-2 NOTEHOLDERS AND CLASS A-2
NOTE OWNERS:
00xx Xxxxx, 0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
XXXXXX XXXXXXX
Fax: + 00 00 000 00000
Attention: Global Trust Services
THE CALCULATION AGENT
THE BANK OF NEW YORK
00xx Xxxxx, 0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
XXXXXX XXXXXXX
Fax: + 00 00 000 00000
Attention: Global Trust Services
THE NOTE TRUSTEE
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx
Floor 00 Xxxx
Xxx Xxxx
Xxx Xxxx 00000
XXXXXX XXXXXX OF AMERICA
Fax: + 0 000 000 0000 / 5803
Attention: Global Trust Services
THE CLASS A-1 NOTE REGISTRAR
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx
Floor 00 Xxxx
Xxx Xxxx
Xxx Xxxx 00000
XXXXXX XXXXXX OF AMERICA
Fax: + 0 000 000 0000 / 5803
Attention: Global Trust Services
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Solely for the purposes of transfer of any Class A-1 Note, the Class A-1
Note Registrar shall act through its office at 000 Xxxxxxx Xxxxxx, Xxxxx
00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
THE CLASS A-2 NOTE REGISTRAR
THE BANK OF NEW YORK
00xx Xxxxx, 0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
XXXXXX XXXXXXX
Fax: + 00 00 000 00000
Attention: Global Trust Services
Solely for the purposes of transfer of any Class A-2 Note, the Class A-2
Note Registrar shall act through its office at 00xx Xxxxx, 0 Xxxxxx
Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx.
24.3 COMMUNICATION THROUGH PRINCIPAL PAYING AGENT
All communications relating to this agreement between the Trustee or the
Manager, a Note Registrar and the Calculation Agent and any of the
Paying Agents or between the Paying Agents themselves shall, save as
otherwise provided in this agreement, be made through the Principal
Paying Agent.
25. LIMITED RECOURSE
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25.1 GENERAL
Clause 30 of the Master Trust Deed (as amended by the Supplementary
Terms Notice) applies to the obligations and liabilities of the Trustee
and the Manager under this agreement.
25.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT TO INDEMNITY
(a) This agreement applies to the Trustee only in its capacity as
trustee of the Trust and in no other capacity (except where the
Transaction Documents provide otherwise). Subject to paragraph
(c) below, a liability arising under or in connection with this
agreement or the Trust can be enforced against the Trustee only
to the extent to which it can be satisfied out of the assets and
property of the Trust which are available to satisfy the right
of the Trustee to be exonerated or indemnified for the
liability. This limitation of the Trustee's liability applies
despite any other provision of this agreement and extends to all
liabilities and obligations of the Trustee in any way connected
with any representation, warranty, conduct, omission, agreement
or transaction related to this agreement or the Trust.
(b) Subject to paragraph (c) below, no person (including any
Relevant Party) may take action against the Trustee in any
capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust
Deed), or a liquidator, an administrator or any similar person
to the Trustee or prove in any liquidation, administration or
arrangement of or affecting the Trustee.
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(c) The provisions of this clause 25.2 shall not apply to any
obligation or liability of the Trustee to the extent that it is
not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Trustee's indemnification or exoneration out of the Assets of
the Trust as a result of the Trustee's fraud, negligence, or
Default.
(d) It is acknowledged that the Relevant Parties are responsible
under this agreement or the other Transaction Documents for
performing a variety of obligations relating to the Trust. No
act or omission of the Trustee (including any related failure to
satisfy its obligations under this agreement) will be considered
fraud, negligence or Default of the Trustee for the purpose of
paragraph (c) above to the extent to which the act or omission
was caused or contributed to by any failure by any Relevant
Party or any person who has been delegated or appointed by the
Trustee in accordance with the Transaction Documents to fulfil
its obligations relating to the Trust or by any other act or
omission of a Relevant Party or any such person.
(e) In exercising their powers under the Transaction Documents, each
of the Trustee, the Security Trustee and the Offshore
Noteholders must ensure that no attorney, agent, delegate,
receiver or receiver and manager appointed by it in accordance
with this agreement or any other Transaction Documents has
authority to act on behalf of the Trustee in a way which exposes
the Trustee to any personal liability and no act or omission of
any such person will be considered fraud, negligence, or Default
of the Trustee for the purpose of paragraph (c) above.
(f) In this clause, RELEVANT PARTIES means each of the Manager, the
Servicer, the Custodian, the Calculation Agent, each Paying
Agent, the Note Trustee, each Note Registrar and the provider of
any Support Facility.
(g) Nothing in this clause limits the obligations expressly imposed
on the Trustee under the Transaction Documents.
25.3 UNRESTRICTED REMEDIES
Nothing in clause 25.2 or 25.4 limits a Paying Agent or the Calculation
Agent in:
(a) obtaining an injunction or other order to restrain any breach of
this agreement by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
25.4 RESTRICTED REMEDIES
Except as provided in clauses 25.3 and 25.2(c) neither any Paying Agent
nor the Calculation Agent shall:
(a) (JUDGMENT) obtain a judgment for the payment of money or damages
by the Trustee;
(b) (STATUTORY DEMAND) issue any demand under section 459E(1) of the
Corporations Xxx 0000 (Cth) (or any analogous provision under
any other law) against the Trustee;
(c) (WINDING UP) apply for the winding up or dissolution of the
Trustee;
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(d) (EXECUTION) levy or enforce any distress or other execution to,
on, or against any assets of the Trustee;
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a court
of a receiver to any of the assets of the Trustee;
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Trustee; or
(g) (ADMINISTRATOR) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and each Paying Agent and the
Calculation Agent waives its rights to make those applications and take
those proceedings.
26. COUNTERPARTS
--------------------------------------------------------------------------------
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
27. GOVERNING LAW
--------------------------------------------------------------------------------
This agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of the courts exercising
jurisdiction there.
28. SUCCESSOR TRUSTEE
--------------------------------------------------------------------------------
Each Paying Agent and the Calculation Agent shall do all things
reasonably necessary to enable any successor Trustee appointed under
clause 20 of the Master Trust Deed to become the Trustee under this
agreement.
29. COMPLIANCE WITH REGULATION AB: OTHER "SERVICING FUNCTION PARTICIPANTS"
--------------------------------------------------------------------------------
29.1 INTENT OF THE PARTIES, REASONABLENESS
The Paying Agent (for purposes of this clause 29, the "Servicing
Function Participant") and the Manager acknowledge and agree that the
purpose of this clause 29 is to facilitate compliance by the Manager
with the provisions of Regulation AB and related rules and regulations
of the Commission.
The Manager shall not exercise its right to request delivery of
information or other performance under these provisions other than in
good faith, or for purposes other than compliance with the Securities
Act, the Exchange Act and the rules and regulations of the Commission
thereunder. The Servicing Function Participant acknowledges that
interpretations of the requirements of Regulation AB may change over
time, whether due to interpretive guidance provided by the Commission or
its staff, consensus among participants in the asset-backed securities
markets, advice of counsel, or otherwise, and agree to comply with
requests made by the Manager in good faith for delivery of information
under these provisions on the basis of evolving interpretations of
Regulation AB. The Servicing Function Participant shall use all
reasonable endeavours to cooperate fully with the
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Manager to deliver to the Manager (including any of its assignees or
designees) any and all statements, reports, certifications, records and
any other information necessary in the good faith determination of the
Manager to permit the Manager to comply with the provisions of
Regulation AB, together with such disclosures relating to the Servicing
Function Participant, any Subservicer and the Purchased Receivables, or
the servicing of the Purchased Receivables, reasonably believed by the
Manager to be necessary in order to effect such compliance.
The Manager (including any of its assignees or designees) shall
cooperate with the Servicing Function Participant by providing timely
notice of requests for information under these provisions and by
reasonably limiting such requests to information required, in the
Manager's reasonable judgment, to comply with Regulation AB.
29.2 INFORMATION TO BE PROVIDED BY THE SERVICING FUNCTION PARTICIPANT
(a) The Servicing Function Participant shall:
(i) within five Business Days following request by the
Manager, provide to the Manager, in writing and in form
and substance reasonably satisfactory to the Manager,
the information and materials specified in paragraphs
(a) and (b) of this clause 29.2, and
(ii) as promptly as practicable following notice to or
discovery by the Servicing Function Participant, provide
to the Manager (in writing and in form and substance
reasonably satisfactory to the Manager) the information
specified in paragraph (c) of this clause 29.2.
(b) If so requested by the Manager, the Servicing Function
Participant shall provide such information regarding itself.
Such information shall be:
(i) a brief description of any material legal or
governmental proceedings pending (or known to be
contemplated) against the Servicing Function
Participant; and
(ii) a description of any affiliation or relationship between
the Servicing Function Participant and any of the
following parties to this transaction, as such parties
are identified to the Servicing Function Participant by
the Manager in writing:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(c) As a condition to the succession to the Servicing Function
Participant under this Agency Agreement or any other Transaction
Document by any person:
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--------------------------------------------------------------------------------
(i) into which the Servicing Function Participant, if any,
may be merged or consolidated; or
(ii) which may be appointed as a successor to the Servicing
Function Participant, the Servicing Function Participant
shall provide to the Manager, at least 15 calendar days
prior to the effective date of such succession or
appointment:
(A) written notice to the Manager of such succession
or appointment; and
(B) in writing and in form and substance reasonably
satisfactory to the Manager, all information
reasonably requested by the Manager in order to
comply with its reporting obligation under Item
6.02 of Form 8-K with respect to any class of
asset-backed securities.
29.3 REPORT ON ASSESSMENT OF COMPLIANCE AND ATTESTATION
(a) On or before 1 December of each calendar year, commencing in
2006, the Servicing Function Participant shall:
(i) deliver to the Manager a report (in form and substance
reasonably satisfactory to the Manager) regarding the
Servicing Function Participant's assessment of
compliance with the Servicing Criteria for which the
Servicing Function Participant has agreed it is
responsible during the immediately preceding calendar
year ended 30 September as required under Rules 13a-18
and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be addressed to the
Manager and signed by an authorised officer of the
Servicing Function Participant, and shall address each
such Servicing Criteria specified on a certification
substantially in the form of schedule 1 to this Agency
Agreement, delivered to the Manager concurrently with
the execution of this Agency Agreement; and
(ii) deliver to the Manager a report of a registered public
accounting firm reasonably acceptable to the Manager
that attests to, and reports on, the assessment of
compliance made by the Servicing Function Participant
and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3)
and 2-02(g) of Regulation S-X under the Securities Act
and the Exchange Act.
(b) Each assessment of compliance provided by a Subservicer, if any,
pursuant to this clause 29.3 shall address each of the Servicing
Criteria for which such Subservicer has agreed it is responsible
specified on a certification substantially in the form of
schedule 1 to this Agency Agreement, delivered to the Manager
concurrently with the execution of this Agency Agreement or, in
the case of a Subservicer, if any, subsequently appointed as
such, on or prior to the date of such appointment. An assessment
of compliance provided by a Subcontractor pursuant to clause
29.3(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the relevant Servicing
Function Participant pursuant to clause 29.4.
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29.4 USE OF SUBSERVICERS AND SUBCONTRACTORS
The Servicing Function Participant shall not hire or otherwise utilise
the services of any Subservicer to fulfil any of the obligations of the
Servicing Function Participant under this Agency Agreement or any other
Transaction Document without the written consent of the Manager. The
Servicing Function Participant shall not hire or otherwise utilise the
services of any Subcontractor, and shall not permit any Subservicer to
hire or otherwise utilise the services of any Subcontractor, to fulfil
any of the obligations of the Servicing Function Participant under this
Agency Agreement or any other Transaction Document without the written
consent of the Manager.
30. ANTI-MONEY LAUNDERING
--------------------------------------------------------------------------------
(a) Subject to paragraph (b), each party (the PROVIDER) must, on the
request of any other party (the RECIPIENT), provide the
Recipient with any information or document in the Provider's
possession or otherwise readily available to the Provider, where
such information or document is required by the Recipient to
comply with any applicable anti-money laundering or
counter-terrorism financing laws including any such laws
requiring the Recipient to carry out "know your customer" or
other identification checks or procedures (RELEVANT LAWS).
(b) The Provider's obligations under paragraph (a) are subject to
any confidentiality, privacy or other obligations imposed by law
on the Provider in relation to the requested information or
document, except to the extent overridden by the Relevant Laws.
(c) Each party must comply with any Relevant Laws applicable to it,
to the extent required to comply with its obligations under the
Transaction Documents. Any party may decline to perform any
obligation under the Transaction Documents to the extent it
forms the view, in its reasonable opinion, that notwithstanding
that it has taken all action to comply with any applicable
Relevant Laws, it is required by Relevant Laws to decline to
perform any such obligation.
(d) To the maximum extent permitted by law, each party and each
Mortgagee (as defined in the Security Trust Deed) releases, to
the extent that it is able, each other party from any
confidentiality, privacy or general law obligations that such
other party would otherwise owe and which would otherwise
prevent such other party from providing any information or
documents requested in accordance with this clause or any
similar clause in any other Transaction Document, to the extent
necessary to allow such other party to provide such information
or documents and solely for the purpose of providing such
information or documents.
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EXECUTED as an agreement.
Each attorney executing this agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.
TRUSTEE
SIGNED for PERPETUAL TRUSTEES CONSOLIDATED
LIMITED by its attorney under power of attorney
in the presence of:
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------------- ------------------------------------
Witness Signature Attorney Signature /s/ Xxxxxx Ruver
Xxxxxxx Xxxxxxxxx
---------------------------------------- ------------------------------------
Print Name Print Name Xxxxxx Ruver
MANAGER
SIGNED for CRUSADE MANAGEMENT LIMITED by
its attorney under power of attorney in
the presence of:
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------------- ------------------------------------
Witness Signature Attorney Signature /s/ Xxxxxx Xxxxx
Xxxxxxx Xxxxxxxxx
---------------------------------------- ------------------------------------
Print Name Print Name Xxxxxx Xxxxx
PRINCIPAL PAYING AGENT
SIGNED on behalf of THE BANK OF NEW YORK
in the presence of:
/s/ Xxxx Xxx
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----------------------------------------
Authorised Signatory
ASSISTANT VICE PRESIDENT
----------------------------------------
Print Name Xxxx Xxx
NOTE TRUSTEE
SIGNED on behalf of THE BANK OF NEW YORK
in the presence of:
/s/ Xxxx Xxx
----------------------------------------
Authorised Signatory
ASSISTANT VICE PRESIDENT
----------------------------------------
Print Name Xxxx Xxx
CALCULATION AGENT
SIGNED on behalf of THE BANK OF NEW YORK
in the presence of:
/s/ Xxxx Xxx
----------------------------------------
Authorised Signatory
ASSISTANT VICE PRESIDENT
----------------------------------------
Print Name Xxxx Xxx
CLASS A-1 NOTE REGISTRAR
SIGNED on behalf of THE BANK OF NEW YORK
in the presence of:
/s/ Xxxx Xxx
----------------------------------------
Authorised Signatory
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--------------------------------------------------------------------------------
ASSISTANT VICE PRESIDENT
----------------------------------------
Print Name Xxxx Xxx
CLASS A-2 NOTE REGISTRAR
SIGNED on behalf of THE BANK OF NEW YORK
in the presence of:
/s/ Xxxx Xxx
----------------------------------------
Authorised Signatory
ASSISTANT VICE PRESIDENT
----------------------------------------
Print Name Xxxx Xxx
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SCHEDULE 1
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
--------------------------------------------------------------------------------
The assessment of compliance to be delivered by [Xx.Xxxxxx Bank Limited]
[Perpetual Trustees Consolidated Limited] [Crusade Management Limited] [The Bank
of New York (it its various capacities] [Xx.Xxxxxx Custodial Pty Limited]
[Currency Swap Provider] [Name of Subservicer] [Name of Subcontractor] [Name of
any Other Party Responsible For Servicing Function] shall address, at a minimum,
the criteria identified below as "Applicable Servicing Criteria":
----------------------------------------------------------------------------------------------------------------------------
APPLICABLE
SERVICING CRITERIA SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
------------------ ----------------
Policies and procedures are instituted to monitor any performance or other triggers
1122(d)(1)(i) and events of default in accordance with the transaction agreements.
------------------ ----------------
If any material servicing activities are outsourced to third parties, policies and
procedures are instituted to monitor the third party's performance and compliance with
1122(d)(1)(ii) such servicing activities.
------------------ ----------------
Any requirements in the transaction agreements to maintain a back-up servicer for the
1122(d)(1)(iii) pool assets are maintained.
------------------ ----------------
A fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in the amount
of coverage required by and otherwise in accordance with the terms of the transaction
1122(d)(1)(iv) agreements.
------------------ ----------------
CASH COLLECTION AND ADMINISTRATION
------------------ ----------------
Payments on pool assets are deposited into the appropriate custodial bank accounts and
related bank clearing accounts no more than two business days following receipt, or
1122(d)(2)(i) such other number of days specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------------
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----------------------------------------------------------------------------------------------------------------------------
APPLICABLE
SERVICING CRITERIA SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------------
Disbursements made via wire transfer on behalf of an obligor or to an investor are
1122(d)(2)(ii) made only by authorized personnel.
------------------ ----------------
Advances of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made, reviewed and
1122(d)(2)(iii) approved as specified in the transaction agreements.
------------------ ----------------
The related accounts for the transaction, such as cash reserve accounts or accounts
established as a form of overcollateralization, are separately maintained (e.g., with
1122(d)(2)(iv) respect to commingling of cash) as set forth in the transaction agreements.
------------------ ----------------
Each custodial account is maintained at a federally insured depository institution as
set forth in the transaction agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign financial institution means
a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the
1122(d)(2)(v) Securities Exchange Act.
------------------ ----------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access.
------------------ ----------------
Reconciliations are prepared on a monthly basis for all asset-backed securities
related bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations (A) mathematically accurate; (B) prepared within 30
calendar days after the bank statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed and approved by someone other
than the person who prepared the reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are resolved within 90 calendar days of
their original identification, or such other number of days specified in the
1122(d)(2)(vii) transaction agreements.
----------------------------------------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
------------------ ----------------
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--------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
APPLICABLE
SERVICING CRITERIA SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------------
Reports to investors, including those to be filed with the Commission, are maintained
in accordance with the transaction agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance with timeframes and other
terms set forth in the transaction agreements; (B) provide information calculated in
accordance with the terms specified in the transaction agreements; (C) are filed with
the Commission as required by its rules and regulations; and (D) agree with investors'
or the trustee's records as to the total unpaid principal balance and number of pool
1122(d)(3)(i) assets serviced by the servicer.
------------------ ----------------
Amounts due to investors are allocated and remitted in accordance with timeframes,
1122(d)(3)(ii) distribution priority and other terms set forth in the transaction agreements.
------------------ ----------------
Disbursements made to an investor are posted within two business days to the
servicer's investor records, or such other number of days specified in the transaction
1122(d)(3)(iii) agreements.
------------------ ----------------
Amounts remitted to investors per the investor reports agree with cancelled checks, or
1122(d)(3)(iv) other form of payment, or custodial bank statements.
------------------ ----------------
POOL ASSET ADMINISTRATION
------------------ ----------------
Collateral or security on pool assets is maintained as required by the transaction
1122(d)(4)(i) agreements or related asset pool documents.
------------------ ----------------
Pool assets and related documents are safeguarded as required by the transaction
1122(d)(4)(ii) agreements
----------------------------------------------------------------------------------------------------------------------------
Any additions, removals or substitutions to the asset pool are made, reviewed and
approved in accordance with any conditions or requirements in the transaction
1122(d)(4)(iii) agreements.
------------------ ----------------
Payments on pool assets, including any payoffs, made in accordance with the related
pool asset documents are posted to the servicer's obligor records maintained no more
1122(d)(4)(iv) than two business
------------------ ----------------
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--------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
APPLICABLE
SERVICING CRITERIA SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------------
days after receipt, or such other number of days specified in the transaction
agreements, and allocated to principal, interest or other items (e.g., escrow) in
accordance with the related pool asset documents.
------------------ ----------------
The servicer's records regarding the pool assets agree with the servicer's records
1122(d)(4)(v) with respect to an obligor's unpaid principal balance.
------------------ ----------------
Changes with respect to the terms or status of an obligor's pool asset (e.g., loan
modifications or re-agings) are made, reviewed and approved by authorized personnel in
1122(d)(4)(vi) accordance with the transaction agreements and related pool asset documents.
------------------ ----------------
Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds
in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated,
conducted and concluded in accordance with the timeframes or other requirements
1122(d)(4)(vii) established by the transaction agreements.
------------------ ----------------
Records documenting collection efforts are maintained during the period a pool asset
is delinquent in accordance with the transaction agreements. Such records are
maintained on at least a monthly basis, or such other period specified in the
transaction agreements, and describe the entity's activities in monitoring delinquent
pool assets including, for example, phone calls, letters and payment rescheduling
1122(d)(4)(viii) plans in cases where delinquency is deemed temporary (e.g., illness or unemployment).
------------------ ----------------
Adjustments to interest rates or rates of return for pool assets with variable rates
1122(d)(4)(ix) are computed based on the related pool asset documents.
------------------ ----------------
Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the obligor's pool asset documents, on at least
an annual basis, or such other period specified in the transaction agreements; (B)
1122(d)(4)(x) interest on such funds is paid, or credited, to obligors in accordance with
------------------ ----------------
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--------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
APPLICABLE
SERVICING CRITERIA SERVICING
CRITERIA
----------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
----------------------------------------------------------------------------------------------------------------------------
applicable pool asset documents and state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of the related pool assets or such
other number of days specified in the transaction agreements.
------------------ ----------------
Payments made on behalf of an obligor (such as tax or insurance payments) are made on
or before the related penalty or expiration dates, as indicated on the appropriate
bills or notices for such payments, provided that such support has been received by
the servicer at least 30 calendar days prior to these dates, or such other number of
1122(d)(4)(xi) days specified in the transaction agreements.
------------------ ----------------
Any late payment penalties in connection with any payment to be made on behalf of an
obligor are paid from the servicer's funds and not charged to the obligor, unless the
1122(d)(4)(xii) late payment was due to the obligor's error or omission.
------------------ ----------------
Disbursements made on behalf of an obligor are posted within two business days to the
obligor's records maintained by the servicer, or such other number of days specified
1122(d)(4)(xiii) in the transaction agreements.
------------------ ----------------
Delinquencies, charge-offs and uncollectable accounts are recognized and recorded in
1122(d)(4)(xiv) accordance with the transaction agreements.
------------------ ----------------
Any external enhancement or other support, identified in Item 1114(a)(1) through (3)
or Item 1115 of Regulation AB, is maintained as set forth in the transaction
1122(d)(4)(xv) agreements.
----------------------------------------------------------------------------------------------------------------------------
[SERVICER]
Date:
By:
Name:
FORM OF 10-K CERTIFICATION
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--------------------------------------------------------------------------------
[________________] (the "Asserting Party") is responsible for assessing
compliance as of September 30, 200[_] and for the period from September [21],
2006 (date of issuance of the Crusade Global Trust No. 2 of 2006) through
September 30, 200[_] (the "Reporting Period") with the servicing criteria set
forth in Section 229.1122(d) of the Code of Federal Regulations (the "CFR"),
except for criteria 229.1122(d)[insert section numbers in Regulation AB that are
not applicable to Asserting Party] in the CFR, which the Asserting Party has
concluded are not applicable to the servicing of the Crusade Global Trust No. 2
of 2006 asset-backed securitization transaction backed by housing loan
receivables and serviced by the Asserting Party (the "Applicable Servicing
Criteria"). The sole asset-backed securitization transaction covered by this
report was the Crusade Global Trust No. 2 of 2006.
The Asserting Party has assessed its compliance with the Applicable Servicing
Criteria for the Reporting Period and has concluded that the Asserting Party has
complied, in all material respects, with the Applicable Servicing Criteria for
the Crusade Global Trust No. 2 of 2006 asset-backed securitization transaction
backed by housing loan receivables serviced by the Asserting Party.
[____________] LLP, an independent registered public accounting firm, has issued
an attestation report on the assessment of compliance with the Applicable
Servicing Criteria for the Reporting Period as set forth in this assertion.
[SERVICER]
Date:
By:
Name:
--------------------------------------------------------------------------------
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