Agency Agreement
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(Trustee)
CRUSADE MANAGEMENT LIMITED
(Manager)
DEUTSCHE BANK TRUST COMPANY AMERICAS
(Principal Paying Agent and US Paying Agent)
DEUTSCHE BANK AG, LONDON BRANCH
(Euro Paying Agent)
DEUTSCHE BANK TRUST COMPANY AMERICAS
(Note Trustee)
DEUTSCHE BANK TRUST COMPANY AMERICAS
(Calculation Agent)
DEUTSCHE BANK TRUST COMPANY AMERICAS
(Class A-1 Note Registrar)
DEUTSCHE BANK LUXEMBOURG S.A.
(Class A-2 Note Registrar)
Crusade Global Trust No. 1 of 2007
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 2007
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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 6
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
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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 13
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
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 21
18.3 Identity 21
18.4 No set-off 21
18.5 Reliance 21
18.6 Entitled to deal 22
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 23
18.13 European Union Tax Directive 23
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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
24. NOTICES 30
24.1 General 30
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 34
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 Additional Representations and Warranties
of Each Servicing Function Participant 35
29.3 Information to be provided by Each Servicing
Function Participant 36
29.4 Report on Assessment of Compliance and Attestation 38
29.5 Use of Subservicers and Subcontractors 38
29.6 Indemnification; Remedies 39
30. ANTI-MONEY LAUNDERING 42
SCHEDULE 1 46
Servicing Criteria To Be Addressed In Assessment Of Compliance 46
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DATE 13 March 2007
PARTIES
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. 1 of 2007 (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. 1 of 2007 (the MANAGER);
3. DEUTSCHE BANK TRUST COMPANY AMERICAS acting through its office at 0000
X. Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx, 00000 XXX as principal
paying agent (the PRINCIPAL PAYING AGENT, which expression shall,
wherever the context requires, include any successor principal paying
agent from time to time under this agreement); acting through that
office as US paying agent, (the US PAYING AGENT, and, except where the
context otherwise requires, the Principal Paying Agent, the US Paying
Agent, the Euro Paying Agent (as defined below) 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 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx, 00000-0000
XXX 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); and acting through its office at 0000
X. Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx, 00000 XXX 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);
4. DEUTSCHE BANK AG, LONDON BRANCH of Winchester House, 1 Great
Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, Xxxxxx Xxxxxxx (the EURO
PAYING AGENT) which expression shall, wherever the context requires,
include any successor Euro paying agent from time to time under this
agreement, and acting through that office as Euro paying agent;
5. DEUTSCHE BANK LUXEMBOURG S.A. of 0 Xxxxxxxxx Xxxxxx Xxxxxxxx,
Xxxxxxxxxx X-0000 (xxx 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
6. DEUTSCHE BANK TRUST COMPANY AMERICAS of 0000 X. Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx, 00000 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
A The Trustee proposes to issue US$1,450,000,000 of Class A-1 mortgage
backed pass through floating rate Notes (the CLASS A-1 NOTES),
(euro)600,000,000 of Class A-2 mortgage backed pass through floating
rates Notes (the CLASS A-2 NOTES), and A$794,100,000 of mortgage
backed pass through floating rate Notes comprising A$700,000,000 Class
A-3 Notes, A$64,600,000 Class B Notes and A$29,500,000 Class C Notes
(together the A$ NOTES) each with a Final Maturity Date falling in
April 2038.
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 US Paying Agent as paying agent in
respect of the Class A-1 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 Euro Paying Agent as paying agent 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.
I 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.
J 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
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 5
March 2007 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 0000 X. Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx, 00000.
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. 1 of 2007
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
(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, the US Paying Agent as its paying agent in the
United States of America, the Euro Paying Agent as its paying agent in
Europe 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. Each 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, each 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
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 in same day freely transferable cleared funds to or to the order
of, or procure payment to or to the order of, the Euro Paying Agent
(including where relevant in clause 3.9) the amount in Euros as may be
required on the relevant day to such account at such bank as the Euro
Paying Agent may from time to time specify to the Trustee for such
purpose at least 10 Business Days before the relevant Payment Date
(after taking account of any cash then held by the Euro 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.
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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, the Euro Paying Agent (in the case of payments
in respect of the Class A-2 Notes) 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 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 or Euro Paying Agent, as the case may be, 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 applicable 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 (in the case of Class A-1 Notes) and the Euro
Paying Agent (in the case of Class A-2 Notes) 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 1.00pm (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
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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
received on or prior to 12.00 noon (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
received after 12.00 noon (London time) on a Payment Date, make
payments required to be made by it in 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 relevant
Paying Agent, no Paying Agents shall be bound to make a payment under
clause 3.
(b) If the relevant Paying Agent has not received on a Payment Date the
full amount of principal and interest then payable on the applicable
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
Each relevant 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
Each relevant Paying Agent shall (provided that it has been placed in funds
by the Trustee) on demand promptly reimburse any other Paying Agents (if
any) for payments of principal and interest properly made by that other
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 a Paying Agent under this agreement
shall, unless otherwise provided by and subject to the relevant
Currency
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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 relevant 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 relevant Offshore Noteholders
and:
(i) failing that payment within the designated periods of
prescription specified in the relevant Condition 8; or
(ii) upon the bankruptcy, insolvency, winding up or liquidation of
the relevant Paying Agent or on default being made by the
relevant 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
relevant Paying Agent with respect to those moneys shall cease. Each
relevant Paying Agent shall, promptly after each Payment Date, confirm
to the Trustee, in accordance with clause 24, that the relevant Paying
Agent has paid the relevant amount to the relevant Common Depository.
Each relevant Paying Agent will countersign and promptly return any
such confirmation requested by the Trustee.
(b) Subject to the terms of this agreement, each relevant 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. Each relevant 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
Each Paying Agent shall hold on trust for the Note Trustee and the relevant
Offshore Noteholders all sums held by it for the payment of principal and
interest with respect to the relevant Offshore Notes until all relevant
sums are paid to the Note Trustee or the relevant Offshore Noteholders or
otherwise disposed of in accordance with the Note Trust Deed.
3.12 FORMS AND INFORMATION
The Manager shall provide each Paying Agent with any forms and such other
information reasonably required by that Paying Agent in connection with any
withholding Tax imposed on any payment under the Offshore Notes.
4. REPAYMENT
(a) Immediately on any entitlement to receive principal or interest under
any Offshore Note becoming void under the relevant Conditions, each
relevant Paying Agent shall repay to the
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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), no Paying Agent shall be obliged to make any
repayment to the Trustee so long as any amounts which should have been
paid to or to the order of that Paying Agent or, if applicable, the
Note Trustee by the Trustee remain unpaid.
5. APPOINTMENT OF THE CALCULATION AGENT
(a) The Trustee (acting on the direction of the Manager) appoints the
Calculation Agent as its reference agent in respect of the Offshore
Notes upon the terms and conditions set forth in this agreement and
the Calculation Agent accepts that appointment.
(b) It is acknowledged and agreed that:
(i) the Calculation Agent is the agent of the Trustee in its
capacity as trustee of the Trust only; and
(ii) despite anything else in this agreement, any other Transaction
Document or at law, the Trustee in its personal capacity is not
responsible for any act or omission of the Calculation Agent
except to the extent of losses, costs, claims or damages caused
by the fraud, negligence or Default of the Trustee.
6. DUTIES OF THE CALCULATION AGENT
(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 relevant
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 any 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
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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 Payment Date, to
be published (subject to clause 20, at the expense of the Trustee) in
accordance with the provisions of the relevant Conditions 4 and 12, on
or as soon as possible after the commencement of the relevant
Quarterly Interest Period unless the Note Trustee otherwise agrees,
provided that the Trustee, the Calculation Agent and the Note Trustee
shall co-operate with the Manager in order to effect that publication.
(c) The Interest, Interest Rate and relevant Payment Date published under
paragraph (b) may subsequently be amended (or appropriate alternative
arrangements made by way of adjustment) without notice to Offshore
Noteholders in the event of an amendment to the Quarterly Interest
Period.
(d) If the Calculation Agent at any time and for any reason does not
determine the Interest Rate for or calculate the Interest payable on
an Offshore Note, the Manager shall do so and each such determination
or calculation shall be deemed to have been made by the Calculation
Agent. In doing so, the Manager shall apply the provisions of this
clause 6, with any necessary consequential amendments, to the extent
that, in its opinion, it can do so, and, in all other respects it
shall do so in such a manner as it shall deem fair and reasonable in
all the circumstances.
7. NOTE TRUSTEE
(a) At any time after:
(i) an Event of Default has occurred in relation to an Offshore
Note; or
(ii) Definitive Notes have not been issued when required in
accordance with the provisions of the Transaction Documents,
the Note Trustee may:
(iii) by notice in writing to the Trustee, the Manager, the
Calculation Agent, the Principal Paying Agent and the other
Paying Agents (if any) require the Principal Paying Agent, the
other Paying Agents and the Calculation Agent either:
(A) to act as Principal Paying Agent, Paying Agent and
Calculation Agent, respectively, of the Note Trustee on the
terms of this agreement in relation to payments to be made
by or on behalf of the Trustee under the terms of the Note
Trust Deed, except that the Note Trustee's liability under
any provisions of this agreement for the indemnification of
the Calculation Agent and the Paying Agents shall be
limited to any amount for the time being held by the Note
Trustee on the trusts of the Note Trust Deed and which is
available to be applied by the Note Trustee for that
purpose; and
(B) to hold all Definitive Notes and all amounts, documents and
records held by them in respect of the Offshore Notes on
behalf of the Note Trustee; or
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(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 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 any 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 Paying Agents of any change in the Authorised Signatories of the
Note Trustee.
8. EARLY REDEMPTION OF OFFSHORE NOTES
(a) If the Trustee intends to redeem the Offshore Notes prior to their
Final Maturity Date pursuant to the relevant Condition 5 (which it may
only do at the direction of the Manager), the Manager shall give not
less than 5 days' prior written notice to the Principal Paying Agent,
the Euro 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) Each relevant 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 relevant Offshore Notes to be redeemed;
(B) the amount of principal to be repaid in relation to the
relevant Offshore Notes; and
(C) the date on which the relevant Offshore Notes are to be
redeemed; and
(ii) promptly and in accordance with the relevant Conditions, on
behalf of and at the expense of the Trustee, publish the notices
required in connection with that redemption.
9. PRO RATA REDEMPTION AND CANCELLATION OF NOTES
(a) If the Trustee is required to redeem some (but not all) of the
Offshore Notes prior to their Final Maturity Date pursuant to the
relevant Condition 5 the Manager shall on each
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Determination Date give prior notice to the Calculation Agent, the
Principal Paying Agent, the Euro Paying Agent and the Note Trustee, as
provided in the relevant Condition 5.
(b) On receipt of a notice under paragraph (a), each relevant Paying Agent
shall notify the relevant Common Depository of the proposed
redemption, specifying in each case the aggregate Invested Amount of
the relevant 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, the
Euro 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 relevant 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 relevant 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. Each relevant 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 relevant
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 relevant 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.
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10. CANCELLATION, DESTRUCTION AND RECORDS WHERE OFFSHORE NOTES IN DEFINITIVE
FORM HAVE BEEN ISSUED
(a) All Definitive Notes which are redeemed in their entirety (but not
partial redemptions of Definitive Notes in accordance with the
relevant Condition 5), shall be forthwith cancelled by perforation by
the Paying Agent by or through which they are redeemed, paid or
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 (in the case of Class A-1 Notes) or the
Euro Paying Agent (in the case of Class A-2 Notes) 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 relevant 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) Each Relevant 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 a relevant Paying Agent, for the purpose of
issuing replacement Definitive Notes as provided below.
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(b) Each relevant 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) No relevant Paying Agent shall issue any replacement Definitive Note
unless and until the relevant applicant has:
(i) paid all costs (including the fees and costs of that Paying
Agent and of any other 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 that 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
that Paying Agent may reasonably require; and
(iii) in the case of a mutilated or defaced Definitive Note,
surrendered to that Paying Agent the mutilated or defaced
Definitive Note which is to be replaced.
(d) Each relevant 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 relevant
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) Each relevant 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
(in the case of Class A-1 Notes) or the Euro Paying Agent (in the case
of the Class A-2 Notes) shall arrange for
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the publication of all notices to Offshore Noteholders in accordance
with the relevant Conditions.
(b) Each relevant Paying Agent shall promptly send to the Note Trustee one
copy of the final form of every notice given to Offshore Noteholders
in accordance with the relevant Conditions.
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 (in the case of Class A-1 Notes) and the Euro
Paying Agent (in the case of Class A-2 Notes) 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). A 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
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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 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
16.1 APPOINTMENT OF NOTE REGISTRARS
(a) The Trustee appoints Deutsche Bank Trust Company Americas to be the
initial Class A-1 Note Registrar. Deutsche Bank Trust Company Americas
accepts that appointment.
(b) The Trustee appoints Deutsche Bank Luxembourg S.A. to be the initial
Class A-2 Note Registrar. Deutsche Bank Luxembourg S.A. 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 the Note Trust Deed, on which shall be entered the following
information relating to the Trust (to the extent such information has been
provided to the Class A-1 Note Registrar or the Class A-2 Note Registrar
(as the case may be) by the Manager or the Trustee):
(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);
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(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);
(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):
(i) in the case of the Class A-1 Note Register, kept at the office of
the Class A-1 Note Registrar at 000 Xxxxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx 00000-0000 XXX or at such place as the
Trustee, the Manager and the Class A-1 Note Registrar may agree;
and
(ii) in the case of the Class A-2 Note Register, kept at the office of
the Class A-2 Note Registrar at 0 Xxxxxxxxx Xxxxxx Xxxxxxxx,
Xxxxxxxxxx X-0000 (Xxxxxxxxx: The Coupon Paying Department) or at
such place as the Trustee, the Manager and the Class A-2 Note
Registrar may agree;
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(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
(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,
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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.
17. CHANGES OF NOTE REGISTRAR
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
18.1 COMMUNICATIONS TO OFFSHORE NOTEHOLDERS
The Principal Paying Agent (in the case of Class A-1 Notes) and the Euro
Paying Agent (in the case of Class A-2 Notes) 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 relevant Paying Agent. Such communication
shall include the date upon which the response to such solicitation shall
be delivered (the RESPONSE DATE). Each relevant 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. Each relevant Paying Agent shall notify the Trustee,
Manager and Note Trustee of the results of any such solicitations of
consent.
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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 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.
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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, 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 (in the case of the Class A-1 Notes) and the
Euro Paying Agent (in the case of Class A-2 Notes) shall, subject always
to compliance with mandatory provisions of law, upon request from any
relevant 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.
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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 Euro Paying Agent with respect to any Offshore
Notes under this agreement are subject to:
(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;
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(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, 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 United States of America (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:
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(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),
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 United States of America
(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.
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(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,
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
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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 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.
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(b) If the Calculation Agent proposes to change its Specified Office
(which must be in the United States of America 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.
(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.
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(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 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.
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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
(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, a 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
Xxxxxxxxx
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Manager Securitisation
THE MANAGER
CRUSADE MANAGEMENT LIMITED
0-00 Xxxxxxxxxx Xxxxxx
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Xxxxxxx, Xxx Xxxxx Xxxxx 0000
Xxxxxxxxx
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Chief Manager, Securitisation
THE PRINCIPAL PAYING AGENT AND US PAYING AGENT
IN RELATION TO THE CLASS A-1 NOTES, CLASS A-1 NOTEHOLDERS AND CLASS A-1
NOTE OWNERS:
DEUTSCHE BANK TRUST COMPANY AMERICAS
0000 X. Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx, 00000
XXX
Fax: + 0 000 000 0000
Attention: Trust Administration - ST0701
EURO PAYING AGENT
IN RELATION TO THE CLASS A-2 NOTES, CLASS A-2 NOTEHOLDERS AND CLASS A-2
NOTE OWNERS
DEUTSCHE BANK AG, LONDON BRANCH
Winchester House
1 Great Xxxxxxxxxx Xxxxxx
Xxxxxx XX 0X 00X
Xxxxxxx XX
Fax: + 00 000 000 0000
Attention: SFS ABS - ABS Team
THE CALCULATION AGENT
DEUTSCHE BANK TRUST COMPANY AMERICAS
0000 X. Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx, 00000
XXX
Fax: + 0 000 000 0000
Attention: Trust Administration - ST0701
THE NOTE TRUSTEE
DEUTSCHE BANK TRUST COMPANY AMERICAS
0000 X. Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx, 00000
XXX
Fax: + 0 000 000 0000
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Attention: Trust Administration - ST0701
THE CLASS A-1 NOTE REGISTRAR
DEUTSCHE BANK TRUST COMPANY AMERICAS
000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
XXX
Attention: Transfer Unit - ST0701
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 Xxxxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx 00000-0000.
THE CLASS A-2 NOTE REGISTRAR
DEUTSCHE BANK LUXEMBOURG S.A.
0 Xxxxxxxxx Xxxxxx Xxxxxxxx
Xxxxxxxxxx X-0000
Fax: + 00 000 000 000
Attention: The Coupon Paying Department
Solely for the purposes of transfer of any Class A-2 Note, the Class A-2
Note Registrar shall act through its office at 0 Xxxxxxxxx Xxxxxx Xxxxxxxx,
Xxxxxxxxxx X-0000.
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
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
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obligations of the Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or transaction
related to this agreement or the Trust.
(b) Subject to paragraph (c) below, no person (including any Relevant
Party) may take action against the Trustee in any capacity other than
as trustee of the Trust or seek the appointment of a receiver (except
under the Security Trust Deed), or a liquidator, an administrator or
any similar person to the Trustee or prove in any liquidation,
administration or arrangement of or affecting the Trustee.
(c) The provisions of this clause 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.
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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;
(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 Principal Paying Agent, the Class A-1 Note Registrar and the
Calculation Agent (for purposes of this clause 29, each a 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.
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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. Each
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. Each Servicing
Function Participant shall cooperate fully with the 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 each 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 each 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 ADDITIONAL REPRESENTATIONS AND WARRANTIES OF EACH SERVICING FUNCTION
PARTICIPANT
(a) Each Servicing Function Participant shall be deemed to represent to
the Manager, as of the date on which information is first provided to
the Manager under clause 29.3 that, except as disclosed in writing to
the Manager prior to such date:
(i) it is not aware and has not received notice that any default,
early amortisation or other performance triggering event has
occurred as to any other securitisation due to any act or
failure to act of such Servicing Function Participant;
(ii) it has not been terminated as calculation agent, note registrar,
paying agent or similar role, as applicable, in a residential
housing loan securitisation due to its default or the
application of a performance test or a triggering event;
(iii) no material noncompliance with the applicable servicing criteria
with respect to other securitisations of residential housing
loans involving such Servicing Function Participant has been
disclosed or reported by such Servicing Function Participant;
(iv) no material changes to such Servicing Function Participant's
policies or procedures with respect to the servicing function it
will perform under the Transaction Documents for housing loans
of a type similar to the Purchased Receivables have occurred
during the three-year period immediately preceding the Closing
Date;
(v) there are no aspects of such Servicing Function Participant's
financial condition that could have a material adverse effect on
the performance by such Servicing Function Participant of its
obligations under this Agency Agreement or any other Transaction
Document;
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(vi) there are no material legal or governmental proceedings pending
(or known to be contemplated) against such Servicing Function
Participant or any Subservicer; and
(vii) there are no affiliations, relationships or transactions
relating to such Servicing Function Participant or any
Subservicer with respect to the transactions contemplated by
this Agency Agreement or any other Transaction Document and any
party thereto identified by the Manager of a type described in
Item 1119 of Regulation AB.
(b) If so requested by the Manager on any date following the date on which
information is first provided to the Manager under clause 29.3, each
Servicing Function Participant shall, within five Business Days
following such request, confirm in writing the accuracy of the
representations and warranties set forth in paragraph (a) of this
clause 29.2 or, if any such representation and warranty is not
accurate as of the date of such request, provide reasonably adequate
disclosure of the pertinent facts, in writing, to the requesting
party.
29.3 INFORMATION TO BE PROVIDED BY EACH SERVICING FUNCTION PARTICIPANT
(a) Each Servicing Function Participant shall:
(i) within five Business Days following request by the Manager,
provide to the Manager (or cause each Subservicer, if any, to
provide), in writing and in form and substance reasonably
satisfactory to the Manager, the information and materials
specified in clause 29.2 and this clause 29.3, and
(ii) as promptly as practicable following notice to or discovery by
such Servicing Function Participant, provide to the Manager (in
writing and in form and substance reasonably satisfactory to the
Manager) the information specified in paragraph (d) of this
clause 29.3.
(b) If so requested by the Manager, each Servicing Function Participant
shall provide such information regarding:
(i) itself; and
(ii) as applicable, each Subservicer, as is requested for the purpose
of compliance with Items 1103(a)(1), 1117 and 1119 of Regulation
AB. Such information shall include, at a minimum:
(A) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against
such Servicing Function Participant and any Subservicer; and
(B) a description of any affiliation or relationship between
such Servicing Function Participant, any Subservicer and any
of the following parties to this transaction, as such
parties are identified to such Servicing Function
Participant by the Manager in writing in advance of this
transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
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(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) If so requested by the Manager for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class
of asset-backed securities, each Servicing Function Participant shall
(or shall cause each Subservicer, if any, to) (i) notify the Manager
in writing of (A) any material litigation or governmental proceedings
pending against such Servicing Function Participant or any Subservicer
and (B) any affiliations or relationships that develop following the
Closing Date between such Servicing Function Participant or any
Subservicer, if any, and any of the parties specified in sub paragraph
(ii)(B) of this clause 29.3 (and any other parties identified in
writing by the requesting party) with respect to the issuance of the
Notes, and (ii) provide to the Manager a description of such
proceedings, affiliations or relationships.
(d) As a condition to the succession to a Servicing Function Participant
or any Subservicer, if any, as servicer or subservicer under this
Agency Agreement or any other Transaction Document by any person:
(i) into which such Servicing Function Participant or such
Subservicer, if any, may be merged or consolidated; or
(ii) which may be appointed as a successor to such Servicing Function
Participant or, if applicable, any Subservicer, such 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.
(e) In addition to such information as each Servicing Function Participant
is obligated to provide pursuant to other provisions of this Agency
Agreement and any other Transaction Document, if so requested by the
Manager, each Servicing Function Participant shall provide such
information regarding the performance or servicing of the Purchased
Receivables as is reasonably required to facilitate preparation of
distribution reports in accordance with Item 1121 of Regulation AB.
Such information shall be provided concurrently with the monthly
reports otherwise required to be delivered by the Trustee (or the
Manager on its behalf) pursuant to clause 11(m)(i) of the Note Trust
Deed, commencing with the first such report due not less than ten
Business Days following such request.
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29.4 REPORT ON ASSESSMENT OF COMPLIANCE AND ATTESTATION
(a) On or before 1 December of each calendar year, commencing in 2007,
each Servicing Function Participant shall:
(i) deliver to the Manager a report (in form and substance reasonably
satisfactory to the Manager) regarding such Servicing Function
Participant's assessment of compliance with the Servicing
Criteria during the immediately preceding financial 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
such Servicing Function Participant, and shall address each of
the 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;
(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 such 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; and
(iii) cause each Subservicer, if any, and each Subcontractor, if any,
determined by such Servicing Function Participant pursuant to
clause 29.6(b) to be "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB, to deliver to
the Manager an assessment of compliance and accountants'
attestation as and when provided in paragraphs (a) and (b) of
this clause 29.4.
(b) Each assessment of compliance provided by a Subservicer, if any,
pursuant to this clause 29.4 shall address each of the 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 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 29.4(a)(iii) need not
address any elements of the Servicing Criteria other than those
specified by the relevant Servicing Function Participant pursuant to
clause 29.5.
29.5 USE OF SUBSERVICERS AND SUBCONTRACTORS
Each Servicing Function Participant shall not hire or otherwise utilise the
services of any Subservicer to fulfil any of the obligations of such
Servicing Function Participant under this Agency Agreement or any other
Transaction Document unless such Servicing Function Participant complies
with the provisions of paragraph (a) of this clause 29.5. Each 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 such Servicing Function Participant under this Agency
Agreement or any other Transaction Document unless such Servicing Function
Participant complies with the provisions of paragraph (b) of this clause
29.5.
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(a) It shall not be necessary for a Servicing Function Participant to seek
the consent of the Manager to the utilisation of any Subservicer. Each
Servicing Function Participant shall cause any Subservicer used by it
(or by any Subservicer) for the benefit of the Manager to comply with
the provisions of this clause 29.5 and with clauses 29.2, 29.4 and
29.6 of this Agency Agreement to the same extent as if such
Subservicer were such Servicing Function Participant, and to provide
the information required with respect to such Subservicer under clause
29.3(c) of this Agency Agreement. Each Servicing Function Participant
shall be responsible for obtaining from each Subservicer and
delivering to the Manager any assessment of compliance and attestation
required to be delivered by such Subservicer under clause 29.4 and any
certification required to be delivered to the person that will be
responsible for signing the Sarbanes Certification under clause 18.5
as and when required to be delivered.
(b) It shall not be necessary for each Servicing Function Participant to
seek the consent of the Manager to the utilisation of any
Subcontractor. Each Servicing Function Participant shall promptly upon
request provide to the Manager (or any designee of the Manager, such
as a master servicer or administrator) a written description (in form
and substance satisfactory to the Manager) of the role and function of
each Subcontractor utilised by such Servicing Function Participant or
any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are
"participating in the servicing function" within the meaning of Item
1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by
each Subcontractor identified pursuant to clause (ii) of this
paragraph.
As a condition to the utilisation of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122
of Regulation AB, each Servicing Function Participant shall cause any such
Subcontractor used by such Servicing Function Participant (or by any
Subservicer) for the benefit of the Manager to comply with the provisions
of clauses 29.4 and 29.6 of this Agency Agreement to the same extent as if
such Subcontractor were such Servicing Function Participant. Each Servicing
Function Participant shall be responsible for obtaining from each
Subcontractor and delivering to the Manager any assessment of compliance
and attestation required to be delivered by such Subcontractor under clause
29.4, in each case as and when required to be delivered.
29.6 INDEMNIFICATION; REMEDIES
(a) Each Servicing Function Participant shall indemnify the Manager, each
affiliate of the Manager, and each of the following parties
participating in transactions contemplated by this Agency Agreement:
each sponsor and issuing entity; each person responsible for the
preparation, execution or filing of any report required to be filed
with the Commission with respect to transactions contemplated by this
Agency Agreement, or for execution of a certification pursuant to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to
such transactions; each broker dealer acting as underwriter, placement
agent or initial purchaser, each person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees and agents of each
of the foregoing and of the Depositor, and shall hold each of them
harmless from and against any
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losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification,
accountants' letter or other material provided in written or
electronic form under this clause 29 by or on behalf of such
Servicing Function Participant, or provided under this
clause 29 by or on behalf of any Subservicer or
Subcontractor (collectively, the Servicing Function
Participant Information); or
(B) the omission or alleged omission to state in the Servicing
Function Participant Information a material fact required to
be stated in the Servicing Function Participant Information
or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause
(B) of this paragraph shall be construed solely by reference
to the Servicing Function Participant Information and not to
any other information communicated in connection with a sale
or purchase of securities, without regard to whether the
Servicing Function Participant Information or any portion
thereof is presented together with or separately from such
other information;
(ii) any failure by such Servicing Function Participant, any
Subservicer or any Subcontractor to deliver any information,
report, certification, accountants' letter or other material
when and as required under this clause 29, including any failure
by such Servicing Function Participant to identify pursuant to
clause 29.5(b) any Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB; or
(iii) any breach by such Servicing Function Participant of a
representation or warranty set forth in clause 29.2(a) or in a
writing furnished pursuant to clause 29.2(b) and made as of a
date prior to the Closing Date, to the extent that such breach
is not cured by the Closing Date, or any breach by such
Servicing Function Participant of a representation or warranty
in a writing furnished pursuant to clause 29.2(b) to the extent
made as of a date subsequent to the Closing Date.
In the case of any failure of performance described in sub-paragraph
(a)(ii) of this clause 29.6, the relevant Servicing Function
Participant shall promptly reimburse the Manager, and each person
responsible for the preparation, execution or filing of any report
required to be filed with the Commission with respect to the
transactions contemplated by the Agency Agreement, or for execution of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such transactions, for all costs
reasonably incurred by each such party in order to obtain the
information, report, certification, accountants' letter or other
material not delivered as required by such Servicing Function
Participant, any Subservicer or any Subcontractor.
(b) (i) Any failure by a Servicing Function Participant, any Subservicer
or any Subcontractor to deliver any information, report,
certification, accountants' letter
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or other material when and as required under this clause 29, or
any breach by a Servicing Function Participant of a
representation or warranty set forth in clause 29.2(b) or in a
writing furnished pursuant to clause 29.2(b) and made as of a
date prior to the Closing Date, to the extent that such breach
is not cured by the Closing Date, or any breach by a Servicing
Function Participant of a representation or warranty in a
writing furnished pursuant to clause 29.2(b) to the extent made
as of a date subsequent to the Closing Date, shall, except as
provided in sub-paragraph (a), immediately and automatically,
without notice or grace period, constitute a breach under this
Agency Agreement and any other applicable Transaction Document,
and shall entitle the Manager, in its sole discretion to
terminate the rights and obligations of such Servicing Function
Participant under this Agency Agreement and/or any other
applicable Transaction Document without payment (notwithstanding
anything in this Agency Agreement or any other applicable
Transaction Document to the contrary) of any compensation to
such Servicing Function Participant; provided that to the extent
that any provision of this Agency Agreement and/or any other
applicable Transaction Document expressly provides for the
survival of certain rights or obligations following termination
of such Servicing Function Participant, such provision shall be
given effect.
(ii) Any failure by a Servicing Function Participant, any Subservicer
or any Subcontractor to deliver any information, report,
certification or accountants' letter when and as required under
clause 29.4, including (except as provided below) any failure by
a Servicing Function Participant to identify pursuant to clause
29.5(b) any Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB,
which continues unremedied for ten calendar days after the date
on which such information, report, certification or accountants'
letter was required to be delivered shall constitute a breach
with respect to such Servicing Function Participant under this
Agency Agreement and any other applicable Transaction Document,
and shall entitle the Manager, in its sole discretion to
terminate the rights and obligations of such Servicing Function
Participant, under this Agency Agreement and/or any other
applicable Transaction Document without payment (notwithstanding
anything in any of the foregoing documents to the contrary) of
any compensation to such Servicing Function Participant;
provided that to the extent that any provision of any of the
foregoing documents expressly provides for the survival of
certain rights or obligations following termination of such
Servicing Function Participant, such provision shall be given
effect.
The Manager shall not be entitled to terminate the rights and
obligations of a Servicing Function Participant pursuant to this
sub-paragraph (b)(ii) if a failure of such Servicing Function
Participant to identify a Subcontractor, if any, "participating
in the servicing function" within the meaning of Item 1122 of
Regulation AB was attributable solely to the role or functions
of such Subcontractor with respect to housing loans other than
the Purchased Receivables.
(iii) Each Servicing Function Participant shall promptly reimburse the
Manager (or any designee of the Manager) for all reasonable
expenses incurred by the Manager (or
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such designee), as such are incurred, in connection with the
termination of such Servicing Function Participant, and the
transfer of servicing of the Purchased Receivables to a successor
Servicing Function Participant. The provisions of this paragraph
shall not limit whatever rights the Manager may have under other
provisions of this Agency Agreement and/or any other applicable
Transaction Document or otherwise, whether in equity or at law,
such as an action for damages, specific performance or injunctive
relief.
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/ Xxxxx Xxxxxxxx /s/ Xxxxxx Ruver
------------------------------------- ----------------------------------------
Witness Signature Attorney Signature
Xxxxx Xxxxxxxx Xxxxxx Ruver
Print Name Print Name
MANAGER
SIGNED for CRUSADE MANAGEMENT LIMITED
by its attorney under power of
attorney in the presence of:
/s/ Xxxxx Xxxxxxxx /s/ Xxxxxx Xxxxx
------------------------------------- ----------------------------------------
Witness Signature Attorney Signature
Xxxxx Xxxxxxxx Xxxxxx Xxxxx
Print Name Print Name
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PRINCIPAL PAYING AGENT AND US PAYING AGENT
SIGNED on behalf of DEUTSCHE BANK TRUST
COMPANY AMERICAS in the presence of:
/s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Authorised Signatory
Xxxxxxx Xxxxxxxx (Vice President)
Print Name
EURO PAYING AGENT
SIGNED on behalf of DEUTSCHE BANK AG,
LONDON BRANCH in the presence of:
/s/ Xxxx Xxxxxx -- /s/ Xxxxxx Xxxxxx
---------------------------------------
Authorised Signatory
Xxxx Xxxxxx -- Xxxxxx Xxxxxx
Print Name
NOTE TRUSTEE
SIGNED on behalf of DEUTSCHE BANK TRUST
COMPANY AMERICAS in the presence of:
/s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Authorised Signatory
Xxxxxxx Xxxxxxxx (Vice President)
Print Name
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CALCULATION AGENT
SIGNED on behalf of DEUTSCHE BANK TRUST
COMPANY AMERICAS in the presence of:
/s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Authorised Signatory
Xxxxxxx Xxxxxxxx (Vice President)
Print Name
CLASS A-1 NOTE REGISTRAR
SIGNED on behalf of DEUTSCHE BANK TRUST
COMPANY AMERICAS in the presence of:
/s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Authorised Signatory
Xxxxxxx Xxxxxxxx (Vice President)
Print Name
CLASS A-2 NOTE REGISTRAR
SIGNED on behalf of DEUTSCHE BANK
LUXEMBOURG S.A. in the presence of:
/s/ Xxxx Xxxxxx -- /s/ Xxxxxx Xxxxxx
-------------------------------------
Authorised Signatory
Xxxx Xxxxxx -- Xxxxxx Xxxxxx
Print Name
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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] [Deutsche
Bank Trust Company Americas (in 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
SERVICING CRITERIA CRITERIA
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REFERENCE CRITERIA
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GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor
any performance or other triggers and events of
default in accordance with the transaction
agreements.
1122(d)(1)(ii) 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 such
servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to
maintain a back-up servicer for the pool assets
are maintained.
1122(d)(1)(iv) 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 agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) 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 such other number of
days specified in the transaction agreements.
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APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
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REFERENCE CRITERIA
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1122(d)(2)(ii) Disbursements made via wire transfer on behalf of
an obligor or to an investor are made only by
authorized personnel.
1122(d)(2)(iii) 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 approved as specified in
the transaction agreements.
1122(d)(2)(iv) 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 respect to commingling of
cash) as set forth in the transaction agreements.
1122(d)(2)(v) 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 Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
1122(d)(2)(vii) 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 transaction
agreements.
INVESTOR REMITTANCES AND REPORTING
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SERVICING
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REFERENCE CRITERIA
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1122(d)(3)(i) 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 assets
serviced by the servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and
remitted in accordance with timeframes,
distribution priority and other terms set forth
in the transaction agreements.
1122(d)(3)(iii) 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 agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor
reports agree with cancelled checks, or other
form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on pool assets is
maintained as required by the transaction
agreements or related asset pool documents.
1122(d)(4)(ii) Pool assets and related documents are safeguarded
as required by the transaction agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the
asset pool are made, reviewed and approved in
accordance with any conditions or requirements in
the transaction agreements.
1122(d)(4)(iv) 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 than two business
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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.
1122(d)(4)(v) The servicer's records regarding the pool assets
agree with the servicer's records with respect to
an obligor's unpaid principal balance.
1122(d)(4)(vi) 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 accordance with the
transaction agreements and related pool asset
documents.
1122(d)(4)(vii) 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 established by
the transaction agreements.
1122(d)(4)(viii) 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
plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return
for pool assets with variable rates are computed
based on the related pool asset documents.
1122(d)(4)(x) 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) interest on such funds is paid,
or credited, to obligors in accordance with
applicable pool asset documents and state laws;
and (C) such funds
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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.
1122(d)(4)(xi) 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 days specified in the transaction
agreements.
1122(d)(4)(xii) 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 late payment was due to
the obligor's error or omission.
1122(d)(4)(xiii) 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 in the transaction
agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectable
accounts are recognized and recorded in
accordance with the transaction agreements.
1122(d)(4)(xv) 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 agreements.
[SERVICER]
Date:
By:
Name:
FORM OF 10-K CERTIFICATION
[*] (the ASSERTING PARTY) is responsible for assessing compliance
as of September 30, 200[*] and for the period from March 15, 2007
(the date of issuance of the Crusade Global Trust No. 1 of 2007
transaction subject to the requirements of Regulation AB) through
September 30, 20[*] (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 229.1122(d) that are not applicable to the
Asserting Party] in
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the CFR, which the Asserting Party has concluded are not applicable
to the servicing activities it performs with respect to the
asset-backed securities transactions covered by this report (the
APPLICABLE SERVICING CRITERIA). The transactions covered by this
report include asset-backed securities transactions for which the
Asserting Party served as [*] that are backed by the same asset
type backing the class of asset-backed securities of the Crusade
Global Trust No. 1 of 2007 (including the Crusade Global Trust No.
1 of 2007 asset-backed securities transaction), that were completed
on or after January 1, 2006 by Crusade Management Limited as
depositor and that were registered with the SEC pursuant to the
Securities Act of 1933 (the PLATFORM).
The Asserting Party has assessed its compliance with the Applicable
Servicing Criteria as of September 30, 20[*] and for the Reporting
Period and has concluded that the Asserting Party has complied, in
all material respects, with the Applicable Servicing Criteria with
respect to the Platform taken as a whole.
[*], an independent registered public accounting firm, has issued
an attestation report on the assessment of compliance with the
Applicable Servicing Criteria as of September 30, 200[*] and for
the Reporting Period as set forth in this assessment.
[NAME OF ASSERTING PARTY]
Date:
By:
Name:
Title:
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