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Seller Loan Agreement
AXA Trustees Limited
(Trustee)
▇▇.▇▇▇▇▇▇ Bank Limited
(Approved Seller)
Crusade Management Limited
(Manager)
Crusade Global Trust No. 1 of 1999
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
The Chifley Tower
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(C) Copyright ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ 1999
Seller Loan Agreement ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
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Table of Contents
1. Definitions and Interpretation 1
1.1 Definitions 1
1.2 Master Trust Deed definitions 2
1.3 Interpretation 2
1.4 Determination, statement and
certificate sufficient evidence 2
1.5 Transaction Document 3
1.6 Limited to Trust 3
1.7 Trustee as trustee 3
1.8 Knowledge of Trustee 3
1.9 Unsecured loan 3
2. Purpose 3
3. Drawings 4
3.1 Advance 4
3.2 Making of Advance 4
4. Interest and Fees 4
5. Repayment 4
6. Payments 4
6.1 Manner 4
6.2 Payment to be made on Business Day 5
7. Conditions Precedent 5
8. Representations and Warranties 5
8.1 Representations and warranties 5
8.2 Reliance on representations and warranties 6
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Page (i)
Seller Loan Agreement ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
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9. Undertakings 6
9.1 General undertakings 6
9.2 Undertakings relating to Trust 7
9.3 Term of undertakings 7
10. Control Accounts 7
11. Waivers, Remedies Cumulative 7
12. Severability of Provisions 8
13. Survival of Representations 8
14. Indemnity and Reimbursement Obligation 8
15. Moratorium Legislation 8
16. Consents and Opinions 8
17. Assignments 9
18. Notices 9
19. Authorised Signatories 9
20. Governing Law and Jurisdiction 10
21. Counterparts 10
22. Acknowledgement by Trustee 10
23. Limited Recourse 10
23.1 General 10
23.2 Liability of Trustee limited to
its right to indemnity 10
23.3 Unrestricted remedies 11
23.4 Restricted remedies 12
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Page (ii)
Seller Loan Agreement ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
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24. Approved Seller's Obligations 12
25. Successor Trustee 12
ANNEXURE A 14
DRAWDOWN NOTICE 14
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Page (iii)
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Date 1999.
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Parties
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1. AXA Trustees Limited (ACN 004 029 841) of ▇▇▇▇▇ ▇, ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ in its
capacity as trustee of the Crusade Global Trust No. 1 of 1999
(the Trustee);
2. ▇▇.▇▇▇▇▇▇ Bank Limited (ACN 055 513 070) incorporated in New
South Wales of ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ (the Approved Seller); and
3. Crusade Management Limited (ACN 072 715 916) incorporated in
the Australian Capital Territory of ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (the Manager).
Recitals
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A The Trustee is the trustee of the Crusade Global Trust No. 1
of 1999 and proposes to issue Notes pursuant to the Master
Trust Deed.
B The Manager has arranged for the Approved Seller to provide
the Trustee with a loan of A$[*] for the purchase of
Receivables by the Trustee.
C The Approved Seller has agreed to provide the loan to the
Trustee on the terms and conditions contained in this
agreement.
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IT IS AGREED as follows.
1. Definitions and Interpretation
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1.1 Definitions
In this agreement the following definitions apply unless the context
requires otherwise, or unless otherwise defined.
Advance means the advance made or to be made under this agreement.
Drawdown Notice means a notice under clause 3.1.
Limit means A$[*].
Master Trust Deed means the deed entitled "Master Trust Deed" between,
among others, the Trustee and the Manager dated 14 March 1998.
Notice of Creation of Trust means the Notice of Creation of Trust dated
on or before the date of this agreement issued under the Master Trust
Deed in relation to the Trust.
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Principal Outstanding means, at any time, the total principal amount of
the Advance at that time.
Secured Moneys has the meaning given in the Security Trust Deed.
Security Trust Deed means the Security Trust Deed dated on or before
the date of this agreement between, among others, the Trustee, the
Manager and National Mutual Life Nominees Limited.
Supplementary Terms Notice means the Supplementary Terms Notice issued
by the Manager on or about the date of this agreement under the Master
Trust Deed.
Trust means the Crusade Global Trust No. 1 of 1999 constituted under
the Master Trust Deed on the terms of the Supplementary Terms Notice.
Trust Document means:
(a) this agreement;
(b) the Master Trust Deed;
(c) the Notice of Creation of Trust;
(d) the Supplementary Terms Notice;
(e) the Custodian Agreement;
(f) the Security Trust Deed;
(g) the Servicing Agreement;
(h) the Note Trust Deed;
(i) the Agency Agreement; and
(j) the Support Facilities.
Trustee means the trustee of the Trust at the date of this agreement or
any person which becomes a successor trustee under clause 20 of the
Master Trust Deed.
1.2 Master Trust Deed definitions
Words and expressions which are defined in the Master Trust Deed (as
amended by the Supplementary Terms Notice) and the Supplementary Terms
Notice (including in each case 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.
1.3 Interpretation
Clause 1.2 of the Master Trust Deed applies to this agreement as if set
out in full, except that references to this Deed are references to this
agreement.
1.4 Determination, statement and certificate sufficient evidence
Except where otherwise provided in this agreement any determination,
statement or certificate by the Approved Seller or an Authorised
Signatory of
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the Approved Seller provided for in this agreement is sufficient
evidence unless proven wrong.
1.5 Transaction Document
This agreement is a Transaction Document for the purposes of the Master
Trust Deed.
1.6 Limited to Trust
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). Without limitation, the Approved Seller has no
obligation under this agreement to provide financial accommodation to
the Trustee as trustee of any other such Trust.
1.7 Trustee as trustee
In this agreement, except where provided to the contrary;
(a) a reference to the Trustee is a reference to the Trustee in
its capacity as trustee of the Trust and in no other capacity;
and
(b) a reference to the undertaking, property, assets, business or
money of the Trustee is a reference to the undertaking,
property, assets, business or money of the Trustee in its
capacity referred to in paragraph (a).
1.8 Knowledge of Trustee
In relation to the Trust, the Trustee will be considered to have
knowledge or notice of or be aware of any matter or thing if the
Trustee has knowledge, notice or awareness of that matter or thing by
virtue of the actual notice or awareness of the officers or employees
of the Trustee who have day to day responsibility for the
administration of the Trust.
1.9 Unsecured loan
The Approved Seller acknowledges that the Advance is an unsecured loan,
and does not have the benefit of any Security Interest under the
Security Trust Deed.
2. Purpose
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The Manager directs the Trustee to, and the Trustee shall, apply the
proceeds of the Advance to purchase Receivables specified in any Sale
Notice and for no other purpose.
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3. Drawings
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3.1 Advance
(a) Subject to this agreement, the Manager may direct the Trustee
to request the Advance by giving to the Trustee a duly
completed but unsigned Drawdown Notice by no later than 10 am
on the Closing Date (Sydney time).
(b) The Drawdown Notice must be:
(i) in writing;
(ii) in or substantially in the form of Annexure A; and
(iii) signed by the Trustee.
The Trustee must sign and return the Drawdown Notice to the
Manager by no later than 2 pm on the Closing Date (Sydney
time).
(c) The amount requested in a Drawdown Notice must not exceed the
Limit.
3.2 Making of Advance
(a) Subject to the terms of this agreement, the Advance shall be
made available by the Approved Seller applying that amount to
the purchase price for Receivables under a Sale Notice.
4. Interest and Fees
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No interest or fees are payable by the Trustee in relation to the
Advance or this agreement.
5. Repayment
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The Trustee shall, at the direction of the Manager, repay the Principal
Outstanding on the Business Day immediately following the date on which
the Secured Moneys are fully and finally repaid, but only to the extent
that amounts are available for that purpose under clause 5.4(e) of the
Supplementary Terms Notice. That payment shall be in full and final
settlement of the obligations of the Trustee under this agreement.
6. Payments
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6.1 Manner
The Trustee shall make all payments under this agreement:
(a) by cheque, electronic funds transfer or other agreed methods,
provided to the Approved Seller at its address for service of
notices
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or by transfer of immediately available funds to the account
specified by the Approved Seller;
(b) without set-off, counterclaim or other deduction, except any
compulsory deduction for Tax; and
(c) in accordance with, and only at the directions of the Manager,
the Master Trust Deed, the Security Trust Deed and the
Supplementary Terms Notice.
6.2 Payment to be made on Business Day
If any payment is due on a day which is not a Business Day, the due
date will be the next Business Day.
7. Conditions Precedent
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The right of the Trustee to give the initial Drawdown Notice and the
obligations of the Approved Seller under this agreement are subject to
the condition precedent that the Approved Seller receives all of the
following in form and substance satisfactory to the Approved Seller:
(a) (Trust Documents) from the Manager a certified copy of each
duly executed and (where relevant) stamped Trust Document;
(b) (Master Trust Deed conditions precedent) from the Manager
evidence that the conditions precedent referred to in clause 6
of the Master Trust Deed have been satisfied; and
(c) (Notes) evidence that the Notes have been issued.
8. Representations and Warranties
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8.1 Representations and warranties
The Trustee (in its capacity as trustee of the Trust) makes the
following representations and warranties (so far as they relate to the
Trust).
(a) (Documents binding) This agreement constitutes (or will, when
executed and delivered, constitute) its legal, valid and
binding obligations (subject to laws generally affecting
creditors' rights and to general principles of equity).
(b) (Transactions permitted) The execution of this agreement did
not and will not contravene any applicable law or
authorisation which affects the Trustee in its capacity as
trustee of the Trust.
(c) (Other default) It has no actual knowledge of any default by
it or the Manager under either:
(i) the Master Trust Deed; or
(ii) any law, authorisation, agreement or obligation applicable to
the Assets of the Trust,
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which has not been remedied or waived in writing.
(d) (Trust) The Trust has been validly created and is in existence
at the date of this agreement.
(e) (Sole Trustee) It is the sole trustee of the Trust at the date
of this agreement.
(f) (Removal) No notice has been given to it and to its knowledge
no resolution has been passed or direction or notice has been
given, removing it as trustee of the Trust.
8.2 Reliance on representations and warranties
The Trustee acknowledges that the Approved Seller has entered into the
Trust Documents in reliance on the representations and warranties in
this clause.
9. Undertakings
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9.1 General undertakings
Each of the Trustee and the Manager undertake to the Approved Seller as
follows in relation to the Trust, except to the extent that the
Approved Seller consents.
(a) (Authorisations) It will ensure that each Authorisation
(which, in the case of the Trustee, is limited to any
Authorisation relating to the Trustee in its capacity as
trustee of the Trust and not to the Trust generally) required
for:
(i) the execution, delivery and performance by it of the
Trust Documents to which it is expressed to be a
party and the transactions contemplated by those
documents;
(ii) the validity and enforceability of those documents;
and
(iii) the carrying on by it of its business as now
conducted or contemplated,
is obtained and promptly renewed and maintained in full force
and effect. It will pay all applicable fees for them. It will
provide copies promptly to the Approved Seller when they are
obtained or renewed.
(b) (Negative pledge) It will not create or allow to exist a
Security Interest over the Assets of the Trust other than:
(i) under the Trust Documents; or
(ii) a lien arising by operation of law in the ordinary
course of day-to-day trading and not securing
indebtedness in respect of financial accommodation
where it duly pays the indebtedness secured by that
lien other than indebtedness contested in good faith.
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(c) (Comply with obligations) It will duly and punctually comply
with its obligations under the Trust Documents.
(d) (Notice to Approved Seller) It will notify the Approved Seller
as soon as it becomes actually aware of any proposal by a
Government Agency to acquire compulsorily any Assets of the
Trust.
9.2 Undertakings relating to Trust
Each of the Trustee, as trustee of the Trust, and the Manager severally
undertakes to the Approved Seller as follows, except to the extent that
the Approved Seller consents.
(a) (Amendment to Master Trust Deed) It will not consent to any
amendment to the Master Trust Deed, the Supplementary Terms
Notice or any other Trust Document which would change:
(i) the basis upon which the amount of the Advance to be
made is calculated;
(ii) Clause 5.4 of the Supplementary Terms Notice; or
(iii) the basis of calculation or order of application of
any amount to be paid or applied under clause 5 of
the Supplementary Terms Notice unless the change
would not be adverse to the Approved Seller in
respect of the Advance.
(b) (Resettlement) It will not take any action that will result in
a resettlement, setting aside or transfer of any asset of the
Trust other than a transfer which complies with the Master
Trust Deed, the Supplementary Terms Notice and the other Trust
Documents.
(c) (No additional trustee) It will act continuously as trustee or
manager (as the case may be) of the Trust in accordance with
the Master Trust Deed until the Trust has been terminated or
until it has retired or been removed in accordance with the
Master Trust Deed.
9.3 Term of undertakings
Each undertaking in this clause continues from the date of this
agreement until all moneys actually or contingently owing under this
agreement are fully and finally repaid or cease to be outstanding.
10. Control Accounts
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The accounts kept by the Approved Seller constitute sufficient
evidence, unless proven wrong, of the amount at any time due from the
Trustee under this agreement.
11. Waivers, Remedies Cumulative
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(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
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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 the Approved
Seller in this agreement are in addition to, and do not
exclude or limit, any right, power or remedy provided by law.
12. Severability of Provisions
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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.
13. Survival of Representations
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All representations and warranties in this agreement survive the
execution and delivery of this agreement and the provision of advances
and accommodation.
14. Indemnity and Reimbursement Obligation
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Unless stated otherwise, each indemnity, reimbursement or similar
obligation in this agreement:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
(c) is payable on demand; and
(d) survives termination or discharge of this agreement.
15. Moratorium Legislation
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To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Trustee any
obligation under a Trust Document; or
(b) delays, prevents or prejudicially affects the exercise by the
Approved Seller of any right, power or remedy conferred by
this agreement,
is excluded from this agreement.
16. Consents and Opinions
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Except where expressly stated the Approved Seller may give or withhold,
or give conditionally, approvals and consents, may be satisfied or
unsatisfied,
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may form opinions, and may exercise its rights, powers and remedies, at
its absolute discretion.
17. Assignments
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Neither party may assign or transfer any of its rights or obligations
under this agreement without the prior written consent of the other
party or if the rating of the 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.
18. Notices
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All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the
recipient shown in this agreement or to any other
address which it may have notified the sender;
(ii) (in the case of facsimile transmission) on receipt of
a transmission report confirming successful
transmission; and
(iii) (in the case of a telex) on receipt by the sender of
the answerback code of the recipient at the end of
transmission,
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 4.00 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.
19. Authorised Signatories
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The Trustee irrevocably authorises the Approved Seller to rely on a
certificate by persons purporting to be its directors and/or
secretaries as to the identity and signatures of its Authorised
Signatories. The Trustee warrants that those persons have been
authorised to give notices and communications under or in connection
with this agreement.
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20. Governing Law and Jurisdiction
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This agreement is governed by the laws of New South Wales. The Trustee
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
21. Counterparts
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This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
22. Acknowledgement by Trustee
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The Trustee confirms that:
(a) it has not entered into this agreement in reliance on, or as a
result of, any statement or conduct of any kind of or on
behalf of the Approved Seller (including any advice, warranty,
representation or undertaking); and
(b) the Approved Seller is not obliged to do anything (including
disclose anything or give advice),
except as expressly set out in this agreement.
23. Limited Recourse
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23.1 General
Clause 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Manager under this agreement.
23.2 Liability of Trustee limited to its right to indemnity
(a) The Trustee enters into this agreement only in its capacity as
trustee of the Trust and in no other capacity (except where
the Transaction Documents provide otherwise). Subject to
paragraph (c) below, a liability arising under or in
connection with this agreement or the Trust can be enforced
against the Trustee only to the extent to which it can be
satisfied out of the assets and property of the Trust which
are available to satisfy the right of the Trustee to be
exonerated or indemnified for the liability. This limitation
of the Trustee's liability applies despite any other provision
of this agreement and extends to all liabilities and
obligations of the Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this agreement or the Trust.
(b) Subject to paragraph (c) below, no person (including any
Relevant Party) may take action against the Trustee in any
capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust
Deed), or a liquidator, an administrator or
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any similar person to the Trustee or prove in any liquidation,
administration or arrangements of or affecting the Trustee.
(c) The provisions of this clause 23.2 shall not apply to any
obligation or liability of the Trustee to the extent that it
is not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Trustee's indemnification or exoneration out of the Assets of
the Trust as a result of the Trustee's fraud, negligence, or
Default.
(d) It is acknowledged that the Relevant Parties are responsible
under this agreement or the other Transaction Documents for
performing a variety of obligations relating to the Trust. No
act or omission of the Trustee (including any related failure
to satisfy its obligations under this agreement) will be
considered fraud, negligence or Default of the Trustee for the
purpose of paragraph (c) above to the extent to which the act
or omission was caused or contributed to by any failure by any
Relevant Party or any person who has been delegated or
appointed by the Trustee in accordance with the Transaction
Documents to fulfil its obligations relating to the Trust or
by any other act or omission of a Relevant Party or any such
person.
(e) In exercising their powers under the Transaction Documents,
each of the Trustee, the Security Trustee and the Noteholders
must ensure that no attorney, agent, delegate, receiver or
receiver and manager appointed by it in accordance with this
agreement or any other Transaction Documents has authority to
act on behalf of the Trustee in a way which exposes the
Trustee to any personal liability and no act or omission of
any such person will be considered fraud, negligence, or
Default of the Trustee for the purpose of paragraph (c) above.
(f) In this clause, Relevant Parties means each of the Manager,
the Servicer, the Custodian, the Calculation Agent, each
Paying Agent, the Note Trustee and the provider of any Support
Facility.
(g) Nothing in this clause limits the obligations expressly
imposed on the Trustee under the Transaction Documents.
23.3 Unrestricted remedies
Nothing in clause 23.2 limits the Approved Seller in:
(a) obtaining an injunction or other order to restrain any breach
of this agreement by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
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23.4 Restricted remedies
Except as provided in clause 23.3, the Approved Seller shall not:
(a) (judgment) obtain a judgment for the payment of money or
damages by the Trustee;
(b) (statutory demand) issue any demand under s459E(1) of the
Corporations Law (or any analogous provision under any other
law) against the Trustee;
(c) (winding up) apply for the winding up or dissolution of the
Trustee;
(d) (execution) levy or enforce any distress or other execution
to, on, or against any assets of the Trustee;
(e) (court appointed receiver) apply for the appointment by a
court of a receiver to any of the assets of the Trustee;
(f) (set-off or counterclaim) exercise or seek to exercise any
set-off or counterclaim against the Trustee; or
(g) (administrator) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and the Approved Seller waives
its rights to make those applications and take those proceedings.
24. Approved Seller's Obligations
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The Trustee shall have no recourse to the Approved Seller in relation
to this agreement beyond its terms, and the Approved Seller's
obligations under this agreement are separate from, and independent to,
any obligations the Approved Seller may have to the Trustee for any
other reason (including under any other Trust Document).
25. Successor Trustee
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The Approved Seller 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.
EXECUTED in Sydney.
Each attorney executing this agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.
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SIGNED by )
AXA TRUSTEES LIMITED )
(ACN 004 029 841) )
by its attorney under the Power of )
Attorney dated )
the presence of: )
---------------------------
Signature
-------------------------------------------------- ---------------------------
Witness Print name
--------------------------------------------------
Print name
SIGNED on behalf of )
▇▇.▇▇▇▇▇▇ BANK LIMITED )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
---------------------------
Signature
-------------------------------------------------- ---------------------------
Witness Print name
--------------------------------------------------
Print name
SIGNED on behalf of )
CRUSADE MANAGEMENT )
LIMITED )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
---------------------------
Signature
-------------------------------------------------- ---------------------------
Witness Print name
--------------------------------------------------
Print name
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ANNEXURE A
DRAWDOWN NOTICE
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To: ▇▇.▇▇▇▇▇▇ Bank Limited
SELLER LOAN AGREEMENT - DRAWDOWN NOTICE NO. [*]
We refer to the Seller Loan Agreement dated [*] 1999 (the Facility Agreement).
Under clause 3.1 of the Seller Loan Agreement we give you irrevocable notice as
follows:
(1) we wish to draw on the Closing Date;
(2) the principal amount of the Advance is A$[*]; [NOTE: Amount to
comply with the limits in clause 3.]
(3) we request that the proceeds be remitted to account number [*]
at [*];
(4) to the best of our knowledge and, relying on the information
provided by the Manager, the proceeds of the advance will be
used for the purposes contemplated in the Facility Agreement;
(5) all representations and warranties under clause 8 of the
Facility Agreement are true as though they had been made at
the date of this Drawdown Notice and the Drawdown Date
specified above in respect of the facts and circumstances then
subsisting.
Definitions in the Facility Agreement apply in this Drawdown Notice.
AXA TRUSTEES LIMITED
By: [Authorised Signatory]
DATED
Verified by Crusade Management Limited
By: [Authorised Signatory]
Dated
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