ISDA Schedule to the Master
Agreement for Interest Rate
Swap
▇▇.▇▇▇▇▇▇ BANK LIMITED
PERPETUAL TRUSTEES CONSOLIDATED LIMITED AS TRUSTEE
OF THE CRUSADE GLOBAL TRUST NO. 1 OF 2003
CRUSADE MANAGEMENT LIMITED
The Chifley Tower
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(C) Copyright ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2003
ISDA Schedule to the Master Agreement for [GRAPHIC OMITTED]
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DATE | 2003
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PARTIES |
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1.| ▇▇.▇▇▇▇▇▇ BANK LIMITED (ABN 92 055 513 070) (PARTY A);
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2.| PERPETUAL TRUSTEES CONSOLIDATED LIMITED as trustee of CRUSADE
| GLOBAL TRUST NO. 1 OF 2003 (PARTY B); and
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3.| CRUSADE MANAGEMENT LIMITED (ABN 90 072 715 916); (MANAGER).
|
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PART 1. TERMINATION PROVISIONS
(A) SPECIFIED ENTITY is not applicable in relation to Party A or Party
B:
(b) Sections 5(a)(ii), (iii), (iv), (v), (vi), (viii), 5(b)(ii), (iii)
and (iv) will not apply to Party A and Party B.
(c) The "BANKRUPTCY" provisions of Section 5(a)(vii) are replaced by
"An Insolvency Event under the Master Trust Deed has occurred in
respect of Party A or Party B" (the party the subject of the
Insolvency Event will be the Defaulting Party); or. In relation to
Party A, the events described in the definition of Insolvency
Event (under the Master Trust Deed) shall apply to it as if Party
A (as the case may be) were a relevant corporation referred to in
that definition. The occurrence of an Insolvency Event under the
Security Trust Deed in respect of Party B in its personal capacity
will not constitute an Event of Default provided that within
thirty Local Business Days of that occurrence, Party A, Party B
and the Manager are able to procure the novation of this Agreement
and all Transactions to a third party in respect of which the
Designated Rating Agencies confirm that the novation will not
cause a reduction or withdrawal of the rating of the Notes, and
Party A and Party B agree to execute such a novation agreement in
standard International Swaps and Derivatives Association ("ISDA")
form.
(d) Section 5(a)(i) is amended to replace THIRD with TENTH.
For the avoidance of doubt, but without limiting Section 17, Party
B is not obliged to pay any amount attributable to any Break
Payment which is due by, but not received from, an Obligor or any
Loan Offset Interest Amount which is due by, but not received
from, the Approved Seller, and the failure by Party B to pay that
amount shall not be an Event of Default.
(e) The AUTOMATIC EARLY TERMINATION provision of Section 6(a):
will not apply to Party A
will not apply to Party B
Any event which, upon its occurrence, constitutes an Event of
Default, is deemed not to be an essential term of the Transaction
so that the occurrence of any Event of
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Default shall not be implied to constitute a repudiation of this
Agreement. This does not in any way restrict or limit the right of
a Non-Defaulting Party under Section 6(a) to terminate following
an Event of Default.
(f) PAYMENTS ON EARLY TERMINATION. Subject to Section 15(u) only, for
the purpose of Section 6(e) of this Agreement, neither Party A nor
Party B is required to make any payment if this Agreement is
terminated and Section 6(e) shall not apply.
(g) There is no Termination Currency.
(h) An ADDITIONAL TERMINATION EVENT set out in Part 5(q) of this
Schedule (under Section 15(r)), will apply.
(i) In the TRANSFER provision of Section 7, add a new paragraph (c):
(c) Party B may transfer to a Successor Trustee (as defined
below) or to avoid an illegality as specified in Section
5(b)(i).
(j) Add a new paragraph to Section 7 immediately below paragraph (c):
In the event that a trustee is appointed as a successor to Party B
under the Trust Deed ("Successor Trustee"), Party A undertakes
that it shall (unless, at the time the Successor Trustee is so
appointed, Party A is entitled to terminate the Transaction under
Section 6, in which case it may) novate to the Successor Trustee
the Transaction on the same terms or on other terms to be agreed
between Party A, Party B and the Successor Trustee, and give
written notice to the Designated Rating Agencies of such novation.
PART 2. TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS.
For the purpose of Section 3(e) of this Agreement each of Party A and
Party B will make the following representation.
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from
any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of
this Agreement) to be made by it to the other party under this Agreement.
In making this representation, it may rely on:
(i) the accuracy of any representations made by the other party pursuant
to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement of the other party contained in
Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on Section (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice
to its legal or commercial position.
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(b) PAYEE TAX REPRESENTATIONS.
For the purpose of Section 3(f) of this Agreement, each of Party A and
Party B represents that it is an Australian resident and does not derive
the payments under this Agreement in whole or in part in carrying on
business in a country outside Australia at or through a permanent
establishment of itself in that country.
Party A and Party B also represent that Crusade Global Trust No. 1 of
2003 is a non-U.S. branch of a foreign person for U.S. federal income tax
purposes.
(c) DEDUCTION OR WITHHOLDING FOR TAX. SECTION 2(d) is replaced with the
following Section:
All payments under this Agreement will be made subject to
deduction or withholding for or on account of any Tax. If a party
is so required to deduct or withhold, then that party ("X") will:
(i) promptly notify the other party ("Y") of such requirement;
(ii) pay to the relevant authorities the full amount required to
be deducted or withheld promptly upon the earlier of
determining that such deduction or withholding is required or
receiving notice that such amount has been assessed against
Y;
(iii) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities;
(iv) pay to Y the amount Y would have received had no deduction or
withholding been required.
Paragraph (iv) shall not apply to payments to be made by Party B.
PART 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver to the other as soon as reasonably practicable following a request by
the other party, any document or certificate reasonably required by a party in
connection with its obligations to make a payment under this Agreement which
would enable that party to make the payment free from any deduction or
withholding for or on account of Tax or as would reduce the rate at which the
deduction or withholding for or on account of Tax is applied to that payment.
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
Address for notices or communications to Party A:
Address: Level ▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Middle Office Compliance Manager
Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇ Telephone No: (▇▇) ▇▇▇▇ ▇▇▇▇
Address for notices or communications to Party B:
Address: Level ▇, ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
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Attention: Manager, Securitisation
Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇ Telephone No: (▇▇) ▇▇▇▇ ▇▇▇▇
Address for notices or communications to the Manager:
Address: Level ▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Middle Office Compliance Manager
Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇ Telephone No: (▇▇) ▇▇▇▇ ▇▇▇▇
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: None.
Party B appoints as its Process Agent: None.
(c) OFFICES. The provisions of Section 10(a) will not apply to this
Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is the Manager unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
In relation to Party A: Nil.
In relation to Party B: Security Trust Deed
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means:
In relation to Party A: Nil.
In relation to Party B: Nil.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws in force in New South Wales and Section 13(b)(i)
is deleted and replaced with the following:
each party submits to the non-exclusive jurisdiction of the courts of New
South Wales and Court of Appeal from them.
(i) NETTING OF PAYMENTS. Sub-paragraph (ii) of Section 2(c) of this Agreement
will apply to net Transactions in the same Confirmation and will not
apply to net Transactions specified in different Confirmations.
(j) AFFILIATE will have the meaning specified in Section 14 of this
Agreement. For the purpose of Section 3(c), each of Party A and Party B
are deemed not to have any Affiliates.
PART 5. OTHER PROVISIONS
(a) ISDA DEFINITIONS: This Agreement, each Confirmation and each Transaction
are subject to the 2000 ISDA Definitions (published by the International
Swap and Derivatives Association, Inc.) as amended from time to time (the
"ISDA DEFINITIONS"), and will be governed in all respects by any
provisions set forth in the ISDA Definitions, without regard to any
amendments to the ISDA Definitions made after the date of this Agreement.
The
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ISDA Definitions are incorporation by reference in, and shall be deemed
to be part of this Agreement and each Confirmation.
(b) In Section 2(a)(i) add the following sentence:
Each payment will be by way of exchange for the corresponding payment or
payments payable by the other party.
(c) In Section 2(a)(ii), after freely transferable funds add free of any
set-off, counterclaim, deduction or withholding (except as expressly
provided in this Agreement).
(d) A new Section 2(a)(iv) is inserted as follows:
(iv) The condition precedent in Section 2(a)(iii)(1) does not apply to a
payment due to be made to a party if it has satisfied all its
payment obligations under Section 2(a)(i) of this Agreement and has
no future payment obligations, whether absolute or contingent under
Section 2(a)(i).
(e) For the purpose of Section 2(b) of this Agreement, CHANGE OF ACCOUNT,
any new account so designated shall be in the same tax jurisdiction as
the original account.
(f) ADDITIONAL REPRESENTATIONS: In Section 3 add the following immediately
after paragraph (f):
(g) Non Assignment. It has not assigned (whether absolutely, in
equity or otherwise) or declared any trust over any of its
rights under any Transaction (other than, in respect of Party
B, the trusts created pursuant to the Trust Deed) and has not
given any charge over its assets, in the case of Party A, or
the assets of the Trust (other than as provided in the Security
Trust Deed), in the case of Party B.
(g) Party B also represents to Party A (which representations will be deemed
to be repeated by Party B on each date on which a Transaction is entered
into) that:
(i) TRUST VALIDLY CREATED. The Trust has been validly created and is in
existence at the date of this Agreement.
(ii) SOLE TRUSTEE. Party B has been validly appointed as trustee of the
Trust and is presently the sole trustee of the Trust.
(iii) NO PROCEEDINGS TO REMOVE. No notice has been given to Party B and
to Party B's knowledge no resolution has been passed, or direction
or notice has been given, removing Party B as trustee of the Trust.
(iv) POWER. Party B has power under the Trust Deed to enter into this
Agreement and the Security Trust Deed in its capacity as trustee of
the Trust.
(v) GOOD TITLE. Party B is the equitable owner of the Assets of the
Trust and has power under the Trust Deed to mortgage or charge them
in the manner provided in the Security Trust Deed, and, subject only
to the Trust Deed, the Security Trust Deed and any Security Interest
(as defined in the Trust Deed) permitted under the Security Trust
Deed, as far as Party B is aware, those assets are free from all
other Security Interests
(h) In Section 3(c)
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(i) delete the words AGENCY OR OFFICIAL; and
(ii) in the third line, insert "materially" before the word "affect".
(i) In Section 4 add a new paragraph as follows:
(f) CONTRACTING AS PRINCIPAL. Party A will enter into all Transactions
as principal and not otherwise and Party B will enter into all
Transactions in its capacity as trustee of the Trust and not
otherwise.
(j) In Section 6(d)(i), in the last line, insert "in the absence of manifest
error" after the word EVIDENCE.
(k) CONFIRMATIONS. Notwithstanding the provisions of Section 9(e)(ii), each
Confirmation in respect of a Swap Transaction which is confirmed by
electronic messaging system, an exchange of telexes or an exchange of
facsimiles will be further evidenced by an original Confirmation signed
by the parties, however any failure to sign an original Confirmation
will not affect the validity or enforceability of any Swap Transaction.
(l) Section 12 is amended as follows:
(i) in Section 12(a), insert and settlement instructions requiring
payment to an entity other than the original counterparty after
Section 5 or 6 in line 2.
(ii) Section 12(a)(iii) is replaced with:
(iii) if sent by facsimile transmission, on the date a
transmission report is produced by the machine from
which the facsimile was sent which indicates that the
facsimile was sent in its entirety to the facsimile
number of the recipient notified for the purpose of
this Section, unless the recipient notifies the sender
within one Local Business Day of the facsimile being
sent that the facsimile was not received in its
entirety and in legible form.
(m) Any reference to a:
(i) SWAP TRANSACTION in the ISDA Definitions is deemed to be a reference
to a TRANSACTION for the purpose of interpreting this Agreement or
any Confirmation; and
(ii) TRANSACTION in this Agreement or any Confirmation is deemed to be a
reference to a SWAP TRANSACTION for the purpose of interpreting the
ISDA Definitions.
(n) TRUST DEED means the Master Trust Deed dated 14 March 1998 as amended by
the Crusade Global Trust No. 1 of 2003 Supplementary Terms Notice dated
on or about the date of this Agreement between (among others) Party B,
Party A and the Manager (the SUPPLEMENTARY TERMS NOTICE), and each of the
following expressions shall have the meanings given to them in the Trust
Deed and the Supplementary Terms Notice:
APPROVED BANK
APPROVED SELLER
ASSETS
BANK
BREAK PAYMENT
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CLASS
DESIGNATED RATING AGENCY
FINAL MATURITY DATE
FIXED RATE LOAN
HOUSING LOAN PRINCIPAL
INSOLVENCY EVENT
LOAN OFFSET INTEREST AMOUNT
MASTER TRUST DEED
NOTE
OBLIGOR
PAYMENT DATE
PURCHASED RECEIVABLE
SECURITY TRUST DEED
SERVICER
SUPPORT FACILITY PROVIDER
TRUST
(o) TRUST DEED: The Parties acknowledge and agree that for the purposes of
the Trust Deed, this Agreement is an HEDGE AGREEMENT and Party A are
SUPPORT FACILITY PROVIDERS.
(p) A new Section 15 is added as follows:
15. DOWNGRADE
(a) For the purpose of this Section 15 the following additional
definitions apply:
ACCEPTABLE ARRANGEMENT means an arrangement which each relevant
Designated Rating Agency has confirmed in writing will result in the
avoidance or reversal of any Note Downgrade.
ACCEPTABLE RATING means, at any time, that Party A's short term
rating from S&P is not below A-1.
APPROVED BANK means a Bank which has a short-term rating of at
least A-1+ (S&P), P-1 (short-term) and A2 (long-term) (▇▇▇▇▇'▇) and
a short-term rating of at least F1 or a long-term rating of at least
A (Fitch Ratings).
DOWNGRADE means Party A's rating by a Designated Rating Agency has
been withdrawn or reduced resulting in Party A having:
(i) a short term credit rating of less than A-1 by S&P;
(ii) a credit rating by ▇▇▇▇▇'▇ of less than P-1(short-term) or A2
(long-term); or
(iii) a short term rating of less than F1 by Fitch Ratings.
NOTE DOWNGRADE means any actual or proposed withdrawal or downgrade
of the ratings assigned to any Class of Notes by a Designated Rating
Agency which results or would result in any rating assigned to that
Class of Notes being less than that stipulated in Section 4.2(f) of
the Supplementary Terms Notice.
MAJOR PARTY A DOWNGRADE means a Party A Downgrade resulting in Party
A having:
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(i) a short term credit rating by S&P of less than A-1;
(ii) a credit rating by ▇▇▇▇▇'▇ of less than P-2 (short-term) or A3
(long-term); or
(iii) a short term credit rating by Fitch Ratings of less than F1.
MINOR PARTY A DOWNGRADE means any Party A Downgrade which is not a
Major Party A Downgrade.
REPLACEMENT PROVIDER means a party that has agreed to replace Party
A as Interest Rate Swap Provider, and has a rating greater than or
equal to:
(i) A-1 by S&P;
(ii) F1 by Fitch Ratings: and
(iii) who is suitably rated such that its appointment as Interest
Rate Swap Provider does not result in a Note Downgrade by
▇▇▇▇▇'▇.
REPLACEMENT SWAP PROVIDER means a party that has agreed to replace
Party A as Interest ▇▇▇▇ ▇▇▇▇ Provider, and the appointment of which
each Designated Rating Agency has confirmed, in writing, will not
result in an Note Downgrade.
SWAP COLLATERAL ACCOUNT means an account established by Party B with
an Approved Bank.
(b) If, at any time, Party A is Downgraded and the Downgrade constitutes
a Minor Party A Downgrade, Party A shall, within 30 days (or such
greater period as agreed by the relevant Designated Rating Agency),
comply with Section 15(d).
(c) If at any time Party A is Downgraded and the Downgrade constitutes a
Major Party A Downgrade, Party A shall, within 5 Business Days (or
such greater period as agreed by the relevant Designated Rating
Agency) comply with Section 15(d).
(d) Where Party A is required to comply with this Section 15(d) it
shall, at its cost, and at its election do one of the following:
(i) (CASH COLLATERALISE) deposit into a Swap Collateral Account and
maintain in the Swap Collateral Account (whilst the relevant
Downgrade subsists) sufficient funds to ensure that the amount
standing to the credit of the Swap Collateral Account is equal
to the greater of the following (the CASH COLLATERAL AMOUNT):
(A) zero;
(B) CCR; and either:
(1) an amount acceptable to ▇▇▇▇▇'▇ and ▇▇▇▇▇ Ratings and
sufficient to ensure that the ratings given to the
Notes by ▇▇▇▇▇'▇ and ▇▇▇▇▇ Ratings are not adversely
affected and that any Note Downgrade is avoided or
reversed (as the case may be); or
(2) an amount acceptable to S&P that is the greater of
zero, CCR and the amount of the next payment that is
due, or
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one percent of the of the outstanding notional
principal of the interest rate swap.
(ii) (NOVATE) enter into an agreement novating this Agreement to a
Replacement Provider proposed by any of Party A, Party B or
the Manager which each Designated Rating Agency has confirmed
will not result in a withdrawal or downgrade of any credit
rating assigned, by it, to the Notes; or
(iii) (OTHER ARRANGEMENTS) enter into or procure entry into any
Acceptable Arrangement.
For the purpose of this paragraph (d), the formula for calculating
CCR is as follows.
CCR = CR x 1.030
where
CR means MTM + VB
MTM means the mark-to-market value of the Transactions outstanding
under the Agreement. Party A will have to mark the Transactions to
market and post collateral on a weekly basis, with a cure period of
3 days. The mark-to-market value should reflect the higher of 2 bids
from counterparties that will be eligible and willing to assume
Party A's role in the Transactions in place of Party A. The
mark-to-market value may be a positive or negative amount. A bid has
a negative value if the payment would be from the counterparty to
Party A and has a positive value if the payment would be from Party
A to the counterparty (for the purposes of determining a higher bid,
any bid of positive value is higher than any bid of a negative
value).
VB means the value calculated by multiplying the Invested Amount at
the time of the calculation by the relevant percentage calculated
from the following table (for the purposes of interpreting the
table, "Counterparty rating" is the credit rating assigned to Party
A by S&P and "Maturities" is the period from and including the date
of calculation to but excluding the scheduled maturity of the last
expiring Transaction outstanding under this Agreement):
VOLATILITY BUFFER (%)
COUNTERPARTY MATURITIES MATURITIES UP MATURITIES MORE
RATING UP TO 5 YEARS TO 10 YEARS THAN 10 YEARS
A+ 1.05 1.75 3.0
A 1.35 2.45 4.5
A-1* 1.5 3.15 6.0
* The A-1 rating will be taken to be the counterparty's short term
rating.
(e) Where Party A procures a Replacement Provider in accordance with
Section 15(d)(ii), each party to this Agreement shall do all things
necessary to novate the relevant obligations to the Replacement
Provider.
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(f) If, at any time, Party A's obligations under this Agreement are
novated in accordance with Section 15(d)(ii) or any Acceptable
Arrangement is entered into in accordance with Section 15(d)(iii),
Party A shall be immediately entitled to any cash collateral amount
which it has deposited in the Swap Collateral Account.
(g) If the Manager becomes actually aware of the occurrence of a Party A
Downgrade, the Manager shall notify Party A of the occurrence of
such a reduction.
(h) Where Party B has not established a Swap Collateral Account and
Party A is required to deposit monies into a Swap Collateral
Account, the Manager must direct Party B to establish, as soon as is
practicable, and maintain, in the name of Party B an account with an
Approved Bank which account, shall be, for the purposes of this
Section 15 the SWAP COLLATERAL ACCOUNT.
(i) All interest on the Swap Collateral Account will accrue and be
payable monthly to the party which provides the relevant Cash
Collateral Amount.
(j) Notwithstanding anything to the contrary in this Section 15, where a
Downgrade has occurred, a party entitled to elect a course of action
under this Section 15 may only elect to cash collateralise under
Section 15(d)(i) if Party A has a short term credit rating of not
less than F2 from Fitch Ratings.
(k) Party B may only make withdrawals from the Swap Collateral Account
if directed to do so by the Manager and then only for the purpose
of:
(i) novating obligations under this Agreement in accordance with
Section 15(d)(ii) or entering into any other Acceptable
Arrangement in accordance with 15(d)(iii);
(ii) refunding to Party A the amount of any reduction in the Swap
Collateral Amount, from time to time and providing the
Designated Rating Agencies have confirmed, in writing, that
such refund will not result in a Note Downgrade;
(iii) withdrawing any amount which has been incorrectly deposited
into the Swap Collateral Account;
(iv) paying any applicable bank account taxes or equivalent payable
in respect of the Swap Collateral Account; or
(v) funding the amount of any payment due to be made by Party A
under this Agreement following the failure by Party A to make
that payment.
(l) Party A's obligations under this Section 15 shall:
(i) survive the termination of this Agreement; and
(ii) terminate upon Party A complying with its obligations (if any)
under Section 15(d).
(m) Where Party A fails to comply with Section 15(d), this shall
constitute an Additional Termination Event and Party A shall be the
Affected Party for this purpose.
(q) A new Section 16 is added as follows:
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16. Trustee provisions
(a) Limitation of liability
(A) General
Clause 30 of the Master Trust Deed applies to the
obligations and liabilities of the Trustee under this
agreement.
(B) Limitation of Trustee's Liability
(1) 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 (3) 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.
(2) Subject to subparagraph (3) 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 this agreement), or a
liquidator, an administrator or any similar person to
the Trustee or prove in any liquidation,
administration or arrangements of or affecting the
Trustee.
(3) The provisions of this section 16 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.
(4) It is acknowledged that the Relevant Parties are
responsible under the 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
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Trustee for the purpose of subparagraph (3) 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 this agreement or any
other Transaction Document to fulfil its obligations
relating to the Trust or by any other act or omission
of a Relevant Party or any such person.
(5) 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 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 subparagraph (3) above.
(6) In this clause, RELEVANT PARTIES means each of the
Manager, the Servicer, the Calculation Agent, the
Note Registrar, each Paying Agent, the Note Trustee,
and the provider of a Support Facility.
(7) Nothing in this clause limits the obligations
expressly imposed on the Trustee under the
Transaction Documents.
(b) Nothing in paragraph (a) limits Party A in:
(i) obtaining an injunction or other order to restrain
any breach of this Agreement by Party B; or
(ii) obtaining declaratory relief,
in relation to its rights under the Security Trust Deed.
(c) Except as provided in paragraphs (a) and (b), Party A
shall not:
(i) (JUDGMENT) obtain a judgment for the payment of
money or damages by Party B;
(ii) (STATUTORY DEMAND) issue any demand under section
459E(1) of the Corporations Act 2001 (Cth) (or any
analogous provision under any other law) against
Party B;
(iii) (WINDING UP) apply for the winding up or dissolution
of Party B;
(iv) (EXECUTION) levy or enforce any distress or other
execution to, on or against any assets of Party B;
(v) (COURT APPOINTED RECEIVER) apply for the appointment
by a court of a receiver to any of the assets of
Party B;
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(vi) (SET-OFF OR COUNTERCLAIM) exercise or seek to
exercise any set-off or counterclaim against Party
B; or
(vii) (ADMINISTRATOR) appoint, or agree to the
appointment, of any administrator to Party B,
or take proceedings for any of the above and Party A
waives its rights to make those applications and take
those proceedings.
(r) A new Section 17 is added as follows:
17. Break Payments
(a) Party B shall pay Break Payments which it receives to
Party A in accordance with 5.1(c) of the Supplementary
Terms Notice, to the extent that amounts are available to
make that payment.
(b) Subject to paragraphs (c) and (d), if Party A in any
capacity (including in its capacity as Servicer) waives or
reduces the amount of any Break Payment otherwise due from
an Obligor, Party A agrees that Party B's obligation under
paragraph (a) is reduced in respect of the Break Payment
so waived or to the extent of the reduction of the Break
Payment (as the case may be).
(c) Party A and Party B agree that (unless Party A otherwise
notifies Party B in writing) Party A will waive all Break
Payments otherwise payable by an Obligor if the total
principal prepayments by that Obligor under the relevant
Purchased Receivable (excluding scheduled principal
repayments) does not exceed $5,000 in any calendar year.
IN WITNESS WHEREOF the parties have executed this schedule on the respective
dates specified below with effect from the date specified on the first page of
this document.
▇▇.▇▇▇▇▇▇ BANK LIMITED
By: By:
---------------------------- ----------------------------
Name: Name:
---------------------------- ----------------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
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PERPETUAL TRUSTEES CONSOLIDATED LIMITED
By: By:
---------------------------- ----------------------------
Name: Name:
---------------------------- ----------------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
---------------------------- ----------------------------
CRUSADE MANAGEMENT LIMITED
By: By:
---------------------------- ----------------------------
Name: Name:
---------------------------- ----------------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
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