Common use of WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER Clause in Contracts

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be, (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Note Holder or any person referred to in paragraph (b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees but not the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIES

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement agreement, the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be,: (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Issuer, Note Holder or any person referred to in paragraph (b10.3(b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees employees, but not of the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 11 INDEMNITIES

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be, (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Note Holder or any person referred to in paragraph (b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees but not the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIES.

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement agreement, the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be,: (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Issuer, Note Holder or any person referred to in paragraph (b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees employees, but not of the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 11 INDEMNITIES

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be, (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Note Holder or any person referred to in paragraph (b) of this clause 11.3 in relation to the Issuer or the Note Holder;; -------------------------------------------------------------------------------- Freehills Sydney\004832904 PAGE 19 (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees but not the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIES

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement agreement, the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be,: (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Issuer, Note Holder or any person referred to in paragraph (bclause 10.3(b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees employees, but not of the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIES.

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be, (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Note Holder or any person referred to in paragraph (b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur;; ------------------------------------------------------------------------------- page 26 Top-up Funding Facility Agreement - SMHL Global Fund No. 9 (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees but not the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIESIndemnities

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement agreement, the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be,: (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Issuer, Note Holder or any person referred to in paragraph (b10.3(b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; oror -------------------------------------------------------------------------------- page 19 Payment Funding Facility Agreement - SMHL Global Fund No. 6 (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees employees, but not of the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIES--------------------------------------------------------------------------------

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be, (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Note Holder or any person referred to in paragraph (b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; oror Redraw Funding Facility (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement Deed from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees but not the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIES

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement the expression "wilful default":: -------------------------------------------------------------------------------- Page 27 Redraw Funding Facility Agreement - SMHL Global Fund [ ]-[ ] (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be, (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Note Holder or any person referred to in paragraph (bclause 11.3(b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees but not the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIES

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement agreement, the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be,: (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Issuer, Note Holder or any person referred to in paragraph (b10.3(b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees employees, but not of the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIES.

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement Note the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement Note and the Agreement by the Issuer or the Note Holder, as the case may be, (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Note Holder or any person referred to in paragraph (b) of this clause 11.3 5 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur;; -------------------------------------------------------------------------------- Freehills Sydney\004832897 PAGE 33 (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement Note and the Agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees but not the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreementNote and the Agreement. -------------------------------------------------------------------------------- 12 INDEMNITIESFreehills Sydney\004832897 PAGE 34 -------------------------------------------------------------------------------- SCHEDULE 3 - FACILITY PROVIDER FUNDING NOTICE (CLAUSE 4.4) TO: PERPETUAL TRUSTEES AUSTRALIA LIMITED in its capacity as trustee of SMHL Global Fund No. 8 (ISSUER) Attention: Head of Debt Markets/Manager - Securitisation AND: ME PORTFOLIO MANAGEMENT LIMITED (SF MANAGER) Attention: Manager - Capital Markets We refer to the Redraw Funding Facility Agreement dated [INSERT DATE] (AGREEMENT). Pursuant to clause 4 of the Terms and Conditions:

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be, (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Note Holder or any person referred to in paragraph (b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement Deed from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees but not the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIES

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be, (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Note Holder or any person referred to in paragraph (bclause 11.3(b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund.. Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ] (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees but not the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIES

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement agreement, the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be,: (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Issuer, Note Holder or any person referred to in paragraph (b10.3(b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; oror Payment Funding Facility (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees employees, but not of the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 11 INDEMNITIES

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be, (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Note Holder or any person referred to in paragraph (b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; oror -------------------------------------------------------------------------------- page 20 Redraw Funding Facility Agreement - SMHL Global Fund No. 6 (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement Deed from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees but not the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIES--------------------------------------------------------------------------------

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be, (1) other than a default which: (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Note Holder or any person referred to in paragraph (b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees but not the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIES.

WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER. For the purposes of this agreement the expression "wilful default": (a) in relation to the Issuer and the Note Holder, means a wilful default of this agreement by the Issuer or the Note Holder, as the case may be, (1) other than a default which:: Top-Up Funding Facility Agreement - SMHL Global Fund No. 7 (A) arises out of a breach of a Transaction Document by a person other than the Issuer or the Note Holder or any person referred to in paragraph (b) of this clause 11.3 in relation to the Issuer or the Note Holder; (B) arises because some other act or omission is a precondition to the relevant act or omission of the Issuer or the Note Holder, and that other act or omission does not occur; (C) is in accordance with a lawful court order or direction or is required by law; or (D) is in accordance with an instruction or direction given to it by any person in circumstances where that person is authorised to do so by any Transaction Document; and (2) in circumstances where had it not committed that default it would have been entitled to recoupment, reimbursement or a right of indemnity for its costs and expenses (if any) in complying with this agreement from the Fund. (b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer or the Note Holder means the fraud, negligence or wilful default of the Issuer or the Note Holder, as the case may be, and of the officers or employees but not the agents or delegates of the Issuer or the Note Holder, unless the Issuer or the Note Holder is liable for the acts or omissions of such other person under the terms of this agreement. -------------------------------------------------------------------------------- 12 INDEMNITIES