ISDA Schedule to the Master
Agreement for Interest Rate
Swap
XX.XXXXXX BANK LIMITED
PERPETUAL TRUSTEES CONSOLIDATED LIMITED AS TRUSTEE
OF THE CRUSADE GLOBAL TRUST NO. 2 OF 2003
CRUSADE MANAGEMENT LIMITED
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
xxx.xxx.xxx.xx
(C) Copyright Xxxxxx Xxxxxx Xxxxxxxx 2003
ISDA Schedule to the Master Agreement for
Interest Rate Swap [Xxxxxx Xxxxxx Xxxxxxxx logo]
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DATE 2003
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PARTIES
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1. XX.XXXXXX BANK LIMITED (ABN 92 055 513 070) (PARTY A);
2. PERPETUAL TRUSTEES CONSOLIDATED LIMITED (ABN 81 004 029 841)
in its capacity as trustee of the CRUSADE GLOBAL TRUST NO. 2
OF 2003 (PARTY B); and
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
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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 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,
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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.
(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. 2 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 00, 00 Xxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Middle Office Compliance Manager
Facsimile No: (00) 0000 0000 Telephone No: (00) 0000 0000
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Address for notices or communications to Party B:
Address: Level 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Manager, Securitisation
Facsimile No: (00) 0000 0000 Telephone No: (00) 0000 0000
Address for notices or communications to the Manager:
Address: Level 00, 00 Xxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Middle Office Compliance Manager
Facsimile No: (00) 0000 0000 Telephone No: (00) 0000 0000
(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
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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 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
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Security Trust Deed, as far as Party B is aware, those
assets are free from all other Security Interests
(h) In Section 3(c)
(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. 2 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:
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APPROVED BANK
APPROVED SELLER
ASSETS
BANK
BREAK PAYMENT
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)
(Xxxxx'x) 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 Xxxxx'x of less than P-1(short-term)
or A2 (long-term); or
(iii) a short term rating of less than F1 by Fitch Ratings.
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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:
(i) a short term credit rating by S&P of less than A-1;
(ii) a credit rating by Xxxxx'x 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 Xxxxx'x.
REPLACEMENT SWAP PROVIDER means a party that has agreed to
replace Party A as Interest Xxxx Xxxx 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:
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(1) an amount acceptable to Xxxxx'x and Xxxxx
Ratings and sufficient to ensure that the
ratings given to the Notes by Xxxxx'x and
Fitch 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 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 UP TO MATURITIES UP TO MATURITIES MORE
RATING 5 YEARS 10 YEARS THAN 10 YEARS
A+ 1.05 1.75 3.0
A 1.35 2.45 4.5
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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.
(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
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(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:
16. Party B provisions
(a) Limitation of liability
(A) General
Clause 30 of the Master Trust Deed applies to
the obligations and liabilities of the Party B
under this agreement.
(B) Limitation of Party B's Liability
(1) Party B 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 Party B 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 Party B to be
exonerated or indemnified for the
liability. This limitation of Party B's
liability applies despite any other
provision of this agreement and extends to
all liabilities and obligations of Party B
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 Party B 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
Party B or prove in any liquidation,
administration or arrangements of or
affecting Party B.
(3) The provisions of this section 16 shall not
apply to any obligation or liability of
Party B 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 Party B's
indemnification or exoneration out of the
Assets of the Trust as a result of Party
B's fraud, negligence, or Default.
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(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 Party B
(including any related failure to satisfy
its obligations under this agreement) will
be considered fraud, negligence or Default
of Party B 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 Party B 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 Party B, 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 Party B in a
way which exposes Party B to any personal
liability and no act or omission of any
such person will be considered fraud,
negligence, or Default of Party B 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 Party B
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;
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(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;
(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.
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XX.XXXXXX BANK LIMITED
By: By:
----------------------------------- -------------------------------
Name: Name:
----------------------------------- -----------------------------
Title: Title:
----------------------------------- ----------------------------
Date: Date:
----------------------------------- -----------------------------
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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