ISDA Schedule to the Master
Agreement for Interest Rate
Swap
CRUSADE MANAGEMENT LIMITED
XX.XXXXXX BANK LIMITED
PERPETUAL TRUSTEES CONSOLIDATED LIMITED AS TRUSTEE OF THE
CRUSADE GLOBAL TRUST NO. 2 OF 2006
XXXXXX XXXXXX XXXXXXXX
Deutsche Bank Place
Corner Hunter and Phillip Streets
Sydney NSW 2000
Tel 00 0 0000 0000
Fax 00 0 0000 0000
xxx.xxx.xxx.xx
(C) Copyright Xxxxxx Xxxxxx Xxxxxxxx 2006
ISDA Schedule to the Master Agreement for +
Interest Rate Swap Allens Xxxxxx Xxxxxxxx
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DATE 19 September 2006
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PARTIES
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1. CRUSADE MANAGEMENT LIMITED (ABN 90 072 715 916) (PARTY A);
2. XX.XXXXXX BANK LIMITED (ABN 92 055 513 070) (XX.XXXXXX); and
3. PERPETUAL TRUSTEES CONSOLIDATED LIMITED (ABN 81 004 029 841) in
its capacity as trustee of the Crusade Global Trust No. 2 of 2006
(PARTY B).
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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 or 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, Party B or Xx.Xxxxxx" (the party the subject
of the Insolvency Event will be the Defaulting Party except that
in the case of Party A, if there is an Insolvency Event in
relation to Xx.Xxxxxx, Party A will be the Defaulting Party).
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 30 Local
Business Days of that occurrence, Party A, Party B and Xx.Xxxxxx
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 18,
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 Default shall
not be implied to constitute a repudiation of this Agreement.
This does not in any way restrict
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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. For the purposes of Section 6(e)
of this Agreement, Second Method and Loss will apply.
(g) An ADDITIONAL TERMINATION EVENT set out in Part 5(p) of this
Schedule (under Section 16(j)), will apply.
(h) 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).
(i) 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"), each of Party A
and Xx.Xxxxxx undertakes that it shall (unless, at the time the
Successor Trustee is so appointed, Party A or Xx.Xxxxxx 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 or Xx.Xxxxxx 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,
Xx.Xxxxxx 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.
(b) PAYEE TAX REPRESENTATIONS.
For the purpose of Section 3(f) of this Agreement, each of Party A,
Xx.Xxxxxx and Party B represents that it is an Australian resident and
does not derive the payments under this Agreement in whole or in
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part in carrying on business in a country outside Australia at or
through a permanent establishment of itself in that country.
Party A, Xx.Xxxxxx and Party B also represent that Crusade Global Trust
No. 2 of 2006 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
Address for notices or communications to Party B:
Address: Level 00, 000 Xxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Manager, Securitisation
Facsimile No: (00) 0000 0000 Telephone No: (00) 0000 0000
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With a copy 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
Address for notices or communications to Xx.Xxxxxx:
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 Party A.
(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: Xx.Xxxxxx.
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
Swaps 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
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Definitions made after the date of this Agreement. The ISDA Definitions
are incorporated by reference in, and shall be deemed to be part of this
Agreement and each Confirmation.
(b) 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).
(c) 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).
(d) 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.
(e) 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.
(f) 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 lawful 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 (other than
Party B's indemnity from the Assets of the Trust).
(g) In Section 3(c):
(i) delete the words AGENCY OR OFFICIAL; and
(ii) in the third line, insert "materially" before the word "affect".
(h) In Section 4 add a new paragraph as follows:
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(f) CONTRACTING AS PRINCIPAL. Party A and Xx.Xxxxxx xxxx 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.
(i) In Section 6(d)(i), in the last line, insert "in the absence of manifest
error" after the word EVIDENCE.
(j) 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.
(k) 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.
(l) 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.
(m) TRUST DEED means the Master Trust Deed dated 14 March 1998 as amended by
the Crusade Global Trust No. 2 of 2006 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
CLASS
DESIGNATED RATING AGENCY
FINAL MATURITY DATE
FIXED RATE LOAN
HOUSING LOAN PRINCIPAL
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INSOLVENCY EVENT
LOAN OFFSET INTEREST AMOUNT
MANAGER
MASTER TRUST DEED
MONTHLY INTEREST PERIOD
MONTHLY PAYMENT DATE
NOTE
OBLIGOR
PAYMENT DATE
PURCHASED RECEIVABLE
SECURITY TRUST DEED
SERVICER
SUPPORT FACILITY PROVIDER
TRUST
(n) TRUST DEED: The Parties acknowledge and agree that for the purposes of
the Trust Deed, this Agreement is a HEDGE AGREEMENT and each of Party A
and Xx.Xxxxxx are SUPPORT FACILITY PROVIDERS.
(o) AGREEMENT by Xx.Xxxxxx to act as Standby Interest Rate Swap Provider:
A new Section 15 is added as follows:
15. Standby Interest Rate Swap Provider
(a) Xx.Xxxxxx agrees with Party B that if:
(i) Party A is obliged to make a payment under a
Confirmation on any day; and
(ii) Party A does not make that payment by 2pm
(Sydney time) on that day,
then Xx.Xxxxxx must, as a principal obligation, pay that
amount in full to Party B by no later than 4pm (Sydney
time) on that date.
(b) Xx.Xxxxxx shall make each such payment in full, without
any set off, counterclaim or exercise of any similar
right or defence, other than any netting permitted under
this Agreement.
(c) In consideration of Xx.Xxxxxx agreeing to act as Standby
Interest Rate Swap Provider, Party B agrees to pay to
Xx.Xxxxxx monthly in arrears a fee that accrues from day
to day and is calculated at the rate of 0.03% per annum
on the aggregate Housing Loan Principal of all Fixed
Rate Loans on the first day of each Monthly Interest
Period payable on each Monthly Payment Date. This fee is
payable on each Monthly Payment Date, subject to the
cashflow allocation methodology in the Supplementary
Terms Notice.
(d) Subject to section 18, in consideration of Xx.Xxxxxx
agreeing, at the request of Party A, to act as Standby
Interest Rate Swap Provider, Party A agrees to indemnify
Xx.Xxxxxx on demand against any loss, charge, liability
or expense that Xx.Xxxxxx may sustain or incur as a
direct or indirect consequence of Party A failing to
comply with this obligations under this Agreement, or
the Manager requiring Xx.Xxxxxx to make a payment under
this Agreement.
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(e) Xx.Xxxxxx's obligations under this Agreement shall
survive:
(i) the termination of this Agreement;
(ii) any payment by it under paragraph (a) in
respect of any payment due from, but unpaid by,
Party A; and
(iii) any winding up or insolvency of Party A.
(f) A payment by Xx.Xxxxxx under paragraph (a) in respect of
any payment due from, but unpaid by, Party A does not
limit or waive any payment that Party A is required to
make under a Confirmation.
(g) If for any reason Party A is wound up or otherwise is
unable to perform its obligations under this Agreement
as a matter of law, Xx.Xxxxxx shall undertake all the
obligations of Party A under this Agreement as if named
as Party A.
(p) A new Section 16 is added as follows:
16. DOWNGRADE
(a) For the purpose of this Section 16 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.
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 F1 (short term) (Fitch Ratings).
DOWNGRADE means Xx.Xxxxxx's rating by a Designated Rating Agency
has been withdrawn or reduced resulting in Xx.Xxxxxx having:
(i) a short term credit rating of less than A-1 (short term)
by S&P;
(ii) a credit rating by Xxxxx'x of less than P-1(short term)
or A2 (long term); or
(iii) a credit rating by Fitch Ratings of less than F1 (short
term) or A (long term).
MAJOR XX.XXXXXX DOWNGRADE means a Downgrade in respect of
Xx.Xxxxxx resulting in Xx.Xxxxxx having:
(i) a short term credit rating by S&P of less than A-1
(short term);
(ii) a credit rating by Xxxxx'x of less than P-1 (short term)
or A3 (long term); or
(iii) a credit rating by Fitch Ratings of less than F2 (short
term) or BBB+ (long term).
MINOR PARTY A DOWNGRADE means any Downgrade which is not a Major
Xx.Xxxxxx Downgrade.
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.
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REPLACEMENT PROVIDER means a party that has agreed to replace
Xx.Xxxxxx as Standby Interest Rate Swap Provider, or Party A as
Interest Rate Swap Provider, and has a rating greater than or
equal to:
(i) A-1 by S&P;
(ii) who is suitably rated such that its appointment as
Standby Interest Rate Swap Provider does not result in a
Note Downgrade by Xxxxx'x; and
(iii) F1 (short term) and A (long term) by Fitch Ratings.
SWAP COLLATERAL ACCOUNT means an account established by Party B
with an Approved Bank.
(b) If, at any time, Xx.Xxxxxx is Downgraded and the Downgrade
constitutes a Minor Xx.Xxxxxx Downgrade, Xx.Xxxxxx shall, within
30 days (or such greater period as agreed by the relevant
Designated Rating Agency), comply with Section 16(d).
(c) If at any time Xx.Xxxxxx is Downgraded and the Downgrade
constitutes a Major Xx.Xxxxxx Downgrade, Xx.Xxxxxx shall, within
5 Business Days (or such greater period as agreed by the
relevant Designated Rating Agency) comply with Section 16(d),
however, where the Major Xx.Xxxxxx Downgrade relates to the
credit rating by Fitch Ratings of less than F2 (short term) or
BBB+ (long term) then Xx.Xxxxxx must comply with either Section
16(d)(ii) or (iii).
(d) Where Xx.Xxxxxx is required to comply with this Section 16(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
(C) an amount acceptable to Xxxxx'x and Xxxxx
Ratings (as the case may be) sufficient to
ensure that the ratings given to the Notes by
Xxxxx'x and Xxxxx Ratings (as the case may be)
are not adversely affected and that any Note
Downgrade is avoided or reversed (as the case
may be);
(ii) (NOVATE) enter into an agreement novating this Agreement
to a Replacement Provider proposed by any of Party A,
Xx.Xxxxxx or Party B 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
where
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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 MATURITIES UP MATURITIES MORE
RATING TO 5 YEARS TO 10 YEARS THAN 10 YEARS
A-2 6.50 8.25 11.75
A-3 10.00 14.50 31.75
BB+ or lower 13.00 25.75 68.50
In addition to complying with its obligations under this Section
16, if there is a Downgrade to Xx.Xxxxxx's long term debt rating
below BBB- by S&P, Xx.Xxxxxx must immediately post collateral in
accordance with Section 16(d)(i) and be immediately substituted
for a Replacement Provider.
(e) Where Xx.Xxxxxx procures a Replacement Provider in accordance
with Section 16(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, Xx.Xxxxxx's obligations under this Agreement
are novated in accordance with Section 16(d)(ii) or any
Acceptable Arrangement is entered into in accordance with
Section 16(d)(iii), Xx.Xxxxxx shall be immediately entitled to
any cash collateral amount which it has deposited in the Swap
Collateral Account less any amounts applied pursuant to
paragraph (h)(i) or (h)(v).
(g) All interest on the Swap Collateral Account will accrue and be
payable monthly to the party which provides the relevant Cash
Collateral Amount.
(h) Party B may only make withdrawals from the Swap Collateral
Account only for the purpose of:
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(i) novating obligations under this Agreement in accordance
with Section 16(d)(ii) or entering into any other
Acceptable Arrangement in accordance with 16(d)(iii);
(ii) refunding to Xx.Xxxxxx 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 or Xx.Xxxxxx under this Agreement following the
failure by Party A or Xx.Xxxxxx to make that payment.
(i) Xx.Xxxxxx's obligations under this Section 16 shall:
(i) survive the termination of this Agreement; and
(ii) terminate upon Xx.Xxxxxx complying with its obligations
(if any) under Section 16(d).
(j) Where Xx.Xxxxxx fails to comply with Section 16(d), this shall
constitute an Additional Termination Event and Party A shall be
the Affected Party for this purpose.
(q) A new Section 17 is added as follows:
17. Party B provisions
(a) Limitation of liability
(A) General
Clause 30 of the Master Trust Deed applies to
the obligations and liabilities of 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.
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(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 17 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.
(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) or (c) limits Party A
in:
(i) obtaining an injunction or other order
to restrain any breach of this Agreement
by Party B;
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(ii) obtaining declaratory relief; or
(iii) 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;
(vi) (SET-OFF OR COUNTERCLAIM) exercise or
seek to exercise any set-off or
counterclaim against Party B (other than
netting in accordance with this
Agreement); 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 18 is added as follows:
18. Break Payments
(a) Party B shall pay Break Payments which it
receives to Party A in accordance with clause
5.1(c) of the Supplementary Terms Notice, to the
extent that amounts are available to make that
payment.
(b) Subject to paragraph (c), if Party A or
Xx.Xxxxxx 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 and Xx.Xxxxxx agree 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, Xx.Xxxxxx and Party B agree that
(unless Xx.Xxxxxx otherwise notifies Party B in
writing) Xx.Xxxxxx 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.
(s) A new Section 19 is added as follows:
19. Party A provisions
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(a) Notwithstanding any other provision of this
Agreement or any Confirmation, Party A's
obligation to pay any amount to Party B or
Xx.Xxxxxx is limited to Party A's assets from
time to time.
(b) Nothing in paragraph (a) or (c) limits Party A
in:
(i) obtaining an injunction or other order
to restrain any breach of this Agreement
by Party B;
(ii) obtaining declaratory relief; or
(iii) in relation to its rights under the
Security Trust Deed.
(c) Except as provided in paragraphs (a) and (b),
Party B shall not:
(i) (JUDGMENT) obtain a judgment for the
payment of money or damages by Party A;
(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 A;
(iii) (WINDING UP) apply for the winding up or
dissolution of Party A;
(iv) (EXECUTION) levy or enforce any distress
or other execution to, on or against any
assets of Party A;
(v) (COURT APPOINTED RECEIVER) apply for the
appointment by a court of a receiver to
any of the assets of Party A;
(vi) (SET-OFF OR COUNTERCLAIM) exercise or
seek to exercise any set-off or
counterclaim against Party A (other than
netting in accordance with this
Agreement); or
(vii) (ADMINISTRATOR) appoint, or agree to the
appointment, of any administrator to
Party A,
or take proceedings for any of the above and
Party B waives its rights to make those
applications and take those proceedings.
(d) Nothing in this Section 19 in any way limits
Xx.Xxxxxx's obligations under Section 15.
(t) Party B (at the direction of Crusade Management Limited), Xx.Xxxxxx and
Party A may, in their absolute discretion, agree to modify or amend this
Agreement and/or or any Transaction to vary the respective notional
amounts to which this Agreement or that Transaction applies, to vary the
Purchased Receivables to which that Transaction applies (if applicable)
or to novate all or any part of a Transaction to a third party Swap
Provider, in each case upon confirmation from each Designated Rating
Agency that the modification or amendment of this Agreement or
Transaction (as the case may be) will not result in the downgrade or
withdrawal of the rating of any Note.
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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CRUSADE MANAGEMENT LIMITED
By: /s/ Xxxxxx Xxxxx Witness: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------- -------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxxxx Xxxxxxxxx
-------------------------------- ---------------------
Title: Attorney Title: Lawyer
-------------------------------- -------------------------
Date: 19 September 2006 Date: 19 September 2006
-------------------------------- -------------------------
XX.XXXXXX BANK LIMITED
By: /s/ Xxxxxx Xxxxx Witness: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------- -------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxxxx Xxxxxxxxx
-------------------------------- ---------------------
Title: Attorney Title: Lawyer
-------------------------------- -------------------------
Date: 19 September 2006 Date: 19 September 2006
-------------------------------- -------------------------
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
as trustee of the Crusade Global Trust No. 2 of 2006
By: /s/ Xxxxxx Xxxxx Witness: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------- -------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxxxx Xxxxxxxxx
-------------------------------- ---------------------
Title: Manager Title: Lawyer
-------------------------------- -------------------------
Date: 19 September 2006 Date: 19 September 2006
-------------------------------- -------------------------
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To: Perpetual Trustees Consolidated Limited as trustee of
Crusade Global Trust No.2 of 2006
Attention: Manager, Securitisation
Copy to: Xx.Xxxxxx Bank Limited
Attention: Xxxxx Xxxxxxxxxxxxx
From: Crusade Management Limited
Date: 19 September 2006
Subject: CONFIRMATION OF INTEREST RATE SWAP
Reference No: Crusade Global Trust No.2 of 2006
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below. This
letter constitutes a "Confirmation" as referred to in the Master Agreement and
the Schedule to the Master Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions as amended
from time to time published by the International Swap and Derivatives
Association, Inc or in the Master Trust Deed and Supplementary Terms Notice (as
defined in the Master Agreement and the Schedule to the Master Agreement
specified below) are incorporated in this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation,
this Confirmation will govern. Reference to a "Transaction" shall be deemed to
be a reference to a "Swap Transaction" for the purposes of the 2000 ISDA
Definitions.
1. This Confirmation supplements, forms part of, and is subject to, the
Master Agreement dated on or about 19 September 2006 and the Schedule to the
Master Agreement dated on or about 19 September 2006 as amended and supplemented
from time to time (the "Agreement") between the parties. All provisions
contained in the Agreement govern this Confirmation except as expressly modified
below.
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In this confirmation "Party A" means Crusade Management Limited and
"Party B" means Perpetual Trustees Consolidated Limited as trustee of the
Crusade Global Trust No.2 of 2006.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Notional Amount: Housing Loan Principal of all Fixed Rate Loans as
calculated on the first day to which that Monthly Payment Date relates.
Trade Date: Note Issue Date
Effective Date: 21 September 2006
Final Maturity Date: 15 November2037 or when the stated amount of the
Notes is reduced to zero, subject to adjustment in accordance with the Modified
Following Business Day Convention.
Reset Dates: The Effective Date and then each Monthly Payment
Date, subject to adjustment in accordance with the Modified Following Business
Day Convention.
Monthly Payment 15th day of each month,
Dates: subject to adjustment in accordance with the
Modified Following Business Day Convention.
MORTGAGE RATE AMOUNTS
Mortgage Rate: Weighted average fixed rate of interest applicable
to the Fixed Rate Loans at that Reset Date
Mortgage Rate Payer: Perpetual Trustees Consolidated Limited as trustee
of the Crusade Global Trust No.2 of 2006.
Mortgage Rate Each Monthly Payment Date, up to and including the
Payer Payment last Monthly Payment Date. This is subject to
Dates: adjustment in accordance with the Modified
Following Business Day Convention.
The first Payment Date will be 15 November 2006.
Mortgage Rate
Payments (Notional Amount) x (Mortgage Rate) x (Number of days between
Reset Dates / 365). Party B is not obliged to pay any amount which is
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 will
not be an Event of Default.
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Mortgage Rate Day Actual / 365 (fixed).
Count Fraction:
Designated Not applicable.
Maturity:
Spread: Nil.
Business Days: Sydney, New York, London and TARGET
FLOATING AMOUNTS
Floating Rate: Weighted Average Australian Bank Bill Rate, which
is the sum of:
(a) One Month Bank Bill Rate (as at the start of the Monthly Interest Period
for that monthly payment date) multiplied by the proportion which the aggregate
Invested Amount of the Class A-3 notes bears to the aggregate Invested Amount of
all notes as at the start of that Monthly Interest Period; and
(b) Three Month Bank Xxxx Xxxx (as at the start of the current Quarterly
Interest Period) multiplied by the proportion which the aggregate Invested
Amount of the Class A-1 notes, the Class A-2 notes, the Class B notes and the
Class C notes bears to the aggregate Invested Amount of all notes as at the
start of that Monthly Interest Period.
Floating Rate Crusade Management Limited
Payer:
Floating Rate Each Monthly Payment Date, up to and including the
Payment Dates: last Monthly Payment Date. This is subject to
adjustment in accordance with the Modified Following Business Day Convention.
The First Payment Date will be 15 November 2006.
Spread: The weighted average coupon on all Notes in
respect of the relevant Monthly Payment Date plus 0.90% per annum.
Floating Rate (Floating Rate + Spread) x (Notional Amount) x
Payment: (number of days between Reset Dates / 365)
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Floating Rate Each Floating Rate Payment Date.
Reset Dates:
Floating Rate Day Actual / 365 (fixed).
Count Fraction:
Designated 30 days, with the exception of the initial
Calculation
Maturity: Period which will be a Linear Interpolation by reference
to two rates, one of which shall be determined as if the Designated Maturity
were 1 month and the other shall be determined as if the Designated Maturity
were 2 months.
Netting of Applicable.
Payments:
Compounding: Inapplicable.
Business Days: Sydney, New York, London and TARGET
Calculation Agents: Crusade Management Limited
PAYMENTS TO THE FLOATING RATE PAYER
Account for Crusade Management Limited
Payment in AUD: Xx.Xxxxxx Bank Limited
Level 00, 00 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
Swift Code: SGBL AU 2S
Sort Code: RTGS-MM
BSB: 112-601
PAYMENTS TO THE MORTGAGE RATE PAYER
Account for Perpetual Trustees Consolidated Limited as
trustees of
Payment in AUD: Crusade Global Trust No.2 of 2006
Bank: Xx.Xxxxxx Bank
BSB: 332-027
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Account No: 000-000-000
PAYMENTS TO Xx.Xxxxxx Bank (as Standby Interest Rate Swap Provider) (IF
APPLICABLE)
Account for Xx.Xxxxxx Bank Limited
Payment in AUD: Level 12, 00 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
Swift Code: SGBL AU 2S
Sort Code: RTGS-MM
BSB: 112-601
The office of the Mortgage Rate Payer for the Swap Transaction is
Sydney, and the Office of the Floating Rate Payer for the Swap Transaction is
Sydney.
3. This is the Interest Rate Swap for the purposes of the Supplementary
Terms Notice dated on or before 19 September 2006 relating to Crusade Global
Trust No. 2 of 2006.
4. Address for notices in connection with this Transaction
(a) Party A: Crusade Management Limited
Level 0, 0-00 Xxxxxxxxxx Xxxxxx, Xxxxxxx
Attn: Compliance Manager
Telephone: 000 0000-0000
Facsimile: 000 0000-0000
(b) Party B: Perpetual Trustees Consolidated Limited
Angel Place, Level 00, 000 Xxxx Xxxxxx, Xxxxxx
Attn: Manager - Securitisation
Telephone: 000 0000-0000
Facsimile: 000 0000-0000
(c) Xx.Xxxxxx Bank: Xx.Xxxxxx Bank Limited
Level 00, 00 Xxxxxx Xxxxxx, Xxxxxx
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Attn: Middle Office Compliance Manager
Telephone: 000 0000-0000
Facsimile: 000 0000-0000
5. Documents to be delivered
Each party shall deliver to the other, at the time of its execution of
this Confirmation, evidence of the specimen signature and incumbency of each
person who is executing the Confirmation on the party's behalf, unless such
evidence has previously been supplied in connection with this Agreement and
remains true and in effect.
6. Relationship between the parties
Each party will be deemed to have represented to the other party on the Trade
Date that (lacking a written agreement between the parties that expressly
imposes affirmative obligations to the contrary for this Transaction):
(a) Non-Reliance. It is acting for its own account (in the case of Party B
as Trustee for the Trust), and it has made its own independent decision to enter
into this Transaction and as to whether this Transaction is appropriate or
proper for it based upon its own judgement (and in the case of Party B also the
Manager) and upon advice from such advisers as it has deemed necessary. It is
not relying on any communication (written or oral) of the other party as
investment advice or as a recommendation to enter into this Transaction; it
being understood that information and explanations related to the terms and
conditions of this Transaction shall not be considered investment advice or a
recommendation to enter into this Transaction. No communication (written or
oral) received from the other party shall be deemed to be an assurance or
guarantee as to the expected results of this Transaction.
(b) Assessment and Understanding. It is capable of assessing the merits of
and understanding (on its own behalf or through independent professional
advice), and understands and accepts, the terms, conditions and risks of this
Transaction. It is capable of assuming, and assumes the risks of this
Transaction.
(c) Status of Parties. The other party is not acting as a fiduciary for or
an adviser to it in respect of this Transaction.
7. Compliance with Regulation AB.
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(a) Xx.Xxxxxx has been advised that Party A is required under Regulation AB
under the Securities Act of 1933 and the Securities Exchange Act of 1934, as
amended ("Regulation AB"), to disclose certain financial information regarding
Xx.Xxxxxx depending on the applicable "significance percentage" of this
Confirmation, as calculated from time to time in accordance with Item 1115 of
Regulation AB.
(b) If required, Xx.Xxxxxx shall provide to Party A the applicable financial
information described under Item 1115 of Regulation AB (the "Reg AB
Information") within ten (10) Local Business Days of receipt of a written
request for such Reg AB Information by Party A (the "Response Period"), so long
as Party A has reasonably determined, in good faith, that such information is
required under Regulation AB; provided, however that if Xx.Xxxxxx in good faith
determines that it is unable to provide the Reg AB Information within the
Response Period, then, subject to receipt of confirmation by each Designated
Rating Agency that such action shall not result in withdrawal or downgrade of
any credit rating assigned, by it, to the Notes, (i) Xx.Xxxxxx shall cause a Reg
AB Approved Entity (as defined below) to replace Xx.Xxxxxx as party to this
Confirmation on terms substantially similar to this Confirmation prior to the
expiration of the Response Period, and (ii) such Reg AB Approved Entity shall
provide the Reg AB Information prior to the expiration of the Response Period.
"Reg AB Approved Entity" means any entity that (i) has the ability to provide
the Reg AB Information and (ii) is a Replacement Provider. If Party A requests
(in writing) the Reg AB Information from Xx.Xxxxxx, then Party A shall promptly
(and in any event within three (3) Local Business Days of the date of the
request for the Reg AB Information) provide Xx.Xxxxxx with a written explanation
of how the significance percentage was calculated.
(c) Xx.Xxxxxx (or, if applicable, the Reg AB Approved Entity) shall
indemnify and hold harmless Party A, its directors or officers and any person
controlling Party A, from and against any and all losses, claims, damages and
liabilities caused by (i) any untrue statement or alleged untrue statement of a
material fact contained in any information that Xx.Xxxxxx or such Reg AB
Approved Entity, as applicable, provides to Party A pursuant to this Paragraph
(c) (the "Xx.Xxxxxx Information") or caused by any omission or alleged omission
to state in the Xx.Xxxxxx Information a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; or (ii) any failure by
Xx.Xxxxxx to deliver any information or other material when and as required
under this Section 7.
PLEASE NOTIFY US IMMEDIATELY SHOULD THE PARTICULARS OF THIS CONFIRMATION NOT BE
IN ACCORDANCE WITH YOUR UNDERSTANDING.
PLEASE QUOTE OUR REFERENCE ON ALL CORRESPONDENCE.
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Regards,
Signed for and on behalf of
Crusade Management Limited, by its attorney
/s/ Xxxxxx Xxxxx /s/ Xxxxxxx Xxxxxxxxx
-------------------- -----------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxxxx Xxxxxxxxx
Title: Attorney Title: Lawyer
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the enclosed copy of this confirmation and returning it
to us.
Confirmed as of date first written:
For and on behalf of
Perpetual Trustees Consolidated Limited
(as trustee of the Crusade Global Trust No.2 of 2006)
/s/ Xxxxxx Xxxxx /s/ Xxxxxxx Xxxxxxxxx
-------------------- -----------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxxxx Xxxxxxxxx
Title: Manager Title: Lawyer
Confirmed as of date first written:
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For and on behalf of
Xx.Xxxxxx Bank Limited
(as Standby Interest Rate Swap Provider)
/s/ Xxxxxx Xxxxx /s/ Xxxxxxx Xxxxxxxxx
-------------------- -----------------------
Name: Xxxxxx Xxxxx Witness Name: /s/ Xxxxxxx Xxxxxxxxx
Title: Attorney Title: Lawyer
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