Seller Loan Agreement
Perpetual Trustees Consolidated Limited
(Trustee)
Xx.Xxxxxx Bank Limited
(Approved Seller)
Crusade Management Limited
(Manager)
Crusade Global Trust No. 1 of 2004
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 Allens Xxxxxx Xxxxxxxx 2004
Seller Loan Agreement Allens Xxxxxx Xxxxxxxx
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Table of Contents
1. Definitions and Interpretation 1
1.1 Definitions 1
1.2 Master Trust Deed definitions 2
1.3 Interpretation 2
1.4 Determination, statement and certificate sufficient evidence 3
1.5 Transaction Document 3
1.6 Limited to Trust 3
1.7 Trustee as trustee 3
1.8 Knowledge of Trustee 3
1.9 Unsecured loan 3
2. Purpose 3
3. Drawings 3
3.1 Advance 3
3.2 Making of Advance 4
4. Interest and Fees 4
5. Repayment 4
6. Payments 4
6.1 Manner 4
6.2 Payment to be made on Business Day 4
7. Conditions Precedent 5
8. Representations and Warranties 5
8.1 Representations and warranties 5
8.2 Reliance on representations and warranties 6
9. Undertakings 6
9.1 General undertakings 6
9.2 Undertakings relating to Trust 7
9.3 Term of undertakings 7
10. Control Accounts 7
11. Waivers, Remedies Cumulative 7
12. Severability of Provisions 7
13. Survival of Representations 8
14. Indemnity and Reimbursement Obligation 8
15. Moratorium Legislation 8
16. Consents and Opinions 8
17. Assignments 8
18. Notices 8
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19. Authorised Signatories 9
20. Governing Law and Jurisdiction 9
21. Counterparts 9
22. Acknowledgement by Trustee 9
23. Limited Recourse 10
23.1 General 10
23.2 Liability of Trustee limited to its right to indemnity 10
23.3 Unrestricted remedies 11
23.4 Restricted remedies 11
24. Approved Seller's Obligations 11
25. Successor Trustee 11
Annexure A 14
Drawdown Notice 14
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Date 2004
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Parties
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1. Perpetual Trustees Consolidated Limited (ABN 81 004 029 841) of
Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000 in its
capacity as trustee of the Crusade Global Trust No. 1 of 2004 (the
Trustee);
2. Xx.Xxxxxx Bank Limited (ABN 92 055 513 070) incorporated in
Australia and registered in New South Wales of 0-00 Xxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxx Xxxxx Xxxxx 0000 (the Approved Seller); and
3. Crusade Management Limited (ABN 90 072 715 916) incorporated in
Australia and registered in New South Wales of 0-00 Xxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxx Xxxxx Xxxxx 0000 (the Manager).
Recitals
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A The Trustee is the trustee of the Crusade Global Trust No. 1 of 2004
and proposes to issue Notes pursuant to the Master Trust Deed and
the Supplementary Terms Notice.
B The Manager has arranged for the Approved Seller to provide the
Trustee with a loan of A$[*] for the purchase of Receivables by the
Trustee.
C The Approved Seller has agreed to provide the loan to the Trustee on
the terms and conditions contained in this agreement.
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IT IS AGREED as follows.
1. Definitions and Interpretation
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1.1 Definitions
In this agreement the following definitions apply unless the context
requires otherwise, or unless otherwise defined.
Advance means the advance made or to be made under this agreement.
Drawdown Notice means a notice under clause 3.1.
Limit means A$[*] or such greater amount as may be agreed by the Trustee,
Approved Seller and Manager.
Master Trust Deed means the deed entitled "Master Trust Deed" between,
among others, the Trustee and the Manager dated 14 March 1998.
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Notice of Creation of Trust means the Notice of Creation of Trust dated 31
December 2003 issued under the Master Trust Deed in relation to the Trust.
Principal Outstanding means, at any time, the total principal amount of
the Advance at that time.
Secured Moneys has the meaning given in the Security Trust Deed.
Security Trust Deed means the Security Trust Deed dated 31 December 2003
between, among others, the Trustee, the Manager and P.T. Limited.
Supplementary Terms Notice means the Supplementary Terms Notice issued by
the Manager on or about the date of this agreement under the Master Trust
Deed.
Trust means the Crusade Global Trust No. 1 of 2004 constituted under the
Master Trust Deed and the terms of the Supplementary Terms Notice.
Trust Document means:
(a) this agreement;
(b) the Master Trust Deed;
(c) the Notice of Creation of Trust;
(d) the Supplementary Terms Notice;
(e) the Redraw Facility Agreement;
(f) the Deed of Indemnity to the extent it relates to the Trust;
(g) the Custodian Agreement;
(h) the Security Trust Deed to the extent it relates to the Trust;
(i) the Servicing Agreement;
(j) the Note Trust Deed;
(k) the Dealer Agreement;
(l) the Agency Agreement;
(m) each Note; and
(n) the Support Facilities.
Trustee means the trustee of the Trust at the date of this agreement or
any person which becomes a successor trustee under clause 20 of the Master
Trust Deed.
1.2 Master Trust Deed definitions
Words and expressions which are defined in the Master Trust Deed (as
amended by the Supplementary Terms Notice) and the Supplementary Terms
Notice (including in each case by reference to another agreement) have the
same meanings when used in this agreement, unless the context otherwise
requires or unless otherwise defined in this agreement.
1.3 Interpretation
Clause 1.2 of the Master Trust Deed applies to this agreement as if set
out in full, except that references to this Deed are references to this
agreement.
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1.4 Determination, statement and certificate sufficient evidence
Except where otherwise provided in this agreement any determination,
statement or certificate by the Approved Seller or an Authorised Signatory
of the Approved Seller provided for in this agreement is sufficient
evidence unless proven wrong.
1.5 Transaction Document
This agreement is a Transaction Document for the purposes of the Master
Trust Deed.
1.6 Limited to Trust
The rights and obligations of the parties under this agreement relate only
to the Trust, and do not relate to any other Trust (as defined in the
Master Trust Deed). Without limitation, the Approved Seller has no
obligation under this agreement to provide financial accommodation to the
Trustee as trustee of any other such Trust.
1.7 Trustee as trustee
In this agreement, except where provided to the contrary;
(a) a reference to the Trustee is a reference to the Trustee in its
capacity as trustee of the Trust and in no other capacity; and
(b) a reference to the undertaking, property, assets, business or money
of the Trustee is a reference to the undertaking, property, assets,
business or money of the Trustee in its capacity referred to in
paragraph (a).
1.8 Knowledge of Trustee
In relation to the Trust, the Trustee will only be considered to have
knowledge or notice of or be aware of any matter or thing if the Trustee
has knowledge, notice or awareness of that matter or thing by virtue of
the actual notice or awareness of the officers or employees of the Trustee
who have day to day responsibility for the administration of the Trust.
1.9 Unsecured loan
The Approved Seller acknowledges that the Advance is an unsecured loan,
and does not have the benefit of any Security Interest under the Security
Trust Deed.
2. Purpose
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The Manager directs the Trustee to, and the Trustee shall, apply the
proceeds of the Advance to purchase Receivables specified in any Sale
Notice and for no other purpose.
3. Drawings
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3.1 Advance
(a) Subject to this agreement, the Manager may direct the Trustee to
request the Advance by giving to the Trustee a duly completed but
unsigned Drawdown Notice by no later than 10.00 am on the Closing
Date (Sydney time).
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(b) The Drawdown Notice delivered by the Trustee to the Approved Seller
must be:
(i) in writing;
(ii) in or substantially in the form of Annexure A; and
(iii) signed by the Trustee.
The Trustee must sign, at the direction of the Manager, and return
the Drawdown Notice to the Manager by no later than 2.00 pm on the
Closing Date (Sydney time).
(c) The amount requested in a Drawdown Notice must not exceed the Limit.
3.2 Making of Advance
(a) Subject to the terms of this agreement, the Advance shall be made
available by the Approved Seller applying that amount to the
purchase price for Receivables under a Sale Notice.
4. Interest and Fees
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No interest or fees are payable by the Trustee in relation to the Advance
or this agreement.
5. Repayment
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The Trustee shall, at the direction of the Manager, repay the Principal
Outstanding on the Business Day immediately following the date on which
the Secured Moneys are fully and finally repaid, but only to the extent
that amounts are available for that purpose under clause 5.7 of the
Supplementary Terms Notice. That payment shall be in full and final
settlement of the obligations of the Trustee under this agreement.
6. Payments
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6.1 Manner
The Trustee shall make all payments under this agreement:
(a) by cheque, electronic funds transfer or other agreed methods,
provided to the Approved Seller at its address for service of
notices or by transfer of immediately available funds to the account
specified by the Approved Seller;
(b) without set-off, counterclaim or other deduction, except any
compulsory deduction for Tax; and
(c) in accordance with, and only at the directions of the Manager, the
Master Trust Deed, the Security Trust Deed and the Supplementary
Terms Notice.
6.2 Payment to be made on Business Day
If any payment is due on a day which is not a Business Day, the due date
will be the next Business Day.
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7. Conditions Precedent
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(a) The right of the Trustee to give the initial Drawdown Notice and the
obligations of the Approved Seller under this agreement are subject
to the condition precedent that the Approved Seller receives all of
the following in form and substance satisfactory to the Approved
Seller:
(i) (Trust Documents) from the Manager a certified copy of each
duly executed and (where relevant) stamped Trust Document;
(ii) (Master Trust Deed conditions precedent) from the Manager
evidence that the conditions precedent referred to in clause 6
of the Master Trust Deed have been satisfied; and
(iii) (Notes) evidence that the Notes have been issued.
(b) The obligations of the Approved Seller to make available the Advance
is subject to the further conditions precedent that:
(i) (representations true) the representations and warranties by
the Trustee in clause 8 are true as at the date of the
Drawdown Notice and the date of the Advance as though they had
been made at that date in respect of the facts and
circumstances then subsisting; and
(ii) (no default) no Event of Default is subsisting at the date of
the Drawdown Notice or of the Advance or will result from the
provision of the Advance.
8. Representations and Warranties
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8.1 Representations and warranties
The Trustee (in its capacity as trustee of the Trust) makes the following
representations and warranties (so far as they relate to the Trust).
(a) (Documents binding) This agreement constitutes (or will, when
executed and delivered, constitute) its legal, valid and binding
obligations (subject to laws generally affecting creditors' rights
and to general principles of equity).
(b) (Transactions permitted) The execution of this agreement did not and
will not contravene any applicable law or authorisation which
affects the Trustee in its capacity as trustee of the Trust.
(c) (Other default) It has no actual knowledge of any default by it or
the Manager under either:
(i) the Master Trust Deed; or
(ii) any law, authorisation, agreement or obligation applicable to
the Assets of the Trust, which has not been remedied or waived
in writing.
(d) (Trust) The Trust has been validly created and is in existence at
the date of this agreement.
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(e) (Sole Trustee) It is the sole trustee of the Trust at the date of
this agreement.
(f) (Removal) No notice has been given to it and to its knowledge no
resolution has been passed or direction or notice has been given,
removing it as trustee of the Trust.
8.2 Reliance on representations and warranties
The Trustee acknowledges that the Approved Seller has entered into the
Trust Documents in reliance on the representations and warranties in this
clause.
9. Undertakings
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9.1 General undertakings
Each of the Trustee and the Manager severally undertake to the Approved
Seller as follows in relation to the Trust, except to the extent that the
Approved Seller consents.
(a) (Authorisations) It will ensure that each Authorisation (which, in
the case of the Trustee, is limited to any Authorisation relating to
the Trustee in its capacity as trustee of the Trust and not to the
Trust generally) required for:
(i) the execution, delivery and performance by it of the Trust
Documents to which it is expressed to be a party and the
transactions contemplated by those documents;
(ii) the validity and enforceability of those documents; and
(iii) the carrying on by it of its business as now conducted or
contemplated,
is obtained and promptly renewed and maintained in full force and
effect. It will pay all applicable fees for them. It will provide
copies promptly to the Approved Seller when they are obtained or
renewed.
(b) (Negative pledge) It will not create or allow to exist a Security
Interest over the Assets of the Trust other than:
(i) under the Trust Documents; or
(ii) a lien arising by operation of law in the ordinary course of
day-to-day trading and not securing indebtedness in respect of
financial accommodation where it duly pays the indebtedness
secured by that lien other than indebtedness contested in good
faith.
(c) (Comply with obligations) It will duly and punctually comply with
its obligations under the Trust Documents.
(d) (Notice to Approved Seller) It will notify the Approved Seller as
soon as it becomes actually aware of any proposal by a Government
Agency to acquire compulsorily any Assets of the Trust.
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9.2 Undertakings relating to Trust
Each of the Trustee, as trustee of the Trust, and the Manager severally
undertakes to the Approved Seller as follows, except to the extent that
the Approved Seller consents.
(a) (Amendment to Master Trust Deed) It will not consent to any
amendment to the Master Trust Deed, the Supplementary Terms Notice
or any other Trust Document which would change:
(i) the basis upon which the amount of the Advance to be made is
calculated;
(ii) Clause 5.7 of the Supplementary Terms Notice; or
(iii) the basis of calculation or order of application of any amount
to be paid or applied under clause 5 of the Supplementary
Terms Notice unless the change would not be adverse to the
Approved Seller in respect of the Advance.
(b) (Resettlement) It will not take any action that will result in a
resettlement, setting aside or transfer of any asset of the Trust
other than a transfer which complies with the Master Trust Deed, the
Supplementary Terms Notice and the other Trust Documents.
(c) (No additional trustee) It will act continuously as trustee or
manager (as the case may be) of the Trust in accordance with the
Master Trust Deed until the Trust has been terminated or until it
has retired or been removed in accordance with the Master Trust
Deed.
9.3 Term of undertakings
Each undertaking in this clause continues from the date of this agreement
until all moneys actually or contingently owing under this agreement are
fully and finally repaid or cease to be outstanding.
10. Control Accounts
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The accounts kept by the Approved Seller constitute sufficient evidence,
unless proven wrong, of the amount at any time due from the Trustee under
this agreement.
11. Waivers, Remedies Cumulative
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(a) No failure to exercise and no delay in exercising any right, power
or remedy under this agreement operates as a waiver. Nor does any
single or partial exercise of any right, power or remedy preclude
any other or further exercise of that or any other right, power or
remedy.
(b) The rights, powers and remedies provided to the Approved Seller in
this agreement are in addition to, and do not exclude or limit, any
right, power or remedy provided by law.
12. Severability of Provisions
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Any provision of this agreement which is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the extent of
the prohibition or unenforceability. That does not invalidate the
remaining provisions of this agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
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13. Survival of Representations
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All representations and warranties in this agreement survive the execution
and delivery of this agreement and the provision of advances and
accommodation.
14. Indemnity and Reimbursement Obligation
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Unless stated otherwise, each indemnity, reimbursement or similar
obligation in this agreement:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
(c) is payable on demand; and
(d) survives termination or discharge of this agreement. 15. Moratorium
Legislation
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To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Trustee any obligation
under a Trust Document; or
(b) delays, prevents or prejudicially affects the exercise by the
Approved Seller of any right, power or remedy conferred by this
agreement, is excluded from this agreement.
16. Consents and Opinions
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Except where expressly stated the Approved Seller may give or withhold, or
give conditionally, approvals and consents, may be satisfied or
unsatisfied, may form opinions, and may exercise its rights, powers and
remedies, at its absolute discretion.
17. Assignments
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Neither party may assign or transfer any of its rights or obligations
under this agreement without the prior written consent of the other party
or if the rating of the Notes would be withdrawn or reduced as a result of
the assignment, except for the creation of a charge by the Trustee under
the Security Trust Deed.
18. Notices
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All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
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(i) (in the case of delivery in person or by post) when delivered,
received or left at the address of the recipient shown in this
agreement or to any other address which it may have notified
the sender;
(ii) (in the case of facsimile transmission) on receipt of a
transmission report confirming successful transmission; and
(iii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is sent
or is later than 4.00 pm (local time), it will be taken to have been
duly given or made at the commencement of business on the next day
on which business is generally carried on in that place.
19. Authorised Signatories
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The Trustee irrevocably authorises the Approved Seller to rely on a
certificate by persons purporting to be its directors and/or secretaries
as to the identity and signatures of its Authorised Signatories. The
Trustee warrants that those persons have been authorised to give notices
and communications under or in connection with this agreement.
20. Governing Law and Jurisdiction
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This agreement is governed by the laws of New South Wales. The Trustee
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
21. Counterparts
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This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
22. Acknowledgement by Trustee
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The Trustee confirms that:
(a) it has not entered into this agreement in reliance on, or as a
result of, any statement or conduct of any kind of or on behalf of
the Approved Seller (including any advice, warranty, representation
or undertaking); and
(b) the Approved Seller is not obliged to do anything (including
disclose anything or give advice),
except as expressly set out in this agreement.
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23. Limited Recourse
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23.1 General
Clause 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Manager under this agreement.
23.2 Liability of Trustee limited to its right to indemnity
(a) The Trustee enters into this agreement only in its capacity as
trustee of the Trust and in no other capacity (except where the
Transaction Documents provide otherwise). Subject to paragraph (c)
below, a liability arising under or in connection with this
agreement or the Trust can be enforced against the Trustee only to
the extent to which it can be satisfied out of the assets and
property of the Trust which are available to satisfy the right of
the Trustee to be exonerated or indemnified for the liability. This
limitation of the Trustee's liability applies despite any other
provision of this agreement and extends to all liabilities and
obligations of the Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this agreement or the Trust.
(b) Subject to paragraph (c) below, no person (including any Relevant
Party) may take action against the Trustee in any capacity other
than as trustee of the Trust or seek the appointment of a receiver
(except under the Security Trust Deed), or a liquidator, an
administrator or any similar person to the Trustee or prove in any
liquidation, administration or arrangements of or affecting the
Trustee.
(c) The provisions of this clause 23.2 shall not apply to any obligation
or liability of the Trustee to the extent that it is not satisfied
because under a Transaction Document or by operation of law there is
a reduction in the extent of the Trustee's indemnification or
exoneration out of the Assets of the Trust as a result of the
Trustee's fraud, negligence, or Default.
(d) It is acknowledged that the Relevant Parties are responsible under
this agreement or the other Transaction Documents for performing a
variety of obligations relating to the Trust. No act or omission of
the Trustee (including any related failure to satisfy its
obligations under this agreement) will be considered fraud,
negligence or Default of the Trustee for the purpose of paragraph
(c) above to the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or any person
who has been delegated or appointed by the Trustee in accordance
with the Transaction Documents to fulfil its obligations relating to
the Trust or by any other act or omission of a Relevant Party or any
such person.
(e) In exercising their powers under the Transaction Documents, each of
the Trustee, the Security Trustee and the Noteholders must ensure
that no attorney, agent, delegate, receiver or receiver and manager
appointed by it in accordance with this agreement or any other
Transaction Documents has authority to act on behalf of the Trustee
in a way which exposes the Trustee to any personal liability and no
act or omission of any such person will be considered fraud,
negligence, or Default of the Trustee for the purpose of paragraph
(c) above.
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(f) In this clause, Relevant Parties means each of the Manager, the
Servicer, the Custodian, the Calculation Agent, each Paying Agent,
the Note Trustee and any Support Facility Provider (including the
Approved Seller).
(g) Nothing in this clause limits the obligations expressly imposed on
the Trustee under the Transaction Documents.
23.3 Unrestricted remedies
Nothing in clause 23.2 limits the Approved Seller in:
(a) obtaining an injunction or other order to restrain any breach of
this agreement by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
23.4 Restricted remedies
Except as provided in clause 23.3, the Approved Seller shall not:
(a) (judgment) obtain a judgment for the payment of money or damages by
the Trustee;
(b) (statutory demand) issue any demand under section 459E(1) of the
Corporations Xxx 0000 (Cth) (or any analogous provision under any
other law) against the Trustee;
(c) (winding up) apply for the winding up or dissolution of the Trustee;
(d) (execution) levy or enforce any distress or other execution to, on,
or against any assets of the Trustee;
(e) (court appointed receiver) apply for the appointment by a court of a
receiver to any of the assets of the Trustee;
(f) (set-off or counterclaim) exercise or seek to exercise any set-off
or counterclaim against the Trustee; or
(g) (administrator) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and the Approved Seller waives
its rights to make those applications and take those proceedings.
24. Approved Seller's Obligations
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The Trustee shall have no recourse to the Approved Seller in relation to
this agreement beyond its terms, and the Approved Seller's obligations
under this agreement are separate from, and independent of, any
obligations the Approved Seller may have to the Trustee for any other
reason (including under any other Trust Document).
25. Successor Trustee
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The Approved Seller shall do all things reasonably necessary to enable any
successor Trustee appointed under clause 20 of the Master Trust Deed to
become the Trustee under this agreement.
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EXECUTED in Sydney.
Each attorney executing this agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.
TRUSTEE
SIGNED by )
PERPETUAL TRUSTEES CONSOLIDATED LIMITED )
)
by its attorney under the Power of Attorney dated)
)
the presence of: )
---------------------------
Signature
-------------------------------------------------- ---------------------------
Witness Print name
--------------------------------------------------
Print name
APPROVED SELLER
SIGNED on behalf of )
XX.XXXXXX BANK LIMITED )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
---------------------------
Signature
-------------------------------------------------- ---------------------------
Witness Print name
--------------------------------------------------
Print name
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MANAGER
SIGNED on behalf of )
CRUSADE MANAGEMENT LIMITED )
)
by its attorney under the Power of )
Attorney dated )
in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
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Annexure A
Drawdown Notice
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To: Xx.Xxxxxx Bank Limited
SELLER LOAN AGREEMENT - DRAWDOWN NOTICE NO. [*]
We refer to the Seller Loan Agreement dated on or about [*] 2004 (the Facility
Agreement).
Under clause 3.1 of the Facility Agreement we give you irrevocable notice as
follows:
(1) we wish to draw on the Closing Date;
(2) the principal amount of the Advance is A$[*]; [NOTE: Amount to comply with
the limits in clause 3.]
(3) we request that the proceeds be remitted to account number [*] at [*];
(4) to the best of our knowledge and, relying on the information provided by
the Manager, the proceeds of the advance will be used for the purposes
contemplated in the Facility Agreement;
(5) all representations and warranties under clause 8 of the Facility
Agreement are true as though they had been made at the date of this
Drawdown Notice and the Drawdown Date specified above in respect of the
facts and circumstances then subsisting.
Definitions in the Facility Agreement apply in this Drawdown Notice.
Perpetual Trustees Consolidated Limited
By: [Authorised Signatory]
DATED
Verified by Crusade Management Limited
By: [Authorised Signatory]
Dated
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