SCHEDULE
to the
MASTER AGREEMENT
dated as of ____________, _____
between
Barclays Bank PLC ("Party A")
and
Perpetual Trustees Consolidated Limited (ABN 81 004 029 841)
in its capacity as trustee of the Crusade Global Trust No. 2
of 2005 ("Party B")
and
Crusade Management Limited (ABN 90 072 715 916) ("Manager")
PART 1
TERMINATION PROVISIONS AND CERTAIN OTHER MATTERS
(1) "SPECIFIED ENTITY" is not applicable in relation to Party A and Party B.
(2) "SPECIFIED TRANSACTION" is not applicable.
(3) (i) Sections 5(a)(ii), (iii), (iv), (v), (vi), (viii), 5(b)(ii), (iii) and
(iv) will not apply to Party A or Party B.
(ii) Replace Section 5(a)(i) with:
"(i) FAILURE TO PAY OR DELIVER. Failure by the party to make when due
any payment under this Agreement or delivery under Section
2(a)(i) or 2(e) required to be made by it if such failure is not
remedied at or before 10.00am on the tenth Local Business Day
after the due date."
(4) The "BANKRUPTCY" provisions of Section 5(a)(vii) are replaced by "An
Insolvency Event under the Security 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 Security Trust Deed) shall
apply to it as if Party A was 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 (who is
notified to Party A) in respect of which the Designated Rating Agencies
confirm that the novation will not cause a reduction or withdrawal of the
ratings of the Class A-1 Notes, and Party A and Party B agree to execute
such a novation agreement in standard ISDA form.
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(5) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a):
will not apply to Party A.
will not apply to Party B.
(6) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(7) "TERMINATION CURRENCY" means US$.
(8) Section 6(a) is amended by replacing "20 days" in line 3 with "10 Local
Business Days".
(9) The following is an ADDITIONAL TERMINATION EVENT:
Party A fails to comply with the requirements of Section 17 (in which case
Party A is the Affected Party).
(10) Add a new Section 6(aa) after Section 6(a):
"(aa) RESTRICTED TERMINATION RIGHTS
(i) TERMINATION BY PARTY B: Party B must not designate
an Early Termination Date without the prior
written consent of the Note Trustee.
(ii) TRANSFER WHERE PARTY B DOES NOT GROSS-UP: If any
payment by Party B to Party A under this Agreement
is, or is likely to be, made subject to any
deduction or withholding on account of Tax, Party
B will endeavour to procure the substitution as
principal obligor under this Agreement in respect
of each affected Transaction of a Party B
incorporated in another jurisdiction approved by
Party A and the Note Trustee and in respect of
which the Designated Rating Agencies confirm that
the substitution will not cause a reduction or
withdrawal of the rating of any Notes."
(11) In Section 6(b)(ii), add the words "or to any other person approved by
Party A" after the word "Affiliates" in the second last line of the first
paragraph and add the words "so long as the transfer in respect of that
Transaction would not lead to a downgrade or withdrawal of the then current
rating of any Notes" after the words "ceases to exist" at the end of the
first paragraph.
(12) Add the following sentence at the end of the last paragraph of Section
6(b)(ii):
"However, consent may be withheld if the other party considers (acting
reasonably) that its credit exposure to the transferor would be adversely
affected by the transfer."
(13) (i) Replace paragraph (a) of Section 7 with the following:
"(a) (i) (subject to sub-paragraph (ii)) Party A may make such a
transfer, without the prior consent of any Designated Rating Agency or
the other parties, pursuant to a consolidation, amalgamation with, or
merger with or into, or transfer of all or substantially all of its
assets to, or reorganisation, incorporation, reincorporation or
reconstitution into or as another entity (but without prejudice to any
other right or remedy under this Agreement); and
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(ii) the transfer referred to in sub-paragraph (i) may only be
made where the transferee of all of Party A's interest or obligation
in or under this Agreement has a short term credit rating of A-1+ from
S&P and a long term credit rating of at least A2, a short term credit
rating of P-1 from Xxxxx'x and a short term credit rating of F1 from
Fitch Ratings and a long term credit rating of A+ from Fitch Ratings;
and"
(ii) Add a new paragraph to Section 7, immediately below paragraph (b):
"(c) in the event that a trustee is appointed as a successor to Party B
under the Trust Deed and the Supplementary Terms Notice (the
"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)
execute a novation agreement novating 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
each Designated Rating Agency of such novation."
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PART 2
TAX REPRESENTATIONS
(1) PAYER TAX REPRESENTATIONS
For the purpose of Section 3(e) of the Agreement, Party A will make the
following representation 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); 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 clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) of the Agreement by reason of
material prejudice to its legal or commercial position.
(2) PAYEE TAX REPRESENTATIONS
For the purpose of Section 3(f) of this Agreement, Party B makes the
following representations:
It is an Australian resident and does not derive payments under this
Agreement in part or in whole carrying on business in a country outside
Australia at or through a permanent establishment or itself in that
country;
For the purpose of Section 3(f) of this Agreement, Party A makes the
following representation:
It is fully eligible for the benefits of the "Business Profits" or
"Industrial and Commercial Profits" provision, as the case may be, the
"Interest" provision or the "Other Income" provision, if any, of the
Specified Treaty with respect to any payment described in such provisions
and received or to be received by it in connection with this Agreement and
no such payment is attributable to a trade or business carried on by it
through a permanent establishment in Australia.
"Specified Treaty" means the tax treaty applicable between the United
Kingdom and the Commonwealth of Australia.
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PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following document as applicable:
(a) Other documents to be delivered are:
<TABLE>
PARTY REQUIRED TO DATE BY WHICH TO BE COVERED BY SECTION
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DELIVERED 3(D) REPRESENTATION
----------------------- ------------------------------------ -------------------------- -------------------
Manager Legal opinions as to the validity Upon execution and No
and enforceability of the delivery of this Agreement
obligations of Party B and the
Manager under this Agreement, the
Trust Deed, the Security Trust Deed
and the Class A-1 Notes in form and
substance and issued by legal
counsel reasonably acceptable to
Party A
Party B and the Manager Certified copies of all corporate Upon execution and Yes
authorisations (to be certified by delivery of this Agreement
an Authorised Officer of the or any relevant
relevant party) and any other Confirmation
documents with respect to the
execution, delivery and performance
of this Agreement and each
Confirmation
Party A and Party B Certificate of authority and Upon execution and Yes
specimen signatures of individuals delivery of this Agreement
executing this Agreement, and thereafter upon
Confirmations and each Credit request of the other party
Support Document (as applicable)
Manager Copies (certified to be true copies Upon execution and Yes
by an authorised signatory of the delivery of this Agreement
Manager) of the Trust Deed, the
Security Trust Deed, the Note Trust
Deed, the Supplementary Terms
Notice, the Notice of Creation of
Trust and the Agency Agreement.
Manager A copy (certified to be a true copy Promptly upon any such Yes
by an authorised signatory of the document becoming
Manager) of any document amending or effective in accordance
varying the terms of the Trust Deed, with its terms
the Security Trust Deed, the Note
Trust Deed or the Supplementary
Terms Notice where such amendment
affects this Agreement or Party A's
rights or obligations under this
Agreement
</TABLE>
Page 5
<TABLE>
Party A A legal opinion as to the capacity Upon execution and Yes
and authority of Party A to enter delivery of this Agreement
into, and perform its obligations
under this Agreement and each
Confirmation.
Manager A copy of any notice provided by the At such time as the Yes
Manager to Class A-1 Noteholders. relevant notice is
provided by the Manager to
Class A-1 Noteholders.
</TABLE>
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PART 4
MISCELLANEOUS
(1) ADDRESS FOR NOTICES. For the purpose of Section 12(a) of this Agreement:
(a) For notices regarding operation, payment and confirmation matters
only, notices should be sent to the branch set out in the relevant
Confirmation (as may be amended from time to time) with a copy, in the
case of notices or communications relating to Sections 5, 6, 7, 11 or
13, to:
Barclays Bank PLC
5 The North Colonnade
Canary Wharf
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attention: Derivatives Director, Legal Division (marked urgent)
Telephone: (x00) 000 000 0000
Facsimile: (x00) 000 000 0000
(b) All notices or communications to Party B under this Agreement shall be
sent to:
Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Manager, Securitisation
Telephone: (x00) 0 0000 0000
Facsimile: (x00) 0 0000 0000
Telex: N/A
(c) All notices or communications to the Manager under this Agreement
shall be sent to:
Xxxxx 00, 00 Xxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Middle Office Compliance Manager
Telephone: x00 0 0000 0000
Facsimile: x00 0 0000 0000
Telex: N/A
(2) PROCESS AGENT. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable
Party B appoints as its Process Agent: Mallesons Xxxxxxx Xxxxxx
6th Floor
Alder Castle
00 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
(3) OFFICES. The provisions of Section 10(a) will not apply to this Agreement.
(4) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is a not Multibranch Party and may act through its office in
London.
Party B is not a Multibranch Party.
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(5) CALCULATION AGENT. The Calculation Agent is Party A, unless:
(i) otherwise specified in a Confirmation in relation to the relevant
Transaction; or
(ii) an Event of Default (where Party A is the Defaulting Party) has
occurred, in which case the Calculation Agent will be the Manager.
All calculations made by the Calculation Agent must be made in good faith
and through the exercise of the Calculation Agent's commercially reasonable
judgment. If any party objects in good faith to any calculation made by the
Calculation Agent, the parties must negotiate in good faith to agree on an
independent lead dealer to make such calculation, and if they cannot so
agree within three Business Days, they will each promptly choose an
independent leading dealer and instruct such dealers to agree on another
independent leading dealer to make such calculation. The calculation of any
such dealer so appointed will be binding on the parties in the absence of
manifest error and the costs of such appointment will be shared equally
between Party A and Party B.
(6) CREDIT SUPPORT DOCUMENTS. Details of any Credit Support Document:
(i) In relation to Party A: Nil
(ii) In relation to Party B: Security Trust Deed
(7) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A: Not applicable
Credit Support Provider means in relation to Party B: Not applicable
(8) NETTING OF PAYMENTS. Sub-paragraph (ii) of Section 2(c) will apply to
Transactions entered into under this Agreement unless specified otherwise
in a Confirmation.
(9) GOVERNING LAW. This Agreement and each Confirmation will be governed by,
and construed and enforced in accordance with, the laws in force in England
and Wales.
(10) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. For the purposes of Section 3(c), each of Party B and the
Manager are deemed not to have any Affiliates.
(11) All payments other than payments of Eligible Credit Support to be made to
Party B under this Agreement by Party A must be made to the account
specified in the Confirmation (the 'US$ Account').
Any payment so made will, to the extent of that payment, satisfy Party A's
obligation to Party B in respect of that payment.
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PART 5
OTHER PROVISIONS
(1) REDUCTION OF PAYMENT OBLIGATIONS. In the event that a payment made by Party
B to Party A under a Transaction is less than the amount which Party B
would be required to pay Party A, the payment obligation of Party A to
Party B shall be rateably reduced to the extent of the reduction in the
amount paid by Party B to Party A. For the avoidance of doubt the payment
of a reduced amount by Party A under this Agreement shall not constitute a
breach of the payment obligations specified in Section 2(a)(i).
(2) 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 and, in the case of any payment
payable by Party A to Party B, will be discharged by Party A
depositing that payment by 10.00am (New York time) into the US$
Account."
(3) In Section 2(a)(ii), after "freely transferable funds" add the words and
"save as required by law, free of any set-off, counterclaim, deduction or
withholding (and except as expressly provided in this Agreement)."
(4) Insert new Sections 2(a)(iv) and 2(a)(v) immediately after Section
2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply to a
payment or delivery due to be made to a party if such party has
satisfied all its payment and delivery obligations under Section
2(a)(i) of this Agreement and has no future payment or delivery
obligations, whether absolute or contingent under Section 2(a)(i).
"(v) Where:
(1) payments are due pursuant to Section 2(a)(i) by Party A to Party
B (the "PARTY A PAYMENT") and by Party B to Party A (the "PARTY B
PAYMENT") on the same day; and
(2) the Security Trust Deed has become, and remains at that time,
enforceable,
then Party A's obligation to make the Party A Payment to Party B shall
be subject to the condition precedent (which shall be an "applicable
condition precedent" for the purpose of Section 2(a)(iii)(3)) that
Party A first receives either:
(3) the Party B Payment; or
(4) confirmation from Party B's bank that it holds irrevocable
instructions to effect payment of the Party B Payment and that
cleared funds are available to make that payment."
(5) Add the following new sentence to Section 2(b):
"Each new account so designated must be in the same tax jurisdiction
as the original account."
(6) Delete the word "if" at the beginning of Section 2(d)(i)(4) and insert the
following words instead:
"if and only if X is Party A and".
(7) In Section 2(d)(ii) insert the words "(if and only if Y is Party A)" after
the word "then" at the beginning of the last paragraph. Party B will have
no obligation to pay any amount to Party A under Section 2(d)(ii), and may
make any payment under or in connection with this Agreement net of any
deduction or withholding referred to in Section 2(d)(i).
Page 9
(8) TELEPHONE RECORDING: Each party consents to the recording of the telephone
conversations of trading and marketing personnel in connection with this
Agreement or any potential Transaction and consents to such recording being
used as evidence in court proceedings.
(9) FURTHER REPRESENTATIONS. Insert new Sections 3(g), 3(h) and 3(i)
immediately after Section 3(f) as follows:
"(g) NON ASSIGNMENT. It has not assigned (whether absolutely, in equity or
otherwise) or declared any trust over any of its rights under this
Agreement or any Transaction (other than, in respect of Party B, the
trust created pursuant to the Trust Deed and the Supplementary Terms
Notice) and has not given any charge over its rights under this
Agreement or any Transaction in the case of Party A, or any charge
over the assets of the Trust (other than under the Security Trust
Deed), in the case of Party B."
(h) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to represent
to the other party on the date on which it enters into a Transaction
that (absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary for that Transaction):
(i) NON-RELIANCE. It is acting for its own account (in the case of
Party B as trustee of the Trust), and it has made its own
independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based
upon its own judgment (and in the case of Party B, also on the
judgment of 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 that Transaction; it being
understood that information and explanations related to the terms
and conditions of a Transaction shall not be considered
investment advice or a recommendation to enter into that
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 that Transaction.
(ii) 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 that Transaction. It is also
capable of assuming, and assumes (in the case of Party B, subject
to sub-paragraph (i)), the risks of that Transaction.
(iii) STATUS OF PARTIES. The other party is not acting as a fiduciary
for or an adviser to it in respect of that Transaction (other
than in the case of Party B, the Manager)."
(i) TRUST. Party B represents to Party A, in respect of Party B only
(which representations will be deemed to be repeated by Party B on
each date on which a Transaction is entered into) that (absent a
written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
(i) TRUST VALIDLY CREATED. The Trust has been validly created under
the laws by which it is stated to be governed 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.
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(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 has equitable title to 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 permitted under the Trust Deed, as far as Party
B is aware, those Assets are free from all other Security
Interests (except for Party B's right of indemnity out of the
Assets of the Trust)."
(10) In Section 4, add the following new paragraph immediately after Section
4(e):
"(f) CONTRACTING AS PRINCIPAL. Party A will enter into each Transaction as
principal and not otherwise and, subject to Section 15, Party B will
enter into each Transaction in its capacity as trustee of the Trust
and not otherwise. Any reference to Party B in this Agreement is in
its capacity as trustee of the Trust."
(11) CONFIRMATIONS. With respect to each Transaction entered into pursuant to
this Agreement and for the purposes of Section 9(e)(ii), Party A will, on
or promptly after the relevant Trade Date, send Party B (with a copy to the
Manager) a Confirmation confirming that Transaction and both Party B and
the Manager must promptly then confirm the accuracy of or request the
correction of such Confirmation. Notwithstanding the provisions of Section
9(e)(ii), where a Transaction is confirmed by means of facsimile or an
electronic messaging system, such message will constitute a Confirmation
even where not so specified in that Confirmation.
(12) Section 12 is amended as follows:
(i) In Section 12(a), delete the words "(except that a notice or other
communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system)" in lines 2 and 3.
(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".
(iii) In Section 12(a)(v), replace the words "electronic message is
received" with "the facsimile transmission confirming the electronic
message is sent and deemed effective in accordance with sub-paragraph
(iii)".
(13) ISDA DEFINITIONS. This Agreement, each Confirmation and each Transaction
are subject to the 2000 ISDA Definitions (as published by the International
Swaps and Derivatives Association, Inc) (the "ISDA Definitions"), and will
be governed in all respects by any provisions set forth in the ISDA
Definitions, without regard to any amendments to the ISDA Definitions made
after the date of this Agreement. The ISDA Definitions are incorporated by
reference in, and shall be deemed to be part of, this Agreement and each
Confirmation.
(14) SCOPE OF AGREEMENT.
Any reference to a:
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(a) "Swap Transaction" in the ISDA Definitions is deemed to be a reference
to a "Transaction" for the purposes of interpreting this Agreement or
any Confirmation; and
(b) "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.
(15) INCONSISTENCY. In the event of any inconsistency between any two or more of
the following documents in respect of a Transaction, they will take
precedence over each other in the following descending order in respect of
that Transaction:
(i) any Confirmation;
(ii) the Schedule to the Agreement and Credit Support Annex;
(iii) the printed form of the ISDA Master Agreement and the ISDA Credit
Support Annex;
(iv) the 2000 ISDA Definitions.
(16) DEFINITIONS AND INTERPRETATION
Section 14 of the Agreement is modified as follows:
(a) New definitions are inserted as follows:
"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 credit rating of
A-1+ from S&P, P-1 from Xxxxx'x and F1 from Fitch Ratings.
"DOWNGRADE" means in relation to a Currency Swap, the withdrawal or
downgrade of Party A's credit rating by a Designated Rating Agency
resulting in Party A not having the Required Rating for that Currency
Swap.
"MAJOR DOWNGRADE" means a Downgrade resulting in Party A having:
(i) a short term credit rating of less than A-1 by S & P;
(ii) a short term credit rating of less than P-2 by Xxxxx'x or a long
term credit rating of less than A-3 by Xxxxx'x; or
(iii) a short term credit rating of less than F2 by Fitch Ratings or a
long term credit rating of less than BBB+ by Fitch Ratings.
"MINOR DOWNGRADE" means in relation to a Currency Swap, any Downgrade
which is not a Major Downgrade for that Currency Swap.
"MORTGAGED PROPERTY" has the meaning given in the Security Trust Deed.
"NOTE DOWNGRADE" means any actual or proposed withdrawal or downgrade
of the rating assigned to the Class A-1 Notes by a Designated Rating
Agency which results or would result in any rating assigned to the
Class A-1 Notes being less than that specified in clause 4.2(f) of the
Supplementary Terms Notice.
"REPLACEMENT CURRENCY SWAP PROVIDER" means, at any time, a person that
has agreed to replace Party A at that time and has a credit rating not
less than the Required Rating.
"REQUIRED RATING" means a credit rating of not less than:
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(i) A-1+ (short term) by S & P;
(ii) P-1 (short term) and A2 (long term) by Xxxxx'x; and
(iii) F1 (short term) and A+ (long term) by Fitch Ratings.
"RELEVANT SWAP TRANSACTION" means each Transaction which is a currency
swap for the Class A-1 Notes only.
"SECURITY TRUST DEED" means the Security Trust Deed dated [*] 2005
between Party B as issuing trustee, Crusade Management Limited as
Manager, P.T. Limited as security trustee and The Bank of New York as
note trustee.
The definition of Tax is replaced with:
"TAX" has the meaning given in the Trust Deed.
"TRUST DEED" means the Master Trust Deed dated 14 March 1998 as
amended by the Crusade Global Trust No. 2 of 2005 Supplementary Terms
Notice dated on or about the date of this Agreement between (amongst
others) Party B, St. Xxxxxx Bank Limited and the Manager
("SUPPLEMENTARY TERMS NOTICE") and each of the following expressions
has the meanings given to them in the Trust Deed and the Supplementary
Terms Notice.
(b) Each of the following expressions has the meanings given to them in
the Trust Deed and the Security Trust Deed (as the case may be):
"AGENCY AGREEMENT"
"ASSET"
"BANK"
"CURRENCY SWAP"
"CLASS A-1 NOTES"
"CLASS A-1 NOTEHOLDER"
"CURRENCY SWAP"
"DESIGNATED RATING AGENCY"
"EXTRAORDINARY RESOLUTION"
"FINAL MATURITY DATE"
"HEDGE AGREEMENT"
"INSOLVENCY EVENT"
"INVESTED AMOUNT"
"MORTGAGED PROPERTY"
"NOTEHOLDER"
"NOTE TRUSTEE"
"PRINCIPAL PAYING AGENT"
"PURCHASED RECEIVABLES"
"SECURITY TRUST DEED"
"SECURITY TRUSTEE"
"STATED AMOUNT"
"SUPPORT FACILITY PROVIDER"
"TRUST"
"TRUST EXPENSE"
(c) TRUST DEED AND SECURITY TRUST DEED: The parties acknowledge and agree
and for the purposes of the Trust Deed and Security Trust Deed
(i) all Transactions under this Agreement are "Hedge Agreements";
(ii) Party A is a "Support Facility Provider",
Page 13
(iii) all obligations of Party B under this Agreement and any/all
Transactions under it are Secured Moneys.
(d) Unless defined in this Agreement, words and phrases defined in the
Trust Deed, the Security Trust Deed and the Supplementary Terms Notice
(each in the form as at the date of this Agreement) have the same
meaning in this Agreement. Where there is any inconsistency in a
definition between this Agreement (on the one hand) and the Trust
Deed, Security Trust Deed or the Supplementary Terms Notice (on the
other hand), this Agreement prevails. Where words or phrases used but
not defined in this Agreement are defined in the Trust Deed in
relation to a Trust (as defined in the Trust Deed) such words or
phrases are to be construed in this Agreement, where necessary, as
being used only in relation to the Trust (as defined in the
Supplementary Terms Notice).
(e) Where in this Agreement a word or expression is defined by reference
to its meaning in another Transaction Document or there is a reference
to another Transaction Document or to a provision of another
Transaction Document, any amendment to the meaning of that word or
expression or to that other Transaction Document or provision (as the
case may be) will be of no effect for the purposes of this Agreement
unless and until the amendment is consented to by the parties to this
Agreement.
(17) New Sections 15 and 16 are inserted immediately after Section 14 as
follows:
"15. PARTY B PROVISIONS
(a) (A) General
Clause 30 of the Trust Deed applies to the obligations and
liabilities of Party B under this Agreement. Clause 16 of the
Security Trust Deed applies to govern Party A's priority to
monies received from the sale of Assets of the Trust or other
enforcement of the Charge under the Security Trust Deed (as
defined in the Security Trust Deed).
(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 (except in relation to
the assets of the Trust).
(3) The provisions of this Section 15 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 the
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 (other than Party A in its
capacity as currency swap provider under this Agreement, in
respect of which its obligations are limited to this
Agreement). 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, 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;
(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 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 s459E(1) of the
Corporations Xxx 0000 (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; 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."
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"16. REPLACEMENT CURRENCY SWAP
(a) If this Agreement or any Transaction under this Agreement is
terminated prior to the day upon which the Class A-1 Notes are
repaid in full, Party B must, subject to paragraph (b) and at the
direction of the Manager, enter into one or more currency swaps
which replace the Transactions under this Agreement (collectively
a "REPLACEMENT CURRENCY SWAP") but only on the following
conditions:
(i) the Settlement Amount payable (if any) by Party B to Party A
upon termination of this Agreement or any Transaction will
be paid in full when due in accordance with the
Supplementary Terms Notice and this Agreement;
(ii) the Designated Ratings Agencies confirm that entry into the
Replacement Currency Swap by Party B will not cause a Note
Downgrade; and
(iii) the liability of Party B under the Replacement Currency
Swap is limited to at least the same extent that its
liability is limited under this Agreement or the relevant
Transaction under this Agreement.
(b) If the conditions in Section 16(a) are satisfied, Party B must,
at the direction of the Manager, enter into the Replacement
Currency Swap and if it does so it must direct the Replacement
Currency Swap Provider to pay any upfront premium to enter into
the Replacement Currency Swap due to Party B directly to Party A
in satisfaction of and to the extent of Party B's obligation to
pay the Settlement Amount to Party A as referred to in Section
16(a) and to the extent that such premium is not greater than or
equal to the Settlement Amount, the balance must be satisfied by
Party B as a Trust Expense.
(c) If the conditions in Section 16(a) are satisfied and Party B has
entered into the Replacement Currency Swap, Party B must direct
Party A to pay any Settlement Amount payable by Party A to Party
B on termination of this Agreement directly to the Replacement
Currency Swap Provider as payment of any premium (to the extent
of the Settlement Amount) payable by Party B to enter into the
Replacement Currency Swap. Such payment by Party A to the
Replacement Currency Swap Provider shall be in full discharge of
Party A's obligation to make any payment to Party B in respect of
the termination of this Agreement and no further amounts shall be
due from Party A in respect of such termination. If such premium
is greater than the Settlement Amount, the balance must be
satisfied by Party B as a Trust Expense payable to the
Replacement Currency Swap Provider in accordance with clause 5.1
of the Supplementary Terms Notice."
(18) NOVATION
Notwithstanding Section 7 as amended herein, Party A may at any time novate
its obligations under this Agreement to any of its Affiliates (the "NEW
COUNTERPARTY") provided that:
(a) the New Counterparty provides a legal opinion to Party B that this
Agreement, as novated, is valid, binding and enforceable against it
(subject to equitable doctrines and creditors' rights generally); and
(b) the New Counterparty has the Required Rating.
Party B and the Manager will execute all such documents (each in a form
reasonably satisfactory to Party B) as are reasonably necessary to give
effect to that novation."
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(19) APPOINTMENT OF MANAGER: Party A acknowledges that under the Trust Deed
Party B has appointed the Manager as manager of the Trust with the powers
set out in and upon and subject to the terms of, the Trust Deed.
Accordingly, subject to the terms of the Trust Deed, the Manager:
(i) may arrange, enter into, and monitor Transactions, execute
Confirmations and exercise all other rights and powers of Party B
under this Agreement; and
(ii) without limiting the generality of the foregoing, the Manager
shall, issue and receive, on behalf of Party B all notices,
Confirmations, certificates and other communications to or by
Party A under this Agreement.
(20) A new Section 17 is added as follows:
"17 RATING DOWNGRADE
(a) If, at any time, a Downgrade occurs and the downgrade constitutes a
Minor Downgrade, Party A shall, within 30 days (or such greater period
as agreed to in writing by the relevant Designated Rating Agency),
comply with Section 17(c).
(b) If, at any time, a Downgrade occurs and the downgrade constitutes a
Major Downgrade, Party A shall immediately (or such greater period as
agreed by the relevant Designated Rating Agency) comply with Section
17(c)(i). Party A must continue to comply with Section 17(c)(i) until
such time (no later than 30 days of the Major Downgrade occurring (or
such greater period as agreed by the relevant Designated Rating
Agency)) that it complies with Section 17(c)(ii), (iii) or (iv).
(c) Where Party A is required to comply with this Section 17(c) it must,
subject to paragraph (b), at its cost do one of the following:
(i) transfer Eligible Credit Support to Party B in accordance with
the Credit Support Annex attached to this Agreement (including by
the deposit of US$ to the credit of a Swap Collateral Account);
(ii) procure a novation of its rights and obligations under each
Transaction to a Replacement Currency Swap Provider;
(iii) procure another person to become co-obligor in respect of the
obligations of Party A under each Transaction. Such co-obligor
may be either:
(A) a person with the Required Rating domiciled in the same
legal jurisdiction as Party A or Party B; or
(B) a person otherwise acceptable to each Designated Rating
Agency; or
(iv) enter, or procure entry, into an Acceptable Arrangement.
(d) 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, and Party B must, establish, as soon
as 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 17, the "SWAP COLLATERAL ACCOUNT".
(e) Party B, at the direction of the Manager, may only dispose of any
Eligible Credit Support acquired or transferred to it under Section
17(c)(i) or make withdrawals from the Swap Collateral Account: (i) in
accordance with the terms of the Credit Support Annex attached to this
Agreement; or (ii) otherwise if directed to do so by the Manager and
in such latter case only for the purpose of:
Page 17
(i) withdrawing any amount which has been incorrectly deposited into
the Swap Collateral Account;
(ii) paying any bank accounts debit tax or other equivalent Taxes
payable in respect of the Swap Collateral Account; or
(iii) 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.
(f) Party B, at the direction of the Manager, may only invest any amounts
standing to the credit of a Swap Collateral Account in Eligible Credit
Support that matures on or prior to the next Payment Date.
(g) The Credit Support Amount must be denominated in US$, pounds sterling,
Australian dollars or in such other currency as approved by each
Designated Rating Agency."
(21) EXCHANGE CONTROLS
Section 5(b)(i) (ILLEGALITY) is amended by adding the following paragraph
at the end:-
"This sub-paragraph (i) does not apply to the imposition by the Australian
government or any agency of the Australian government of any exchange
control restrictions or prohibitions ("EXCHANGE CONTROLS")." For the
avoidance of doubt:
(A) exchange controls do not constitute an Illegality or other Termination
Event or an Event of Default under this Agreement, and do not entitle
a party to terminate a Transaction or otherwise refuse to make any
payments it is obliged to make under a Transaction: and
(B) if and for so long as exchange controls are imposed, delivery by Party
B of Australian dollar amounts required to be paid by it under any
relevant Confirmation to the bank account in Australia notified in
writing by Party A to Party B from time to time specified in that
Confirmation will constitute proper payment of those amounts by Party
B and Party A's obligations under this Agreement will be unaffected by
any such exchange controls."
(22) PARTY B'S PAYMENT INSTRUCTIONS. Party B irrevocably authorises and
instructs Party A to make payment of:
(i) the "Initial Exchange Amount" payable by Party A under a currency swap
transaction by paying that amount direct to the account notified in
writing by Party B to Party A for that purpose; and
(ii) any other amount due from Party A to Party B under this Agreement by
paying that amount direct to the Principal Paying Agent to the account
outside Australia notified in writing by the Principal Paying Agent to
Party A for that purpose. Party A is entitled to rely on any such
notice.
(23) NO AMENDMENT. Each of Party B and the Manager agrees that it will not
consent to any amendment to any provision in any Transaction Document
dealing with the ranking, priority or entitlement of Party A in respect of
any security or moneys without the prior written consent of Party A (which
will not be unreasonably withheld).
(23) In Section 6(e), delete the sentence "The amount, if any, payable in
respect of an Early Termination Date and determined pursuant to this
Section will be subject to any Set-off." At the end of the first paragraph.
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Please confirm your agreement to the terms of the foregoing Schedule by signing
below.
BARCLAYS BANK PLC PERPETUAL TRUSTEES CONSOLIDATED LIMITED
as trustee of Crusade Global Trust No. 2
of 2005
By: By:
--------------------------------- ------------------------------------
Name: Name:
Title: Title:
CRUSADE MANAGEMENT LIMITED
By:
---------------------------------
Name:
Title:
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