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. 1 OF 2007
ISDA Schedule to the Master Agreement for
Interest Rate Swap [Allens Xxxxxx Xxxxxxxx LOGO]
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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 2007
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DATE 13 March 2007
PARTIES
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. 1 of 2007
(PARTY B).
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
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in 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. 1 of 2007 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: Securitisation 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: Securitisation 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: Securitisation 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. 1 of 2007 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
INSOLVENCY EVENT
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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.
(e) Xx.Xxxxxx's obligations under this Agreement shall survive:
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(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.
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:
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(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
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
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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:
(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;
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(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.
(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.
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(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;
(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;
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(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
(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:
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(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/ Xxxxx Xxxxxxxx
----------------------------------- -----------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxx Xxxxxxxx
Title: Attorney Title: Lawyer
Date: 03/13/07 Date: 03/13/07
XX.XXXXXX BANK LIMITED
By: /s/ Xxxxxx Xxxxx Witness: /s/ Xxxxx Xxxxxxxx
----------------------------------- -----------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxx Xxxxxxxx
Title: Attorney Title: Lawyer
Date: 03/13/07 Date: 03/13/07
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
as trustee of the Crusade Global Trust No. 1 of 2007
By: /s/ Xxxxxx Xxxxx Xxxxxxx: /s/ Xxxxx Xxxxxxxx
----------------------------------- -----------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxx Xxxxxxxx
Title: Manager Title: Lawyer
Date: 03/13/07 Date: 03/13/07
Page 15
To: Perpetual Trustees Consolidated Limited as trustee of Crusade Global
Trust No.1 of 2007
Attention: Manager, Securitisation
Copy to: Xx.Xxxxxx Bank Limited
Attention: Xxxxx Xxxxxxxxxxxxx
From: Crusade Management Limited
Date: 13 March 2006
SUBJECT: CONFIRMATION OF INTEREST RATE SWAP
Reference No: Crusade Global Trust No.1 of 2007
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 13 March 2007 and the Schedule to the Master
Agreement dated on or about 13 March 2007 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.
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.1 of 2007.
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: 15 March 2007
-1-
FINAL MATURITY DATE: 19 April 2038 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 19th 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.1 of 2007.
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 19 April 2007.
MORTGAGE RATE
-2-
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.
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
-3-
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 19April 2007.
SPREAD: The weighted average coupon on all Notes in respect
of the relevant Monthly Payment Date plus 0.75% per
annum.
FLOATING RATE (Floating Rate + Spread) x (Notional Amount) x
PAYMENT: (number of days between Reset Dates / 365)
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
MATURITY: Calculation 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
-4-
CALCULATION AGENTS: Crusade Management Limited
PAYMENTS TO THE FLOATING RATE PAYER
ACCOUNT FOR Crusade Management Limited
PAYMENT IN AUD: Xx.Xxxxxx Bank Limited
Level 11, 00 Xxxxxx Xxxxxx
Sydney, NSW 2000
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 trustee
of
PAYMENT IN AUD: Crusade Global Trust No.1 of 2007
Bank: Xx.Xxxxxx Bank
BSB: 332-027
Account No: 000-000-000
PAYMENTS TO XX.XXXXXX BANK (AS STANDBY INTEREST RATE SWAP PROVIDER) (IF
APPLICABLE)
ACCOUNT FOR Xx.Xxxxxx Bank Limited
-5-
PAYMENT IN AUD: Level 00, 00 Xxxxxx Xxxxxx
Sydney, NSW 2000
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 13 March 2007 relating to Crusade Global Trust No. 1
of 2007.
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 10, 00 Xxxxxx Xxxxxx, Xxxxxx
Attn: Manager, Securitisation
Telephone: 000 0000-0000
Facsimile: 000 0000-0000
5. Documents to be delivered
-6-
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.
(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
-7-
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.
-8-
PLEASE NOTIFY US IMMEDIATELY SHOULD THE PARTICULARS OF THIS CONFIRMATION NOT BE
IN ACCORDANCE WITH YOUR UNDERSTANDING.
PLEASE QUOTE OUR REFERENCE ON ALL CORRESPONDENCE.
Regards,
Signed for and on behalf of
Crusade Management Limited, by its attorney
/s/ Xxxxxx Xxxxx /s/ Xxxxx Xxxxxxxx
--------------------------------------- --------------------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxx Xxxxxxxx
Title: 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.1 of 2007)
/s/ Xxxxxx Xxxxx /s/ Xxxxx Xxxxxxxx
--------------------------------------- --------------------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxx Xxxxxxxx
Title: Manager Title: Lawyer
Confirmed as of date first written:
-9-
For and on behalf of
Xx.Xxxxxx Bank Limited
(as Standby Interest Rate Swap Provider)
/s/ Xxxxxx Xxxxx /s/ Xxxxx Xxxxxxxx
--------------------------------------- --------------------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxx Xxxxxxxx
Title: Title: Lawyer
-10-
