SCHEDULE
to the
MASTER AGREEMENT
dated as of ____________, _____
between
JPMorgan Chase Bank ("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 2001 ("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" will have the meaning specified in Section 14.
(3) (i) Sections 5(a)(ii), (iii), (iv), (v), (vi), 5(b)(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;"
(iii) Section 5(b)(ii) will not apply to Party A as the Affected
Party (subject to Part 5(15)(iii) of this Schedule).
(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 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 ISDA form.
(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 (as amended by Part 5(q)(ii)) will apply; and
(ii) the Second Method will apply.
(7) "TERMINATION CURRENCY" means the currency selected by the party which
is not the Defaulting Party or the Affected Party, as the case may be,
or where there is more than one Affected Party the currency agreed by
Party A and Party B. However, the Termination Currency shall be one of
the currencies in which payments are required to be made in respect of
Transactions. If the currency selected is not freely available, or
where there are two Affected Parties and they cannot agree on a
Termination Currency, the Termination Currency shall be United States
Dollars.
(8) "ADDITIONAL TERMINATION EVENT" means:
(i) An Event of Default (as defined in the Security Trust Deed)
occurs and the Security Trustee has declared, in accordance
with the Security Trust Deed, the Notes immediately due and
payable (and Party B is the Affected Party);
(ii) Party B becomes obliged to make a withholding or deduction in
respect of any Notes and the Notes are redeemed as a result
(and Party B is the Affected Party). Notwithstanding Section
6(b)(iv) of the Agreement, as a result thereof, Party B must,
at the direction of the Manager, give a notice designating an
Early Termination Date in respect of this Agreement and all
Transactions.
PART 2
TAX REPRESENTATIONS
(1) PAYER TAX REPRESENTATIONS
For the purpose of Section 3(e) of the Agreement, Party A and Party B
will make the following representations:
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 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 A makes the following representation:
None
Party B makes the following representation:
It is an Australian resident and does not derive the payments under
this Agreement in part or in whole in carrying on business in a country
outside Australia at or through a permanent establishment of itself in
that country.
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 documents:
(a)
PARTY REQUIRED TO
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE COVERED BY SECTION
DELIVERED 3(D) REPRESENTATION
Party B Legal opinions as to the validity and Upon execution and delivery No
enforceability of the obligations of of this Agreement
Party B and the Manager under this
Agreement, the Trust Deed, the Security
Trust Deed and the Notes in form and
substance and issued by legal counsel
reasonably acceptable to Party A
Party A and Party B Certified copies of all corporate Upon execution and delivery Yes
authorisations and any other documents of this Agreement
with respect to the execution, delivery
and performance of this Agreement
Party A and Party B Certificate of authority and specimen Upon execution and delivery Yes
signatures of individuals executing of this Agreement and
this Agreement, Confirmations and each thereafter upon request
Credit Support Document (as applicable) of the other party
PART 4
MISCELLANEOUS
(1) ADDRESS FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
(a) Address for notice or communications to Party A:
Any notice relating to a particular Transaction shall be
delivered to the address or facsimile or telex number
specified in the Confirmation of such Transaction. Any notice
delivered for purposes of Sections 5 and 6 of this Agreement
shall be delivered to the following address:
JPMorgan Chase Bank
Attention: Head of Legal Department-Capital Markets Group
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: (000) 000-0000
Address for notice or communications to Party B:
Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Manager, Securitisation
Telephone: (00) 0000 0000
Facsimile: (00) 0000 0000
Telex: N/A
Address for Notices to the Manager:
Xxxxx 00, 00 Xxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Middle Office Compliance Manager
Telephone: (00) 0000 0000
Facsimile: (00) 0000 0000
Telex: N/A
(2) PROCESS AGENT. For the purpose of Section 13(c):
Party A appoints as its Process Agent: [XX Xxxxxx to confirm]. Party B
appoints as its Process Agent: CT Corporation, 000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx XX 00000. Phone: 000 000 0000. Fax: 000 000 0000
(3) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(4) MULTIBRANCH PARTY. For the purpose of Section 10 of this Agreement:
Party A is a Multibranch Party and may act through any Office specified
in a Confirmation.
Party B is not a Multibranch Party
(5) CALCULATION AGENT. The Calculation Agent is Party A, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(6) CREDIT SUPPORT DOCUMENTS.
(i) In relation to Party A: Nil
(ii) In relation to Party B: Security Trust Deed
(7) CREDIT SUPPORT PROVIDER.
Not Applicable.
(8) GOVERNING LAW: This Agreement and each Confirmation will be governed
by, and construed and enforced in accordance with, the law of the State
of New York (without reference to its choice of law doctrine) and each
party herby submits to the jurisdiction of the courts of the State of
New York.
(9) NETTING OF PAYMENTS. Section 2(c)(ii) of this Agreement will apply.
(10) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
(11) All payments to be made to Party B under this Agreement by Party A must
be made to the US$Account.
PART 5
OTHER PROVISIONS
[(1) MUTUAL SUSPENSION CLAUSE. Section 2(a)(iii)(1) of the Agreement is
replaced in its entirety with the following:
"(1) the condition precedent that no Event of Default, Potential Event
of Default or Additional Termination Event with respect to the other
party has occurred and is continuing,".]
(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."
(3) In Section 2(a)(ii), after "freely transferable funds" add the words
and "free of any set-off, counterclaim, deduction or withholding
(except as expressly provided in this Agreement).
(4) Insert new Sections 2(a)(iv) and 2(a)(v) as follows;
(a) 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 it 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).
(b) Where:
(i) 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
(ii) 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:
(iii) the Party B Payment; or
(iv) 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).
(8) EXCHANGE OF CONFIRMATIONS. For each Transaction entered into hereunder,
Party A shall promptly send to Party B a Confirmation, via telex or
facsimile transmission. Party B agrees to respond to such
Confirmation within 10 Local Business Days, either confirming agreement
thereto or requesting a correction of any error(s) contained therein.
Failure by Party B to respond within such period shall not affect the
validity or enforceability of such Transaction and shall be deemed to
be an affirmation of the terms contained in such Confirmation, absent
manifest error. The parties agree that any such exchange of telexes or
facsimile transmissions shall constitute a Confirmation for all
purposes hereunder.
(9) WAIVER OF JURY TRIAL. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury
in respect of any suit, action or proceeding relating to this Agreement
or any Credit Support Document. Each party (i) certifies that no
representative, agent or attorney of the other party or any Credit
Support Provider has represented, expressly or otherwise, that such
other party would not, in the event of such a suit, action or
proceeding, seek to enforce the foregoing waiver and (ii) acknowledges
that it and the other party have been induced to enter into this
Agreement and provide for any Credit Support Document, as applicable,
by, among other things, the mutual waivers and certifications in this
Section.
(10) TELEPHONIC RECORDING. Each party (i) consents to the recording of the
telephone conversations of trading, marketing and operations personnel
of the parties and their Affiliates in connection with this Agreement
or any potential Transaction and (ii) agrees to obtain any necessary
consent of, and give notice of such recording to, such personnel of it
and its Affiliates.
(11) FURTHER REPRESENTATIONS. Party B 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:
(a) TRUST VALIDLY CREATED. The Trust has been validly created and
is in existence at the date of this Agreement.
(b) SOLE TRUSTEE. Party B has been validly appointed as trustee of
the Trust and is presently the sole trustee of the Trust.
(c) 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.
(d) 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.
(e) GOOD TITLE. Party B is the equitable owner of the assets of
the Trust and has power under the Trust Deed to mortgage or
charge them in the manner provided in the Security Trust Deed
and, subject only to the Trust Deed, the Security Trust Deed
and any Security Interest permitted under the Trust Deed, as
far as Party B is aware, those assets are free from all other
Security Interests.
(12) CONTRACTING AS PRINCIPAL Party A will enter into all Transactions as
principal and not otherwise and Party B will enter into all
Transactions in its capacity as trustee of the Trust and not
otherwise."
(13) CONFIRMATIONS. For the purposes of Section 9(e)(ii) Party B (either
itself or through the Manager) will, on or promptly after the relevant
Trade Date, send Party A a Confirmation confirming that Transaction and
Party A must promptly then confirm the accuracy of and sign and return
or request the correction of such Confirmation. Notwithstanding the
provisions of Section 9(e)(ii), each Confirmation in respect of a
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 enforcement of any Swap Transaction.
(14) 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:
(i) exchange controls do not constitute an Illegality or Event of
Default or Termination Event 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
(ii) delivery by Party B of Australian dollar amounts required to
be paid by it under any relevant Confirmation to the bank
account 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."
(15) Add a new Section 6(aa):
"(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) [Reserved]
(iii) PARTY A'S LIMITED RIGHTS IN RELATION TO TAX EVENT:
(a) Notwithstanding Part 1(c)(iii) of this
Schedule, Party A may designate an Early
Termination Date if it is an Affected Party
following a Tax Event but only if all Notes
will be redeemed at their Invested Amount
(or, if the Noteholders by Extraordinary
Resolution have so agreed, at their Stated
Amount) together with accrued interest to
(but excluding) the date of redemption.
(b) If a Tax Event occurs where Party A is the
Affected Party and Party A is unable to
transfer all its rights and obligations under
this Agreement and each Transaction to an
Affiliate pursuant to Section 6(b)(ii), Party
A may, at its cost, transfer all its rights,
powers and privileges and all its unperformed
and future obligations under this Agreement
and each Transaction to any person provided
that:
(A) each Designated Rating Agency has
confirmed in writing that the
transfer will not result in a
reduction, qualification or
withdrawal of the credit ratings
then assigned by them to the
relevant Notes; and
(B) that person has a long term credit
rating assigned by each of the
Designated Rating Agencies of at
least the long term credit rating
assigned by that Designated Rating
Agency to Party A as at the date of
this Agreement and the Standby Swap
Provider provides its written
consent to the transfer.
(iv) 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, DLJ 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
Notes".
(n) In Section 6(b)(ii), add the words "so long as the transfer in respect
of that Transaction would not lead to a rating downgrade of any rated
debt of Party B that is secured under the Security Trust Deed" after
the words "ceases to exist" at the end of the first paragraph.
(o) 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.
(p) 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."
(16) RELATIONSHIP BETWEEN PARTIES. The following representation shall be
inserted as a new Section 3(g) of this Agreement:
"(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.
"(g) 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 section (5)),
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)."
(17) ISDA DEFINITIONS. Reference is hereby made to the 2000 ISDA Definitions
(the "2000 Definitions") and the 1998 FX and Currency Option
Definitions (the "FX Definitions")
(collectively the "ISDA Definitions") each as published by the
International Swaps and Derivatives Association, Inc., which are hereby
incorporated by reference herein. Any terms used and not otherwise
defined herein which are contained in the ISDA Definitions shall have
the meaning set forth therein.
(18) SCOPE OF AGREEMENT. Notwithstanding anything contained in this
Agreement to the contrary, any transaction which may otherwise
constitute a "Specified Transaction" for purposes of this Agreement
which has been or will be entered into between the parties shall
constitute a "Transaction" which is subject to, governed by, and
construed in accordance with the terms of this Agreement, unless any
Confirmation with respect to a Transaction entered into after the
execution of this Agreement expressly provides otherwise.
(19) INCONSISTENCY. In the event of any inconsistency between any of the
following documents, the relevant document first listed below shall
govern: (i) a Confirmation; (ii) the Schedule and an ISDA Credit
Support Annex (as applicable); (iii) the ISDA Definitions; and (iv) the
printed form of ISDA Master Agreement and ISDA Credit Support Annex (as
applicable). In the event of any inconsistency between provisions
contained in the 2000 Definitions and the FX Definitions, the FX
Definitions shall prevail.
(20) [Reserved]
(21) Section 14 of the Agreement is modified as follows :
(a) New definitions are inserted as follows:
"FUTURE OBLIGATIONS" means all payment or delivery obligations
(whether the underlying obligation was absolute or contingent
and assuming the satisfaction of each applicable condition
precedent) of a party under Section 2(a)(i) in respect of a
Terminated Transaction or group of Terminated Transactions,
that would, but for the occurrence of the relevant Early
Termination Date, have been required after that date. (For
this purpose, Unpaid Amounts in respect of the Terminated
Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that
would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition
precedent) after that Early Termination Date is to be
included).
"SECURITY TRUST DEED" means the Security Trust Deed dated on
or about the date of this Agreement between Party B as issuing
trustee, Crusade Management Limited as Manager, P.T. Limited
as security trustee and Wilmington Trust Company as note
trustee.
"TRUST DEED" means the Master Trust Deed dated 14 March 1998
as amended by the Crusade Global Trust No. 2 of 2001
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.
"AGENCY AGREEMENT"
"ASSET"
"CLASS A NOTES"
"BANK"
"CURRENCY SWAP"
"DESIGNATED RATING AGENCY"
"EXTRAORDINARY RESOLUTION"
"FINAL MATURITY DATE"
"HEDGE AGREEMENT"
"INSOLVENCY EVENT"
"INVESTED AMOUNT"
"MORTGAGED PROPERTY"
"NOTES"
"NOTEHOLDER"
"NOTE TRUSTEE"
"PRINCIPAL PAYING AGENT"
"PURCHASED RECEIVABLES"
"SECURITY TRUST DEED"
"SECURITY TRUSTEE"
"STATED AMOUNT"
"SUPPORT FACILITY PROVIDER"
"TRUST"
"TRUST EXPENSE"
(b) The definition of "Market Quotation" is replaced with:
"MARKET QUOTATION" means with respect to one or more
Terminated Transactions and a party making the determination,
an amount determined on the basis of quotations from Reference
Market-makers. Each quotation will take into account any
existing Credit Support Documents with respect to the
obligations of such party.
Each quotation will, at the option of the party making the
determination, be determined as either:
(i) the amount, if any, that would be paid to such party
(expressed as a negative number) or any such party
(expressed as a positive number) in consideration of
an agreement between such party and the quoting
Reference Market-maker to enter into a transaction
(the "Replacement Transaction") that would have the
effect of preserving for such party the economic
equivalent of the Future Obligations of both parties;
or
(ii) the present value (calculated using commercially
reasonable discount rates) of the difference or the
differences on each Scheduled Payment Date that would
have occurred after the Early Termination Date between
(a) the Future Obligations of the other party to the
Terminated Transaction or Termination Transactions and
(b) the obligations that a quoting Reference
Market-maker would have under a transaction
("Replacement Transaction") that would preserve for
the party making the determination that party's Future
Obligations, with such present value being positive if
(a) is greater than (b) and negative if (a) is less
than (b).
The Replacement Transaction would be subject to such
documentation as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination
(or its agent) will request each Reference Market-maker to
provide it's quotation to the extent reasonably practicable as
of the same day and time (without regard to different time
zones) on or as soon as reasonably practicable after the
relevant Early Termination Date. The day and time as of which
the quotation or quotations are to be obtained will be
selected in god faith by the party obliged to make a
determination under Section 6(e), and, if each party is so
obliged, after consultation with the other.
If more than three quotations are provided, the Market
Quotation will be the arithmetic mean of the quotations,
without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the
Market Quotation will be the quotation remaining after
disregarding the highest and lowest quotations. For this
purpose, if more than one quotation has the same highest value
or lowest value, then one of such quotations shall be
disregarded. If fewer than three quotations are provided, it
will be deemed that the Market Quotation in respect of such
Terminated Transaction or group of Terminated Transactions
cannot be determined."
(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",
(22) New Sections 15, 16 and 17 are added as follows:
"15. TRUSTEE PROVISIONS
(a) (A) General
Clause 30 of the Trust Deed applies to the
obligations and liabilities of the Trustee under this
agreement. Clause 16 of the Security Trust Deed
applies to govern Party A's priority to monies
received from the sale of trust Assets or other
enforcement of the Charge under the Security Trust
Deed (as defined in the Security Trust Deed).
(B) Limitation of Trustee's Liability
(1) The Trustee enters into this agreement only
in its capacity as trustee of the Trust and
in no other capacity (except where the
Transaction Documents provide otherwise).
Subject to paragraph (3) below, a liability
arising under or in connection with this
agreement or the Trust can be enforced
against the Trustee only to the extent to
which it can be satisfied out of the assets
and property of the Trust which are
available to satisfy the right of the
Trustee to be exonerated or indemnified for
the liability. This limitation of the
Trustee's liability applies despite any
other provision of this agreement and
extends to all liabilities and obligations
of the Trustee in any way connected with any
representation, warranty, conduct, omission,
agreement or transaction related to this
agreement or the Trust.
(2) Subject to subparagraph (3) below, no person
(including any Relevant Party) may take
action against the Trustee in any capacity
other than as trustee of the Trust or seek
the appointment of a receiver (except under
this agreement), or a liquidator, an
administrator or any similar person to the
Trustee or prove in any liquidation,
administration or arrangements of or
affecting the Trustee.
(3) The provisions of this section 15 shall not
apply to any obligation or liability of the
Trustee to the extent that it is not
satisfied because under a Transaction
Document or by operation of law there is a
reduction in the extent of the Trustee's
indemnification or exoneration out of the
Assets of the Trust as a result of the
Trustee's fraud, negligence, or Default.
(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 the
Trustee (including any related failure to
satisfy its obligations under this
agreement) will be considered fraud,
negligence or Default of the Trustee for the
purpose of 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 the Trustee
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 the Trustee,
the Security Trustee and the Noteholders
must ensure that no attorney, agent,
delegate, receiver or receiver and manager
appointed by it in accordance with this
agreement has authority to act on behalf of
the Trustee in a way which exposes the
Trustee to any personal liability and no act
or omission of any such person will be
considered fraud, negligence, or Default of
the Trustee for the purpose of 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 the Trustee
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 Law (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."
"16. REPLACEMENT CURRENCY SWAP
(a) If this Agreement or any Transaction under this
Agreement is terminated, Party B must, 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 the
Replacement Currency Swap will not cause a reduction
or withdrawal of the ratings of the Notes; 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.
(b) If Party B enters into the Replacement Currency Swap
pursuant to paragraph (a) 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 Party B enters into a Replacement Currency Swap
pursuant to paragraph (a), Party B must direct Party
A to pay any Settlement Amount payable by Party A to
Party B on termination of this Agreement or any
Transaction directly to the Replacement Currency Swap
provider as payment and to the extent of any premium
payable by Party B to enter into the Replacement
Currency Swap, in satisfaction of and to the extent
of Party A's obligation to pay that part of the
Settlement Amount to Party B.
"(17) 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."
(24) New Sections 18 and 19 are added as follows:
"18. RATINGS DOWNGRADE
(i) If, as a result of the withdrawal or downgrade of its
credit rating by a Designated Rating Agency, Party A
has:-
(A) a long term credit rating of less than AA- by
S&P and a short term credit rating of less
than A-1+ by S&P; or
(B) a long term credit rating of less than A2 by
Moody's and a short term credit rating of
less than P-1 by Moody's; or
(C) a long term rating of less than AA- by Fitch
and a short term credit rating of at least
F1+ by Fitch,
(and, in the case of Moody's or Fitch, such a
withdrawal or downgrade would, except for this Section
adversely affect the rating of the Notes), Party A
shall within:
(D) 30 Business Days of a downgrade of its long
term credit rating by S&P to not lower than
A- together with a downgrade of its short
term credit rating by S&P to not lower than
A-1, or the downgrade of its long term credit
rating by Moody's to not lower than A3, or a
downgrade of its long term credit rating by
Fitch to not lower than A- together with a
downgrade of its short term credit rating by
Fitch to not lower than F1; or
(E) 5 Business Days of any other such withdrawal
or downgrade and for the avoidance of doubt,
if Party A's long term credit rating by S&P
is not lower than A- and Party A's short term
credit rating by S&P is not lower than A-1,
and Party A's long term credit rating by
Xxxxx'x is not lower than A3, and Party A's
long term credit rating by Fitch is not lower
than A- and Party A's short term credit
rating by Fitch is not lower than F1, then
paragraph (D) above shall apply and not this
paragraph (E),
(or, in either case, such greater period as is agreed
to in writing by the relevant Designated Rating
Agency) at its cost alone and at its election:
(F) (in the case of paragraph (i)(D) only) lodge
cash collateral in US$ in the Swap
Collateral Account (as defined in paragraph
(v)(C) below) in an amount equivalent to the
Cash Collateral Amount as defined in Section
(18)(v)(A) below. Any interest earned on it
is payable to Party A. Party A will pay any
costs associated with lodgment of the
collateral; or
(G) at the cost of Party A or in return for any
monies payable to Party A in accordance with
Clause 5.21 of the Supplementary Terms
Notice (as the case may be), enter into an
agreement novating this Agreement to a
replacement counterparty proposed by any of
Party A, Party B or the Manager (if any) and
in respect of which each Designated Rating
Agency has confirmed will result in there
not being a withdrawal or downgrade of any
credit rating, assigned by it, to the Notes;
or
(H) enter into such other arrangements which
each Designated Rating Agency has confirmed
will result in there not being a withdrawal
or downgrade of any credit rating assigned
by it to the Notes.
(ii) Where Party A procures a replacement counterparty in
accordance with Section 18(i)(G) above, each party to
this Agreement shall do all things reasonably
necessary to novate the relevant rights and
obligations to the replacement counterparty.
(iii) Where Party B has not established a Swap Collateral
Account and Party A is required to deposit monies
into a Swap Collateral Account, the Manager must
direct Party B to establish, as soon as is
practicable, and maintain, in the name of Party B a
Swap Collateral Account.
(iv) Party B may only make withdrawals from the Swap
Collateral Account if directed to do so by the
Manager and then only for the purpose of:
(A) novating obligations under this Agreement in
accordance with Section 18(i)(G) above or
entering into any other arrangement in
accordance with Section 18(i)(H) above;
(B) refunding to Party A the amount of any
reduction in the Swap Collateral Amount,
from time to time and providing the
Designated Rating Agencies have confirmed,
in writing, that such refund will not result
in a withdrawal or downgrade of any credit
rating assigned by it to the Notes;
(C) withdrawing any amount which has been
incorrectly deposited into the Swap
Collateral Account;
(D) paying financial institutions duty, bank
accounts debit tax or other equivalent Taxes
payable in respect of the Swap Collateral
Account; or
(E) 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.
(v) For the purpose of Sections 18 and 19:
(A) the CASH COLLATERAL AMOUNT shall be an
amount equal to the greater of the
following:
(1) zero;
(2) CCR; and
(3) an amount acceptable to Moody's and
Fitch and sufficient to maintain
the credit rating assigned to the
Notes by Moody's and Fitch
immediately prior to the review of
Party A's credit rating; and
(B) APPROVED BANK means a Bank which has a
short- term rating of at least A-1+ (S&P),
P-1 (Moody's) and F1 (Fitch).
(C) SWAP COLLATERAL ACCOUNT means an account
established by Party B with an Approved Bank
outside Australia.
(vi) For the purpose of Section 18(v)(A), the formula for
calculating CCR is as follows.
CCR = CR x 1.030
where
CR means MTM + VB
MTM means the xxxx-to-market value of the
Transactions outstanding under the Agreement. Party A
will have to xxxx the Transactions to market and post
collateral on a weekly basis, with a cure period of 3
days. The xxxx-to-market value should reflect the
higher of 2 bids from counterparties that will be
eligible and willing to assume Party A's role in the
Transactions in place of Party A. The xxxx-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+ 1.05 1.75 3.0
A 1.35 2.45 4.5
A-1* 1.5 3.15 6.0
* The A-1 rating will be taken to be the counterparty's
short term rating.
Please confirm your agreement to the terms of the foregoing Schedule by signing
below.
JPMORGAN CHASE BANK PERPETUAL TRUSTEES CONSOLIDATED
LIMITED as trustee of Crusade Global
Trust No. 1 of 2002
By: By:
---------------------------- ----------------------------
Name: Name:
Title: Title:
CRUSADE MANAGEMENT LIMITED
By:
----------------------------
Name:
Title: