ISDA
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
Master Agreement
Dated as of
Between
CREDIT SUISSE FIRST BOSTON INTERNATIONAL (ABN 40 062 787 106)
("CSFBI" AND "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")
AND
DLJ INTERNATIONAL CAPITAL ("DLJ" AND "STANDBY SWAP PROVIDER")
PART 1
TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" is not applicable in relation to Party A and Party
B.
(b) "SPECIFIED TRANSACTION" will have the meaning set forth in Section 14.
(c) (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(m)(iii) of this Schedule).
(d) 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, Party B or DLJ (the party the subject of the Insolvency
Event will be the Defaulting Party); or ". In relation to Party A
or DLJ, the events described in the definition of Insolvency Event
(under the Security Trust Deed) shall apply to it as if Party A or DLJ
(as the case may be) were 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, the Manager and DLJ
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, Party B and DLJ agree to execute
such a novation agreement in standard ISDA form.
(e) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a):
will not apply to Party A.
will not apply to Party B.
(f) 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.
(g) "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.
(g) "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
(a) 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;
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(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.
(b) 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
(a) For the purposes of Section 4(a)(i) and (ii) of this Agreement each
party agrees to deliver the following documents as applicable in
accordance with the following:
------------------------ ------------------------------- ------------------------ ------------------
PARTY REQUIRED TO DOCUMENT DATE BY WHICH TO BE COVERED BY
DELIVER DELIVERED SECTION 3(D)
REPRESENTATIONS
------------------------ ------------------------------- ------------------------ ------------------
Party B and the Manager a list of authorised On execution and yes
signatories for the party and delivery of this
evidence satisfactory in form Agreement or any
and substance to the other relevant Confirmation
party of the authority of the and when the list is
authorised signatories of the updated and at any
party to execute this time on the request of
Agreement and each the other party.
Confirmation on behalf of
Party B
------------------------ ------------------------------- ------------------------ ------------------
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------------------------ ------------------------------- ------------------------ ------------------
Party B a United States Internal Upon (A) the earlier yes
Revenue Service Form W-8 BEN, of: (1) the first
or any successor form Payment Date; (2)
promptly upon
reasonable demand by
Party A; and
(3)learning that any
United States Internal
Revenue Service Form
W-8 BEN previously
provided by Party B has
become obsolete or
incorrect; and (B)prior
to the first Payment
Date every three
calendar years
thereafter.
------------------------ ------------------------------- ------------------------ ------------------
Party A Party A shall deliver On execution and yes
evidence satisfactory in form delivery of this
and substance to the other Agreement or any
party of the authority of the relevant Confirmation.
signatories of the party to
create this Agreement and
each confirmation on behalf
of Party A (including, but
not limited to, at the
request of Party B, an
incumbency certificate or a
Power or Attorney)
------------------------ ------------------------------- ------------------------ ------------------
Party B Legal opinions as to the Before the entering yes
validity and enforceability into of any
of the obligations of Party B Transaction.
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
------------------------ ------------------------------- ------------------------ ------------------
Manager Copies of the Trust Deed and On execution and Yes
Security Trust Deed certified delivery of this
to be true copies by two Agreement
authorised signatories of the
Manager
------------------------ ------------------------------- ------------------------ ------------------
Manager A copy of any document Promptly upon any such Yes
amending or varying the terms document becoming
of the Master Trust Deed or effective in
the Security Trust Deed accordance with its
certified to be a true copy terms
by two authorised
signatories of the Manager
------------------------ ------------------------------- ------------------------ ------------------
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PART 4
MISCELLANEOUS
(a) ADDRESS FOR NOTICES: For the purpose of Section 12(a) of this
Agreement:
(i) Address for Notices to CSFBi as Party A (other than by
facsimile):
Address: One Xxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxxx
Attention: (1) Head of Credit Risk Management;
(2) Managing Director - Operations
Department;
(3) Director - Legal and Compliance
Department.
Telex No.: 264521
Answerback: CSFBI G
(For all purposes.)
For the purpose of facsimile notices or communications under
this Agreement (other than a notice or communication under
Section 5 or 6):-
Facsimile No.: 020 7888 2686
Attention: Managing Director - Legal and Compliance
Department
Telephone number for oral confirmation of receipt of facsimile
in legible form: 020 7888 2028. Designated responsible
employee for the purposes of Section 12(a)(iii): Senior Legal
Secretary
(ii) Address for Notices to Party B:
Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Manager, Securitisation
Telephone: (00) 0000 0000
Facsimile: (00) 0000 0000
Telex: N/A
(iii) 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
(iv) Address for Notices to DLJ as Standby Swap Provider and (on
and from the Novation Date) as Party A:
23rd Floor, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
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Attention: Director - Legal and Compliance Department
Telephone: x(000) 000 0000
Facsimile: x(000) 000 0000
Telex: N/A
(b) PROCESS AGENT: For the purposes of Section 13(c) of this Agreement:
CSFBi as Party A appoints as its Process Agent: Credit Suisse First
Boston Corporation, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX00000
(Attention: General Counsel, Legal and Compliance Department)
Party B appoints as its Process Agent: CT Corporation, 000 Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx XX 00000. Phone: 000 000 0000. Fax: 212
000 0000
DLJ as Standby Swap Provider and (on and from the Novation Date) as
Party A appoints as its Process Agent: Not Applicable
(c) OFFICES: The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY: For the purposes 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, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) CREDIT SUPPORT DOCUMENT: Details of any Credit Support Document:
(i) In relation to CSFBi as Party A: Nil
(ii) In relation to Party B: Security Trust Deed.
(iii) In relation to DLJ as (on and from the Novation Date) Party A:
Guarantee
(g) CREDIT SUPPORT PROVIDER:
(i) In relation to CSFBi as Party A: DLJ
(ii) In relation to Party B: Nil
(iii) In relation to DLJ as (on and from the Novation Date) Party
A: Credit Suisse First Boston (USA), Inc.
(h) 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.
(i) NETTING OF PAYMENTS: Sub-paragraph (ii) of Section 2(c) of this
Agreement will apply.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. For the purposes of Section 3(c), each of Party A, Party B
and DLJ is deemed not to have any Affiliates.
(k) All payments to be made to Party B under this Agreement by Party A or
DLJ must be made to the US$ Account. Any payment so made will, to the
extent of that payment, satisfy the relevant party's obligation to
Party B in respect of that payment.
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PART 5
OTHER PROVISIONS
(a) 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."
(b) 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).
(c) Insert new Sections 2(a)(iv) and 2(a)(v) 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 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).
(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."
(d) add the following new sentence to Section 2(b):
"Each new account so designed must be in the same tax jurisdiction as
the original account."
(e) 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";
(f) 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).
(g) 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 the assets of the Trust (other than as
provided in the Security Trust Deed), in the case of Party B.
(h) 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:
7
(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 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.
(i) In Section 4 add a new paragraph as follows:
(f) 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."
(j) 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 and DLJ a Confirmation confirming that
Transaction and Party A and DLJ 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.
(k) 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.
(l) Section 6 is amended by replacing "20 days" in line 3 with "10 Local
Business Days", and deleting the words "all outstanding Transactions"
where they appear and inserting instead of words "the Relevant Swap
Transaction".
(m) 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) CONSULTATION: Each party may only designate an Early
Termination Date following prior consultation with
the other party as to the timing of the Early
Termination Date. Subject to its duties under the
Trust Deed and the Supplementary Terms Notice, Party
B may exercise any rights in its capacity as holder
of the Purchased Receivables only on the instructions
of the Note Trustee and only after consultation
between Party A and the Note Trustee.
8
(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 CSFBi 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."
(q) Section 14 of the Agreement is modified as follows :
(i) 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
9
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).
"NOVATION DATE" means the date upon which the obligations of
CSFBi as Party A under this Agreement and each Transaction are
novated to DLJ as Standby Swap Provider pursuant to Section
19.
"RELEVANT SWAP TRANSACTION" means, in relation to Class A
Notes, each Transaction which is a Currency Swap for Class A
only.
"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, Perpetual
Trustee Company 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"
(ii) 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:
(1) 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
10
(2) 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."
(r) TRUST DEED AND SECURITY TRUST DEED: The parties acknowledge and agree
and for the purposes of the Trust Deed and Security Trust Deed
(a) all Transactions under this Agreement are "Hedge Agreements";
(b) Party A and DLJ are "Support Facility Providers",
(s) ISDA DEFINITIONS: This Agreement, each Confirmation and each
Transaction are subject to the 2000 ISDA Definitions (published by the
International Swap & 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.
(t) INCONSISTENCY: In the event of any inconsistency between any two or
more of the following documents, they shall take precedence over each
other in the following descending order:
(i) any Confirmation;
(ii) the Schedule to the Master Agreement;
(iii) the other provisions of the Master Agreement;
(iv) the ISDA Definitions.
(u) 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 purposes of
interpreting the 2000 ISDA Definitions.
(v) New Sections 15, 16, 17 and 18 are added as follows:
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"15. TRUSTEE PROVISIONS
(a) Each party acknowledges and agrees that Party B
enters into this Agreement in its capacity as trustee
of the Trust and in no other capacity. 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). Clauses 1.2(p) and 30.13 of the Trust Deed
apply to this Agreement as if set out in full, with
references to Deed being construed as references to
Agreement.
(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. SEGREGATION:
The liability of Party B under this Agreement is several and
is separate in respect of each Relevant Swap Transaction. The
failure of Party B to perform its obligations in respect of
any Relevant Swap Transaction does not release Party B from
its obligations under this Agreement or under any other
Relevant Swap Transaction in respect of any other Notes issued
by Party B. Nothing in this Agreement affects the respective
priority rankings of claims against the Mortgaged Property
under the Security Trust Deed. Without limiting the generality
of the foregoing, the provisions of this Agreement have effect
separately and severally in respect of each Relevant Swap
Transaction and are enforceable by or against Party B as
though a separate agreement applied between Party A, Party B,
the Manager and the Standby Swap Provider for each Relevant
Swap Transaction, so that (among other things):
(i) this Agreement together with each Confirmation
relating to a Relevant Swap Transaction will form a
single separate agreement between Party A, Party B,
the Manager and the Standby Swap Provider and
references to the respective obligations (including
references to payment obligations generally and in
the context of provisions for the netting of payments
and the calculation of amounts due on early
termination) of Party A, Party B, the Manager and the
Standby Swap Provider shall be construed accordingly
as a several reference to each mutual set of
obligations arising under each such
12
separate agreement between Party A, Party B, the
Manager and the Standby Swap Provider;
(ii) representations made and agreements entered into by
the parties under this Agreement are made and entered
separately and severally in respect of each Relevant
Swap Transaction and may be enforced separately and
severally in respect of each Relevant Swap
Transaction;
(iii) rights of termination, and obligations and
entitlements consequent upon termination, only accrue
to Party A against Party B separately and severally
in respect of each Relevant Swap Transaction, and
only accrue to Party B against Party A separately and
severally in respect of each Relevant Swap
Transaction; and
(iv) the occurrence of an Event of Default or Termination
Event in respect of a Relevant Swap Transaction does
not in itself constitute an Event of Default or
Termination Event in respect of any other Relevant
Swap Transaction.
17. 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 17(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.
18. NOVATION
DLJ may at any time novate its rights, powers and privileges
and all its unperformed and future obligations as Standby Swap
Provider under this Agreement and each Transaction to any
Affiliate of Credit Suisse First Boston (the "New
Counterparty") provided that:
(a) the New Counterparty is obligated to file periodic
reports with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934 or
has the benefit of a guarantee from CSFB (USA), Inc.;
13
(b) the New Counterparty provides a legal opinion to
Party B that this Agreement, as novated, is valid,
binding and enforceable (subject to equitable
doctrines and creditors' rights generally); and
(c) the Designated Ratings Agencies confirm that the
novation to the New Counterparty will not cause a
reduction or withdrawal of the ratings of the Notes.
Party B and the Manager will execute all such documents as are
reasonably necessary to give effect to that novation. After
such novation:
(i) DLJ's rights (except those which have accrued prior
to any such novation), powers, privileges and
obligations under this Agreement and each Transaction
terminate;
(ii) DLJ will be taken to have transferred its rights,
powers and privileges under this Agreement and each
Transaction to the New Counterparty and the New
Counterparty will be taken to have assumed
obligations equivalent to those DLJ had under this
Agreement and each Transaction;
(iii) Party B will be taken to have released DLJ from all
its unperformed and future obligations under this
Agreement and each Transaction; and
(iv) This Agreement and the Confirmation relating to each
transaction shall be construed as if the New
Counterparty was a party to it in place of DLJ".
(w) TELEPHONE RECORDING: Each party:
(i) consents to the recording of the telephone conversations of
trading and marketing personnel of that party and its
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.
(x) 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 the Transaction):-
(a) NON-RELIANCE. It is acting for its own account (or, 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 judgement and upon advise 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.
(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 that Transaction. It is
also capable of assuming, and assumes, the risks of that
Transaction.
(y) 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.
(z) New Sections 19 and 20 are added as follows:
14
"19. 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 (19)(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, DLJ or the Manager (if any) and approved by
DLJ 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 19(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.
15
(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 19(i)(G) above or
entering into any other arrangement in
accordance with Section 19(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 this Part 5(z):
(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 19(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
16
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 RATING MATURITIES UP TO MATURITIES UP TO MATURITIES MORE THAN
5 YEARS 10 YEARS 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.
20. STANDBY CURRENCY SWAP PROVIDER
(a) If CSFBi as Party A fails to make, when due, any
payment required to be made by it to Party B under a
Transaction (after giving effect to any applicable
grace period) then, as soon as Party B becomes
actually aware of that failure, Party B must notify
CSFBi as Party A and DLJ in writing of such failure,
the amount of the defaulted payment and the basis of
calculation of the defaulted payment.
(b) If DLJ receives a notice from the Principal Paying
Agent under clause 3.7 of the Agency Agreement or
from Party B under Section 20(a) on or before 11.00
am (New York time) on the relevant Payment Date, it
must pay to Party B the amount then owing by CSFBi as
Party A to Party B under that Transaction no later
than 1.30pm (New York time) on the relevant Payment
Date. If DLJ receives such notice after 11.00 am (New
York time) on the relevant Payment Date, DLJ must
make the payment not later than 1.30 pm (New York
time) on the next Business Day.
(c) DLJ shall make 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.
(d) DLJ's obligations under this Section 20 with respect
to a Transaction commence on the Effective Date
(specified in the Confirmation) and terminate on the
earlier of the Final Maturity Date and the date on
which the Transaction is otherwise terminated in
accordance with its terms.
(e) Where CSFBi as Party A is required to comply with
Section 19 and fails to do so within the relevant
time, Party B must, as soon as practicable and, in
any event no later than the Business Day following
such failure, notify CSFBi as Party A and DLJ in
writing of such failure.
(f) If:
(i) CSFBi as Party A defaults in its payment
obligations and DLJ has complied with its
obligations under Section 20(b); or
(ii) CSFBi as Party A defaults in complying with
its obligations under Section 19 and DLJ has
received notice of such failure pursuant to
Section 20(e),
then:
17
(A) CSFBi's rights, powers, privileges and obligations as
Party A under this Agreement and each Transaction
terminate other than its rights, powers, privileges
and obligations pursuant to Section 20(g);
(B) subject to Section 20(f)(C), CSFBi will be taken to
have transferred its rights powers and privileges as
Party A under this Agreement and each Transaction to
DLJ and DLJ will be taken to have assumed obligations
equivalent to those that CSFBi as Party A had under
this Agreement and each Transaction;
(C) Party B and DLJ will be taken to have released CSFBi
as Party A from all its unperformed and future
obligations under this Agreement and each Transaction
other than its present and future obligations
pursuant to Section 20; and
(D) this Agreement and the Confirmation relating to each
Transaction shall be construed as if DLJ was a party
to it in place of Party A except that:
(i) references to "CSFBi as Party A" will not
apply to DLJ as Party A;
(ii) without limiting Section 20(f)(D)(i), this
Section 20 will not apply to DLJ as Party A.
(g) Following a novation under this Section 20, CSFBi as
Party A must pay DLJ or DLJ must pay CSFBi as Party A
an amount (the "Novation Settlement Amount") being:
(i) in the case of payment by CSFBi as Party A to
DLJ, an amount equal to the amount (if any)
that would be payable by Party A to Party B;
and
(ii) in the case of payment by DLJ to CSFBi as
Party A, an amount equal to the amount (if
any) that would be payable by Party B to
Party A,
as if each Transaction had been terminated, calculated
and payable in accordance with Sections 6(d) and (e)
on the basis that:
(i) the Novation Date is the Early Termination
Date and the Novation Settlement Amount is
due and payable on the day that notice of the
amount payable is effective;
(ii) the Early Termination Date has resulted from
an Event of Default in respect of which Party
A is the Defaulting Party; and
(iii) the Termination Currency is U.S. Dollars.
(h) In consideration of DLJ agreeing, at the request of
CSFBi as Party A, to act as Standby Swap Provider,
CSFBi agrees to indemnify DLJ on demand against any
loss, charge, liability or expense that DLJ may
sustain or incur as a direct or indirect consequence
of CSFBi as Party A failing to comply with its
obligations under this Agreement or any Transaction or
the Manager requiring DLJ to make a payment under this
Agreement or any Transaction".
18
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.
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By:
-----------------------------------
Name:
-----------------------------------
Date:
-----------------------------------
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
AS TRUSTEE OF CRUSADE GLOBAL TRUST NO. 2 OF 2001
By: By:
----------------------------------- ------------------------------------
Name: Name:
----------------------------------- ------------------------------------
Title: Title:
----------------------------------- ------------------------------------
Date: Date:
----------------------------------- ------------------------------------
CRUSADE MANAGEMENT LIMITED
By: By:
----------------------------------- ------------------------------------
Name: Name:
----------------------------------- ------------------------------------
Title: Title:
----------------------------------- ------------------------------------
Date: Date:
----------------------------------- ------------------------------------
DLJ INTERNATIONAL CAPITAL
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Date:
-----------------------------------
19
