SCHEDULE
to the
MASTER AGREEMENT
dated as of ____________, _____
between
Barclays Bank PLC ("Party A")
and
Perpetual Trustees Consolidated Limited (ABN 81 004 029 841)
in its capacity as trustee of the Crusade Global Trust No. 2 of 2004
("Party B")
and
Crusade Management Limited (ABN 90 072 715 916) ("Manager")
PART 1
TERMINATION PROVISIONS AND CERTAIN OTHER MATTERS
(1) "SPECIFIED ENTITY" is not applicable in relation to Party A and Party
B.
(2) "SPECIFIED TRANSACTION" is not applicable.
(3) (i) Sections 5(a)(ii), (iii), (iv), (v), (vi), (viii), 5(b)(ii), (iii)
and (iv) will not apply to Party A
or Party B.
(ii) Replace Section 5(a)(i) with:
"(i) FAILURE TO PAY OR DELIVER. Failure by the party to
make when due any payment under this Agreement or
delivery under Section 2(a)(i) or 2(e) required to be
made by it if such failure is not remedied at or
before 10.00am on the tenth Local Business Day after
the due date."
(4) The "BANKRUPTCY" provisions of Section 5(a)(vii) are replaced by "An
Insolvency Event under the Security Trust Deed has occurred in respect
of Party A or Party B (the party the subject of the Insolvency Event
will be the Defaulting Party); or ". In relation to Party A, the events
described in the definition of Insolvency Event (under the Security
Trust Deed) shall apply to it as if Party A was a relevant corporation
referred to in that definition. The occurrence of an Insolvency Event
under the Security Trust Deed in respect of Party B in its personal
capacity will not constitute an Event of Default provided that within
thirty Local Business Days of that occurrence, Party A, Party B and the
Manager are able to procure the novation of this Agreement and all
Transactions to a third party (who is notified to Party A) in respect
of which the Designated Rating Agencies confirm that the novation will
not cause a reduction or withdrawal of the ratings of the Offshore
Notes, and Party A and Party B agree to execute such a novation
agreement in standard ISDA form.
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(5) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a):
will not apply to Party A.
will not apply to Party B.
(6) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(7) "TERMINATION CURRENCY" means:
(i) US$; or
(ii) Euros as determined in the reasonable discretion of the
Non-defaulting Party or the party which is not the Affected
Party.
(8) "ADDITIONAL TERMINATION EVENT" means:
(i) An Event of Default (as defined in the Security Trust Deed)
occurs and the Security Trustee enforces the security under
the Security Trust Deed (in which case Party B is the Affected
Party (unless the Event of Default results from a failure by
Party A to fulfil its obligations under this Agreement, in
which case Party A is the Affected Party));
(ii) Party B or a Paying Agent becomes obliged to make a
withholding or deduction in respect of any Offshore Notes or
any payment to Party A under any Transaction or an Obligor
becomes obliged to make a withholding or deduction for or on
account of Tax in respect of any payout under a Purchased
Loan and the Offshore Notes are redeemed as a result (in
which case both parties will be Affected Parties for the
purpose of termination). (But for the purposes of Section
6(e)(ii)(1), Party B will be the sole 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.
(9) Section 6(a) is amended by replacing "20 days" in line 3 with "10 Local
Business Days".
(10) Add a new Section 6(aa) after Section 6(a):
"(aa) RESTRICTED TERMINATION RIGHTS
(i) TERMINATION BY PARTY B: Party B must
not designate an Early Termination
Date without the prior written
consent of the Note Trustee.
(ii) TRANSFER WHERE PARTY B DOES NOT
GROSS-UP: If any payment by Party B
to Party A under this Agreement is,
or is likely to be, made subject to
any deduction or withholding on
account of Tax, Party B will
endeavour to procure the
substitution as principal obligor
under this Agreement in respect of
each affected Transaction of a Party
B incorporated in another
jurisdiction approved by Party A and
the Note Trustee and in respect of
which the Designated Rating Agencies
confirm that the substitution will
not cause a reduction or withdrawal
of the rating of any Notes."
(11) In Section 6(b)(ii), add the words "or to any other person approved by
Party A" after the word "Affiliates" in the second last line of the
first paragraph and add the words "so long as the transfer
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in respect of that Transaction would not lead to a downgrade or
withdrawal of the rating of any Notes" after the words "ceases to
exist" at the end of the first paragraph.
(12) Add the following sentence at the end of the last paragraph of Section
6(b)(ii):
"However, consent may be withheld if the other party considers (acting
reasonably) that its credit exposure to the transferor would be
adversely affected by the transfer."
(13) (i) Replace paragraph (a) of Section 7 with the following:
"(a) (i) (subject to sub-paragraph (ii)) Party A may make such
a transfer, without the prior consent of any Designated Rating
Agency or the other parties, pursuant to a consolidation,
amalgamation with, or merger with or into, or transfer of all
or substantially all of its assets to, or reorganisation,
incorporation, reincorporation or reconstitution into or as
another entity (but without prejudice to any other right or
remedy under this Agreement); and
(ii) the transfer referred to in sub-paragraph (i)
may only be made where the transferee of all of Party A's
interest or obligation in or under this Agreement has a short
term credit rating of A-1+ from S&P and a long term credit
rating of at least A2 and a short term credit rating of P-1
from Xxxxx'x; and"
(ii) Add a new paragraph to Section 7, immediately below paragraph
(b):
"(c) in the event that a trustee is appointed as a successor to
Party B under the Trust Deed and the Supplementary Terms
Notice (the "SUCCESSOR TRUSTEE"), Party A undertakes that it
shall (unless, at the time the Successor Trustee is so
appointed, Party A is entitled to terminate the Transaction
under Section 6, in which case it may) execute a novation
agreement novating to the Successor Trustee the Transaction on
the same terms or on other terms to be agreed between Party A,
Party B and the Successor Trustee, and give written notice to
each Designated Rating Agency of such novation."
(14) For the purposes of this Agreement, an Event of Default under a
Transaction relating to a Class of Offshore Notes will not of itself
constitute an Event of Default under a Transaction in respect of any
other Class of Offshore Notes.
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PART 2
TAX REPRESENTATIONS
(1) PAYER TAX REPRESENTATIONS
For the purpose of Section 3(e) of the Agreement, Party A will make the
following representation and Party B will make the following
representation:
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, it may rely on:
(i) the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement of the other party contained
in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the
other party pursuant to Section 4(a)(i) or 4(a)(iii); and
(iii) the satisfaction of the agreement of the other party contained
in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver
a form or document under Section 4(a)(iii) of the Agreement by reason
of material prejudice to its legal or commercial position.
(2) PAYEE TAX REPRESENTATIONS
For the purpose of Section 3(f) of this Agreement, Party B makes the
following representations:
It is an Australian resident and does not derive payments under this
Agreement in part or in whole carrying on business in a country outside
Australia at or through a permanent establishment or itself in that
country;
For the purpose of Section 3(f) of this Agreement, Party A makes the
following representation:
It is fully eligible for the benefits of the "Business Profits" or
"Industrial and Commercial Profits" provision, as the case may be, the
"Interest" provision or the "Other Income" provision, if any, of the
Specified Treaty with respect to any payment described in such
provisions and received or to be received by it in connection with this
Agreement and no such payment is attributable to a trade or business
carried on by it through a permanent establishment in Australia.
"Specified Treaty" means, with respect to Party A the convention
between the Government of Australia and the Government of the United
Kingdom for the Avoidance of Double Taxation and the Prevention of
Fiscal Evasion, or any other treaties between the Government of
Australia and those countries where Party A's offices are located.
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PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following document as applicable:
(a) Other documents to be delivered are:
PARTY REQUIRED TO
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE COVERED BY SECTION
DELIVERED 3(D) REPRESENTATION
Manager Legal opinions as to the validity Upon execution and No
and enforceability of the delivery of this Agreement
obligations of Party B and the
Manager under this Agreement, the
Trust Deed, the Security Trust Deed
and the Offshore Notes in form and
substance and issued by legal
counsel reasonably acceptable to
Party A
Party B and the Manager Certified copies of all corporate Upon execution and Yes
authorisations (to be certified by delivery of this Agreement
an Authorised Officer of the or any relevant
relevant party) and any other Confirmation
documents with respect to the
execution, delivery and performance
of this Agreement and each
Confirmation
Party A and Party B Certificate of authority and Upon execution and Yes
specimen signatures of individuals delivery of this Agreement
executing this Agreement, and thereafter upon
Confirmations and each Credit request of the other party
Support Document (as applicable)
Manager Copies (certified to be true copies Upon execution and Yes
by an authorised signatory of the delivery of this Agreement
Manager) of the Trust Deed, the
Security Trust Deed, the Note Trust
Deed, the Supplementary Terms
Notice, the Notice of Creation of
Trust and the Agency Agreement.
Manager A copy (certified to be a true copy Promptly upon any such Yes
by an authorised signatory of the document becoming
Manager) of any document amending effective in accordance
or varying the terms of the Trust with its terms
Deed, the Security Trust Deed, the
Note Trust Deed or the
Supplementary Terms Notice where
such amendment affects this
Agreement or Party A's rights or
obligations under this Agreement
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Party A A legal opinion as to the capacity Upon execution and Yes
and authority of Party A to enter delivery of this Agreement
into, and perform its obligations
under this Agreement and each
Confirmation.
Manager A copy of any notice provided by At such time as the Yes
the Manager to Offshore Noteholders. relevant notice is
provided by the Manager to
Offshore Noteholders.
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PART 4
MISCELLANEOUS
(1) ADDRESS FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
(a) For notices regarding operation, payment and confirmation
matters only, notices should be sent to the branch set out in
the relevant Confirmation (as may be amended from time to
time) with a copy, in the case of notices or communications
relating to Sections 5, 6, 7, 11 or 13, to:
Barclays Bank PLC
5 The North Colonnade
Canary Wharf
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attention: Derivatives Director, Legal Division (marked
urgent)
Telephone: (x00) 000 000 0000
Facsimile: (x00) 000 000 0000
(b) All notices or communications to Party B under this Agreement
shall be sent to:
Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Manager, Securitisation
Telephone: (x00) 0 0000 0000
Facsimile: (x00) 0 0000 0000
Telex: N/A
(c) All notices or communications to the Manager under this
Agreement shall be sent to:
Xxxxx 00, 00 Xxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Middle Office Compliance Manager
Telephone: x00 0 0000 0000
Facsimile: x00 0 0000 0000
Telex: N/A
(2) PROCESS AGENT. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable
Party B appoints as its Process Agent: Not applicable
(3) OFFICES. The provisions of Section 10(a) will not apply to this
Agreement.
(4) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is a Multibranch Party and may act through its offices in
London, New York and Sydney.
Party B is not a Multibranch Party.
(5) CALCULATION AGENT. The Calculation Agent is Party A, unless:
(i) otherwise specified in a Confirmation in relation to the relevant
Transaction; or
(ii) an Event of Default (where Party A is the Defaulting Party) has
occurred, in which case the Calculation Agent will be the
Manager.
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All calculations made by the Calculation Agent must be made in good
faith and through the exercise of the Calculation Agent's commercially
reasonable judgment. If any party objects in good faith to any
calculation made by the Calculation Agent, the parties must negotiate
in good faith to agree on an independent lead dealer to make such
calculation, and if they cannot so agree within three Business Days,
they will each promptly choose an independent leading dealer and
instruct such dealers to agree on another independent leading dealer to
make such calculation. The calculation of any such dealer so appointed
will be binding on the parties in the absence of manifest error and the
costs of such appointment will be shared equally between Party A and
Party B.
(6) CREDIT SUPPORT DOCUMENTS. Details of any Credit Support Document:
(i) In relation to Party A: Nil
(ii) In relation to Party B: Security Trust Deed
(7) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A: Not applicable
Credit Support Provider means in relation to Party B: Not applicable
(8) GOVERNING LAW. This Agreement and each Confirmation will be governed
by, and construed and enforced in accordance with, the laws in force in
England and Wales.
(9) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. For the purposes of Section 3(c), each of Party B and the
Manager are deemed not to have any Affiliates.
(10) All payments to be made to Party B under this Agreement by Party A must
be made:
(i) in relation to all amounts payable in Euros, to [insert
account details] (the 'Euro Account'); or
(ii) in relation to all amounts payable in US$, to [insert account
details] (the 'US$ Account').
Any payment so made will, to the extent of that payment, satisfy Party A's
obligation to Party B in respect of that payment.
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PART 5
OTHER PROVISIONS
(1) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party and, in the
case of any payment payable by Party A to Party B, will be
discharged by Party A depositing that payment by 10.00am
(London time) on the due date into the Euro Account or the US$
Account (as the case may be)."
(2) In Section 2(a)(ii), after "freely transferable funds" add the words
and "save as required by law, free of any set-off, counterclaim,
deduction or withholding (and except as expressly provided in this
Agreement)."
(3) Insert new Sections 2(a)(iv) and 2(a)(v) immediately after Section
2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply
to a payment or delivery due to be made to a party if such
party has satisfied all its payment and delivery obligations
under Section 2(a)(i) of this Agreement and has no future
payment or delivery obligations, whether absolute or
contingent under Section 2(a)(i).
"(v) Where:
(1) payments are due pursuant to Section 2(a)(i) by Party
A to Party B (the "PARTY A PAYMENT") and by Party B to
Party A (the "PARTY B PAYMENT") on the same day; and
(2) the Security Trust Deed has become, and remains at
that time, enforceable,
then Party A's obligation to make the Party A Payment to Party
B shall be subject to the condition precedent (which shall be
an "applicable condition precedent" for the purpose of Section
2(a)(iii)(3)) that Party A first receives either:
(3) the Party B Payment; or
(4) confirmation from Party B's bank that it holds
irrevocable instructions to effect payment of the
Party B Payment and that cleared funds are available
to make that payment."
(4) 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."
(5) 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".
(6) 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).
(7) TELEPHONE RECORDING: Each party consents to the recording of the
telephone conversations of trading and marketing personnel in
connection with this Agreement or any potential Transaction and
consents to such recording being used as evidence in court proceedings.
(8) FURTHER REPRESENTATIONS. Insert new Sections 3(g), 3(h) and 3(i)
immediately after Section 3(f) as follows:
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"(g) NON ASSIGNMENT. It has not assigned (whether absolutely, in
equity or otherwise) or declared any trust over any of its
rights under this Agreement or any Transaction (other than, in
respect of Party B, the trust created pursuant to the Trust
Deed and the Supplementary Terms Notice) and has not given any
charge over its rights under this Agreement or any Transaction
in the case of Party A, or any charge over the assets of the
Trust (other than under the Security Trust Deed), in the case
of Party B."
(h) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to
represent to the other party on the date on which it enters
into a Transaction that (absent a written agreement between
the parties that expressly imposes affirmative obligations to
the contrary for that Transaction):
(i) NON-RELIANCE. It is acting for its own account (in the
case of Party B as trustee of the Trust), and it has
made its own independent decisions to enter into that
Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own
judgment (and in the case of Party B, also on the
judgment of the Manager) and upon advice from such
advisers as it has deemed necessary. It is not relying
on any communication (written or oral) of the other
party as investment advice or as a recommendation to
enter into that Transaction; it being understood that
information and explanations related to the terms and
conditions of a Transaction shall not be considered
investment advice or a recommendation to enter into
that Transaction. No communication (written or oral)
received from the other party shall be deemed to be an
assurance or guarantee as to the expected results of
that Transaction.
(ii) ASSESSMENT AND UNDERSTANDING. It is capable of
assessing the merits of and understanding (on its own
behalf or through independent professional advice),
and understands and accepts, the terms, conditions
and risks of that Transaction. It is also capable of
assuming, and assumes (in the case of Party B,
subject to sub-paragraph (i)), the risks of that
Transaction.
(iii) STATUS OF PARTIES. The other party is not acting as a
fiduciary for or an adviser to it in respect of that
Transaction (other than in the case of Party B, the
Manager)."
(i) TRUST. Party B represents to Party A, in respect of Party B
only (which representations will be deemed to be repeated by
Party B on each date on which a Transaction is entered into)
that (absent a written agreement between the parties that
expressly imposes affirmative obligations to the contrary for
that Transaction):
(i) TRUST VALIDLY CREATED. The Trust has been validly
created under the laws by which it is stated to be
governed and is in existence at the date of this
Agreement.
(ii) SOLE TRUSTEE. Party B has been validly appointed as
trustee of the Trust and is presently the sole
trustee of the Trust.
(iii) NO PROCEEDINGS TO REMOVE. No notice has been given to
Party B and to Party B's knowledge no resolution has
been passed, or direction or notice has been given,
removing Party B as trustee of the Trust.
(iv) POWER. Party B has power under the Trust Deed to
enter into this Agreement and the Security Trust Deed
in its capacity as trustee of the Trust.
(v) GOOD TITLE. Party B has equitable title to the Assets
of the Trust and has power under the Trust Deed to
mortgage or charge them in the manner provided in the
Security Trust Deed and, subject only to the Trust
Deed, the Security Trust Deed and any Security
Interest permitted under the Trust Deed, as far as
Party B is
Page 10
aware, those Assets are free from all other Security
Interests (except for Party B's right of indemnity
out of the Assets of the Trust)."
(9) In Section 4, add the following new paragraph immediately after Section
4(e):
"(f) CONTRACTING AS PRINCIPAL. Party A will enter into each
Transaction as principal and not otherwise and, subject to
Section 15, Party B will enter into each Transaction in its
capacity as trustee of the Trust and not otherwise. Any
reference to Party B in this Agreement is in its capacity as
trustee of the Trust."
(10) CONFIRMATIONS. With respect to each Transaction entered into pursuant
to this Agreement and for the purposes of Section 9(e)(ii), Party A
will, on or promptly after the relevant Trade Date, send Party B (with
a copy to the Manager) a Confirmation confirming that Transaction and
both Party B and the Manager must promptly then confirm the accuracy of
or request the correction of such Confirmation. Notwithstanding the
provisions of Section 9(e)(ii), where a Transaction is confirmed by
means of facsimile or an electronic messaging system, such message will
constitute a Confirmation even where not so specified in that
Confirmation.
(11) Section 12 is amended as follows:
(i) In Section 12(a), delete the words "(except that a notice or
other communication under Section 5 or 6 may not be given by
facsimile transmission or electronic messaging system)" in
lines 2 and 3.
(ii) Section 12(a)(iii) is replaced with:
"(iii) if sent by facsimile transmission, on the date a
transmission report is produced by the machine from
which the facsimile was sent which indicates that the
facsimile was sent in its entirety to the facsimile
number of the recipient notified for the purpose of
this Section, unless the recipient notifies the
sender within one Local Business Day of the facsimile
being sent that the facsimile was not received in its
entirety and in legible form".
(iii) In Section 12(a)(v), replace the words "electronic message is
received" with "the facsimile transmission confirming the
electronic message is sent and deemed effective in accordance
with sub-paragraph (iii)".
(12) ISDA DEFINITIONS. This Agreement, each Confirmation and each
Transaction are subject to the 2000 ISDA Definitions (as published by
the International Swaps and Derivatives Association, Inc) (the "ISDA
Definitions"), and will be governed in all respects by any provisions
set forth in the ISDA Definitions, without regard to any amendments to
the ISDA Definitions made after the date of this Agreement. The ISDA
Definitions are incorporated by reference in, and shall be deemed to be
part of, this Agreement and each Confirmation.
(13) SCOPE OF AGREEMENT.
Any reference to a:
(a) "Swap Transaction" in the ISDA Definitions is deemed to be a
reference to a "Transaction" for the purposes of interpreting
this Agreement or any Confirmation; and
(b) "Transaction" in this Agreement or any Confirmation is deemed
to be a reference to a "Swap Transaction" for the purpose of
interpreting the ISDA Definitions.
Page 11
(14) INCONSISTENCY. In the event of any inconsistency between any two or
more of the following documents in respect of a Transaction, they will
take precedence over each other in the following descending order in
respect of that Transaction:
(i) any Confirmation;
(ii) the Schedule to the Agreement and Credit Support Annex;
(iii) the printed form of the ISDA Master Agreement and the ISDA
Credit Support Annex;
(iv) the 2000 ISDA Definitions.
(15) DEFINITIONS AND INTERPRETATION
Section 14 of the Agreement is modified as follows:
(a) New definitions are inserted as follows:
"ACCEPTABLE ARRANGEMENT" means an arrangement which each
relevant Designated Rating Agency has confirmed in writing
will result in the avoidance or reversal of any Note
Downgrade.
"APPROVED BANK" means a Bank which has a short term credit
rating of A-1+ from S&P and P-1 from Xxxxx'x.
"DOWNGRADE" means in relation to a Currency Swap, the
withdrawal or downgrade of Party A's credit rating by a
Designated Rating Agency resulting in Party A not having the
Required Rating for that Currency Swap.
"MAJOR DOWNGRADE" means a Downgrade resulting in Party A
having, in relation to the Class A1 Currency Swap or the Class
B Currency Swap:
(i) a short term credit rating of less than A-1 by S&P; or
(ii) a short term credit rating of less than P-1 by Xxxxx'x.
"MINOR DOWNGRADE" means in relation to a Currency Swap, any
Downgrade which is not a Major Downgrade for that Currency
Swap.
"MORTGAGED PROPERTY" has the meaning given in the Security
Trust Deed.
"NOTE DOWNGRADE" means any actual or proposed withdrawal or
downgrade of the rating assigned to any Class of Offshore
Notes by a Designated Rating Agency which results or would
result in any rating assigned to that Class of Offshore Notes
being less than that specified in clause 4.2(f) of the
Supplementary Terms Notice.
"REPLACEMENT CURRENCY SWAP PROVIDER" means, at any time, a
person that has agreed to replace Party A at that time and has
a credit rating not less than the Required Rating.
"REQUIRED RATING" means a credit rating of not less than, in
relation to the Class A1 Currency Swap or the Class B Currency
Swap:
(i) A-1+ (short term) by S&P;
(ii) A2 (long term) by Xxxxx'x; and
(iii) P-1 (short term) by Xxxxx'x.
"RELEVANT SWAP TRANSACTION" means in relation to the Offshore
Notes, each Transaction which is a currency swap for those
Offshore Notes only.
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"SECURITY TRUST DEED" means the Security Trust Deed dated 31
December 2003 between Party B as issuing trustee, Crusade
Management Limited as Manager, P.T. Limited as security
trustee and by accession under the Supplementary Terms Notice,
The Bank of New York as note trustee.
The definition of Tax is replaced with:
"TAX" has the meaning given in the Trust Deed.
"TRUST DEED" means the Master Trust Deed dated 14 March 1998
as amended by the Crusade Global Trust No. 2 of 2004
Supplementary Terms Notice dated on or about the date of this
Agreement between (amongst others) Party B, Xx.Xxxxxx Bank
Limited and the Manager ("SUPPLEMENTARY TERMS NOTICE") and
each of the following expressions has the meanings given to
them in the Trust Deed and the Supplementary Terms Notice.
(b) Each of the following expressions has the meanings given to
them in the Trust Deed and the Security Trust Deed (as the
case may be):
"AGENCY AGREEMENT"
"ASSET"
"BANK"
"CLASS A-1 CURRENCY SWAP"
"CLASS A-2 CURRENCY SWAP"
"CURRENCY SWAP"
"DESIGNATED RATING AGENCY"
"EXTRAORDINARY RESOLUTION"
"FINAL MATURITY DATE"
"HEDGE AGREEMENT"
"INSOLVENCY EVENT"
"INVESTED AMOUNT"
"MORTGAGED PROPERTY"
"NOTEHOLDER"
"NOTE TRUSTEE"
"OFFSHORE NOTES"
"OFFSHORE NOTEHOLDER"
"PRINCIPAL PAYING AGENT"
"PURCHASED RECEIVABLES"
"SECURITY TRUST DEED"
"SECURITY TRUSTEE"
"STATED AMOUNT"
"SUPPORT FACILITY PROVIDER"
"TRUST"
"TRUST EXPENSE"
(c) TRUST DEED AND SECURITY TRUST DEED: The parties acknowledge
and agree and for the purposes of the Trust Deed and Security
Trust Deed
(i) all Transactions under this Agreement are "Hedge
Agreements";
(ii) Party A is a "Support Facility Provider",
(iii) all obligations of Party B under this Agreement and
any/all Transactions under it are Secured Moneys.
(d) Unless defined in this Agreement, words and phrases defined in
the Trust Deed, the Security Trust Deed and the Supplementary
Terms Notice (each in the form as at the date of this
Agreement) have the same meaning in this Agreement. Where
there is any inconsistency in a definition between this
Agreement (on the one hand) and the Trust
Page 13
Deed, Security Trust Deed or the Supplementary Terms Notice
(on the other hand), this Agreement prevails. Where words or
phrases used but not defined in this Agreement are defined in
the Trust Deed in relation to a Trust (as defined in the Trust
Deed) such words or phrases are to be construed in this
Agreement, where necessary, as being used only in relation to
the Trust (as defined in the Supplementary Terms Notice).
(e) Where in this Agreement a word or expression is defined by
reference to its meaning in another Transaction Document or
there is a reference to another Transaction Document or to a
provision of another Transaction Document, any amendment to
the meaning of that word or expression or to that other
Transaction Document or provision (as the case may be) will be
of no effect for the purposes of this Agreement unless and
until the amendment is consented to by the parties to this
Agreement.
(16) New Sections 15 and 16 are inserted immediately after Section 14 as
follows:
"15. PARTY B PROVISIONS
(a) (A) General
Clause 30 of the Trust Deed applies to the
obligations and liabilities of Party B under this
Agreement. Clause 16 of the Security Trust Deed
applies to govern Party A's priority to monies
received from the sale of Assets of the Trust or
other enforcement of the Charge under the Security
Trust Deed (as defined in the Security Trust Deed).
(B) Limitation of Party B's Liability
(1) Party B enters into this agreement only in
its capacity as trustee of the Trust and in
no other capacity (except where the
Transaction Documents provide otherwise).
Subject to paragraph (3) below, a liability
arising under or in connection with this
Agreement or the Trust can be enforced
against Party B only to the extent to which
it can be satisfied out of the assets and
property of the Trust which are available to
satisfy the right of Party B to be
exonerated or indemnified for the liability.
This limitation of Party B's liability
applies despite any other provision of this
Agreement and extends to all liabilities and
obligations of Party B in any way connected
with any representation, warranty, conduct,
omission, agreement or transaction related
to this Agreement or the Trust.
(2) Subject to subparagraph (3) below, no person
(including any Relevant Party) may take
action against Party B in any capacity other
than as trustee of the Trust or seek the
appointment of a receiver (except under this
agreement), or a liquidator, an
administrator or any similar person to Party
B or prove in any liquidation,
administration or arrangements of or
affecting Party B (except in relation to the
assets of the Trust).
(3) The provisions of this Section 15 shall not
apply to any obligation or liability of
Party B to the extent that it is not
satisfied because under a Transaction
Document or by operation of law there is a
reduction in the extent of the Party B's
indemnification or exoneration out of the
Assets of the Trust as a result of Party B's
fraud, negligence, or Default.
(4) It is acknowledged that the Relevant Parties
are responsible under the Transaction
Documents for performing a variety of
obligations relating to the Trust (other
than Party A in its capacity as currency
swap provider under this Agreement, in
respect of which its obligations are limited
to this Agreement). No act or omission of
Party B (including any related failure to
satisfy its obligations under this
Agreement) will be considered fraud,
negligence or Default of Party B for the
purpose of
Page 14
subparagraph (3) above to the extent to
which the act or omission was caused or
contributed to by any failure by any
Relevant Party or any person who has been
delegated or appointed by Party B in
accordance with this Agreement or any other
Transaction Document to fulfil its
obligations relating to the Trust or by any
other act or omission of a Relevant Party or
any such person.
(5) In exercising their powers under the
Transaction Documents, each of Party B, the
Security Trustee and the Noteholders must
ensure that no attorney, agent, delegate,
receiver or receiver and manager appointed
by it in accordance with this Agreement has
authority to act on behalf of Party B in a
way which exposes Party B to any personal
liability and no act or omission of any such
person will be considered fraud, negligence,
or Default of Party B for the purpose of
subparagraph (3) above.
(6) In this clause, RELEVANT PARTIES means each
of the Manager, the Servicer, the
Calculation Agent, each Paying Agent, the
Note Trustee, and the provider of a Support
Facility.
(7) Nothing in this clause limits the
obligations expressly imposed on Party B
under the Transaction Documents.
(b) Nothing in paragraph (a) limits Party A in:
(i) obtaining an injunction or other order to
restrain any breach of this Agreement by
Party B;
(ii) obtaining declaratory relief; or
(iii) in relation to its rights under the Security
Trust Deed.
(c) Except as provided in paragraphs (a) and (b), Party A
shall not
(i) (JUDGMENT) obtain a judgment for the payment
of money or damages by Party B;
(ii) (STATUTORY DEMAND) issue any demand under
s459E(1) of the Corporations Xxx 0000 (Cth)
(or any analogous provision under any other
law) against Party B;
(iii) (WINDING UP) apply for the winding up or
dissolution of Party B;
(iv) (EXECUTION) levy or enforce any distress or
other execution to, on, or against any
assets of Party B;
(v) (COURT APPOINTED RECEIVER) apply for the
appointment by a court of a receiver to any
of the assets of Party B;
(vi) (SET-OFF OR COUNTERCLAIM) exercise or seek
to exercise any set-off or counterclaim
against Party B; or
(vii) (ADMINISTRATOR) appoint, or agree to the
appointment, of any administrator to Party
B,
or take proceedings for any of the above and Party A
waives its rights to make those applications and take
those proceedings."
"16. REPLACEMENT CURRENCY SWAP
(a) If this Agreement or any Transaction under this
Agreement is terminated prior to the day upon which
the Offshore Notes are repaid in full, Party B must,
subject to paragraph (b) and at the direction of the
Manager, enter into one or more
Page 15
currency swaps which replace the Transactions under
this Agreement (collectively a "REPLACEMENT CURRENCY
SWAP") but only on the following conditions:
(i) the Settlement Amount payable (if any) by
Party B to Party A upon termination of this
Agreement or any Transaction will be paid in
full when due in accordance with the
Supplementary Terms Notice and this
Agreement;
(ii) the Designated Ratings Agencies confirm that
entry into the Replacement Currency Swap by
Party B will not cause a Note Downgrade; and
(iii) the liability of Party B under the
Replacement Currency Swap is limited to at
least the same extent that its liability is
limited under this Agreement or the relevant
Transaction under this Agreement.
(b) If the conditions in Section 16(a) are satisfied,
Party B must, at the direction of the Manager, into
the Replacement Currency Swap and if it does so it
must direct the Replacement Currency Swap Provider to
pay any upfront premium to enter into the Replacement
Currency Swap due to Party B directly to Party A in
satisfaction of and to the extent of Party B's
obligation to pay the Settlement Amount to Party A as
referred to in Section 16(a) and to the extent that
such premium is not greater than or equal to the
Settlement Amount, the balance must be satisfied by
Party B as a Trust Expense.
(c) If the conditions in Section 16(a) are satisfied and
Party B has entered into the Replacement Currency
Swap, Party B must direct Party A to pay any
Settlement Amount payable by Party A to Party B on
termination of this Agreement directly to the
Replacement Currency Swap Provider as payment of any
premium (to the extent of the Settlement Amount)
payable by Party B to enter into the Replacement
Currency Swap. Such payment by Party A to the
Replacement Currency Swap Provider shall be in full
discharge of Party A's obligation to make any payment
to Party B in respect of the termination of this
Agreement and no further amounts shall be due from
Party A in respect of such termination. If such
premium is greater than the Settlement Amount, the
balance must be satisfied by Party B as a Trust
Expense payable to the Replacement Currency Swap
Provider in accordance with clause 5.1 of the
Supplementary Terms Notice."
(17) NOVATION
Notwithstanding Section 7 as amended herein, Party A may at any time
novate its obligations under this Agreement to any of its Affiliates
(the "NEW COUNTERPARTY") provided that:
(a) the New Counterparty provides a legal opinion to Party B that
this Agreement, as novated, is valid, binding and enforceable
against it (subject to equitable doctrines and creditors'
rights generally); and
(b) the New Counterparty has the Required Rating.
Party B and the Manager will execute all such documents (each in a form
reasonably satisfactory to Party B) as are reasonably necessary to give
effect to that novation."
(18) 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
Page 16
(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.
(19) A new Section 17 is added as follows:
"17 RATING DOWNGRADE
[BARCLAYS NOTE: SUBJECT TO FURTHER DISCUSSION.]
(a) If, at any time, a Downgrade occurs and the downgrade
constitutes a Minor Downgrade, Party A shall, within 30 days
(or such greater period as agreed by the relevant Designated
Rating Agency), comply with Section 17(c).
(b) If, at any time, a Downgrade occurs and the downgrade
constitutes a Major Downgrade, Party A shall within 5 Business
Days (or such greater period as agreed by the relevant
Designated Rating Agency) comply with Section 17(c).
(c) Where Party A is required to comply with this Section 17(c) it
must, at its cost either:
(i) transfer Eligible Credit Support to Party B in
accordance with the Credit Support Annex attached to
this Agreement (including by the deposit of Euros or
US$ (as the case may be) to the credit of a Swap
Collateral Account);
(ii) procure a novation of its rights and obligations
under each Transaction to a Replacement Currency Swap
Provider;
(iii) procure another person to become co-obligor in
respect of the obligations of Party A under each
Transaction. Such co-obligor may be either:
(A) a person with the Required Rating domiciled
in the same legal jurisdiction as Party A or
Party B; or
(B) a person otherwise acceptable to each
Designated Rating Agency; or
(iv) enter, or procure entry, into an Acceptable
Arrangement.
(d) Where Party B has not established a Swap Collateral Account
and Party A is required to deposit monies into a Swap
Collateral Account, the Manager must direct Party B to, and
Party B must, establish, as soon as practicable, and maintain,
in the name of Party B an account with an Approved Bank, which
account shall be, for the purposes of this Section 17, the
"SWAP COLLATERAL ACCOUNT".
(e) Party B, at the direction of the Manager, may only dispose of
any Eligible Credit Support acquired or transferred to it
under Section 17(c)(i) or make withdrawals from the Swap
Collateral Account: (i) in accordance with the terms of the
Credit Support Annex attached to this Agreement; or (ii)
otherwise if directed to do so by the Manager and in such
latter case only for the purpose of:
(i) withdrawing any amount which has been incorrectly
deposited into the Swap Collateral Account;
(ii) paying any bank accounts debit tax or other
equivalent Taxes payable in respect of the Swap
Collateral Account; or
(iii) funding the amount of any payment due to be made by
Party A under this Agreement following the failure by
Party A to make that payment.
Page 17
(f) Party B, at the direction of the Manager, may only invest any
amounts standing to the credit of a Swap Collateral Account in
Eligible Credit Support that matures on or prior to the next
Payment Date.
(g) The Credit Support Amount must be denominated in US$ (in
relation to the Class A-1 Currency Swap) or Euros (in relation
to the Class A-2 Currency Swap) or in such other currency as
approved by each Designated Rating Agency."
(20) EXCHANGE CONTROLS
Section 5(b)(i) (ILLEGALITY) is amended by adding the following
paragraph at the end:-
"This sub-paragraph (i) does not apply to the imposition by the
Australian government or any agency of the Australian government of any
exchange control restrictions or prohibitions ("EXCHANGE CONTROLS")."
For the avoidance of doubt:
(A) exchange controls do not constitute an Illegality or other
Termination Event or an Event of Default under this Agreement, and
do not entitle a party to terminate a Transaction or otherwise
refuse to make any payments it is obliged to make under a
Transaction: and
(B) if and for so long as exchange controls are imposed, delivery by
Party B of Australian dollar amounts required to be paid by it
under any relevant Confirmation to the bank account in Australia
notified in writing by Party A to Party B from time to time
specified in that Confirmation will constitute proper payment of
those amounts by Party B and Party A's obligations under this
Agreement will be unaffected by any such exchange controls."
(21) PARTY B'S PAYMENT INSTRUCTIONS. Party B irrevocably authorises and
instructs Party A to make payment of:
(i) the "Initial Exchange Amount" payable by Party A under a
currency swap transaction by paying that amount direct to the
account notified in writing by Party B to Party A for that
purpose; and
(ii) any other amount due from Party A to Party B under this
Agreement by paying that amount direct to the Principal Paying
Agent to the account outside Australia notified in writing by
the Principal Paying Agent to Party A for that purpose. Party
A is entitled to rely on any such notice.
(22) NO AMENDMENT. Each of Party B and the Manager agrees that it will not
consent to any amendment to any provision in any Transaction Document
dealing with the ranking, priority or entitlement of Party A in respect
of any security or moneys without the prior written consent of Party A
(which will not be unreasonably withheld).
(23) In Section 6(e), delete the sentence "The amount, if any, payable in
respect of an Early Termination Date and determined pursuant to this
Section will be subject to any Set-off." At the end of the first
paragraph.
Page 18
Please confirm your agreement to the terms of the foregoing Schedule by signing
below.
BARCLAYS BANK PLC PERPETUAL
TRUSTEES CONSOLIDATED
LIMITED as trustee of
Crusade Global Trust No. 2
of 2004
By: By:
------------------------------------ ---------------------------------------
Name: Name:
Title: Title:
CRUSADE MANAGEMENT LIMITED
By:
------------------------------------
Name:
Title:
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