CREDIT SUISSE FIRST BOSTON (USA), INC.
GUARANTEE
Guarantee, dated as of February __, 2001, by Credit Suisse First Boston
(USA), Inc. (the "Guarantor"), a Delaware corporation, in respect of DLJ
International Capital (the "Guaranteed Subsidiary"), a Delaware corporation.
1. Guarantee. For the duration of this Guarantee, as set forth in
Clause 3 below, the Guarantor irrevocably and unconditionally guarantees to
Perpetual Trustees Consolidated Limited as trustee of the Crusade Global Trust
No.1 of 2001 ("Beneficiary"), and any of Beneficiary's successors and permitted
assigns, the prompt payment upon demand of any and all outstanding obligations
and liabilities ("Obligations") of the Guaranteed Subsidiary to Beneficiary in
respect of the currency swap transaction as documented by the confirmation (the
"Currency Swap Confirmation") attached hereto as Exhibit A. This Guarantee is a
guarantee of payment and not of collection. The Guarantor agrees that the
Beneficiary may resort to the Guarantor for payment of any Obligation after any
default by the Guaranteed Subsidiary whether or not Beneficiary shall have
resorted to any collateral security, or shall have proceeded against any other
obligor principally or secondarily obligated with respect to any of the
Obligations.
2. Nature of Guarantee. The Guarantor's obligations hereunder shall not
be affected by the genuineness, validity, legality, regularity, or
enforceability of the Obligations or any instrument evidencing any Obligations,
or by the existence, validity, enforceability, perfection, or extent of any
collateral therefor or by any other events, occurrences or circumstances which
might otherwise constitute a legal or equitable discharge or defense of a
guarantor (except for defenses of payment or performance), including but not
limited to, all suretyship defenses, exoneration, alteration of the underlying
obligations or any action or inaction on the part of the Beneficiary in
connection with this Guarantee. Beneficiary makes no representation or warranty
with respect to any such circumstance and has no duty or responsibility
whatsoever to the Guarantor with respect to the management and maintenance of
the Obligations or any collateral therefor. Beneficiary shall not be obligated
to file any claim relating to the Obligations in the event that the Guaranteed
Subsidiary becomes subject to a bankruptcy, reorganization, or similar
proceeding, and the failure of Beneficiary so to file shall not affect the
Guarantor's obligations hereunder. In the event that any payment by the
Guaranteed Subsidiary of principal or interest on any of the Obligations is
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy or insolvency laws or otherwise, this Guarantee shall remain a
continuing obligation of Guarantor (and if such voidable or returned payment is
deemed to have caused the Guarantee to lapse or be extinguished, the Guarantee
shall be revived and reinstated) so the Guarantor shall remain liable hereunder
with respect to such Obligations as if such payment had not been made. No
counterclaim or right of offset of any nature which Guarantor may have against
Beneficiary shall reduce Guarantor's obligations hereunder, but Guarantor
reserves the right to assert any such counterclaim or right of offset in
separate proceedings subsequent to satisfaction in full of its obligations
hereunder.
3. Duration of the Guarantee. (a) This Guarantee shall terminate on the
earlier of [_____] and the termination of the Obligations under the Currency
Swap Confirmation.
4. Consents, Waivers and Renewals. The Guarantor agrees that
Beneficiary may at any time and from time to time, either before or after the
maturity of the Obligations, without notice to or further consent of the
Guarantor, extend the time of payment of Obligations, and may make agreement
with the Guaranteed Subsidiary with regard to any obligation of the Guaranteed
Subsidiary, or, upon receipt of the written consent of the Guaranteed Subsidiary
with regard to any Obligation of the Guaranteed Subsidiary, with any other party
to or person liable on any of the Obligations, or interest therein, for the
extension, renewal, payment, compromise, discharge or release thereof, in whole
or in part, or for any modification of the terms thereof, without in any way
impairing or affecting this Guarantee.
5. No Waiver; Cumulative Rights. No failure on the part of Beneficiary
to exercise, and no delay in exercising, any right, remedy, or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise by
Beneficiary of any right, remedy, or power hereunder preclude any other or
future exercise of any right, remedy, or power. Each and every right, remedy and
power hereby granted to Beneficiary or allowed it by law or other agreement
shall be cumulative and not exclusive of any other, and may be exercised by
Beneficiary from time to time.
6. Waiver. The Guarantor waives acceptance of this Guarantee, notice of
the occurrence of any of the Obligations, notice of presentment, nonpayment or
protest and notice of any sale of collateral security, and all other notices
whatsoever.
7. Subrogation. The Guarantor shall not be entitled and shall not seek,
by reason of having made any payment hereunder, to be subrogated to the rights
of the Beneficiary against the Guaranteed Subsidiary with respect to such
payment or otherwise to be reimbursed, indemnified or exonerated by the
Guaranteed Subsidiary in respect thereof until all Obligations of the Guaranteed
Subsidiary to Beneficiary have been paid in full. If acceleration of the time
for payment of any Obligation is stayed upon the insolvency, bankruptcy or
reorganization of the Guaranteed Subsidiary that has incurred the Obligation,
all such amounts otherwise subject to acceleration under the terms of the
relevant documents governing that Obligation shall nonetheless be payable by the
Guarantor hereunder forthwith on demand by the Beneficiary.
8. Reimbursement for Expenses. In the event that Beneficiary commences
any action or proceeding for the enforcement of this Guarantee, Guarantor will
reimburse Beneficiary, promptly upon demand, for any and all expenses incurred
by Beneficiary in connection with such action or proceeding including, without
limitation, reasonable attorneys' fees.
9. Representations and Warranties.
(a) The Guarantor is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
full corporate power to execute, deliver, and perform this Guarantee.
(b) The execution, delivery and performance of this Guarantee
have been and remain duly authorized by all necessary corporate action and do
not contravene any provision of law or of the Guarantor's organizational
documents or any contractual restriction binding on the Guarantor or its assets.
(c) All consents, authorizations and approvals of, and
registrations and declarations with, any governmental authority necessary for
the due execution, delivery, and performance of this Guarantee have been
obtained and remain in full force and effect, and all conditions thereof have
been duly complied with, and no other action by, and no notice to or filing
with, any governmental authority is required in connection with the execution,
delivery or performance of this Guarantee.
(d) This Guarantee constitutes the legal, valid, and binding
obligation of the Guarantor enforceable against the Guarantor in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
10. Currency for Payment. (a) Payment under this Guarantee will be in
the currency of the Obligation guaranteed.
(b) To the extent that any Obligation is to be paid in a
currency other than U.S. dollars (a "non-U.S. currency"), and the Beneficiary
obtains a judgment for payment of such Obligation in U.S. dollars, the Guarantor
and the Beneficiary agree that, to the fullest extent permitted by law, the rate
of exchange used shall be that at which the Beneficiary, in accordance with
normal banking procedures, could purchase such non-U.S. currency with U.S.
dollars (after any costs of exchange) on the New York bank business day
preceding that on which final judgment is given. If the amount of any non-U.S.
currency at such rate of exchange received by the Beneficiary is less than the
amount due to Beneficiary under the terms of the Obligation, the Guarantor
agrees, as a separate and independent obligation to indemnify the Beneficiary
against such loss. If the amount of such non-U.S. currency received by the
Beneficiary at such rate of exchange exceeds the amount due to Beneficiary under
the terms of the Obligation, the Beneficiary agrees to promptly remit such
excess amount to the Guarantor.
11. Payment of Taxes. (a) Except as otherwise required by law, each
payment required to be paid by Guarantor to Beneficiary hereunder shall be made
without deduction or withholding for or on account of Taxes owed as a result of
such payment being made from within the United States to a Beneficiary outside
the United States. If such deduction or withholding is required, Guarantor shall
(1) pay the amount required to be deducted or withheld to the appropriate
authorities before penalties attach thereto or interest accrues thereon, (2)
promptly forward to the Beneficiary an official receipt evidencing such payment
or a certified copy thereof, and (3) in the case of any such deduction or
withholding, as soon as possible thereafter pay to the Beneficiary such
additional amounts as may be necessary to ensure that the net amount actually
received by the Beneficiary is equal to the amount of the Obligation guaranteed.
For purposes of this Section 11, "Taxes" shall mean any present or future tax,
levy, impost, duty, charge, assessment, or fee of any nature imposed by any
government or other taxing authority in respect of any payment under this
Guarantee. Nothing in this paragraph shall be construed as an obligation of
Guarantor to pay any Taxes incurred by the Beneficiary as a result of income
earned on the Obligation.
(b) In the event that all or any part of such Taxes are
subsequently held invalid or inapplicable and the result is to eradicate the
full or partial payment of Taxes pursuant to Section 11(a) of this Guarantee, or
if the Beneficiary later claims a deduction, credit, or other tax benefit with
respect to such payment, the Beneficiary will promptly notify the Guarantor of
such fact, and will promptly remit to the Guarantor (upon Beneficiary's receipt
from the relevant government or taxing authority, of such amount, whether as a
refund or a credit) an amount equal to such refund or the effective economic
benefit from such deduction, credit, or other tax benefit.
12. Assignment. Neither the Guarantor nor the Beneficiary may assign
its rights, interests, or obligations hereunder to any other person without the
prior written consent of the Guarantor or the Beneficiary, as the case may be,
such consent not being unreasonably withheld.
13. Notices. All notices or other communications to the Guarantor or
the Beneficiary shall be in writing and shall be given as follows:
if to the Guarantor:
Credit Suisse First Boston (USA), Inc.
Attention:
Telephone:
Facsimile:
if to the Beneficiary:
Perpetual Trustees Consolidated Limited
as trustee of the
Crusade Global Trust No. 1 of 2001
Attention:
Telephone:
Facsimile:
unless the Guarantor or Beneficiary has provided a superseding address, in which
event, notice shall be provided at such superseding address.
14. Governing Law, Waiver of Jury Trial, and Submission to
Jurisdiction. (a) This Guarantee shall be governed by and construed in
accordance with the laws of the State of New York without reference to choice of
law doctrine.
(b) The Guarantor waives, to the fullest extent permitted
under applicable law, any right the Guarantor may have to a trial by jury in
respect of any suit, action or proceeding relating to this Guarantee. The
Guarantor certifies that no representative, agent or attorney of the other party
has represented, expressly or otherwise, that such other party would not seek to
enforce the foregoing waiver in the event of any such suit, action or
proceeding.
(c) With respect to any suit, action or proceeding relating to
this Guarantee, the Guarantor (1) irrevocably submits to the exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City and (2)
waives any objection which it may have at any time to the laying of venue for
any such suit, action or proceeding relating to this Guarantee, waive any claim
that such suit, action or proceeding relating to this Guarantee has been brought
in an inconvenient forum, and further waive the right to object, with respect to
such suit, action or proceeding relating to this Guarantee, that such court does
not have jurisdiction over it.
15. Headings. All headings used in this document are for convenience of
reference only and shall have no legal effect.
IN WITNESS WHEREOF, the Guarantor has caused its duly authorized
officer to execute and deliver this Guarantee as of the date first above
written.
CREDIT SUISSE FIRST BOSTON (USA), INC.
By:_______________________________
