ISDA Schedule to the Master
Agreement for Basis Swap
CRUSADE MANAGEMENT LIMITED
XX.XXXXXX BANK LIMITED
PERPETUAL TRUSTEES CONSOLIDATED LIMITED AS TRUSTEE OF CRUSADE
GLOBAL TRUST NO. 1 OF 2007
XXXXXX XXXXXX XXXXXXXX
Deutsche Bank Place
Corner Hunter and Phillip Streets
Sydney NSW 2000
Tel 00 0 0000 0000
Fax 00 0 0000 0000
xxx.xxx.xxx.xx
(C) Copyright Xxxxxx Xxxxxx Xxxxxxxx 2007
ISDA Schedule to the Master Agreement for
Basis Swap [Allens Xxxxxx Xxxxxxxx LOGO]
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DATE 13 March 2007
PARTIES
1. CRUSADE MANAGEMENT LIMITED (ABN 90 072 715 916) (PARTY A);
2. XX.XXXXXX BANK LIMITED (ABN 92 055 513 070) (XX.XXXXXX); and
3. PERPETUAL TRUSTEES CONSOLIDATED LIMITED (ABN 81 004 029 841) in its
capacity as trustee of Crusade Global Trust No. 1 of 2007 (PARTY B).
PART 1. TERMINATION PROVISIONS
(a) SPECIFIED ENTITY is not applicable in relation to Party A or Party B:
(b) Sections 5(a)(ii), (iii), (iv), (v), (vi), (viii), 5(b)(ii), (iii) and (iv)
will not apply to Party A or Party B.
(c) The "BANKRUPTCY" provisions of Section 5(a)(vii) are replaced by "An
Insolvency Event under the Master Trust Deed has occurred in respect of
Party A, Party B or Xx.Xxxxxx (the party the subject of the Insolvency
Event will be the Defaulting Party except that in the case of Party A, if
there is an Insolvency Event in relation to Xx.Xxxxxx, Party A will be the
Defaulting Party). The occurrence of an Insolvency Event under the Security
Trust Deed in respect of Party B in its personal capacity will not
constitute an Event of Default provided that within 30 Local Business Days
of that occurrence, Party A, Party B and Xx.Xxxxxx are able to procure the
novation of this Agreement and all Transactions to a third party in respect
of which the Designated Rating Agencies confirm that the novation will not
cause a reduction or withdrawal of the rating of the Notes, and Party A and
Party B agree to execute such a novation agreement in standard
International Swaps and Derivates Association, Inc. ("ISDA") form.
(d) Section 5(a)(i) is amended to replace THIRD with TENTH and the following
sentence is added:
"Even if Xx.Xxxxxx makes a payment under this Agreement, a failure by
Party A to make that payment by the due date shall constitute an Event
of Default."
For the avoidance of doubt, but without limiting Section 17, Party B is not
obliged to pay any amount attributable to any Break Payment which is due
by, but not received from, an Obligor or any Loan Offset Interest Amount
which is due by, but not received from, the Approved Seller, and the
failure by Party B to pay that amount shall not be an Event of Default.
Party B shall not be required to pay any termination amount arising from a
termination of this Agreement by reason of a failure by Party A to make a
payment under this Agreement.
(e) The AUTOMATIC EARLY TERMINATION provision of Section 6(a):
(i) will not apply to Party A
(ii) will not apply to Party B
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Any event which, upon its occurrence, constitutes an Event of Default, is
deemed not to be an essential term of the Transaction so that the
occurrence of any Event of Default shall not be implied to constitute a
repudiation of this Agreement. This does not in any way restrict or limit
the right of a Non-Defaulting Party under Section 6(a) to terminate
following an Event of Default.
(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement, neither Party A nor Party B is required to make any payment if
this Agreement is terminated, other than amounts accrued due and payable,
and Section 6(e) shall not apply.
(g) There is no Termination Currency.
(h) An ADDITIONAL TERMINATION EVENT set out in Section 15(d)(iv) or Section
16(g) of this Schedule, will apply.
(i) In the TRANSFER provision of Section 7, add a new paragraph (c):
(c) Party B may transfer to a Successor Trustee (as defined below) or to
avoid an illegality as specified in Section 5(b)(i).
(j) Add a new paragraph to Section 7 immediately below paragraph (c):
In the event that a trustee is appointed as a successor to Party B under
the Trust Deed ("Successor Trustee"), each of Party A and Xx.Xxxxxx
undertakes that it shall (unless, at the time the Successor Trustee is so
appointed, Party A or Xx.Xxxxxx is entitled to terminate the Transaction
under Section 6, in which case it may) novate to the Successor Trustee the
Transaction on the same terms or on other terms to be agreed between Party
A, Party B, Xx.Xxxxxx and the Successor Trustee, and give written notice to
the Designated Rating Agencies of such novation.
PART 2. TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS.
For the purpose of Section 3(e) of this Agreement each of Party A,
Xx.Xxxxxx and Party B will make the following representation.
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e) or 6(d)(ii) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on:
(i) the accuracy of any representations made by the other party pursuant
to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement of the other party contained in
Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant to
Section 4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on subclause (ii) above and the other party does not
deliver a form or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
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(b) PAYEE TAX REPRESENTATIONS.
For the purpose of Section 3(f) of this Agreement, each of Party A,
Xx.Xxxxxx and Party B represents that it is an Australian resident and does
not derive the payments under this Agreement in whole or in part in
carrying on business in a country outside Australia at or through a
permanent establishment of itself in that country.
Party A, Xx.Xxxxxx and Party B also represent that Crusade Global Trust No.
1 of 2007 is a non-U.S. branch of a foreign person for U.S. federal income
tax purposes.
(c) DEDUCTION OR WITHHOLDING FOR TAX. Section 2(d) is replaced with the
following Section:
All payments under this Agreement will be made subject to deduction or
withholding for or on account of any Tax. If a party is so required to
deduct or withhold, then that party ("X") will:
(i) promptly notify the other party ("Y") of such requirement;
(ii) pay to the relevant authorities the full amount required to be
deducted or withheld promptly upon the earlier of determining
that such deduction or withholding is required or receiving
notice that such amount has been assessed against Y;
(iii) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing
such payment to such authorities;
(iv) pay to Y the amount Y would have received had no deduction or
withholding been required.
Paragraph (iv) shall not apply to payments to be made by Party B.
PART 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver to the other as soon as reasonably practicable following a request by
the other party, any document or certificate reasonably required by a party in
connection with its obligations to make a payment under this Agreement which
would enable that party to make the payment free from any deduction or
withholding for or on account of Tax or as would reduce the rate at which the
deduction or withholding for or on account of Tax is applied to that payment.
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address: Level 00, 00 Xxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Securitisation Manager
Facsimile No: (00) 0000 0000 Telephone No: (00) 0000 0000
Address for notices or communications to Party B:
Address: Level 00, 000 Xxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Manager, Securitisation
Facsimile No: (00) 0000 0000 Telephone No: (00) 0000 0000
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With a copy to the Manager:
Address: Level 00, 00 Xxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Securitisation Manager
Facsimile No: (00) 0000 0000 Telephone No: (00) 0000 0000
Address for notices or communications to Xx.Xxxxxx:
Address: Level 00, 00 Xxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Securitisation Manager
Facsimile No: (00) 0000 0000 Telephone No: (00) 0000 0000
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: None.
Party B appoints as its Process Agent: None.
(c) OFFICES. The provisions of Section 10(a) will not apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
In relation to Party A: Nil
In relation to Party B: Security Trust Deed
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means:
In relation to Party A: Xx.Xxxxxx
In relation to Party B: Nil
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws in force in New South Wales and Section 13(b)(i)
is deleted and replaced with the following:
each party submits to the non-exclusive jurisdiction of the courts of New
South Wales and Court of Appeal from them.
(i) NETTING OF PAYMENTS. Sub-paragraph (ii) of Section 2(c) of this Agreement
will apply to net Transactions in the same Confirmation and will not apply
to net Transactions specified in different Confirmations.
(j) AFFILIATE will have the meaning specified in Section 14 of this Agreement.
For the purpose of Section 3(c), each of Party A and Party B are deemed not
to have any Affiliates.
PART 5. OTHER PROVISIONS
(a) ISDA DEFINITIONS: This Agreement, each Confirmation and each Transaction
are subject to the 2000 ISDA Definitions (published by the International
Swaps and Derivatives Association, Inc.) as amended from time to time (the
"ISDA DEFINITIONS"), and will be governed in all respects by any provisions
set forth in the ISDA Definitions, without regard to any amendments to the
ISDA Definitions made after the date of this Agreement. The ISDA
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Definitions are incorporated by reference in, and shall be deemed to be
part of this Agreement and each Confirmation.
(b) In Section 2(a)(ii), after freely transferable funds add free of any
set-off, counterclaim, deduction or withholding (except as expressly
provided in this Agreement).
(c) A new Section 2(a)(iv) is inserted as follows:
(iv) The condition precedent in Section 2(a)(iii)(1) does not apply to a
payment due to be made to a party if it has satisfied all its payment
obligations under Section 2(a)(i) of this Agreement and has no future
payment obligations, whether absolute or contingent under Section
2(a)(i).
(d) For the purpose of Section 2(b) of this Agreement, CHANGE OF ACCOUNT, any
new account so designated shall be in the same tax jurisdiction as the
original account.
(e) ADDITIONAL REPRESENTATIONS: In Section 3 add the following immediately
after paragraph (f):
(g) Non Assignment. It has not assigned (whether absolutely, in
equity or otherwise) or declared any trust over any of its rights
under any Transaction (other than, in respect of Party B, the
trusts created pursuant to the Trust Deed) and has not given any
charge over its assets, in the case of Party A, or the assets of
the Trust (other than as provided in the Security Trust Deed), in
the case of Party B.
(f) Party B also represents to Party A (which representations will be deemed to
be repeated by Party B on each date on which a Transaction is entered into)
that:
(i) TRUST VALIDLY CREATED. The Trust has been validly created and is in
existence at the date of this Agreement.
(ii) SOLE TRUSTEE. Party B has been validly appointed as trustee of the
Trust and is presently the sole trustee of the Trust.
(iii) NO PROCEEDINGS TO REMOVE. No notice has been given to Party B and to
Party B's knowledge no resolution has been passed, or direction or
notice has been given, removing Party B as trustee of the Trust.
(iv) POWER. Party B has power under the Trust Deed to enter into this
Agreement and the Security Trust Deed in its capacity as trustee of
the Trust.
(v) GOOD TITLE. Party B is the lawful owner of the Assets of the Trust
and has power under the Trust Deed to mortgage or charge them in the
manner provided in the Security Trust Deed, and, subject only to the
Trust Deed, the Security Trust Deed and any Security Interest (as
defined in the Trust Deed) permitted under the Security Trust Deed,
as far as Party B is aware, those assets are free from all other
Security Interests (other than Party B's indemnity from the Assets of
the Trust).
(g) In Section 3(c):
(i) delete the words AGENCY OR OFFICIAL; and
(ii) in the third line, insert "materially" before the word AFFECT.
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(h) In Section 4 add a new paragraph as follows:
(f) CONTRACTING AS PRINCIPAL. Party A and Xx.Xxxxxx xxxx enter into all
Transactions as principal and not otherwise and Party B will enter
into all Transactions in its capacity as trustee of the Trust and not
otherwise.
(i) In Section 6(d)(i), in the last line, insert IN THE ABSENCE OF MANIFEST
ERROR after the word EVIDENCE.
(j) CONFIRMATIONS. Notwithstanding the provisions of Section 9(e)(ii), each
Confirmation in respect of a Swap Transaction which is confirmed by
electronic messaging system, an exchange of telexes or an exchange of
facsimiles will be further evidenced by an original Confirmation signed by
the parties, however any failure to sign an original Confirmation will not
affect the validity or enforceability of any Swap Transaction.
(k) Section 12 is amended as follows:
(i) in Section 12(a), insert and settlement instructions requiring payment
to an entity other than the original counterparty after Section 5 or 6
in line 2.
(ii) Section 12(a)(iii) is replaced with:
(iii) if sent by facsimile transmission, on the date a
transmission report is produced by the machine from which
the facsimile was sent which indicates that the facsimile
was sent in its entirety to the facsimile number of the
recipient notified for the purpose of this Section, unless
the recipient notifies the sender within one Local Business
Day of the facsimile being sent that the facsimile was not
received in its entirety and in legible form.
(l) Any reference to a:
(i) SWAP TRANSACTION in the ISDA Definitions is deemed to be a reference
to a "Transaction" for the purpose of interpreting this Agreement or
any Confirmation; and
(ii) TRANSACTION in this Agreement or any Confirmation is deemed to be a
reference to a "Swap Transaction" for the purpose of interpreting the
ISDA Definitions.
(m) TRUST DEED means the Master Trust Deed dated 14 March 1998 as amended by
Crusade Global Trust No. 1 of 2007 Supplementary Terms Notice dated on or
about the date of this Agreement between (among others) Party B, Party A
and the Manager, and each of the following expressions shall have the
meanings given to them in the Trust Deed:
APPROVED BANK
APPROVED SELLER
ASSETS
BANK
CLASS
DESIGNATED RATING AGENCY
FLOATING RATE LOAN
HOUSING LOAN PRINCIPAL
INSOLVENCY EVENT
LOAN OFFSET INTEREST AMOUNT
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MANAGER
MASTER TRUST DEED
NOTE
PAYMENT DATE
PURCHASED RECEIVABLE
SECURITY TRUST DEED
TRUST
(n) TRUST DEED: The Parties acknowledge and agree that for the purposes of the
Trust Deed, this Agreement is a HEDGE AGREEMENT and each of Party A and
Xx.Xxxxxx is a SUPPORT FACILITY PROVIDER.
(o) Agreement by Xx.Xxxxxx to act as Standby Basis Swap Provider:
A new Section 15 is added as follows:
15. Standby Basis Swap Provider
(a) Xx.Xxxxxx agrees with Party B that if:
(i) Party A is obliged to make a payment under a
Confirmation on any day; and
(ii) Party A does not make that payment by 2pm (Sydney time)
on that day,
then Xx.Xxxxxx must, as a principal obligation, pay that
amount in full to Party B by no later than 4pm (Sydney time)
on that date.
(b) Xx.Xxxxxx shall be obliged to make only one payment under
paragraph (a) in respect of a Confirmation.
(c) Xx.Xxxxxx shall make each such payment in full, without any
set off, counterclaim or exercise of any similar right or
defence, other than any netting permitted under this
Agreement.
(d) (i) Xx.Xxxxxx's obligations under this clause commence on
the Effective Date (specified in the relevant
Confirmation) and terminate on the date 364 days after
the Effective Date ("EXPIRY DATE").
(ii) If Xx.Xxxxxx does not wish to extend the period for
which it is obliged to make a further payment under
paragraph (a) beyond an Expiry Date and for a further
period of 364 days, it shall give notice to Party A
(with a copy to the Designated Rating Agencies and
Party B) no later than 90 days before the Expiry Date.
(iii) Unless Xx.Xxxxxx gives notice to Party A under Section
15(d)(ii) its obligations under this Agreement will
continue for a further period of 364 days from the
Expiry Date. The Expiry Date may be extended more than
once in accordance with this paragraph.
(iv) If Xx.Xxxxxx does not extend the Expiry Date under
this paragraph (d), it shall constitute an Additional
Termination
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Event unless Party A complies with Section 16(c) and
Party A shall be the Affected Party for this purpose.
(e) In consideration of Xx.Xxxxxx agreeing to act as Standby
Basis Swap Provider, and so long as Xx.Xxxxxx has any
obligations under paragraph (a), Party B agrees to pay to
Xx.Xxxxxx monthly in arrears a fee of A$2,000. This fee is
payable on each Monthly Payment Date, subject to the
cashflow allocation methodology in the Supplementary Terms
Notice.
(f) Subject to section 18, in consideration of Xx.Xxxxxx
agreeing, at the request of Party A, to act as Standby Basis
Swap Provider, Party A agrees to indemnify Xx.Xxxxxx on
demand against any loss, charge, liability or expense that
Xx.Xxxxxx may sustain or incur as a direct or indirect
consequence of Party A failing to comply with this
obligations under this Agreement, or the Manager requiring
Xx.Xxxxxx to make a payment under this Agreement.
(g) Xx.Xxxxxx's obligations under this Agreement shall survive
the termination of this Agreement, and any winding up or
insolvency of Party A.
(p) A new Section 16 is added as follows:
16. DOWNGRADE
(a) For the purpose of this Section 16 the following additional
definitions apply:
APPROVED BANK means a Bank which has a short-term rating of at least
A-1+ (S&P), at least P-1 (short-term) and A2 (long-term) (Xxxxx'x) and
at least F1 (short term) (Fitch Ratings).
DOWNGRADE means, in respect of Xx.Xxxxxx, its rating by a Designated
Rating Agency has been withdrawn or reduced resulting in Xx.Xxxxxx
having:
(i) a credit rating of less than A-1 (short term) by S & P;
(ii) a credit rating by Xxxxx'x of less than P-1 (short term) or A2
(long term); or
(iii) a credit rating by Fitch Ratings of less than F1 (short term) or
A (long term).
NOTE DOWNGRADE means any actual or proposed withdrawal or downgrade of
the ratings assigned to any Class of Notes by a Designated Rating
Agency which results or would result in any rating assigned to that
Class of Notes being less than that stipulated in Section 4.2(f) of
the Supplementary Terms Notice.
SWAP COLLATERAL ACCOUNT means an account established by Party B with
an Approved Bank.
(b) If, on any Determination Date, Xx.Xxxxxx is Downgraded and the
Threshold Rate is greater than the Mortgage Rate (as defined in the
Basis Swap Confirmation), Party A shall immediately (in any event no
later than 3 Business Days) deposit into a Swap Collateral Account and
maintain in the Swap Collateral Account (whilst the relevant Downgrade
subsists and the Threshold Rate is greater than the Mortgage Rate) the
amount of the next payment that is due to be paid by Party A (the SWAP
COLLATERAL AMOUNT).
(c) If Xx.Xxxxxx does not extend the term of its obligations under Section
15(d)(ii) and Party A receives notice from the Manager of a Note
Downgrade, Party A shall immediately (in any
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event no later than 3 Business Days) deposit into a Swap Collateral
Account and maintain in the Swap Collateral Account (whilst the
relevant Note Downgrade subsists and the Threshold Rate is greater
than the Mortgage Rate) the Swap Collateral Amount.
(d) All interest on the Swap Collateral Account will accrue and be payable
monthly to the party which provides the relevant Swap Collateral
Amount.
(e) Party B may make withdrawals from the Swap Collateral Account only for
the purpose of:
(i) refunding to Party A the amount of any reduction in the Swap
Collateral Amount, from time to time;
(ii) withdrawing any amount which has been incorrectly deposited into
the Swap Collateral Account;
(iii) paying any applicable bank account taxes or equivalent payable
in respect of the Swap Collateral Account; or
(iv) 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.
(f) If, a Downgrade no longer applies to Xx.Xxxxxx, Party A shall be
immediately entitled to any cash collateral amount which it has
deposited in the Swap Collateral Account, less any amounts used or to
be used by Party B under paragraphs (e)(i) or (e)(iv).
(g) Where Party A fails to comply with Section 16(b) or (c), this shall
constitute an Additional Termination Event and Party A shall be the
Affected Party for this purpose.
(q) A new Section 17 is added as follows:
17. Party B provisions
(a) Limitation of liability
(A) General
Clause 30 of the Master Trust Deed applies to the
obligations and liabilities of Party B under this agreement.
(B) Limitation of Party B's Liability
(1) Party B enters into this agreement only in its capacity
as trustee of the Trust and in no other capacity
(except where the Transaction Documents provide
otherwise). Subject to paragraph (3) below, a liability
arising under or in connection with this agreement or
the Trust can be enforced against Party B only to the
extent to which it can be satisfied out of the assets
and property of the Trust which are available to
satisfy the right of Party B to be exonerated or
indemnified for the liability. This limitation of Party
B's liability applies despite any other provision of
this agreement and extends to all liabilities and
obligations of Party B in any way connected with any
representation, warranty, conduct, omission, agreement
or transaction related to this agreement or the Trust.
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(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.
(3) The provisions of this section 17 shall not apply to
any obligation or liability of Party B to the extent
that it is not satisfied because under a Transaction
Document or by operation of law there is a reduction in
the extent of Party B's indemnification or exoneration
out of the Assets of the Trust as a result of Party B's
fraud, negligence, or Default.
(4) It is acknowledged that the Relevant Parties are
responsible under the Transaction Documents for
performing a variety of obligations relating to the
Trust. No act or omission of Party B (including any
related failure to satisfy its obligations under this
agreement) will be considered fraud, negligence or
Default of Party B for the purpose of subparagraph (3)
above to the extent to which the act or omission was
caused or contributed to by any failure by any Relevant
Party or any person who has been delegated or appointed
by Party B in accordance with this agreement or any
other Transaction Document to fulfil its obligations
relating to the Trust or by any other act or omission
of a Relevant Party or any such person.
(5) In exercising their powers under the Transaction
Documents, each of Party B, the Security Trustee and
the Noteholders must ensure that no attorney, agent,
delegate, receiver or receiver and manager appointed by
it in accordance with this agreement has authority to
act on behalf of Party B in a way which exposes Party B
to any personal liability and no act or omission of any
such person will be considered fraud, negligence, or
Default of Party B for the purpose of subparagraph (3)
above.
(6) In this clause, RELEVANT PARTIES means each of the
Manager, the Servicer, the Calculation Agent, the Note
Registrar, each Paying Agent, the Note Trustee, and the
provider of a Support Facility.
(7) Nothing in this clause limits the obligations expressly
imposed on Party B under the Transaction Documents.
(b) Nothing in paragraph (a) or (c) limits Party A in:
(i) obtaining an injunction or other order to restrain any
breach of this Agreement by Party B;
(ii) obtaining declaratory relief; or
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(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 section
459E(1) of the Corporations Act 2001 (Cth) (or any
analogous provision under any other law) against Party
B;
(iii) (WINDING UP) apply for the winding up or dissolution
of Party B;
(iv) (EXECUTION) levy or enforce any distress or other
execution to, on or against any assets of Party B;
(v) (COURT APPOINTED RECEIVER) apply for the appointment
by a court of a receiver to any of the assets of Party
B;
(vi) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise
any set-off or counterclaim against Party B (other
than netting in accordance with this Agreement); or
(vii) (ADMINISTRATOR) appoint, or agree to the appointment,
of any administrator to Party B,
or take proceedings for any of the above and Party A waives
its rights to make those applications and take those
proceedings.
(r) A new Section 18 is added as follows:
18. Party A provisions
(a) Notwithstanding any other provision of this Agreement or any
Confirmation, Party A's obligation to pay any amount to
Party B or Xx.Xxxxxx is limited to Party A's assets from
time to time.
(b) Nothing in paragraph (a) or (c) limits Party A in:
(i) obtaining an injunction or other order to restrain any
breach of this Agreement by Party B;
(ii) obtaining declaratory relief; or
(iii) in relation to its rights under the Security Trust
Deed.
(c) Except as provided in paragraphs (a) and (b), Party B shall
not:
(i) (JUDGMENT) obtain a judgment for the payment of money
or damages by Party A;
(ii) (STATUTORY DEMAND) issue any demand under section
459E(1) of the Corporations Act 2001 (Cth) (or any
analogous provision under any other law) against Party
A;
(iii) (WINDING UP) apply for the winding up or dissolution
of Party A;
(iv) (EXECUTION) levy or enforce any distress or other
execution to, on or against any assets of Party A;
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(v) (COURT APPOINTED RECEIVER) apply for the appointment
by a court of a receiver to any of the assets of Party
A;
(vi) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise
any set-off or counterclaim against Party A (other
than netting in accordance with this Agreement); or
(vii) (ADMINISTRATOR) appoint, or agree to the appointment,
of any administrator to Party A,
or take proceedings for any of the above and Party B waives
its rights to make those applications and take those
proceedings.
(d) Nothing in this Section 18 in any way limits Xx.Xxxxxx's
obligations under Section 15.
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.
CRUSADE MANAGEMENT LIMITED
By: /s/ Xxxxxx Xxxxx Witness: /s/ Xxxxx Xxxxxxxx
---------------------------------- ------------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxx Xxxxxxxx
Title: Attorney Title: Lawyer
Date: 13/3/07 Date: 13/3/07
XX.XXXXXX BANK LIMITED
By: /s/ Xxxxxx Xxxxx Witness: /s/ Xxxxx Xxxxxxxx
---------------------------------- ------------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxx Xxxxxxxx
Title: Attorney Title: Lawyer
Date: 3/13/07 Date: 3/13/07
Page 12
ISDA Schedule to the Master Agreement for
Basis Swap [Allens Xxxxxx Xxxxxxxx LOGO]
--------------------------------------------------------------------------------
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
as trustee of the Crusade Global Trust No. 1 of 2007
By: /s/ Xxxxxx Xxxxx Xxxxxxx: /s/ Xxxxx Xxxxxxxx
---------------------------------- ------------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxx Xxxxxxxx
Title: Manager Title: Lawyer
Date: 13/03/07 Date: 13/03/07
Page 13
To: Perpetual Trustees Consolidated Limited as trustee of
Crusade Global Trust No.1 of 2007
Attention: Manager, Securitisation
Copy to: Xx.Xxxxxx Bank Limited
Attention: Xxxxx Xxxxxxxxxxxxx
From: Crusade Management Limited
Date: 13 March 2007
Subject: CONFIRMATION OF BASIS SWAP
Reference No: Crusade Global Trust No.1 of 2007
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below. This
letter constitutes a "Confirmation" as referred to in the Master Agreement and
the Schedule to the Master Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions as amended
from time to time published by the International Swap and Derivatives
Association, Inc or in the Master Trust Deed and Supplementary Terms Notice (as
defined in the Master Agreement and the Schedule to the Master Agreement
specified below) are incorporated in this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation,
this Confirmation will govern. References herein to a "Transaction" shall be
deemed to be references to a "Swap Transaction" for the purposes of the 2000
ISDA Definitions.
1. This Confirmation supplements, forms part of, and is subject to, the Master
Agreement dated on or about 13 March 2007 and the Schedule to the Master
Agreement dated or about 13 March 2007 as amended and supplemented from time to
time (the "Agreement") between the parties. All provisions contained in the
Agreement govern this Confirmation except as expressly modified below.
In this Confirmation "Party A" means Crusade Management Limited and "Party B"
means Perpetual Trustees Consolidated Limited as trustee of the Crusade Global
Trust No.1 of 2007.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: Housing Loan Principal for all Floating Rate Loans as
calculated on the first day to which that Monthly Payment Date relates.
Page 1
Trade Date: Note Issue Date
Effective Date: 15 March 2007
Termination Date: 364 Days after the Effective Date (subject to adjustment in
accordance with the Modified Following Business Day Convention). The Transaction
may be renewed for a further 364 days with the agreement of the parties.
Reset Dates: The Effective Date and then each Monthly Payment Date, subject to
adjustment in accordance with the Modified Following Business Day Convention.
Monthly Payment 19th day of each month
Dates: subject to adjustment in accordance with the Modified Following Business
Day Convention
MORTGAGE RATE AMOUNTS
Mortgage Rate: Weighted average variable rate of interest applicable to the
Floating Rate Loans at that Reset Date.
Mortgage Rate Payer: Perpetual Trustees Consolidated Limited as trustee of the
Crusade Global Trust No.1 of 2007
Mortgage Rate Each Monthly Payment Date, up to and including the
Payer Payment last Monthly Payment Date. This is subject to
Dates: adjustment in accordance with the Modified Following Business Day
Convention.
The first Payment Date will be 19 April 2007.
Mortgage Rate
Payments (Notional Amount) x (Mortgage Rate) x (Number of days between Reset
Dates / 365). Party B is not obliged to pay any amount which is attributable to
any Break Payment which is due by, but not received from, an Obligor or any Loan
Offset Interest Amount which is due by, but not received from, the Approved
Seller, and the failure by Party B to pay that amount will not be an Event of
Default.
Page 2
Mortgage Rate Day Actual / 365 (fixed).
Count Fraction:
Designated
Maturity 30 days, with the exception of the initial Calculation Period which
will be a Linear Interpolation by reference to two rates, one of which shall be
determined as if the Designated Maturity were 1 month and the other of shall be
determined as if the Designated Maturity were 2 months.
Spread: Nil.
Business Days: Sydney, New York, London and TARGET
FLOATING AMOUNTS
Floating Rate: Weighted Average Australian Bank Bill Rate, which is the sum of:
(a) One Month Bank Bill Rate (as at the start of the Monthly Interest Period for
that monthly payment date) multiplied by the proportion which the aggregate
Invested Amount of the Class A-3 notes bears to the aggregate Invested Amount of
all notes as at the start of that Monthly Interest Period; and
(b) Three Month Bank Xxxx Xxxx (as at the start of the current Quarterly
Interest Period) multiplied by the proportion which the aggregate Invested
Amount of the Class A-1 notes, Class A-2 Notes, the Class B notes and the Class
C notes bears to the aggregate Invested Amount of all notes as at the start of
that Monthly Interest Period.
Floating Rate Crusade Management Limited.
Payer:
Floating Rate Each Monthly Payment Date, up to and including the
Payment Dates: last Monthly Payment Date. This is subject to adjustment in
accordance with the Modified Following Business Day Convention.
The first Payment Date will be 19 April 2007.
Page 3
Spread: The weighted average coupon on all Notes in respect of the relevant
Monthly Payment date plus 0.75% per annum.
Floating Rate (Floating Rate + Spread) x (Notional Amount) x (number of days
Payment: between Reset Dates / 365).
Floating Rate Each Floating Rate Payment Date.
Reset Dates:
Floating Rate Day Actual / 365 (fixed).
Count Fraction:
Designated
Maturity 30 days, with the exception of the initial Calculation Period which
will be a Linear Interpolation by reference to two rates, one of which shall be
determined as if the Designated Maturity were 1 month and the other shall be
determined as if the Designated Maturity were 2 months.
Netting of Applicable.
Payments:
Compounding: Inapplicable.
Business Days: Sydney, New York, London and TARGET
Calculation Agent: Crusade Management Limited
PAYMENTS TO THE FLOATING RATE PAYER
Account for Crusade Management Limited
Payment in AUD: Xx.Xxxxxx Bank Limited
Level 00, 00 Xxxxxx Xx
Xxxxxx, XXX 0000
Page 4
Swift Code: SGBL AU2S
Sort Code: RTGS MM
BSB: 112-601
PAYMENTS TO THE MORTGAGE RATE PAYER
Account for Perpetual Trustees Consolidated Limited as trustee of
Payment in AUD: Crusade Global Trust No.1 of 2007
Bank: Xx.Xxxxxx Bank
BSB: 332-027
Account No: 000-000-000
PAYMENTS TO Xx.Xxxxxx Bank (as Standby Interest Rate Swap Provider) (IF
APPLICABLE)
Account for Xx.Xxxxxx Bank Limited
Payment in AUD: Level 00, 00 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
Swift Code: SGBL AU 2S
Sort Code: RTGS-MM
BSB: 112-601
The office of the Mortgage Rate Payer for the Swap Transaction is Sydney, and
the Office of the Floating Rate Payer for the Swap Transaction is Sydney.
3. This is the Basis Swap for the purposes of the Supplementary Terms Notice
dated on or before 13 March 2007, relating to Crusade Global Trust No.1 of 2007
4. Address for notices in connection with this Transaction
(a) Party A: Crusade Management Limited
Level 0, 0-00 Xxxxxxxxxx Xxxxxx, Xxxxxxx
Attn: Compliance Manager
Telephone: 000 0000-0000
Page 5
Facsimile: 000 0000-0000
(b) Party B: Perpetual Trustees Consolidated Limited
Angel Place, Level 00, 000 Xxxx Xxxxxx, Xxxxxx
Attn: Manager - Securitisation
Telephone: 000 0000-0000
Facsimile: 000 0000-0000
(c) Xx.Xxxxxx Bank: Xx.Xxxxxx Bank Limited
Level 00, 00 Xxxxxx Xxxxxx, Xxxxxx
Attn: Manager, Securitisation
Telephone: 000 0000-0000
Facsimile: 000 0000-0000
5. Documents to be delivered
Each party shall deliver to the other, at the time of its execution of this
Confirmation, evidence of the specimen signature and incumbency of each person
who is executing the Confirmation on the party's behalf, unless such evidence
has previously been supplied in connection with this Agreement and remains true
and in effect.
6. Relationship between the parties
Each party will be deemed to have represented to the other party on the Trade
Date that (lacking a written agreement between the parties that expressly
imposes affirmative obligations to the contrary for this Transaction):
(a) Non-Reliance. It is acting for its own account (in the case of Party B as
Trustee for the Trust), and it has made its own independent decision to enter
into this Transaction and as to whether this Transaction is appropriate or
proper for it based upon its own judgement (and in the case of Party B also the
Manager) and upon advice from such advisers as it has deemed necessary. It is
not relying on any communication (written or oral) of the other party as
investment advice or as a recommendation to enter into this Transaction; it
being understood that information and explanations related to the terms and
conditions of this Transaction shall not be considered investment advice or a
recommendation to enter into this Transaction. No communication (written or
oral) received from the other party shall be deemed to be an assurance or
guarantee as to the expected results of this Transaction.
(b) Assessment and Understanding. It is capable of assessing the merits of and
understanding (on its own behalf or through independent professional advice),
and understands and accepts, the terms, conditions and risks of this
Transaction. It is capable of assuming, and assumes the risks of this
Transaction.
Page 6
(c) Status of Parties. The other party is not acting as a fiduciary for or an
adviser to it in respect of this Transaction.
7. Compliance with Regulation AB.
(a) Xx.Xxxxxx has been advised that Party A is required under Regulation AB
under the Securities Act of 1933 and the Securities Exchange Act of 1934, as
amended ("Regulation AB"), to disclose certain financial information regarding
Xx.Xxxxxx depending on the applicable "significance percentage" of this
Confirmation, as calculated from time to time in accordance with Item 1115 of
Regulation AB.
(b) If required, Xx.Xxxxxx shall provide to Party A the applicable financial
information described under Item 1115 of Regulation AB (the "Reg AB
Information") within ten (10) Local Business Days of receipt of a written
request for such Reg AB Information by Party A (the "Response Period"), so long
as Party A has reasonably determined, in good faith, that such information is
required under Regulation AB; provided, however that if Xx.Xxxxxx in good faith
determines that it is unable to provide the Reg AB Information within the
Response Period, then, subject to receipt of confirmation by each Designated
Rating Agency that such action shall not result in withdrawal or downgrade of
any credit rating assigned, by it, to the Notes, (i) Xx.Xxxxxx shall cause a Reg
AB Approved Entity (as defined below) to replace Xx.Xxxxxx as party to this
Confirmation on terms substantially similar to this Confirmation prior to the
expiration of the Response Period, and (ii) such Reg AB Approved Entity shall
provide the Reg AB Information prior to the expiration of the Response Period.
"Reg AB Approved Entity" means any entity that (i) has the ability to provide
the Reg AB Information and (ii) is a Replacement Provider. If Party A requests
(in writing) the Reg AB Information from Xx.Xxxxxx, then Party A shall promptly
(and in any event within three (3) Local Business Days of the date of the
request for the Reg AB Information) provide Xx.Xxxxxx with a written explanation
of how the significance percentage was calculated.
(c) Xx.Xxxxxx (or, if applicable, the Reg AB Approved Entity) shall indemnify
and hold harmless Party A, its directors or officers and any person controlling
Party A, from and against any and all losses, claims, damages and liabilities
caused by (i) any untrue statement or alleged untrue statement of a material
fact contained in any information that Xx.Xxxxxx or such Reg AB Approved Entity,
as applicable, provides to Party A pursuant to this Paragraph (c) (the
"Xx.Xxxxxx Information") or caused by any omission or alleged omission to state
in the Xx.Xxxxxx Information a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; or (ii) any failure by Xx.Xxxxxx to
deliver any information or other material when and as required under this
Section 7.
PLEASE NOTIFY US IMMEDIATELY SHOULD THE PARTICULARS OF THIS CONFIRMATION NOT BE
IN ACCORDANCE WITH YOUR UNDERSTANDING.
PLEASE QUOTE OUR REFERENCE ON ALL CORRESPONDENCE.
Page 7
Regards,
Signed for and on behalf of
Crusade Management Limited, by its attorney
/s/ Xxxxxx Xxxxx /s/ Xxxxx Xxxxxxxx
---------------------------------------- -------------------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxx Xxxxxxxx
Title: Title: Lawyer
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the enclosed copy of this confirmation and returning it
to us.
Confirmed as of date first written:
For and on behalf of
Perpetual Trustees Consolidated Limited
(as trustee of the Crusade Global Trust No.1 of 2007)
/s/ Xxxxxx Xxxxx /s/ Xxxxx Xxxxxxxx
---------------------------------------- -------------------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxx Xxxxxxxx
Title: Manager Title: Lawyer
Confirmed as of date first written:
For and on behalf of
Xx.Xxxxxx Bank Limited
(as Standby Basis Swap Provider)
/s/ Xxxxxx Xxxxx /s/ Xxxxx Xxxxxxxx
---------------------------------------- -------------------------------------
Name: Xxxxxx Xxxxx Witness Name: Xxxxx Xxxxxxxx
Title: Title: Lawyer
Page 8
