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AGREEMENT FOR BASIS SWAP
▇▇.▇▇▇▇▇▇ BANK LIMITED
PERPETUAL TRUSTEES CONSOLIDATED LIMITED AS TRUSTEE OF THE
CRUSADE GLOBAL TRUST NO. 2 OF 2001
CRUSADE MANAGEMENT LIMITED
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
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The Chifley Tower
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(C) Copyright ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2001
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DATE
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PARTIES
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1. ▇▇.▇▇▇▇▇▇ BANK LIMITED (ABN 92 055 513 070) (PARTY A)
2. PERPETUAL TRUSTEES CONSOLIDATED LIMITED (ABN 81 004 387 133) as
trustee of THE CRUSADE GLOBAL TRUST NO. 2 OF 2001 (PARTY B)
3. CRUSADE MANAGEMENT LIMITED (ABN 90 072 715 916) (MANAGER)
4. CREDIT SUISSE FIRST BOSTON INTERNATIONAL (CSFBI )
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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 and Party B.
(c) The BANKRUPTCY provisions of Section 5(a)(vii) are replaced by "An
Insolvency Event has occurred in respect of the Party A, Party B or CSFBI".
The occurrence of an Insolvency Event in respect of Party B in its personal
capacity will not constitute an Event of Default provided that within
thirty Business Days of that occurrence, Party A, Party B, the Manager and
CSFBI 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.
(d) Section 5(a)(i) is amended to replace THIRD with TENTH and the following
sentence is added:
Even if CSFBI makes a payment under this Agreement, a failure by Party
A to remedy, within the period stipulated in this subsection 5(a)(i),
its failure to make that payment or delivery by the due date shall
still constitute an Event of Default.
For the avoidance of doubt Party B, but without limiting Section 16, 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.
(e) The AUTOMATIC EARLY TERMINATION provision of Section 6(a):
will not apply to Party A
will not apply to Party B
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
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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. Subject to Section 15(w) only, 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 and Section
6(e) shall not apply.
(g) There is no Termination Currency.
(h) An ADDITIONAL TERMINATION EVENT set out in Part 5(q) 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"), 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) novate 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 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, Party B
and CSFBI 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 section (ii) 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.
(b) PAYEE TAX REPRESENTATIONS.
For the purpose of Section 3(f) of this Agreement, each of Party A 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
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carrying on business in a country outside Australia at or through a
permanent establishment of itself in that country.
(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 (including CSFBI)
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 ▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Middle Office Compliance Manager
Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇ Telephone No: (▇▇) ▇▇▇▇ ▇▇▇▇
Address for notices or communications to Party B:
Address: Level ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Manger, Securitisation
Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇ Telephone No: (▇▇) ▇▇▇▇ ▇▇▇▇
Address for notices or communications to the Manager:
Address: Level ▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Middle Office Compliance Manager
Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇ Telephone No: (▇▇) ▇▇▇▇ ▇▇▇▇
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Address for notices or communications to CSFBI:
(i) in the case of all communications (other than facsimile
communications):
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Attention: (1) Head of Credit Risk Management;
(2) Managing Director - Operations Department;
(3) Director - Legal and Compliance Department.
Telex No.: 264521
Answerback: CSFBI G
and
(ii) a copy of each communication sent to the address in sub-paragraph (i)
(other than a notice or communication under Section 5 or 6), and any
facsimile communications
Facsimile No.: 020 7888 2686
Attention: Managing Director - Legal and Compliance Department
Telephone number for oral confirmation of receipt of facsimile in
legible form: 020 7888 2028. Designated responsible employee for the
purposes of Section 12(a)(iii): Senior Legal Secretary
(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.
CSFBI appoints as its Process Agent:
Credit Suisse First Boston International (Australia) Limited.
Address: Level ▇▇ ▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
Tel: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇; Fax: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
(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.
CSFBI is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is the Manager unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(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: CSFBI
In relation to Party B: Nil.
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(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
Definitions are incorporation by reference in, and shall be deemed to be
part of this Agreement and each Confirmation.
(b) 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.
(c) 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).
(d) 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).
(e) 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.
(F) 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.
(g) 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.
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(ii) SOLE TRUSTEE. Party B has been validly appointed as trustee
of the Trust and is presently the sole trustee of the Trust.
(iii) NO PROCEEDINGS TO REMOVE. No notice has been given to Party B
and to Party B's knowledge no resolution has been passed, or
direction or notice has been given, removing Party B as
trustee of the Trust.
(iv) POWER. Party B has power under the Trust Deed to enter into
this Agreement and the Security Trust Deed in its capacity as
trustee of the Trust.
(v) GOOD TITLE. Party B is the equitable owner of the Assets of
the Trust and has power under the Trust Deed to mortgage or
charge them in the manner provided in the Security Trust Deed,
and, subject only to the Trust Deed, the Security Trust Deed
and any Security Interest (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
(h) In Section 3(c)
(i) delete the words AGENCY OR OFFICIAL; and
(ii) in the third line, insert "materially" before the word AFFECT.
(i) In Section 4 add a new paragraph as follows:
(f) CONTRACTING AS PRINCIPAL. Party A and CSFBI will enter into
all Transactions as principal and not otherwise and Party B
will enter into all Transactions in its capacity as trustee of
the Trust and not otherwise.
(j) In Section 6(d)(i), in the last line, insert IN THE ABSENCE OF MANIFEST
ERROR after the word EVIDENCE.
(K) 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.
(l) (j) 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.
(m) 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
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(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.
(n) The SEPTEMBER 1992 AUSTRALIAN ADDENDUM NO. 10 - (AS AMENDED IN MARCH
1994) NETTING TO SCHEDULE TO MASTER AGREEMENT OF INTERNATIONAL SWAPS
AND DERIVATIVES ASSOCIATION, INC. is deemed to be incorporated in this
Agreement, except that in the event of any inconsistency between that
addendum and this Schedule or any Confirmation, the Confirmation or
this Schedule shall take precedence.
(O) TRUST DEED means the Master Trust Deed dated 14 March 1998 as amended
by the Crusade Global Trust No. 2 of 2001 Supplementary Terms Notice
dated on or about the date of this Agreement between 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
MASTER TRUST DEED
NOTE
PAYMENT DATE
PURCHASED RECEIVABLE
SECURITY TRUST DEED
TRUST
(P) TRUST DEED: The Parties acknowledge and agree that for the purposes of
the Trust Deed, this Agreement is an HEDGE AGREEMENT and Party A and
CSFBI are SUPPORT FACILITY PROVIDERS.
(q) Agreement by CSFBI to act as Standby Basis Swap Provider:
A new Section 15 is added as follows:
15. ▇▇▇▇▇▇▇ BASIS SWAP PROVIDER
(b) For the purpose of this section 15 the following additional
definitions apply:
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.
ACCEPTABLE RATING means, at any time, that Party A's long term rating
from S&P is not below A- and its short term rating from S&P is not
below A-1.
(C) APPROVED BANK means a Bank which has a short- term rating of at
least A-1+ (S&P), P-1 (▇▇▇▇▇'▇) and F1 (Fitch).
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CR means the amount calculated in accordance with the following
formula:
CR = MTM + VB
where
MTM means the mark-to-market value of the Swap. Party A must mark the
swap to market and post collateral on a weekly basis, with a cure
period of 3 Business Days. The mark-to-market value should reflect the
higher of 2 bids from counterparties that will be eligible and willing
to provide the swap in the absence of Party A.
VB means the volatility buffer, being the relevant percentage
calculated from the table below:
VOLATILITY BUFFER
COUNTERPARTY RATING MATURITIES UP TO 5 MATURITIES UP TO 10 MATURITIES MORE THAN
YEARS YEARS 10 YEARS
A+ 1.05 1.75 3.0
A 1.35 2.45 4.5
A- 1.5 3.15 6.0
DOWNGRADE means CSFBI's rating by a Designated Rating Agency has been
withdrawn or reduced resulting in CSFBI having:
(i) a long term rating of less than AA- by S&P and a short term
credit rating of less than A-1+ by S&P;
(ii) a short term credit rating by ▇▇▇▇▇'▇ of less than Prime-1; or
(iii) a short term rating of less than F1 by Fitch.
MAJOR CSFBI DOWNGRADE means a CSFBI Downgrade resulting in CSFBI
having:
(i) a long term credit rating by S&P of less than A- and a short term
credit rating by S&P of less than A-1;
(i) a short term credit rating by ▇▇▇▇▇'▇ of less than Prime-2; or
(ii) a short term credit rating by Fitch of less than F1.
MINOR CSFBI DOWNGRADE means any CSFBI Downgrade which is not a Major
CSFBI Downgrade.
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.
REPLACEMENT PROVIDER means:
(i) where Party A notifies CSFBI that it elects to replace itself as
Basis Swap Provider, then a Replacement Swap Provider; or
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(ii) where Party A notifies CSFBI that it elects to replace CSFBI as
Standby Basis Swap Provider, then a Replacement Standby Swap
Provider.
REPLACEMENT STANDBY SWAP PROVIDER means a party that has agreed to
replace CSFBI as Standby Basis Swap Provider and has a rating greater
than or equal to:
(i) A-1 by S&P;
(ii) F1 by Fitch; and
(iii) who is suitably rated such that its appointment as standby swap
provider does not result in a Note Downgrade by ▇▇▇▇▇'▇.
REPLACEMENT SWAP PROVIDER means a party that has agreed to replace
Party A as Basis Swap Provider, and the appointment of which each
Designated Rating Agency has confirmed, in writing, will not result in
a Note Downgrade and which CSFBI has approved in writing (which
approval will not be unreasonably withheld).
TIME STIPULATED means:
(i) where Party A has an Acceptable Rating, within 30 Business Days;
and
(ii) where Party A does not have an Acceptable rating, within 5
Business Days.
(d) CSFBI agrees that if Party A is obliged to make a payment under a
Confirmation that CSFBI has accepted or countersigned and CSFBI
receives notice from the Manager requiring CSFBI to make that payment,
CSFBI will comply with that notice by making the payment specified in
the notice. The Manager must give this notice to CSFBI no later than
2.00pm (Sydney time) on the Payment Date.
(e) CSFBI shall be obliged to make only one payment in respect of any one
Confirmation.
(f) CSFBI shall make such payment in full, without any set off,
counterclaim or exercise of any similar right or defence, other than
any netting permitted under this Agreement.
(g) If CSFBI receives a notice under section 15(b) on or before 2.00 pm
(Sydney time) on a Business Day, it will make the payment, subject to
section 15(c), specified in that notice not later than 4.00 pm (Sydney
time) on that Business Day. If it receives a notice after 2.00 pm
(Sydney time) on a Business Day it will make the payment, subject to
section 15(c), not later than 4.00 pm (Sydney time) on the next
Business Day.
(h) (i) CSFBI's obligations under this section 15 with respect to a
Confirmation commence on the Effective Date (specified in such
Confirmation) and terminate on the earlier of the date 364 days after
the Effective Date (the EXPIRY DATE) and the date of the payment by
CSFBI under this section 15 with respect to such Confirmation.
(ii) If CSFBI desires to extend the period for which it is obliged to
make a payment under section 15(b) beyond an Expiry Date and for
a further period of 364 days, it shall give notice of that desire
to Party A no later than 104 days before the Expiry Date. Unless
Party A confirms that it will not agree to such extension before
the date which is 90 days before the Expiry Date, Party A shall
be deemed to have consented to the extension.
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(iii) Not later than 90 days before the Expiry Date, CSFBI must, after
receiving the consent of Party A under section 15(f)(ii), notify
Party A, Party B and the Manager (with a copy to the Designated
Rating Agencies) that it extends the period for which it is
obliged to make a payment under section 15(b) until 364 days from
the date of that notice. CSFBI may make further extensions of the
Expiry Date in accordance with this section.
(i) If, at any time, CSFBI is Downgraded and the downgrade constitutes a
Minor CSFBI Downgrade, Party A shall, within 30 days (or such greater
period as agreed by the relevant Designated Rating Agency), comply
with section 15(j).
(j) If at any time CSFBI is Downgraded and the downgrade constitutes a
Major CSFBI Downgrade, Party A shall, within 5 Business Days (or such
greater period as agreed by the relevant Designated Rating Agency)
comply with section 15(j).
(k) If CSFBI does not extend its obligations under this Agreement under
section 15(f) and Party A receives notice from the Manager of a Note
Downgrade, Party A shall, within the Time Stipulated after that notice
comply with section 15(j).
(l) Subject to section 15(k), where Party A is required to comply with
this section 15(j) it shall, at its cost, and at its election do one
of the following:
(i) (CASH COLLATERALISE) deposit into a Swap Collateral Account and
maintain in the Swap Collateral Account (whilst the relevant
downgrade subsists) sufficient funds to ensure that the amount
standing to the credit of the Swap Collateral Account is equal to
the greater of the following (the CASH COLLATERAL AMOUNT):
(A) zero;
(B) CR; and
(C) an amount acceptable to ▇▇▇▇▇'▇ and Fitch and sufficient to
ensure that the ratings given to the Notes by ▇▇▇▇▇'▇ and
Fitch are not adversely affected and that any Note Downgrade
is avoided or reversed (as the case may be);
(ii) (NOVATE) enter into an agreement novating this Agreement to a
Replacement Provider proposed by any of Party A, Party B or the
Manager which each Designated Rating Agency has confirmed will
not result in a withdrawal or downgrade of any credit rating
assigned, by it, to the Notes; or
(iii) (OTHER ARRANGEMENTS) enter into or procure entry into any
Acceptable Arrangement.
(m) Notwithstanding anything to the contrary in this section 15, where a
Downgrade as described in paragraph (i) of the definition of
Downgrade, or a Note Downgrade by S&P, has occurred, a party entitled
to elect a course of action under this section 15 may only elect to
cash collateralise under section 15 (j) (i) if Party A has an
Acceptable Rating and a short term credit rating of not less than F1
from Fitch.
(n) Where Party A is required to comply with section 15(j) and fails to do
so within the relevant time, CSFBI shall, subject to section 15(k),
either:
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(i) deposit into, and maintain in, a Swap Collateral Account the Cash
Collateral Amount in accordance with section 15(j)(i);
(ii) procure, at its cost, a Replacement Provider and pay the costs of
novating the relevant obligations to that Replacement Provider in
accordance with section 15(j)(ii); or
(iii) at its cost, enter into or procure entry into an Acceptable
Arrangement in accordance with section 15(j)(iii).
(o) Where either CSFBI or Party A procures a Replacement Provider in
accordance with section 15(j)(ii) or section 15(l)(ii), each party to
this Agreement shall do all things necessary to novate the relevant
obligations to the Replacement Provider.
(p) If, at any time, CSFBI's obligations under this Agreement are novated
in accordance with section 15(j)(ii) or section 15(l)(ii) or any
Acceptable Arrangement is entered into in accordance with section
15(j)(iii) or section 15(l)(iii) which results in CSFBI being replaced
as standby swap provider, CSFBI shall be immediately entitled to any
cash collateral amount which it has deposited in the Swap Collateral
Account.
(q) If the Manager becomes actually aware of the occurrence of a CSFBI D
owngrade, the Manager shall notify Party A, CSFBI or both of the
occurrence of such a reduction.
(r) Where Party B has not established a Swap Collateral Account and either
Party A or CSFBI is required to deposit monies into a Swap Collateral
Account, the Manager must direct Party B to establish, as soon as is
practicable, and maintain, in the name of Party B an account with an
Approved Bank which account shall be, for the purposes of this section
15 the SWAP COLLATERAL ACCOUNT.
(s) All interest on the Swap Collateral Account will accrue and be payable
monthly to the party which provides the relevant Cash Collateral
Amount.
(t) Party B may only make withdrawals from the Swap Collateral Account if
directed to do so by the Manager and then only for the purpose of:
(i) novating obligations under this Agreement in accordance with
section 15(j)(ii) or section 15(l) (ii) or entering into any
other Acceptable Arrangement in accordance with 15(j) (iii) or
section 15(l)(iii);
(ii) refunding to Party A or CSFBI (whichever provided the relevant
Cash Collateral Amount) the amount of any reduction in the Swap
Collateral Amount, from time to time and providing the Designated
Rating Agencies have confirmed, in writing, that such refund will
not result in a Note Downgrade;
(iii) withdrawing any amount which has been incorrectly deposited into
the Swap Collateral Account;
(iv) paying financial institutions duty, bank accounts debit tax or
other equivalent Taxes payable in respect of the Swap Collateral
Account; or
(v) 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.
(u) CSFBI's obligations under this section 15 shall:
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(i) survive the termination of this Agreement; and
(ii) terminate upon Party A complying with its obligations (if any)
under section 15(j) or CSFBI complying with its obligations under
section 15(l).
(v) Where:
(i) Party A fails to comply with section 15(j); and
(ii) CSFBI fails to comply with section 15(l),
(iii) this shall constitute an Additional Termination Event and Party
A shall be the Affected Party for this purpose.
(w) In consideration of CSFBI agreeing to act as Standby Basis Swap
Provider, Party A agrees to pay to CSFBI quarterly in arrears a fee
that accrues from day to day and is calculated at the rate of A$25,000
per annum. This fee is payable on each Payment Date, subject to (and
to the extent that funds are available under) the cashflow allocation
methodology in the Supplementary Terms Notice.
(x) None of the above fees in this section 15 are to be increased by
reference to any applicable goods and services tax unless:
(i) the parties to this Agreement agree (that agreement not to be
unreasonably withheld); and
(ii) the increase will not result in a Note Downgrade.
(y) In consideration of CSFBI agreeing, at the request of Party A, to act
as Standby Basis Swap Provider, Party A agrees to indemnify CSFBI on
demand against any loss, charge, liability or expense that CSFBI may
sustain or incur as a direct or indirect consequence of Party A
failing to comply with its obligations under this Agreement, or the
Manager requiring CSFBI to make a payment under this Agreement.
A new Section 16 is added as follows:
16. Trustee provisions
(a) Each party other than Party B acknowledges and agrees that Party
B has entered into this Agreement in its capacity as trustee of
the Trust and in no other capacity. Sections 1.2(p) and 30.16 of
the Master Trust Deed apply to this Agreement as if set out in
full, with references to Deed being construed as references to
Agreement. Section 16 of the Security Trust Deed shall apply to
govern Party A's priority to money received from the sale of
Trust Assets or other enforcement of the Charge under the
Security Trust Deed (each as defined in the Security Trust Deed).
(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.
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(c) Except as provided in paragraphs (a) and (b), Party A shall not:
(i) (JUDGMENT) obtain a judgment for the payment of money or
damages by Party B
(ii) (STATUTORY DEMAND) issue any demand under s459E(1) of the
Corporations Law (or any analogous provision under any other
law) against Party B;
(iii) (WINDING UP) apply for the winding up or dissolution of
Party B;
(iv) (EXECUTION) levy or enforce any distress or other execution
to, on or against any assets of Party B;
(v) (COURT APPOINTED RECEIVER) apply for the appointment by a
court of a receiver to any of the assets of Party B;
(vi) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against Party B; or
(vii) (ADMINISTRATOR) appoint, or agree to the appointment, of
any administrator to Party B,
or take proceedings for any of the above and Party A waives its
rights to make those applications and take those proceedings.
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.
▇▇.▇▇▇▇▇▇ BANK LIMITED
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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PERPETUAL TRUSTEES CONSOLIDATED LIMITED
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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CRUSADE MANAGEMENT LIMITED
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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