Exhibit 10.4.2
(Multicurrency--Cross Border)
ISDA(R) International Swap Dealers
Association, Inc.
MASTER AGREEMENT
dated as of 28 September, 2004
The Royal Bank of Scotland Perpetual Trustee Company National Global MBS
plc ("Party A") Limited (ABN 42 000 001 Manager Ptd Ltd
and 007) as trustee for the and (ABN 36 102 668 226)
and National RMBS Trust ("Global Trust
2004-1 ("Party B") Manager")
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming
those Transactions. Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than
by payment), such delivery will be made for receipt on the due date in
the manner customary for the relevant obligation unless otherwise
specified in the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event
of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination Date in
respect of the relevant Transaction has occurred or been effectively
designated and (3) each other applicable condition precedent specified in
this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a
reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable: --
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and discharged
and, if the aggregate amount that would otherwise have been payable by one
party exceeds the aggregate amount that would otherwise have been payable by
the other party, replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to the other party the excess
of the larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be
made in the Schedule or a Confirmation by specifying that subparagraph (ii)
above will not apply to the Transactions identified as being subject to the
election, together with the starting date (in which case subparagraph (ii)
above will not, or will cease to, apply to such Transactions from such date).
This election may be made separately for different groups of Transactions and
will apply separately to each pairing of Offices through which the parties
make and receive payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified
by the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will: --
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that
such deduction or withholding is required or receiving notice that
such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to
the payment to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes,
whether assessed against X or Y) will equal the Full amount Y would
have received had no such deduction or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that it would not be required to be paid but for: --
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure would
not have occurred but for (I) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on
or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with
respect to a party to this Agreement) or (II) a Change in Tax
Law.
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(ii) Liability. If: --
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the amount of
such liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment
obligation will, to the extent permitted by law and subject to Section 6(c),
be required to pay interest (before as well as after judgment) on the overdue
amount to the other party on demand in the same currency as such overdue
amount, for the period from (and including) the original due date for payment
to (but excluding) the date of actual payment, at the Default Rate. Such
interest will be calculated on the basis of daily compounding and the actual
number of days elapsed. If, prior to the occurrence or effective designation
of an Early Termination Date in respect of the relevant Transaction, a party
defaults in the performance of any obligation required to be settled by
delivery, it will compensate the other party on demand if and to the extent
provided for in the relevant Confirmation or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered
into and, in the case of the representations in Section 3(f), at all times
until the termination of this Agreement) that: --
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform
its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all
necessary action to authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision
of its constitutional documents, any order or judgment of any court or
other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in
full force and effect and all conditions of any such consents have been
complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal,
valid and binding obligations, enforceable in accordance with their
respective terms (subject to applicable bankruptcy, reorganisation,
insolvency, moratorium or similar laws affecting creditors' rights
generally and subject, as to enforceability, to equitable principles of
general application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
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(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would occur as a
result of its entering into or perforating its obligations under this
Agreement or any Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding
at law or in equity or before any court, tribunal, governmental body, agency
or official or any arbitrator that is likely to affect the legality, validity
or enforceability against it of this Agreement or any Credit Support Document
to which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is
identified for the purpose of this Section 3(d) in the Schedule is, as of the
date of the information, true, accurate and complete in every material
respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party: --
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs: --
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of
such demand), with any such form or document to be accurate and completed
in a manner reasonably satisfactory to such other party and to be
executed and to be delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of
such failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of
this Agreement by a jurisdiction in which it is incorporated,
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organised, managed and controlled, or considered to have its seat, or in which
a branch or office through which it is acting for the purpose of this
Agreement is located ("Stamp Tax Jurisdiction") and will indemnify the other
party against any Stamp Tax levied or imposed upon the other party or in
respect of the other party's execution or performance of this Agreement by any
such Stamp Tax Jurisdiction which is not also a Stamp Tax Jurisdiction with
respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any of the following events constitutes an event of
default (an "Event of Default") with respect to such party: --
(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 on or
before the third Local Business Day after notice of such failure is given
to the party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(c) or to give
notice of a Termination Event or any agreement or obligation under
Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by
the party in accordance with this Agreement if such failure is not
remedied on or before the thirtieth day after notice of such failure is
given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any applicable
grace period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction
of all obligations of such party under each Transaction to which
such Credit Support Document relates without the written consent of
the other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made
or repeated by the party or any Credit Support Provider of such party in
this Agreement or any Credit Support Document proves to have been
incorrect or misleading in any material respect when made or repeated or
deemed to have been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to
any applicable notice requirement or grace period, there occurs a
liquidation of, an acceleration of obligations under, or an early
termination of, that Specified Transaction, (2) defaults, after giving
effect to any applicable notice requirement or grace period, in making
any payment or delivery due on the last payment, delivery or exchange
date of, or any payment on early termination of, a Specified Transaction
(or such default continues for at least three Local Business Days if
there is no applicable notice requirement or grace period) or (3)
disaffirms, disclaims, repudiates or rejects, in whole or in part, a
Specified Transaction (or such action is taken by any person or entity
appointed or empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default,
event of default or other similar condition or event (however
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described) in respect of such party, any Credit Support Provider of such
party or any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount of not less
than the applicable Threshold Amount (as specified in the Schedule) which
has resulted in such Specified Indebtedness becoming, or becoming capable
at such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on
the due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party: --
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof, (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or (9)
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or merges with
or into, or transfers all or substantially all its assets to, another
entity and, at the time of such consolidation, amalgamation, merger or
transfer: --
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any event specified below constitutes an Illegality if
the event is specified in (i) below, a Tax Event if the event is specified in
(ii) below or a Tax Event Upon Merger if the event is specified in (iii)
below, and, if specified to be applicable, a Credit Event
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Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below: --
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for such party (which
will be the Affected Party): --
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect
of such Transaction or to comply with any other material provision
of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount
is required to be paid in respect of such Tax under Section 2(d)(i)(4)
(other than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which
the other party is not required to pay an additional amount (other than
by reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of
a party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity
(which will be the Affected Party) where such action does not constitute
an event described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X
consolidates or amalgamates with, or merges with or into, or transfers
all or substantially all its assets to, another entity and such action
does not constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event"
is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
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6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as
an Early Termination Date in respect of all outstanding Transactions. If,
however, "Automatic Early Termination" is specified in the Schedule as
applying to a party, then an Early Termination Date in respect of all
outstanding Transactions will occur immediately upon the occurrence with
respect to such party of an Event of Default specified in Section
5(a)(vii)(1), (3), (5), (6) or, to the extent analogous thereto, (8), and as
of the time immediately preceding the institution of the relevant proceeding
or the presentation of the relevant petition upon the occurrence with respect
to such party of an Event of Default specified in Section 5(a)(vii)(4) or, to
the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying
the nature of that Termination Event and each Affected Transaction and
will also give such other information about that Termination Event as the
other party may reasonably require.
(ii) Transfer to avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and
obligations under this Agreement in respect of the Affected Transactions
to another of its Offices or Affiliates so that such Termination Event
ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or
a Tax Event occurs and there are two Affected Parties, each party will
use all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that
Termination Event.
(iv) Right to Terminate If: --
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a
Credit Event Upon Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days notice to the other
party and provided that the relevant Termination Event is then
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continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence
of written confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in
the Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount is paid, at the
Applicable Rate. Such interest will be calculated on the basis of daily
compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the
parties fail to designate a payment measure or payment method in the Schedule,
it will be deemed that "Market Quotation" or the "Second Method", as the case
may be, shall apply. 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.
(i) Events of Default. If the Early Termination Date results from an
Event of Default: --
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the
9
Non-defaulting Party) in respect of the Terminated Transactions and
the Termination Currency Equivalent of the Unpaid Amounts owing to
the Non-defaulting Party less (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party. If
that amount is a positive number, the Defaulting Party will pay it
to the Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that amount to
the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event: --
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and
to the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in
respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: --
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of the
party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement Amount
("Y") and (b) the Termination Currency Equivalent of the Unpaid
Amounts owing to X less (II) the Termination Currency
Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all Terminated
Transactions) and an amount will be payable equal to one-half
of the difference between the Loss of the party with the higher
Loss ("X") and the Loss of the party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate
of loss and not a penalty. Such amount is payable for the loss of bargain
and the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
10
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of
the other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to
any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be
void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any tender in any currency
other than the Contractual Currency, except to the extent such tender results
in the actual receipt by the party to which payment is owed, acting in a
reasonable manner and in good faith in converting the currency so tendered
into the Contractual Currency, of the full amount in the Contractual Currency
of all amounts payable in respect of this Agreement. If for any reason the
amount in the Contractual Currency so received falls short of the amount in
the Contractual Currency payable in respect of this Agreement, the party
required to make the payment will, to the extent permitted by applicable law,
immediately pay such additional amount in the Contractual Currency as may be
necessary to compensate for the shortfall. If for any reason the amount in the
Contractual Currency so received exceeds the amount in the Contractual
Currency payable in respect of this Agreement, the party receiving the payment
will refund promptly the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party
is entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency and will refund promptly to the other party any excess of
the Contractual Currency received by such party as a consequence of sums paid
in such other currency if such shortfall or such excess arises or results from
any variation between the rate of exchange at which the Contractual Currency
is convened into the currency of the judgment or order for the purposes of
such judgment or order and the rate of exchange at which such party is able,
acting in a reasonable manner and in good faith in converting the currency
received into the Contractual Currency, to purchase the Contractual Currency
with the amount of the currency of the judgment or order actually received by
such party. The term "rate of exchange" includes, without limitation, any
premiums and costs of exchange payable in connection with the purchase of or
conversion into the Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the
party to which any payment is owed and will not be affected by judgment being
obtained or claim or proof being made for any other sums payable in respect of
this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
11
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced
by a facsimile transmission) and executed by each of the parties or confirmed
by an exchange of telexes or electronic messages on an electronic messaging
system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including
by facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange
of electronic messages on an electronic messaging system, which in each
case will be sufficient for all purposes to evidence a binding supplement
to this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking
office or jurisdiction of incorporation or organisation of such party, the
obligations of such party are the same as if it had entered into the
Transaction through its head or home office. This representation will be
deemed to be repeated by such party on each date on which a Transaction is
entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a
Transaction will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other
party for and against all reasonable out-of-pocket expenses, including legal
fees and Stamp Tax, incurred by such other party by reason of the enforcement
and protection of its rights under this Agreement or any Credit Support
Document
12
to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details, provided (see the
Schedule) and will be deemed effective as indicated: --
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answer back is
received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably: --
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-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, if
this Agreement is expressed to be governed by the laws of the State of
New York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the
Civil Jurisdiction and Judgments Xxx 0000 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any
13
reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute
process agent acceptable to the other party. The parties irrevocably consent
to service of process given in the manner provided for notices in Section 12.
Nothing in this Agreement will affect the right of either party to serve
process in any other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and
assets (irrespective of their use or intended use), all immunity on the
grounds of sovereignty or other similar grounds from (i) suit, (ii)
jurisdiction of any court, (iii) relief by way of injunction, order for
specific performance or for recovery of property, (iv) attachment of its
assets (whether before or after judgment) and (v) execution or enforcement of
any judgment to which it or its revenues or assets might otherwise be entitled
in any Proceedings in the courts of any jurisdiction and irrevocably agrees,
to the extent permitted by applicable law, that it will not claim any such
immunity in any Proceedings.
14. Definitions
As used in this Agreement: --
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control"
of any entity or person means ownership of a majority of the voting power of
the entity or person.
"Applicable Rate" means: --
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the
Non-default Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or after the
date on which the relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified
as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
14
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed
in respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to
such recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having
executed, delivered, performed its obligations or received a payment under, or
enforced, this Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case
of tax matters, by the practice of any relevant governmental revenue
authority) and "lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and
foreign currency deposits) (a) in relation to any obligation under Section
2(a)(i), in the place(s) specified in the relevant Confirmation or, if not so
specified, as otherwise agreed by the parties in writing or determined
pursuant to provisions contained, or incorporated by reference, in this
Agreement, (b) in relation to any other payment, in the place where the
relevant account is located and, if different, in the principal financial
centre, if any, of the currency of such payment, (c) in relation to any notice
or other communication, including notice contemplated under Section 5(a)(i),
in the city specified in the address for notice provided by the recipient and,
in the case of a notice contemplated by Section 2(b), in the place where the
relevant new account is to be located and (d) in relation to Section
5(a)(v)(2), in the relevant locations for performance with respect to such
Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be
its total losses and costs (or gain, in which case expressed as a negative
number) in connection with this Agreement or that Terminated Transaction or
group of Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party but without
duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or reestablishing any hedge or related trading position
(or any gain resulting from any of them). Loss includes losses and costs (or
gains) in respect of any payment or delivery required to have been made
(assuming satisfaction of each applicable condition precedent) on or before
the relevant Early Termination Date and not made, except, so as to avoid
duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does
not include a party's legal fees and out-of-pocket expenses referred to under
Section 11. A party will determine its Loss as of the relevant Early
Termination Date, or, if that is not reasonably practicable, as of the
earliest date thereafter as is reasonably practicable. A party may (but need
not) determine its Loss by reference to quotations of relevant rates or prices
from one or more leading dealers in the relevant markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or
by such party (expressed as a positive number) in consideration of an
agreement between such party (taking into account any existing Credit Support
Document with respect to the obligations of such party) and the quoting
Reference Market-maker to enter into a transaction (the "Replacement
Transaction") that would have the effect of preserving for such party the
economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under Section 2(a)(i) in
respect of such Terminated Transaction or group of Terminated Transactions
that would, but for the occurrence of the relevant Early Termination Date,
have
15
been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is
to be included. The Replacement Transaction would be subject to such
documentation as such party and the Reference Market-maker may, in good faith,
agree. The party making the determination (or its agent) will request each
Reference Market-maker to provide its quotation to the extent reasonably
practicable as of the same day and time (without regard to different time
zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be
obtained will be selected in good Faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the
Market Quotation will be the arithmetic mean of the quotations, without regard
to the quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if
more than one quotation has the same highest value or lowest value, then one
of such quotations shall be disregarded. If fewer than three quotations are
provided, it will be deemed that the Market Quotation in respect of such
Terminated Transaction or group of Terminated Transactions cannot be
determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it)
if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head
or home office.
"Potential Event of Default" means any event which, with the giving of notice
or the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market,
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria
that such party applies generally at the time in deciding whether to offer or
to make an extension of credit and (b) to the extent practicable, from among
such dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a)
in which the party is incorporated, organised, managed and controlled or
considered to have its seat, (b) where an Office through which the party is
acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) in relation to any payment, from or through
which such payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention
or withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or
imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of: --
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to
any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not
(in the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meanings specified in the Schedule.
16
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety or
otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter
entered into between one party to this Agreement (or any Credit Support
Provider of such party or any applicable Specified Entity of such party) and
the other party to this Agreement (or any Credit Support Provider of such
other party or any applicable Specified Entity of such other party) which is a
rate swap transaction, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions),
(b) any combination of these transactions and (c) any other transaction
identified as a Specified Transaction in this Agreement or the relevant
confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment
or fee of any nature (including interest, penalties and additions thereto)
that is imposed by any government or other taxing authority in respect of any
payment under this Agreement other than a stamp, registration, documentation
or similar tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in
effect immediately before the effectiveness of the notice designating that
Early Termination Date (or, if "Automatic Early Termination" applies,
immediately before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated
in the Termination Currency, such Termination Currency amount and, in respect
of any amount denominated in a currency other than the Termination Currency
(the "Other Currency"), the amount in the Termination Currency determined by
the party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or,
if the relevant Market Quotation or Loss (as the case may be), is determined
as of a later date, that later date, with the Termination Currency at the rate
equal to the spot exchange rate of the foreign exchange agent (selected as
provided below) for the purchase of such Other Currency with the Termination
Currency at or about 11:00 a.m. (in the city in which such foreign exchange
agent is located) on such date as would be customary for the determination of
such a rate for the purchase of such Other Currency for value on the relevant
Early Termination Date or that later date. The foreign exchange agent will, if
only one party is obliged to make a determination under Section 6(e), be
selected in good faith by that party and otherwise will be agreed by the
parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon
Merger or, if specified to be applicable, a Credit Event Upon Merger or an
Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or
prior to such Early Termination Date and which remain unpaid as at such Early
Termination Date and (b) in respect of each Terminated Transaction, for each
obligation under Section 2(a)(i) which was (or would have been but for Section
2(a)(iii)) required to be settled by delivery to such party on or prior to
such Early Termination Date and which has not been so settled as at such Early
Termination Date, an amount equal to the fair market
17
value of that which was (or would have been) required to be delivered as of
the originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or
would have been required to have been paid or performed to (but excluding)
such Early Termination Date, at the Applicable Rate. Such amounts of interest
will be calculated on the basis of daily compounding and the actual number of
days elapsed. The fair market value of any obligation referred to in clause
(b) above shall be reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it shall be
the average of the Termination Currency Equivalents of the fair market values
reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
The Royal Bank of Scotland plc Perpetual Trustee Company Limited
("Party A") as trustee of the National RMBS
Trust 2004-1 ("Party B")
------------------------------- ---------------------------------
(Name of Party) (Name of Party)
By: /s/ Xxxxxx Chick By: /s/ Xxxx Xxxxxxx
Name: Xxxxxx Chick Name: Xxxx Xxxxxxx
Title: Head of Structured Capital Title: Manager
Markets, Australia Date: 28 September 2004
Date: 28 September 2004
National Global MBS Manager Ptd Ltd
("Global Trust Manager")
-------------------------------
(Name of Party)
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Manager Group Funding
Date: 28 September 2004
18
ISDA(R)
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of 28 Septemnber 2004
between
The Royal Bank of Scotland plc
("Party A")
and
Perpetual Trustee Company Limited
(ABN 42 000 001 007) as trustee for the National RMBS Trust
2004-1
("Party B")
and
National Global MBS Manager Pty Ltd (ABN 36 102 668 226)
("Global Trust Manager")
Part 1. Termination Provisions
In this Agreement:
(a) "Specified Entity" in relation to:
(i) Party A, is not applicable; and
(ii) Party B, is not applicable.
(b) "Specified Transaction" will have the meaning specified in Section 14 of
this Agreement.
(c) The "Automatic Early Termination" provision of Section 6(a) will not
apply to Party A and will not apply to Party B.
(d) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply;
(ii) the Second Method will apply.
(e) "Termination Currency" is Australian dollars.
(f) Additional Termination Event applies. Each of the following is an
Additional Termination Event:
"An Event of Default (as defined in the Deed of Charge) occurs in
respect of the Trust and the Security Trustee has declared the Offshore
Notes to be immediately due and payable. In
2
this event Party B will be the sole Affected Party and all Transactions
will be Affected Transactions."
"All of the Offshore Notes are redeemed under Condition 7.4 of the Class
A Conditions. In this event Party B will be the sole Affected Party and
all Transactions will be Affected Transactions."
Part 2. Tax Representations
(a) Payer Representations. For the purpose of Section 3(e) of this
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 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 clause (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 Representation. For the purpose of Section 3(f) of this
Agreement:
(i) Party B makes the following representation:
It is an Australian resident and does not derive the payments under
this Agreement in part or whole carrying on business in a country
outside Australia at or through a permanent establishment of itself
in that country.
(ii) Party A makes the following representation:
It is fully eligible for the benefits of the "Profits", "Business
Profits" or "Industrial or 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 the Specified Jurisdiction.
If such representation applies:
3
"Specified Treaty" means the tax treaty applicable between the
United Kingdom and the Commonwealth of Australia.
"Specified Jurisdiction" means the Commonwealth of
Australia.
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 documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
Party required to Form/Document/Certificate Date by which to be delivered
deliver information
Party A and Any document or certificate On the earlier of (a) as
Party B reasonably required or soon as reasonably practical
reasonably requested by Party A following learning that such
or Party B in connection with document or certificate is
its obligations to make a required and (b) as soon as
payment under this Agreement reasonably practicable
which would enable that party following a request by the
to make the payment free from other party.
any deduction or withholding
for or on account of Tax or as
would reduce the rate at which
deduction or withholding for or
on account of Tax is applied to
that payment (including,
without limitation, any United
States Form W-8BEN of other
relevant United States tax form
(b) Other documents to be delivered are:
Party required Form/Document/Certificate Date by which to be Covered by
to deliver document delivered Section 3(d)
Representation
Party A and A list of authorised On execution of this Yes
Party B signatories for the party Agreement or any
and, if so requested by relevant Confirmation
the other party, evidence and when the list is
satisfactory in form and updated.
substance to the other
party of the authority of
the authorised signatories
of the party to execute
this Agreement and any
Confirmation on behalf of
the party.
Global Trust A list of Authorised On execution of this No
Manager Persons for the Global Agreement and as soon
Trust Manager. as reasonably
practicable following
a request by Party A
or Party B.
4
Party required Form/Document/Certificate Date by which to be Covered by
to deliver document delivered Section 3(d)
Representation
Party A, Party A legal opinion as to the At any time prior to Yes
B and the validity and the first Issue Date.
Global Trust enforceability of that
Manager party's obligations under
this Agreement in form and
substance (and issued by
legal counsel) reasonably
acceptable to each other
party.
Global Trust A copy (certified by an In the case of each Yes
Manager (to be Authorised Person of the Credit Support
delivered to Global Trust Manager to be Document, within 5
Party A) a true and complete copy) Business Days (or
of each Credit Support such period as Party
Document in respect of A agrees to) of
Party B and (without execution of this
limiting any obligation Agreement (provided
Party B may have under the that it must be
terms of that Credit received by the first
Support Document to notify Issue Date) and, in
Party A of amendments) a the case of an
copy (certified by an amending document,
Authorised Person of the within 5 Business
Global Trust Manager to be Days (or such other
a true and complete copy) period as Party A
of any document that agrees to) of
amends in any way the execution of the
terms of any Credit amending document.
Support Document.
Global Trust A copy, certified by an Within 5 Business Yes
Manager (to be Authorised Person of the Days of execution of
delivered to Global Trust Manager, of this Agreement,
Party A) the Master Trust Deed, provided that they
Supplemental Deed, Class A must be delivered by
Conditions, Definitions the first Issue Date.
Schedule and Note Trust
Deed.
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: c/- RBS Financial Markets, Level 4, 000
Xxxxxxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx
Attention: Swaps Administration
Telex No: Not applicable Answerback: Not applicable
Facsimile No: 00 00 0000 0000 Telephone No: 00 00 0000 0000
5
Electronic Messaging System Details: Not applicable
Address for notices or communications to Party B:
Address: Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Manager, Securitisation
Telex No: Not applicable Answerback: Not applicable
Facsimile No: 000 0000 0000 Telephone No: 000 0000 0000
Electronic Messaging System Details: Not applicable
All notices or communications to Party B to be copied to the
Global Trust Manager at the address below
Address for notices or communications to Global Trust Manager:
Address: Xxxxx 00, 000 Xxxxxx Xxxxxx, Xxxxxxxxx XXX 0000
Attention: Manager, Group Funding
Telex No: Not applicable Answerback: Not Applicable
Facsimile No: 000 0000 0000 Telephone No: Not Applicable
Electronic Messaging System Details: Not Applicable
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
(i) Party A appoints as its Process Agent: Nil.
(ii) Party B appoints as its Process Agent: Nil.
(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:
Neither Party A nor Party B is a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) Credit Support Document. Details of any Credit Support Document:
(i) in relation to Party A: Nil;
(ii) in relation to Party B: the Master Security Trust Deed and the
Deed of Charge.
(g) Credit Support Provider. Credit Support Provider means:
(i) in relation to Party A: Nil;
6
(ii) 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 the Australian Capital Territory
and each party submits to the non-exclusive jurisdiction of the courts
of the Australian Capital Territory. Section 13(b)(i) is deleted and
replaced by the following:
"(i) submits to the non-exclusive jurisdiction of the courts of the
Australian Capital Territory; and".
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement
will not apply to the following Transactions or group of Transactions
(in each case starting from the date of this Agreement): None.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement. For the purpose of Section 3(c), Party A is deemed not to
have any Affiliates.
Part 5. Other Provisions
(1) Payments: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party."
(b) In Section 2(a)(ii), the first sentence is deleted and replaced
with the following sentence:
"Unless specified otherwise in this Agreement, payments under this
Agreement by:
(1) Party A in respect of the US$ Class A-1 Currency Swap, will be
made by 2.30pm (New York time); and;
(2) Party A in respect of the (euro) Class A-3 Currency Swap, will
be made by 2.30pm (London time);
(3) Party B, will be made by 4.00pm (Melbourne time),
on the due date for value on that date in the place of the account
specified in the relevant Confirmation or otherwise pursuant to
this Agreement, in freely transferable funds, free of any set-off,
counterclaim, deduction or withholding (except as expressly
provided in this Agreement) and in the manner customary for
payment in the required currency."
(c) Insert new paragraph (iv) in Section 2(a) immediately after Section
2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply
to a payment due to be made by 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)."
7
(d) Add the following new sentence to Section 2(b):
"Each new account so designated shall be in the same tax
jurisdiction as the original account."
(e) Insert a new paragraph (v) in Section 2(a) immediately after
Section 2(a)(iv) as follows:
"(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,
then Party A's obligation to make the Party A Payment will be
subject to the condition precedent (which will be an
"applicable condition precedent" for the purpose of Section
2(a)(iii)(3)) that Party A first receives either:
(2) the Party B Payment; or
(3) confirmation from Party B's bank that it holds
irrevocable instructions to effect payment of the Party
B Payment and that funds are available to make that
payment."
(f) Party B's Payment Instructions. Party B irrevocably authorises and
instructs Party A to make payment of:
(i) the "Party A 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.
(g) Party A's Payment Instructions. Party A irrevocably authorises and
instructs Party B to make payment of:
(i) any amount denominated in A$ due from Party B to the account
in Melbourne notified in writing by Party A to Party B from
time to time;
(ii) any amount denominated in US$ due from Party B to the account
notified in writing by Party A to Party B from time to time;
and
(iii) any amount denominated in (euro) due from Party B to the
account notified in writing by Party A to Party B from time to
time.
(2) Representations: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the words
"creditors' rights generally" the following:
8
"(including in the case of a party being an authorised
deposit-taking institution under the Banking Xxx 0000 (Cwlth),
section 13A(3) of the Banking Xxx 0000 (Cwlth) and section 86 of
the Reserve Bank Xxx 0000 (Cwlth) or any analogous provision under
any other law applicable to a party),"
(b) Insert new paragraphs (g) and (h) in Section 3 immediately after
Section 3(f):
"(g) Relationship between Parties. Each party will be deemed to
represent to each 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 or, in
the case of Party B, as trustee of the Trust, and it
has made its own independent decisions to enter into
that Transaction or, in the case of Party B, has been
directed to do so by the Global Trust Manager and as to
whether that Transaction is appropriate or proper for
it based upon its own judgement and upon advice from
such advisers as it has deemed necessary or, in the
case of Party B, at the direction of the Global Trust
Manager. 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 will not be considered investment advice or
a recommendation to enter into that Transaction. No
communication (written or oral) received from the other
party will be deemed to be an assurance or guarantee as
to the expected results of that Transaction.
(ii) Evaluation and Understanding. It is capable of
evaluating and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and
risks of that Transaction. It is also capable of
assuming, and assumes, the risks of that Transaction.
(iii) Status of Parties. No other party is acting as a
fiduciary or an adviser to it in respect of that
Transaction (other than, in the case of Party B, the
Global Trust Manager).
(h) Trust. By Party B, in respect of Party B only:
(i) Trust Validly Created. The Trust has been validly
created and is in existence at the date of this
Agreement.
(ii) Sole Trustee. It 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
it and to its knowledge no resolution has been passed,
or direction or notice has been given, removing it as
trustee of the Trust.
9
(iv) Power. It has power to enter into and perform its
obligations under this Agreement and the Credit Support
Documents in its capacity as trustee of the Trust.
(v) Good Title. It is the legal owner of, or has equitable
title to (as applicable), the Assets of the Trust and
has power to transfer them in the manner provided in
the Credit Support Documents in relation to Party B
and, subject only to the Credit Support Documents in
relation to Party B and any Security Interest permitted
under the Credit Support Documents in relation to Party
B, those Assets are free of all other Security
Interests (except for Party B's right of indemnity out
of the Assets of the Trust)."
(3) Event of Default: In Section 5(a), delete paragraph (i) and replace it
with the following:
"(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
(1) where the failure is by Party B in respect of the US$ Class
A-1 Currency Swap, 10.00am (New York time) on the tenth
Business Day after notice of such failure is given to Party
B;"
(2) where the failure is by Party B in respect of the (euro) Class
A-3 Currency Swap 10:00am (London time) on the tenth Business
Day after notice of such failure is given to Party B; and
(3) where the failure is by Party A, 10.00am (Sydney time) on the
tenth Business Day after notice of such failure is given to
Party A;".
(4) Amendment to Section 6
Add a new Section 6(aa):
"(aa) Restricted Termination Rights
(i) Termination by Party B: Party B must not designate an Early
Termination Date without the prior written consent of the Note
Trustee. Party B may only designate an Early Termination Date
at the direction of the Global Trust Manager. Subject to its
duties under the Master Trust Deed and the Supplemental Deed,
Party B may exercise any rights in its capacity as holder of
the Assets of the Trust only on the instructions of the Global
Trust Manager and only after consultation between Party A,
Party B, the Global Trust Manager and the Note Trustee.
(ii) Consultation regarding timing: Party A and Party B agree that
prior to designating an Early Termination Date they will
attempt to consult with the other as to the timing of the
Early Termination Date.
(iii) Party A's limited rights in relation to Tax Event:
Notwithstanding Part 5(24) of this Schedule, Party A may
designate an Early Termination Date if it is an Affected Party
following a Tax Event but only if the Note Trustee
10
has confirmed that it is satisfied that the Offshore
Noteholders will be paid in full all principal and interest
outstanding on the Offshore Notes.
(iv) Illegality: The parties agree that imposition by any
Governmental Agency of an Australian jurisdiction of any
exchange controls, restrictions or prohibitions will not
constitute an Illegality for the purposes of Section 5(b)(i)
or Section 5(c) and Party A will not be entitled to designate
an Early Termination Date.
(v) 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 replacement Party B incorporated in
another jurisdiction approved by Party A and the Note Trustee
and in respect of which the Current Rating Agencies confirm
that the substitution will not cause an Adverse Rating Effect.
(d) Transfers to avoid Termination: Section 6(b)(ii) is amended as
follows:
(i) The following sentence is added at the end of the second
paragraph:
"However, if Party A is that other party it must, if so
requested by the Global Trust Manager, use reasonable efforts
(which will not require Party A to incur a loss, excluding
immaterial, incidental expenses) to make such a transfer to an
Affiliate provided the Current Rating Agencies have given
prior written confirmation to the Global Trust Manager that
such a transfer will not result in an Adverse Rating Effect."
(ii) The third paragraph is deleted and replaced with the
following:
"Any such transfer by a party under this Section 6(b)(ii) will
be subject to and conditional upon the prior written consent
of the other party, which consent will not be withheld:
(1) where the other party is Party A, if Party A's policies
in effect at such time would permit it to enter into
transactions with the transferee on the terms proposed;
or
(2) where the other party is Party B, if the Current Rating
Agencies have confirmed in writing that such transfer
will not result in an Adverse Rating Effect.
(e) Notice of Event of Default: For the purposes of Section 6(a) and
(b), each of Party A and Party B may only provide a notice
specifying an Event of Default with respect to the other as the
Defaulting Party and may only designate an Early Termination Date
following a Termination Event where either Party A or Party B (or
both) is the Affected Party or the Burdened Party.
11
(6) Replacement Currency Swap Agreement:
(a) If any Transaction under this Agreement which is a currency swap is
terminated prior to the day upon which the relevant Offshore Notes
to which that currency swap relates are redeemed in full, Party B
may, at the direction of the Global Trust Manager, enter into one
or more currency swaps which replace that Transaction (collectively
a "Replacement Currency Swap") provided that:
(i) the Current Rating Agencies confirm in writing that the entry
into the Replacement Currency Swap by Party B does not result
in an Adverse Rating Effect; and
(ii) the liability of Party B under the Replacement Currency Swap
is limited to the satisfaction of Party B and, in any case, to
at least the same extent that its liability is limited under
that Transaction.
(b) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and the amount calculated to be payable under Section
6(e) ("Total Settlement Amount") is payable by Party B to Party A
upon termination of the Transaction referred to in Part 5(6)(a),
Party B 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 Total Settlement Amount to Party
A, and to the extent such premium is not greater than or equal to
the Total Settlement Amount, the balance must be satisfied by Party
B as a payment due under clause 14.10(f) or clause 14.18(f)(iv) (as
the case may be) of the Supplemental Deed.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Total Settlement Amount is payable by Party A
to Party B upon termination of the Transaction referred to in Part
5(6)(a), Party B may direct Party A to pay that amount to the
Replacement Currency Swap provider in satisfaction of or towards
and to the extent of Party B's obligation (if any) to pay an
upfront premium to the Replacement Currency Swap provider to enter
into the Replacement Currency Swap.
(d) The rights and obligations of Party A and Party B under this Part
5(6) will survive the termination of this Agreement.
(7) Facsimile Transmission: In Section 12:
(a) Replace Section 12(a)(iii) 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 Business Day of the facsimile being sent that the
facsimile was not received in its entirety in legible
form;"
(b) Insert a new paragraph (vi) in Section 12(a) immediately after
Section 12(a)(v) as follows:
12
"(vi) if sent by ordinary mail, on the third (seventh, if
posted to or from a place outside Australia) day after
posting."
(8) Definitions
In this Agreement, unless the contrary intention appears:
(a) Definitions Schedule and Supplemental Deed: unless defined in this
Agreement words and phrases defined in the Definitions Schedule and
the Supplemental Deed (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 and the
Definitions Schedule or the Supplemental Deed, this Agreement
prevails. Where there is any inconsistency in a definition between
the Definitions Schedule and the Supplemental Deed, the
Supplemental Deed prevails over the Definitions Schedule in respect
of the Trust. Where words or phrases used but not defined in this
Agreement are defined in the Definitions Schedule in relation to a
Trust (as defined in the Definitions Schedule) 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
Supplemental Deed);
(b) Interpretation: references to time are references to Melbourne
time, unless stated otherwise;
(c) Trustee Capacity:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the Trust only, and in no other
capacity; and
(ii) a reference to the undertaking, assets, business, money or
other thing of or in relation to Party B is a reference to the
undertaking, assets, business, money or other thing of or in
relation to Party B in the capacity referred to in paragraph
(i) only;
(d) Definitions: in Section 14:
(i) replace the definitions of "Affected Transactions" and "Local
Business Day" with the following:
""Affected Transactions" means, with respect to a Termination
Event, all Transactions."
"Local Business Day" has the same meaning as "Business Day"."
(ii) insert the following new definitions:
"Definitions Schedule" means the deed entitled "National RMBS
Trusts Definitions Schedule" dated 3 January 2001 between the
parties listed in schedule 1 to that deed.
"Offshore Notes" has the meaning set out in the Agency
Agreement.
13
"Prescribed Rating" means a credit rating of A-1+ (short
term) by S&P and P-1 (short term) and A2 (long term) by
Moody's.
"Supplemental Deed" means the National RMBS Trust 2004-1
Supplemental Deed dated on or about the date of this
Agreement between Party A, the Global Trust Manager, Party B
and certain other parties.
"Trust" means the National RMBS Trust 2004-1 constituted by
the Master Trust Deed and a Notice of Creation of Trust.
(e) ISDA Definitions: The 2000 ISDA Definitions as published by the
International Swaps and Derivatives Association, Inc (the "2000
ISDA Definitions") as at the date of this Agreement are
incorporated into this Agreement and each Confirmation.
(f) Inconsistency: Unless specified otherwise, 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 order in respect of that Transaction:
(i) any Confirmation;
(ii) this Agreement;
(iii) the Supplemental Deed;
(iv) the Definitions Schedule; and
(v) the 2000 ISDA Definitions.
(g) Swap Transaction: Any reference to a:
(i) "Swap Transaction" in the 2000 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 2000 ISDA Definitions.
(h) Incorporated Definitions and other Transaction Documents and
provisions: 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.
(i) Clause 14 of Supplemental Deed: Party B agrees that it will not
consent to an amendment of Clause 14 of the Supplemental Deed
without the prior consent of Party A.
14
(9) Limitation of Liability: Insert the following Section 15, after Section
14:
"15. Party B's Limitation of Liability
Clause 2 of the Definitions Schedule (as at the date of this
Agreement) is deemed to be included in full in this Agreement with
any consequential changes necessary to give effect to that clause
in this Agreement.
(10) Send Information: Insert the following new Section 16 after Section 15:
"16 Send Information
On each Determination Date the Global Trust Manager will send to
each Current Rating Agency such information in the possession of
the Global Trust Manager as each Current Rating Agency reasonably
requires in relation to the Currency Swap, and any other matters in
connection with this Agreement."
(11) Further Assurances: Each party will, upon request by the other party
(the "requesting party") at the expense of the requesting party, perform
all such acts and execute all such agreements, assurances and other
documents and instruments as the requesting party reasonably requires
(and, in the case of Party B, are within the powers granted to Party B
under the Master Trust Deed) to assure and confirm the rights and powers
afforded, created or intended to be afforded or created, under or in
relation to this Agreement and each Transaction or other dealing which
occurs under or is contemplated by it.
(12) Derivative Contract: The parties acknowledge and agree that for the
purposes of the Transaction Documents this Agreement is a Derivative
Contract.
(13) Procedures for Entering into Transactions
(a) With respect to each Transaction entered into pursuant to this
Agreement and for the purposes of Section 9(e)(ii), Party A will,
by or promptly after the relevant Trade Date, send Party B and the
Global Trust Manager a Confirmation substantially in the form set
out in Annexure 1 or Annexure 2 (as the case may be) (or in such
other form as may be agreed between Party A, Party B and the Global
Trust Manager), and Party B and the Global Trust Manager must
promptly then confirm the accuracy of and sign and return, or
request the correction of, such Confirmation.
(b) Party B will enter into each Transaction in its capacity as trustee
of the Trust.
(14) Authorised Person: Each party will be entitled to assume, in the absence
of any knowledge to the contrary, that any person signing any
Confirmation, notice or other written communication issued in respect of
this Agreement on behalf of a party is an Authorised Person of that
party.
(15) Recorded Conversations: Each party:
(a) consents to the electronic recording of its telephone conversations
with another party (or any of its associated persons) with or
without the use of an automatic tone warning device;
15
(b) will provide transcripts of such recordings (if any) upon
reasonable request by another party (at the reasonable cost of the
party requesting);
(c) acknowledges that such recordings and transcripts can be used as
evidence by either party in any dispute between them; and
(d) acknowledges that no party is obligated to maintain copies of such
recordings and transcripts for the benefit of another party.
(16) Knowledge or Awareness: Subject to Section 12(a), each party will only
be considered to have knowledge or awareness of, or notice of, a thing
or grounds to believe anything by virtue of the officers of that party
or any Related Entity of that party which have the day to day
responsibility for the administration or management of that party's (or
a Related Entity of that party's) obligations in relation to the Trust
or the Transactions entered into under this Agreement having actual
knowledge, actual awareness or actual notice of that thing, or grounds
or reason to believe that thing (and similar references will be
interpreted in this way).
(17) Amendments to this Agreement: The Global Trust Manager must give 10
Business Days' notice in writing to each Current Rating Agency of any
amendments to this Agreement.
(18) Global Trust Manager's Undertaking: The Global Trust Manager and Party B
undertake to comply with their respective obligations under the
Supplemental Deed and the other Transaction Documents for the Trust.
Party A agrees that it is bound by the terms of the Supplemental Deed,
Master Security Trust Deed (insofar as it applies to the Trust), the
Deed of Charge and the Note Trust Deed as a Counterparty, a Currency
Swap Provider, a US$ Class A-1 Currency Swap Provider, a (euro) Class
A-3 Currency Swap Provider and a Secured Creditor (as the case may be).
For the avoidance of doubt, the parties acknowledge and agree that the
failure by Party B, the Global Trust Manager or Party A to comply with
the relevant undertaking will not give rise to an Event of Default under
this Agreement.
(19) Appointment of Global Trust Manager: Party A acknowledges that, under
the Master Trust Deed, Party B has appointed the Global Trust Manager as
Global Trust Manager of the Trust, with the powers set out in, and upon
and subject to the terms of the Master Trust Deed.
Notwithstanding any other provision of this Agreement, the Global Trust
Manager is not liable:
(i) in connection with anything done by it in good faith and without
negligence in reliance upon any document, form or list except where
it is actually aware that the document, form or list is not
genuine; or
(ii) if it fails to do anything because it is prevented or hindered from
doing it by law or order; or
16
(iii) to anyone for payments made by it in good faith to a fiscal
authority in connection with Taxes (including Taxes assessed on the
income of the Trust) or other charges in respect of a Trust even if
the payment need not have been made; or
(iv) if a person fails to carry out an agreement with the Global Trust
Manager in connection with the Trust; or
(v) to anyone because of any error of law or any matter done or omitted
to be done by it in good faith in the event of the liquidation or
dissolution of a company (other than a company under its control),
except to the extent that any of the foregoing is caused by the Global
Trust Manager's own gross negligence, fraud or wilful default.
Other than as expressly provided for in this Agreement, the Global Trust
Manager personally is not a "party" (as that term is used in Section
2(a)(i) of the Master Agreement) under the Agreement for the purposes of
determining the obligations, representations and undertakings of each
"party" to it.
(20) Appointment of attorney by Party B. Party B hereby exclusively appoints
the Global Trust Manager as its attorney to act on Party B's behalf and
exercise all rights and powers of Party B with respect to this
Agreement. Without limiting the generality of the foregoing, the Global
Trust Manager may issue and receive on behalf of Party B all notices,
certificates and other communications to or by Party A, under this
Agreement until such time as Party B serves written notice on Party A of
the revocation of the Global Trust Manager's authority to act on behalf
of Party B in accordance with this Part 5(20) of the Schedule.
(21) Deduction or withholding for tax. Section 2 of this Agreement is amended
as follows:
(i) In Section 2(d)(ii)(1) the following words are deleted where they
appear:
"in respect of which X would not be required to pay an
additional amount to Y under section 2(d)(i)(4)".
(ii) Section 2(d)(i)(4) is deleted in its entirety.
(22) Events of Default and Termination Events.
(i) The following provisions of Section 5 will not apply to either
Party A or Party B:
Section 5(a)(ii)
Section 5(a)(iii)
Section 5(a)(iv)
Section 5(a)(v)
Section 5(a)(vi)
Section 5(b)(iii)
Section 5(b)(iv)
(23) Transfer. A new paragraph (c) is added to Section 7 as follows:
"a party may make such a transfer under, or in accordance with,
this Agreement or the Master Security Trust Deed."
17
and replace the "." at the end of Section 7(b) with "; and".
(24) Rating downgrade
(i) Moody's: If, during the term of any Offshore Notes rated Aaa
(Moody's) issued by Party B, the credit rating assigned to Party
A's senior debt is lower than the relevant Prescribed Rating, and
such downgrade would except for this clause adversely affect the
rating of the Offshore Notes, then Party A must on request by the
Global Trust Manager lodge sufficient cash or other collateral (if
any) as may be necessary to maintain the credit rating of those
Offshore Notes at the rating that was applicable to those Offshore
Notes immediately prior to the downgrade.
This collateral must be deposited into a bank account ("Collateral
Account") with an Eligible Bank. The Collateral Account must be in
the name of Party B and must bear interest at a commercial rate
payable monthly. Interest earned on the money credited to the
Collateral Account must be paid directly to Party A. If Party A is
an eligible entity as at the date of lodgement, the collateral must
be lodged with Party A (in an account in the name of Party B) and
remain with Party A for so long as it continues to be an eligible
entity.
Any collateral lodged under this paragraph is subject to the terms
of the Credit Support Annex to this Agreement.
(ii) S&P: If, during the term of any Offshore Notes rated AAA (S&P)
issued by Party B, the credit rating assigned to Party A's senior
debt is lower than relevant the Prescribed Rating, and such
downgrade would except for this clause adversely affect the rating
of the Offshore Notes, then Party A must on request by the Global
Trust Manager either (at the Global Trust Manager's option):
(A) lodge sufficient cash or other collateral (if any) as may be
necessary to maintain the credit rating of those Offshore
Notes at the rating that was applicable to those Offshore
Notes immediately prior to the downgrade.
This collateral must be deposited into a bank account
("Collateral Account") with an Eligible Bank. The Collateral
Account must be in the name of Party B and must bear interest
at a commercial rate payable monthly. Interest earned on the
money credited to the Collateral Account must be paid directly
to Party A. Party A will pay any costs associated with
lodgement of the collateral.
Any collateral lodged under this paragraph is subject to the
terms of the Credit Support Annex to this Agreement; or
(B) arrange, at Party A's cost, for a standby guarantee of Party
A's obligations under this Agreement to be provided by a third
party acceptable to the Global Trust Manager and with a
sufficient short term credit rating by S&P as will maintain
the credit rating of those Offshore Notes by S&P at the rating
that was applicable to those Offshore Notes immediately prior
to the downgrade; or
18
(C) enter into, at Party A's cost, an agreement novating all of
its rights and obligations under each Transaction to a
replacement counterparty provided that such replacement
counterparty has the Prescribed Ratings.
(25) Currency swap transaction. The parties acknowledge that, unless they
otherwise agree, the only Transaction which is to be governed by this
Master Agreement is the currency swap which is confirmed by a
Confirmation substantially in the form of the Annexure 1 or Annexure 2
(as the case may be).
(26) Separate Agreement.
The parties agree that:
(i) by signing this Master Agreement the parties create a separate
agreement (to be construed and administered separately) with
respect to each Transaction, each on the same terms and conditions
as this Master Agreement (except for this paragraph) ("Separate
Agreement"); and
(ii) in construing each Separate Agreement with respect to a Transaction
each reference to "this Agreement" is a reference to the agreement
constituted by the Separate Agreement and all Confirmations of that
Transaction; and
(iii) the consequences of there being Separate Agreements include:
(aa) the parties may exercise rights differently under each
Separate Agreement (including, but not limited to, by
terminating the relevant Transaction under it while one or
more of the other Transactions remains in effect); and
(bb) any netting or set-off rights operate separately with respect
to Transactions relating to each Separate Agreement; and
(cc) an Event of Default, Potential Event of Default or Termination
Event under one Separate Agreement is not necessarily such an
event under any other Separate Agreement; and
(iv) the Annex with the Base Currency (as specified in Paragraph
11(a)(i) of the relevant Annex) in US$ applies only in respect of
the Separate Agreement relating to the US$ Class A-1 Currency Swap;
and
(v) the Annex with the Base Currency (as specified in Paragraph
11(a)(i) of the relevant Annex) in (euro) applies only in respect
of the Separate Agreement relating to the (euro) Class A-3 Currency
Swap.
19
ANNEXURE 1
[The Royal Bank of Scotland plc Letterhead]
28 September 2004
To: Perpetual Trustee Company National Global MBS Manager Pty Ltd
Limited as trustee of the Xxxxx 00, 000 Xxxxxx Xxxxxx
National RMBS Trust 2004-1 XXXXXXXXX XXX 0000
Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx XXXXXXXXX
XXXXXX XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation Attention: Manager, Group Funding
SWAP CONFIRMATION - CURRENCY SWAP
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
("Transaction"). This letter constitutes a "Confirmation" as referred to in
the Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of 28 September 2004, as amended, novated or
supplemented from time to time ("Agreement"), between The Royal Bank of
Scotland plc ("Party A"), Perpetual Trustee Company Limited, (ABN 42 000 001
007) as trustee of the Trust ("Party B") and National Global MBS Manager Pty
Ltd (ABN 36 102 668 226) ("Global Trust Manager"). All provisions contained in
the Agreement govern this Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Trade Date: 21 September 2004
Effective Date: 28 September 2004
Termination Date: Means the earlier of:
(a) the date that all the Class A-1 Notes have
been redeemed in full;
(b) the Final Termination Date for the Trust; and
(c) the Payment Date falling in March 2034,
20
subject to the Following Business Day Convention.
US$ Floating Amounts
payable by Party A:
US$ Floating Rate Payer: Party A
US$ Floating Rate Payer On each US$ Floating Rate Payer Payment Date, 50%
Currency Amount: of the aggregate Invested Amount of the Class A-1
Notes as at the first day of the Interest Period
ending on but excluding the US$ Floating Rate
Payer Payment Date (after taking into account any
reductions in the Invested Amount of the Class A-1
Notes on that day).
US$ Floating Rate Payer Each Payment Date
Payment Dates:
Floating Rate Option: USD-LIBOR-BBA (as defined in the Class A Note
Conditions)
Spread: For each payment made on an US$ Floating Rate Payer
Payment Date on or before the first Call Option Date:
0.11% per annum
For each payment made on an US$ Floating Rate Payer
Payment Date after the first Call Option Date: 0.22%
per annum.
Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The second Business Day before the beginning of each
Interest Period.
A$ Floating Amounts
payable by Party B:
A$ Floating Rate Payer: Party B
A$ Floating Rate Payer On each A$ Floating Rate Payer Payment Date 50% of
Currency Amount: the A$ Equivalent of the aggregate Invested Amount
of the Class A-1 Notes as at the first day of the
Interest Period ending on but excluding the A$
Floating Rate Payer Payment Date (after taking into
account any reductions in the Invested Amount of
the Class A-1 Notes on that day).
A$ Floating Rate Payer Each Payment Date
Payment Dates:
Floating Rate Option: Bank Xxxx Rate (as defined in the Supplemental Deed)
Spread: For each payment made on an A$ Floating Rate Payer
Payment Date on or before the first Call Option
Date: 0.2620% per annum
21
For each payment made on an A$ Floating Rate Payer
Payment Date after the first Call Option Date:
0.5240% per annum.
Floating Rate Day Count Actual/365 (Fixed)
Fraction:
Reset Dates: The first day of each Interest Period.
Exchanges
Initial Exchange:
Initial Exchange Date: Effective Date
Party A Initial Exchange A$714,285,714.00, being the A$ Equivalent of the
Amount: Party B Initial Exchange Amount.
Party B Initial Exchange US$500,000,000.00, being 50% of the aggregate
Amount: Initial Invested Amount of the Class A-1 Notes on
the Issue Date.
Notwithstanding Section 2(a)(ii) of the Agreement,
Party A must pay the Party A Initial Exchange
Amount to Party B by 4.00pm (Melbourne time) on the
Initial Exchange Date and Party B must pay Party A
the Party B Initial Exchange Amount by 4.00pm (New
York time) on the Initial Exchange Date.
Instalment Exchange:
Instalment Exchange Date: Each Payment Date (other than the Final Exchange
Date)
Party A Instalment In respect of an Instalment Exchange Date means the
Exchange Amount: US$ Equivalent of the Party B Instalment Exchange
Amount in relation to that Instalment Exchange Date.
Party B Instalment In respect of an Instalment Exchange Date means
Exchange Amount: 50% of the A$ Class A-1 Principal in relation
to that Instalment Exchange Date.
Final Exchange:
Final Exchange Date: Termination Date (as defined in this Confirmation).
Party A Final Exchange 50% of the aggregate Stated Amount of the Class A-1
Amount: Notes on the Final Exchange Date (as specified in a
notice issued by Party B or the Global Trust Manager
to Party A which shall be prima facie evidence of
the amount).
Party B Final Exchange The A$ Equivalent of 50% of the aggregate of the
Amount: Stated Amount of the Class A-1 Notes on the Final
Exchange Date (as specified in a notice issued by
Party B or the
22
Global Trust Manager to Party A which shall be
prima facie evidence of the amount).
Exchange Rates:
For the purpose of the
definitions of "A$
Equivalent" and "US$
Equivalent":
A$ Exchange Rate: A$1 = US$0.7000
US$ Equivalent means, in relation to an amount which is
calculated, determined or expressed in A$ or which
includes a component determined or expressed in A$,
that A$ amount or A$ component (as the case may be)
multiplied by the A$ Exchange Rate and expressed in
US$
Business Day Convention: Following Business Day Convention
Calculation Agent: Party A
Account Details
Instruction:
Account for payments to Party A: For A$ payments:
National Australia Bank Limited, Melbourne
Account Number: 1803071544500
SWIFT: NATAAU 3303M
For US$ payments:
XX Xxxxxx Chase Bank, New York
Account Number: 00000000
SWIFT: CHASUS 33
Account for payments to Party B: As advised
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning it to us by facsimile today.
Yours sincerely
23
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY THE ROYAL BANK OF SCOTLAND PLC
LIMITED (ABN 42 000 001 007) as
trustee of the National RMBS
Trust 2004-1
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxx Chick
----------------------------- -----------------------------
(Authorised Person) (Authorised Person)
Name: Xxxx Xxxxxxx Name: Xxxxxx Chick
----------------------------- -----------------------------
Title: Manager Title: Head of Structured Capital
----------------------------- Markets, Australia
-----------------------------
SIGNED for and on behalf of
NATIONAL GLOBAL MBS MANAGER PTY LTD
By: /s/ Xxxxxxx Xxxxx
-----------------------------
(Authorised Person)
Name: Xxxxxxx Xxxxx
-----------------------------
Title: Manager Group Funding
-----------------------------
24
ANNEXURE 2
[The Royal Bank of Scotland plc Letterhead]
28 September 2004
To: Perpetual Trustee Company National Global MBS Manager Pty Ltd
Limited as trustee of the Xxxxx 00, 000 Xxxxxx Xxxxxx
National RMBS Trust 2004-1 XXXXXXXXX XXX 0000
Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx XXXXXXXXX
XXXXXX XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation Attention: Manager, Group Funding
SWAP CONFIRMATION - CURRENCY SWAP
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
("Transaction"). This letter constitutes a "Confirmation" as referred to in
the Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of 28 September 2004, as amended, novated or
supplemented from time to time ("Agreement"), between The Royal Bank of
Scotland plc ("Party A"), Perpetual Trustee Company Limited, (ABN 42 000 001
007) as trustee of the Trust ("Party B") and National Global MBS Manager Pty
Ltd (ABN 36 102 668 226) ("Global Trust Manager"). All provisions contained in
the Agreement govern this Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Trade Date: 21 September 2004
Effective Date: 28 September 2004
Termination Date: Means the earlier of:
(a) the date that all the Class A-3 Notes have
been redeemed in full;
(b) the Final Termination Date for the Trust; and
(c) the Payment Date falling in March 2034,
subject to the Following Business Day Convention.
25
(euro) Floating Amounts
payable by Party A:
(euro) Floating Rate Party A
Payer:
(euro) Floating Rate On each (euro) Floating Rate Payer Payment Date, 50%
Payer Currency Amount: of the aggregate Invested Amount of the Class A-3
Notes as at the first day of the Interest Period
ending on but excluding the (euro) Floating Rate
Payer Payment Date (after taking into account any
reductions in the Invested Amount of the Class A-3
Notes on that day).
(euro) Floating Rate Each Payment Date
Payment Dates:
Floating Rate Option: EURIBOR (as defined in the Class A Note Conditions)
Spread: For each payment made on an (euro) Floating Rate
Payer Payment Date on or before the first Call
Option Date: 0.12% per annum
For each payment made on an (euro) Floating Rate
Payer Payment Date after the first Call Option
Date: 0.24% per annum.
Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The second Business Day before the
beginning of each Interest Period.
A$ Floating Amounts
payable by Party B:
A$ Floating Rate Payer: Party B
A$ Floating Rate Payer On each A$ Floating Rate Payer Payment Date, 50% of
Currency Amount: the A$ Equivalent of the aggregate Invested Amount
of the Class A-3 Notes as at the first day of the
Interest Period ending on but excluding the A$
Floating Rate Payer Payment Date (after taking into
account any reductions in the Invested Amount of
the Class A-3 Notes on that day).
A$ Floating Rate Payer Each Payment Date
Payment Dates:
Floating Rate Option: Bank Xxxx Rate (as defined in the Supplemental Deed)
Spread: For each payment made on an A$ Floating Rate Payer
Payment Date on or before the first Call Option
Date: 0.2720% per annum
For each payment made on an A$ Floating Rate Payer
26
Payment Date after the first Call Option Date:
0.5240% per annum.
Floating Rate Day Count Actual/365 (Fixed)
Fraction:
Reset Dates: The first day of each Interest Period.
Exchanges
Initial Exchange:
Initial Exchange Date: Effective Date
Party A Initial A$268,173,913.00, being the A$ Equivalent of the
Exchange Amount: Party B Initial Exchange Amount.
Party B Initial (euro)154,200,000.00, being 50% of the aggregate
Exchange Amount: Initial Invested Amount of the Class A-3 Notes on
the Issue Date.
Notwithstanding Section 2(a)(ii) of the Agreement,
Party A must pay the Party A Initial Exchange
Amount to Party B by 4.00pm (Melbourne time) on the
Initial Exchange Date and Party B must pay Party A
the Party B Initial Exchange Amount by 4.00pm
(London time) on the Initial Exchange Date.
Instalment Exchange:
Instalment Exchange Date: Each Payment Date (other than the Final Exchange
Date)
Party A Instalment In respect of an Instalment Exchange Date means the
Exchange Amount: (euro) Equivalent of the Party B Instalment
Exchange Amount in relation to that Instalment
Exchange Date.
Party B Instalment In respect of an Instalment Exchange Date means 50%
Exchange Amount: of the A$ Class A-3 Principal in relation to that
Instalment Exchange Date.
Final Exchange:
Final Exchange Date: Termination Date (as defined in this Confirmation).
Party A Final Exchange 50% of the aggregate Stated Amount of the Class A-3
Amount: Notes on the Final Exchange Date (as specified in a
notice issued by Party B or the Global Trust Manager
to Party A which shall be prima facie evidence of
the amount).
Party B Final Exchange The A$ Equivalent of 50% of the aggregate of the
Amount: Stated Amount of the Class A-3 Notes on the Final
Exchange Date (as specified in a notice issued by
Party B or the Global Trust Manager to Party A which
shall be prima facie evidence of the amount).
27
Exchange Rates:
For the purpose of the
definitions of "A$
Equivalent" and "(euro)
Equivalent":
A$ Exchange Rate: A$1 = (euro)0.5750
(euro) Equivalent means, in relation to an amount which is calculated,
determined or expressed in A$ or which includes a
component determined or expressed in A$, that A$
amount or A$ component (as the case may be)
multiplied by the A$ Exchange Rate and expressed in
(euro)
Business Day Convention: Following Business Day Convention
Calculation Agent: Party A
Account Details
Instruction:
Account for payments to For A$ payments:
Party A: National Australia Bank Limited, Melbourne
Account Number: 1803071544500
SWIFT: NATAU 3303M
For (euro) payments:
Royal Bank of Scotland, Correspondent Banking London
Account Number: RBSFMLON EURC
SWIFT: RB0SG B2L
Account for payments to As advised
Party B:
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning it to us by facsimile today.
Yours sincerely
28
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY THE ROYAL BANK OF SCOTLAND PLC
LIMITED (ABN 42 000 001 007) as
trustee of the National RMBS
Trust 2004-1
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxx Chick
----------------------------- -----------------------------
(Authorised Person) (Authorised Person)
Name: Xxxx Xxxxxxx Name: Xxxxxx Chick
----------------------------- -----------------------------
Title: Manager Title: Head of Structured Capital
----------------------------- Markets, Australia
----------------------------
SIGNED for and on behalf of
NATIONAL GLOBAL MBS MANAGER PTY LTD
By: /s/ Xxxxxxx Xxxxx
----------------------------
(Authorised Person)
Name: Xxxxxxx Xxxxx
----------------------------
Title: Manager Group Funding
----------------------------
29
EXECUTION PAGES FOR ISDA MASTER AGREEMENT AND SCHEDULE
SIGNED by Xxxx Xxxxxxx )
as attorney for SOCIETE )
GENERALE AUSTRALIA BRANCH )
under power of attorney dated )
21 September 2004 )
in the presence of: )
)
/s/ Xxx Xxxxxxx-Xxxxxx )
-------------------------------)
Signature of witness )
)
Xxx Xxxxxxx-Xxxxxx ) /s/ Xxxx Xxxxxxx
-------------------------------) ----------------------------------
Name of witness (block ) By executing this agreement
letters) ) the attorney states that
) the attorney has received
) no notice of revocation of
) the power of attorney
)
)
SIGNED by Xxxxxxx Xxxxx )
as attorney for PERPETUAL )
TRUSTEE COMPANY LIMITED under )
power of attorney dated )
21 September 2004 )
)
in the presence of: )
)
/s/ Xxxxx Xxxxxxx )
-------------------------------)
Signature of witness )
)
Xxxxx Xxxxxxx ) /s/ Xxxxxxx Xxxxx
-------------------------------) ----------------------------------
Name of witness (block ) By executing this agreement
letters) ) the attorney states that
) the attorney has received
) no notice of revocation of
) the power of attorney
)
30
SIGNED by Xxxxxx Chick )
as attorney for NATIONAL )
GLOBAL MBS MANAGER PTY LTD )
under power of attorney dated )
.......................... )
)
in the presence of: )
/s/ Authorised Signatory )
-------------------------------)
Signature of witness )
)
Authorised Signatory /s/ Xxxxxx Chick
-------------------------------) --------------------------------------
Name of witness (block ) By executing this agreement
letters) ) the attorney states that
) the attorney has received
) no notice of revocation of
) the power of attorney
)
)
