Exhibit 10.4
Draft: 27.03.01
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Securitisation Advisory Services Pty Limited
Manager
Commonwealth Bank of Australia
CBA and Party A
Perpetual Trustee Company Limited
Party B
Citibank N.A., New York Branch
Citibank and Standby Swap Provider
Series 2001-1G Medallion Trust
ISDA Master Agreement
(Currency Swap Agreement)
Xxxxxx 00-00 Xx.0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx XX Xxx X0
Xxxxxxxxx Xxxxxx Xxxxxx XXX 0000 DX 000 Xxxxxx
Tel + 00 0 0000 0000 Fax + 00 0 0000 0000
Our ref - 215/3323/1619626 Contact - Xxxxx Xxxxx/Xxxx Chick
Sydney o Melbourne o Brisbane o Perth o Canberra o Darwin
Liability limited by the Solicitors' Limitation of Liability Scheme approved
under the Professional Standards Act 1994 (NSW)
Schedule
to the
MASTER AGREEMENT
dated as of 2001 between
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
("Manager")
and
Commonwealth Bank of Australia
ABN 48 123 123 124
("CBA " and "Party A")
and
Perpetual Trustee Company Limited
ABN 42 000 001 007
in its several capacities as trustee of various Series Trusts from time
to time established under the Master Trust Deed and various Series
Supplements
("Party B")
and
Citibank N.A., New York Branch
("Citibank" and "Standby Swap Provider")
Part 1. Termination Provisions.
In this Agreement:
(a) "Specified Entity" does not apply in relation to Party A or Party B.
(b) The definition of "Specified Transaction" is not applicable.
(c) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(b)(iv)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iv)
Section 5(a)(iv) Section 5(a)(vii)
(iii) Section 5(b)(ii) will not apply to Party A as the Affected Party
(subject to Part 5(6)(b) of this Schedule) and Section 5(b)(iii)
will not apply to Party A as the Burdened Party.
(d) The "Automatic Early Termination" provisions in Section 6(a) will not
apply to Party A or Party B.
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(e) Payments on Early Termination. For the purposes of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(f) "Termination Currency" means US$ provided that if an amount due in respect
of an Early Termination Date will be payable by Party B to Party A the
Termination Currency for the purpose of calculating and paying that amount
is Australian Dollars.
(g) "Additional Termination Event" applies. The following is an Additional
Termination Event in relation to which both Party A and Party B are
Affected Parties:
"An Event of Default (as defined in the Security Trust Deed) occurs and
the Security Trustee has declared, in accordance with the Security Trust
Deed, the Relevant Notes immediately due and payable."
For the purposes of calculating a payment due under Sections 6(d) and (e)
when an Early Termination Date is designated under Section 6(b) as a
result of such Additional Termination Event, Party B will be the only
Affected Party.
Part 2. Tax Representations
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant government 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 any other party under this Agreement. In
making this representation, it may rely on:
(i) the accuracy of any representation made by that 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 that other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of that 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 Representations. For the purpose of Section 3(f) of this
Agreement:
(i) Party B and Party A, each makes the following representation:
It is an Australian resident and does not derive the payments
under this Agreement in part or whole in carrying on a
business in a country outside Australia at or through a
permanent establishment of itself in that country.
(ii) Citibank as Standby Swap Provider represents that it is an "eligible
swap participant" as defined in Part 35 of the General Regulations
of, and for the purposes of, the U.S. Commodity Exchange Act.
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Part 3. Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver to each other party 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
deliver document delivered
Party A, Party B, and Any document or On the earlier of
the Standby Swap certificate reasonably (a) learning that
Provider required or reasonably such document or
requested by a party in certificate is
connection with its required and (b) as
obligations to make a soon as reasonably
payment under this practicable
Agreement which would following a request
enable that party to make by a party.
the payment free from any
deduction or withholding
for or on account of Tax
or which would reduce the
rate at which deduction
or withholding for or on
account of Tax is applied
to that payment as
requested by Party A with
respect to any payments
received by Party B.
(b) Other documents to be delivered are:
Party required to Form/Document/Certificate Date by which to be
deliver document delivered
Party A, Party B, the A certificate specifying On the execution of
Standby Swap Provider the names, title and this Agreement and
and the Manager specimen signatures of each Confirmation
the persons authorised to unless that
execute this Agreement certificate has
and each Confirmation or already been
other communication in supplied and remains
writing made pursuant to true and in effect
this Agreement on its and when the
behalf. certificate is
updated.
Party A, Party B, the A legal opinion as to the Prior to the Closing
Standby Swap Provider validity and Date.
and the Manager enforceability of its
obligations under this
Agreement in form and
substance (and issued by
legal counsel) reasonably
acceptable to each other
party.
Party B A certified copy to Not less than 5
Party A of each Credit Business Days (or
Support Document such lesser period
specified in respect of as Party A agrees
Party B and (without to) before the Trade
limiting any obligation Date of the first
Party B may have under occurring
the terms of that Credit Transaction and in
Support Document to the case of any
notify Party A of amending documents
amendments thereto) a entered into
certified copy to Party A subsequent to that
of any document that date, promptly after
amends in any way the each amending
terms of that Credit document (if any)
Support
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Document. has been entered into.
Other than the legal opinions, any Credit Support Document or any document
amending a Credit Support Document (but including any certifications in relation
to such documents), all documents delivered under this Part 3(b) are covered by
the Section 3(d) representation. For the purposes of this Part 3(b), a copy of a
document is taken to be certified if a director or secretary of the party
providing the document, or a person authorised to execute this Agreement or a
Confirmation on behalf of that party or a solicitor acting for that party has
certified it to be a true and complete copy of the document of which it purports
to be a copy.
Part 4 Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this Agreement:
Address for notices or communications to CBA as Party A:
Address: Commonwealth Bank of Australia
Xxxxx 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
Address for notices or communications to Party B:
Address: Perpetual Trustee Company Limited
Xxxxx 0
00 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation Services
Facsimile No.: 612 9221 7870
Additionally, a copy of all notices as well as any changes to
counterparty's address, telephone number or facsimile number should be
sent to:
Address: Securitisation Advisory Services Pty. Limited
Xxxxx 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
Address for notices or communications to Citibank as Standby Swap
Provider and (on and from the Novation Date) as Party A:
Address: 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000
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Attention: Director, Derivatives Operations
[Telex No:]
[Answerback:]
Facsimile No.: [ ]
Telephone No.: [ ]
Additionally, a copy of all notices as well as any changes to
counterparty's address, telephone number or facsimile number should be
sent to:
Address: Capital Markets Legal Department, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000
Attention: Head of Department
[Telex No:]
[Answerback:]
Facsimile No.: [ ]
Telephone No.: [ ]
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
CBA as Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: not applicable.
Citibank as Standby Swap Provider and (on and from the Novation Date) as
Party A appoints as its Process Agent: [Citibank Limited][Xxxxxxx Xxxxx
Barney Australia Limited] of [ ].
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent.
(i) The Calculation Agent is:
(A) in respect of all notices, determinations and calculations in
respect of amounts denominated in US$, the Agent Bank; and
(B) in respect of all other notices, determinations and
calculations, the Manager.
(ii) All determinations and calculations by the Calculation Agent will:
(A) be made in good faith and in the exercise of its commercial
reasonable judgment; and
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(B) be determined, where applicable, on the basis of then
prevailing market rates or prices.
All such determinations and calculations will be binding on Party A and
Party B in the absence of manifest error. The Manager (or, if the Manager
fails to do so and Party A notifies Party B, Party B) covenants in favour
of Party A to use reasonable endeavours (including, without limitation,
taking such action as is reasonably necessary to promptly enforce the
obligations of the Agent Bank under the Agency Agreement) to ensure that
the Agent Bank performs its obligations as Calculation Agent under this
Agreement.
(f) Credit Support Document. Details of any Credit Support Document:
(i) In relation to CBA as Party A: Not applicable.
(ii) In relation to Party B: The Security Trust Deed.
(iii) In relation to Citibank as (on and from the Novation Date) Party A:
Not applicable.
(g) Credit Support Provider.
(i) In relation to CBA as Party A: None.
(ii) In relation to Party B: None.
(iii) In relation to Citibank as (on and from the Novation Date) Party A:
None.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws in force in New South Wales, except the Credit
Support Annex, which will be governed by and construed in accordance with
the laws in force in the State of New York as provided in Paragraph
13(m)(iv) of the Credit Support Annex. Section 13(b)(i) is deleted and
replaced by the following:
"(i) submits to the non-exclusive jurisdiction of the courts of New
South Wales and courts of appeal from them; and".
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement
will apply in respect of all Transactions.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement. However, for the purposes of Section 3(c) Party B 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 (if any)".
(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:
(i) Party A, will be made by 10.00 am (New York time); and
(ii) Party B, will be made by 4.00pm (Sydney time),
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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 a 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 to a party if it has satisfied all
its payment obligations under Section 2(a)(i) of this
Agreement and has no future payment obligations, whether
absolute or contingent under Section 2(a)(i)."
(d) 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) Amend Section 2(d) as follows:
(i) Delete the word "if" at the beginning of Section 2(d)(i)(4)
and insert the following words instead:
"if and only if X is Party A and".
(ii) In Section 2(d)(ii) insert the words "(if and only if Y is
Party A)" after the word "then" at the beginning of the last
paragraph.
Without prejudice to the above amendments, it is agreed that
Party B:
(iii) is not obliged to pay:
(1) any additional amount to Party A under Section
2(d)(i)(4); or
(2) any amount to Party A under Section 2(d)(ii); and
(iv) will not receive payments under this Agreement or any
Transaction from which deductions or withholdings have been
made.
(2) Party B's Payment Instructions: Party B irrevocably authorises and
instructs Party A to make payment of:
(i) the Initial Exchange Amount due from Party A to Party B in respect
of the Initial Exchange Date 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.
(3) 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
Sydney notified in writing by Party A to Party B from time to time;
and
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(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.
(4) Representations: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the words
"creditors' rights generally" the following:
"(including in the case of a party being an ADI (as that term is
defined in the Reserve Bank Act, 1959 (Cth)) and section 13A(3) of
the Banking Act, 1959 (Cth)).";
(b) Relationship Between Parties. Each party will be deemed to represent
to the other parties on the date on which it enters into a
Transaction that (absent a written agreement between the parties
that expressly imposes affirmative obligations to the contrary for
that Transaction):-
(i) Non-Reliance. It is acting for its own account (in the case of
Party B, as trustee of the Series Trust), and it has made its
own independent decisions to enter into that Transaction and
as to whether that Transaction is appropriate or proper for it
based upon its own judgment (and in the case of Party B, also
on the judgment of the Manager) and upon advice from such
advisers as it has deemed necessary. It is not relying on any
communication (written or oral) of any 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 any 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.
(c) insert the following new paragraphs (g), (h) and (i) in Section 3
immediately after Section 3(f):
(g) Series Trust. By Party B, in respect of Party B only:
(i) Trust Validly Created. The Series Trust has been validly
created and is in existence at the Trade Date of the
first occurring Transaction.
(ii) Sole Trustee. It has been validly appointed as trustee
of the Series Trust and is presently the sole trustee of
the Series 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
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the Series Trust.
(iv) Power. It has power under the Master Trust Deed to:
(A) enter into and perform its obligations under this
Agreement and each Credit Support Document (in
relation to Party B in its capacity as trustee of
the Series Trust); and
(B) mortgage or charge the Assets of the Series Trust
in the manner provided in the Credit Support
Document (in relation to Party B),
and its entry into this Agreement and each Credit
Support Document (in relation to Party B) is in the
interests of the beneficiaries of the Series Trust and
does not constitute a breach of trust.
(v) Good Title. It is the lawful owner of the Assets of the
Series Trust and, subject only to the Credit Support
Document in relation to Party B and any Security
Interest permitted under the Credit Support Document 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 Series Trust).
(vi) Eligible Swap Participant. The Series Trust was not
formed for the specific purpose of constituting an
"eligible swap participant" (as that term is used in
Part 35 of the General Regulations under the Commodity
Exchange Act).
(vii) Total Assets. As at close of business on the Trade Date
of the first occurring Transaction, following the issue
of the Relevant Notes and provided that the aggregate
Invested Amount of the Relevant Notes upon issue exceeds
USD[ ] the Series Trust will have total assets
exceeding USD[ ].
(h) Non-assignment. It has not assigned (whether absolutely, in
equity, by way of security or otherwise), declared any trust
over or given any charge over any of its rights under this
Agreement or any Transaction except, in the case of Party B,
for the Security Interests created under each Credit Support
Document in relation to Party B.
(i) Contracting as principal. Each existing Transaction has been
entered into by that party as principal and not otherwise."
(5) Event of Default: In Section 5(a):
(a) Failure to Pay or Deliver: 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, 10.00am on the tenth
day after notice of such failure is given to Party B;"
and
9
(2) where the failure is by Party A, 10.00am on the tenth
day after notice of such failure is given to Party A;";
(b) Consequential amendments:
(i) delete "or" at the end of Section 5(a)(vii); and
(ii) replace the full stop at the end of Section 5(a)(viii) with ";
or"; and
(c) Downgrade Obligations: insert the following new paragraph (ix):
"(ix) Downgrade Obligations. In respect of Party A only, Party A
fails to comply with Part 5(22) of the Schedule if such
failure is not remedied on or before the tenth Business Day
(or such later day as Party B and the Manager may agree and
which the Rating Agencies confirm in writing will not result
in a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Relevant Notes) after
notice of such failure is given to Party A."
(6) Termination Events:
(a) Illegality: In respect of each Transaction, the parties agree that
the imposition by any Governmental Agency of an Australian
jurisdiction of any exchange controls, restrictions or prohibitions
which would otherwise constitute an Illegality for the purposes of
Sections 5(b)(i) or 5(c) will not be an event which constitutes an
Illegality for the purposes of those Sections so that, following the
occurrence of that event:
(i) neither Party A nor Party B will be entitled to designate an
Early Termination Date in respect of that Transaction as a
result of that event occurring;
(ii) payment by Party B in accordance with Part 5(3) of the
Schedule will continue to constitute proper performance of its
payment obligations in respect of that Transaction; and
(iii) Party A's obligations in respect of that Transaction or this
Agreement will, to the extent permitted by law, be unaffected
by the occurrence of that event.
(b) Party A's limited rights in relation to Tax Event:
(i) Notwithstanding Part 1(c)(iii) of the Schedule, but subject to
Section 6(b)(ii), Party A may designate an Early Termination
Date if it is an Affected Party following a Tax Event but only
if the Relevant Note Trustee has notified the parties in
writing that it is satisfied that all amounts owing to the
Relevant Noteholders will be paid in full on the date on which
the Relevant Notes are to be redeemed.
(ii) If a Tax Event occurs where Party A is the Affected Party and
Party A is unable to transfer all its rights and obligations
under this Agreement and each Transaction to an Affiliate
pursuant to Section 6(b)(ii), Party A may, at its cost,
transfer all its rights, powers and privileges and all its
unperformed and future obligations under this Agreement and
each Transaction to any person provided that:
(A) each Rating Agency has confirmed in writing that the
transfer
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will not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them
to the Relevant Notes; and
(B) that person has a long term credit rating assigned by
each Rating Agency of at least the long term credit
rating assigned by that Rating Agency to CBA, as at the
date of this Agreement or, otherwise, the Standby Swap
Provider provides its written consent to the transfer.
(7) Termination:
(a) Termination by Trustee: Party B must not designate an Early
Termination Date without the prior written consent of the Relevant
Note Trustee.
(b) Termination by the Relevant Note Trustee: If following an Event of
Default or Termination Event, Party B does not exercise its right to
terminate a Transaction, then the Relevant Note Trustee may
designate an Early Termination Date in relation to that Transaction
as if it were a party to this Agreement.
(c) Termination Payments by Party B: Notwithstanding Section 6(d)(ii),
any amount calculated as being due by Party B in respect of any
Early Termination Date under Section 6(e) will be payable on the
Monthly Distribution Date immediately following the date that such
amount would otherwise be payable under Section 6(d)(ii) (or will be
payable on that date if that date is a Monthly Distribution Date)
except to the extent that such amount may be satisfied from an
earlier distribution under the Security Trust Deed or the payment of
an upfront premium in respect of a Replacement Currency Swap in
accordance with Part 5(17)(b).
(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 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 Rating Agencies have given prior written
confirmation to the Manager that such a transfer will not
result in a reduction, qualification or withdrawal of the
credit ratings then assigned by them to the Relevant Notes."
(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 Rating Agencies
have confirmed in writing that such transfer will not
result in a reduction, qualification or withdrawal of
the credit ratings then assigned by them to the Relevant
Notes.
(e) Notice of Event of Default. For the purposes of Section 6(a) and
(b):
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(i) Party A may only provide a notice specifying an Event of
Default to Party B as the Defaulting Party and may only
designate an Early Termination Date following a Termination
Event where Party A or Party B (or both) is the Affected Party
or the Burdened Party; and
(ii) the Standby Swap Provider may not issue a notice specifying an
Event of Default or designating an Early Termination Date
(except as Party A on or after the Novation Date).
(8) No Set-Off: Section 6(e) is amended by deleting the last sentence of the
first paragraph.
(9) Transfer: Section 7 is replaced with:
"7. Essential term: Transfer
(a) Neither the interests nor the obligations of any party in or under
this Agreement (including any Transaction) are capable of being
assigned or transferred (whether at law, in equity or otherwise),
charged or the subject of any trust (other than the Series Trust or
the trusts created pursuant to the Credit Support Document in
relation to Party B) or other fiduciary obligation. Any action by a
party which purports to do any of these things is void.
(b) Nothing in this Section 7:
(i) restricts a transfer by a party after the other parties have
agreed to the variation of this Agreement in accordance with
Part 5(20) to the extent necessary to permit such transfer;
(ii) restricts a novation of the interests and obligations of a
party in or under this Agreement (including any Transaction)
for the purposes of giving effect to a transfer under Section
6(b)(ii);
(iii) restricts a transfer by a party of all or any part of its
interest in any amount payable to it from a Defaulting Party
under Section 6(e);
(iv) restricts a transfer by Party B or the Manager to a Substitute
Trustee or Substitute Manager, respectively, in accordance
with the Master Trust Deed;
(v) restricts Party B from granting security over a Transaction or
this Agreement pursuant to any Credit Support Document in
relation to Party B; or
(vi) limits Parts 5(6)(b)(ii), 5(22), 5(23), 5(24) or 5(25).
(c) Each party acknowledges that the other party enters into this
Agreement and each Transaction on the basis that this Section 7 must
be strictly observed and is essential to the terms of this Agreement
(including each Transaction)."
(10) Facsimile Transmission: In Section 12:
(a) delete Section 12(a)(ii); and
(b) replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission:
(A) in the case of any notice or other communication
pursuant to
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Parts 5(23), (24) or (25), 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); or
(B) otherwise, 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;".
(11) Definitions
In this Agreement, unless the contrary intention appears:
(a) Master Trust Deed: subject to Part 5(11)(h), unless defined in this
Agreement words and phrases defined in the Master Trust Deed and the
Series Supplement have the same meaning in this Agreement. Subject
to Part 5(11)(h), where there is any inconsistency in a definition
between this Agreement (on the one hand) and the Master Trust Deed
or the Series Supplement (on the other hand), this Agreement
prevails. Where there is any inconsistency in a definition between
the Master Trust Deed (on the one hand) and the Series Supplement
(on the other hand), the Series Supplement prevails over the Master
Trust Deed in respect of the Series Trust. Where words or phrases
used but not defined in this Agreement are defined in the Master
Trust Deed in relation to a Series Trust (as defined in the Master
Trust Deed) such words or phrases are to be construed in this
Agreement, where necessary, as being used only in relation to the
Series Trust;
(b) Trustee Capacity:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the relevant Series Trust only, and in
no other capacity; and
(ii) a reference to the undertaking, assets, business or money of
Party B is a reference to the undertaking, assets, business or
money of Party B in the capacity referred to in paragraph
11(b)(i) only;
(c) 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:
"BBSW" or "AUD-BBR-BBSW" in relation to a Calculation Period
means the rate appearing at approximately 10.00 am Sydney time
on the Reset Date for that Calculation Period on the Reuters
Screen page "BBSW" as being the average of the mean buying and
selling rates appearing on that page for a xxxx of exchange
having a tenor of three
13
months. If:
(a) on that Reset Date fewer than 4 banks are quoted on the
Reuters Screen page "BBSW"; or
(b) for any other reason the rate for that day cannot be
determined in accordance with the foregoing procedures,
then "BBSW" or "AUD-BBR-BBSW" means such rate as is specified
by the Calculation Agent having regard to comparable indices
then available.
"Credit Support Annex" means the Credit Support Annex annexed
to this Agreement.
"Inconvertibility Event" means any event beyond the control of
CBA that makes it impossible for CBA to convert to U.S.
Dollars through customary legal channels an amount of
Australian Dollars sufficient to fulfil CBA's obligations
under this Agreement and each Transaction.
"Joint Ratings" means the highest possible jointly supported
short term credit rating or long term credit rating, as
applicable, that can be determined in relation to Party A and
the Standby Swap Provider by Xxxxx'x, S&P and Fitch in
accordance with Xxxxx'x, S&P's and Fitch's respective
approaches to jointly supported obligations provided that if
either Party A or the Standby Swap Provider has a long term
credit rating of less than BBB from S&P the Joint Ratings from
S&P will be the credit ratings of the other party.
"Master Trust Deed" means the Master Trust Deed dated 8
October 1997 between Party B and the Manager, as amended from
time to time.
"Citibank/CBA ISDA Master Agreement" means the ISDA Master
Agreement dated [ ] between Citibank and CBA, as
amended from time to time.
"Novation Date" means the date upon which the obligations of
CBA as Party A under this Agreement and each Transaction are
novated to the Standby Swap Provider pursuant to Part
5(24)(c).
"Prescribed Rating Period" means in relation to the Joint
Ratings determined by the Rating Agencies:
(a) a period of 30 Business Days from the date of
determination of the relevant credit rating where any
Joint Rating immediately after that determination is
less than the relevant Prescribed Rating but greater
than or equal to a short term credit rating of A-1 by
S&P and long term credit ratings of A- by S&P, A3 by
Xxxxx'x and A- by Fitch, as the case may be; and
(b) a period of 5 Business Days from the date of
determination of the relevant credit rating where any
Joint Rating immediately after that determination is
less than a short term credit rating of A-1 by S&P or
less than a long term credit rating of A- by S&P, A3 by
Xxxxx'x and A- by Fitch.
14
"Prescribed Ratings" means a short term credit rating of A-1+
by S&P or a long term credit rating of AA- by S&P and long
term credit ratings of AA- by Fitch and A2 by Xxxxx'x.
"Quarterly Distribution Date" has the meaning given in Section
16.
"Relevant Calculation Amount" has the meaning given in Section
16.
"Relevant Notes" has the meaning given in Section 16.
"Relevant Note Trustee" has the meaning given in Section 16.
"Relevant Noteholders" has the meaning given in Section 16.
"Scheduled Maturity Date" has the meaning given in Section 16.
"Security Trust Deed" has the meaning given in Section 16.
"Series Supplement" has the meaning given in Section 16.
"Series Trust" has the meaning given in Section 16.
(d) Interpretation:
(i) references to time are references to Sydney time;
(ii) a reference to "wilful default" in relation to Party B means,
subject to Part 5(11)(d)(iii) of this Schedule, any wilful
failure by Party B to comply with, or wilful breach by Party B
of, any of its obligations under any Transaction Document,
other than a failure or breach which:
A. (1) arises as a result of a breach of a Transaction
Document by a person other than:
(a) Party B; or
(b) any other person referred to in Part
5(11)(d)(iii) of this Schedule; and
(2) the performance of the action (the non-
performance of which gave rise to such breach) is
a precondition to Party B performing the said
obligation;
B. is in accordance with a lawful court order or direction
or required by law; or
C. is in accordance with any proper instruction or
direction of the Investors given at a meeting convened
under the Master Trust Deed;
(iii) a reference to the "fraud", "negligence" or "wilful default"
of Party B means the fraud, negligence or wilful default of
Party B and of its officers, employees, agents and any other
person where Party B is liable for the acts or omissions of
such other person under the terms of any Transaction Document;
(iv) a reference to "neither party" will be construed as a
reference to "no
15
party"; and
(v) a reference to "other party" will be construed as a reference
to "other parties".
(e) ISDA Definitions: The 1991 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc ("ISDA")), as
supplemented by the 1998 Supplement to the 1991 ISDA Definitions (as
published by ISDA) (the "1991 ISDA Definitions") as at the date of
this Agreement are incorporated into this Agreement and each
Confirmation.
(f) Inconsistency: Subject to Part 5(11)(a), 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 Schedule and Section 13 ("Elections and Variables") of
the Credit Support Annex (as applicable);
(iii) the 1991 ISDA Definitions; and
(iv) the printed form of the 1992 ISDA Master Agreement and the
printed form of the ISDA Credit Support Annex which form part
of this Agreement.
(g) Swap Transaction: Any reference to a:
(i) "Swap Transaction" in the 1991 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 1991 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.
(12) Limitation of Liability: Insert the following as Sections 15 and 16, after
Section 14:
"15. Party B's Limitation of Liability
(a) (Limitation on Party B's liability): Party B enters into this
Agreement only in its capacity as trustee of the relevant
Series Trust and in no other capacity. A liability incurred by
Party B acting in its capacity as trustee of the relevant
Series Trust arising under or in connection with this
Agreement is limited to and can be enforced against Party B
only to the extent to which it can be satisfied out of the
Assets of that Series Trust out of which Party B is actually
indemnified for the liability. This
16
limitation of Party B's liability applies despite any other
provision of this Agreement (other than Section 15(c)) and
extends to all liabilities and obligations of Party B in any
way connected with any representation, warranty, conduct,
omission, agreement or transaction related to this Agreement.
(b) (Claims against Party B): The parties other than Party B may
not xxx Party B in respect of liabilities incurred by Party B
acting in its capacity as trustee of a Series Trust in any
other capacity other than as trustee of that Series Trust,
including seeking the appointment of a receiver (except in
relation to Assets of that Series Trust), or a liquidator, or
an administrator, or any similar person to Party B or prove in
any liquidation, administration or similar arrangements of or
affecting Party B (except in relation to the Assets of that
Series Trust).
(c) (Breach of trust): The provisions of this Section 15 will not
apply to any obligation or liability of Party B to the extent
that it is not satisfied because under the Master Trust Deed,
the corresponding Series Supplement or any other corresponding
Transaction Document or by operation of law there is a
reduction in the extent of Party B's indemnification out of
the Assets of the relevant Series Trust, as a result of Party
B's fraud, negligence or wilful default.
(d) (Acts or omissions): It is acknowledged that the Relevant
Parties are responsible under the corresponding Transaction
Documents for performing a variety of obligations relating to
the relevant Series Trust. No act or omission of Party B
(including any related failure to satisfy its obligations or
any breach of representation or warranty under this Agreement)
will be considered fraudulent, negligent or a wilful default
of Party B for the purpose of paragraph (c) of this Section 15
to the extent to which the act or omission was caused or
contributed to by any failure by any such Relevant Person or
any other person appointed by Party B under such a Transaction
Document (other than a person whose acts or omissions Party B
is liable for in accordance with any such Transaction
Document) to fulfil its obligations relating to the relevant
Series Trust or by any other act or omission of the Manager or
the Servicer or any other such person.
(e) (No obligation): Party B is not obliged to enter into any
commitment or obligation under this Agreement or any
Transaction Document (including incur any further liability)
unless Party B's liability is limited in a manner which is
consistent with this Section 15 or otherwise in a manner
satisfactory to Party B in its absolute discretion.
16. Segregation
Party B will enter into each Transaction as trustee of a Series
Trust. Each Confirmation in relation to a Transaction must specify
the name of the Series Trust to which the Transaction relates.
Notwithstanding anything else in this Agreement, but without
limiting the generality of Section 15, the provisions of this
Agreement (including, without limitation, the Credit Support Annex)
shall have effect severally in respect of each Series Trust and
shall be enforceable by or against Party B in its capacity as
trustee of the relevant Series Trust as though a separate Agreement
applied between Party A, Party B (in its capacity as trustee of the
Series Trust specified in the relevant Confirmation), the Manager
and the Standby Swap Provider for each of Party B's said several
capacities, to the intent that (inter alia):
17
(a) (References to Party B): unless the context indicates a
contrary intention, each reference to "Party B" in this
Agreement shall be construed as a several reference to Party B
in its respective capacities as trustee of each Series Trust;
(b) (Separate Agreements): this Master Agreement including,
without limitation, this Schedule and the Credit Support Annex
together with each Confirmation relating to a particular
Series Trust will form a single separate agreement between
Party A, the Manager, the Standby Swap Provider and Party B in
its capacity as trustee of that Series Trust and references to
the respective obligations (including references to payment
obligations generally and in the context of provisions for the
netting of payments and the calculation of amounts due on
early termination) of Party A, the Manager, the Standby Swap
Provider or Party B shall be construed accordingly as a
several reference to each mutual set of obligations arising
under each such separate agreement between Party A, the
Manager, the Standby Swap Provider and Party B in its several
capacity as trustee of the relevant Series Trust;
(c) (Representations): representations made and agreements entered
by the parties under this Agreement are made and entered
severally by Party B in its respective capacities as trustee
of each Series Trust and in respect of the relevant Series
Trust and may be enforced by Party B against Party A, the
Manager or the Standby Swap Provider severally in Party B's
said several capacities (and by Party A, the Manager or the
Standby Swap Provider against Party B in Party B's said
several capacities);
(d) (Termination): rights of termination, and obligations and
entitlements consequent upon termination, only accrue to Party
A against Party B severally in Party B's respective capacities
as trustee of each Series Trust, and only accrue to Party B
against Party A severally in Party B's said several
capacities;
(e) (Events of Default and Termination Events): without limiting
Section 15, the occurrence of an Event of Default or
Termination Event in respect of one Series Trust shall not in
itself constitute an Event of Default or Termination Event in
respect of any other Series Trust; and
(f) (Definitions):
(i) the term "Series Trust":
(A) in this Section 16, means each Series Trust (as
defined in the Master Trust Deed) specified or to
be specified, as the context requires, as the
relevant Series Trust in the Confirmation for a
Transaction; and
(B) elsewhere in this Agreement, means each such
Series Trust severally in accordance with the
preceding provisions of this Section 16;
(ii) the term "Transaction":
(A) in this Section 16, means each Transaction
governed by this Agreement; and
18
(B) elsewhere in this Agreement, means each such
Transaction entered into by the trustee as Trustee
of the relevant Series Trust;
(iii) the term "Agreement":
(A) in this Section 16, and elsewhere if so specified,
means this Master Agreement, including, without
limitation, this Schedule and the Credit Support
Annex, and all Confirmations governed by this
Master Agreement; and
(B) elsewhere, unless specified otherwise, means the
separate agreement referred to in Section 16(b) in
respect of each particular Series Trust;
(iv) the terms "Quarterly Distribution Date", "Relevant
Calculation Amount", "Relevant Note Trustee", "Relevant
Notes", "Relevant Noteholders", "Scheduled Maturity
Date", "Security Trust Deed" and "Series Supplement" in
this Agreement to the extent that it applies in relation
to a Series Trust have the respective meanings given to
them in the Confirmations for the Transactions of that
Series Trust."
(13) 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.
(14) 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, the Standby
Swap Provider and the Manager a Confirmation substantially in the
form set out in Annexure 1 (or in such other form as may be agreed
between Party A, Party B, the Standby Swap Provider and the
Manager), and Party B, the Standby Swap Provider and the Manager
must promptly then confirm the accuracy of and sign and return, or
request the correction of, such Confirmation; and
(b) Party B will enter into each Transaction in its capacity as trustee
of the Series Trust.
(15) Authorised Officer: Each party will be entitled to assume, in the absence
of any knowledge to the contrary, that any Confirmation, notice or other
written communication, which is issued in respect of this Agreement and
which is purported to be signed on behalf of another party by a person
specified in the certificate provided by that other party under Part 3(b),
is authorised by that other party.
(16) Recorded Conversations: Each party:
(a) consents to the electronic recording of its telephone conversations
with the other party (or any of its associated persons) with or
without the use of an automatic tone warning device;
19
(b) will provide transcripts of such recordings (if any) upon reasonable
request by the other party (at the reasonable cost of the party
requesting); and
(c) acknowledges that neither is obligated to maintain copies of such
recordings and transcripts for the benefit of the other party.
(17) Replacement Currency Swap Agreement:
(a) If any Transaction under this Agreement is terminated prior to the
day upon which the Relevant Notes are redeemed in full, Party B may,
at the direction of the Manager, enter into one or more currency
swaps which replace that Transaction (collectively a "Replacement
Currency Swap") provided that:
(i) the Rating Agencies confirm in writing that the entry into the
Replacement Currency Swap by Party B does not result in a
reduction, qualification or withdrawal of the credit ratings
then assigned by them to the Relevant Notes; and
(ii) the liability of Party B under the Replacement Currency Swap
is limited 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 a Settlement Amount is payable by Party B to Party
A upon termination of the Transaction referred to in Part 5(17)(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 Settlement Amount to Party A, and
to the extent such premium is not greater than or equal to the
Settlement Amount, the balance may be satisfied by Party B as an
Expense.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party A to Party
B upon termination of the Transaction referred to in Part 5(17)(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 obligations of Party B (and the rights of Party A) under this
Part 5(17) will survive the termination of this Agreement.
(18) 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 Body Corporate of that party which have the day to day
responsibility for the administration or management of that party's (or a
Related Body Corporate of that party's) obligations in relation to the
Series 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).
(19) Restrictions on Party B's Rights: Party B must at all times act in
accordance with the instructions of the Manager in relation to this
Agreement.
(20) Amendment to this Agreement: None of Party A, Party B, the Standby Swap
Provider or the Manager may amend this Agreement unless the Rating
Agencies have confirmed in writing
20
that the proposed amendment will not result in a reduction, qualification
or withdrawal of the credit ratings then assigned by them to the Relevant
Notes.
(21) Appointment of Manager: Party B hereby exclusively appoints the 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 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 Manager's authority to act on behalf of Party B
in accordance with this Part 5(21) of the Schedule.
(22) Ratings Downgrade:
(a) (Downgrade): If, as a result of the reduction or withdrawal of the
credit rating of Party A or the Standby Swap Provider a Joint Rating
is less than the relevant Prescribed Rating, Party A must by the
expiry of the Prescribed Rating Period in relation to the credit
ratings assigned by the Rating Agencies to Party A and the Standby
Swap Provider at that time (or such greater period as is agreed to
in writing by each relevant Rating Agency), at its cost alone and at
its election:
(i) provided that the short term Joint Rating by S&P is greater
than or equal to A-1 or the long term Joint Rating by S&P is
greater than or equal to A- and the long term Joint Rating by
Fitch is greater than or equal to A-, lodge collateral in
accordance with the Credit Support Annex in an amount equal to
the Collateral Amount as defined in Part 5 (22)(b); or
(ii) enter into, and procure that the Standby Swap Provider enters
into, an agreement novating Party A's and/or the Standby Swap
Providers' rights and obligations under this Agreement and
each Transaction to a replacement counterparty acceptable to
the Manager and the Standby Swap Provider and which the Rating
Agencies confirm in writing will not result in a reduction,
qualification or withdrawal of the credit ratings then
assigned by them to the Relevant Notes; or
(iii) enter into, or procure that the Standby Swap Provider enters
into, such other arrangements in respect of each Transaction
which the Rating Agencies confirm in writing will not result
in a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Relevant Notes.
Notwithstanding that Party A has elected to satisfy its obligations
pursuant to this Part 5(22)(a) in a particular manner, it may
subsequently and from time to time vary the manner in which it
satisfies its obligations pursuant to this Part 5(22)(a) (but will
not be entitled to any additional grace period in relation to such a
variation).
(b) (Collateral Amount): For the purpose of this Part 5(22) the
Collateral Amount will be an amount equal to the greater of the
following:
(i) zero;
(ii) CCR; and
(iii) an amount acceptable to Xxxxx'x and Fitch and sufficient to
maintain the credit rating assigned to the Relevant Notes by
Xxxxx'x and Fitch immediately prior to the review of the Joint
Rating.
Where:
21
CCR = CR x 1.030
CR = MTM + VB
MTM means the aggregate xxxx-to-market value (whether positive or
negative) of each Transaction determined in accordance with Part
5(22)(c) no earlier than 3 Business Days prior to the date that the
Collateral Amount is lodged.
VB means the volatility buffer, being the value calculated by
multiplying the Relevant Calculation Amount as at the most recent
Distribution Date by the relevant percentage obtained from the
following table:
--------------------------------------------------------------------
Party A's and Where the Where the Where the
the Standby period period period
Swap between the between the between the
Provider's date of date of date of
jointly recalculation recalculation recalculation
supported and the and the and the
long term Scheduled Scheduled Scheduled
credit rating Maturity Maturity Maturity Date
by S&P Date is less Date is is greater
than or greater than than 10 years
equal to 5 5 years and
years less than or
equal to 10
years
--------------------------------------------------------------------
A+ 1.05 1.75 3.0
--------------------------------------------------------------------
A 1.35 2.45 4.5
--------------------------------------------------------------------
A- 1.5 3.15 6
--------------------------------------------------------------------
(c) (Xxxx to Market Value): Party A must calculate the xxxx-to-market
value of each Transaction by obtaining 2 bids from counterparties
with the Prescribed Ratings willing to provide each Transaction in
the absence of Party A. The xxxx-to-market value may be a positive
or a negative amount. A bid has a negative value if the payment to
be made is from the counterparty to Party A and has a positive value
if the payment to be made is from Party A to the counterparty. The
xxxx-to-market value is the higher of the bids (on the basis that
any bid of a positive value is higher than any bid of a negative
value).
(d) (Recalculation): Party A must recalculate the Collateral Amount
(including the CCR and the xxxx-to-market value) on each Valuation
Date. If:
(i) the Value on such Valuation Date of all Posted Credit Support
held by the Secured Party is less than the recalculated
Collateral Amount, the difference is the Delivery Amount in
relation to that Valuation Date; or
(ii) the Value on such Valuation Date of all Posted Credit Support
held by the Secured Party is greater than the recalculated
Collateral Amount, the difference is the Return Amount in
relation to that Valuation Date.
(e) (Definitions): For the purposes of this Part 5(22) "Delivery
Amount", "Posted Credit Support", "Return Amount", "Secured Party",
"Value" and "Valuation Date" have the same meaning as in the Credit
Support Annex.
(23) Transfer: Notwithstanding the provisions of Section 7, CBA as Party A may
transfer all its rights powers and privileges and all its unperformed and
future obligations under this Agreement and each Transaction to any of its
Affiliates ("Transferee") by delivering to the Standby Swap Provider,
Party B and the Manager a notice expressed to be given under this
provision signed by both CBA as Party A and the Transferee. Upon delivery
of those documents to Party B:
(a) (Party A's rights terminate): CBA's rights powers privileges and
obligations as Party A under this Agreement and each Transaction
terminate;
(b) (Transfer and Assumption): CBA will be taken to have transferred its
rights powers and privileges under this Agreement and each
Transaction to the Transferee
22
and the Transferee will be taken to have assumed obligations
equivalent to those Party A had under this Agreement and each
Transaction;
(c) (Release): Party B will be taken to have released CBA as Party A
from all its unperformed and future obligations under this Agreement
and each Transaction; and
(d) (Documents): this Agreement and the Confirmation relating to each
Transaction shall be construed as if the Transferee was a party to
it in place of CBA as Party A.
A Transferee may utilise this provision as Party A. A transfer under this
Part 5(23) will be of no force or effect until each Rating Agency confirms
in writing that such transfer will not result in a reduction,
qualification or withdrawal of the credit ratings then assigned by them to
the Relevant Notes and until the Standby Swap Provider has given its
written consent to such a transfer (such consent not to be withheld if the
Transferee is willing to enter into collateral arrangements between the
Transferee and the Standby Swap Provider on substantially the same terms
as have been agreed between Citibank and the Standby Swap Provider in the
Citibank/CBA ISDA Master Agreement).
(24) Standby Swap Provider:
(a) (Commitment): Notwithstanding any other provision in this Agreement
to the contrary, if CBA as Party A fails to:
(i) make, when due, any payment required to be made by it to Party
B under a Transaction; or
(ii) comply with any obligation under Part 5(22) within the
required period,
then:
(iii) as soon as practicable following such failure but, in relation
to a failure to pay under a Transaction, in any event no later
than 11.00 am (New York time) on the due date for such payment
or, in relation to a failure to comply with an obligation
under Part 5(22), no later than the Business Day following the
due date for compliance with such obligation, Party B must
notify CBA as Party A and the Standby Swap Provider in writing
of such failure and:
(A) the amount of the defaulted payment and the basis of
calculation of the defaulted payment; or
(B) details of the failure to comply with the obligation
under Part 5(22),
as the case may be; and
(iv) as soon as reasonably practicable after its receipt of such
notice (and in any event, in relation to a failure to pay
under a Transaction, no later than 1.30 pm (New York time) on
the due date for such payment, and, in relation to a failure
to comply with an obligation under Part 5(22), no later than 3
Business Days after the failure to comply with such
obligation, provided, in each case, that notice has been given
by Party B by the required times in accordance with Part
5(24)(a)(iii)) the Standby Swap Provider must:
(A) in relation to a failure to pay under a Transaction, pay
to
23
Party B the amount then owing by CBA as Party A to Party
B under that Transaction by depositing such amount into
the Collections Account in cleared funds; and
(B) in relation to a failure to comply with an obligation
under Part 5(22), satisfy the obligations of CBA as
Party A under Part 5(22).
(b) (Reimbursement): If on any day the Standby Swap Provider:
(i) makes a payment pursuant to Part 5(24)(a)(iv)(A), CBA as Party
A must by 2.00 pm (New York time) on the next following
Business Day (or such other time as the Standby Swap Provider
may agree in writing) pay to the Standby Swap Provider an
amount equal to that payment by depositing such amount into
the account which the Standby Swap Provider nominates for this
purpose in cleared funds; or
(ii) satisfies the obligations of CBA as Party A pursuant to Part
5(24)(a)(iv)(B), CBA as Party A must:
(A) within 3 Business Days, fulfill its obligations under
Part 5(22) such that any collateral lodged by the
Standby Swap Provider pursuant to Part 5(22)(a)(i) or
any other arrangement made by the Standby Swap Provider
pursuant to Part 5(22)(a)(iii) is returned to the
Standby Swap Provider or will cease (but CBA as Party A
will have no obligations to the Standby Swap Provider
under this Part 5(24)(b)(ii)(A) in relation to any
novation pursuant to Part 5(22)(a)(ii)); and
(B) upon demand by the Standby Swap Provider, indemnify the
Standby Swap Provider from and against any other cost or
liability incurred by the Standby Swap Provider in
satisfying those obligations.
(c) (Novation): If:
(i) CBA as Party A defaults in its payment obligations under Part
5(24)(b)(i) or (b)(ii)(B) for reasons other than solely a
technical, computer or similar error outside the control of
Party A and such default is not remedied on or before one
Business Day after such failure; or
(ii) CBA as Party A fails to fulfill its obligations under Part
5(24)(b)(ii)(A), then:
(iii) CBA's rights, powers, privileges and obligations as Party A
under this Agreement and each Transaction terminate other than
its rights, powers, privileges and obligations pursuant to
Part 5(24)(d) and Paragraph 13(m)(vii) of the Credit Support
Annex;
(iv) subject to Part 5(24)(c)(vi), CBA will be taken to have
transferred its rights powers and privileges as Party A under
this Agreement and each Transaction to the Standby Swap
Provider and the Standby Swap Provider will be taken to have
assumed obligations equivalent to those that CBA as Party A
had under this Agreement and each Transaction;
(v) Party B and the Standby Swap Provider will be taken to have
released CBA as Party A from all its unperformed and future
obligations under
24
this Agreement and each Transaction other than its present and
future obligations pursuant to Part 5(24)(d);
(vi) this Agreement and the Confirmation relating to each
Transaction shall be construed as if the Standby Swap Provider
was a party to it in place of Party A except that:
(A) references to "CBA as Party A" will not apply to the
Standby Swap Provider as Party A;
(B) references to any jointly supported credit rating of
Party A and the Standby Swap Provider will be deemed to
be references to the relevant credit rating of the
Standby Swap Provider;
(C) without limiting Part 5(24)(c)(vi)(A), this Part 5(24)
and Paragraph 13(m)(vii) of the Credit Support Annex
will not apply to the Standby Swap Provider as Party A;
(D) the Standby Swap Provider must (if it has not already
done so) satisfy the obligations of Party A under Part
5(22)(a) within 10 Business Days of the Novation Date on
the basis that any collateral lodged by CBA as Party A
or any other arrangements made by CBA as Party A
pursuant to Part 5(22)(a)(iii) will be returned to CBA
as Party A or will cease (but such collateral will only
be returned and such arrangements will only cease upon
compliance by the Standby Swap Provider with its
obligations under this Part 5(24)(c)(vi)(D) and
otherwise, where applicable, in accordance with
Paragraph 13(m)(vii) of the Credit Support Annex or the
terms of such arrangements).
(d) (Termination Payment): Following novation under Part 5(24)(c) CBA as
Party A must pay the Standby Swap Provider or the Standby Swap
Provider must pay CBA as Party A an amount (the "Novation Settlement
Amount") being:
(i) in the case of payment by CBA as Party A to the Standby Swap
Provider, an amount equal to the amount (if any) that would be
payable by Party A to Party B; and
(ii) in the case of payment by the Standby Swap Provider to CBA as
Party A, an amount equal to the amount (if any) that would be
payable by Party B to Party A,
if each Transaction had been terminated, calculated and payable in
accordance with Sections 6(d) and (e) on the basis that:
(i) the Novation Date is the Early Termination Date and the
Novation Settlement Amount is due and payable on the day that
notice of the amount payable is effective;
(ii) the Early Termination Date has resulted from an Event of
Default in respect of which Party A is the Defaulting Party;
(iii) all calculations and determinations which would have been done
by Party B are done by the Standby Swap Provider and all
calculations and determinations that would have been done by
Party A are done by CBA;
25
(iv) a reference to Unpaid Amounts owing to Party B is a reference
to such amounts payable by Party A to the Standby Swap
Provider pursuant to Part 5(24)(b) and (e) and there are no
Unpaid Amounts owing to Party A;
(v) without limiting the foregoing, for the purposes of the
definition of "Market Quotation" in Section 14 each Reference
Market-maker would be required, upon entering into a
Replacement Transaction, to fulfill the obligations of Party A
under Part 5(22)(a) and to comply with Section 2(d) as amended
by Part (5)(1)(e); and
(vi) the Termination Currency is U.S. Dollars.
(e) (Default Interest): If CBA as Party A defaults in the performance of
any payment obligations under Part 5(24)(b) or Part 5(24)(d), it
must pay interest (before as well as after judgment) on the overdue
amount to the Standby Swap Provider 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.
(f) (Irrevocable Notice): If the Standby Swap Provider satisfies the
obligations of CBA as Party A under Part 5(24)(a)(iv)(B) by lodging
collateral on behalf of CBA as Party A pursuant to Part 5(22)(a),
CBA as Party A must promptly provide an irrevocable notice to Party
B (copied to the Standby Swap Provider) directing Party B that any
such collateral, and any Distribution or Interest Amount (as those
terms are defined in the Credit Support Annex) with respect to such
collateral, is to be returned or paid to the Standby Swap Provider
and not to CBA as Party A.
(25) Inconvertibility: If prior to the Novation Date an Inconvertibility Event
occurs the Standby Swap Provider's rights, powers, privileges and
obligations under this Agreement and each Transaction will terminate upon
the Standby Swap Provider delivering a notice expressed to be given under
this provision to Party A, Party B and the Manager and Party B will be
taken to have released the Standby Swap Provider from all its unperformed
and future obligations under this Agreement and each Transaction.
Following the delivery of such a notice in accordance with this Part
5(25), references to any jointly supported credit rating of Party A and
the Standby Swap Provider will be deemed to references to the relevant
credit rating of Party A.
26
Annexure 1
FORM OF CONFIRMATION [NAME OF SERIES TRUST]
[Letterhead of Party A]
[DATE]
To: Perpetual Trustee Company Limited Securitisation Advisory Services
as trustee of the Series Trust Pty. Limited
Xxxxx 0 Xxxxx 0
00 Xxxxxx Xxxxxx 00 Xxxxxx Xxxxx
Xxxxxx XXX 0000 Xxxxxx XXX 0000
XXXXXXXXX XXXXXXXXX
Attention: Manager,
Securitisation Services Attention: Manager, Securitisation
Citibank N.A.
New York Branch
000 Xxxx 00xx Xxxxxx
Xxx Xxxx
XX 00000
XXXXXX XXXXXX
Attention: Director,
Derivatives Operations
CONFIRMATION - MEDALLION TRUST SERIES 2001-1G
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the terms specified below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
This Confirmation is entered into by Perpetual Trustee Company Limited, ABN 42
000 001 007 as trustee of the Series 2001-1G ] Medallion Trust (the "Series
Trust").
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented from
time to time (the "Agreement"), between Commonwealth Bank of Australia, ABN 48
123 123 124 ("Party A"), Perpetual Trustee Company Limited, ABN 42 000 001 007
as trustee of, inter alia, the Series Trust ("Party B"), Securitisation Advisory
Services Pty. Limited, ABN 88 064 133 946 (the "Manager") and Citibank N.A. (the
"Standby Swap Provider"). All provisions contained in the Agreement govern this
Confirmation except as expressly modified below.
This Confirmation incorporates the attached Definitions Schedule which forms
part of, and is subject to, this Confirmation.
The terms of the particular Transaction to which this Confirmation relates are
specified below:
1. Our Reference: [ ]
2. Trade Date: [ ]
3. Effective Date: Issue Date in respect of the Relevant
Notes
4. Termination Date: The earlier of:
(a) the date that the Relevant Notes
have been
27
redeemed in full in
accordance with the Note
Conditions; and
(b) the Scheduled Maturity Date.
5. Floating Amounts
5.1 Floating Amounts Payable by
Party A (subject to Paragraph
9 of this Confirmation):
Floating Rate Payer: Party A
Calculation Amount: For each Floating Rate Payer Payment
Date, one half of the aggregate Invested
Amount of the Relevant Notes as at the
first day of the Calculation Period
ending on but excluding that Floating
Rate Payer Payment Date
Floating Rate Payer Payment Each Quarterly Distribution Date during
Dates: the period commencing on and including
[ ] and ending on and
including the Termination Date, subject
to adjustment in accordance with the
Following Business Day Convention
Floating Rate Option: USD-LIBOR-BBA (except that references to
"London Banking Days" in section
7.1(ag)(ii) and (iv) of the 1998
Supplement to the 1991 ISDA Definitions
will be replaced with references to
"Banking Days" as that expression is
defined in the Note Conditions)
Designated Maturity: Three months (except that Linear
Interpolation using three and four
months will apply in respect of the
first Calculation Period)
Spread: In respect of:
(a) Floating Rate Payer Payment Dates
on or prior to [ ]
(or if that day is not a Business
Day, the next following Business
Day), [ ]; and
(b) Floating Rate Payer Payment Dates
after [ ] (or if that day
is not a Business Day, the next
following Business Day), [ ].
Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Class A-1 Unpaid Coupon On each Floating Rate Payer Payment
Amount: Date, Party A will pay to Party B an
amount calculated as follows:
LIBOR
$USUC=$AUC<-->-----<-->$USExchangeRate
BBSW
where:
$USUC = the amount to be paid by
Party A;
28
$AUC = the A$ Class A-1 Unpaid
Interest Payment in relation
to the Quarterly Distribution
Date which is the same day as
that Floating Rate Payer
Payment Date;
LIBOR = the Floating Rate Option
under this paragraph 5.1 in
respect of the Reset Date
which is the same day as that
Floating Rate Payer Payment
Date;
BBSW = the Floating Rate Option
under paragraph 5.2 in respect
of the Reset Date which is the
same day as that Floating Rate
Payer Payment Date.
5.2 Floating Amounts Payable by
Party B (subject to paragraph
9 of this Confirmation):
Floating Rate Payer: Party B
Calculation Amount: For each Floating Rate Payer Payment
Date, the A$ Equivalent of one half of
the aggregate Invested Amount of the
Relevant Notes as at the first day of
the Calculation Period ending on but
excluding that Floating Rate Payer
Payment Date
Floating Rate Payer Payment Each Quarterly Distribution Date during
Dates: the period commencing on and including
the Effective Date and ending on and
including the Termination Date, subject
to adjustment in accordance with the
Following Business Day Convention
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: three months (except that Linear
Interpolation using three and four
months will apply in respect of the
first Calculation Period)
Spread: In respect of:
(a) Floating Rate Payer Payment Dates
on or prior to [ ] (or
if that day is not a Business
Day, the next following Business
Day), [ ]; and
(b) Floating Rate Payer Payment Dates
after [ ] (or if that day is
not a Business Day, the next
following Business Day), [ ].
Floating Rate Day Count Actual/365 (Fixed)
Fraction:
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
A$ Class A-1 Unpaid Interest On each Floating Rate Payer Payment Date
Amount: Party B will pay to Party A the A$ Class
A-1 Unpaid Interest Payment in relation
to the Quarterly Distribution Date
29
which is the same day as that Floating
Rate Payer Payment Date.
6. Exchanges
6.1 Initial Exchange:
Initial Exchange Date: Issue Date
Party A Initial Exchange The A$ Equivalent of the Party B Initial
Amount: Exchange Amount, being A$[ ]
Party B Initial Exchange One half of the Initial Invested Amount
Amount: of the Relevant Notes on the Issue Date,
being US$[ ]
Notwithstanding Section 2(a)(ii)
of the Agreement, Party A must
pay the Party A Initial Exchange Amount
to Party B by 4.00pm (Sydney 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.
6.2 Instalment Exchange:
Instalment Exchange Date: Each Distribution Date (other than the
Final Exchange Date)
Party A Instalment Exchange In respect of an Instalment Exchange
Amount: Date means the US$ Equivalent of one
half of the A$ Class A-1 Principal Amount
in relation to the Quarterly Distribution
Date occurring on that Instalment
Exchange Date
Party B Instalment Exchange In respect of an Instalment Exchange
Amount: Date means one half of the A$ Class A-1
Principal Amount in relation to the
Quarterly Distribution Date occurring on
that Instalment Exchange Date
6.3 Final Exchange:
Final Exchange Date: Termination Date
Party A Final Exchange Amount: The US$ Equivalent of one half of the A$
Class A-1 Principal Amount in relation
to the Quarterly Distribution Date which
is the Final Exchange Date
Party B Final Exchange Amount: One half of the A$ Class A-1 Principal
Amount in relation to the Quarterly
Distribution Date which is the Final
Exchange Date
7. Exchange Rates:
For the purpose of the
definitions of "A$
Equivalent" and "US$
Equivalent":
US$ Exchange Rate: [ ]
A$ Exchange Rate: [ ]
30
8. Account Details:
8.1 Payments to Party A
Account for payments in US$: The account notified in writing by Part
A to Party B in accordance with Part
5(3)(ii) of the Schedule to the Agreement
Account for payments in A$: The account notified in writing by Party
A to Party B in accordance with Part
5(3)(i) of the Schedule to the Agreement
8.2 Payments to Party B
Account for payments in US$: The account notified in writing by the
Principal Paying Agent to Party A in
accordance with Part 5(2)(ii) of the
Schedule to the Agreement
Account for payments in A$: The account notified in writing by Party
B to Party A in accordance with Part
5(2)(i) of the Schedule to the Agreement
9. Notifications to Party A On or before the Determination
Time in respect of each Distribution
Date the Manager must notify Party A
and the Standby Swap Provider in
writing of:
(a) the A$ Class A-1 Principal Amount
which the Manager has directed
Party B to pay to Party A on that
Quarterly Distribution Date
pursuant to clause 10.5(b)(i)A of
the Series Supplement;
(b) the A$ Class A-1 Interest Payment
in relation to that Quarterly
Distribution Date;
(c) the amounts (if any) allocated to
the Class A-1 Notes in respect of
any Principal Charge-off or
Principal Charge-off Reimbursement
on the immediately preceding
Determination Date in accordance
with Conditions 7.9 and 7.10 of
the Note Conditions; and
(d) the A$ Class A-1 Unpaid Interest
Payment (if any) in relation to
that Quarterly Distribution Date.
10. Offices: The Office of CBA as Party A for each
Transaction is Sydney.
The Office of Citibank (on and from the
Novation Date) as Party A is New York.
The Office of Party B for each
Transaction is Sydney.
Please confirm that the above correctly sets out the terms of our agreement in
respect of each Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
31
Confirmed as at the date first written above:
SIGNED for and on behalf of
COMMONWEALTH BANK OF AUSTRALIA,
ABN 48 123 123 124
By:
(Authorised Officer )
Name:
Title:
Confirmed as at the date first Confirmed as at the date first written
written above: above:
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED, SECURITISATION ADVISORY SERVICES PTY.
ABN 42 000 001 007 LIMITED, ABN 88 064 133 946
as trustee of the Series 2000-2G
Medallion Trust
By: _____________________________ By: ____________________________________
(Authorised Officer) (Authorised Officer)
Name: ___________________________ Name: ___________________________________
Title: __________________________ Title: __________________________________
SIGNED for and on behalf of
CITIBANK N.A., NEW YORK BRANCH
By: _____________________________
(Authorised Officer)
Name: ___________________________
Title: __________________________
32
Definitions Schedule
In this Confirmation and in the Agreement to the extent that it relates to the
Series Trust, unless the context otherwise requires:
"A$ Class A-1 Unpaid Interest Payment" means in relation to a Quarterly
Distribution Date the amount available to be allocated towards payment to Party
A in respect of A$ Class A-1 Unpaid Interest Amounts on that Quarterly
Distribution Date in accordance with clause 10.2B(k)(i) of the Series Supplement
determined on the basis that all amounts allocated towards payment of A$ Class
A-1 Interest Amounts and A$ Class A-1 Unpaid Interest Amounts pursuant to clause
10.2B(k)(i) of the Series Supplement are allocated first towards payment of A$
Class A-1 Interest Amounts and then, once the A$ Class A-1 Interest Amounts are
paid in full, towards payment of A$ Class A-1 Unpaid Interest Amounts.
"Class A-1 Note Trust Deed" means the Class A-1 Note Trust Deed dated on or
about the date of this Confirmation between Party B, the Manager and the
Relevant Note Trustee.
"Determination Time" in relation to a Quarterly Distribution Date means on or
about 11.00am Sydney time 1 Business Day prior to that Quarterly Distribution
Date.
"Quarterly Distribution Date" and " Monthly Distribution Date" each have the
same meaning as in the Series Supplement.
"Note Conditions" means the terms and conditions of the Relevant Notes annexed
to the Relevant Notes.
"Relevant Calculation Amount" means the Calculation Amount referred to in
paragraph 5.1 of this Confirmation.
"Relevant Notes" means the Class A-1 Notes issued by the Trustee under the Class
A-1 Note Trust Deed.
"Relevant Noteholders" means the Class A-1 Noteholders as that term is defined
in the Class A-1 Note Trust Deed.
"Relevant Note Trustee" means The Bank of New York, New York Branch or, if the
Bank of New York is removed or retires as the trustee for the Class A-1
Noteholders, any person appointed from time to time in its place in accordance
with the Class A-1 Note Trust Deed.
"Scheduled Maturity Date" has the same meaning as in the Series Supplement.
"Security Trust Deed" means the Security Trust Deed dated on or about the date
of this Confirmation between Party B, the Manager, the Relevant Note Trustee and
P.T. Limited, ABN 67 004 454 666.
"Series Supplement" means the Series Supplement dated on or about the date of
this Confirmation between CBA, Party B and the Manager.
Terms defined in the Note Conditions have the same meaning in this Confirmation
unless otherwise defined in this Confirmation.
Paragraph 13 to New York Law Credit Support Annex
(13) Elections and Variables
(a) Security Interest for "Obligations"
The term "Obligations" as used in this Annex includes the additional
obligations
33
referred to in Paragraph 13(m)(vii)(B).
"Base Currency" means US$.
"Eligible Currency" means the Base Currency and any other currency
agreed from time to time between Party A, Party B, the Standby Swap
Provider and each Rating Agency.
(b) Credit Support Obligations
(i) Delivery Amount and Return Amount
"Delivery Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(22)(d)(i) for
that Valuation Date.
"Return Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(22)(d)(ii) for
that Valuation Date.
(ii) Eligible Collateral. The following items will qualify as
"Eligible Collateral" for Party A provided that the items
specified in paragraphs (E), (F), (G) and (H) will only
qualify as "Eligible Collateral" of Party A upon receipt by
Party B and the Standby Swap Provider of an opinion as to the
perfection of the Secured Party's security interest in such
items in form and substance (and issued by legal counsel)
satisfactory to Party B and the Standby Swap Provider:
Valuation
Percentage
(A) negotiable debt obligations issued by 98%
the U.S. Treasury Department having a
remaining maturity of not more than
one year
(B) negotiable debt obligations issued by 95%
the U.S. Treasury Department having a
remaining maturity of more than one
year but not more than five years
(C) negotiable debt obligations issued by 93%
the U.S. Treasury Department having
a remaining maturity of more than
five years but not more than ten years
(D) negotiable debt obligations issued by 90%
the U.S. Treasury Department having a
remaining maturity of more than ten
years
(E) Agency Securities having a remaining 97%
maturity of not more than one year
(F) Agency Securities having a remaining 94%
maturity of more than one year but
not more than five years
(G) Agency Securities having a remaining 92%
maturity of more than five years but
not more than ten years
(H) Agency Securities having a remaining 89%
maturity of more than ten years.
(I) cash in an Eligible Currency. 100%
(J) other Eligible Credit Support and
Valuation Percentage agreed by the
parties and acceptable to
34
each Rating Agency
Notwithstanding the foregoing to the contrary, the
Valuation Percentage with respect to all Eligible Credit
Support shall be deemed to be 100% with respect to a
Valuation Date which is an Early Termination Date.
"Agency Securities" means negotiable debt obligations
which are fully guaranteed as to both principal and
interest by the Federal National Mortgage Association,
the Government National Mortgage Corporation or the
Federal Home Loan Mortgage Corporation and which have
been assigned a short term credit rating of A-1+ by S&P,
but exclude: (i) interest only and principal only
securities; and (ii) collateralized mortgage
obligations, real estate mortgage investment conduits
and similar derivative securities.
(iii) Other Eligible Support
Not applicable.
(iv) Thresholds
(A) "Minimum Transfer Amount" means with respect to
both Party A and Party B: US$100,000.
(B) Rounding. The Delivery Amount and the Return
Amount will be rounded to the nearest integral
multiple of US$10,000.
(c) Valuation and Timing
(i) "Valuation Agent" means Party A.
(ii) "Valuation Date" means the last Business Day of each week and,
at the option of either Party A or the Standby Swap Provider,
any Business Day between Valuation Dates.
(iii) "Valuation Time" means the close of business on the Business
Day before the Valuation Date; provided that the calculations
of Value and Exposure will be made as of approximately the
same time on the same date.
(iv) "Notification Time" means 11:00 am New York time on the second
Business Day after the Valuation Date.
(d) Conditions Precedent and Secured Party's Rights and Remedies
There are no "Specified Conditions" applicable to Party A. The
following is a Specified Condition with respect to Party B:
"If an Early Termination Date has been designated in respect of each
Transaction provided that if an amount is due by Party A to Party B
in respect of that Early Termination Date pursuant to Section 6,
that amount has been paid in full."
(e) Substitution
(i) "Substitution Date" has the meaning specified in paragraph
4(d)(ii).
35
(ii) Consent. The Pledgor must obtain the Secured Party's consent
for any substitution pursuant to paragraph 4(d). However such
consent is not to be unreasonably withheld and the parties
agree that not wanting to accept a particular type of
Substitute Credit Support is not in itself a reasonable basis
for withholding consent if the Substitute Credit Support is
Eligible Collateral. The consent may be provided in a manner
described in Section 12 or otherwise, including orally.
(f) Dispute Resolution
(i) "Resolution Time"" means 11:00 am New York time.
(ii) "Value". Not applicable.
(iii) "Alternative". The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral
(i) Eligibility to Hold Posted Collateral; Custodians.
Party A: Not Applicable.
Party B is not entitled to hold Posted Collateral. It must
appoint a Custodian to hold Posted Collateral on its behalf
pursuant to paragraph 6(b). Party B may only appoint a
Custodian to hold Posted Collateral on its behalf if the
following conditions are satisfied:
(A) Party B is not a Defaulting Party;
(B) Party B's Custodian will always be the Principal Paying
Agent, unless that party is Party A; and
(C) if the Principal Paying Agent is Party A, then Party B
must appoint a Custodian which is a Bank (as defined in
the Federal Deposit Insurance Act, as amended) outside
Australia, whose rating (with respect to its long term
unsecured, unsubordinated indebtedness) is at all times
at least Aa2 by Xxxxx'x and its short term debt rating
is A-1+/F-1+ (S&P/Fitch), and Party B must notify Party
A in writing of this appointment and of the relevant
account for Paragraph 13(l).
(D) Posted Collateral may only be held in one or more
accounts in the name of Party B in the United States and
any account established by Party B's Custodian to hold
Posted Collateral shall be established and maintained
for the sole purpose of receiving deliveries of and
holding Posted Collateral.
(ii) Use of Posted Collateral. The provisions of paragraph 6(c)
will not apply to Party B and its Custodian. Party B's
Custodian will permit Party B to secure Party B's obligations
under the Relevant Notes by granting to the Security Trustee
the charge under the Security Trust Deed over Party B's rights
in relation to the Posted Collateral, but subject to Paragraph
13(m)(vi) of this Annex.
(h) Distributions and Interest Amount
36
(i) Interest Rate. The "Interest Rate", in respect of Posted
Collateral which is denominated in US$, for any day means the
Federal Funds Overnight Rate. For the purposes hereof,
"Federal Funds Overnight Rate" means, for any day, an interest
rate per annum equal to the rate published as the Federal
Funds Effective Rate that appears on Telerate Page 118 for
such day. The "Interest Rate" in respect of Posted Collateral
denominated in any other Eligible Currency means the rate as
agreed between the parties.
(ii) Transfer of Interest Amount. The Transfer of Interest Amount
will be made monthly on the second Business Day of each
calendar month.
(iii) Alternative to Interest Amount. The provisions of Paragraph
6(d)(ii) will apply.
(i) Additional Representation(s)
None.
(j) Other Eligible Support and Other Posted Support
"Value" and "Transfer" with respect to Other Eligible Support and
Other Posted Support means: not applicable.
(k) Demands and Notices
All demands, specifications and notices under this Annex will be
made pursuant to the Section 12 of this Agreement; provided, that
any such demand, specification or notice may be made by telephone
("Telephone Notice") between duly authorised employees of each party
if such Telephone Notice is confirmed by a subsequent written
instruction (which may be delivered via facsimile) by the close of
business of the same day that such Telephone Notice is given.
(l) Addresses for Transfers
Party A: Party A to specify account for returns of collateral.
Party B: Party B must notify Party A of its Custodian's account.
(m) Other Provisions
(i) Paragraph 4(b) of the Annex is replaced by the following:
"(b) Transfer Timing. Subject to Paragraph 4(a) and 5 and
unless otherwise specified, if a demand for the Transfer
of Eligible Credit Support or Posted Credit Support is
made by the Notification Time, then the relevant
Transfer will be made within three Business Days of
receipt of the demand; if a demand is made after the
Notification Time, then the relevant Transfer will be
made within four Business Days of receipt of the
demand."
37
(ii) Event of Default
Joint Ratings below specified levels
Paragraph 7(i) of the Annex is amended, on line 3, by
replacing "two Business Days" with "three Business Days".
(iii) Party B's expenses
Subject to Section 15 of the Agreement, Party B agrees to pay
Party A's costs and expenses in relation to or caused by any
breach by Party B of its obligations under this Annex. Party A
acknowledges and agrees that its obligations under this Annex
will not be affected by a failure by Party B to comply with
its obligations under this paragraph (m)(iii).
(iv) Governing Law notwithstanding
Notwithstanding that the Agreement is expressed to be governed
by the laws of New South Wales, this Annex (but not any other
provisions of the Agreement) shall be governed by and
construed in accordance with the laws of the state of New York
without giving effect to choice of law doctrine and parties
hereto agree that proceedings relating to any dispute arising
out of or in connection with this Annex shall be subject to
the non-exclusive jurisdiction of the federal or state courts
of competent jurisdiction in the Borough of Manhattan in New
York City, State of New York.
(v) No trial by jury
Each party waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in
respect of any suit, action or proceeding relating to this
Annex.
(vi) No pooling of Collateral with other Security Trust security
Notwithstanding any provision in the Master Trust Deed, Series
Supplement or Security Trust Deed, but without prejudice to
Party B's rights under Paragraph 8(a) of this Annex, no party
shall be entitled to deal with the Posted Collateral in any
manner inconsistent with the rights of the Pledgor under
Paragraphs 3(d), 4(b) or 8(b)(iii) of this Annex, and each
party covenants to the other that it shall not permit any
other person to gain any rights in relation to the Posted
Collateral that are inconsistent with the rights of the
Pledgor.
(vii) Rights in Relation to Swap Provider's Posted Collateral
Following Novation
(A) The Secured Party will hold its security interest in,
lien on and right of Set- Off against all Posted
Collateral Transferred or received by the Secured Party
from CBA as Party A (or from the Standby Swap Provider
on behalf of CBA as Party A but not from the Standby
Swap Provider in its capacity as Party A) hereunder on
trust for the benefit of:
(1) the Series Trust as security for the Obligations
of CBA as Party A to the Secured Party as trustee
of the Series Trust (other than pursuant to
Paragraph
38
13(m)(vii)(B)); and
(2) the Standby Swap Provider as security for the
Obligations of CBA as Party A to the Standby Swap
Provider pursuant to Parts 5(24)(d) and (e) of the
Schedule to this Agreement, as that term is
defined in Section 16(f)(iii)(A), and all CBA's
present and future obligations to the Standby Swap
Provider under Paragraph 13(m)(v) of the credit
support annex to the Citibank/CBA ISDA Master
Agreement,
in accordance with the provisions of this Paragraph
13(m)(vii), and Paragraph 2 is varied accordingly.
(B) CBA as Party A covenants in favour of the Secured Party
that it will duly and punctually pay to the Secured
Party:
(1) all its Obligations to the Standby Swap Provider
pursuant to Parts 5(24)(d) and (e) of the Schedule
to this Agreement, as that term is defined in
Section 16(f)(iii)(A); and
(2) all its present and future obligations to the
Standby Swap Provider under Paragraph 13(m)(v) of
the credit support annex to the Citibank/CBA ISDA
Master Agreement,
as and when the same fall due for payment.
Notwithstanding the foregoing, every payment by CBA as
Party A, or the Secured Party in accordance with
Paragraph 13(m)(vii)(C)(2)(b), to the Standby Swap
Provider will operate as a payment by CBA as Party A to
the Secured Party in satisfaction of CBA's obligations
as Party A pursuant to this Paragraph 13(m)(vii)(B). The
Secured Party will hold the benefit of its rights under
this Paragraph 13(m)(vii)(B) on trust for the Standby
Swap Provider in accordance with the provisions of this
Paragraph 13(m)(vii).
(C) The Secured Party must deal with all Posted Collateral
Transferred or received by the Secured Party from CBA as
Party A (or from the Standby Swap Provider on behalf of
CBA as Party A but not from the Standby Swap Provider in
its capacity as Party A) hereunder:
(1) prior to the Novation Date, in accordance with the
provisions of this Agreement other than this
Paragraph 13(m)(vii);
(2) on or after the Novation Date:
(a) until the date upon which the Standby Swap
Provider has initially fulfilled its
obligations as Party A pursuant to Part
5(22)(a) of the Schedule to this
Agreement, such Posted Collateral must be
held by the Secured Party and not
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Transferred or otherwise applied;
(b) on or after the date upon which the Standby
Swap Provider has initially fulfilled its
obligations as Party A pursuant to Part
5(22)(a) of the Schedule to this Agreement
and until CBA as Party A has paid in full
all of its Obligations to the Standby Swap
Provider pursuant to Parts 5(24)(d) and (e)
of the Schedule to this Agreement, as that
term is defined in Section 16(f)(iii)(A),
and all its present and future obligations
to the Standby Swap Provider under Paragraph
13(m)(v) of the credit support annex to the
Citibank/CBA ISDA Master Agreement, the
Secured Party must, upon the instructions of
the Standby Swap Provider, exercise the
rights and remedies pursuant to Paragraph
8(a) in respect of such Posted Collateral,
and Party A agrees that the Secured Party
may exercise such rights and remedies under
Paragraph 8(a) to the same extent and with
the same effect as if an Event of Default or
Specified Condition had occurred with
respect to Party A, and apply the proceeds
of the exercise of such rights and remedies
in satisfaction of CBA's Obligations as
Party A to the Standby Swap Provider
pursuant to Parts 5(24)(d) and (e) of the
Schedule to this Agreement, as that term is
defined in Section 16(f)(iii)(A), as and
when these are due and payable and CBA's
present and future obligations to the
Standby Swap Provider under Paragraph
13(m)(v) of the credit support annex to the
Citibank/CBA ISDA Master Agreement as and
when these are due and payable (and to the
Secured Party pursuant to Paragraph
13(m)(vii)(B)) until all such Obligations
have been paid in full; and
(c) on or after the date upon which the Standby
Swap Provider has initially fulfilled its
obligations as Party A pursuant to Part
5(22)(a) of the Schedule to this Agreement
and CBA as Party A has paid in full all its
Obligations to the Standby Swap Provider
pursuant to Parts 5(24)(d) and (e) of the
Schedule to this Agreement, as that term is
defined in Section
40
16(f)(iii)(A), and no amounts are or
thereafter may become payable in respect to
such Obligations and has paid in full all
its present and future obligations to the
Standby Swap Provider under Paragraph
13(m)(v) of the credit support annex to the
Citibank/CBA ISDA Master Agreement
(including by virtue of Paragraph
13(m)(vii)(C)(2)(b)) and no amounts are or
thereafter may become payable with respect
to such obligations, the Secured Party must
Transfer to CBA as Party A all such Posted
Collateral and the Interest Amount in
relation to such Posted Collateral, if any.
(D) The Standby Swap Provider indemnifies the Secured Party
from and against any cost or liability incurred by the
Secured Party in complying with the instructions of the
Standby Swap Provider pursuant to Paragraph
13(m)(vii)(C)(2)(b). The Standby Swap Provider
acknowledges and agrees that the Secured Party may not,
and is not required, to take any action to exercise its
rights and remedies in relation to the Posted Collateral
in respect of the Obligations of CBA as Party A to the
Standby Swap Provider except upon the directions of the
Standby Swap Provider and in accordance with this
Paragraph 13(m)(vii).
(E) Following the Novation Date, the Secured Party must
ensure that any Posted Collateral Transferred or
received by the Secured Party from CBA as Party A is
held by the Custodian separately from, and is not
co-mingled with, Posted Collateral Transferred or
received by the Secured Party from the Standby Swap
Provider as Party A.
(F) This paragraph 13(m)(vii) applies notwithstanding any
other provision of this Agreement.
(viii) Pledgor and Secured Party
In this Annex:
(a) "Pledgor" means only Party A; and
(b) "Secured Party" means only Party B.
(ix) Non-Australian Assets
CBA must only Transfer Posted Collateral to the Secured Party
from its assets held outside Australia.
(x) Dispute Resolution
Paragraph 5(i) is amended by:
(A) replacing the word "Exposure" with the words "the
Delivery
41
Amount or the Return Amount, as the case may be" in the
first paragraph of Paragraph 5(i);
(B) adding the word "and" at the end of Paragraph 5(i)(A)
and deleting Paragraph 5(i)(B).
(xi) Specified Condition
(A) In Paragraph 4(a)(ii) the words "or Specified Condition"
are deleted.
(B) In Paragraph 8(b) the words "or Specified Condition" are
deleted and replaced with the following "with respect to
the Secured Party or a Specified Condition has
occurred".
(xii) Return Amounts
If under this Agreement, as that term is defined in Section
16(f)(iii)(A), a Novation Date has occurred, each Transfer
obligation of the Secured Party under Paragraphs 3, 4(d)(ii),
5 and 6(d) is subject to the condition precedent that the
Standby Swap Provider, in its discretion, has consented to the
Transfer unless CBA as Party A has paid in full all its
Obligations to the Standby Swap Provider pursuant to Parts
5(24)(d) and (e) of the Schedule to this Agreement, as that
term is defined in Section 16(f)(iii)(A), and no amounts are
or thereafter may become payable with respect to such
Obligations, and has paid in full all its present and future
obligations to the Standby Swap Provider under Paragraph
13(m)(v) of the credit support annex to the Citibank/CBA ISDA
Master Agreement (including by virtue of Paragraph
13(m)(vii)(C)(2)(b)), and no amounts are or thereafter may
become payable with respect to such obligations.
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