FORM OF CALCULATION AGENCY AGREEMENT between New South Wales Treasury Corporation and Citibank, N.A., London Branch Dated as of December 14, 2009
Exhibit J
FORM OF CALCULATION AGENCY AGREEMENT
between
New South Wales Treasury Corporation
and
Citibank, N.A., London Branch
Dated as of December 14, 2009
New South Wales Treasury Corporation (the “Corporation”), a statutory corporation constituted
pursuant to the Treasury Corporation Xxx 0000 of New South Wales (the “Issuer”), proposes to issue
and sell its Medium-Term Notes, Series A (the “Notes”) due nine months to 30 years from date of
issue. The Notes will be issued from time to time under, and pursuant to, the terms of a Fiscal
Agency Agreement, dated as of September 11, 2009 (as amended, modified or supplemented from time to
time, the “Fiscal Agency Agreement”), between the Issuer and Citicorp International Limited, as
fiscal agent (the “Fiscal Agent”) and Citibank, N.A., London Branch, as paying agent, transfer
agent and registrar (the “Paying Agent”). Terms used but not defined in this Calculation Agency
Agreement (this “Agreement”) shall have the meanings given to such terms in the Notes.
Certain of the Notes will bear interest at floating rates (the “Floating Rate Notes”)
determined by reference to the CD Rate, CMT Rate, the Commercial Paper Rate, the Eleventh District
Cost of Funds Rate, the Federal Funds Rate, LIBOR, EURIBOR, the Prime Rate, the Treasury Rate, the
Australian Bank Xxxx Swap Rate or another other rate or formula (collectively, the “Base Rates”),
the terms of which are specified in such Floating Rate Notes. The form of Floating Rate Note is
attached hereto as Exhibit A. In connection with the calculation of the interest rates applicable
to any Floating Rate Notes for which Citibank, N.A., London Branch is named on the face of such
Floating Rate Note as Calculation Agent, the Issuer and Citibank, N.A., London Branch (the
“Calculation Agent”) hereby agree as follows:
SECTION 1. Appointment of Calculation Agent. The Issuer hereby appoints Citibank,
N.A., London Branch as the Calculation Agent with respect to Floating Rate Notes that the Issuer
may issue from time to time and for which the Calculation Agent is named on the face of such
Floating Rate Note as Calculation Agent, and the Calculation Agent hereby accepts such appointment
and its obligations as set forth herein.
SECTION 2. Calculation of Base Rate. The Calculation Agent shall determine and notify
the Issuer and the Fiscal Agent and, if the relevant Notes are to be admitted to listing, trading
and/or quotation by a listing authority, exchange or quotation system and the rules of such listing
authority, exchange or quotation system so require, such listing authority, exchange or quotation
system, of the interest rate applicable to each Floating Rate Note on or prior to the related
Calculation Date or, if the Base Rate is LIBOR, EURIBOR or the Australian Bank Xxxx Swap Rate, on
the related Interest Determination Date and shall take such other actions as may be required in
connection with the performance of its obligations in connection with the Floating Rate Notes
hereunder. All interest rate determinations made by the Calculation Agent with respect to Floating
Rate Notes shall, in
the absence of manifest or proven error, be conclusive for all purposes and binding upon the
Issuer, the Calculation Agent and the holders of the Floating Rate Notes. If at any time the
Calculation Agent is not also acting as Paying Agent under the Fiscal Agency Agreement the Issuer
will cause the Paying Agent to give the Calculation Agent at least three New York business days
notice of each Interest Determination Date or Calculation Date, as applicable.
SECTION 3. New Base Rates. If the Issuer proposes to issue Floating Rate Notes whose
interest rate will be determined by reference to an index or formula not specified in the form of
Floating Rate Note attached hereto as Exhibit A (a “New Base Rate”), the Issuer shall give a
description of such New Base Rate to the Calculation Agent. The Calculation Agent shall determine
if it is able and willing to calculate the New Base Rate and, upon its agreement to so calculate
the New Base Rate, the term “Base Rate” shall be deemed to include the New Base Rate. If the
Calculation Agent notifies the Issuer that it is unable or unwilling to calculate the New Base
Rate, or that it is only willing to calculate the New Base Rate on the basis of an increase in its
fees not acceptable to the Issuer, the Calculation Agent shall have no responsibility with respect
to such New Base Rate. The Issuer may appoint a different Agent as calculation agent to calculate
the New Base Rate.
SECTION 4. Fees and Expenses. The Calculation Agent shall be entitled to such
compensation for its services under this Agreement as may be agreed upon in writing with the
Issuer, and the Issuer shall pay such compensation and shall reimburse the Calculation Agent for
all reasonable out-of-pocket expenses (including reasonable legal fees and expenses), disbursements
and advances incurred or made by the Calculation Agent in connection with the services rendered by
it under this Agreement, except any expenses, disbursements or advances attributable to its
negligence, bad faith or willful misconduct.
SECTION 5. Rights and Liabilities of Calculation Agent. The Calculation Agent shall
incur no liability for, or in respect of, any action taken, omitted to be taken or suffered by it
in reliance upon any Floating Rate Note, certificate, affidavit, instruction, notice, request,
direction, order, statement or other paper, document or communication provided to it by any person
the Calculation Agent reasonably believed to be an authorized officer or attorney-in-fact of the
Issuer and reasonably believed by it to be genuine. The Calculation Agent may consult with counsel
of national or international standing satisfactory to it and the advice or opinion of such counsel
shall constitute full and complete authorization and protection of the Calculation Agent with
respect to any action taken, omitted to be taken or suffered by it hereunder in good faith and
without negligence and in accordance with, and in reliance upon, the opinion of such counsel. In
acting under this Agreement, the Calculation Agent does not assume any obligation towards, or any
relationship of agency or trust for or with, the registered holders or beneficial owners of the
Notes. The Calculation Agent shall have no duty to enforce any obligation of any other person
hereunder, including without limitation, the Issuer. The Calculation Agent shall not be liable for
anything which it may do or refrain from doing in connection with this Agreement, except for its
own negligence, bad faith or willful misconduct.
SECTION 6. Right of Calculation Agent to Own Floating Rate Notes. The Calculation
Agent and its officers, employees and shareholders may become owners of, or acquire any interests
in, Floating Rate Notes, with the same rights as if the Calculation Agent were not the Calculation
Agent, and may engage in, or have an interest in, any financial or other transaction with the
Issuer as if the Calculation Agent were not the Calculation Agent.
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SECTION 7. Duties of Calculation Agent. The Calculation Agent shall be obligated only
to perform such duties as are specifically set forth herein and no other duties or obligations on
the part of the Calculation Agent shall be implied by this Agreement.
SECTION 8. Termination, Resignation or Removal of Calculation Agent. The Calculation
Agent may at any time terminate this Agreement by giving no less than 45 days’ prior written notice
to the Issuer, unless the Issuer consents in writing to a shorter time. Upon receipt of notice of
termination by the Calculation Agent, if any Floating Rate Notes are outstanding, the Issuer agrees
promptly to appoint a successor calculation agent. In such event, the Calculation Agent shall have
the right to petition at the expense of the Issuer a court of competent jurisdiction for the
appointment of a successor calculation agent in the event of the failure to so appoint a successor
calculation agent within 20 days after receipt of notice of termination by the Calculation Agent.
The Issuer may terminate this Agreement at any time by giving written notice to the Calculation
Agent and specifying the date when the termination shall become effective, provided that no such
removal shall take effect less than 30 days nor more than 45 days after such notice has been given.
Notwithstanding the foregoing, if any Floating Rate Notes are outstanding, no termination by the
Calculation Agent or by the Issuer shall become effective prior to the date of the appointment by
the Issuer, as provided in Section 9 hereof, of a successor calculation agent and the acceptance of
such appointment by such successor calculation agent. Upon termination by any party pursuant to
the provisions of this Section 8, the Calculation Agent shall be entitled to the payment of any
compensation owed to it by the Issuer hereunder and to the reimbursement of all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the Calculation Agent in
connection with the services rendered by it hereunder (other than incurred in respect of a
termination).
SECTION 9. Appointment of Successor Calculation Agent. Any successor calculation
agent appointed by the Issuer following termination of this Agreement pursuant to the provisions of
Section 8 hereof shall execute and deliver to the Issuer and the Calculation Agent an instrument
accepting such appointment, and thereupon such successor calculation agent shall, without any
further act or instrument, become vested with all rights, immunities, duties and obligations of the
Calculation Agent, with like effect as if originally named as Calculation Agent hereunder, and upon
payment of its charges hereunder, the Calculation Agent shall thereupon be obligated to transfer
and deliver, and such successor calculation agent shall be entitled to receive and accept, copies
of any available records maintained by the Calculation Agent in connection with the performance of
its obligations hereunder.
SECTION 10. Indemnification. The Issuer shall indemnify and hold harmless the
Calculation Agent and its directors, officers, employees and agents from and against all actions,
claims, damages, liabilities, losses and reasonable out-of-pocket expenses (including reasonable
legal fees and expenses) relating to or arising out of actions or omissions hereunder, except
actions, claims, damages, liabilities, losses and expenses caused by the negligence, bad faith or
willful misconduct of the Calculation Agent or its officers, directors, employees or agents. This
Section 10 shall survive payment in full by the Issuer of its obligations under the Floating Rate
Notes as well as any termination of this Agreement pursuant to Section 8 hereof.
Under no circumstance will the Calculation Agent be liable to any party for any special,
indirect, punitive or consequential loss or damage of any kind whatsoever (inter alia, being loss
of business, goodwill, opportunity or profit), whether or not foreseeable, even if the Calculation
Agent has been advised of such loss or damage and regardless of whether
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the claim for loss or damage is made in negligence, for breach of contract or otherwise. The
provision of this clause shall survive the resignation or removal of the Calculation Agent and the
termination of this Agreement.
SECTION 11. Merger, Consolidation or Sale of Business by Calculation Agent. Any
corporation into which the Calculation Agent may be merged, converted or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Calculation Agent
may be a party, or any corporation to which the Calculation Agent may sell or otherwise transfer
all or substantially all of its corporate trust business, shall, to the extent permitted by
applicable law, become the Calculation Agent under this Agreement without the execution of any
paper or any further act by the parties hereto.
SECTION 12. Notices. Any notice or other communication given hereunder shall be
delivered in person, sent by mail (postage prepaid), overnight courier, electronic mail, facsimile,
telecopy or telex, to the addresses given below or such other address as the party to receive such
notice may have previously specified:
To the Issuer:
New South Wales Treasury Corporation,
Xxxxx 00, Xxxxxxxx Xxxxxxx Xxxxx,
0 Xxxxxx Xxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx, 0000, Xxxxxxxxx,
Attention: Chief Executive
Facsimile. x00 0 0000 0000
Xxxxx 00, Xxxxxxxx Xxxxxxx Xxxxx,
0 Xxxxxx Xxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx, 0000, Xxxxxxxxx,
Attention: Chief Executive
Facsimile. x00 0 0000 0000
To the Calculation Agent or to the Paying Agent:
Citibank N.A.
0 Xxxxx Xxxx Xxxx,
Xxxxxx 0,
Xxxxxxx
Attention: Paying Agent / Calculation Agent
Facsimile: x000 0 000 0000
x000 0 000 0000
Citibank N.A.
0 Xxxxx Xxxx Xxxx,
Xxxxxx 0,
Xxxxxxx
Attention: Paying Agent / Calculation Agent
Facsimile: x000 0 000 0000
x000 0 000 0000
Any notice hereunder given by mail, overnight courier, facsimile, telecopy or telex shall be deemed
to have been received when it would have been received in the ordinary course of post or
transmission, as the case may be, and any electronic mail shall be deemed received when a return
receipt is received.
SECTION 13. Judgment Currency. The Issuer agrees to indemnify the Calculation Agent
against any loss incurred as a result of any judgment or order being given or made for any amount
due hereunder and such judgment or order being expressed and paid in a currency (the “Judgment
Currency”) other than U.S. dollars and as a result of any variation between (i) the rate of
exchange at which the U.S. dollar amount is converted into the Judgment Currency for the purpose of
such judgment or order, and (ii) the rate of exchange at which the Calculation Agent would have
been able to purchase U.S. dollars with the amount of the Judgment Currency actually received by
the Calculation Agent had the Calculation Agent utilized such amount of Judgment Currency to
purchase U.S. dollars as promptly as practicable upon such the Calculation Agent’s receipt thereof.
The foregoing indemnity shall constitute a separate and independent obligation of the Issuer and
shall continue in full force and effect notwithstanding any such judgment or order as aforesaid.
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The term “rate of exchange” shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant currency.
SECTION 14. Consent to Jurisdiction; Appointment of Agent for Service of Process. (a)
The Issuer irrevocably consents and agrees, for the benefit of the Calculation Agent that any legal
action, suit or proceeding against it with respect to its obligations, liabilities or any other
matter arising out of or in connection with this Agreement or any additional agreement may be
brought in any federal or state court in the Borough of Manhattan, The City of New York and, until
all amounts due and to become due in respect of all the Notes have been paid, or until any such
legal action, suit or proceeding commenced prior to such payment has been concluded, hereby
irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam,
generally and unconditionally with respect to any action, suit or proceeding arising out of or in
connection with this Agreement or any additional agreement for itself and in respect of its
properties, assets and revenues.
(b) The Issuer hereby irrevocably designates, appoints and empowers CT Corporation System,
whose address in New York City is 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf, and its properties,
assets and revenues, service of any and all legal process, summons, notices and documents that may
be served in any such action, suit or proceeding brought in any United States or State court, with
respect to its obligations, liabilities or any other matter arising out of or in connection with
this Agreement or any additional agreement and that may be made on such designee, appointee and
agent in accordance with legal procedures prescribed for such courts. If for any reason such
designee, appointee and agent hereunder shall cease to be available to act as such, the Issuer
agrees to designate a new designee, appointee and agent in The City of New York, on the terms and
for the purposes of this Section 14 satisfactory to the Calculation Agent. The Issuer further
hereby irrevocably consents and agrees to the service of any and all legal process, summons,
notices and documents in any such action, suit or proceeding by serving a copy thereof upon the
relevant agent for service of process referred to in this Section 14 (whether or not the
appointment of such agent shall for any reason prove to be ineffective or such agent shall accept
or acknowledge such service) or by mailing copies thereof by registered or certified mail, first
class, postage prepaid, to it at its address specified in or designated pursuant to this Agreement.
The Issuer agrees that the failure of any such designee, appointee and agent to give any notice of
such service to it shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon. Nothing herein shall in any way be
deemed to limit the ability of the Calculation Agent to serve any such legal process, summons,
notices and documents in any other manner permitted by applicable law or to obtain jurisdiction
over the Issuer or bring actions, suits or proceedings against the Issuer in any jurisdiction, and
in any manner, as may be permitted by applicable law. The Issuer hereby irrevocably and
unconditionally waives, to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising
out of or in connection with this Agreement brought in any federal or state court in the Borough of
Manhattan, The City of New York and hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action, suit or proceeding brought in
any such court has been brought in an inconvenient forum.
SECTION 15. Waiver of Immunities. To the fullest extent permitted by law, the
Corporation hereby waives irrevocably any immunity from jurisdiction (but not execution
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or attachment or process in the nature thereof) to which it might otherwise be entitled in any
action based on this Agreement in any State or Federal court in the Borough of Manhattan, The City
of New York or in any competent court in the State of New South Wales or in the Commonwealth of
Australia competent to hear appeals therefrom.
SECTION 16. Benefit of Agreement. Except as provided herein, this Agreement is solely
for the benefit of the parties hereto and their successors and assigns and no other person shall
acquire or have any rights under or by virtue hereof.
SECTION 17. Amendments. This Agreement may only be amended by a writing signed by the
parties hereto.
SECTION 18. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to those principles of conflicts
of laws that would require the application of the laws of a jurisdiction other than the State of
New York (other than Section 5-1401 of the New York General Obligations Law), except that all
matters pertaining to authorization and execution of this Agreement by the Issuer shall be governed
by the laws of the State of New South Wales, the Commonwealth of Australia.
SECTION 19. Counterparts. This Agreement may be executed in one or more counterparts
and, if executed in more than one counterpart, the executed counterparts hereof shall constitute a
single instrument.
SECTION 20. Force Majeure. In no event shall the Calculation Agent be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or
caused by, directly or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities communications or computer (software and hardware) services; it being understood that the
Calculation Agent shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.
SECTION 21. Separability Clause. In case any provision in this Agreement or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been entered into the day and year first above written.
| NEW SOUTH WALES TREASURY CORPORATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| CITIBANK, N.A., LONDON BRANCH, as Calculation Agent |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Calculation Agency Agreement
EXHIBIT A
[Attach Form of Floating Rate Note — See Exhibit (i) to Amendment
No. 1 on Form 18-K/A to the registrants’ Annual Report on Form 18-K for their fiscal year ended June 30, 2009]
