Exhibit 10.4
ISDA(R)
INTERNATIONAL SWAPS AND DERIVATIVES ASSOCIATION, INC.
SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF 17 MAY 2001
BETWEEN
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
(ABN 11 005 357 522)
("PARTY A")
AND
PERPETUAL TRUSTEE COMPANY LIMITED
(ABN 42 000 001 007) AS TRUSTEE FOR THE KINGFISHER TRUST 2001-1G
("PARTY B")
AND
ANZ CAPEL COURT LIMITED
(ABN 30 004 768 807)
("TRUST MANAGER")
PART 1. TERMINATION PROVISIONS1
In this Agreement:
(a) "SPECIFIED ENTITY" in relation to:
(i) Party A, is not applicable; and
(ii) Party B, is not applicable.
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of
this Agreement.
(c) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not
apply to Party A and will not apply to Party B.
(d) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of
this Agreement:
(i) A. in respect of the Basis Swap, Loss will apply;
B. in respect of the Fixed Swap, Market Quotation will apply;
The "Advance Refund Amount" (as defined in Section 6(e)(vi)) will
be deemed to be an "Unpaid Amount" due to "S" (as defined in
Section 6(e)(vi)) for purposes
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1 Parts 1-5 are subject to Part 6: Securitisation Provisions.
2
of Section 6(e) and if Loss is the applicable payment measure for
purposes of Section 6(e), then this Unpaid Amount will be taken into
account;
(ii) The Second Method will apply;
(iii) the definition of "Loss" in Section 14 of this Agreement is amended
by adding the following sentence at the end of that definition:
"However, in relation to a Terminated Transaction that is a Basis
Swap, each party's Loss is deemed to be zero."
(e) "TERMINATION CURRENCY" will be Australian dollars.
(f) ADDITIONAL TERMINATION EVENT. Not Applicable.
PART 2. TAX REPRESENTATIONS
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A will make the following representation and Party B
will make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from
any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of
this Agreement) to be made by it to the other party under this Agreement.
In making this representation, it may rely on:
(i) the accuracy of any representations made by the other party
pursuant to Section 3(e) or Section 3(f) (as the case may be) of
this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of
any document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party contained
in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice
to its legal or commercial position.
(b) PAYEE TAX REPRESENTATION. For the purpose of Section 3(f) of this
Agreement, Party A and Party B will make the representation:
It is an Australian resident and does not derive the payments under this
Agreement in part or whole carrying on business in a country outside
Australia at or through a permanent establishment of itself in that
country.
PART 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
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(a) TAX FORMS, DOCUMENTS OR CERTIFICATES TO BE DELIVERED ARE:
COVERED BY
PARTY REQUIRED TO FORM/DOCUMENT/ DATE BY WHICH SECTION 3(D)
DELIVER DOCUMENT CERTIFICATE TO BE DELIVERED REPRESENTATIONS
Party A and Party Any document or On the earlier of Yes
B certificate reasonably (a) learning that
required or reasonably such document or
requested by Party A or certificate is
Party B in connection required and (b) as
with its obligations to soon as reasonably
make a payment under practicable
this Agreement which following a request
would enable that Party by the other party.
to make the payment free
from any deduction or
withholding for or on
account of Tax or as
would reduce the rate at
which deduction or
withholding for or on
account of Tax is
applied to that payment.
(b) OTHER DOCUMENTS TO BE DELIVERED ARE:
PARTY REQUIRED TO FORM/DOCUMENT/ DATE BY WHICH SECTION 3(D)
DELIVER DOCUMENT CERTIFICATE TO BE DELIVERED REPRESENTATIONS
Party A and Party A list of authorised On execution of Yes
B signatories for the this Agreement
party and evidence or any relevant
satisfactory in form and Confirmation and
substance to the other when the list is
party of the authority updated
of the authorised
signatories of the party
to execute this
Agreement and any
Confirmation on behalf
of the party.
Party A and Party A legal opinion as to the At any time prior Yes
B validity and to the first Issue
enforceability of that Date.
party's obligations under
this Agreement in form
and substance (and issued by
legal counsel) reasonably
acceptable to each other party.
The Trust Manager A copy (certified by an Not less than 5 Yes
Authorised Officer of the Business Days
Trust Manager to be a true (or such lesser
and complete copy) to period as Party
Party A of the Credit A agrees to)
Support Document specified before the Trade
in respect of Party B and Date of the first
(without limiting any occurring Transaction
and in the case of
any amending
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obligation Party B may documents entered
have under the terms of into subsequent to
that Credit Support that date, promptly
Document to notify Party after each amending
A of amendments) a copy document (if any) has
(certified by an been entered into.
Authorised Officer of
the Trust Manager to be
a true and complete
copy) of any document
that amends in any way
the terms of that
Credit Support Document.
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
ADDRESS FOR NOTICES OR COMMUNICATIONS TO PARTY A:
ADDRESS: Xxxxx 0, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 0000
ATTENTION: Primary Markets Group
TELEX NO: Not applicable ANSWERBACK: Not applicable
FACSIMILE NO: (00) 0000 0000 TELEPHONE NO: (00) 0000 0000
ELECTRONIC MESSAGING SYSTEM DETAILS: Not applicable
ADDRESS FOR NOTICES OR COMMUNICATIONS TO PARTY B:
ADDRESS: Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX 0000
ATTENTION: Manager, Securitisation Services
TELEX NO: Not applicable ANSWERBACK: Not applicable
FACSIMILE NO: (00) 0000 0000 TELEPHONE NO: (00) 0000 0000
ELECTRONIC MESSAGING SYSTEM DETAILS: Not applicable
All notices or communications to Party B to be copied to the Trust
Manager at the address below
ADDRESS FOR NOTICES OR COMMUNICATIONS TO THE TRUST MANAGER:
ADDRESS: Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 0000
ATTENTION: Manager, Primary Markets Group
TELEX NO: Not applicable ANSWERBACK: Not Applicable
FACSIMILE NO: (00) 0000 0000 TELEPHONE NO: (00) 0000 0000
ELECTRONIC MESSAGING SYSTEM DETAILS: Not Applicable
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(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
(i) Party A appoints as its Process Agent: Not applicable.
(ii) Party B appoints as its Process Agent: Not applicable.
(c) OFFICES. The provisions of Section 10(a) will not apply to this
Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Neither Party A nor Party B is a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is the Trust Manager, unless
otherwise specified in a Confirmation in relation to the relevant
Transaction.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
(i) in relation to Party A: Not applicable.
(ii) in relation to Party B: the Global Master Security Trust Deed
and the Deed of Charge.
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means in relation to
Party A and Party B: Not applicable.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws in force in New South Wales and each party
submits to the non-exclusive jurisdiction of the courts of New South
Wales.
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this
Agreement will not apply to any Transactions.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
PART 5. OTHER PROVISIONS
(1) PAYMENTS: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party."
(b) In Section 2(a)(ii), the first sentence is deleted and replaced
with the following sentence:
"Unless specified otherwise in this Agreement, payments under this
Agreement will be made by 5.00pm (Melbourne time) on the due date
for value on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds, free of any set-off, counterclaim,
deduction or withholding (except as expressly provided in this
Agreement) and in the manner customary for payment in the required
currency."
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(c) Insert new paragraph (iv) in Section 2(a) immediately after Section
2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not
apply to a payment due to be made by a party if it has
satisfied all its payment obligations under Section 2(a)(i)
of this Agreement and has no future payment obligations,
whether absolute or contingent, under Section 2(a)(i)."
(d) Add the following new sentence to Section 2(b):
"Each new account so designated shall be in the same tax
jurisdiction as the original account."
(e) Insert the following new Section 2(f):
"(f) If on a Payment Date an amount would otherwise be payable by
Party A pursuant to Section 2(c) in respect of the Basis
Swap, then such amount will be satisfied in part or in whole,
as the case may be, to the extent of the then Prepayment
Adjusted Amount (if any)."
(2) 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 a bank authorised to
carry on banking business in the Commonwealth of Australia, section
16 of the Banking Xxx 0000 (Cth) and section 86 of the Reserve Bank
Xxx 0000 (Cth)),"
(b) Insert new paragraphs (g) and (h) in Section 3 immediately after
Section 3(f):
"(g) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to
represent to each other party on the date on which it enters
into a Transaction that (absent a written agreement between
the parties that expressly imposes affirmative obligations to
the contrary for that Transaction):
(i) NON-RELIANCE. It is acting for its own account or,
in the case of Party B, as trustee of the Trust,
and it has made its own independent decisions to
enter into that Transaction or, in the case of
Party B, has been directed to do so by the Trust
Manager and as to whether that Transaction is
appropriate or proper for it based upon its own
judgement and upon advice from such advisers as it
has deemed necessary or, in the case of Party B, at
the direction of the Trust Manager. It is not
relying on any communication (written or oral) of
the other party
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as investment advice or as a recommendation to enter
into that Transaction; it being understood that
information and explanations related to the terms and
conditions of a Transaction will not be considered
investment advice or a recommendation to enter into
that Transaction. No communication (written or oral)
received from the other party will be deemed to be an
assurance or guarantee as to the expected results of
that Transaction.
(ii) EVALUATION AND UNDERSTANDING. It is capable of
evaluating and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and
risks of that Transaction. It is also capable of
assuming, and assumes, the risks of that Transaction.
(iii) STATUS OF PARTIES. No other party is acting as a
fiduciary or an adviser to it in respect of that
Transaction.
(h) TRUST. By Party B, in respect of Party B only:
(i) TRUST VALIDLY CREATED. The Trust has been validly
created and is in existence at the date of this
Agreement.
(ii) SOLE TRUSTEE. It has been validly appointed as
trustee of the Trust and is presently the sole
trustee of the Trust.
(iii) NO PROCEEDINGS TO REMOVE. No notice has been given
to it and to its knowledge no resolution has been
passed, or direction or notice has been given,
removing it as trustee of the Trust.
(iv) POWER. It has power under the Master Trust Deed to
enter into this Agreement and the Credit Support
Documents in its capacity as trustee of the Trust.
(v) GOOD TITLE. It is the legal owner of, or has
equitable title to, (as applicable), the Assets of
the Trust and has power under the Master Trust Deed
to mortgage or charge them in the manner provided
in the Credit Support Documents in relation to
Party B and, subject only to the Credit Support
Documents in relation to Party B and any Security
Interest permitted under the Credit Support
Documents in relation to Party B, those Assets are
free of all other Security Interests (except for
Party B's right of indemnity out of the Assets of
the Trust)."
(3A) COLLATERALISATION OF PARTY A'S OBLIGATIONS UNDER THE FIXED SWAP (S&P): If
at any time Party A in respect of the Fixed Swap does not have a
short-term credit rating from S&P equal to or higher than S&P's
Prescribed Rating, it must, at its cost alone:
(a) immediately seek to enter into, and enter into by no later than 30
days after Party A ceases to have S&P's Prescribed Rating, an
agreement to novate all of its rights and obligations under this
Agreement as Party A to a replacement swap counterparty which does
have a short term credit rating from S&P equal to or higher than
S&P's Prescribed Rating; and
(b) until the novation to the replacement swap counterparty referred
to in (a) above is effective:
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(i) continue to fulfil its obligations as Party A under this
Agreement in accordance with the terms of this Agreement;
(ii) upon the expiration of 30 days after becoming aware that it
does not have a short-term credit rating from S&P equal to or
higher than S&P's Prescribed Rating deposit in the Collateral
Account an amount equal to the CCA; and
(iii) on each day which is 30 days after a previous payment of the
CCA, ensure that an amount has been deposited into the
Collateral Account by Party A equal to the CCA (without
duplication of any amount previously paid).
If Party A is unable to effect a transfer in accordance with paragraph
(a) above within 30 days, or if Party A so elects, it must enter into such
other arrangements in respect of the Fixed Swap which are satisfactory to
the Trust Manager and which each Designated Rating Agency confirms will
not result in an Adverse Rating Effect.
Party A may satisfy its obligations following a withdrawal or downgrade
of a credit rating in any of the above manners as it elects from time to
time.
Where Party A transfers its rights and obligations to a replacement swap
counterparty in accordance with paragraph (a) above, Party B, at the
direction of the Trust Manager, and each other party to this Agreement
shall do all things necessary at the cost of Party A to novate the
relevant rights and obligations to the replacement swap counterparty.
(3B) COLLATERALISATION OF PARTY A'S OBLIGATIONS UNDER THE FIXED SWAP (OTHER
RATING AGENCIES)
(a) If at any time Party A in respect of the Fixed Swap does not have a
credit rating equal to or higher than the Prescribed Ratings from
Xxxxx'x or Fitch then on the earlier of:
(i) 30 days after such downgrade, if and while Party A has a long
term credit rating of at least A-2 by Xxxxx'x or a short term
credit rating of at least F1+ by Fitch; and
(ii) otherwise, 5 days after such downgrade,
Party A must at its cost alone either:
(A) put in place an appropriate xxxx-to-market collateral
agreement (consisting of either cash or securities) or
which may be based on any agreement reached between the
parties, in support of its obligations under the
Agreement, PROVIDED that Party A and Party B receive prior
written confirmation from each Designated Rating Agency
mentioned above that the rating assigned to the Notes then
outstanding by each Designated Rating Agency mentioned
above is not adversely affected by the downgrade following
such collateral arrangements being put in place;
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(B) novate all its rights and obligations with respect to this
Agreement to a replacement counterparty acceptable to the
Trust Manager, Party B, Fitch and Xxxxx'x on substantially
the same terms as this Agreement; or
(C) enter into other arrangements satisfactory to Party B and the
Trust Manager which Fitch and Xxxxx'x confirms will not
result in an Adverse Rating Effect.
(b) Party A may satisfy its obligations following a withdrawal or
downgrade of a credit rating in any of the above manners as it
elects from time to time.
(c) Where Party A transfers its rights and obligations to a replacement
swap counterparty in accordance with paragraph (a)(B) above, Party
B, at the direction of the Trust Manager, and each other party to
this Agreement shall do all things necessary at the cost of Party A
to novate the relevant rights and obligations to the replacement
swap counterparty.
(3C) GENERAL COLLATERALISATION PROVISIONS
(a) If, at any time, Party A's obligations under this Agreement are
transferred in accordance with any of Parts 5(3A), (3B), (4), (5)
or (6), Party A shall be, provided that all costs of the transfer
have been satisfied by Party A, immediately entitled to any
collateral which it has provided under any of Parts 5(3A), (3B),
(4), (5) or (6) (less any amount withdrawn in accordance with
sub-paragraph (b) below).
(b) Party B may only make withdrawals from the Collateral Account if
directed to do so by the Trust Manager and then only for the
purpose of:
(i) transferring obligations under this Agreement in accordance
with any of Parts 5(3A), (3B), (4), (5) or (6) (including the
costs of obtaining a replacement counterparty);
(ii) refunding to Party A any excess in the amount of any
collateral deposited to the Collateral Account over the
amount Party A is required to maintain under any of Parts
5(3A), (3B), (4), (5) or (6);
(iii) withdrawing any amount which has been incorrectly
deposited into the Collateral Account;
(iv) paying any relevant bank charges, financial institutions
duty, bank accounts debit tax or other equivalent Taxes
payable in respect of the Collateral Account; or
(v) funding the amount of any payment due to be made by Party A
under this Agreement following the failure by Party A to make
that payment.
The Trust Manager must direct Party B to, and Party B must, refund
or pay to Party A the amount of any payment which may be made to
Party A under (ii) or (iii) above as soon as such refund or payment
is possible.
(c) All interest on the Collateral Account will accrue and be payable
monthly to Party A providing the amount deposited to the Collateral
Account is not less than the
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amount Party A is required to maintain under the collateral
agreement contemplated by any of Parts 5(3A), (3B), (4), (5) or
(6).
(4) PREPAYMENT OF OBLIGATIONS UNDER BASIS SWAP: If on any Determination Date,
Party A (in respect of the Basis Swap) does not have a short-term credit
rating equal to or higher than the Prescribed Rating from any Designated
Rating Agency and the Variable Rate is less than the Threshold Rate,
Party A (in respect of the Basis Swap) must do one of the following:
(a) (PREPAYMENT): subject to Part 5(5) and Part 5(6) of this Schedule,
on the relevant Payment Date next following that Determination Date
(each a "PREPAYMENT DATE"), pay to Party B the Net Prepayment
Amount (if any) for the Collection Period commencing on that
Prepayment Date by depositing such Net Prepayment Amount into the
Collateral Account in cleared funds; or
(b) (OTHER ARRANGEMENTS): enter into some other arrangement in respect
of the Basis Swap which is satisfactory to the Trust Manager and
Party B and which each Designated Rating Agency confirms will not
result in an Adverse Rating Effect.
(5) CONDITIONS FOR MAINTAINING CASH COLLATERAL AND NET PREPAYMENT AMOUNT
IN COLLATERAL ACCOUNT:
(a) (CONDITIONS FOR DEPOSITING): The Net Prepayment Amount must not
be deposited into the Collateral Account unless:
(i) the Collateral Account is held with an Eligible Bank; or
(ii) the Collateral Account is not held with an Eligible Bank and,
in each case, a standby guarantee from an Eligible Bank has
been entered into to support the obligations of the entity
with whom the Collateral Account is held, to repay from, in
accordance with normal banking practice, moneys deposited and
to be deposited into the Collateral Account.
(b) (TRANSFER OF NET PREPAYMENT AMOUNT):
(i) (CANNOT BE DEPOSITED): If on any Prepayment Date an
amount cannot be deposited into the Collateral Account
pursuant to Part 5(5)(a) of this Schedule, Party B must,
at the direction of the Trust Manager, immediately
establish a new interest bearing account with an Eligible
Bank and deposit the amount of each Net Prepayment Amount
into the new account (and, pending the opening of such new
account, deposit such amount into the Collections Account).
(ii) (CANNOT CONTINUE TO BE DEPOSITED): If any amount has been
deposited into the Collateral Account, but Party B becomes
aware that such amount cannot continue to be deposited in the
Collateral Account pursuant to Part 5(5)(a) of this Schedule,
Party B must, at the direction of the Trust Manager:
(A) immediately establish a new interest bearing account
with an Eligible Bank and transfer each such amount
standing to the credit of the Collateral Account to the
new account; and
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(B) deposit each such amount it receives pursuant to Part
5(4)(a) of this Schedule into such new account.
(6) ADJUSTMENTS TO PREPAYMENTS UNDER THE BASIS SWAP:
(a) (ADJUSTMENTS WHEN THE VARIABLE RATE IS LESS THAN THE THRESHOLD
RATE): If Party A elects to pay to Party B the Net Prepayment
Amount on a Prepayment Date pursuant to Part 5(4)(a) and that Net
Prepayment Amount:
(i) exceeds the amount remaining after deducting from the
Prepayment Adjusted Amount (if any) for that Prepayment
Date, the amount to be satisfied from it on that
Prepayment Date pursuant to Section 2(f), then the
aggregate amount which Party A is liable to pay to Party B
under Part 5(4)(a) is the amount of the excess and such
amount will be paid as a prepayment of Party A's
obligations under the Basis Swap; or
(ii) is less than the amount remaining after deducting from the
Prepayment Adjusted Amount for that Prepayment Date, the
amount to be satisfied from it on that Prepayment Date
pursuant to Section 2(f), then Party B must pay to Party A
the amount of the difference from the Collateral Account.
(b) (ADJUSTMENTS WHERE THE VARIABLE RATE EQUALS OR EXCEEDS THE
THRESHOLD RATE): If, on any Determination Date, Party A has the
Prescribed Rating from each Designated Rating Agency or the
Variable Rate equals or exceeds the Threshold Rate, Party B must
pay to Party A on the next Payment Date the amount remaining
after deducting from the Prepayment Adjusted Amount (if any) the
amount to be satisfied from it on that Payment Date pursuant to
Section 2(f).
(c) (PREPAYMENT): A prepayment by Party A under Part 5(4)(a) or Part
5(6)(a) will constitute a prepayment of Party A's payment
obligations (to the extent thereof) in respect of the Basis Swap.
(d) (PARTY A): All references to Party A in this Part 5(6) are to Party
A in respect of the Basis Swap.
(7) SEGREGATION: Where Party A in respect of the Basis Swap is a different
entity to Party A in respect of the Fixed Swap, the provisions of this
Agreement shall have effect separately and severally in respect of the
Basis Swap and the Fixed Swap and shall be enforceable by Party B as
though a separate agreement applied between Party A and Party B in
respect of the Basis Swap and the Fixed Swap, so that (among other
things):
(a) representations made and agreements entered into by the parties
under this Agreement are made and entered into separately and
severally by Party B in respect of each of the Fixed Swap and the
Basis Swap and may be enforced by Party B against Party A
separately and severally in respect of each of the Fixed Swap and
the Basis Swap;
(b) rights of termination, and obligations and entitlements consequent
upon termination, only accrue to Party A against Party B separately
and severally in respect of each of the Fixed Swap and the Basis
Swap, and only accrue to Party B
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against Party A separately and severally in respect of each of the
Fixed Swap and the Basis Swap;
(c) the occurrence of an Event of Default or Termination Event in
respect of the Fixed Swap does not in itself constitute an Event of
Default or Termination Event in respect of the Basis Swap; and
(d) the occurrence of an Event of Default or Termination Event in
respect of the Basis Swap does not in itself constitute an Event of
Default or Termination Event in respect of the Fixed Swap.
(8) PAYMENT DEFAULT: In Section 5, delete Section 5(a)(i) and replace it
with the following:
"(i) FAILURE TO PAY. Failure by that party to make, when due, any
payment under this Agreement or delivery under Section
2(a)(i) or 2(e) required to be made by it if such failure is
not remedied on or before the tenth Business Day after notice
of such failure is given to the party."
(9) TERMINATION: In Section 6(b) add the following sentence at the end of
the second paragraph of Section 6(b)(ii):
"However, if Party A is that other party it must, if so requested
by the Trust Manager, use reasonable efforts to make such a
transfer to an Affiliate (as that expression is defined in Section
14) provided each Designated Rating Agency has given prior
confirmation to Party A that such a transfer will not result in an
Adverse Rating Effect."
(10) UNPAID AMOUNTS: After Section 6(e)(ii), a new Section 6(e)(iii) is
inserted as follows, Section 6(e)(iii) and 6(e)(iv) are renumbered
accordingly, and all cross references in the Agreement to Sections
6(e)(iii) and (iv) are renumbered to the extent necessary:
"(iii)UNPAID AMOUNTS. If the Second Method and Loss apply in
respect of a Terminated Transaction, in addition to the
amounts (if any) payable under Section 6(e)(i)(4) or Section
6(e)(ii), an amount will be payable equal to the sum of the
Termination Currency Equivalent of the Unpaid Amounts owing
to Party B. If the amount payable is a positive number, Party
B will pay that amount to Party A; if it is a negative
number, Party A will pay that amount to Party B. For the
purposes of this Section 6(e)(iii), the definition of "Unpaid
Amounts" in Section 14 will be construed so that references
in that definition to "all Terminated Transactions" and "each
Termination Transaction" are references only to Terminated
Transactions in respect of which the Second Method and Loss
apply."
(11) FACSIMILE TRANSMISSION: In Section 12:
(a) Delete the following words where they appear in lines 2 and 3 of
Section 12(a):
"(except that a notice or other communication under Section 5
or Section 6 may not be given by facsimile transmission or
electronic messaging system)";
(b) Replace Section 12(a)(iii) with:
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"(iii) if sent by facsimile transmission, on the date a
transmission report is produced by the machine from
which the facsimile was sent which indicates that the
facsimile was sent in its entirety to the facsimile
number of the recipient notified for the purpose of
this Section unless the recipient notifies the sender
within one Business Day of the facsimile being sent
that the facsimile was not received in its entirety in
legible form;"
(c) Insert a new paragraph (vi) in Section 12(a) immediately after
Section 12(a)(v) as follows:
"(vi) if sent by ordinary mail, on the third (seventh, if
posted to or from a place outside Australia) day after
posting."
(12) DEFINITIONS
In this Agreement, unless the contrary intention appears:
(a) MASTER DEFINITIONS SCHEDULE AND SUPPLEMENTAL DEED: unless
defined in this Agreement words and phrases defined in the
Master Definitions Schedule and the Supplemental Deed have the
same meaning in this Agreement. Where there is any
inconsistency in a definition between this Agreement (on the one
hand) and the Master Definitions Schedule or the Supplemental
Deed (on the other hand), this Agreement prevails. Where there
is any inconsistency in a definition between the Master
Definitions Schedule and the Supplemental Deed, the Supplemental
Deed prevails over the Master Definitions Schedule in respect of
the Trust. Where words or phrases used but not defined in this
Agreement are defined in the Master Definitions Schedule in
relation to a Trust (as defined in the Master Definitions
Schedule) such words or phrases are to be construed in this
Agreement, where necessary, as being used only in relation to
the Trust (as defined in the Supplemental Deed);
(b) INTERPRETATION: references to time are references to Melbourne
time, unless stated otherwise;
(c) TRUSTEE CAPACITY:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the Trust only, and in no other
capacity; and
(ii) a reference to the undertaking, assets, business, money or
other thing of or in relation to Party B is a reference to
the undertaking, assets, business, money or other thing of or
in relation to Party B in the capacity referred to in
paragraph (i) only;
(d) DEFINITIONS: in Section 14:
(i) replace the definitions of "AFFECTED TRANSACTIONS" and
"LOCAL BUSINESS DAY" with the following:
""AFFECTED TRANSACTIONS" means, with respect to a Termination
Event, all Transactions."
14
"LOCAL BUSINESS DAY" has the same meaning as "BUSINESS Day"."
(ii) insert the following new definitions:
"AMOUNTS OUTSTANDING" in relation to a Housing Loan means, at
any given time, the amount recorded at that time as the
balance of the Housing Loan in the Housing Loan System which
balance includes amounts which have been charged to the
Housing Loan but excludes amounts which are accrued against
the Housing Loan.
"BASIS SWAP" means the Transaction entered into between Party
A, Party B and the Trust Manager on the terms specified in
the form of the Confirmation set out in Annexure 1 (or as
otherwise agreed between Party A, Party B and the Trust
Manager).
"BASIS SWAP AMOUNT" in relation to an Interest Period means
an amount calculated in accordance with the following:
AOFi
BSA=AIAx (1- -----)
AOHL
Where:
BSA = the Basis Swap Amount.
AIA = the aggregate Invested Amount of all Notes
outstanding on the first day of such Interest Period.
AOHL = the Amounts Outstanding under all Housing Loans as
at the first day of the Collection Period ending
immediately preceding the last day of that Interest
Period.
AOFi has the meaning given in the definition of "Fixed Swap
Amount".
"CCA" means, in respect of an entity where the entity does
not have a short term credit rating from S&P equal to or
higher than S&P's Prescribed Rating in respect of the Fixed
Swap, an amount at least equal to the greater of:
(i) zero;
(ii) CR;
(iii) 1% of the Fixed Swap Amount; or
(iv) the net amount (if any) as determined by the Trust
Manager that is expected to be due by Party A to
Party B in respect of the Fixed Swap on the
immediately following Payment Date (calculated on
the basis that there will be no prepayments made
by the Mortgagors under the Housing Loans
(excluding the Housing Loans being charged a
Variable Rate) and no conversion of the interest
rate payable under any Housing Loan
15
from a fixed rate to a variable rate or from a
variable rate to a fixed rate during the relevant
Collection Period).
Where:
CR = MTM + VB
MTM = the aggregate xxxx-to-market value (whether positive
or negative) of each Transaction in respect of the
Fixed Swap determined in accordance with the following
paragraph no earlier than 3 Business Days prior to the
date that the CCA is deposited in the Collateral
Account.
Party A must calculate the xxxx-to-market value of each
Transaction in respect of the Fixed Swap by obtaining 2 bids
from counterparties willing to provide each Transaction in
the absence of Party A with ratings acceptable to S&P. 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).
VB = the volatility buffer, being the value calculated by
multiplying the Fixed Swap Amount as at the most
recent Determination Date by the relevant percentage
obtained from the following table:
16
------------------------------------------------------------
Where the period Where the period Where the period
between the date of between the date of between the date
calculation and calculation and of calculation
the weighted average the weighted and the weighted
of the maturity dates average of the average of the
of the then fixed maturity dates of maturity dates of
rate periods in the then fixed the then fixed
respect of the rate periods in rate periods in
Housing Loans respect of the respect of the
which are charged Housing Loans which Housing Loans
a fixed rate of which are charged which are charged
interest at the a fixed rate of a fixed rate of
beginning or end or interest is greater interest is
at that time is than 5 years and greater than 10
less than or less than or years
equal to 5 years equal to 10 years
------------------------------------------------------------
1.5 3.15 6
------------------------------------------------------------
"COLLATERAL ACCOUNT" means any account into which collateral
is provided by Party A in accordance with this Agreement.
"FIXED RATE FINANCE CHARGES" means, in relation to an
Interest Period, the aggregate Finance Charge Collections for
the Collection Period ending immediately prior to the last
date of the Interest Period for each Receivable charged a
fixed rate of interest for the duration of that Collection
Period (or for any Receivable charged a fixed rate of
interest for part of that Collection Period, the Finance
Charge Collections for the Receivable relating to that
shorter period).
"FIXED SWAP" means the Transaction entered into pursuant to
the terms of this Agreement between Party A, Party B and the
Trust Manager on the terms specified in the form of the
Confirmation set out in Annexure 2 (or as otherwise agreed
between Party A, Party B and the Trust Manager).
"FIXED SWAP AMOUNT" means, in relation to an Interest Period,
an amount calculated in accordance with the following:
FSA = AIA xAOFi
-------
AOHL
Where:
FSA = the Fixed Swap Amount.
AIA = the aggregate Invested Amount of all Notes
outstanding on the first day of such Interest Period.
AOHL = has the meaning given in the definition of "Basis
Swap Xxxxxx".
00
XXXX0 = the Amounts Outstanding under all Housing Loans as at
the first day of the Collection Period ending
immediately preceding the last day of that Interest
Period.
AOHL2 = the Amounts Outstanding under all Housing Loans as
at the last day of the Collection Period ending
immediately preceding the last day of that Interest
Period.
AOFi1
AOFi = AOFi2 + (AOHL1 - AOHL2) x ______
AOHL1
AOFi1 = the Amount Outstanding under all Housing Loans
(excluding Housing Loans being charged a floating
rate of interest on such day) as at the first day
of the Collection Period ending immediately preceding
the last day of that Interest Period.
AOFi2 = the Amount Outstanding under all Housing Loans
(excluding Housing Loans being charged a floating
rate of interest on such day) as at the last day of
the Collection Period ending immediately preceding
the last day of that Interest Period.
"HOUSING LOAN SYSTEM" means the electronic and manual
reporting database and record keeping system used by the
Servicer to monitor housing loans, as updated and amended
from time to time.
"MASTER DEFINITIONS SCHEDULE" means the deed entitled
"Kingfisher Master Trusts Master Definitions Schedule" dated
1 August 2000 between the Trust Manager, Party B and P.T.
Limited as amended by the deed entitled "Kingfisher Master
Trusts Amending Deed" dated on or about the date of this
Agreement.
"NET PREPAYMENT AMOUNT" in relation to the Basis Swap and a
Determination Date and the Interest Period commencing on the
next Prepayment Date, means the amount determined in
accordance with the following formula:
n
NPA=Y x BSA x_____
365
where:
NPA = the Net Prepayment Amount for that Interest
Period;
Y = TR-VR (expressed as a percentage);
TR = the Threshold Rate on that date;
VR = the Variable Rate on that date;
BSA = the Basis Swap Amount for that Interest Period;
and
n = the actual number of days in that Interest
Period.
18
"PREPAYMENT ADJUSTED AMOUNT" means:
(a) for the first Prepayment Date, the Net Prepayment
Amount paid by Party A in respect of the Basis Swap
pursuant to Part 5(4)(a) of this Schedule in relation
to the Interest Period commencing on that Prepayment
Date; and
(b) for each subsequent Prepayment Date, the aggregate
balance of the Net Prepayment Amount paid by
Party A in respect of the Basis Swap pursuant to
Part 5(4)(a) of this Schedule after taking into
account any applications and any additional
prepayments by, or repayments to, Party A in
respect of the Basis Swap pursuant to Part 5(4) of
this Schedule.
"PREPAYMENT DATE" means the first day of each Interest Period
in respect of the Basis Swap unless Party A in respect of the
Basis Swap has a short term credit rating on the
Determination Date preceding that day equal to the Prescribed
Rating from each Designated Rating Agency.
"PRESCRIBED RATING" means:
(a) a short term credit rating of A-1 in the case of
S&P;
(b) a short term credit rating of F1 in the case of
Fitch; or
(c) in the case of the Fixed Swap, a short term credit
rating of P-1 or a long term rating of A2 in the case
of Xxxxx'x and, in relation to the Basis Swap, a short
term rating of P-1 in the case of Xxxxx'x.
"SUPPLEMENTAL DEED" means the deed entitled "Kingfisher Trust
2001-1G Supplemental Deed" dated on or about the date of this
Agreement between Party A, the Trust Manager, Party B and
certain other parties.
"TRUST" means the Kingfisher Trust 2001-1G constituted by the
Master Trust Deed and a notice of creation of trust.
"VARIABLE FINANCE CHARGES" in relation to an Interest Period
means the aggregate Finance Charge Collections in respect of
the Collection Period ending immediately prior to the last
day of the Interest Period for each Receivable charged a
variable rate of interest for the duration of that Collection
Period (or for any Receivable charged a variable rate of
interest for part of that Collection Period, the Finance
Charge Collections for the Receivable relating to that
shorter period).
"VARIABLE RATE" in relation to a Determination Date means the
rate then equal to the weighted average of the Variable Rates
charged in respect of each account established in the Housing
Loan System for the Housing Loans on that Determination Date,
rounded up to 4 decimal places.
(f) ISDA DEFINITIONS: The 2000 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc) (the "2000
ISDA DEFINITIONS") as at the
19
date of this Agreement are incorporated into this Agreement and
each Confirmation.
(g) INCONSISTENCY: Unless specified otherwise, in the event of any
inconsistency between any two or more of the following documents in
respect of a Transaction they will take precedence over each other
in the following order in respect of that Transaction:
(i) any Confirmation;
(ii) this Agreement;
(iii) the Supplemental Deed;
(iv) the Master Trust Deed; and
(v) the 2000 ISDA Definitions.
(h) SWAP TRANSACTION: Any reference to a:
(i) "SWAP TRANSACTION" in the 2000 ISDA Definitions is deemed
to be a reference to a "TRANSACTION" for the purpose of
interpreting this Agreement or any Confirmation; and
(ii) "TRANSACTION" in this Agreement or any confirmation is deemed
to be a reference to a "SWAP TRANSACTION" for the purpose of
interpreting the 2000 ISDA Definitions.
(13) LIMITATION OF LIABILITY: Insert the following Section 16, after
Section 15:
"16. PARTY B'S LIMITATION OF LIABILITY
(a) Party B enters into this Agreement and each Transaction
only in its capacity as trustee of the Trust and in no
other capacity. A liability of Party B arising under or
in connection with this Agreement, a Transaction or the
Trust 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 the Trust out of which Party B is actually
indemnified for the liability. This limitation of Party
B's liability applies despite any other provision of this
Agreement (other than clause 16(c) below) 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, any Transaction or the Trust.
(b) The parties other than Party B may not xxx Party B in any
capacity other than as trustee of the Trust including seeking
the appointment of a receiver (except in relation to the
Assets of the Trust) or liquidator, administrator or any
similar person to Party B or prove in any liquidation,
administration or arrangement of or affecting Party B (except
in relation to the Assets of the Trust).
(c) The provisions of this clause 16 limiting Party B's
liability will not apply to any obligation or liability of
Party B to the extent that it is not satisfied
20
because, under this Agreement or any other Transaction
Document in relation to the Trust, or by operation of law,
there is a reduction in the extent of Party B's
indemnification out of the Assets of the Trust, as a result
of Party B's fraud, gross negligence or wilful default.
(d) It is acknowledged that the Relevant Parties are
responsible under this Agreement and the other Transaction
Documents in relation to the Trust for performing a
variety of obligations relating to the Trust. No act or
omission of Party B (including any related failure to
satisfy its obligations or breach of representation or
warranty under this Agreement) will be considered fraud,
gross negligence or wilful default for the purposes of
clause 16(c) above to the extent the act or omission was
caused or contributed to by any failure by any Relevant
Party or any other person appointed by Party B under any
Transaction Document (other than a person whose acts or
omissions Party B is liable for in accordance with any
Transaction Document) to fulfil its obligations relating
to the Trust or by any other act or omission of any
Relevant Party or any other such person regardless of
whether or not the act or omission is purported to be done
on behalf of Party B.
(e) No attorney, agent, receiver or receiver and manager
appointed in accordance with this Agreement or any other
Transaction Document has authority to act on behalf of Party
B in a way that exposes Party B to any personal liability,
and no act or omission of any such person will be considered
fraud, gross negligence or wilful default of Party B for the
purpose of clause 16(c) above.
(f) Party B is not obliged to do anything or refrain from doing
anything under or in connection with this Agreement
(including incur a liability) unless Party B's liability is
limited in the same manner as set out in this clause.
(14) MONTHLY SWAP STATEMENT: Insert the following new Section 17 after
Section 16:
"17 MONTHLY SWAP STATEMENT
On each Determination Date the Trust Manager will:
(a) (PREPARE MONTHLY STATEMENT): prepare and transmit to each
of Party A and Party B a monthly swap statement containing
the information specified in Annexure 3 of this Agreement;
and
(b) (SEND INFORMATION): send to each Designated Rating Agency
such information in the possession of the Trust Manager as
each Designated Rating Agency reasonably requires in relation
to the Basis Swap, the Fixed Swap and any other matters in
connection with this Agreement."
(15) NOTES REPAID: Insert the following new Section 18 after Section 17:
"18 NOTES REPAID
If the Invested Amount in respect of the Notes has been repaid, or
the Notes are deemed under the Supplemental Deed to have been
redeemed in full, then the
21
obligations (if any) of Party A in respect of the Basis Swap under
Part 5(4)(a) and Part 5(7) of the Schedule cease and Party B must
repay to Party A in respect of the Basis Swap any remaining
prepayments made pursuant to those provisions."
(16) 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.
(17) HEDGING ARRANGEMENT: The parties acknowledge and agree that for the
purposes of the Transaction Documents this Agreement is a Hedging
Arrangement.
(18) 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:
(i) Party B and the Trust 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 and the Trust Manager),
and Party B and the Trust Manager must promptly then confirm
the accuracy of and sign and return, or request the
correction of, such Confirmation; and
(ii) Party B and the Trust Manager a Confirmation substantially in
the form set out in Annexure 2 (or in such other form as may
be agreed between Party A, Party B and the Trust Manager),
and Party B and the Trust 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 Trust.
(19) AUTHORISED OFFICER: Each party will be entitled to assume, in the absence
of any knowledge to the contrary, that any person signing any
Confirmation, notice or other written communication issued in respect of
this Agreement on behalf of a party is an Authorised Officer of that
party.
(20) 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;
(b) will provide transcripts of such recordings (if any) upon
reasonable request by the other party (at the reasonable cost of
the party requesting);
(c) acknowledges that such recordings and transcripts can be used as
evidence by either party in any dispute between them; and
22
(d) acknowledges that neither is obligated to maintain copies of such
recordings and transcripts for the benefit of the other party.
(21) KNOWLEDGE OR AWARENESS: Subject to Section 12(a), each party will only be
considered to have knowledge or awareness of, or notice of, a thing or
grounds to believe anything by virtue of the officers of that party or
any Related Entity of that party which have the day to day responsibility
for the administration or management of that party's (or a Related Entity
of that party's) obligations in relation to the Trust or the Transactions
entered into under this Agreement having actual knowledge, actual
awareness or actual notice of that thing, or grounds or reason to believe
that thing (and similar references will be interpreted in this way).
(22) AMENDMENTS TO THIS AGREEMENT: The Trust Manager must give 10 Business
Days' notice in writing to each Designated Rating Agency of any
amendments to this Agreement.
(23) TRUST MANAGER'S UNDERTAKING: The Trust Manager, Party A and Party B
undertake to comply with their respective obligations under the
Supplemental Deed and the Transaction Documents for the Trust. For the
avoidance of doubt, the parties acknowledge and agree that the failure by
Party B, the Trust Manager or Party A to comply with this undertaking
will not give rise to an Event of Default under this Agreement.
(24) APPOINTMENT OF TRUST MANAGER: Party A acknowledges that, under the Master
Trust Deed, Party B has appointed the Trust Manager as Trust Manager of
the Trust, with the powers set out in, and upon and subject to the terms
of the Master Trust Deed. Accordingly, subject to the terms of the Master
Trust Deed, the Trust Manager may arrange and monitor Transactions and
exercise all other rights and powers of Party B under this Agreement
provided it keeps Party B informed of actions so taken.
(25) BREAK COSTS: For the avoidance of doubt, the parties acknowledge and
agree that the non-payment by Party B to Party A of Early Repayment Costs
on a Payment Date which Party B has not received pursuant to the
Supplemental Deed during that Collection Period just ended will not give
rise to an Event of Default under this Agreement.
(26) AUSTRALIAN ADDENDA. The following addenda to Schedule to Master
Agreement of International Swap Dealers Association, Inc. in the form
of the copies attached to this Agreement are deemed to be incorporated
in this Agreement:
- September 1991 Australian Addendum No. 1 (as amended in
September 1992, March 1994 and March 1997) - Interest Rate Caps,
Collars and Floors
- September 1991 Australian Addendum No. 2 (as amended in
September 1992, March 1994 and March 1997) - Swaptions
- September 1992 Australian Addendum No. 6 - $A Forward Rate
Agreements
- September 1992 Australian Addendum No. 7 - Forward Rate Xxxx
Agreements
23
PART 6 - SECURITISATION PROVISIONS
(a) INCONSISTENCY. In the event of any inconsistency between the provisions of
this Part 6 and any other provision of this Agreement, the provisions of
this Part 6 will prevail.
(b) DEDUCTION OR WITHHOLDING FOR TAX. Section 2 of the agreement is
amended as follows:
(i) In Section 2(d)(ii)(1) the following words are deleted where
they appear:
"in respect of which X would not be required to pay an
additional amount to Y under section 2(d)(i)(4)".
(ii) Section 2(d)(i)(4) is deleted in its entirety.
(c) EVENTS OF DEFAULT AND TERMINATION EVENTS.
(i) The following provisions of Section 5 will not apply to either
Party A or Party B:
Section 5(a)(ii) Section 5(a)(iii) Section 5(a)(iv) Section 5(a)(v)
Section 5(a)(vi) Section 5(b)(ii) Section 5(b)(iii) Section
5(b)(iv)
(ii) Section 5(a)(i) will not apply to Party B to the extent it relates
to a failure by Party B to include in amounts due to be paid to
Party A under the Fixed Swap any Non-Collection Fees for the
related Collection Period.
(d) TRANSFER. A new paragraph (c) is added to Section 7 as follows:
"a party may make such a transfer under, or in accordance with, the
Global Master Security Trust Deed."
and replace the "." at the end of Section 7(b) with "; and".
(e) ROLE AND LIABILITY OF TRUST MANAGER.
Party A acknowledges that the Trust Manager will, at the request of Party
B, perform the day to day management of the Trust on the terms and
conditions of the Master Trust Deed. Any rights or obligations of Party B
under this Agreement may be exercised or satisfied (as the case may be)
by the Trust Manager on behalf of Party B (and the Trust Manager will
keep Party B informed of any action so taken by the Trust Manager) and
Party A is not obliged to enquire as to the authority of the Trust
Manager to take such action on behalf of Party B.
Notwithstanding any other provision of this Agreement, the Trust Manager
is not liable:
(i) in connection with anything done by it in good faith and without
negligence in reliance upon any document, form or list except where
it is actually aware that the document, form or list is not
genuine; or
24
(ii) if it fails to do anything because it is prevented or hindered
from doing it by law or order; or
(iii) to anyone for payments made by it in good faith to a fiscal
authority in connection with Taxes (including Taxes assessed on the
income of the Trust) or other charges in respect of a Trust even if
the payment need not have been made; or
(iv) if a person fails to carry out an agreement with the Trust
Manager in connection with the Trust; or
(v) to anyone because of any error of law or any matter done or omitted
to be done by it in good faith in the event of the liquidation or
dissolution of a company (other than a company under its control),
except to the extent that any of the foregoing is caused by the Trust
Manager's own gross negligence, fraud or wilful default.
The Trust Manager personally is not a "party" (as that term is used in
Section 2(a)(i) of the Master Agreement) under the Agreement for the
purposes of determining the obligations, representations and undertakings
of each "party" to it.
(f) PAYMENTS PRIOR TO EARLY TERMINATION DATE: A new Section 6(e)(vi) is
inserted as follows:
(i) If a party (in this Section 6 (e)(vi), "R") makes a payment under a
Transaction in advance in respect of a period, and an Early
Termination Date occurs before that period has elapsed, then the
other party (in this Section 6(e)(vi), "S") must pay (by way of
refund) to R, as an amount due in respect of that Early Termination
Date, an amount equal to the Termination Currency Equivalent of:
PAYMENT X BALANCE
---------------------
Period
where
Payment is the amount paid in advance;
-
Period is the period to which the Payment related; and
Balance is the part of the Period from the Early
Termination Date to the end of the Period;
-
such amount the "Advance Refund Amount".
-
25
ANNEXURE 1
FORM OF CONFIRMATION FOR BASIS SWAP
- KINGFISHER TRUST 2001-1G ("TRUST")
[PARTY A LETTERHEAD]
[DATE]
TO: Perpetual Trustee Company Limited ANZ Capel Court Limited
as trustee of the Trust Xxxxx 0
Xxxxx 0 000 Xxxxxxx Xxxxxx
39 Hunter Street MELBOURNE VIC 3000
XXXXXX XXX 0000
ATTENTION: Manager, ATTENTION: Manager, Primary
Securitisation Services Markets Group
SWAP CONFIRMATION - BASIS SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below
("TRANSACTION"). This letter constitutes a "CONFIRMATION" as referred to in the
Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented from time
to time ("AGREEMENT"), between Australia and New Zealand Banking Group Limited
(ABN 11 005 357 522) ("PARTY A"), Perpetual Trustee Company Limited, (ABN 42 000
001 007) as trustee of the Trust ("PARTY B") and ANZ Capel Court Limited (ABN 30
004 768 807) ("TRUST MANAGER"). All provisions contained in the Agreement govern
this Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
OUR REFERENCE: [ ]
TRADE DATE: [ ]
EFFECTIVE DATE: [ ]
TERMINATION DATE: Means the earlier of:
(a) the date that all the Notes have been
redeemed in full; and
(b) the Termination Date for the Trust,
subject to the Following Business Day
Convention.
NOTIONAL AMOUNT: With respect to each Interest Period, means
the Basis Swap Amount for the Interest
Period.
26
FLOATING ADMINISTERED RATE
AMOUNTS:
Floating Administered Rate
Payer: Party B
Floating Administered Rate
Payer: Each Payment Date
Payment Dates:
Floating Administered Rate
Amount: For the purposes of determining the Floating
Administered Rate Amount payable on each Payment
Date, Section 6.1 of the 2000 ISDA Definitions
does not apply and the Floating Administered Rate
Amount for each Interest Period will be
determined as the Variable Finance Charges for
the Interest Period.
FLOATING BBSW AMOUNTS:
Floating BBSW Rate Payer: Party A
Floating BBSW Rate Payer
Payment Dates: Each Payment Date
Payment Dates:
Floating Rate Option: AUD-BBR-BBSW
an amount calculated in accordance with the
Spread: following:
M + [ ]%
Where:
M = the weighted average Margin on the Notes
outstanding on the first day of the
Collection Period expiring immediately
prior to such Payment Date
the aggregate of the Spread for the currency
swap for the Class A Notes and the Class B
Margin: Note Margin
Floating Rate Day Count: Actual/365 (Fixed)
Fraction:
Reset Dates: The first day of each Interest Period.
BUSINESS DAY: Melbourne
BUSINESS DAY CONVENTION: Following
CALCULATION AGENT: The Trust Manager
27
ACCOUNT DETAILS INSTRUCTION:
Account for payments to
Party A: [Please advise]
Account for payments to
Party B: [Please advise]
The Transaction to which this Confirmation
relates is a Basis Swap for the purposes of
OTHER PROVISIONS: the Agreement.
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning it to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED SIGNED for and on behalf of
(ABN 42 000 001 007) as trustee of AUSTRALIA AND NEW ZEALAND BANKING
the Kingfisher Trust 2001-1G GROUP LIMITED (ABN 11 005 357 522)
By: By:
------------------------------- -------------------------------
(Authorised Officer) (Authorised Officer)
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
SIGNED for and on behalf of
ANZ CAPEL COURT LIMITED (ABN
30 004 768 807)
By:
-------------------------------
(Authorised Officer)
Name:
------------------------------
28
Title:
-----------------------------
29
ANNEXURE 2
FORM OF CONFIRMATION FOR FIXED SWAP
- KINGFISHER TRUST 2001-1G ("TRUST")
[PARTY A LETTERHEAD]
[DATE]
TO: Perpetual Trustee Company Limited ANZ Capel Court Limited
as trustee of the Trust Xxxxx 0
Xxxxx 0 000 Xxxxxxx Xxxxxx
39 Hunter Street MELBOURNE VIC 3000
XXXXXX XXX 0000
ATTENTION: Manager, ATTENTION: Manager, Primary
Securitisation Services Markets Group
SWAP CONFIRMATION - FIXED SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below
("TRANSACTION"). This letter constitutes a "CONFIRMATION" as referred to in the
Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented from time
to time ("AGREEMENT"), between Australia and New Zealand Banking Group Limited,
(ABN 11 005 357 522) ("PARTY A"), Perpetual Trustee Company Limited, (ABN 42 000
001 007) as trustee of the Trust ("PARTY B") and ANZ Capel Court Limited (ABN 30
004 768 807) ("TRUST MANAGER"). All provisions contained in the Agreement govern
this Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates
are as follows:
OUR REFERENCE: [ ]
TRADE DATE: [ ]
EFFECTIVE DATE: [ ]
TERMINATION DATE: Means the earlier of:
(a) the date that all of the Notes have been
redeemed in full; and
(b) the Termination Date for the Trust,
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subject to the Following Business Day
Convention.
With respect to each Interest Period, means the
NOTIONAL AMOUNT: Fixed Swap Amount for that Interest Period.
FIXED AMOUNTS:
Fixed Rate Payer Party B
Fixed Rate Payer Payment
Dates Each Payment Date
Fixed Amount For the purposes of determining the Fixed Amount
payable on each Payment Date, Section 5.1 of the
2000 ISDA Definitions does not apply and the
Fixed Amount for each Interest Period will be
determined as the Fixed Rate Finance Charges
for that Interest Period.
FLOATING AMOUNTS:
Floating Rate Payer Party A
Floating Rate Payer Payment
Dates Each Payment Date
Floating Rate Option AUD-BBR-BBSW
an amount calculated in accordance with the
Spread following:
M + [ ]%
Where:
M= weighted average Margin on the Notes
outstanding on the first day of the
Collection Period expiring immediately
prior to such Payment Date
the aggregate of the Spread for the currency
swap for the Class A Notes and the Class B
Margin: Note Margin
Floating Rate Day Count
Fraction Actual/365 (Fixed)
Reset Dates The first day of each Interest Period.
BUSINESS DAY: Melbourne
BUSINESS DAY CONVENTION: Following
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CALCULATION AGENT: The Trust Manager
ACCOUNT DETAILS INSTRUCTION:
Account for payments to
Party A [Please advise]
Account for payments to
Party B [Please advise]
OTHER PROVISIONS: The Transaction to which this Confirmation
relates is a Fixed Swap for the purposes of
the Agreement.
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning it to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY AUSTRALIA AND NEW ZEALAND BANKING
LIMITED (ABN 42 000 001 007) GROUP LIMITED (ABN 11 005 357 522)
as trustee of the Kingfisher
Trust 2001-1G
By: By:
------------------------------- -------------------------------
(Authorised Officer) (Authorised Officer)
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
SIGNED for and on behalf of ANZ
CAPEL COURT LIMITED (ABN 30 004 768
807)
By:
-------------------------------
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(Authorised Officer)
Name:
-------------------------------
Title:
------------------------------
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ANNEXURE 3
MONTHLY SWAP STATEMENT
KINGFISHER TRUST 2001-1G
Date: [ ]
To: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ABN 11 005 357 522)
("PARTY A")
And: PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001 007) ("PARTY B")
From ANZ CAPEL COURT LIMITED (ABN 30 004 768 807) ("TRUST MANAGER")
ISDA MASTER AGREEMENT DATED [ ] BETWEEN PARTY A, PARTY B AND THE TRUST MANAGER
("AGREEMENT")
Determination Date:
Interest Period:
The Trust Manager has determined and gives notice of the following:
1 BASIS SWAP
(a) Notional Amount for the Interest Period:
(b) Variable Finance Charges for the Interest Period:
(c) AUD-BBR-BBSW Spread:
2 FIXED SWAP
(a) Notional Amount for the Interest Period:
(b) Fixed Rate Finance Charges for the Interest Period:
(c) AUD-BBR-BBSW Spread:
3 RATE SET
BBSW for the Interest Period.
4 NET AMOUNT
Net amount due for payment by Party A on the immediately following
Payment Date:
Net amount due for payment by Party B on the immediately following
Payment Date:
Terms used and not otherwise defined in this statement have the same meaning as
in the Agreement, as amended, supplemented or novated from time to time.
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SIGNED for and on behalf of
ANZ CAPEL COURT LIMITED
(ABN 30 004 768 807)
By...............................
(Authorised Officer)
Name:............................
Title: ..........................
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SIGNED by )
as attorney for AUSTRALIA AND NEW )
ZEALAND BANKING GROUP LIMITED )
under power of attorney dated )
)
in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
) ................................
................................ ) By executing this agreement the
Address of witness ) attorney states that the
) attorney has received no notice
................................ ) of revocation of the power of
Occupation of witness ) attorney
SIGNED by )
as attorney for PERPETUAL TRUSTEE )
COMPANY LIMITED under power of )
attorney dated )
)
in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
) ................................
................................ ) By executing this agreement the
Address of witness ) attorney states that the
) attorney has received no notice
................................ ) of revocation of the power of
Occupation of witness ) attorney
36
SIGNED by
as attorney for ANZ CAPEL COURT )
LIMITED under power of attorney )
dated )
)
in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
) ................................
................................ ) By executing this agreement the
Address of witness ) attorney states that the
) attorney has received no notice
................................ ) of revocation of the power of
Occupation of witness ) attorney