XXXXXXX XXX
Medallion Trust Series [ ]
ISDA Master Agreement
(Currency Swap Agreement)
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
[ ]
ABN [ ]
Perpetual Trustee Company Limited
ABN 42 000 001 007
Commonwealth Bank of Australia
ABN 48 123 123 124
If you have any questions about the details of this document
PLEASE CONTACT [ ] ON + 61 2 9353 4000
Xxxxxxx Xxx
Lawyers
Levels 22-35 No. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
XX Xxx X0 Xxxxxxxxx Xxxxxx Xxxxxx XXX 0000
T + 61 2 9353 4000 F + 61 2 8220 6700
XXX.XXXXXXXXXX.XXX
Our reference [ ]
SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF [ ] BETWEEN
SECURITISATION ADVISORY SERVICES PTY. LIMITED
ABN 88 064 133 946
("MANAGER")
AND
[ ] ABN 34 072 814 058
("[ ] " 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
COMMONWEALTH BANK OF AUSTRALIA
ABN 48 123 123 124
("CBA" 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.
(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 CBA as Standby Swap Provider and (on and from the
Novation Date) as 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) [ ] as Party A represents that it is an "eligible contract
participant" under the U.S. Commodity Exchange Act.
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 DELIVER FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
DOCUMENT
Party A, Party B, and the Any document or certificate On the earlier of (a) learning
Standby Swap Provider reasonably required or that such document or
reasonably requested by a party certificate is required and (b)
in connection with its as soon as reasonably
obligations to make a payment practicable following a request
under this Agreement which would by a party.
enable that party to make 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 DELIVER FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
DOCUMENT
Party A, Party B, the A certificate specifying the On the execution of this
Standby Swap Provider and names, title and specimen Agreement and each
the Manager signatures of the persons Confirmation unless that
authorised to execute this certificate has already been
Agreement and each Confirmation supplied and remains true and
or other communication in in effect and when the
writing made pursuant to this certificate is updated.
Agreement on its behalf.
Party A, Party B, the A legal opinion as to the Prior to the Closing Date.
Standby Swap Provider and validity and enforceability of
the Manager 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 Party A of Not less than 5 Business Days
each Credit Support Document (or such lesser period as
specified in respect of Party B Party A agrees to) before the
and (without limiting any Trade Date of the first
obligation Party B may have occurring Transaction and in
under the terms of that Credit the case of any amending
Support Document to notify Party documents entered into
A of amendments thereto) a subsequent to that date,
certified copy to Party A of any promptly after each amending
document that amends in any way document (if any) has been
the terms of that Credit Support entered into.
Document.
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 [ ] as PARTY A:
Address: [ ]
Attention: [ ]
Facsimile 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: [ ]
Attention: [ ]
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 CBA as STANDBY SWAP PROVIDER and
(on and from the Novation Date) 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
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
[ ] as Party A appoints as its Process Agent: [ ]
Party B appoints as its Process Agent: not applicable.
CBA as Standby Swap Provider and (on and from the Novation Date) as Party A
appoints as its Process Agent: not applicable.
(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
(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 [ ] as Party A: Not applicable.
(ii) In relation to Party B: The Security Trust Deed.
(iii) In relation to CBA as (on and from the Novation Date) Party A: Not
applicable.
(g) CREDIT SUPPORT PROVIDER.
(i) In relation to [ ] as Party A: None.
(ii) In relation to Party B: None.
(iii) In relation to CBA 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),
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
(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 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 CONTRACT PARTICIPANT. The Series Trust was not
formed for the specific purpose of constituting an
"eligible contract participant" 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 10,000,000 the Series Trust will have total assets
exceeding USD10,000,000.
(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
(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 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 [ ]. 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):
(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 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 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.
"[ ]/CBA ISDA MASTER AGREEMENT" means the ISDA Master
Agreement Amendment Agreement dated on or about the date of this
Agreement between [ ] and CBA, as amended from time to time.
"CREDIT SUPPORT ANNEX" means the Credit Support Annex to be
executed in the form substantially as 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.
"NOVATION DATE" means the date upon which the obligations of
[ ] 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.
"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 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
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):
(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
(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;
(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 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:
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 THE WHERE THE PERIOD WHERE THE PERIOD WHERE THE PERIOD
STANDBY SWAP BETWEEN THE DATE OF BETWEEN THE DATE OF BETWEEN THE DATE OF
PROVIDER'S JOINTLY RECALCULATION AND THE RECALCULATION AND THE RECALCULATION AND THE
SUPPORTED LONG TERM SCHEDULED MATURITY SCHEDULED MATURITY SCHEDULED MATURITY
CREDIT RATING BY S&P DATE IS LESS THAN OR DATE IS GREATER THAN 5 DATE IS GREATER THAN
EQUAL TO 5 YEARS YEARS AND LESS THAN OR 10 YEARS
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, [ ] 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 [ ] as Party A and the Transferee. Upon delivery of
those documents to Party B:
(a) (PARTY A'S RIGHTS TERMINATE): [ ]'s rights powers privileges and
obligations as Party A under this Agreement and each Transaction
terminate;
(b) (TRANSFER AND ASSUMPTION): [ ] will be taken to have transferred
its rights powers and privileges under this Agreement and each
Transaction to the Transferee 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 [ ] 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 [ ] 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 [ ] and the Standby Swap Provider in the
[ ]/CBA ISDA Master Agreement).
(24) STANDBY SWAP PROVIDER:
(a) (COMMITMENT): Notwithstanding any other provision in this Agreement to
the contrary, if [ ] 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
[ ] 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 Party B the amount then owing by [ ] 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 [ ] as Party
A under Part 5(22); and
(v) Party B acknowledges that a payment made by the Standby Swap
Provider in full compliance with Part 5(24)(a)(iv)(A) will
fully satisfy and discharge the obligation of Party A to make
that payment.
(b) (REIMBURSEMENT): If on any day the Standby Swap Provider:
(i) makes a payment pursuant to Part 5(24)(a)(iv)(A), [ ] 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 [ ] as Party A pursuant to
Part 5(24)(a)(iv)(B), [ ] 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 [ ] 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; and
(iii) Each of the Standby Swap Provider and Party B acknowledge that
a payment made by CBA as Party A in full compliance with Part
5(24)(b)(i) will fully satisfy and discharge the obligation of
Party A to make that payment.
(c) (NOVATION): If:
(i) [ ] 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) [ ] as Party A fails to fulfill its obligations under Part
5(24)(b)(ii)(A), then:
(iii) [ ]'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), [ ] 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 [ ] as Party
A had under this Agreement and each Transaction;
(v) Party B and the Standby Swap Provider will be taken to have
released [ ]
as Party A from all its unperformed and future obligations
under 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 "[ ] 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 [ ] as Party A or any
other arrangements made by [ ] as Party A pursuant to
Part 5(22)(a)(iii) will be returned to [ ] 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) [ ]
as Party A must pay the Standby Swap Provider or the Standby Swap
Provider must pay [ ] as Party A an amount (the "NOVATION
SETTLEMENT AMOUNT") being:
(i) in the case of payment by [ ] 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 [ ]
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 [ ];
(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 [ ] 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 [ ] as Party A under Part 5(24)(a)(iv)(B) by
lodging collateral on behalf of [ ] as Party A pursuant to Part
5(22)(a), [ ] 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 [ ] 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.
ANNEXURE 1
FORM OF CONFIRMATION [NAME OF SERIES TRUST]
[LETTERHEAD OF PARTY A]
[DATE]
TO: Perpetual Trustee Company Limited Securitisation Advisory Services Pty. Limited
as trustee of the Series Trust Xxxxx 0
Xxxxx 0 00 Xxxxxx Xxxxx
00 Xxxxxx Xxxxxx Xxxxxx XXX 0000
Xxxxxx XXX 0000 XXXXXXXXX
XXXXXXXXX
ATTENTION: Manager, Securitisation ATTENTION: Manager, Securitisation
Services
Commonwealth Bank of Australia
Xxxxx 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
ATTENTION: Manager, Securitisation
CONFIRMATION - SERIES [ ] MEDALLION TRUST
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 [ ] 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 [ ]("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 Commonwealth Bank of Australia, ABN 48 123 123 124 (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
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 Dates: Each Quarterly Distribution Date during 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
Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Class A-1 Unpaid Coupon
Amount: On each Floating Rate Payer Payment Date, Party
A will pay to Party B an amount calculated as
follows:
LIBOR
$USUC = $AUC x ------- x USExchangeRate
BBSW
where:
$US UC = the amount to be paid by Party A;
$AUC = the A$ 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 Dates: Each Quarterly Distribution Date during 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
usingthree andfour 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
Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
A$ Class A-1 Unpaid
Interest Amount: On each Floating Rate Payer Payment Date Party B
will pay to Party A 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.
6. EXCHANGES
6.1 INITIAL EXCHANGE:
Initial Exchange Date: Issue Date
Party A Initial Exchange
Amount: The A$ Equivalent of the Party B Initial
Exchange Amount, being A$[ ]
Party B Initial Exchange
Amount: One half of the Initial Invested Amount of the
Relevant Notes on the Issue Date, being US$
[ ] 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 Amount: In respect of an Instalment Exchange 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 Amount: In respect of an Instalment Exchange 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: [ ]
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 [ ] as Party A for each
Transaction is [ ].
The Office of CBA (on and from the Novation
Date) as Party A is Sydney.
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
CONFIRMED AS AT THE DATE FIRST WRITTEN ABOVE:
SIGNED for and on behalf of
[ ]ABN [ ]
By:
(Authorised Officer)
Name:
Title:
CONFIRMED AS AT THE DATE FIRST WRITTEN ABOVE: CONFIRMED AS AT THE DATE FIRST WRITTEN ABOVE:
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY SECURITISATION ADVISORY SERVICES PTY.
LIMITED, ABN 42 000 001 007 LIMITED, ABN 88 064 133 946
as trustee of the Series [ ] Medallion Trust
By: By:
(Authorised Officer) (Authorised Officer)
Name: Name:
Title: Title:
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:
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 NOTEHOLDERS" means the Class A-1 Noteholders as that term is defined
in the Class A-1 Note Trust Deed.
"RELEVANT NOTES" means the Class A-1 Notes issued by the Trustee under 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.
ANNEXURE-NEW YORK LAW CREDIT SUPPORT ANNEX
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 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 the 98%
U.S. Treasury Department having a remaining
maturity of not more than one year
(B) negotiable debt obligations issued by the 95%
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 the 93%
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 the 90%
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 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).
(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
(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."
(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 [ ]
as Party A (or from the Standby Swap Provider on behalf of
[ ]
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
[ ] as Party A to the Secured Party as trustee
of the Series Trust (other than pursuant to Paragraph
13(m)(vii)(B)); and
(2) the Standby Swap Provider as security for the
Obligations of [ ] 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 [ ]'s
present and future obligations to the Standby Swap
Provider under Paragraph 13(m)(v) of the credit
support annex to the [ ]/CBA ISDA Master
Agreement,
in accordance with the provisions of this Paragraph
13(m)(vii), and Paragraph 2 is varied accordingly.
(B) [ ] 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 [ ]/CBA ISDA Master
Agreement,
as and when the same fall due for payment. Notwithstanding
the foregoing, every payment by [ ] 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 [ ] as Party A to the Secured Party in
satisfaction of [ ]'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 [ ]
as Party A (or from the Standby Swap Provider on behalf of
[ ] 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 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 [ ] 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 [ ]/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 [ ]'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 [ ]'s present and future
obligations to the Standby Swap Provider under
Paragraph 13(m)(v) of the credit support annex
to the [ ]/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 [ ] 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 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 [ ]/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 [ ] 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 [ ] 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 [ ] 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 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 [ ] 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
[ ]/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.
XXXXXXX XXX
Medallion Trust Series [ ]
ISDA Master Agreement
(Currency Swap Agreement)
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
Commonwealth Bank of Australia
ABN 48 123 123 124
Perpetual Trustee Company Limited
ABN 42 000 001 007
[ ]
ABN [ ]
If you have any questions about the details of this document
PLEASE CONTACT [ ] ON + 61 2 9353 4000
Xxxxxxx Xxx
Lawyers
Levels 22-35 No. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
XX Xxx X0 Xxxxxxxxx Xxxxxx Xxxxxx XXX 0000
T + 61 2 9353 4000 F + 61 2 8220 6700
XXX.XXXXXXXXXX.XXX
Our reference [ ]
SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF [ ] 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
[ ] ABN [ ]
("[ ]" 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.
(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) [ ] as Standby Swap Provider represents that it is an "eligible
contract participant" under the U.S. Commodity Exchange Act.
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 DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
Party A, Party B, and the Standby Any document or certificate reasonably On the earlier of (a) learning
Swap Provider required or reasonably requested by a that such document or
party in connection with its certificate is required and (b)
obligations to make a payment under as soon as reasonably
this Agreement which would enable that practicable following a request
party to make the payment free from by a party.
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 DELIVER FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
DOCUMENT
Party A, Party B, the Standby A certificate specifying the names, On the execution of this
Swap Provider and the Manager title and specimen signatures of the Agreement and each
persons authorised to execute this Confirmation unless that
Agreement and each Confirmation or certificate has already been
other communication in writing made supplied and remains true and
pursuant to this Agreement on its in effect and when the
behalf. certificate is updated.
Party A, Party B, the Standby A legal opinion as to the validity and Prior to the Closing Date.
Swap Provider 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 Party A of each Not less than 5 Business Days
Credit Support Document specified in (or such lesser period as
respect of Party B and (without Party A agrees to) before the
limiting any obligation Party B may Trade Date of the first
have under the terms of that Credit occurring Transaction and in
Support Document to notify Party A of the case of any amending
amendments thereto) a certified copy documents entered into
to Party A of any document that amends subsequent to that date,
in any way the terms of that Credit promptly after each amending
Support Document. document (if any) 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 [ ] as STANDBY SWAP PROVIDER
and (on and from the Novation Date) as PARTY A:
Address: [ ]
Attention: [ ]
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: [ ]
[ ]
Attention: Head of Department
(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.
[ ] as Standby Swap Provider and (on and from the Novation Date) as
Party A appoints as its Process Agent: [ ], Sydney Branch.
(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
(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 [ ] 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 [ ] 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),
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
(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 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 CONTRACT PARTICIPANT. The Series Trust was not
formed for the specific purpose of constituting an
"eligible contract participant" 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 10,000,000 the Series Trust will have total assets
exceeding USD10,000,000.
(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
(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 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):
(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) or 5(24).
(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 Parts 5(23) or (24), 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 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.
"[ ]/CBA ISDA MASTER AGREEMENT" means the ISDA Master
Agreement Amendment Agreement dated on or about the date of
this Agreement between [ ] and CBA, as amended from time
to time.
"CREDIT SUPPORT ANNEX" means the Credit Support Annex to be
executed substantially in the form as 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.
"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.
"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 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
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):
(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
(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;
(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 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:
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 THE WHERE THE PERIOD WHERE THE PERIOD WHERE THE PERIOD
STANDBY SWAP BETWEEN THE DATE OF BETWEEN THE DATE OF BETWEEN THE DATE OF
PROVIDER'S JOINTLY RECALCULATION AND THE RECALCULATION AND THE RECALCULATION AND THE
SUPPORTED LONG TERM SCHEDULED MATURITY SCHEDULED MATURITY SCHEDULED MATURITY
CREDIT RATING BY S&P DATE IS LESS THAN OR DATE IS GREATER THAN DATE IS GREATER THAN
EQUAL TO 5 YEARS 5 YEARS AND LESS THAN 10 YEARS
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 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 [ ] and the Standby Swap Provider in the
[ ]/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;
(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 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); and
(v) Party B acknowledges that a payment made by the Standby Swap
Provider in full compliance with Part 5(24)(a)(iv)(A) will
fully satisfy and discharge the obligation of Party A to make
that payment.
(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; and
(iii) Each of the Standby Swap Provider and Party B acknowledge that
a payment made by CBA as Party A in full compliance with Part
5(24)(b)(i) will fully satisfy and discharge the obligation of
Party A to make that payment.
(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;
(ii) CBA as Party A fails to fulfill its obligations under Part
5(24)(b)(ii)(A); or
(iii) an Inconvertibility Event occurs in respect of which CBA, as
Party A, gives written notice to the Standby Swap Provider,
Party B and the Manager prior to the Novation Date,
then:
(iv) 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;
(v) subject to Part 5(24)(c)(vii), 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;
(vi) 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 this Agreement and each Transaction other
than its present and future obligations pursuant to Part
5(24)(d);
(vii) 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)(vii)(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)(vii)(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 except in the case of
novation following an Inconvertibility Event (whether or not a
failure referred to in Part
5(24)(a) has occurred) where the Novation Settlement Amount is
due and payable on the date which is 2 Business Days after the
day on which notice of the amount payable is effective;
(ii) in the case of:
(A) novation following an Inconvertibility Event (whether or
not a failure referred to in Part 5(24)(a) has occurred),
the Early Termination Date has resulted from a Termination
Event and there are two Affected Parties;
(B) otherwise, 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;
(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.
ANNEXURE 1
FORM OF CONFIRMATION [NAME OF SERIES TRUST]
[LETTERHEAD OF PARTY A]
[DATE]
TO: Perpetual Trustee Company Limited Securitisation Advisory Services Pty. Limited
as trustee of the Series Trust Xxxxx 0
Xxxxx 0 00 Xxxxxx Xxxxx
00 Xxxxxx Xxxxxx Xxxxxx XXX 0000
Xxxxxx XXX 0000 XXXXXXXXX
XXXXXXXXX
ATTENTION: Manager, Securitisation ATTENTION: Manager, Securitisation
Services
[ ]
000 Xxxx 00xx Xxxxxx
Xxx Xxxx
XX 00000
XXXXXX XXXXXX
ATTENTION: Director, Derivatives Operations
CONFIRMATION - MEDALLION TRUST SERIES [ ]
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 [ ] 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 [ ] (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 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
Dates: Each Quarterly Distribution Date during 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
Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Class A-1 Unpaid Coupon
Amount: On each Floating Rate Payer Payment Date,
Party A will pay to Party B an amount
calculated as follows:
LIBOR
$USUC = $AUC x ------- x $USExchangeRate
BBSW
where:
$US UC = the amount to be paid by Party A;
$AUC = the A$ 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
Dates: Each Quarterly Distribution Date during 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
Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
A$ Class A-1 Unpaid Interest
Amount: On each Floating Rate Payer Payment Date
Party B will pay to Party A 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.
6. EXCHANGES
6.1 INITIAL EXCHANGE:
Initial Exchange Date: Issue Date
Party A Initial Exchange
Amount: The A$ Equivalent of the Party B Initial
Exchange Amount, being A$[ ]
Party B Initial Exchange
Amount: One half of the Initial Invested Amount of
the Relevant Notes on the Issue Date, being
US$[ ]
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
Amount: In respect of an Instalment Exchange 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
Amount: In respect of an Instalment Exchange 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: [ ]
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 [ ] (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
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 WRITTEN ABOVE: CONFIRMED AS AT THE DATE FIRST WRITTEN ABOVE:
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY SECURITISATION ADVISORY SERVICES PTY.
LIMITED, ABN 42 000 001 007 LIMITED, ABN 88 064 133 946
as trustee of the Series [ ] Medallion
Trust
By: By:
(Authorised Officer) (Authorised Officer)
Name: Name:
Title: Title:
CONFIRMED AS AT THE DATE FIRST WRITTEN ABOVE:
SIGNED for and on behalf of
[ ],
By:
(Authorised Officer)
Name:
Title:
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 NOTEHOLDERS" means the Class A-1 Noteholders as that term is defined
in the Class A-1 Note Trust Deed.
"RELEVANT NOTES" means the Class A-1 Notes issued by the Trustee under 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.
ANNEXURE- NEW YORK LAW CREDIT SUPPORT ANNEX
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 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 the 98%
U.S. Treasury Department having a remaining
maturity of not more than one year
(B) negotiable debt obligations issued by the 95%
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 the 93%
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 the 90%
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 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).
(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
(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."
(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
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
[ ]/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 [ ]/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 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 [ ]/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
[ ]/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 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 [ ]/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
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 [ ]/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.
