XXXXXXX XXX
Medallion Trust Series 2003-1G
ISDA Master Agreement
(Currency Swap Agreement)
Securitisation Advisory Services Pty Ltd
ACN 88 064 133 964
Manager
Commonwealth Bank of Australia
ABN 48 123 123 124
Party A
Perpetual Trustee Company Limited
ABN 42 000 001 007
Party B
If you have any questions about the details of this document
PLEASE CONTACT XXXXX XXXXXX ON + 61 2 9353 4174
Xxxxxxx Xxx
Lawyers
Levels 19-35 Xx. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
PO Box H3 Australia Square Sydney NSW 1215
T + 61 2 9353 4000 F + 61 2 8220 6700
xxx.xxxxxxxxxx.xxx
Our reference 174/657/80050681
SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF 13 MARCH 2003 BETWEEN
SECURITISATION ADVISORY SERVICES PTY. LIMITED
ABN 88 064 133 946
("MANAGER")
AND
COMMONWEALTH BANK OF AUSTRALIA
ABN 48 123 123 124
("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")
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)(iii)
Section 5(a)(iv)
Section 5(a)(v)
Section 5(a)(vi)
Section 5(b)(iv)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii)
Section 5(a)(iii)
Section 5(a)(iv)
Section 5(a)(v)
Section 5(a)(vi)
Section 5(a)(viii)
Section 5(b)(iv)
(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
1
(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, Party A and Party B each makes the following representation:
It is an Australian resident and does not derive payments under this
Agreement in part or whole in carrying on a business in a country
outside Australia of or through a permanent establishment of itself in
that country.
PART 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver to each other party the following documents, as applicable:
2
(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 and Party B Any document or certificate reasonably On the earlier of (a) learning that
required or reasonably requested by a such document or certificate is
party in connection with its required and (b) as soon as
obligations to make a payment under reasonably practicable following a
this Agreement which would enable that request by a party.
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 (including,
without limitation, any United States
form W-8BEN or other relevant United
States tax form).
(b) OTHER DOCUMENTS TO BE DELIVERED ARE:
PARTY REQUIRED TO DELIVER
DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
Party A, Party B and the A certificate specifying the names, On the execution of this Agreement
Manager title and specimen signatures of the and each Confirmation unless that
persons authorised to execute this certificate has already been
Agreement and each Confirmation or supplied and remains true and in
other communication in writing made effect and when the certificate is
pursuant to this Agreement on its updated.
behalf.
Party A, Party B and the A legal opinion as to the validity and Prior to the Closing Date.
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 (or
Credit Support Document specified in such lesser period as Party A
respect of Party B and (without agrees to) before the Trade Date of
limiting any obligation Party B may the first occurring Transaction and
have under the terms of that Credit in the case of any amending
Support Document to notify Party A of documents entered into subsequent
amendments thereto) a certified copy to that date, promptly after each
to Party A of any document that amends amending document (if any) has been
in any way the terms of that Credit entered into.
Support 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
3
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 (or in the case of the Credit Support Document in respect
of Party B, a solicitor acting for the Manager) 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 PARTY A:
Address: Commonwealth Bank of Australia
Level 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
Level 0
0 Xxxxxxxxxxx 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
Level 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:
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) OFFICES. The provisions of Section 10(a) will not apply to this
Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
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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 Party A: Not applicable.
(ii) In relation to Party B: The Security Trust Deed.
(g) CREDIT SUPPORT PROVIDER.
(i) In relation to Party A: None.
(ii) In relation to Party B: None.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws in force in the State of 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
the State 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 A and Party B
are 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:
5
"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) Insert a new paragraph (v) in Section 2(a) immediately after
Section 2(a)(iv) as follows:
"(v) Where payments are due pursuant to Section 2(a)(i) by Party
A to Party B (the "PARTY A PAYMENT") and by Party B to
Party A (the "PARTY B PAYMENT") on the same day, then Party
A's obligation to make the Party A Payment will be subject
to the condition precedent (which will be an "applicable
condition precedent" for the purpose of Section
2(a)(iii)(3)) that Party A first receives either:
(1) the Party B Payment; or
(2) confirmation from Party B's bank that it holds
irrevocable instructions to effect payment of the
Party B Payment and that funds are available to make
payment.".
(e) 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.".
(f) Delete Section 2(d)(i)(4) in its entirety.
(g) In Section 2(d)(ii)(1) delete the following words where they
appear:
"in respect of which X would not be required to pay an additional
amount to Y under Section 2(d)(i)(4)".
(2) PARTY B'S PAYMENT INSTRUCTIONS: Party B irrevocably authorises and
instructs Party A to make payment of:
6
(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
Banking Act, 1959 (Cth)), section 86 of the Reserve Bank Act, 1959
(Cth) and section 13A(3) of the Banking Act, 1959 (Cth) or any
other analogous provision under any law applicable to a party).".
(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):
7
"(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
USD10,000,000, 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.".
8
(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 this
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 this 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.
9
(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 Party A, as
at the date of this Agreement.
(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
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 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) of this Schedule.
(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
10
(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) DETERMINATION OF MARKET QUOTATION BY PARTY B: If Party B is
required to determine a Market Quotation in respect of a
Terminated Transaction pursuant to Section 6(e), Party B must
consult with Party A in relation to such determination prior to
making the determination and must provide to each Reference
Market-maker in relation to the Market Quotation such information
in relation to the Terminated Transaction, provided by Party A to
Party B, as Party A may reasonably request.
(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) of the Schedule 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) or 5(22) of the Schedule.
(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:
11
"(iii) if sent by facsimile transmission, on the date a
transmission report is produced by the machine from
which the facsimile was sent which indicates that the
facsimile was sent in its entirety to the facsimile
number of the recipient notified for the purpose of
this Section unless the recipient notifies the sender
within one Business Day of the facsimile being sent
that the facsimile was not received in its entirety
in legible form;".
(11) DEFINITIONS
In this Agreement, unless the contrary intention appears:
(a) MASTER TRUST DEED: subject to Part 5(11)(h) of this Schedule,
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) of this Schedule,
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;
(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; and
(iii) without limiting the foregoing, Section 5(a)(vii) will only
apply to Party B in its capacity as trustee of the relevant
Series Trust and:
(A) reference in Section 5(a)(vii)(1) to Party B being
dissolved is to the relevant Series Trust being
dissolved;
(B) Party B in its capacity as trustee of the relevant
Series Trust is not insolvent or unable to pay its
debts for the purposes of Section 5(a)(vii)(2) to the
extent that its obligation to make any payment is
limited by any provision in a Transaction Document in
relation to the Series Trust; and
(C) the appointment of a Substitute Trustee in relation
to the Series Trust in accordance with the Master
Trust Deed is not, of itself, an event to which
Section 5(a)(vii) applies in relation to Party B.
(c) DEFINITIONS: in Section 14:
(i) replace the definitions of "AFFECTED TRANSACTIONS" and
"LOCAL BUSINESS Day" with the following:
12
""AFFECTED TRANSACTIONS" means, with respect to a
Termination Event, all Transactions."; and
""LOCAL BUSINESS DAY" has the same meaning as "BUSINESS
DAY"."; and
(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 bill 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.
"CREDIT SUPPORT ANNEX" means the Credit Support Annex
annexed to this Agreement.
"DISTRIBUTION DATE" has the meaning given in Section 16.
"MASTER TRUST DEED" means the Master Trust Deed dated 8
October 1997 between Party B and the Manager, as amended
from time to time.
"PRESCRIBED RATING PERIOD" means in relation to the credit
ratings assigned by the Rating Agencies to Party A:
(a) a period of 30 Business Days from the date when a
credit rating assigned by a Rating Agency to Party A
is less than the relevant Prescribed Rating but
greater than or equal to a short term credit rating of
A-1 by S&P or a long term credit rating of A- by S&P
and a long term credit rating of A3 by Xxxxx'x and a
short term credit rating of P-2 by Xxxxx'x; and
(b) a period of 5 Business Days from the date when a
credit rating assigned by a Rating Agency to Party A
is less than a short term credit rating of A-1 by S&P
or a long term credit rating of A- by S&P and a short
term credit rating of P-2 by Xxxxx'x and a long term
credit rating of A3 by Xxxxx'x.
"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
a long term credit rating of A2 by Xxxxx'x and a short term
credit rating of P-1 by Xxxxx'x.
"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.
13
"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 to it 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 2000 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc ("ISDA"))
(the "2000 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) of this Schedule, 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:
14
(i) any Confirmation;
(ii) this Schedule and Section 13 ("Elections and Variables") of
the Credit Support Annex (as applicable);
(iii) the 2000 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 2000 ISDA Definitions is deemed
to be a reference to a "TRANSACTION" for the purpose of
interpreting this Agreement or any Confirmation; and
(ii) "TRANSACTION" in this Agreement or any Confirmation is
deemed to be a reference to a "SWAP TRANSACTION" for the
purpose of interpreting the 2000 ISDA Definitions.
(h) INCORPORATED DEFINITIONS AND OTHER TRANSACTION DOCUMENTS AND
PROVISIONS: Where in this Agreement a word or expression is
defined by reference to its meaning in another Transaction
Document or there is a reference to another Transaction Document
or to a provision of another Transaction Document, any amendment
to the meaning of that word or expression or to that other
Transaction Document or provision (as the case may be) will be of
no effect for the purposes of this Agreement unless and until the
amendment is consented to by the parties to this Agreement.
(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 sue 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
15
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) and the Manager 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 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 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 and Party B
in its several capacity as trustee of the relevant Series
Trust;
16
(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 or the Manager severally in Party B's said several
capacities (and by Party A or the Manager 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 "DISTRIBUTION DATE", "RELEVANT CALCULATION AMOUNT",
"RELEVANT NOTE TRUSTEE", "RELEVANT NOTES", "RELEVANT
NOTEHOLDERS", "SCHEDULED MATURITY DATE", "SECURITY TRUST DEED"
and "SERIES SUPPLEMENT" in this
17
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 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 and
the Manager), and Party B 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)
of this Schedule, is authorised by that other party.
(16) RECORDED CONVERSATIONS: Each party:
(a) consents to the electronic recording of its telephone conversations
with another party (or any of its associated persons) with or without
the use of an automatic tone warning device;
(b) will provide transcripts of such recordings (if any) upon reasonable
request by the other party (at the reasonable cost of the party
requesting);
(c) acknowledges that such recordings and transcripts can be used as
evidence by either party in any dispute between them; and
(d) acknowledges that no party 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
18
(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) of
this Schedule, Party B must, on the direction of the Manager, pay any
upfront premium to enter into the Replacement Currency Swap received
by Party B from the Replacement Currency Swap provider 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) of
this Schedule, 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: The parties to this Agreement may only amend
this Agreement in accordance with clause 33.1(b) of the Series Supplement.
(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).
(22) RATINGS DOWNGRADE:
(a) (DOWNGRADE): If, as a result of the reduction or withdrawal of the
credit rating of Party A, Party A is assigned a credit rating by a
Rating Agency 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 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:
19
(i) provided that the short term credit rating by S&P is greater
than or equal to A-1 or the long term credit rating by S&P 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) of this Schedule;
(ii) enter into an agreement novating Party A's rights and
obligations under this Agreement and each Transaction to a
replacement counterparty acceptable to the Manager 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 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) if the credit rating of Party A is below the Prescribed Rating
in relation to S&P, CCR; and
(iii) if the credit rating of Party A is below the Prescribed Rating
in relation to Xxxxx'x, an amount acceptable to Xxxxx'x and
sufficient to maintain the credit rating assigned to the
Relevant Notes by Xxxxx'x immediately prior to the review of the
credit rating of Party A by Xxxxx'x.
Where:
CCR = CR x 1.030
CR = MTM + VB
MTM means the aggregate mark-to-market value (whether positive or
negative) of each Transaction determined in accordance with Part
5(22)(c) of this Schedule 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:
WHERE THE PERIOD WHERE THE PERIOD
BETWEEN THE DATE BETWEEN THE DATE OF
OF RECALCULATION RECALCULATION AND THE WHERE THE PERIOD BETWEEN
AND THE SCHEDULED SCHEDULED MATURITY DATE THE DATE OF RECALCULATION
PARTY A'S LONG MATURITY DATE IS IS GREATER THAN 5 YEARS AND THE SCHEDULED MATURITY
TERM CREDIT LESS THAN OR EQUAL AND LESS THAN OR EQUAL DATE IS GREATER THAN 10
RATING BY S&P TO 5 YEARS TO 10 YEARS YEARS
-------------- ------------------ ----------------------- --------------------------
A+ 1.05 1.75 3.0
A 1.35 2.45 4.5
A- 1.5 3.15 6
20
(c) (MARK TO MARKET VALUE): If collateral has been lodged or is to be
lodged under Part 5(22)(a)(i) of this Schedule and Part 5(22)(b)(ii)
of this Schedule applies, Party A must calculate the mark-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 mark-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
mark-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): If collateral has been lodged under Part 5(22)(a)(i)
of this Schedule then, unless collateral is no longer required to be
lodged in accordance with Part 5(22)(a) of this Schedule, Party A must
recalculate the Collateral Amount (including, if Part 5(22)(b)(ii) of
this Schedule applies, the CCR and the mark-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) NO AMENDMENT: Each of Party B and the Manager agrees that it will not
consent to any amendment to any provision in any Transaction Document in
relation to the Series Trust dealing with the ranking, priority or
entitlement of Party A in respect of any security or moneys relating to the
Series Trust without the prior written consent of Party A.
21
ANNEXURE 1
FORM OF CONFIRMATION [NAME OF SERIES TRUST]
[LETTERHEAD OF PARTY A]
[DATE]
TO: Perpetual Trustee Company Limited Securitisation Advisory Services Pty.
as trustee of the Series Trust Limited
Level 12 Level 0
000 Xxxx Xxxxxx 00 Xxxxxx Xxxxx
Xxxxxx XXX 0000 Xxxxxx XXX 0000
XXXXXXXXX XXXXXXXXX
ATTENTION: Manager, Securitisation ATTENTION: Manager, Securitisation
Services
CONFIRMATION - [NAME OF TRANSACTION]
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 Medallion Trust Series [________] (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") and Securitisation
Advisory Services Pty. Limited ABN 88 064 133 946 (the "MANAGER"). All
provisions contained in the Agreement govern this Confirmation except as
expressly modified below.
This Confirmation incorporates the 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.
22
5. FLOATING AMOUNTS
5.1 FLOATING AMOUNTS PAYABLE BY PARTY A
(SUBJECT TO PARAGRAPH 9 OF THIS
CONFIRMATION):
(A) Floating Rate Payer: Party A
Calculation Amount: For each Floating Rate Payer Payment Date, 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. The Calculation Amount for
the initial Calculation Period will be
USD1,000,000,000. The Calculation Amount will
not ever exceed USD1,000,000,000 for any
Calculation Period.
Floating Rate Payer Each Distribution Date during the period
Payment Dates: 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:
(a) references to "London Banking Days" in
section 7.1(a)(w)(xvii) and (xx) of the
Annex (June 2000 version) to the 2000 ISDA
Definitions will be replaced with
references to "Banking Days" as that
expression is defined in the Note
Conditions:
(b) references to "Telerate Page 3750" in
section 7.1(w)(xvii) of the Annex (June
2000 version) to the 2000 ISDA Definitions
will be replaced with references to "Rate
Page" as that expression is defined in the
Note Conditions; and
(c) if USD-LIBOR-BBA cannot be determined in
accordance with the 2000 ISDA Definitions
as varied above (including endeavouring to
determine a rate under the definition of
"USD-LIBOR-Reference banks" in section
7.1(w)(xx)), it will remain as the most
recently determined rate obtained from a
Rate Page for a preceding Calculation
Period.
Designated Maturity: [_____] months
Spread: [_________]
23
Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
(B) Class A-1 Unpaid Coupon If on any Distribution Date there is an A$
Amount: Class A-1 Unpaid Interest Amount, then on the
Floating Rate Payer Payment Date which falls on
that Distribution Date, Party A will pay to
Party B an amount calculated as follows:
LIBOR
$US UC = $A UC x ----- x US$ Exchange Rate
BBSW
where:
$US UC = the amount to be paid by Party A;
$A UC = the A$ Class A-1 Unpaid Interest
Payment in relation to that
Distribution 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):
(A) Floating Rate Payer: Party B
Calculation Amount: For each Floating Rate Payer Payment Date, the
A$ Equivalent 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 Each Distribution Date during the period
Payment Dates: 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: AUD-BBR-BBSW
Designated Maturity: [_____] months
Spread: [_________]
24
Floating Rate Day Count Actual/365 (Fixed)
Fraction:
Reset Dates The first day of each Calculation Period
Compounding: Inapplicable
(B) A$ Class A-1 Unpaid If on any Distribution Date there is an A$
Interest Amount: Class A-1 Unpaid Interest Amount, then on the
Floating Rate Payer Payment Date which falls on
that Distribution Date Party B will pay to
Party A the A$ Class A-1 Unpaid Interest
Payment in relation to that Distribution Date.
5.3 NO LIMIT TO RIGHTS: Nothing in paragraphs 5.1(b) or 5.2(b) is to be
construed as limiting Party A's or Party B's
rights in relation to a failure by the other to
pay the full amount of a Floating Amount
calculated in accordance with paragraphs 5.1(a)
or 5.2(a), as applicable, on a Floating Rate
Payer Payment Date (including any right to
designate an Early Termination Date in
accordance with Section 6(a) of the Agreement).
6. EXCHANGES
6.1 INITIAL EXCHANGE:
Initial Exchange Date: Closing Date
Party A Initial Exchange The A$ Equivalent of the Party B Initial
Amount: Exchange Amount, being A$[_____________]
Party B Initial Exchange The Initial Invested Amount of the Relevant
Amount: Notes on the Issue Date, being US$[______]
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. Section 2(a)(v) of the Agreement
will not apply to the payments of the Initial
Exchange Amounts.
6.2 INTERIM EXCHANGE:
Interim Exchange Date: Each Distribution Date (other than the Final
Exchange Date)
Party A Interim Exchange In respect of an Interim Exchange Date means
Amount: the US$ Equivalent of the A$ Class A-1
Principal Amount in relation to the
Distribution Date occurring on that Interim
Exchange Date
Party B Interim Exchange In respect of an Interim Exchange Date means
the
25
Amount: A$ Class A-1 Principal Amount in relation to
the Distribution Date occurring on that Interim
Exchange Date
6.3 FINAL EXCHANGE:
Final Exchange Date: Termination Date
Party A Final Exchange The US$ Equivalent of the A$ Class A-1
Amount: Principal Amount in relation to the
Distribution Date which is the Final Exchange
Date
Party B Final Exchange The A$ Class A-1 Principal Amount in relation
Amount: to the 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 The account notified in writing by Party A to
US$ 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 The account notified in writing by the
US$: Principal Paying Agent to Party A in accordance
with Part 5(2)(ii) of the Schedule to the
Agreement
Account for payments in The account notified in writing by Party B to
A$: 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 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 Distribution Date pursuant
to clause 10.5(b)(i) of the Series
Supplement;
26
(b) the A$ Class A-1 Interest Payment in
relation to that 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 Distribution
Date.
10. OFFICES: The Office of Party A for each Transaction 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
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 CONFIRMED AS AT THE DATE FIRST WRITTEN
ABOVE: ABOVE:
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED ABN SECURITISATION ADVISORY SERVICES PTY.
42 000 001 007 as trustee of the LIMITED ABN 88 064 133 946
Medallion Trust Series [___]
By: By:
---------------------------------- -----------------------------------
(Authorised Officer) (Authorised Officer)
Name: Name:
Title: Title:
27
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 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 Distribution Date in accordance with
clause 10.2(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 10.2(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.
"DETERMINATION TIME" in relation to a Distribution Date means on or about
11.00am Sydney time 1 Business Day prior to that Distribution Date.
"DISTRIBUTION DATE" has the same meaning as in the Series Supplement.
"NOTE CONDITIONS" means the terms and conditions of the Relevant Notes annexed
to the Relevant Notes.
"RELEVANT CALCULATION AMOUNT" means the Calculation Amount referred to in
paragraph 5.1 of this Confirmation.
"RELEVANT NOTES" means the Class A-1 Notes issued by the Trustee under the US
Dollar Note Trust Deed.
"RELEVANT NOTEHOLDERS" means the Class A-1 Noteholders as that term is defined
in the US Dollar 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 US Dollar 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 Party A, Homepath Pty Limited ABN 35 081 986 530,
Party B and the Manager.
"US DOLLAR NOTE TRUST DEED" means the US Dollar Note Trust Deed dated on or
about the date of this Confirmation between Party B, the Manager and the
Relevant Note Trustee.
Terms defined in the Note Conditions have the same meaning in this Confirmation
unless otherwise defined in this Confirmation.
28
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).
(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) of the
Schedule to this Agreement for that Valuation Date.
"RETURN AMOUNT" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(22)(d)(ii) of the
Schedule to this Agreement 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 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:
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 maturity 97%
of not more than one year
(F) Agency Securities having a remaining maturity 94%
of more than one year but not more than five
years
(G) Agency Securities having a remaining maturity 92%
of more than five years but not more than ten
years
(H) Agency Securities having a remaining maturity 89%
of more than ten years
(I) Cash 100%
(J) other Eligible Credit Support and Valuation
Percentage agreed by the parties and
acceptable to each Rating Agency
29
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 Party A, 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 the
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.
30
(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;
(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+
by S&P, and Party B must notify Party A in writing of this
appointment and of the relevant account for Paragraph
13(l); and
(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.
31
(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
Paragraph 7(i) of the Annex is amended, on line 3, by replacing
"two Business Days" with "three Business Days".
(iii) PARTY A'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 the State 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.
32
(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) PLEDGOR AND SECURED PARTY
In this Annex:
(a) "PLEDGOR" means only Party A; and
(b) "SECURED PARTY" means only Party B.
(viii) NON-AUSTRALIAN ASSETS
Party A must only Transfer Posted Collateral to the Secured Party
from its assets held outside Australia.
(ix) 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).
(x) 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".
33
Date:
TO: Perpetual Trustee Company Limited Securitisation Advisory Services
as trustee of the Series Trust Pty. Limited
Level 12 Level 0
000 Xxxx Xxxxxx 00 Xxxxxx Xxxxx
Xxxxxx XXX 0000 Xxxxxx XXX 0000
XXXXXXXXX XXXXXXXXX
ATTENTION: Manager, Securitisation ATTENTION: Manager, Securitisation
MEDALLION TRUST SERIES 2007-1G
CONFIRMATION - CLASS A-1 CURRENCY SWAP
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 Medallion Trust Series 2007-1G (the "SERIES
TRUST").
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of 13 March 2003, 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") and Securitisation
Advisory Services Pty Limited ABN 88 064 133 946 (the "MANAGER"). All provisions
contained in the Agreement govern this Confirmation except as expressly modified
below.
This Confirmation incorporates the 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: Friday 16, 2007
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
Offered 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):
(A) Floating Rate Payer: Party A
Calculation Amount: For each Floating Rate Payer Payment
Date, 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.
The Calculation Amount for the
initial Calculation Period will be
USD2,135,000,000. The Calculation
Amount will not ever exceed
USD2,135,000,000 for any Calculation
Period (after taking into account
any reductions in the aggregate
Invested Amount of the Relevant
Notes on that day).
Floating Rate Payer Payment Dates: Each Quarterly Distribution Date
during the period commencing on and
including 27 May 2007 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:
(a) references to "London Banking
Days" in section
7.1(a)(w)(xvii) and (xx) of the
Annex (June 2000 version) to
the 2000 ISDA Definitions will
be replaced with references to
"Banking Days" as that
expression is defined in the
Offered Note Conditions;
(b) references to "Telerate Page
3750" in section 7.1(w)(xvii)
of the Annex (June 2000
version) to the 2000 ISDA
Definitions will be replaced
with references to "Class A-1
Rate Page" as that expression
is defined in the Offered Note
Conditions; and
(c) if USD-LIBOR-BBA cannot be
determined in accordance with
the 2000 ISDA Definitions as
varied above (including
endeavouring to determine a
rate under the definition of
"USD-LIBOR-Reference banks" in
section 7.1(w)(xx)), it will
remain as the most recently
determined rate obtained from a
Rate Page for a preceding
Calculation Period.
Designated Maturity: three months
Spread: 0.04%
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period
Compounding: Inapplicable
(B) Class A-1 Unpaid Coupon Amount: If on any Quarterly Distribution
Date there is an A$ Class A-1 Unpaid
Floating Amount, then on the
Floating Rate Payer Payment Date
which falls on that Quarterly
Distribution Date, Party A will pay
to Party B an amount calculated as
follows:
LIBOR
$US UC = $A UC x ----- x US$ Exchange Rate
BBSW
where:
$US UC = the amount to be paid by
Party A;
$A UC = the A$ Class A-1 Unpaid
Floating Payment in
relation to that Quarterly
Distribution 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):
(A) Floating Rate Payer: Party B
Calculation Amount: For each Floating Rate Payer Payment
Date, the A$ Equivalent 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 27 May 2007 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
Spread: 0.1425%
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Reset Dates The first day of each Calculation
Period
Compounding: Inapplicable
(B) A$ Class A-1 Unpaid Floating Amount: If on any Quarterly Distribution
Date there is an A$ Class A-1 Unpaid
Floating Amount, then on the
Floating Rate Payer Payment Date
which falls on that Quarterly
Distribution Date Party B will pay
to Party A the A$ Class A-1 Unpaid
Floating Payment in relation to that
Quarterly Distribution Date.
5.3 NO LIMIT TO RIGHTS: Nothing in paragraphs 5.1(b) or
5.2(b) is to be construed as
limiting Party A's or Party B's
rights in relation to a failure by
the other to pay the full amount of
a Floating Amount calculated in
accordance with paragraphs 5.1(a) or
5.2(a), as applicable, on a Floating
Rate Payer Payment Date (including
any right to designate an Early
Termination Date in accordance with
Section 6(a) of the Agreement).
6. EXCHANGES
6.1 INITIAL EXCHANGE:
Initial Exchange Date: Closing Date
Party A Initial Exchange Amount: The A$ Equivalent of the Party B
Initial Exchange Amount, being A$
2,730,179,028.13
Party B Initial Exchange Amount: The Initial Invested Amount of the
Relevant Notes on the Issue Date,
being US$ 2,135,000,000
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. Section 2(a)(v) of
the Agreement will not apply to the
payments of the Initial Exchange
Amounts.
6.2 INTERIM EXCHANGE:
Interim Exchange Date: Each Quarterly Distribution Date
(other than the Final Exchange Date)
Party A Interim Exchange Amount: In respect of an Interim Exchange
Date means the US$ Equivalent of the
A$ Class A-1 Principal Amount in
relation to the Quarterly
Distribution Date occurring on that
Interim Exchange Date
Party B Interim Exchange Amount: In respect of an Interim Exchange
Date means the A$ Class A-1
Principal Amount in relation to the
Quarterly Distribution Date
occurring on that Interim Exchange
Date
6.3 FINAL EXCHANGE:
Final Exchange Date: Termination Date
Party A Final Exchange Amount: The US$ Equivalent 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: 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: 0.7820
8. ACCOUNT DETAILS:
8.1 PAYMENTS TO PARTY A
Account for payments in US$ The account notified in writing by
Party 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 Quarterly
Distribution Date the Manager must
notify Party A 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 10.7(a)(i) of the Series
Supplement;
(b) the A$ Class A-1 Floating
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 Offered Note
Conditions; and
(d) the A$ Class A-1 Unpaid
Floating Payment (if any) in
relation to that Quarterly
Distribution Date.
10. OFFICES: The Office of Party A for each
Transaction is Sydney.
The Office of Party B for each
Transaction is Sydney.
11. EARLY TERMINATION: If an Early Termination Date is
designated in respect of the
Transaction:
(a) an amount with respect to that
Early Termination Date and the
Transaction must be calculated
in accordance with Section
6(e)(i)(3) or Section 6(e)(ii),
as applicable, independently of
any other Transactions (as
defined in the Agreement)
(including any other Currency
Swaps) and notwithstanding that
there are other Terminated
Transactions in relation to
that Early Termination Date;
and
(b) that amount (and any interest
on it) must be paid in
accordance with Section
6(d)(ii) in the Termination
Currency specified in this
Confirmation independently of
amounts due by or to the payer
in respect of other Terminated
Transactions (and without
set-off against amounts due to
the payer under the Agreement
or otherwise).
12. TERMINATION CURRENCY: US Dollars
13. BUSINESS DAY: London, New York and Sydney
14. REPLACEMENT DEFINITIONS: The definitions of "Prescribed
Ratings" and "Prescribed Rating
Period" in the Schedule to the
Agreement are replaced in respect of
this Transaction by the
corresponding definitions set out in
the attached Definitions Schedule.
15. KNOW YOUR CUSTOMER Subject to any confidentiality,
privacy or general trust law
obligations owed by Perpetual
Trustee Company Limited to
Noteholders and any applicable
confidentiality or privacy laws,
each party ("INFORMATION PROVIDER")
agrees to provide any information
and documents reasonably required by
another party for that other party
to comply with any applicable
anti-money laundering or
counter-terrorism
financing laws including, without
limitation, any laws imposing "know
your customer" or other
identification checks or procedures
on a party, but only to the extent
that such information is in the
possession of, or otherwise readily
available to, the Information
Provider. Any party may decline to
perform any obligation under the
Transaction Documents to the extent
that it forms the view, in its
reasonable opinion, that
notwithstanding that it has taken
all reasonable steps to comply with
such anti-money laundering or
counter-terrorism financing laws, it
is required to decline to perform
those obligations under any such
laws.
16. COMPLIANCE WITH REGULATION AB The Currency Swap Provider
acknowledges and agrees that to the
extent it agrees with the Manager
that the Currency Swap Provider is
"participating in the servicing
function" in relation to the Series
Trust within the meaning of Item
1122 of Regulation AB, clauses
16.31(b) and (d) of the Series
Supplement will apply to this
Agreement as if references to "the
Servicer" in those clauses were
references to the Currency Swap
Provider and the definition of
"Subcontractor" in clause 1.1 of the
Series Supplement will be construed
accordingly.
17. AMENDMENTS TO THE SCHEDULE The Schedule to the Agreement is
amended with respect to this
Transaction as set out in the
attached Amendments Schedule.
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
SIGNED for and on behalf of
COMMONWEALTH BANK
OF AUSTRALIA ABN 48 123 123 124
By:
----------------------------------
(Authorised Officer)
Name:
Title:
CONFIRMED AS AT THE DATE FIRST CONFIRMED AS AT THE DATE FIRST WRITTEN
WRITTEN ABOVE: ABOVE:
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE SECURITISATION ADVISORY SERVICES PTY.
COMPANY LIMITED ABN 42 000 001 007 LIMITED ABN 88 064 133 946
as trustee of the Medallion Trust
Series 2007-1G
By: By:
---------------------------------- -------------------------------------
(Authorised Officer ) (Authorised Officer )
Name: Name:
Title: 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 FLOATING 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 Floating Amounts on that Quarterly
Distribution Date in accordance with clause 10.3(i)(i) of the Series Supplement
determined on the basis that all amounts allocated towards payment of A$ Class
A-1 Floating Amounts and A$ Class A-1 Unpaid Floating Amounts pursuant to clause
10.3(i)(i) of the Series Supplement are allocated first towards payment of A$
Class A-1 Floating Amounts and then, once the A$ Class A-1 Floating Amounts are
paid in full, towards payment of A$ Class A-1 Unpaid Floating Amounts.
"AUD-BBR-BBSW" in relation to an Accrual Period means the rate appearing at
approximately 10.00 am Sydney time on the Rate Set Date for that Accrual Period
on the Reuters Screen page "BBSW" as being the average of the mean buying and
selling rates appearing on that page for a bill of exchange having a tenor of
three months. If:
(a) on the Rate Set Date fewer than 4 banks are quoted on the Reuters Screen
page "BBSW"; or
(b) for any other reason the rate for that Rate Set Date cannot be determined
in accordance with the foregoing procedures,
then "AUD-BBR-BBSW" means such rate as is specified by the Manager having regard
to comparable indices then available.
"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.
"OFFERED NOTE CONDITIONS" means the terms and conditions of the Relevant Notes
annexed to the Relevant Notes.
"OFFERED NOTE TRUST DEED" means the Offered Note Trust Deed dated on or about
the date of this Confirmation between Party B, the Manager and the Relevant Note
Trustee.
"PRESCRIBED RATING PERIOD" means in relation to the credit ratings assigned by
the Rating Agencies to Party A:
(a) a period of 30 Business Days from the date when a credit rating assigned by
a Rating Agency to Party A is less than the relevant Prescribed Rating but
greater than or equal to:
(i) by S&P, a short term credit rating of A-1;
(ii) by Fitch, a short term credit rating of F2 or a long term credit
rating of BBB+; and
(iii) by Xxxxx'x, a short term credit rating of P-1 and a long term credit
rating of A3; or
(b) a period of 5 Business Days from the date when a credit rating assigned by
a Rating Agency to Party A is less than:
(i) by S&P, a short term credit rating of A-1;
(ii) by Fitch, a short term credit rating of F2 or a long term credit
rating of BBB+; and
(iii) by Xxxxx'x, a short term credit rating of P-1 and a long term credit
rating of A3;
"PRESCRIBED RATINGS" means:
(a) by S&P, a short term credit rating of A-1+;
(b) by Fitch, a short term credit rating of F1 and a long term credit rating of
A+; and
(c) by Xxxxx'x, a short term credit rating of P-1 and a long term credit rating
of A2.
"QUARTERLY DISTRIBUTION DATE" has the same meaning as in the Series Supplement.
"RELEVANT CALCULATION AMOUNT" means the Calculation Amount referred to in
paragraph 5.1 of this Confirmation.
"RELEVANT NOTES" means the Class A-1 Notes issued by the Trustee under the
Offered Note Trust Deed.
"RELEVANT NOTEHOLDERS" means the Class A-1 Noteholders as that term is defined
in the Offered Note Trust Deed.
"RELEVANT NOTE TRUSTEE" means The Bank of New York or, if The Bank of New York
is removed or retires as the trustee for the Offered Noteholders, any person
appointed from time to time in its place in accordance with the Offered 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 15
February 2007 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 15 February
2007 between Party A, Homepath Pty Limited ABN 35 081 986 530, Party B and the
Manager.
Terms defined in the Offered Note Conditions have the same meaning in this
Confirmation unless otherwise defined in this Confirmation.
AMENDMENTS SCHEDULE
Part 5(22)(a) of the Schedule to the Agreement is deleted and replaced with the
following:
"(a) (DOWNGRADE): If, as a result of the reduction or withdrawal of the credit
rating of Party A, Party A is assigned a credit rating by a Rating Agency
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 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 credit rating by S&P is greater than or
equal to A-1 or the long term credit rating by S&P 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) of this Schedule;
(ii) enter into an agreement novating Party A's rights and obligations
under this Agreement and each Transaction to a replacement
counterparty acceptable to the Manager 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 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,
provided that Party A may not elect to lodge the amounts under paragraph
(i) above if and while it ceases to have a short term credit rating of at
least F2 by Fitch or a long term credit rating of at least BBB+ by Fitch.
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)."
