Exhibit 10.5
Final Draft: 27.03.01
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Securitisation Advisory Services Pty Limited
Manager
Citibank N.A., New York Branch
Citibank and Party A
Perpetual Trustee Company Limited
Party B
Commonwealth Bank of Australia
CBA and Standby Swap Provider
Series 2001-1G Medallion Trust
ISDA Master Agreement
(Currency Swap Agreement)
Xxxxxx 00-00 Xx.0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
XX Xxx X0 Xxxxxxxxx Xxxxxx Xxxxxx XXX 0000 DX 000 Xxxxxx
Tel + 00 0 0000 0000 Fax + 00 0 0000 0000
Our ref - 215/3323/1619626 Contact - Xxxxx Xxxxx/Xxxx Chick
Sydney o Melbourne o Brisbane o Perth o Canberra o Darwin
Liability limited by the Solicitors' Limitation of Liability Scheme approved
under the Professional Standards Act 1994 (NSW)
Schedule
to the
MASTER AGREEMENT
dated as of 2001 between
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
("Manager")
and
Citibank N.A., New York Branch
("Citibank " and "Party A")
and
Perpetual Trustee Company Limited
ABN 42 000 001 007
in its several capacities as trustee of various Series Trusts from time
to time established under the Master Trust Deed and various Series
Supplements
("Party B")
and
Commonwealth Bank of Australia
ABN 48 123 123 124
("CBA" and "Standby Swap Provider")
Part 1. Termination Provisions.
In this Agreement:
(a) "Specified Entity" does not apply in relation to Party A or Party B.
(b) The definition of "Specified Transaction" is not applicable.
(c) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(iii)
Section 5(a)(vi) Section 5(a)(iv) Section 5(b)(iv)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iv)
Section 5(a)(iv) Section 5(a)(vii)
(iii) Section 5(b)(ii) will not apply to Party A as the Affected
Party (subject to Part 5(6)(b) of this Schedule) and Section
5(b)(iii) will not apply to Party A as the Burdened Party.
(d) The "Automatic Early Termination" provisions in Section 6(a) will not
apply to Party A or Party B.
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(e) Payments on Early Termination. For the purposes of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(f) "Termination Currency" means US$ provided that if an amount due in respect
of an Early Termination Date will be payable by Party B to Party A the
Termination Currency for the purpose of calculating and paying that amount
is Australian Dollars.
(g) "Additional Termination Event" applies. The following is an Additional
Termination Event in relation to which both Party A and Party B are
Affected Parties:
"An Event of Default (as defined in the Security Trust Deed) occurs and
the Security Trustee has declared, in accordance with the Security Trust
Deed, the Relevant Notes immediately due and payable."
For the purposes of calculating a payment due under Sections 6(d) and (e)
when an Early Termination Date is designated under Section 6(b) as a
result of such Additional Termination Event, Party B will be the only
Affected Party.
Part 2. Tax Representations
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant government revenue authority, of any Relevant Jurisdiction to
make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to any other party under this Agreement. In
making this representation, it may rely on:
(i) the accuracy of any representation made by that other party pursuant
to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of
any document provided by that other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of that other party contained in
Section 4(d) of this Agreement,
PROVIDED THAT it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice
to its legal or commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement:
(i) Party B and CBA as Standby Swap Provider and (on and from the
Novation Date) as Party A, each makes the following representation:
It is an Australian resident and does not derive the payments
under this Agreement in part or whole in carrying on a
business in a country outside Australia at or through a
permanent establishment of itself in that country.
(ii) Citibank as Party A represents that it is an "eligible swap
participant" as defined in Part 35 of the General Regulations of,
and for the purposes of, the U.S. Commodity
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Exchange Act.
Part 3. Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver to each other party the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
Party required to deliver document Form/Document/Certificate Date by which to be delivered
Party A, Party B, and the Standby Any document or certificate reasonably On the earlier of (a) learning
Swap Provider required or reasonably requested by a that such document or
party in connection with its certificate is required and (b)
obligations to make a payment under as soon as reasonably
this Agreement which would enable that practicable following a request
party to make the payment free from by a party.
any deduction or withholding for or on
account of Tax or which would reduce
the rate at which deduction or
withholding for or on account of Tax
is applied to that payment as
requested by Party A with respect to
any payments received by Party B.
(b) Other documents to be delivered are:
Party required to deliver Form/Document/Certificate Date by which to be delivered
document
Party A, Party B, the Standby A certificate specifying the names, On the execution of this
Swap Provider and the Manager title and specimen signatures of the Agreement and each
persons authorised to execute this Confirmation unless that
Agreement and each Confirmation or certificate has already been
other communication in writing made supplied and remains true and
pursuant to this Agreement on its in effect and when the
behalf. certificate is updated.
Party A, Party B, the Standby A legal opinion as to the validity and Prior to the Closing Date.
Swap Provider and the Manager enforceability of its obligations
under this Agreement in form and
substance (and issued by legal
counsel) reasonably acceptable to each
other party.
Party B A certified copy to Party A of each Not less than 5 Business Days
Credit Support Document specified in (or such lesser period as
respect of Party B and (without Party A agrees to) before the
limiting any obligation Party B may Trade Date of the first
have under the terms of that Credit occurring Transaction and in
Support Document to notify Party A of the case of any amending
amendments thereto to Party A of any) documents entered into
a certified copy subsequent to that date,
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document that amends promptly after each amending
in any way the terms of that Credit document (if any) has been
Support Document. entered into.
Other than the legal opinions, any Credit Support Document or any document
amending a Credit Support Document (but including any certifications in relation
to such documents), all documents delivered under this Part 3(b) are covered by
the Section 3(d) representation. For the purposes of this Part 3(b), a copy of a
document is taken to be certified if a director or secretary of the party
providing the document, or a person authorised to execute this Agreement or a
Confirmation on behalf of that party or a solicitor acting for that party has
certified it to be a true and complete copy of the document of which it purports
to be a copy.
Part 4 Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this Agreement:
Address for notices or communications to Citibank as Party A:
Address: 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000
Attention: Director, Derivatives Operations
[Telex No:]
[Answerback:]
Facsimile No.: [ ]
Telephone No.: [ ]
Additionally, a copy of all notices as well as any changes to
counterparty's address, telephone number or facsimile number should be
sent to:
Address: Capital Markets Legal Department,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
Attention: Head of Department
[Telex No:]
[Answerback:]
Facsimile No.: [ ]
Telephone No.: [ ]
Address for notices or communications to Party B:
Address: Perpetual Trustee Company Limited
Xxxxx 0
00 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation Services
Facsimile No.: 612 9221 7870
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Additionally, a copy of all notices as well as any changes to
counterparty's address, telephone number or facsimile number should be
sent to:
Address: Securitisation Advisory Services Pty. Limited
Xxxxx 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
Address for notices or communications to CBA as Standby Swap Provider and
(on and from the Novation Date) as Party A:
Address: Commonwealth Bank of Australia
Xxxxx 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
Citibank as Party A appoints as its Process Agent: [Citibank
Limited][Xxxxxxx Xxxxx Xxxxxx Australia Limited] of [ ].
Party B appoints as its Process Agent: not applicable.
CBA as Standby Swap Provider and (on and from the Novation Date) as Party
A appoints as its Process Agent: not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent.
(i) The Calculation Agent is:
(A) in respect of all notices, determinations and calculations in
respect of amounts denominated in US$, the Agent Bank; and
(B) in respect of all other notices, determinations and
calculations, the Manager.
(ii) All determinations and calculations by the Calculation Agent will:
(A) be made in good faith and in the exercise of its commercial
reasonable judgment; and
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(B) be determined, where applicable, on the basis of then prevailing
market rates or prices.
All such determinations and calculations will be binding on Party A and
Party B in the absence of manifest error. The Manager (or, if the Manager
fails to do so and Party A notifies Party B, Party B) covenants in favour
of Party A to use reasonable endeavours (including, without limitation,
taking such action as is reasonably necessary to promptly enforce the
obligations of the Agent Bank under the Agency Agreement) to ensure that
the Agent Bank performs its obligations as Calculation Agent under this
Agreement.
(f) Credit Support Document. Details of any Credit Support Document:
(i) In relation to Citibank as Party A: Not applicable.
(ii) In relation to Party B: The Security Trust Deed.
(iii) In relation to CBA as (on and from the Novation Date) Party A: Not
applicable.
(g) Credit Support Provider.
(i) In relation to Citibank as Party A: None.
(ii) In relation to Party B: None.
(iii) In relation to CBA as (on and from the Novation Date) Party A: None.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws in force in New South Wales, except the Credit
Support Annex, which will be governed by and construed in accordance with
the laws in force in the State of New York as provided in Paragraph
13(m)(iv) of the Credit Support Annex. Section 13(b)(i) is deleted and
replaced by the following:
"(i) submits to the non-exclusive jurisdiction of the courts of New
South Wales and courts of appeal from them; and".
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement
will apply in respect of all Transactions.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement. However, for the purposes of Section 3(c) Party B is deemed not
to have any Affiliates.
Part 5 Other Provisions
(1) Payments: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party (if any)".
(b) In Section 2(a)(ii) the first sentence is deleted and replaced with
the following sentence:
"Unless specified otherwise in this Agreement, payments under this
Agreement by:
(i) Party A, will be made by 10.00 am (New York time); and
(ii) Party B, will be made by 4.00pm (Sydney time),
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on the due date for value on that date in the place of the
account specified in the relevant Confirmation or otherwise
pursuant to this Agreement, in freely transferable funds, free
of any set-off, counterclaim, deduction or withholding (except
as expressly provided in this Agreement) and in the manner
customary for payment in the required currency.".
(c) Insert a new paragraph (iv) in Section 2(a) immediately after
Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply
to a payment due to be made to a party if it has satisfied all
its payment obligations under Section 2(a)(i) of this
Agreement and has no future payment obligations, whether
absolute or contingent under Section 2(a)(i)."
(d) Add the following new sentence to Section 2(b):
"Each new account so designated shall be in the same tax
jurisdiction as the original account."
(e) Amend Section 2(d) as follows:
(i) Delete the word "if" at the beginning of Section 2(d)(i)(4)
and insert the following words instead:
"if and only if X is Party A and".
(ii) In Section 2(d)(ii) insert the words "(if and only if Y is
Party A)" after the word "then" at the beginning of the last
paragraph.
Without prejudice to the above amendments, it is agreed that Party
B:
(iii) is not obliged to pay:
(1) any additional amount to Party A under Section
2(d)(i)(4); or
(2) any amount to Party A under Section 2(d)(ii); and
(iv) will not receive payments under this Agreement or any
Transaction from which deductions or withholdings have been
made.
(2) Party B's Payment Instructions: Party B irrevocably authorises and
instructs Party A to make payment of:
(i) the Initial Exchange Amount due from Party A to Party B in respect
of the Initial Exchange Date by paying that amount direct to the
account notified in writing by Party B to Party A for that purpose;
and
(ii) any other amount due from Party A to Party B under this Agreement by
paying that amount direct to the Principal Paying Agent to the
account outside Australia notified in writing by the Principal
Paying Agent to Party A for that purpose.
(3) Party A's Payment Instructions: Party A irrevocably authorises and
instructs Party B to make payment of:
(i) any amount denominated in A$ due from Party B to the account in
Sydney notified in writing by Party A to Party B from time to time;
and
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(ii) any amount denominated in US$ due from Party B to the account
notified in writing by Party A to Party B from time to time.
(4) Representations: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the words
"creditors' rights generally" the following:
"(including in the case of a party being an ADI (as that term is
defined in the Reserve Bank Act, 1959 (Cth)) and section 13A(3) of
the Banking Act, 1959 (Cth)).";
(b) Relationship Between Parties. Each party will be deemed to represent
to the other parties on the date on which it enters into a
Transaction that (absent a written agreement between the parties
that expressly imposes affirmative obligations to the contrary for
that Transaction):-
(i) Non-Reliance. It is acting for its own account (in the case of
Party B, as trustee of the Series Trust), and it has made its
own independent decisions to enter into that Transaction and
as to whether that Transaction is appropriate or proper for it
based upon its own judgment (and in the case of Party B, also
on the judgment of the Manager) and upon advice from such
advisers as it has deemed necessary. It is not relying on any
communication (written or oral) of any other party as
investment advice or as a recommendation to enter into that
Transaction; it being understood that information and
explanations related to the terms and conditions of a
Transaction will not be considered investment advice or a
recommendation to enter into that Transaction. No
communication (written or oral) received from any other party
will be deemed to be an assurance or guarantee as to the
expected results of that Transaction.
(ii) Evaluation and Understanding. It is capable of evaluating and
understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable
of assuming, and assumes, the risks of that Transaction.
(iii) Status of Parties. No other party is acting as a fiduciary or
an adviser to it in respect of that Transaction.
(c) insert the following new paragraphs (g), (h) and (i) in Section 3
immediately after Section 3(f):
(g) Series Trust. By Party B, in respect of Party B only:
(i) Trust Validly Created. The Series Trust has been validly
created and is in existence at the Trade Date of the
first occurring Transaction.
(ii) Sole Trustee. It has been validly appointed as trustee
of the Series Trust and is presently the sole trustee of
the Series Trust.
(iii) No Proceedings to Remove. No notice has been given to it
and to its knowledge no resolution has been passed, or
direction or notice has been given, removing it as
trustee of the
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Series Trust.
(iv) Power. It has power under the Master Trust Deed to:
(A) enter into and perform its obligations under this
Agreement and each Credit Support Document (in
relation to Party B in its capacity as trustee of
the Series Trust); and
(B) mortgage or charge the Assets of the Series Trust
in the manner provided in the Credit Support
Document (in relation to Party B),
and its entry into this Agreement and each Credit
Support Document (in relation to Party B) is in the
interests of the beneficiaries of the Series Trust and
does not constitute a breach of trust.
(v) Good Title. It is the lawful owner of the Assets of the
Series Trust and, subject only to the Credit Support
Document in relation to Party B and any Security
Interest permitted under the Credit Support Document in
relation to Party B, those Assets are free of all other
Security Interests (except for Party B's right of
indemnity out of the Assets of the Series Trust).
(vi) Eligible Swap Participant. The Series Trust was not
formed for the specific purpose of constituting an
"eligible swap participant" (as that term is used in
Part 35 of the General Regulations under the Commodity
Exchange Act).
(vii) Total Assets. As at close of business on the Trade Date
of the first occurring Transaction, following the issue
of the Relevant Notes and provided that the aggregate
Invested Amount of the Relevant Notes upon issue exceeds
USD[ ] the Series Trust will have total assets exceeding
USD[ ].
(h) Non-assignment. It has not assigned (whether
absolutely, in equity, by way of security or
otherwise), declared any trust over or given any
charge over any of its rights under this Agreement
or any Transaction except, in the case of Party B,
for the Security Interests created under each
Credit Support Document in relation to Party B.
(i) Contracting as principal. Each existing
Transaction has been entered into by that party as
principal and not otherwise."
(5) Event of Default: In Section 5(a):
(a) Failure to Pay or Deliver: delete paragraph (i) and replace it with
the following:
""(i) Failure to Pay or Deliver. Failure by the party to make, when
due, any payment under this Agreement or delivery under
Section 2(a)(i) or 2(e) required to be made by it if such
failure is not remedied at or before:
(1) where the failure is by Party B, 10.00am on the tenth
day after notice of such failure is given to Party B;"
and
9
(2) where the failure is by Party A, 10.00am on the tenth
day after notice of such failure is given to Party A;";
(b) Consequential amendments:
(i) delete "or" at the end of Section 5(a)(vii); and
(ii) replace the full stop at the end of Section 5(a)(viii) with ";
or"; and
(c) Downgrade Obligations: insert the following new paragraph (ix):
"(ix) Downgrade Obligations. In respect of Party A only, Party A
fails to comply with Part 5(22) of the Schedule if such
failure is not remedied on or before the tenth Business Day
(or such later day as Party B and the Manager may agree and
which the Rating Agencies confirm in writing will not result
in a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Relevant Notes) after
notice of such failure is given to Party A."
(6) Termination Events:
(a) Illegality: In respect of each Transaction, the parties agree that
the imposition by any Governmental Agency of an Australian
jurisdiction of any exchange controls, restrictions or prohibitions
which would otherwise constitute an Illegality for the purposes of
Sections 5(b)(i) or 5(c) will not be an event which constitutes an
Illegality for the purposes of those Sections so that, following the
occurrence of that event:
(i) neither Party A nor Party B will be entitled to designate an
Early Termination Date in respect of that Transaction as a
result of that event occurring;
(ii) payment by Party B in accordance with Part 5(3) of the
Schedule will continue to constitute proper performance of its
payment obligations in respect of that Transaction; and
(iii) Party A's obligations in respect of that Transaction or this
Agreement will, to the extent permitted by law, be unaffected
by the occurrence of that event.
(b) Party A's limited rights in relation to Tax Event:
(i) Notwithstanding Part 1(c)(iii) of the Schedule, but subject to
Section 6(b)(ii), Party A may designate an Early Termination
Date if it is an Affected Party following a Tax Event but only
if the Relevant Note Trustee has notified the parties in
writing that it is satisfied that all amounts owing to the
Relevant Noteholders will be paid in full on the date on which
the Relevant Notes are to be redeemed.
(ii) If a Tax Event occurs where Party A is the Affected Party and
Party A is unable to transfer all its rights and obligations
under this Agreement and each Transaction to an Affiliate
pursuant to Section 6(b)(ii), Party A may, at its cost,
transfer all its rights, powers and privileges and all its
unperformed and future obligations under this Agreement and
each Transaction to any person provided that:
(A) each Rating Agency has confirmed in writing that the
transfer
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will not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them
to the Relevant Notes; and
(B) that person has a long term credit rating assigned by
each Rating Agency of at least the long term credit
rating assigned by that Rating Agency to Citibank. as at
the date of this Agreement or, otherwise, the Standby
Swap Provider provides its written consent to the
transfer.
(7) Termination:
(a) Termination by Trustee: Party B must not designate an Early
Termination Date without the prior written consent of the Relevant
Note Trustee.
(b) Termination by the Relevant Note Trustee: If following an Event of
Default or Termination Event, Party B does not exercise its right to
terminate a Transaction, then the Relevant Note Trustee may
designate an Early Termination Date in relation to that Transaction
as if it were a party to this Agreement.
(c) Termination Payments by Party B: Notwithstanding Section 6(d)(ii),
any amount calculated as being due by Party B in respect of any
Early Termination Date under Section 6(e) will be payable on the
Monthly Distribution Date immediately following the date that such
amount would otherwise be payable under Section 6(d)(ii) (or will be
payable on that date if that date is a Monthly Distribution Date)
except to the extent that such amount may be satisfied from an
earlier distribution under the Security Trust Deed or the payment of
an upfront premium in respect of a Replacement Currency Swap in
accordance with Part 5(17)(b).
(d) Transfers to avoid Termination: Section 6(b)(ii) is amended as
follows:
(i) The following sentence is added at the end of the second
paragraph:
"However, if Party A is that other party it must, if so
requested by the Manager, use reasonable efforts (which will
not require Party A to incur a loss, excluding immaterial,
incidental expenses) to make such a transfer to an Affiliate
provided the Rating Agencies have given prior written
confirmation to the Manager that such a transfer will not
result in a reduction, qualification or withdrawal of the
credit ratings then assigned by them to the Relevant Notes."
(ii) The third paragraph is deleted and replaced with the
following:
"Any such transfer by a party under this Section 6(b)(ii) will
be subject to and conditional upon the prior written consent
of the other party, which consent will not be withheld:
(1) where the other party is Party A, if Party A's policies
in effect at such time would permit it to enter into
transactions with the transferee on the terms proposed;
or
(2) where the other party is Party B, if the Rating Agencies
have confirmed in writing that such transfer will not
result in a reduction, qualification or withdrawal of
the credit ratings then assigned by them to the Relevant
Notes.
(e) Notice of Event of Default. For the purposes of Section 6(a)
and (b):
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(i) Party A may only provide a notice specifying an Event of
Default to Party B as the Defaulting Party and may only
designate an Early Termination Date following a
Termination Event where Party A or Party B (or both) is
the Affected Party or the Burdened Party; and
(ii) the Standby Swap Provider may not issue a notice
specifying an Event of Default or designating an Early
Termination Date (except as Party A on or after the
Novation Date).
(8) No Set-Off: Section 6(e) is amended by deleting the last sentence of the
first paragraph.
(9) Transfer: Section 7 is replaced with:
"7. Essential term: Transfer
(a) Neither the interests nor the obligations of any party in or under
this Agreement (including any Transaction) are capable of being
assigned or transferred (whether at law, in equity or otherwise),
charged or the subject of any trust (other than the Series Trust or
the trusts created pursuant to the Credit Support Document in
relation to Party B) or other fiduciary obligation. Any action by a
party which purports to do any of these things is void.
(b) Nothing in this Section 7:
(i) restricts a transfer by a party after the other parties have
agreed to the variation of this Agreement in accordance with
Part 5(20) to the extent necessary to permit such transfer;
(ii) restricts a novation of the interests and obligations of a
party in or under this Agreement (including any Transaction)
for the purposes of giving effect to a transfer under Section
6(b)(ii);
(iii) restricts a transfer by a party of all or any part of its
interest in any amount payable to it from a Defaulting Party
under Section 6(e);
(iv) restricts a transfer by Party B or the Manager to a Substitute
Trustee or Substitute Manager, respectively, in accordance
with the Master Trust Deed;
(v) restricts Party B from granting security over a Transaction or
this Agreement pursuant to any Credit Support Document in
relation to Party B; or
(vi) limits Parts 5(6)(b)(ii), 5(22), 5(23), 5(24) or 5(25).
(c) Each party acknowledges that the other party enters into this
Agreement and each Transaction on the basis that this Section 7 must
be strictly observed and is essential to the terms of this Agreement
(including each Transaction)."
(10) Facsimile Transmission: In Section 12:
(a) delete Section 12(a)(ii); and
(b) replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission:
(A) in the case of any notice or other communication
pursuant to
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Parts 5(23), (24) or (25), on the date that
transmission is received by a responsible employee
of the recipient in legible form (it being agreed
that the burden of proving receipt will be on the
sender and will not be met by a transmission
report generated by the sender's facsimile
machine); or
(B) otherwise, on the date a transmission report is
produced by the machine from which the facsimile
was sent which indicates that the facsimile was
sent in its entirety to the facsimile number of
the recipient notified for the purpose of this
Section unless the recipient notifies the sender
within one Business Day of the facsimile being
sent that the facsimile was not received in its
entirety in legible form;".
(11) Definitions
In this Agreement, unless the contrary intention appears:
(a) Master Trust Deed: subject to Part 5(11)(h), unless defined in this
Agreement words and phrases defined in the Master Trust Deed and the
Series Supplement have the same meaning in this Agreement. Subject
to Part 5(11)(h), where there is any inconsistency in a definition
between this Agreement (on the one hand) and the Master Trust Deed
or the Series Supplement (on the other hand), this Agreement
prevails. Where there is any inconsistency in a definition between
the Master Trust Deed (on the one hand) and the Series Supplement
(on the other hand), the Series Supplement prevails over the Master
Trust Deed in respect of the Series Trust. Where words or phrases
used but not defined in this Agreement are defined in the Master
Trust Deed in relation to a Series Trust (as defined in the Master
Trust Deed) such words or phrases are to be construed in this
Agreement, where necessary, as being used only in relation to the
Series Trust;
(b) Trustee Capacity:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the relevant Series Trust only, and in
no other capacity; and
(ii) a reference to the undertaking, assets, business or money of
Party B is a reference to the undertaking, assets, business or
money of Party B in the capacity referred to in paragraph
11(b)(i) only;
(c) Definitions: in Section 14:
(i) replace the definitions of "Affected Transactions" and "Local
Business Day" with the following:
""Affected Transactions" means, with respect to a Termination
Event, all Transactions."
""Local Business Day" has the same meaning as "Business Day"."
(ii) insert the following new definitions:
"BBSW" or "AUD-BBR-BBSW" in relation to a Calculation Period
means the rate appearing at approximately 10.00 am Sydney time
on the Reset Date for that Calculation Period on the Reuters
Screen page "BBSW" as being the average of the mean buying and
selling rates appearing on that page for a xxxx of exchange
having a tenor of three
13
months . If:
(a) on that Reset Date fewer than 4 banks are quoted on the
Reuters Screen page "BBSW"; or
(b) for any other reason the rate for that day cannot be
determined in accordance with the foregoing procedures,
then "BBSW" or "AUD-BBR-BBSW" means such rate as is specified
by the Calculation Agent having regard to comparable indices
then available.
"Credit Support Annex" means the Credit Support Annex annexed
to this Agreement.
"Distribution Date" has the meaning given in Section 16.
"Inconvertibility Event" means any event beyond the control of
CBA that makes it impossible for CBA to convert to U.S.
Dollars through customary legal channels an amount of
Australian Dollars sufficient to fulfil CBA's obligations
under this Agreement and each Transaction.
"Joint Ratings" means the highest possible jointly supported
short term credit rating or long term credit rating, as
applicable, that can be determined in relation to Party A and
the Standby Swap Provider by Xxxxx'x, S&P and Fitch in
accordance with Xxxxx'x, S&P's and Fitch's respective
approaches to jointly supported obligations provided that if
either Party A or the Standby Swap Provider has a long term
credit rating of less than BBB from S&P the Joint Ratings from
S&P will be the credit ratings of the other party.
"Master Trust Deed" means the Master Trust Deed dated 8
October 1997 between Party B and the Manager, as amended from
time to time.
"Citibank/CBA ISDA Master Agreement" means the ISDA Master
Agreement dated [ ] between Citibank and CBA, as amended
from time to time.
"Novation Date" means the date upon which the obligations of
Citibank as Party A under this Agreement and each Transaction
are novated to the Standby Swap Provider pursuant to Part
5(24)(c).
"Prescribed Rating Period" means in relation to the Joint
Ratings determined by the Rating Agencies:
(a) a period of 30 Business Days from the date of
determination of the relevant credit rating where any
Joint Rating immediately after that determination is
less than the relevant Prescribed Rating but greater
than or equal to a short term credit rating of A-1 by
S&P and long term credit ratings of A- by S&P, A3 by
Xxxxx'x and A- by Fitch, as the case may be; and
(b) a period of 5 Business Days from the date of
determination of the relevant credit rating where any
Joint Rating immediately after that determination is
less than a short term credit rating of A-1 by S&P or
less than a long term credit rating of A- by
14
S&P, A3 by Xxxxx'x and A- by Fitch.
"Prescribed Ratings" means a short term credit rating of
A-1+ by S&P or a long term credit rating of AA- by S&P
and long term credit ratings of AA- by Fitch and A2 by
Xxxxx'x.
"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
"Relevant Noteholders" has the meaning given in Section
"Scheduled Maturity Date" has the meaning given in
"Security Trust Deed" has the meaning given in Section
"Series Supplement" has the meaning given in Section
"Series Trust" has the meaning given in Section 16.
(d) Interpretation:
(i) references to time are references to Sydney time;
(ii) a reference to "wilful default" in relation to Party B
means, subject to Part 5(11)(d)(iii) of this Schedule,
any wilful failure by Party B to comply with, or wilful
breach by Party B of, any of its obligations under any
Transaction Document, other than a failure or breach
which:
A. (1) arises as a result of a breach of a Transaction
Document by a person other than:
(a) Party B; or
(b) any other person referred to in Part
5(11)(d)(iii) of this Schedule; and
(2) the performance of the action (the non-
performance of which gave rise to such
breach) is a precondition to Party B
performing the said obligation;
B. is in accordance with a lawful court order or direction
or required by law; or
C. is in accordance with any proper instruction or
direction of the Investors given at a meeting convened
under the Master Trust Deed;
(iii) a reference to the "fraud", "negligence" or "wilful
default" of Party B means the fraud, negligence or
wilful default of Party B and of its officers,
employees, agents and any other person where Party B is
liable for the acts or omissions of such other person
under the terms of any Transaction Document;
(iv) a reference to "neither party" will be construed as a
reference to "no
15
party"; and
(v) a reference to "other party" will be construed as a
reference to "other parties".
(e) ISDA Definitions: The 1991 ISDA Definitions (as published by
the International Swaps and Derivatives Association, Inc
("ISDA")), as supplemented by the 1998 Supplement to the 1991
ISDA Definitions (as published by ISDA) (the "1991 ISDA
Definitions") as at the date of this Agreement are
incorporated into this Agreement and each Confirmation.
(f) Inconsistency: Subject to Part 5(11)(a), unless specified
otherwise, in the event of any inconsistency between any two
or more of the following documents in respect of a Transaction
they will take precedence over each other in the following
order in respect of that Transaction:
(i) any Confirmation;
(ii) this Schedule and Section 13 ("Elections and Variables")
of the Credit Support Annex (as applicable);
(iii) the 1991 ISDA Definitions; and
(iv) the printed form of the 1992 ISDA Master Agreement and
the printed form of the ISDA Credit Support Annex which
form part of this Agreement.
(g) Swap Transaction: Any reference to a:
(i) "Swap Transaction" in the 1991 ISDA Definitions is
deemed to be a reference to a "Transaction" for the
purpose of interpreting this Agreement or any
Confirmation; and
(ii) "Transaction" in this Agreement or any Confirmation is
deemed to be a reference to a "Swap Transaction" for the
purpose of interpreting the 1991 ISDA Definitions.
(h) Incorporated Definitions and other Transaction Documents and
provisions: Where in this Agreement a word or expression is
defined by reference to its meaning in another Transaction
Document or there is a reference to another Transaction
Document or to a provision of another Transaction Document,
any amendment to the meaning of that word or expression or to
that other Transaction Document or provision (as the case may
be) will be of no effect for the purposes of this Agreement
unless and until the amendment is consented to by the parties
to this Agreement.
(12) Limitation of Liability: Insert the following as Sections 15 and 16, after
Section 14:
"15. Party B's Limitation of Liability
(a) (Limitation on Party B's liability): Party B enters into this
Agreement only in its capacity as trustee of the relevant
Series Trust and in no other capacity. A liability incurred by
Party B acting in its capacity as trustee of the relevant
Series Trust arising under or in connection with this
Agreement is limited to and can be enforced against Party B
only to the extent to which it can be satisfied out of the
Assets of that Series Trust out of which Party B is actually
indemnified for the liability. This
16
limitation of Party B's liability applies despite any other
provision of this Agreement (other than Section 15(c)) and extends
to all liabilities and obligations of Party B in any way connected
with any representation, warranty, conduct, omission, agreement or
transaction related to this Agreement.
(b) (Claims against Party B): The parties other than Party B may not xxx
Party B in respect of liabilities incurred by Party B acting in its
capacity as trustee of a Series Trust in any other capacity other
than as trustee of that Series Trust, including seeking the
appointment of a receiver (except in relation to Assets of that
Series Trust), or a liquidator, or an administrator, or any similar
person to Party B or prove in any liquidation, administration or
similar arrangements of or affecting Party B (except in relation to
the Assets of that Series Trust).
(c) (Breach of trust): The provisions of this Section 15 will not apply
to any obligation or liability of Party B to the extent that it is
not satisfied because under the Master Trust Deed, the corresponding
Series Supplement or any other corresponding Transaction Document or
by operation of law there is a reduction in the extent of Party B's
indemnification out of the Assets of the relevant Series Trust, as a
result of Party B's fraud, negligence or wilful default.
(d) (Acts or omissions): It is acknowledged that the Relevant Parties
are responsible under the corresponding Transaction Documents for
performing a variety of obligations relating to the relevant Series
Trust. No act or omission of Party B (including any related failure
to satisfy its obligations or any breach of representation or
warranty under this Agreement) will be considered fraudulent,
negligent or a wilful default of Party B for the purpose of
paragraph (c) of this Section 15 to the extent to which the act or
omission was caused or contributed to by any failure by any such
Relevant Person or any other person appointed by Party B under such
a Transaction Document (other than a person whose acts or omissions
Party B is liable for in accordance with any such Transaction
Document) to fulfil its obligations relating to the relevant Series
Trust or by any other act or omission of the Manager or the Servicer
or any other such person.
(e) (No obligation): Party B is not obliged to enter into any commitment
or obligation under this Agreement or any Transaction Document
(including incur any further liability) unless Party B's liability
is limited in a manner which is consistent with this Section 15 or
otherwise in a manner satisfactory to Party B in its absolute
discretion.
16. Segregation
Party B will enter into each Transaction as trustee of a Series Trust.
Each Confirmation in relation to a Transaction must specify the name of
the Series Trust to which the Transaction relates. Notwithstanding
anything else in this Agreement, but without limiting the generality of
Section 15, the provisions of this Agreement (including, without
limitation, the Credit Support Annex) shall have effect severally in
respect of each Series Trust and shall be enforceable by or against Party
B in its capacity as trustee of the relevant Series Trust as though a
separate Agreement applied between Party A, Party B (in its capacity as
trustee of the Series Trust specified in the relevant Confirmation), the
Manager and the Standby Swap Provider for each of Party B's said several
capacities, to the intent that (inter alia):
17
(a) (References to Party B): unless the context indicates a contrary
intention, each reference to "Party B" in this Agreement shall be
construed as a several reference to Party B in its respective
capacities as trustee of each Series Trust;
(b) (Separate Agreements): this Master Agreement including, without
limitation, this Schedule and the Credit Support Annex together with
each Confirmation relating to a particular Series Trust will form a
single separate agreement between Party A, the Manager, the Standby
Swap Provider and Party B in its capacity as trustee of that Series
Trust and references to the respective obligations (including
references to payment obligations generally and in the context of
provisions for the netting of payments and the calculation of
amounts due on early termination) of Party A, the Manager, the
Standby Swap Provider or Party B shall be construed accordingly as a
several reference to each mutual set of obligations arising under
each such separate agreement between Party A, the Manager, the
Standby Swap Provider and Party B in its several capacity as trustee
of the relevant Series Trust;
(c) (Representations): representations made and agreements entered by
the parties under this Agreement are made and entered severally by
Party B in its respective capacities as trustee of each Series Trust
and in respect of the relevant Series Trust and may be enforced by
Party B against Party A, the Manager or the Standby Swap Provider
severally in Party B's said several capacities (and by Party A, the
Manager or the Standby Swap Provider against Party B in Party B's
said several capacities);
(d) (Termination): rights of termination, and obligations and
entitlements consequent upon termination, only accrue to Party A
against Party B severally in Party B's respective capacities as
trustee of each Series Trust, and only accrue to Party B against
Party A severally in Party B's said several capacities;
(e) (Events of Default and Termination Events): without limiting Section
15, the occurrence of an Event of Default or Termination Event in
respect of one Series Trust shall not in itself constitute an Event
of Default or Termination Event in respect of any other Series
Trust; and
(f) (Definitions):
(i) the term "Series Trust":
(A) in this Section 16, means each Series Trust (as defined
in the Master Trust Deed) specified or to be specified,
as the context requires, as the relevant Series Trust in
the Confirmation for a Transaction; and
(B) elsewhere in this Agreement, means each such Series
Trust severally in accordance with the preceding
provisions of this Section 16;
(ii) the term "Transaction":
(A) in this Section 16, means each Transaction governed by
this Agreement; and
18
(B) elsewhere in this Agreement, means each such Transaction
entered into by the trustee as Trustee of the relevant
Series Trust;
(iii) the term "Agreement":
(A) in this Section 16, and elsewhere if so specified, means
this Master Agreement, including, without limitation,
this Schedule and the Credit Support Annex, and all
Confirmations governed by this Master Agreement; and
(B) elsewhere, unless specified otherwise, means the
separate agreement referred to in Section 16(b) in
respect of each particular Series Trust;
(iv) the terms "Distribution Date", "Quarterly Distribution Date",
"Relevant Calculation Amount", "Relevant Note Trustee",
"Relevant Notes", "Relevant Noteholders", "Scheduled Maturity
Date", "Security Trust Deed" and "Series Supplement" in this
Agreement to the extent that it applies in relation to a
Series Trust have the respective meanings given to them in the
Confirmations for the Transactions of that Series Trust."
(13) Further Assurances: Each party will, upon request by the other party (the
"requesting party") at the expense of the requesting party, perform all
such acts and execute all such agreements, assurances and other documents
and instruments as the requesting party reasonably requires (and, in the
case of Party B, are within the powers granted to Party B under the Master
Trust Deed) to assure and confirm the rights and powers afforded, created
or intended to be afforded or created, under or in relation to this
Agreement and each Transaction or other dealing which occurs under or is
contemplated by it.
(14) Procedures for Entering into Transactions
(a) With respect to each Transaction entered into pursuant to this
Agreement and for the purposes of Section 9(e)(ii), Party A will, by
or promptly after the relevant Trade Date, send Party B, the Standby
Swap Provider and the Manager a Confirmation substantially in the
form set out in Annexure 1 (or in such other form as may be agreed
between Party A, Party B, the Standby Swap Provider and the
Manager), and Party B, the Standby Swap Provider and the Manager
must promptly then confirm the accuracy of and sign and return, or
request the correction of, such Confirmation; and
(b) Party B will enter into each Transaction in its capacity as trustee
of the Series Trust.
(15) Authorised Officer: Each party will be entitled to assume, in the absence
of any knowledge to the contrary, that any Confirmation, notice or other
written communication, which is issued in respect of this Agreement and
which is purported to be signed on behalf of another party by a person
specified in the certificate provided by that other party under Part 3(b),
is authorised by that other party.
(16) Recorded Conversations: Each party:
(a) consents to the electronic recording of its telephone conversations
with the other party (or any of its associated persons) with or
without the use of an automatic tone warning device;
19
(b) will provide transcripts of such recordings (if any) upon reasonable
request by the other party (at the reasonable cost of the party
requesting); and
(c) acknowledges that neither is obligated to maintain copies of such
recordings and transcripts for the benefit of the other party.
(17) Replacement Currency Swap Agreement:
(a) If any Transaction under this Agreement is terminated prior to the
day upon which the Relevant Notes are redeemed in full, Party B may,
at the direction of the Manager, enter into one or more currency
swaps which replace that Transaction (collectively a "Replacement
Currency Swap") provided that:
(i) the Rating Agencies confirm in writing that the entry into the
Replacement Currency Swap by Party B does not result in a
reduction, qualification or withdrawal of the credit ratings
then assigned by them to the Relevant Notes; and
(ii) the liability of Party B under the Replacement Currency Swap
is limited to at least the same extent that its liability is
limited under that Transaction.
(b) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party B to Party
A upon termination of the Transaction referred to in Part 5(17)(a),
Party B must direct the Replacement Currency Swap provider to pay
any upfront premium to enter into the Replacement Currency Swap due
to Party B directly to Party A in satisfaction of and to the extent
of Party B's obligation to pay the Settlement Amount to Party A, and
to the extent such premium is not greater than or equal to the
Settlement Amount, the balance may be satisfied by Party B as an
Expense.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party A to Party
B upon termination of the Transaction referred to in Part 5(17)(a),
Party B may direct Party A to pay that amount to the Replacement
Currency Swap provider in satisfaction of or towards and to the
extent of Party B's obligation (if any) to pay an upfront premium to
the Replacement Currency Swap provider to enter into the Replacement
Currency Swap.
(d) The obligations of Party B (and the rights of Party A) under this
Part 5(17) will survive the termination of this Agreement.
(18) Knowledge or Awareness: Subject to Section 12(a), each party will only be
considered to have knowledge or awareness of, or notice of, a thing or
grounds to believe anything by virtue of the officers of that party or any
Related Body Corporate of that party which have the day to day
responsibility for the administration or management of that party's (or a
Related Body Corporate of that party's) obligations in relation to the
Series Trust or the Transactions entered into under this Agreement having
actual knowledge, actual awareness or actual notice of that thing, or
grounds or reason to believe that thing (and similar references will be
interpreted in this way).
(19) Restrictions on Party B's Rights: Party B must at all times act in
accordance with the instructions of the Manager in relation to this
Agreement.
(20) Amendment to this Agreement: None of Party A, Party B, the Standby Swap
Provider or the Manager may amend this Agreement unless the Rating
Agencies have confirmed in writing
20
that the proposed amendment will not result in a reduction, qualification
or withdrawal of the credit ratings then assigned by them to the Relevant
Notes.
(21) Appointment of Manager: Party B hereby exclusively appoints the Manager as
its attorney to act on Party B's behalf and exercise all rights and powers
of Party B with respect to this Agreement. Without limiting the generality
of the foregoing, the Manager may issue and receive on behalf of Party B
all notices, certificates and other communications to or by Party A under
this Agreement until such time as Party B serves written notice on Party A
of the revocation of the Manager's authority to act on behalf of Party B
in accordance with this Part 5(21) of the Schedule.
(22) Ratings Downgrade:
(a) (Downgrade): If, as a result of the reduction or withdrawal of the
credit rating of Party A or the Standby Swap Provider a Joint Rating
is less than the relevant Prescribed Rating, Party A must by the
expiry of the Prescribed Rating Period in relation to the credit
ratings assigned by the Rating Agencies to Party A and the Standby
Swap Provider at that time (or such greater period as is agreed to
in writing by each relevant Rating Agency), at its cost alone and at
its election:
(i) provided that the short term Joint Rating by S&P is greater
than or equal to A-1 or the long term Joint Rating by S&P is
greater than or equal to A- and the long term Joint Rating by
Fitch is greater than or equal to A-, lodge collateral in
accordance with the Credit Support Annex in an amount equal to
the Collateral Amount as defined in Part 5 (22)(b); or
(ii) enter into, and procure that the Standby Swap Provider enters
into, an agreement novating Party A's and/or the Standby Swap
Providers' rights and obligations under this Agreement and
each Transaction to a replacement counterparty acceptable to
the Manager and the Standby Swap Provider and which the Rating
Agencies confirm in writing will not result in a reduction,
qualification or withdrawal of the credit ratings then
assigned by them to the Relevant Notes; or
(iii) enter into, or procure that the Standby Swap Provider enters
into, such other arrangements in respect of each Transaction
which the Rating Agencies confirm in writing will not result
in a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Relevant Notes.
Notwithstanding that Party A has elected to satisfy its obligations
pursuant to this Part 5(22)(a) in a particular manner, it may
subsequently and from time to time vary the manner in which it
satisfies its obligations pursuant to this Part 5(22)(a) (but will
not be entitled to any additional grace period in relation to such a
variation).
(b) (Collateral Amount): For the purpose of this Part 5(22) the
Collateral Amount will be an amount equal to the greater of the
following:
(i) zero;
(ii) CCR; and
(iii) an amount acceptable to Xxxxx'x and Fitch and sufficient to
maintain the credit rating assigned to the Relevant Notes by
Xxxxx'x and Fitch immediately prior to the review of the Joint
Rating.
Where:
21
CCR = CR x 1.030
CR = MTM + VB
MTM means the aggregate xxxx-to-market value (whether positive or
negative) of each Transaction determined in accordance with Part 5(22)(c)
no earlier than 3 Business Days prior to the date that the Collateral
Amount is lodged.
VB means the volatility buffer, being the value calculated by multiplying
the Relevant Calculation Amount as at the most recent Distribution Date by
the relevant percentage obtained from the following table:
Where the
period
Where the between the
period date of
between the recalculation Where the
Party A's and date of and the period
the Standby recalculation Scheduled between the
Swap and the Maturity date of
Provider's Scheduled Date is recalculation
jointly Maturity greater than and the
supported Date is less 5 years and Scheduled
long term than or less than or Maturity Date
credit rating equal to 5 equal to 10 is greater
by S&P years years than 10 years
----------------------------------------------------------
A+ 1.05 1.75 3.0
----------------------------------------------------------
A 1.35 2.45 4.5
----------------------------------------------------------
A- 1.5 3.15 6
----------------------------------------------------------
(c) (Xxxx to Market Value): Party A must calculate the xxxx-to-market
value of each Transaction by obtaining 2 bids from counterparties
with the Prescribed Ratings willing to provide each Transaction in
the absence of Party A. The xxxx-to-market value may be a positive
or a negative amount. A bid has a negative value if the payment to
be made is from the counterparty to Party A and has a positive value
if the payment to be made is from Party A to the counterparty. The
xxxx-to-market value is the higher of the bids (on the basis that
any bid of a positive value is higher than any bid of a negative
value).
(d) (Recalculation): Party A must recalculate the Collateral Amount
(including the CCR and the xxxx-to-market value) on each Valuation
Date. If:
(i) the Value on such Valuation Date of all Posted Credit
Support held by the Secured Party is less than the
recalculated Collateral Amount, the difference is the
Delivery Amount in relation to that Valuation Date; or
(ii) the Value on such Valuation Date of all Posted Credit
Support held by the Secured Party is greater than the
recalculated Collateral Amount, the difference is the
Return Amount in relation to that Valuation Date.
(e) (Definitions): For the purposes of this Part 5(22) "Delivery
Amount", "Posted Credit Support", "Return Amount", "Secured Party",
"Value" and "Valuation Date" have the same meaning as in the Credit
Support Annex.
(23) Transfer: Notwithstanding the provisions of Xxxxxxx 0, Xxxxxxxx as Party A
may transfer all its rights powers and privileges and all its unperformed
and future obligations under this Agreement and each Transaction to any of
its Affiliates ("Transferee") by delivering to the Standby Swap Provider,
Party B and the Manager a notice expressed to be given under this
provision signed by both Citibank as Party A and the Transferee. Upon
delivery of those documents to Party B:
(a) (Party A's rights terminate): Citibank's rights powers privileges
and obligations as Party A under this Agreement and each Transaction
terminate;
(b) (Transfer and Assumption): Citibank will be taken to have
transferred its rights powers and privileges under this Agreement
and each Transaction to the Transferee
22
and the Transferee will be taken to have assumed obligations
equivalent to those Party A had under this Agreement and each
Transaction;
(c) (Release): Party B will be taken to have released Citibank as Party
A from all its unperformed and future obligations under this
Agreement and each Transaction; and
(d) (Documents): this Agreement and the Confirmation relating to each
Transaction shall be construed as if the Transferee was a party to
it in place of Citibank as Party A.
A Transferee may utilise this provision as Party A. A transfer under this
Part 5(23) will be of no force or effect until each Rating Agency confirms
in writing that such transfer will not result in a reduction,
qualification or withdrawal of the credit ratings then assigned by them to
the Relevant Notes and until the Standby Swap Provider has given its
written consent to such a transfer (such consent not to be withheld if the
Transferee is willing to enter into collateral arrangements between the
Transferee and the Standby Swap Provider on substantially the same terms
as have been agreed between Citibank and the Standby Swap Provider in the
Citibank/CBA ISDA Master Agreement).
(24) Standby Swap Provider:
(a) (Commitment): Notwithstanding any other provision in this Agreement
to the contrary, if Citibank as Party A fails to:
(i) make, when due, any payment required to be made by it to Party
B under a Transaction; or
(ii) comply with any obligation under Part 5(22) within the
required period,
then:
(iii) as soon as practicable following such failure but, in relation
to a failure to pay under a Transaction, in any event no later
than 11.00 am (New York time) on the due date for such payment
or, in relation to a failure to comply with an obligation
under Part 5(22), no later than the Business Day following the
due date for compliance with such obligation, Party B must
notify Citibank as Party A and the Standby Swap Provider in
writing of such failure and:
(A) the amount of the defaulted payment and the basis of
calculation of the defaulted payment; or
(B) details of the failure to comply with the obligation
under Part 5(22),
as the case may be; and
(iv) as soon as reasonably practicable after its receipt of such
notice (and in any event, in relation to a failure to pay
under a Transaction, no later than 1.30 pm (New York time) on
the due date for such payment, and, in relation to a failure
to comply with an obligation under Part 5(22), no later than 3
Business Days after the failure to comply with such
obligation, provided, in each case, that notice has been given
by Party B by the required times in accordance with Part
5(24)(a)(iii)) the Standby
23
Swap Provider must:
(A) in relation to a failure to pay under a Transaction, pay
to Party B the amount then owing by Citibank as Party A
to Party B under that Transaction by depositing such
amount into the Collections Account in cleared funds;
and
(B) in relation to a failure to comply with an obligation
under Part 5(22), satisfy the obligations of Citibank as
Party A under Part 5(22).
(b) (Reimbursement): If on any day the Standby Swap Provider:
(i) makes a payment pursuant to Part 5(24)(a)(iv)(A), Citibank as Party
A must by 2.00 pm (New York time) on the next following Business Day
(or such other time as the Standby Swap Provider may agree in
writing) pay to the Standby Swap Provider an amount equal to that
payment by depositing such amount into the account which the Standby
Swap Provider nominates for this purpose in cleared funds; or
(ii) satisfies the obligations of Citibank as Party A pursuant to Part
5(24)(a)(iv)(B), Citibank as Party A must:
(A) within 3 Business Days, fulfill its obligations under Part
5(22) such that any collateral lodged by the Standby Swap
Provider pursuant to Part 5(22)(a)(i) or any other arrangement
made by the Standby Swap Provider pursuant to Part
5(22)(a)(iii) is returned to the Standby Swap Provider or will
cease (but Citibank as Party A will have no obligations to the
Standby Swap Provider under this Part 5(24)(b)(ii)(A) in
relation to any novation pursuant to Part 5(22)(a)(ii)); and
(B) upon demand by the Standby Swap Provider, indemnify the
Standby Swap Provider from and against any other cost or
liability incurred by the Standby Swap Provider in satisfying
those obligations.
(c) (Novation): If:
(i) Citibank as Party A defaults in its payment obligations under Part
5(24)(b)(i) or (b)(ii)(B) for reasons other than solely a technical,
computer or similar error outside the control of Party A and such
default is not remedied on or before one Business Day after such
failure; or
(ii) Citibank as Party A fails to fulfill its obligations under Part
5(24)(b)(ii)(A), then:
(iii) Citibank's rights, powers, privileges and obligations as Party A
under this Agreement and each Transaction terminate other than its
rights, powers, privileges and obligations pursuant to Part 5(24)(d)
and Paragraph 13(m)(vii) of the Credit Support Annex;
(iv) subject to Part 5(24)(c)(vi), Citibank will be taken to have
transferred its rights powers and privileges as Party A under this
Agreement and each Transaction to the Standby Swap Provider and the
Standby Swap Provider will be taken to have assumed obligations
equivalent to those that Citibank as Party A had under this
Agreement and each Transaction;
24
(v) Party B and the Standby Swap Provider will be taken to have released
Citibank as Party A from all its unperformed and future obligations
under this Agreement and each Transaction other than its present and
future obligations pursuant to Part 5(24)(d);
(vi) this Agreement and the Confirmation relating to each Transaction
shall be construed as if the Standby Swap Provider was a party to it
in place of Party A except that:
(A) references to "Citibank as Party A" will not apply to the
Standby Swap Provider as Party A;
(B) references to any jointly supported credit rating of Party A
and the Standby Swap Provider will be deemed to be references
to the relevant credit rating of the Standby Swap Provider;
(C) without limiting Part 5(24)(c)(vi)(A), this Part 5(24) and
Paragraph 13(m)(vii) of the Credit Support Annex will not
apply to the Standby Swap Provider as Party A;
(D) the Standby Swap Provider must (if it has not already done so)
satisfy the obligations of Party A under Part 5(22)(a) within
10 Business Days of the Novation Date on the basis that any
collateral lodged by Citibank as Party A or any other
arrangements made by Citibank as Party A pursuant to Part
5(22)(a)(iii) will be returned to Citibank as Party A or will
cease (but such collateral will only be returned and such
arrangements will only cease upon compliance by the Standby
Swap Provider with its obligations under this Part
5(24)(c)(vi)(D) and otherwise, where applicable, in accordance
with Paragraph 13(m)(vii) of the Credit Support Annex or the
terms of such arrangements).
(d) (Termination Payment): Following novation under Part 5(24)(c) Citibank as
Party A must pay the Standby Swap Provider or the Standby Swap Provider
must pay Citibank as Party A an amount (the "Novation Settlement Amount")
being:
(i) in the case of payment by Citibank as Party A to the Standby
Swap Provider, an amount equal to the amount (if any) that
would be payable by Party A to Party B; and
(ii) in the case of payment by the Standby Swap Provider to
Citibank as Party A, an amount equal to the amount (if any)
that would be payable by Party B to Party A,
if each Transaction had been terminated, calculated and payable in
accordance with Sections 6(d) and (e) on the basis that:
(i) the Novation Date is the Early Termination Date and the
Novation Settlement Amount is due and payable on the day that
notice of the amount payable is effective;
(ii) the Early Termination Date has resulted from an Event of
Default in respect of which Party A is the Defaulting Party;
(iii) all calculations and determinations which would have been done
by
25
Party B are done by the Standby Swap Provider and all
calculations and determinations that would have been done by
Party A are done by Citibank;
(iv) a reference to Unpaid Amounts owing to Party B is a reference
to such amounts payable by Party A to the Standby Swap
Provider pursuant to Part 5(24)(b) and (e) and there are no
Unpaid Amounts owing to Party A;
(v) without limiting the foregoing, for the purposes of the
definition of "Market Quotation" in Section 14 each Reference
Market-maker would be required, upon entering into a
Replacement Transaction, to fulfill the obligations of Party A
under Part 5(22)(a) and to comply with Section 2(d) as amended
by Part (5)(1)(e); and
(vi) the Termination Currency is U.S. Dollars.
(e) (Default Interest): If Citibank as Party A defaults in the
performance of any payment obligations under Part 5(24)(b) or Part
5(24)(d), it must pay interest (before as well as after judgment) on
the overdue amount to the Standby Swap Provider on demand in the
same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the
date of actual payment, at the Default Rate. Such interest will be
calculated on the basis of daily compounding and the actual number
of days elapsed.
(f) (Irrevocable Notice): If the Standby Swap Provider satisfies the
obligations of Citibank as Party A under Part 5(24)(a)(iv)(B) by
lodging collateral on behalf of Citibank as Party A pursuant to Part
5(22)(a), Citibank as Party A must promptly provide an irrevocable
notice to Party B (copied to the Standby Swap Provider) directing
Party B that any such collateral, and any Distribution or Interest
Amount (as those terms are defined in the Credit Support Annex) with
respect to such collateral, is to be returned or paid to the Standby
Swap Provider and not to Citibank as Party A.
(25) Inconvertibility: If prior to the Novation Date an Inconvertibility Event
occurs the Standby Swap Provider's rights, powers, privileges and
obligations under this Agreement and each Transaction will terminate upon
the Standby Swap Provider delivering a notice expressed to be given under
this provision to Party A, Party B and the Manager and Party B will be
taken to have released the Standby Swap Provider from all its unperformed
and future obligations under this Agreement and each Transaction.
Following the delivery of such a notice in accordance with this Part
5(25), references to any jointly supported credit rating of Party A and
the Standby Swap Provider will be deemed to references to the relevant
credit rating of Party A.
26
Annexure 1
FORM OF CONFIRMATION [NAME OF SERIES TRUST]
[Letterhead of Party A]
[DATE]
To: Perpetual Trustee Company Limited Securitisation Advisory Services
as trustee of the Series Trust Pty. Limited
Xxxxx 0 Xxxxx 0
00 Xxxxxx Xxxxxx 00 Xxxxxx Xxxxx
Xxxxxx XXX 0000 Xxxxxx XXX 0000
XXXXXXXXX XXXXXXXXX
Attention: Manager, Securitisation Attention: Manager, Securitisation
Services
Commonwealth Bank of Australia
Xxxxx 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation
CONFIRMATION - MEDALLION TRUST SERIES 2001-1G
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the terms specified below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
This Confirmation is entered into by Perpetual Trustee Company Limited, ABN 42
000 001 007 as trustee of the Series 2001-1G ] Medallion Trust (the "Series
Trust").
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ] 2001, as amended, novated or supplemented
from time to time (the "Agreement"), between Citibank N.A.("Party A"), Perpetual
Trustee Company Limited, ABN 42 000 001 007 as trustee of, inter alia, the
Series Trust ("Party B"), Securitisation Advisory Services Pty. Limited, ABN 88
064 133 946 (the "Manager") and Commonwealth Bank of Australia, ABN 48 123 123
124 (the "Standby Swap Provider"). All provisions contained in the Agreement
govern this Confirmation except as expressly modified below.
This Confirmation incorporates the attached Definitions Schedule which forms
part of, and is subject to, this Confirmation.
The terms of the particular Transaction to which this Confirmation relates are
specified below:
1. Our Reference: [ ]
2. Trade Date: [ ]
Issue Date in respect of the Relevant Notes
3. Effective 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.
4. Termination Date:
5. Floating Amounts
27
5.1 Floating Amounts Payable by
Party A (subject to Paragraph 9
of this Confirmation):
Floating Rate Payer: Party A
Calculation Amount: For each Floating Rate Payer Payment
Date, one half of the aggregate Invested
Amount of the Relevant Notes as at the
first day of the Calculation Period
ending on but excluding that Floating
Rate Payer Payment Date
Floating Rate Payer Payment Dates: Each Quarterly Distribution Date during
the period commencing on and including
[ ] and ending on and including the
Termination Date, subject to adjustment
in accordance with the Following Business
Day Convention
Floating Rate Option: USD-LIBOR-BBA (except that references to
"London Banking Days" in section
7.1(ag)(ii) and (iv) of the 1998
Supplement to the 1991 ISDA Definitions
will be replaced with references to
"Banking Days" as that expression is
defined in the Note Conditions)
Designated Maturity: Three months (except that Linear
Interpolation using three and four
months will apply in respect of the
first Calculation Period)
Spread: In respect of:
(a) Floating Rate Payer Payment Dates
on or prior to [ ]
(or if that day is not a Business
Day, the next following Business
Day), [ ]; and
(b) Floating Rate Payer Payment Dates
after [ ] (or if
that day is not a Business Day,
the next following Business Day),[ ].
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Class A-1 Unpaid Coupon On each Floating Rate Payer Payment Date,
Party A will pay to Party B an amount
calculated as follows:
LIBOR
$USUC=$AUC<-->-----<-->$US EXCHANGE RATE
BBSW
where:
$US UC = the amount to be paid by Party A;
$AUC = the A$ Class A-1 Unpaid
Interest
28
Payment in relation
to the Quarterly Distribution
Date which is the same day as
that Floating Rate Payer
Payment Date;
LIBOR = the Floating Rate Option
under this paragraph 5.1 in
respect of the Reset Date
which is the same day as that
Floating Rate Payer Payment
Date;
BBSW = the Floating Rate Option
under paragraph 5.2 in
respect of the Reset Date
which is the same day as that
Floating Rate Payer
Payment Date.
5.2 Floating Amounts Payable by Party
B (subject to paragraph 9 of this
Confirmation):
Floating Rate Payer: Party B
Calculation Amount: For each Floating Rate Payer Payment
Date, the A$ Equivalent of one half of
the aggregate Invested Amount of the
Relevant Notes as at the first day of the
Calculation Period ending on but
excluding that Floating Rate Payer
Payment Date
Floating Rate Payer Payment
Dates: Each Quarterly Distribution Date during
the period commencing on and including
the Effective Date and ending on and
including the Termination Date, subject
to adjustment in accordance with the
Following Business Day Convention
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: three months (except that Linear
Interpolation usingthree andfour months
will apply in respect of the first
Calculation Period)
Spread: In respect of:
(a) Floating Rate Payer Payment Dates
on or prior to [ ] (or
if that day is not a Business
Day, the next following Business
Day), [ ]; and
(b) Floating Rate Payer Payment Dates
after [ ] (or if
that day is not a Business Day,
the next following Business Day),
[ ].
Floating Rate Day Count
Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
A$ Class A-1 Unpaid Interest
Amount: On each Floating Rate Payer Payment Date
Party B will pay to Party A the A$ Class
A-1 Unpaid Interest Payment in relation
to the Quarterly Distribution Date which
is the same day as that Floating Rate
Payer
Payment Date.
6. Exchanges
6.1 Initial Exchange:
Initial Exchange Date: Issue Date
Party A Initial Exchange Amount: The A$ Equivalent of the Party B Initial
Exchange Amount, being A$[ ]
Party B Initial Exchange
Amount: One half of the Initial Invested Amount
of the Relevant Notes on the Issue Date,
being US$[ ]
Notwithstanding Section 2(a)(ii)
of the Agreement, Party A must
pay the Party A Initial Exchange Amount
to Party B by 4.00pm (Sydney time) on the
Initial Exchange Date and Party B must
pay Party A the Party B Initial Exchange
Amount by 4.00pm (New York time) on
the Initial Exchange Date.
6.2 Instalment Exchange:
Instalment Exchange Date: Each Distribution Date (other than the
Final Exchange Date)
Party A Instalment Exchange
Amount: In respect of an Instalment Exchange
Date means the US$ Equivalent of one
half of the A$ Class A-1 Principal
Amount in relation to the Quarterly
Distribution Date occurring on that
Instalment Exchange Date
Party B Instalment Exchange
Amount: In respect of an Instalment Exchange Date
means one half of the A$ Class A-1
Principal Amount in relation to the
Quarterly Distribution Date occurring on
that Instalment Exchange Date
6.3 Final Exchange:
Final Exchange Date: Termination Date
Party A Final Exchange Amount: The US$ Equivalent of one half of the A$
Class A-1 Principal Amount in relation to
the Quarterly Distribution Date which
is the Final Exchange Date
Party B Final Exchange Amount: One half of the A$ Class A-1 Principal
Amount in relation to the Quarterly
Distribution Date which is the Final
Exchange Date
7. Exchange Rates:
For the purpose of the definitions of
"A$ Equivalent" and "US$
Equivalent":
US$ Exchange Rate: [ ]
A$ Exchange Rate: [ ]
8. Account Details:
29
8.1 Payments to Party A
Account for payments in US$: The account notified in writing by Part
A to Party B in accordance with Part
5(3)(ii) of the Schedule to the Agreement
Account for payments in A$: The account notified in writing by Party
A to Party B in accordance with Part
5(3)(i) of the Schedule to the Agreement
8.2 Payments to Party B
Account for payments in US$: The account notified in writing by the
Principal Paying Agent to Party A in
accordance with Part 5(2)(ii) of the
Schedule to the Agreement
Account for payments in A$: The account notified in writing by Party
B to Party A in accordance with Part
5(2)(i) of the Schedule to the Agreement
9. Notifications to Party A On or before the Determination Time in
respect of each Distribution Date the
Manager must notify Party A and the
Standby Swap Provider in writing of:
(a) the A$ Class A-1 Principal Amount
which the Manager has directed
Party B to pay to Party A on that
Quarterly Distribution Date
pursuant to clause 10.5(b)(i)A of
the Series Supplement;
(b) the A$ Class A-1 Interest Payment
in relation to that Quarterly
Distribution Date;
(c) the amounts (if any) allocated to
the Class A-1 Notes in respect of
any Principal Charge-off or
Principal Charge-off Reimbursement
on the immediately preceding
Determination Date in accordance
with Conditions 7.9 and 7.10 of
the Note Conditions; and
(d) the A$ Class A-1 Unpaid Interest
Payment (if any) in relation to
that Quarterly Distribution Date.
10. Offices: The Office of Citibank as Party A for
each Transaction is New York.
The Office of CBA (on and from the
Novation Date) as Party A is Sydney.
The Office of Party B for each
Transaction is Sydney.
Please confirm that the above correctly sets out the terms of our agreement in
respect of each Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
30
Confirmed as at the date first written above:
SIGNED for and on behalf of
CITIBANK N.A., NEW YORK BRANCH
By:
(Authorised Officer )
Name:
Title:
Confirmed as at the date first Confirmed as at the date first written
written above: above:
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED, SECURITISATION ADVISORY SERVICES PTY.
ABN 42 000 001 007 LIMITED, ABN 88 064 133 946
as trustee of the Series 2000-2G
Medallion Trust
By: By:
------------------------------ ------------------------------
(Authorised Officer) (Authorised Officer)
Name: Name:
------------------------------ -------------------------
Title: Title:
------------------------------ ------------------------
SIGNED for and on behalf of
COMMONWEALTH BANK OF AUSTRALIA,
ABN 48 123 123 124
By:
------------------------------
(Authorised Officer)
Name:
------------------------------
Title:
------------------------------
31
Definitions Schedule
In this Confirmation and in the Agreement to the extent that it relates to the
Series Trust, unless the context otherwise requires:
"A$ Class A-1 Unpaid Interest Payment" means in relation to a Quarterly
Distribution Date the amount available to be allocated towards payment to Party
A in respect of A$ Class A-1 Unpaid Interest Amounts on that Quarterly
Distribution Date in accordance with clause 10.2B(k)(i) of the Series Supplement
determined on the basis that all amounts allocated towards payment of A$ Class
A-1 Interest Amounts and A$ Class A-1 Unpaid Interest Amounts pursuant to clause
10.2B(k)(i) of the Series Supplement are allocated first towards payment of A$
Class A-1 Interest Amounts and then, once the A$ Class A-1 Interest Amounts are
paid in full, towards payment of A$ Class A-1 Unpaid Interest Amounts.
"Class A-1 Note Trust Deed" means the Class A-1 Note Trust Deed dated on or
about the date of this Confirmation between Party B, the Manager and the
Relevant Note Trustee.
"Determination Time" in relation to a Quarterly Distribution Date means on or
about 11.00am Sydney time 1 Business Day prior to that Quarterly Distribution
Date.
"Quarterly Distribution Date" and " Monthly Distribution Date" each have the
same meaning as in the Series Supplement.
"Note Conditions" means the terms and conditions of the Relevant Notes annexed
to the Relevant Notes.
"Relevant Calculation Amount" means the Calculation Amount referred to in
paragraph 5.1 of this Confirmation.
"Relevant Notes" means the Class A-1 Notes issued by the Trustee under the Class
A-1 Note Trust Deed.
"Relevant Noteholders" means the Class A-1 Noteholders as that term is defined
in the Class A-1 Note Trust Deed.
"Relevant Note Trustee" means The Bank of New York, New York Branch or, if the
Bank of New York is removed or retires as the trustee for the Class A-1
Noteholders, any person appointed from time to time in its place in accordance
with the Class A-1 Note Trust Deed.
"Scheduled Maturity Date" has the same meaning as in the Series Supplement.
"Security Trust Deed" means the Security Trust Deed dated on or about the date
of this Confirmation between Party B, the Manager, the Relevant Note Trustee and
P.T. Limited, ABN 67 004 454 666.
"Series Supplement" means the Series Supplement dated on or about the date of
this Confirmation between CBA, Party B and the Manager.
Terms defined in the Note Conditions have the same meaning in this Confirmation
unless otherwise defined in this Confirmation.Paragraph 13 to New York Law
Credit Support Annex
(13) Elections and Variables
(a) Security Interest for "Obligations"
The term "Obligations" as used in this Annex includes the additional
obligations
32
referred to in Paragraph 13(m)(vii)(B).
"Base Currency" means US$.
"Eligible Currency" means the Base Currency and any other currency
agreed from time to time between Party A, Party B, the Standby Swap
Provider and each Rating Agency.
(b) Credit Support Obligations
(i) Delivery Amount and Return Amount
"Delivery Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(22)(d)(i) for
that Valuation Date.
"Return Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(22)(d)(ii) for
that Valuation Date.
(ii) Eligible Collateral. The following items will qualify as
"Eligible Collateral" for Party A provided that the items
specified in paragraphs (E), (F), (G) and (H) will only
qualify as "Eligible Collateral" of Party A upon receipt by
Party B and the Standby Swap Provider of an opinion as to the
perfection of the Secured Party's security interest in such
items in form and substance (and issued by legal counsel)
satisfactory to Party B and the Standby Swap Provider:
Valuation
Percentage
(A) negotiable debt obligations issued by the U.S. Treasury 98%
Department having a remaining maturity of not more than
one year
(B) negotiable debt obligations issued by the U.S. Treasury 95%
Department having a remaining maturity of more than one
year but not more than five years
(C) negotiable debt obligations issued by the U.S. Treasury 93%
Department having a remaining maturity of more than
five years but not more than ten years
(D) negotiable debt obligations issued by the U.S. Treasury 90%
Department having a remaining maturity of more than ten
years
(E) Agency Securities having a remaining maturity of not 97%
more than one year
(F) Agency Securities having a remaining maturity of more 94%
than one year but not more than five years
(G) Agency Securities having a remaining maturity of more 92%
than five years but not more than ten years
(H) Agency Securities having a remaining maturity of more 89%
than ten years.
(I) cash in an Eligible Currency. 100%
(J) other Eligible Credit Support and Valuation Percentage
agreed by the parties and acceptable to
33
each Rating Agency
Notwithstanding the foregoing to the contrary, the Valuation
Percentage with respect to all Eligible Credit Support shall
be deemed to be 100% with respect to a Valuation Date which is
an Early Termination Date.
"Agency Securities" means negotiable debt obligations which
are fully guaranteed as to both principal and interest by the
Federal National Mortgage Association, the Government National
Mortgage Corporation or the Federal Home Loan Mortgage
Corporation and which have been assigned a short term credit
rating of A-1+ by S&P, but exclude: (i) interest only and
principal only securities; and (ii) collateralized mortgage
obligations, real estate mortgage investment conduits and
similar derivative securities.
(iii) Other Eligible Support
Not applicable.
(iv) Thresholds
(A) "Minimum Transfer Amount" means with respect to both
Party A and Party B: US$100,000.
(B) Rounding. The Delivery Amount and the Return Amount will
be rounded to the nearest integral multiple of
US$10,000.
(c) Valuation and Timing
(i) "Valuation Agent" means Party A.
(ii) "Valuation Date" means the last Business Day of each week and,
at the option of either Party A or the Standby Swap Provider,
any Business Day between Valuation Dates.
(iii) "Valuation Time" means the close of business on the Business
Day before the Valuation Date; provided that the calculations
of Value and Exposure will be made as of approximately the
same time on the same date.
(iv) "Notification Time" means 11:00 am New York time on the second
Business Day after the Valuation Date.
(d) Conditions Precedent and Secured Party's Rights and Remedies
There are no "Specified Conditions" applicable to Party A. The
following is a Specified Condition with respect to Party B:
"If an Early Termination Date has been designated in respect of each
Transaction provided that if an amount is due by Party A to Party B
in respect of that Early Termination Date pursuant to Section 6,
that amount has been paid in full."
(e) Substitution
(i) "Substitution Date" has the meaning specified in paragraph
4(d)(ii).
34
(ii) Consent. The Pledgor must obtain the Secured Party's consent
for any substitution pursuant to paragraph 4(d). However such
consent is not to be unreasonably withheld and the parties
agree that not wanting to accept a particular type of
Substitute Credit Support is not in itself a reasonable basis
for withholding consent if the Substitute Credit Support is
Eligible Collateral. The consent may be provided in a manner
described in Section 12 or otherwise, including orally.
(f) Dispute Resolution
(i) "Resolution Time"" means 11:00 am New York time.
(ii) "Value". Not applicable.
(iii) "Alternative". The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral
(i) Eligibility to Hold Posted Collateral; Custodians.
Party A: Not Applicable.
Party B is not entitled to hold Posted Collateral. It must
appoint a Custodian to hold Posted Collateral on its behalf
pursuant to paragraph 6(b). Party B may only appoint a
Custodian to hold Posted Collateral on its behalf if the
following conditions are satisfied:
(A) Party B is not a Defaulting Party;
(B) Party B's Custodian will always be the Principal Paying
Agent, unless that party is Party A; and
(C) if the Principal Paying Agent is Party A, then Party B
must appoint a Custodian which is a Bank (as defined in
the Federal Deposit Insurance Act, as amended) outside
Australia, whose rating (with respect to its long term
unsecured, unsubordinated indebtedness) is at all times
at least Aa2 by Xxxxx'x and its short term debt rating
is A-1+/F-1+ (S&P/Fitch), and Party B must notify Party
A in writing of this appointment and of the relevant
account for Paragraph 13(l).
(D) Posted Collateral may only be held in one or more
accounts in the name of Party B in the United States and
any account established by Party B's Custodian to hold
Posted Collateral shall be established and maintained
for the sole purpose of receiving deliveries of and
holding Posted Collateral.
(ii) Use of Posted Collateral. The provisions of paragraph 6(c)
will not apply to Party B and its Custodian. Party B's
Custodian will permit Party B to secure Party B's obligations
under the Relevant Notes by granting to the Security Trustee
the charge under the Security Trust Deed over Party B's rights
in relation to the Posted Collateral, but subject to Paragraph
13(m)(vi) of this Annex.
(h) Distributions and Interest Amount
35
(i) Interest Rate. The "Interest Rate", in respect of Posted
Collateral which is denominated in US$, for any day means the
Federal Funds Overnight Rate. For the purposes hereof,
"Federal Funds Overnight Rate" means, for any day, an interest
rate per annum equal to the rate published as the Federal
Funds Effective Rate that appears on Telerate Page 118 for
such day. The "Interest Rate" in respect of Posted Collateral
denominated in any other Eligible Currency means the rate as
agreed between the parties.
(ii) Transfer of Interest Amount. The Transfer of Interest Amount
will be made monthly on the second Business Day of each
calendar month.
(iii) Alternative to Interest Amount. The provisions of Paragraph
6(d)(ii) will apply.
(i) Additional Representation(s)
None.
(j) Other Eligible Support and Other Posted Support
"Value" and "Transfer" with respect to Other Eligible Support and
Other Posted Support means: not applicable.
(k) Demands and Notices
All demands, specifications and notices under this Annex will be
made pursuant to the Section 12 of this Agreement; provided, that
any such demand, specification or notice may be made by telephone
("Telephone Notice") between duly authorised employees of each party
if such Telephone Notice is confirmed by a subsequent written
instruction (which may be delivered via facsimile) by the close of
business of the same day that such Telephone Notice is given.
(l) Addresses for Transfers
Party A: Party A to specify account for returns of collateral.
Party B: Party B must notify Party A of its Custodian's account.
(m) Other Provisions
(i) Paragraph 4(b) of the Annex is replaced by the following:
"(b) Transfer Timing. Subject to Paragraph 4(a) and 5 and
unless otherwise specified, if a demand for the Transfer
of Eligible Credit Support or Posted Credit Support is
made by the Notification Time, then the relevant
Transfer will be made within three Business Days of
receipt of the demand; if a demand is made after the
Notification Time, then the relevant Transfer will be
made within four Business Days of receipt of the
demand."
36
(ii) Event of Default
Joint Ratings below specified levels
Paragraph 7(i) of the Annex is amended, on line 3, by
replacing "two Business Days" with "three Business Days".
(iii) Party B's expenses
Subject to Section 15 of the Agreement, Party B agrees to pay
Party A's costs and expenses in relation to or caused by any
breach by Party B of its obligations under this Annex. Party A
acknowledges and agrees that its obligations under this Annex
will not be affected by a failure by Party B to comply with
its obligations under this paragraph (m)(iii).
(iv) Governing Law notwithstanding
Notwithstanding that the Agreement is expressed to be governed
by the laws of New South Wales, this Annex (but not any other
provisions of the Agreement) shall be governed by and
construed in accordance with the laws of [the state of New
York without giving effect to choice of law doctrine and
parties hereto agree that proceedings relating to any dispute
arising out of or in connection with this Annex shall be
subject to the non-exclusive jurisdiction of the federal or
state courts of competent jurisdiction in the Borough of
Manhattan in New York City, State of New York].
(v) No trial by jury
Each party waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in
respect of any suit, action or proceeding relating to this
Annex.
(vi) No pooling of Collateral with other Security Trust security
Notwithstanding any provision in the Master Trust Deed, Series
Supplement or Security Trust Deed, but without prejudice to
Party B's rights under Paragraph 8(a) of this Annex, no party
shall be entitled to deal with the Posted Collateral in any
manner inconsistent with the rights of the Pledgor under
Paragraphs 3(d), 4(b) or 8(b)(iii) of this Annex, and each
party covenants to the other that it shall not permit any
other person to gain any rights in relation to the Posted
Collateral that are inconsistent with the rights of the
Pledgor.
(vii) Rights in Relation to Swap Provider's Posted Collateral
Following Novation
(A) The Secured Party will hold its security interest in,
lien on and right of Set- Off against all Posted
Collateral Transferred or received by the Secured Party
from Citibank as Party A (or from the Standby Swap
Provider on behalf of Citibank as Party A but not from
the Standby Swap Provider in its capacity as Party A)
hereunder on trust for the benefit of:
(1) the Series Trust as security for the Obligations
of Citibank as Party A to the Secured Party as
trustee of the Series Trust (other than pursuant
to
37
Paragraph 13(m)(vii)(B)); and
(2) the Standby Swap Provider as security for the
Obligations of Citibank as Party A to the Standby
Swap Provider pursuant to Parts 5(24)(d) and (e)
of the Schedule to this Agreement, as that term is
defined in Section 16(f)(iii)(A), and all
Citibank's present and future obligations to the
Standby Swap Provider under Paragraph 13(m)(v) of
the credit support annex to the Citibank/CBA ISDA
Master Agreement,
in accordance with the provisions of this Paragraph
13(m)(vii), and Paragraph 2 is varied accordingly.
(B) Citibank as Party A covenants in favour of the Secured
Party that it will duly and punctually pay to the
Secured Party:
(1) all its Obligations to the Standby Swap Provider
pursuant to Parts 5(24)(d) and (e) of the Schedule
to this Agreement, as that term is defined in
Section 16(f)(iii)(A); and
(2) all its present and future obligations to the
Standby Swap Provider under Paragraph 13(m)(v) of
the credit support annex to the Citibank/CBA ISDA
Master Agreement,
as and when the same fall due for payment. Notwithstanding the
foregoing, every payment by Citibank as Party A, or the
Secured Party in accordance with Paragraph
13(m)(vii)(C)(2)(b), to the Standby Swap Provider will operate
as a payment by Citibank as Party A to the Secured Party in
satisfaction of Citibank's obligations as Party A pursuant to
this Paragraph 13(m)(vii)(B). The Secured Party will hold the
benefit of its rights under this Paragraph 13(m)(vii)(B) on
trust for the Standby Swap Provider in accordance with the
provisions of this Paragraph 13(m)(vii).
(C) The Secured Party must deal with all Posted Collateral
Transferred or received by the Secured Party from
Citibank as Party A (or from the Standby Swap Provider
on behalf of Citibank as Party A but not from the
Standby Swap Provider in its capacity as Party A)
hereunder:
(1) prior to the Novation Date, in accordance with the
provisions of this Agreement other than this
Paragraph 13(m)(vii);
(2) on or after the Novation Date:
(a) until the date upon which the Standby Swap
Provider has initially fulfilled its
obligations as Party A pursuant to Part
5(22)(a) of the Schedule to this Agreement,
such Posted Collateral must be held by the
Secured Party and not
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Transferred or otherwise applied;
(b) on or after the date upon which the Standby Swap
Provider has initially fulfilled its obligations
as Party A pursuant to Part 5(22)(a) of the
Schedule to this Agreement and until Citibank as
Party A has paid in full all of its Obligations to
the Standby Swap Provider pursuant to Parts
5(24)(d) and (e) of the Schedule to this
Agreement, as that term is defined in Section
16(f)(iii)(A), and all its present and future
obligations to the Standby Swap Provider under
Paragraph 13(m)(v) of the credit support annex to
the Citibank/CBA ISDA Master Agreement, the
Secured Party must, upon the instructions of the
Standby Swap Provider, exercise the rights and
remedies pursuant to Paragraph 8(a) in respect of
such Posted Collateral, and Party A agrees that
the Secured Party may exercise such rights and
remedies under Paragraph 8(a) to the same extent
and with the same effect as if an Event of Default
or Specified Condition had occurred with respect
to Party A, and apply the proceeds of the exercise
of such rights and remedies in satisfaction of
Citibank's Obligations as Party A to the Standby
Swap Provider pursuant to Parts 5(24)(d) and (e)
of the Schedule to this Agreement, as that term is
defined in Section 16(f)(iii)(A), as and when
these are due and payable and Citibank's present
and future obligations to the Standby Swap
Provider under Paragraph 13(m)(v) of the credit
support annex to the Citibank/CBA ISDA Master
Agreement as and when these are due and payable
(and to the Secured Party pursuant to Paragraph
13(m)(vii)(B)) until all such Obligations have
been paid in full; and
(c) on or after the date upon which the Standby Swap
Provider has initially fulfilled its obligations
as Party A pursuant to Part 5(22)(a) of the
Schedule to this Agreement and Citibank as Party A
has paid in full all its Obligations to the
Standby Swap Provider pursuant to Parts 5(24)(d)
and (e) of the Schedule to this Agreement, as that
term is defined in Section
39
16(f)(iii)(A), and no amounts are or thereafter
may become payable in respect to such Obligations
and has paid in full all its present and future
obligations to the Standby Swap Provider under
Paragraph 13(m)(v) of the credit support annex to
the Citibank/CBA ISDA Master Agreement (including
by virtue of Paragraph 13(m)(vii)(C)(2)(b)) and no
amounts are or thereafter may become payable with
respect to such obligations, the Secured Party
must Transfer to Citibank as Party A all such
Posted Collateral and the Interest Amount in
relation to such Posted Collateral, if any.
(D) The Standby Swap Provider indemnifies the Secured Party
from and against any cost or liability incurred by the
Secured Party in complying with the instructions of the
Standby Swap Provider pursuant to Paragraph
13(m)(vii)(C)(2)(b). The Standby Swap Provider
acknowledges and agrees that the Secured Party may not,
and is not required, to take any action to exercise its
rights and remedies in relation to the Posted Collateral
in respect of the Obligations of Citibank as Party A to
the Standby Swap Provider except upon the directions of
the Standby Swap Provider and in accordance with this
Paragraph 13(m)(vii).
(E) Following the Novation Date, the Secured Party must
ensure that any Posted Collateral Transferred or
received by the Secured Party from Citibank as Party A
is held by the Custodian separately from, and is not
co-mingled with, Posted Collateral Transferred or
received by the Secured Party from the Standby Swap
Provider as Party A.
(F) This paragraph 13(m)(vii) applies notwithstanding any
other provision of this Agreement.
(viii) Pledgor and Secured Party
In this Annex:
(a) "Pledgor" means only Party A; and
(b) "Secured Party" means only Party B.
(ix) Non-Australian Assets
CBA must only Transfer Posted Collateral to the Secured Party
from its assets held outside Australia.
(x) Dispute Resolution
Paragraph 5(i) is amended by:
(A) replacing the word "Exposure" with the words "the
Delivery Amount or the Return
40
Amount, as the case may be" in the first paragraph of
Paragraph 5(i);
(B) adding the word "and" at the end of Paragraph 5(i)(A)
and deleting Paragraph 5(i)(B).
(xi) Specified Condition
(A) In Paragraph 4(a)(ii) the words "or Specified
Condition" are deleted.
(B) In Paragraph 8(b) the words "or Specified
Condition" are deleted and replaced with the
following "with respect to the Secured Party or a
Specified Condition has occurred".
(xii) Return Amounts
If under this Agreement, as that term is defined in Section
16(f)(iii)(A), a Novation Date has occurred, each Transfer
obligation of the Secured Party under Paragraphs 3, 4(d)(ii),
5 and 6(d) is subject to the condition precedent that the
Standby Swap Provider, in its discretion, has consented to the
Transfer unless Citibank as Party A has paid in full all its
Obligations to the Standby Swap Provider pursuant to Parts
5(24)(d) and (e) of the Schedule to this Agreement, as that
term is defined in Section 16(f)(iii)(A), and no amounts are
or thereafter may become payable with respect to such
Obligations, and has paid in full all its present and future
obligations to the Standby Swap Provider under Paragraph
13(m)(v) of the credit support annex to the Citibank/CBA ISDA
Master Agreement (including by virtue of Paragraph
13(m)(vii)(C)(2)(b)), and no amounts are or thereafter may
become payable with respect to such obligations.
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