EXHIBIT 10.5
Draft: 18 August 2000
________________________________________________________________________________
Securitisation Advisory Services Pty Limited
Manager
Xxxxxxx Xxxxx International (Australia) Limited
MLIA and Party A
Perpetual Trustee Company Limited
Party B
Commonwealth Bank of Australia
CBA and Standby Swap Provider
Series 2000-2G Medallion Trust
ISDA Master Agreement
(Currency Swap Agreement)
Levels 23-35 Xx 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
PO Box H3 Australia Square Sydney NSW 1215 DX 370 Sydney
Tel + 00 0 0000 0000 Fax + 00 0 0000 0000
Our ref - 174/801/1545256 Contact - Xxxxxx Xxxxx
Xxxxxx . Melbourne . Brisbane . Perth . Canberra . 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 2000 between
Securitisation Advisory Services Pty. Limited
ACN 064 133 946
("Manager")
and
Xxxxxxx Xxxxx International (Australia) Limited
ABN 31 002 892 846
("MLIA" and "Party A")
and
Perpetual Trustee Company Limited
ACN 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
ACN 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)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(a)(vii)
(iii) Section 5(b)(ii) will not apply to Party A as the Affected Party
(subject to Part 5(6)(b) of this Schedule) and Section 5(b)(iii)
will not apply to Party A as the Burdened Party.
(d) The "Automatic Early Termination" provisions in Section 6(a) will not
apply to Party A or Party B.
(e) Payments on Early Termination. For the purposes of Section 6(e) of this
Agreement:
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(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, MLIA as Party A, 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.
Part 3. Agreement to Deliver Documents
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For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver to each other party the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
Party required to deliver Form/Document/Certificate Date by which to be delivered
document
Party A, Party B, and the Any document or certificate On the earlier of (a)
Standby Swap Provider reasonably required or reasonably learning that such document
requested by a party in connection or certificate is required
with its obligations to make a and (b) as soon as
payment under this Agreement which reasonably practicable
would enable that party to make following a request by a
the payment free from any party.
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
document delivered
Party A, Party B, the A certificate specifying the On the execution of this
Standby Swap Provider and names, title and specimen Agreement and each
the Manager signatures of the persons Confirmation unless that
authorised to execute this certificate has already
Agreement and each Confirmation or been supplied and remains
other communication in writing true and in effect and when
made pursuant to this Agreement on the certificate is updated.
its behalf.
Party A, Party B, the A legal opinion as to the validity Prior to the Closing Date.
Xxxxxxx Xxxx Provider and and enforceability of its
the Manager obligations under this Agreement
in form and substance (and issued
by legal counsel) reasonably
acceptable to each other party.
Party B A certified copy to Party A of Not less than 5 Business
each Credit Support Document Days (or such lesser period
specified in respect of Party B as Party A agrees to)
and (without limiting any before the Trade Date of
obligation Party B may have under the first occurring
the terms of that Credit Support Transaction and in the case
Document to notify Party A of of any amending documents
amendments thereto) a certified entered into subsequent to
copy to Party A of any document that date, promptly after
that amends in any way the terms each amending document (if
of that Credit Support Document. any) has been entered into.
Party A Original executed copies to Party Not less than 5 Business
B and the Standby Swap Provider Days (or such lesser period
and a certified copy to the as Party B and the Manager
Manager of each Credit Support agree to) before the Trade
Document (if any) specified in Date of the first occurring
respect of
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Party A and (without limiting any Transaction and in the case
obligation Party A may have under of any amending documents
the terms of that Credit Support entered into subsequent to
Document to notify Party B, the that date, promptly after
Standby Swap Provider or the each amending document (if
Manager of amendments thereto) any) has been entered into.
original executed copies to Party B
and the Standby Swap Provider
and a certified copy to the Manager
of any document that amends in
any way the terms of that Credit
Support Document.
Other than the legal opinions, any Credit Support Document or any document
amending a Credit Support Document (but including any certifications in relation
to such documents), all documents delivered under 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.
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Part 4 Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a)
of this Agreement:
Address for notices or communications to MLIA as Party A:
Address: Xxxxxxx Xxxxx International (Australia) Limited
Level 00
00-00 Xxxxxx Xxxxx
Xxxxxx XXX 0000.
AUSTRALIA
Attention: Manager, Operations
Telex No: AA24498
Answerback: X XXXXX
Facsimile No.: 000 0000 0000
Telephone No.: 000 0000 0000
Address for notices or communications to Party B:
Address: Perpetual Trustee Company Limited
Level 0
00 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation Services
Facsimile No.: 612 9221 7870
Additionally, a copy of all notices as well as any changes to
counterparty's address, telephone number or facsimile number should be
sent to:
Address: Securitisation Advisory Services Pty. Limited
Level 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
Address for notices or communications to CBA as Xxxxxxx Xxxx Provider
and (on and from the Novation Date) as Party A:
Address: Commonwealth Bank of Australia
Level 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation
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Facsimile No.: 612 9378 2481
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
MLIA as Party A appoints as its Process Agent: not applicable.
Party B appoints as its Process Agent: not applicable.
CBA as Xxxxxxx Xxxx Provider and (on and from the Novation Date) as
Party A appoints as its Process Agent: not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent.
(i) The Calculation Agent is:
(A) in respect of all notices, determinations and calculations
in respect of amounts denominated in US$, the Agent Bank;
and
(B) in respect of all other notices, determinations and
calculations, the Manager.
(ii) All determinations and calculations by the Calculation Agent
will:
(A) be made in good faith and in the exercise of its commercial
reasonable judgment; and
(B) be determined, where applicable, on the basis of then
prevailing market rates or prices.
All such determinations and calculations will be binding on Party A
and Party B in the absence of manifest error. The Manager (or, if the
Manager fails to do so and Party A notifies Party B, Party B)
covenants in favour of Party A to use reasonable endeavours
(including, without limitation, taking such action as is reasonably
necessary to promptly enforce the obligations of the Agent Bank under
the Agency Agreement) to ensure that the Agent Bank performs its
obligations as Calculation Agent under this Agreement.
(f) Credit Support Document. Details of any Credit Support Document:
(i) In relation to MLIA as Party A: A Guarantee from Xxxxxxx Xxxxx
& Co. Inc ("M L & Co.") in respect of the Series Trust in the
form attached hereto as Annexure 2.
(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 MLIA as Party A: M L & Co.
(ii) In relation to Party B: None.
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(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.
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Part 5 Other Provisions
(1) Payments: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party (if any)".
(b) In Section 2(a)(ii) the first sentence is deleted and replaced
with the following sentence:
"Unless specified otherwise in this Agreement, payments under
this Agreement by:
(i) Party A, will be made by 10.00 am (New York time); and
(ii) Party B, will be made by 4.00pm (Sydney time),
on the due date for value on that date in the place of the
account specified in the relevant Confirmation or otherwise
pursuant to this Agreement, in freely transferable funds, free of
any set-off, counterclaim, deduction or withholding (except as
expressly provided in this Agreement) and in the manner customary
for payment in the required currency.".
(c) Insert a new paragraph (iv) in Section 2(a) immediately after
Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not
apply to a payment due to be made to a party if it has
satisfied all its payment obligations under Section
2(a)(i) of this Agreement and has no future payment
obligations, whether absolute or contingent under Section
2(a)(i)."
(d) Add the following new sentence to Section 2(b):
"Each new account so designated shall be in the same tax
jurisdiction as the original account."
(e) Amend Section 2(d) as follows:
(i) Delete the word "if" at the beginning of Section 2(d)(i)(4)
and insert the following words instead:
"if and only if X is Party A and".
(ii) In Section 2(d)(ii) insert the words "(if and only if Y is
Party A)" after the word "then" at the beginning of the
last paragraph.
Without prejudice to the above amendments, it is agreed that
Party B:
(iii) is not obliged to pay:
(1) any additional amount to Party A under Section
2(d)(i)(4); or
(2) any amount to Party A under Section 2(d)(ii); and
(iv) will not receive payments under this Agreement or any
Transaction from which deductions or withholdings have been
made.
9
(2) Party B's Payment Instructions: Party B irrevocably authorises and
instructs Party A to make payment of:
(i) the Initial Exchange Amount due from Party A to Party B in
respect of the Initial Exchange Date by paying that amount direct
to the account notified in writing by Party B to Party A for that
purpose; and
(ii) any other amount due from Party A to Party B under this Agreement
by paying that amount direct to the Principal Paying Agent to the
account outside Australia notified in writing by the Principal
Paying Agent to Party A for that purpose.
(3) Party A's Payment Instructions: Party A irrevocably authorises and
instructs Party B to make payment of:
(i) any amount denominated in A$ due from Party B to the account in
Sydney notified in writing by Party A to Party B from time to
time; and
(ii) any amount denominated in US$ due from Party B to the account
notified in writing by Party A to Party B from time to time.
(4) Representations: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the
words "creditors' rights generally" the following:
"(including in the case of a party being an ADI (as that term is
defined in the Reserve Bank Act, 1959 (Cth)) and section 13A(3)
of the Banking Act, 1959 (Cth)).";
(b) Relationship Between Parties. Each party will be deemed to
represent to the other parties on the date on which it enters
into a Transaction that (absent a written agreement between the
parties that expressly imposes affirmative obligations to the
contrary for that Transaction):-
(i) Non-Reliance. It is acting for its own account (in the
case of Party B, as trustee of the Series Trust), and it
has made its own independent decisions to enter into that
Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
(and in the case of Party B, also on the judgment of the
Manager) and upon advice from such advisers as it has
deemed necessary. It is not relying on any communication
(written or oral) of any other party as investment advice
or as a recommendation to enter into that Transaction; it
being understood that information and explanations related
to the terms and conditions of a Transaction will not be
considered investment advice or a recommendation to enter
into that Transaction. No communication (written or oral)
received from any other party will be deemed to be an
assurance or guarantee as to the expected results of that
Transaction.
(ii) Evaluation and Understanding. It is capable of evaluating
and understanding (on its own behalf or through
independent professional advice), and understands and
accepts, the terms, conditions and risks of that
Transaction. It is also capable of assuming, and assumes,
the risks of that Transaction.
(iii) Status of Parties. No other party is acting as a fiduciary
or an adviser to it in respect of that Transaction.
(c) insert the following new paragraphs (g), (h) and (i) in Section 3
immediately after
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Section 3(f):
(g) Series Trust. By Party B, in respect of Party B only:
(i) Trust Validly Created. The Series Trust has been validly
created and is in existence at the Trade Date of the first
occurring Transaction.
(ii) Sole Trustee. It has been validly appointed as trustee of
the Series Trust and is presently the sole trustee of the
Series Trust.
(iii) No Proceedings to Remove. No notice has been given to it
and to its knowledge no resolution has been passed, or
direction or notice has been given, removing it as trustee
of the Series Trust.
(iv) Power. It has power under the Master Trust Deed to:
(A) enter into and perform its obligations under this
Agreement and each Credit Support Document in
relation to Party B in its capacity as trustee of
the Series Trust; and
(B) mortgage or charge the Assets of the Series Trust
in the manner provided in the Credit Support
Document in relation to Party B,
and its entry into this Agreement and each Credit Support
Document in relation to Party B is in the interests of the
beneficiaries of the Series Trust and does not constitute a
breach of trust.
(v) Good Title. It is the lawful owner of the Assets of the
Series Trust and, subject only to the Credit Support
Document in relation to Party B and any Security Interest
permitted under the Credit Support Document in relation to
Party B, those Assets are free of all other Security
Interests (except for Party B's right of indemnity out of
the Assets of the Series Trust).
(vi) Eligible 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
USD10,000,000, the Series Trust will have total assets
exceeding USD10,000,000.
(h) Non-assignment. It has not assigned (whether absolutely, in
equity, by way of security or otherwise), declared any trust over
or given any charge over any of its rights under this Agreement
or any Transaction except, in the case of Party B, for the
Security Interests created under each Credit Support Document in
relation to Party B.
(i) Contracting as principal. Each existing Transaction has
been entered
11
into by that party as principal and not otherwise."
(5) Event of Default: In Section 5(a):
(a) Failure to Pay or Deliver: delete paragraph (i) and replace it
with the following:
""(i) Failure to Pay or Deliver. Failure by the party to make,
when due, any payment under this Agreement or delivery
under Section 2(a)(i) or 2(e) required to be made by it if
such failure is not remedied at or before:
(1) where the failure is by Party B, 10.00am on the tenth
day after notice of such failure is given to Party
B;" and
(2) where the failure is by Party A, 10.00am on the tenth
day after notice of such failure is given to Party
A;";
(b) Consequential amendments:
(i) delete "or" at the end of Section 5(a)(vii); and
(ii) replace the full stop at the end of Section 5(a)(viii) with
"; or"; and
(c) Downgrade Obligations: insert the following new paragraph (ix):
"(ix) Downgrade Obligations. In respect of Party A only, Party A
fails to comply with Part 5(22) of the Schedule if such
failure is not remedied on or before the tenth Business
Day (or such later day as Party B and the Manager may
agree and which the Rating Agencies confirm in writing
will not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them to
the Relevant Notes) after notice of such failure is given
to Party A.".
(6) Termination Events:
(a) Illegality: In respect of each Transaction, the parties agree
that the imposition by any Governmental Agency of an Australian
jurisdiction of any exchange controls, restrictions or
prohibitions which would otherwise constitute an Illegality for
the purposes of Sections 5(b)(i) or 5(c) will not be an event
which constitutes an Illegality for the purposes of those
Sections so that, following the occurrence of that event:
(i) neither Party A nor Party B will be entitled to designate
an Early Termination Date in respect of that Transaction
as a result of that event occurring;
(ii) payment by Party B in accordance with Part 5(3) of the
Schedule will continue to constitute proper performance of
its payment obligations in respect of that Transaction;
and
(iii) Party A's obligations in respect of that Transaction or
this Agreement will, to the extent permitted by law, be
unaffected by the occurrence of that event.
(b) Party A's limited rights in relation to Tax Event:
(i) Notwithstanding Part 1(c)(iii) of the Schedule, but
subject to Section 6(b)(ii), Party A may designate an
Early Termination Date if it is an Affected Party
following a Tax Event but only if the Relevant Note
Trustee has notified the parties in writing that it is
satisfied that all
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amounts owing to the Relevant Noteholders will be paid in
full on the date on which the Relevant Notes are to be
redeemed.
(ii) If a Tax Event occurs where Party A is the Affected Party
and Party A is unable to transfer all its rights and
obligations under this Agreement and each Transaction to
an Affiliate pursuant to Section 6(b)(ii), Party A may, at
its cost, transfer all its rights, powers and privileges
and all its unperformed and future obligations under this
Agreement and each Transaction to any person provided
that:
(A) each Rating Agency has confirmed in writing that the
transfer will not result in a reduction,
qualification or withdrawal of the credit ratings
then assigned by them to the Relevant Notes; and
(B) that person has a long term credit rating assigned by
each Rating Agency of at least the long term credit
rating assigned by that Rating Agency to ML & Co. 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 Distribution Date immediately
following the date that such amount would otherwise be
payable under Section 6(d)(ii) (or will be payable on that
date if that date is a Distribution Date) except to the
extent that such amount may be satisfied from an earlier
distribution under the Security Trust Deed or the payment
of an upfront premium in respect of a Replacement Currency
Swap in accordance with Part 5(17)(b).
(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
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at such time would permit it to enter into
transactions with the transferee on the terms
proposed; or
(2) where the other party is Party B, if the Rating
Agencies have confirmed in writing that such
transfer will not result in a reduction,
qualification or withdrawal of the credit
ratings then assigned by them to the Relevant
Notes.
(e) Notice of Event of Default. For the purposes of Section
6(a) and (b):
(i) Party A may only provide a notice specifying an Event
of Default to Party B as the Defaulting Party and may
only designate an Early Termination Date following a
Termination Event where Party A or Party B (or both)
is the Affected Party or the Burdened Party; and
(ii) the Standby Swap Provider may not issue a notice
specifying an Event of Default or designating an
Early Termination Date (except as Party A on or after
the Novation Date).
(8) No Set-Off: Section 6(e) is amended by deleting the last sentence
of the first paragraph.
(9) Transfer: Section 7 is replaced with:
"7. Essential term: Transfer
(a) Neither the interests nor the obligations of any party in or
under this Agreement (including any Transaction) are capable
of being assigned or transferred (whether at law, in equity
or otherwise), charged or the subject of any trust (other
than the Series Trust or the trusts created pursuant to the
Credit Support Document in relation to Party B) or other
fiduciary obligation. Any action by a party which purports
to do any of these things is void.
(b) Nothing in this Section 7:
(i) restricts a transfer by a party after the other
parties have agreed to the variation of this
Agreement in accordance with Part 5(20) to the extent
necessary to permit such transfer;
(ii) restricts a novation of the interests and obligations
of a party in or under this Agreement (including any
Transaction) for the purposes of giving effect to a
transfer under Section 6(b)(ii);
(iii) restricts a transfer by a party of all or any part of
its interest in any amount payable to it from a
Defaulting Party under Section 6(e);
(iv) restricts a transfer by Party B or the Manager to a
Substitute Trustee or Substitute Manager,
respectively, in accordance with the Master Trust
Deed;
(v) restricts Party B from granting security over a
Transaction or this Agreement pursuant to any Credit
Support Document in relation to Party B; or
(vi) limits Parts 5(6)(b)(ii), 5(22), 5(23), 5(24) or
5(25).
(c) Each party acknowledges that the other party enters into
this Agreement and each Transaction on the basis that this
Section 7 must be strictly observed and is essential to the
terms of this Agreement (including each Transaction)."
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(10) Facsimile Transmission: In Section 12:
(a) delete Section 12(a)(ii); and
(b) replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission:
(A) in the case of any notice or other communication pursuant
to Parts 5(23), (24) or (25), on the date that
transmission is received by a responsible employee of the
recipient in legible form (it being agreed that the
burden of proving receipt will be on the sender and will
not be met by a transmission report generated by the
sender's facsimile machine); or
(B) otherwise, on the date a transmission report is produced
by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to
the facsimile number of the recipient notified for the
purpose of this Section unless the recipient notifies the
sender within one Business Day of the facsimile being
sent that the facsimile was not received in its entirety
in legible form;".
(11) Definitions
In this Agreement, unless the contrary intention appears:
(a) Master Trust Deed: subject to Part 5(11)(h), unless defined in this
Agreement words and phrases defined in the Master Trust Deed, and the
Series Supplement have the same meaning in this Agreement. Subject to
Part 5(11)(h), where there is any inconsistency in a definition
between this Agreement (on the one hand) and the Master Trust Deed or
the Series Supplement (on the other hand), this Agreement prevails.
Where there is any inconsistency in a definition between the Master
Trust Deed (on the one hand) and the Series Supplement (on the other
hand), the Series Supplement prevails over the Master Trust Deed in
respect of the Series Trust. Where words or phrases used but not
defined in this Agreement are defined in the Master Trust Deed in
relation to a Series Trust (as defined in the Master Trust Deed) such
words or phrases are to be construed in this Agreement, where
necessary, as being used only in relation to the Series Trust;
(b) Trustee Capacity:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the relevant Series Trust only, and in
no other capacity; and
(ii) a reference to the undertaking, assets, business or money of
Party B is a reference to the undertaking, assets, business or
money of Party B in the capacity referred to in paragraph
11(b)(i) only;
(c) Definitions: in Section 14:
(i) replace the definitions of "Affected Transactions" and
"Local Business Day" with the following:
""Affected Transactions" means, with respect to a
Termination Event, all Transactions."
""Local Business Day" has the same meaning as "Business Day"."
15
(ii) insert the following new definitions:
"BBSW" or "AUD-BBR-BBSW" in relation to a Calculation Period
means the rate appearing at approximately 10.00 am Sydney time
on the Reset Date for that Calculation Period on the Reuters
Screen page "BBSW" as being the average of the mean buying and
selling rates appearing on that page for a bill of exchange
having a tenor of three months. If:
(a) on that Reset Date fewer than 4 banks are quoted on the
Reuters Screen page "BBSW"; or
(b) for any other reason the rate for that day cannot be
determined in accordance with the foregoing procedures,
then "BBSW" or "AUD-BBR-BBSW" means such rate as is specified
by the Calculation Agent having regard to comparable indices
then available.
"Credit Support Annex" means the Credit Support Annex annexed
to this Agreement.
"Distribution Date" has the meaning given in Section 16.
"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 date 8 October
1997 between Party B and the Manager, as amended from time to
time.
"MLIA/CBA ISDA Master Agreement" means the ISDA Master
Agreement dated 20 November 1995 between MLIA and CBA, as
amended from time to time.
"Novation Date" means the date upon which the obligations of
MLIA 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
16
(b) a period of 5 Business Days from the date of
determination of the relevant credit rating where any
Joint Rating immediately after that determination is less
than a short term credit rating of A-1 by S&P or less
than a long term credit rating of A- by S&P, A3 by
Xxxxx'x and A- by Fitch.
"Prescribed Ratings" means a short term credit rating of A-1
by S&P or a long term credit rating of AA- by S&P and long
term credit ratings of AA- by Fitch and A2 by Xxxxx'x.
"Relevant Calculation Amount" has the meaning given in Section
16.
"Relevant Notes" has the meaning given in Section 16.
"Relevant Note Trustee" has the meaning given in Section 16.
"Relevant Noteholders" has the meaning given in Section 16.
"Scheduled Maturity Date" has the meaning given in Section
16.
"Security Trust Deed" has the meaning given in Section 16.
"Series Supplement" has the meaning given in Section 16..
"Series Trust" has the meaning given in Section 16.
(d) Interpretation:
(i) references to time are references to Sydney time;
(ii) a reference to "wilful default" in relation to Party B means,
subject to Part 5(11)(d)(iii) of this Schedule, any wilful
failure by Party B to comply with, or wilful breach by Party
B of, any of its obligations under any Transaction Document,
other than a failure or breach which:
A. (1) arises as a result of a breach of a Transaction
Document by a person other than:
(a) Party B; or
(b) any other person referred to in Part
5(11)(d)(iii) of this Schedule; and
(2) the performance of the action (the non-performance
of which gave rise to such breach) is a
precondition to Party B performing the said
obligation;
B. is in accordance with a lawful court order or direction
or required by law; or
C. is in accordance with any proper instruction or direction
of the Investors given at a meeting convened under the
Master Trust Deed;
(iii) a reference to the "fraud", "negligence" or "wilful default"
of Party B means the fraud, negligence or wilful default of
Party B and of its officers, employees, agents and any other
person where Party B is liable for the acts or omissions of
such other person under the terms of any Transaction
Document;
17
(iv) a reference to "neither party" will be construed as a
reference to "no party";
(v) a reference to "other party" will be construed as a reference
to "other parties"; and
(vi) a reference to a credit rating of MLIA means the higher of
the relevant credit ratings of MLIA and M L & Co.
(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
18
extent to which it can be satisfied out of the Assets of that
Series Trust out of which Party B is actually indemnified for
the liability. This limitation of Party B's liability applies
despite any other provision of this Agreement (other than
Section 15(c)) and extends to all liabilities and obligations
of Party B in any way connected with any representation,
warranty, conduct, omission, agreement or transaction related
to this Agreement.
(b) (Claims against Party B): The parties other than Party B may
not sue Party B in respect of liabilities incurred by Party B
acting in its capacity as trustee of a Series Trust in any
other capacity other than as trustee of that Series Trust,
including seeking the appointment of a receiver (except in
relation to Assets of that Series Trust), or a liquidator, or
an administrator, or any similar person to Party B or prove in
any liquidation, administration or similar arrangements of or
affecting Party B (except in relation to the Assets of that
Series Trust).
(c) (Breach of trust): The provisions of this Section 15 will not
apply to any obligation or liability of Party B to the extent
that it is not satisfied 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):
19
(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
Xxxxxxx Xxxx Provider against Party B in Party B's said
several capacities);
(d) (Termination): rights of termination, and obligations and
entitlements consequent upon termination, only accrue to Party
A against Party B severally in Party B's respective capacities
as trustee of each Series Trust, and only accrue to Party B
against Party A severally in Party B's said several
capacities;
(e) (Events of Default and Termination Events): without limiting
Section 15, the occurrence of an Event of Default or
Termination Event in respect of one Series Trust shall not in
itself constitute an Event of Default or Termination Event in
respect of any other Series Trust; and
(f) (Definitions):
(i) the term "Series Trust":
(A) in this Section 16, means each Series Trust (as
defined in the Master Trust Deed) specified or to be
specified, as the context requires, as the relevant
Series Trust in the Confirmation for a Transaction;
and
(B) elsewhere in this Agreement, means each such Series
Trust severally in accordance with the preceding
provisions of this Section 16;
(ii) the term "Transaction":
(A) in this Section 16, means each Transaction governed
by this Agreement; and
(B) elsewhere in this Agreement, means each such
Transaction entered into by the trustee as Trustee
20
of the relevant Series Trust;
(iii) the term "Agreement":
(A) in this Section 16 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, means the separate agreement referred
to in Section 16(b) in respect of each
particular Series Trust;
(iv) the terms "Distribution Date", "Relevant Calculation
Amount", "Relevant Note Trustee", "Relevant Notes",
"Relevant Noteholders", "Scheduled Maturity Date",
"Security Trust Deed" and "Series Supplement" in this
Agreement to the extent that it applies in relation to a
Series Trust have the respective meanings given to them in
the Confirmations for the Transactions of that Series
Trust."
(13) Further Assurances: Each party will, upon request by the other party (the
"requesting party") at the expense of the requesting party, perform all
such acts and execute all such agreements, assurances and other documents
and instruments as the requesting party reasonably requires (and, in the
case of Party B, are within the powers granted to Party B under the Master
Trust Deed) to assure and confirm the rights and powers afforded, created
or intended to be afforded or created, under or in relation to this
Agreement and each Transaction or other dealing which occurs under or is
contemplated by it.
(14) Procedures for Entering into Transactions
(a) With respect to each Transaction entered into pursuant to this
Agreement and for the purposes of Section 9(e)(ii), Party A will, by
or promptly after the relevant Trade Date, send Party B, the Standby
Swap Provider and the Manager a Confirmation substantially in the
form set out in Annexure 1 (or in such other form as may be agreed
between Party A, Party B, the Standby Swap Provider and the Manager),
and Party B, the Standby Swap Provider and the Manager must promptly
then confirm the accuracy of and sign and return, or request the
correction of, such Confirmation; and
(b) Party B will enter into each Transaction in its capacity as trustee
of the Series Trust.
(15) Authorised Officer: Each party will be entitled to assume, in the absence
of any knowledge to the contrary, that any Confirmation, notice or other
written communication, which is issued in respect of this Agreement and
which is purported to be signed on behalf of another party by a person
specified in the certificate provided by that other party under Part 3(b),
is authorised by that other party.
(16) Recorded Conversations: Each party:
(a) consents to the electronic recording of its telephone conversations
with the other party (or any of its associated persons) with or
without the use of an automatic tone warning device;
(b) will provide transcripts of such recordings (if any) upon reasonable
request by the other party (at the reasonable cost of the party
requesting); and
(c) acknowledges that neither is obligated to maintain copies of such
recordings and transcripts for the benefit of the other party.
21
(17) Replacement Currency Swap Agreement:
(a) If any Transaction under this Agreement is terminated prior to the
day upon which the Relevant Notes are redeemed in full, Party B may,
at the direction of the Manager, enter into one or more currency
swaps which replace that Transaction (collectively a "Replacement
Currency Swap") provided that:
(i) the Rating Agencies confirm in writing that the entry into the
Replacement Currency Swap by Party B does not result in a
reduction, qualification or withdrawal of the credit ratings
then assigned by them to the Relevant Notes; and
(ii) the liability of Party B under the Replacement Currency Swap is
limited to at least the same extent that its liability is
limited under that Transaction.
(b) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party B to Party
A upon termination of the Transaction referred to in Part 5(17)(a),
Party B must direct the Replacement Currency Swap provider to pay any
upfront premium to enter into the Replacement Currency Swap due to
Party B directly to Party A in satisfaction of and to the extent of
Party B's obligation to pay the Settlement Amount to Party A, and to
the extent such premium is not greater than or equal to the
Settlement Amount, the balance may be satisfied by Party B as an
Expense.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party A to Party
B upon termination of the Transaction referred to in Part 5(17)(a),
Party B may direct Party A to pay that amount to the Replacement
Currency Swap provider in satisfaction of or towards and to the
extent of Party B's obligation (if any) to pay an upfront premium to
the Replacement Currency Swap provider to enter into the Replacement
Currency Swap.
(d) The obligations of Party B (and the rights of Party A) under this
Part 5(17) will survive the termination of this Agreement.
(18) Knowledge or Awareness: Subject to Section 12(a), each party will only be
considered to have knowledge or awareness of, or notice of, a thing or
grounds to believe anything by virtue of the officers of that party or any
Related Body Corporate of that party which have the day to day
responsibility for the administration or management of that party's (or a
Related Body Corporate of that party's) obligations in relation to the
Series Trust or the Transactions entered into under this Agreement having
actual knowledge, actual awareness or actual notice of that thing, or
grounds or reason to believe that thing (and similar references will be
interpreted in this way).
(19) Restrictions on Party B's Rights: Party B must at all times act in
accordance with the instructions of the Manager in relation to this
Agreement.
(20) Amendment to this Agreement: None of Party A, Party B, the Standby Swap
Provider or the Manager may amend this Agreement unless the Rating
Agencies have confirmed in writing that the proposed amendment will not
result in a reduction, qualification or withdrawal of the credit ratings
then assigned by them to the Relevant Notes.
(21) Appointment of Manager: Party B hereby exclusively appoints the Manager as
its attorney to act on Party B's behalf and exercise all rights and powers
of Party B with respect to this Agreement. Without limiting the
generality of the foregoing, the Manager may issue and receive on behalf
of Party B all notices, certificates and other communications to or by
Party A under this Agreement until such time as Party B serves written
notice on Party A of the
22
revocation of the Manager's authority to act on behalf of Party B in
accordance with this Part 5(21) of the Schedule.
(22) Ratings Downgrade:
(a) (Downgrade): If, as a result of the reduction or withdrawal of the
credit rating of Party A or the Standby Swap Provider a Joint Rating
is less than the relevant Prescribed Rating, Party A must by the
expiry of the Prescribed Rating Period in relation to the credit
ratings assigned by the Rating Agencies to Party A and the Standby
Swap Provider at that time (or such greater period as is agreed to in
writing by each relevant Rating Agency), at its cost alone and at its
election:
(i) provided that the short term Joint Rating by S&P is greater
than or equal to A-1 or the long term Joint Rating by S&P is
greater than or equal to A- and the long term Joint Rating by
Fitch is greater than or equal to A-, lodge collateral in
accordance with the Credit Support Annex in an amount equal to
the Collateral Amount as defined in Part 5 (22)(b); or
(ii) enter into, and procure that the Standby Swap Provider enters
into, an agreement novating Party A's and/or the Standby Swap
Providers' rights and obligations under this Agreement and each
Transaction to a replacement counterparty acceptable to the
Manager and the Standby Swap Provider and which the Rating
Agencies confirm in writing will not result in a reduction,
qualification or withdrawal of the credit ratings then assigned
by them to the Relevant Notes; or
(iii) enter into, or procure that the Standby Swap Provider enters
into, such other arrangements in respect of each Transaction
which the Rating Agencies confirm in writing will not result in
a reduction, qualification or withdrawal of the credit ratings
then assigned by them to the Relevant Notes.
Notwithstanding that Party A has elected to satisfy its obligations
pursuant to this Part 5(22)(a) in a particular manner, it may
subsequently and from time to time vary the manner in which it
satisfies its obligations pursuant to this Part 5(22)(a) (but will
not be entitled to any additional grace period in relation to such a
variation).
(b) (Collateral Amount): For the purpose of this Part 5(22) the
Collateral Amount will be an amount equal to the greater of the
following:
(i) zero;
(ii) CCR; and
(iii) an amount acceptable to Xxxxx'x and Fitch and sufficient to
maintain the credit rating assigned to the Relevant Notes by
Xxxxx'x and Fitch immediately prior to the review of the Joint
Rating.
Where:
CCR = CR x 1.030
CR = MTM + VB
MTM means the aggregate mark-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
23
the Relevant Calculation Amount as at the most recent Distribution
Date by the relevant percentage obtained from the following table:
------------------------------------------------------------------------------------------------------------
Party A's and the Where the period between Where the period between Where the period between
Standby Swap the date of the date of the date of
Provider's jointly recalculation and the recalculation and the recalculation and the
supported long term Scheduled Maturity Date Scheduled Maturity Date Scheduled Maturity Date
credit rating by S&P is less than or equal to is greater than 5 years is greater than 10 years
5 years and less than or equal
to 10 year
-----------------------------------------------------------------------------------------------------------
A+ 1.05 1.75 3.0
-----------------------------------------------------------------------------------------------------------
A 1.35 2.45 4.5
-----------------------------------------------------------------------------------------------------------
A- 1.5 3.15 6
-----------------------------------------------------------------------------------------------------------
(c) (Mark to Market Value): Party A must calculate the mark-to-market
value of each Transaction by obtaining 2 bids from counterparties
with the Prescribed Ratings willing to provide each Transaction in
the absence of Party A. The mark-to-market value may be a positive or
a negative amount. A bid has a negative value if the payment to be
made is from the counterparty to Party A and has a positive value if
the payment to be made is from Party A to the counterparty. The mark-
to-market value is the higher of the bids (on the basis that any bid
of a positive value is higher than any bid of a negative value).
(d) (Recalculation): Party A must recalculate the Collateral Amount
(including the CCR and the mark-to-market value) on each Valuation
Date. If:
(i) the Value on such Valuation Date of all Posted Credit Support
held by the Secured Party is less than the recalculated
Collateral Amount, the difference is the Delivery Amount in
relation to that Valuation Date; or
(ii) the Value on such Valuation Date of all Posted Credit Support
held by the Secured Party is greater than the recalculated
Collateral Amount, the difference is the Return Amount in
relation to that Valuation Date.
(e) (Definitions): For the purposes of this Part 5(22) "Delivery
Amount", "Posted Credit Support", "Secured Party", "Value" and
"Valuation Date" have the same meaning as in the Credit Support
Annex.
(23) Transfer: Notwithstanding the provisions of Section 7, MLIA 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
subsidiary of ML & Co ("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 MLIA as Party A and the Transferee and an
executed guarantee of the Transferee's transferred obligations in the form
of Annexure 2. Upon delivery of those documents to Party B:
(a) (Party A's rights terminate): MLIA's rights powers privileges and
obligations as Party A under this Agreement and each Transaction
terminate;
(b) (Transfer and Assumption): MLIA will be taken to have transferred its
rights powers and privileges under this Agreement and each
Transaction to the Transferee and the Transferee will be taken to
have assumed obligations equivalent to those Party A had under this
Agreement and each Transaction;
(c) (Release): Party B will be taken to have released MLIA 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 MLIA as Party A.
24
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 MLIA and the Standby Swap Provider in the
MLIA/CBA ISDA Master Agreement).
(24) Xxxxxxx Xxxx Provider:
(a) (Commitment): Notwithstanding any other provision in this Agreement
to the contrary, if MLIA 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
MLIA as Party A and the Standby Swap Provider in writing of
such failure and:
(A) the amount of the defaulted payment and the basis of
calculation of the defaulted payment; or
(B) details of the failure to comply with the obligation under
Part 5(22),
as the case may be; and
(iv) as soon as reasonably practicable after its receipt of such
notice (and in any event, in relation to a failure to pay under
a Transaction, no later than 1.30 pm (New York time) on the due
date for such payment, and, in relation to a failure to comply
with an obligation under Part 5(22), no later than 3 Business
Days after the failure to comply with such obligation,
provided, in each case, that notice has been given by Party B
by the required times in accordance with Part 5(24)(a)(iii))
the Standby Swap Provider must:
(A) in relation to a failure to pay under a Transaction, pay
to Party B the amount then owing by MLIA 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 MLIA 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), MLIA as
Party A must by 2.00 pm (New York time) on the next
25
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 MLIA as Party A pursuant to
Part 5(24)(a)(iv)(B), MLIA 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 MLIA
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 cost
or liability incurred by the Standby Swap Provider in
satisfying those obligations.
(c) (Novation): If:
(i) MLIA 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) MLIA as Party A fails to fulfill its obligations
under Part 5(24)(b)(ii)(A),
then:
(iv) MLIA's rights, powers, privileges and obligations as
Party A under this Agreement and each Transaction
terminate other than its rights, powers, privileges
and obligations pursuant to Part 5(24)(d) and
Paragraph 13(m)(vii) of the Credit Support Annex;
(v) subject to Part 5(24)(c)(vii), MLIA 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 MLIA as Party A had under
this Agreement and each Transaction;
(vi) Party B and the Standby Swap Provider will be taken
to have released MLIA as Party A from all its
unperformed and future obligations under this
Agreement and each Transaction other than its present
and future obligations pursuant to Part 5(24)(d);
(vii) this Agreement and the Confirmation relating to each
26
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 "MLIA as Party A" will not apply
to the Standby Swap Provider as Party A;
(B) references to any jointly supported credit
rating of Party A and the Standby Swap
Provider will be deemed to be references to
the relevant credit rating of the Standby Swap
Provider;
(C) without limiting Part 5(24)(c)(vii)(A), this
Part 5(24) and Paragraph 13(m)(vii) of the
Credit Support Annex will not apply to the
Standby Swap Provider as Party A;
(D) the Standby Swap Provider must (if it has not
already done so) satisfy the obligations of
Party A under Part 5(22)(a) within 10 Business
Days of the Novation Date on the basis that
any collateral lodged by MLIA as Party A or
any other arrangements made by MLIA as Party A
pursuant to Part 5(22)(a)(iii) will be
returned to MLIA as Party A or will cease (but
such collateral will only be returned and such
arrangements will only cease upon compliance
by the Standby Swap Provider with its
obligations under this Part 5(24)(c)(vii)(D)
and otherwise, where applicable, in accordance
with Paragraph 13(m)(vii) of the Credit
Support Annex or the terms of such
arrangements).
(d) (Termination Payment): Following novation under Part
5(24)(c) MLIA as Party A must pay the Standby Swap Provider
or the Standby Swap Provider must pay MLIA as Party A an
amount (the "Novation Settlement Amount") being:
(i) in the case of payment by MLIA 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 MLIA as Party A, an amount equal to the amount (if
any) that would be payable by Party B to Party A,
if each Transaction had been terminated, calculated and
payable in accordance with Sections 6(d) and (e) on the
basis that:
(i) the Novation Date is the Early Termination Date and
the Novation Settlement Amount is due and payable on
the day that notice of the amount payable is
effective;
(ii) the Early Termination Date has resulted from an Event
of Default in respect of which Party A is the
Defaulting Party;
(iii) all calculations and determinations which would have
been done by Party B are done by the Standby Swap
Provider and all calculations and determination that
would have been done by Party A are done by XXXX;
(iv) a reference to Unpaid Amounts owing to Party B is a
reference to such amounts payable by Party A to the
Standby
27
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 MLIA 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 MLIA as Party A under Part
5(24)(a)(iv)(B) by lodging collateral on behalf of MLIA as
Party A pursuant to Part 5(22)(a), MLIA 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 MLIA 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.
28
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
Level 3 Level 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
Level 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation
CONFIRMATION - [NAME OF TRANSACTION]
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the terms specified below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
This Confirmation is entered into by Perpetual Trustee Company Limited, ACN 000
001 007 as trustee of the Series [] Medallion Trust (the "Series Trust").
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented
from time to time (the "Agreement"), between Xxxxxxx Xxxxx International
(Australia) Limited, ACN 002 892 846("Party A"), Perpetual Trustee Company
Limited, ACN 000 001 007 as trustee of, inter alia, the Series Trust ("Party
B"), Securitisation Advisory Services Pty. Limited, ACN 064 133 946 (the
"Manager") and Commonwealth Bank of Australia, ACN 123 123 124 (the "Standby
Swap Provider"). All provisions contained in the Agreement govern this
Confirmation except as expressly modified below.
This Confirmation incorporates the attached Definitions Schedule which forms
part of, and is subject to, this Confirmation.
The terms of the particular Transaction to which this Confirmation relates are
specified below:
1. Our Reference: [ ]
2. Trade Date: [ ]
3. Effective Date: Issue Date in respect of the Relevant Notes
4. Termination Date: The earlier of:
(a) the date that the Relevant Notes have been
29
redeemed in full in accordance with the
Note Conditions; and
(b) the Scheduled Maturity Date,
5. Floating Amounts
5.1 Floating Amounts Payable
by Party A (subject to
Paragraph 9 of this
Confirmation):
Floating Rate Payer: Party A
Calculation Amount: For each Floating Rate Payer Payment Date, one
half of the aggregate Invested Amount of the
Relevant Notes as at the first day of the
Calculation Period ending on but excluding
that Floating Rate Payer Payment Date
Floating Rate Payer Each Distribution Date during the period
Payment Dates: commencing on and including [ ] and ending on
and including the Termination Date, subject to
adjustment in accordance with the Following
Business Day Convention
Floating Rate Option: USD-LIBOR-BBA (except that 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: [ ] months (except that Linear Interpolation
using [ ] and [ ]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 Actual/360
Fraction:
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Class A-1 Unpaid Coupon On each Floating Rate Payer Payment Date,
Amount Party A will pay to Party B an amount
calculated as follows:
LIBOR
$USUC=$AUCx-----x$USExchangeRate
BBSW
where:
$US UC = the amount to be paid by Party A;
$A UC = the A$ Class A-1 Unpaid Interest
30
Payment in relation to the
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 : Each Distribution Date during the period
Payment Dates commencing on and including [ ] and ending
on and including the Termination Date,
subject to adjustment in accordance with
the Following Business Day Convention
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: [ ] months (except that Linear
Interpolation using [ ] and [ ] 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 On each Floating Rate Payer Payment Date
Amount Party B will pay to Party A the A$ Class
A-1 Unpaid Interest Payment in relation to
the Distribution Date which is the same day
as that Floating Rate Payer Payment Date.
6. Exchanges
31
6.1 Initial Exchange:
Initial Exchange Date: Issue Date
Party A Initial Exchange The A$ Equivalent of the Party B Initial
Amount: Exchange Amount, being A$[ ]
Party B Initial Exchange One half of the Initial Invested Amount of
Amount: the Relevant Notes on the Issue Date ,
being US$[ ]
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 In respect of an Instalment Exchange Date
Amount: means the US$ Equivalent of one half of the
A$ Class A-1 Principal Amount in relation
to the Distribution Date occurring on that
Instalment Exchange Date
Party B Instalment Exchange In respect of an Instalment Exchange Date
Amount: means one half of the A$ Class A-1
Principal Amount in relation to the
Distribution Date occurring on that
Instalment Exchange Date
6.3 Final Exchange:
Final Exchange Date: Termination Date
Party A Final Exchange The US$ Equivalent of one half of the A$
Amount: Class A-1 Principal Amount in relation to
the Distribution Date which is the Final
Exchange Date
Party B Final Exchange One half of the A$ Class A-1 Principal
Amount: Amount in relation to the Distribution Date
which is the Final Exchange Date
7. Exchange Rates:
For the purpose of the
definitions of "A$
Equivalent" and "US$
Equivalent":
US$ Exchange Rate: [ ]
A$ Exchange Rate: [ ]
8. Account Details:
8.1 Payments to Party A
Account for payments in 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
32
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
Distribution Date pursuant to
clause 10.5(b)(i) of the Series
Supplement;
(b) the A$ Class A-1 Interest Payment
in relation to that Distribution
Date;
(c) the amounts (if any) allocated to
the Class A-1 Notes in respect of
any Principal Charge-off or
Principal Charge-off Reimbursement
on the immediately preceding
Determination Date in accordance
with Conditions 7.9 and 7.10 of the
Note Conditions; and
(d) the A$ Class A-1 Unpaid Interest
Payment (if any) in relation to
that Distribution Date.
10. Offices: The Office of MLIA as Party A for each
Transaction isSydney.
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
SIGNED for and on behalf of
XXXXXXX LYNCHINTERNATIONAL (AUSTRALIA) LIMITED, ABN 31 002 892 846
By: _____________________________
(Authorised Officer)
Name: _____________________________
Title: _____________________________
33
Confirmed as at the date first Confirmed as at the date first
written above: written above:
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE SECURITISATION ADVISORY SERVICES PTY.
COMPANY LIMITED, ACN 000 001 007 LIMITED, ACN 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, ACN 123 123 124
By: _____________________________
(Authorised Officer)
Name: _____________________________
Title: _____________________________
34
Definitions Schedule
In this Confirmation and in the Agreement to the extent that it relates to the
Series Trust, unless the context otherwise requires:
"A$ Class A-1 Unpaid Interest Payment" means in relation to a Distribution Date
the amount available to be allocated towards payment to Party A in respect of A$
Class A-1 Unpaid Interest Amounts on that Distribution Date in accordance with
clause 10.2(k)(i) of the Series Supplement determined on the basis that all
amounts allocated towards payment of A$ Class A-1 Interest Amounts and A$ Class
A-1 Unpaid Interest Amounts pursuant to clause 10.2(k)(i) of the Series
Supplement are allocated first towards payment of A$ Class A-1 Interest Amounts
and then, once the A$ Class A-1 Interest Amounts are paid in full, towards
payment of A$ Class A-1 Unpaid Interest Amounts.
"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 Distribution Date means on or about
11.00am Sydney time 1 Business Day prior to that Distribution Date.
"Distribution Date" has the same meaning as in the Series Supplement.
"Note Conditions" means the terms and conditions of the Relevant Notes annexed
to the Relevant Notes.
"Relevant Calculation Amount" means the Calculation Amount referred to in
paragraph 5.1 of this Confirmation.
"Relevant Notes" means the Class A-1 Notes issued by the Trustee under the 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, ACN 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.
35
Annexure 2
FORM OF GUARANTEE OF XXXXXXX XXXXX & CO., INC.
FOR VALUE RECEIVED, receipt of which is hereby acknowledged, XXXXXXX XXXXX &
CO., INC., a corporation duly organized and existing under the laws of the State
of Delaware ("ML & Co."), hereby unconditionally guarantees to:
(a) Perpetual Trustee Company Limited, ACN 000 001 007 (the "Company") as
trustee of the Series [] Medallion Trust (the "Series Trust"), the due
and punctual payment of any and all amounts payable by Xxxxxxx Xxxxx
International (Australia) Limited, ABN 31 002 892 846 a company
incorporated in the New South Wales, Australia ("MLIA"), to the Company
as trustee of the Series Trust under the terms of the ISDA Master
Agreement (Currency Swap Agreement) between the Company, Securitisation
Advisory Services Pty. Limited, ACN 064 133 946, Commonwealth Bank of
Australia, ACN 123 123 124 as Standby Swap Provider and MLIA as Party A,
dated as of [] (the "Agreement"), including, in case of default,
interest on any amount due, when and as the same shall become due and
payable, whether on the scheduled payment dates, at maturity, upon
declaration of termination or otherwise, according to the terms thereof;
and
(b) Commonwealth Bank of Australia, ACN 123 123 124 ("CBA") the due and
punctual payment of any and all amounts payable by MLIA to CBA under the
terms of the Agreement, including all amounts due under Parts 5(24)(b),
(d) and (e) of the schedule to the Agreement.
In case of the failure of MLIA punctually to make any such payment, ML & Co.
hereby agrees to make such payment, or cause such payment to be made, promptly
upon demand made by the Company (in the case of amounts referred to in paragraph
(a)) or CBA (in the case of amounts referred to in paragraph (b)) to ML & Co.;
provided, however that delay by the Company or CBA (as the case may be) in
giving such demand shall in no event affect ML & Co.'s obligations under this
Guarantee. This Guarantee shall remain in full force and effect or shall be
reinstated (as the case may be) if at any time any payment guaranteed hereunder,
in whole or in part, is rescinded or must otherwise be returned by the Company
or CBA upon the insolvency, bankruptcy or reorganization of MLIA or otherwise,
all as though such payment had not been made.
ML & Co. hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Agreement; the
absence of any action to enforce the same; any waiver or consent by the Company
or CBA concerning any provisions thereof; the rendering of any judgment against
MLIA or any action to enforce the same; or any other circumstances that might
otherwise constitute a legal or equitable discharge of a guarantor or a defense
of a guarantor. ML & Co. covenants that this guarantee will not be discharged
except by complete payment of the amounts payable under the Agreement. This
Guarantee shall continue to be effective if MLIA merges or consolidates with or
into another entity, loses its separate legal identity or ceases to exist.
ML & Co. hereby waives diligence; presentment; protest; notice of protest,
acceleration, and dishonor; filing of claims with a court in the event of
insolvency or bankruptcy of MLIA; all demands whatsoever, except as noted in the
fourth paragraph hereof; and any right to require a proceeding first against
MLIA.
ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid
obligation of ML & Co. and complies with all applicable laws.
This Guarantee shall be governed by, and construed in accordance with, the laws
of the State of New York.
This Guarantee may be terminated at any time by notice by ML & Co. to the
Company and CBA given in accordance with the notice provisions of the Agreement,
effective upon receipt of such notice by each of the Company and CBA or such
later date as may be specified in such notice; provided, however, that this
Guarantee shall continue in full force and effect with respect to any obligation
of MLIA under the Agreement entered into prior to the effectiveness of such
notice of termination.
36
This Guarantee becomes effective concurrent with the effectiveness of the
Agreement, according to its terms.
The obligations of ML & Co. to the Company and CBA under this Agreement are
several and may be enforced by each of the Company and CBA without reference to
the other.
IN WITNESS WHEREOF, ML & Co. has caused this Guarantee to be executed in its
corporate name by its duly authorized representative.
XXXXXXX XXXXX & CO., INC.
By: ________________________
Name: ________________________
Title: ________________________
Date: ________________________
37
Paragraph 13 to New York Law Credit Support Annex
(13) Elections and Variables
(a) Security Interest for "Obligations"
The term "Obligations" as used in this Annex includes the
additional obligations referred to in Paragraph 13(m)(vii)(B).
"Base Currency" means US$.
"Eligible Currency" means the Base Currency and any other currency
agreed from time to time between Party A, Party B, the Standby Swap
Provider and each Rating Agency.
(b) Credit Support Obligations
(i) Delivery Amount and Return Amount
"Delivery Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(22)(d)(i) for
that Valuation Date.
"Return Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(22)(d)(ii) for
that Valuation Date.
(ii) Eligible Collateral. The following items will qualify as
"Eligible Collateral" for Party A provided that the items
specified in paragraphs (E), (F), (G) and (H) will only
qualify as "Eligible Collateral" of Party A upon receipt by
Party B and the Standby Swap Provider of an opinion as to the
perfection of the Secured Party's security interest in such
items in form and substance (and issued by legal counsel)
satisfactory to Party B and the Standby Swap Provider:
Valuation
Percentage
(A) negotiable debt obligations issued by the 98%
U.S. Treasury Department having a remaining
maturity of not more than one year
(B) negotiable debt obligations issued by the 95%
U.S. Treasury Department having a remaining
maturity of more than one year but not more
than five years
(C) negotiable debt obligations issued by the 93%
U.S. Treasury Department having a remaining
maturity of more than five years but not more
than ten years
(D) negotiable debt obligations issued by the 90%
U.S. Treasury Department having a remaining
maturity of more than ten years
(E) Agency Securities having a remaining maturity 97%
of not more than one year
(F) Agency Securities having a remaining maturity 94%
of more than one year but not more than five
years
38
(G) Agency Securities having a remaining maturity 92%
of more than five years but not more than ten
years
(H) Agency Securities having a remaining maturity 89%
of more than ten years.
(I) cash in an Eligible Currency. 100%
(J) other Eligible Credit Support and Valuation
Percentage agreed by the parties and acceptable to
each Rating Agency
Notwithstanding the foregoing to the contrary, the Valuation
Percentage with respect to all Eligible Credit Support shall
be deemed to be 100% with respect to a Valuation Date which is
an Early Termination Date.
"Agency Securities" means negotiable debt obligations which
are fully guaranteed as to both principal and interest by the
Federal National Mortgage Association, the Government National
Mortgage Corporation or the Federal Home Loan Mortgage
Corporation and which have been assigned a short term credit
rating of A-1+ by S&P, but exclude: (i) interest only and
principal only securities; and (ii) collateralized mortgage
obligations, real estate mortgage investment conduits and
similar derivative securities.
(iii) Other Eligible Support
Not applicable.
(iv) Thresholds
(A) "Minimum Transfer Amount" means with respect to both
Party A and Party B: US$100,000.
(B) Rounding. The Delivery Amount and the Return Amount
will be rounded to the nearest integral multiple of
US$10,000.
(c) Valuation and Timing
(i) "Valuation Agent" means Party A.
(ii) "Valuation Date" means the last Business Day of each week
and, at the option of either Party A or the Standby Swap
Provider, any Business Day between Valuation Dates.
(iii) "Valuation Time" means the close of business on the Business
Day before the Valuation Date; provided that the calculations
of Value and Exposure will be made as of approximately the
same time on the same date.
(iv) "Notification Time" means 11:00 am New York time on the
second Business Day after the Valuation Date.
(d) Conditions Precedent and Secured Party's Rights and Remedies
There are no "Specified Conditions" applicable to Party A. The
following is a Specified Condition with respect to Party B:
39
"If an Early Termination Date has been designated in respect of
each Transaction provided that if an amount is due by Party A to
Party B in respect of that Early Termination Date pursuant to
Section 6, that amount has been paid in full."
(e) Substitution
(i) "Substitution Date" has the meaning specified in paragraph
4(d)(ii).
(ii) Consent. Not applicable.
(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 Class A-1 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
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(i) Interest Rate. The "Interest Rate", in respect of Posted
Collateral which is denominated in US$, for any day means the
Federal Funds Overnight Rate. For the purposes hereof,
"Federal Funds Overnight Rate" means, for any day, an
interest rate per annum equal to the rate published as the
Federal Funds Effective Rate that appears on Telerate Page
118 for such day. The "Interest Rate" in respect of Posted
Collateral denominated in any other Eligible Currency means
the rate as agreed between the parties.
(ii) Transfer of Interest Amount. The Transfer of Interest Amount
will be made monthly on the second Business Day of each
calendar month.
(iii) Alternative to Interest Amount. The provisions of Paragraph
6(d)(ii) will apply.
(i) Additional Representation(s)
None.
(j) Other Eligible Support and Other Posted Support
"Value" and "Transfer" with respect to Other Eligible Support and
Other Posted Support means: not applicable.
(k) Demands and Notices
All demands, specifications and notices under this Annex will be
made pursuant to the Section 12 of this Agreement; provided, that
any such demand, specification or notice may be made by telephone
("Telephone Notice") between duly authorised employees of each
party if such Telephone Notice is confirmed by a subsequent written
instruction (which may be delivered via facsimile) by the close of
business of the same day that such Telephone Notice is given.
(l) Addresses for Transfers
Party A: Party A to specify account for returns of collateral.
Party B: Party B must notify Party A of its Custodian's account.
(m) Other Provisions
(i) Paragraph 4(b) of the Annex is replaced by the following:
"(b) Transfer Timing. Subject to Paragraph 4(a) and 5 and
unless otherwise specified, if a demand for the
Transfer of Eligible Credit Support or Posted Credit
Support is made by the Notification Time, then the
relevant Transfer will be made within three Business
Days of receipt of the demand; if a demand is made
after the Notification Time, then the relevant Transfer
will be made within four Business Days of receipt of
the demand."
(ii) Event of Default
Joint Ratings below specified levels
Paragraph 7(i) of the Annex is amended, on line 3, by
replacing "two Business Days" with "three Business Days".
41
(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 MLIA'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 MLIA as Party A (or from the Standby Swap
Provider on behalf of MLIA 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 MLIA as Party A to the Secured
Party as trustee of the Series Trust (other
than pursuant to Paragraph 13(m)(vii)(B));
and
(2) the Standby Swap Provider as security for the
Obligations of MLIA as Party A to the Standby
Swap Provider pursuant to Parts 5(24)(d) and
(e) of the Schedule to this Agreement and all
MLIA's present and future obligations to the
Standby Swap Provider under Paragraph
13(m)(v) of the credit support annex to the
MLIA/CBA ISDA Master Agreement,
42
in accordance with the provisions of this Paragraph
13(m)(vii), and Paragraph 2 is varied accordingly.
(B) MLIA 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; 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 MLIA/CBA
ISDA Master Agreement,
as and when the same fall due for payment.
Notwithstanding the foregoing, every payment by MLIA
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 MLIA as Party A
to the Secured Party in satisfaction of MLIA'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 MLIA as Party A (or from the Standby Swap
Provider on behalf of MLIA as Party A but not from
the Standby Swap Provider in its capacity as Party A)
hereunder:
(1) prior to the Novation Date, in accordance with
the provisions of this Agreement other than
this Paragraph 13(m)(vii);
(2) on or after the Novation Date:
(a) until the date upon which the Standby
Swap Provider has initially fulfilled
its obligations as Party A pursuant to
Part 5(22)(a) of the Schedule to this
Agreement, such Posted Collateral must
be held by the Secured Party and not
Transferred or otherwise applied;
(b) on or after the date upon which the
Standby Swap Provider has initially
fulfilled its obligations as Party A
pursuant to Part 5(22)(a) of the
Schedule to this Agreement and until
MLIA 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
and all its present and future
obligations to the Standby Swap
Provider under Paragraph 13(m)(v) of
the credit
43
support annex to the MLIA/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 MLIA's Obligations as
Party A to the Standby Swap Provider
pursuant to Parts 5(24)(d) and (e) of
the Schedule to this Agreement and
MLIA's present and future obligations
to the Standby Swap Provider under
Paragraph 13(m)(v) of the credit
support annex to the MLIA/CBA ISDA
Master Agreement (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 MLIA 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
and all its present and future
obligations to the Standby Swap
Provider under Paragraph 13(m)(v) of
the credit support annex to the
MLIA/CBA ISDA Master Agreement
(including by virtue of Paragraph
13(m)(vii)(C)(2)(b)), the Secured Party
must Transfer to MLIA 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 MLIA as Party A to the Standby Swap
Provider except upon the directions of the Standby
Swap Provider and in accordance with this Paragraph
44
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 MLIA as Party A is
held by the Custodian separately from, and is not co-
mingled with, Posted Collateral Transferred or
received by the Secured Party from the Standby Swap
Provider as Party A.
(F) This paragraph 13(m)(vii) applies notwithstanding any
other provision of this Agreement.
(viii) Pledgor and Secured Party
In this Annex:
(a) "Pledgor" means only Party A; and
(b) "Secured Party" means only Party B.
(ix) Non-Australian Assets
CBA must only Transfer Posted Collateral to the Secured
Party from its assets held outside Australia.
(x) Dispute Resolution
Paragraph 5(i) is amended by:
(A) replacing the word "Exposure" with the words "the
Delivery Amount or the Return Amount, as the case
may be" in the first paragraph of Paragraph 5(i);
(B) adding the word "and" at the end of Paragraph 5(i)(A)
and deleting Paragraph 5(i)(B).
(xi) Specified Condition
(A) In Paragraph 4(a)(ii) the words "or Specified
Condition" are deleted.
(B) In Paragraph 8(b) the words "or Specified Condition"
are deleted and replaced with the following "with
respect to the Secured Party or a Specified Condition
has occurred".
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