EXHIBIT 10.4
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of [ ], 200[ ]
among
[ ] and [Name and ABN of Issuer Trustee]
as trustee for the National RMBS
Trust 200[ ] - [ ]
(Party A) (Party B)
and
National Global MBS Manager Pty Ltd
(ABN 36 102 668 226)
(Global Trust Manager)
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming
those Transactions. Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made 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 and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than
by payment), such delivery will be made for receipt on the due date in
the manner customary for the relevant obligation unless otherwise
specified in the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event
of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination Date
in respect of the relevant Transaction has occurred or been effectively
designated and (3) each other applicable condition precedent specified
in this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a
reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable: --
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and discharged
and, if the aggregate amount that would otherwise have been payable by one
party exceeds the aggregate amount that would otherwise have been payable by
the other party, replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to the other party the excess
of the larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be
made in the Schedule or a Confirmation by specifying that subparagraph (ii)
above will not apply to the Transactions identified as being subject to the
election, together with the starting date (in which case subparagraph (ii)
above will not, or will cease to, apply to such Transactions from such date).
This election may be made separately for different groups of Transactions and
will apply separately to each pairing of Offices through which the parties
make and receive payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified
by the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will: --
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of determining
that such deduction or withholding is required or receiving notice
that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to
the payment to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary to ensure that the net
amount actually received by Y (free and clear of Indemnifiable
Taxes, whether assessed against X or Y) will equal the Full amount
Y would have received had no such deduction or withholding been
required. However, X will not be required to pay any additional
amount to Y to the extent that it would not be required to be paid
but for: --
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure
would not have occurred but for (I) any action taken by a
taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (II) a
Change in Tax Law.
2
(ii) Liability. If: --
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to make
any deduction or withholding in respect of which X would not be
required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the amount
of such liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment
obligation will, to the extent permitted by law and subject to Section 6(c),
be required to pay interest (before as well as after judgment) on the overdue
amount to the other party 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. If, prior to the occurrence or effective designation
of an Early Termination Date in respect of the relevant Transaction, a party
defaults in the performance of any obligation required to be settled by
delivery, it will compensate the other party on demand if and to the extent
provided for in the relevant Confirmation or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered
into and, in the case of the representations in Section 3(f), at all times
until the termination of this Agreement) that: --
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws
of the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to
perform its obligations under this Agreement and any obligations it has
under any Credit Support Document to which it is a party and has taken
all necessary action to authorise such execution, delivery and
performance;
(iii) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision
of its constitutional documents, any order or judgment of any court or
other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in
full force and effect and all conditions of any such consents have been
complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal,
valid and binding obligations, enforceable in accordance with their
respective terms (subject to applicable bankruptcy, reorganisation,
insolvency, moratorium or similar laws affecting creditors' rights
generally and subject, as to enforceability, to equitable principles of
general application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
3
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would occur as a
result of its entering into or perforating its obligations under this
Agreement or any Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding
at law or in equity or before any court, tribunal, governmental body, agency
or official or any arbitrator that is likely to affect the legality, validity
or enforceability against it of this Agreement or any Credit Support Document
to which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is
identified for the purpose of this Section 3(d) in the Schedule is, as of the
date of the information, true, accurate and complete in every material
respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party: --
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs: --
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to
allow such other party or its Credit Support Provider to make a payment
under this Agreement or any applicable Credit Support Document without
any deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of
such demand), with any such form or document to be accurate and
completed in a manner reasonably satisfactory to such other party and to
be executed and to be delivered with any reasonably required
certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation
made by it under Section 3(f) to be accurate and true promptly upon learning
of such failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of
this Agreement by a jurisdiction in which it is incorporated,
4
organised, managed and controlled, or considered to have its seat, or in which
a branch or office through which it is acting for the purpose of this
Agreement is located ("Stamp Tax Jurisdiction") and will indemnify the other
party against any Stamp Tax levied or imposed upon the other party or in
respect of the other party's execution or performance of this Agreement by any
such Stamp Tax Jurisdiction which is not also a Stamp Tax Jurisdiction with
respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any of the following events constitutes an event of
default (an "Event of Default") with respect to such party: --
(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 on or
before the third Local Business Day after notice of such failure is
given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any
payment under this Agreement or delivery under Section 2(a)(i) or 2(c)
or to give notice of a Termination Event or any agreement or obligation
under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or
performed by the party in accordance with this Agreement if such failure
is not remedied on or before the thirtieth day after notice of such
failure is given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any
applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support Document
or the failing or ceasing of such Credit Support Document to be in
full force and effect for the purpose of this Agreement (in either
case other than in accordance with its terms) prior to the
satisfaction of all obligations of such party under each
Transaction to which such Credit Support Document relates without
the written consent of the other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made
or repeated by the party or any Credit Support Provider of such party in
this Agreement or any Credit Support Document proves to have been
incorrect or misleading in any material respect when made or repeated or
deemed to have been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to
any applicable notice requirement or grace period, there occurs a
liquidation of, an acceleration of obligations under, or an early
termination of, that Specified Transaction, (2) defaults, after giving
effect to any applicable notice requirement or grace period, in making
any payment or delivery due on the last payment, delivery or exchange
date of, or any payment on early termination of, a Specified Transaction
(or such default continues for at least three Local Business Days if
there is no applicable notice requirement or grace period) or (3)
disaffirms, disclaims, repudiates or rejects, in whole or in part, a
Specified Transaction (or such action is taken by any person or entity
appointed or empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default,
event of default or other similar condition or event (however
5
described) in respect of such party, any Credit Support Provider of such
party or any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount of not less
than the applicable Threshold Amount (as specified in the Schedule)
which has resulted in such Specified Indebtedness becoming, or becoming
capable at such time of being declared, due and payable under such
agreements or instruments, before it would otherwise have been due and
payable or (2) a default by such party, such Credit Support Provider or
such Specified Entity (individually or collectively) in making one or
more payments on the due date thereof in an aggregate amount of not less
than the applicable Threshold Amount under such agreements or
instruments (after giving effect to any applicable notice requirement or
grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party
or any applicable Specified Entity of such party: --
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its
creditors; (4) institutes or has instituted against it a
proceeding seeking a judgment of insolvency or bankruptcy or any
other relief under any bankruptcy or insolvency law or other
similar law affecting creditors' rights, or a petition is
presented for its winding-up or liquidation, and, in the case of
any such proceeding or petition instituted or presented against
it, such proceeding or petition (A) results in a judgment of
insolvency or bankruptcy or the entry of an order for relief or
the making of an order for its winding-up or liquidation or (B) is
not dismissed, discharged, stayed or restrained in each case
within 30 days of the institution or presentation thereof, (5) has
a resolution passed for its winding-up, official management or
liquidation (other than pursuant to a consolidation, amalgamation
or merger); (6) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator, receiver,
trustee, custodian or other similar official for it or for all or
substantially all its assets; (7) has a secured party take
possession of all or substantially all its assets or has a
distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged,
stayed or restrained, in each case within 30 days thereafter; (8)
causes or is subject to any event with respect to it which, under
the applicable laws of any jurisdiction, has an analogous effect
to any of the events specified in clauses (1) to (7) (inclusive);
or (9) takes any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the foregoing
acts; or
(viii) Merger Without Assumption. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or merges with
or into, or transfers all or substantially all its assets to, another
entity and, at the time of such consolidation, amalgamation, merger or
transfer: --
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by
such resulting, surviving or transferee entity of its obligations
under this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any event specified below constitutes an Illegality if
the event is specified in (i) below, a Tax Event if the event is specified in
(ii) below or a Tax Event Upon Merger if the event is specified in (iii)
below, and, if specified to be applicable, a Credit Event
6
Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below: --
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for such party (which
will be the Affected Party): --
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect
of such Transaction or to comply with any other material provision
of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party
to perform, any contingent or other obligation which the party (or
such Credit Support Provider) has under any Credit Support
Document relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action
is taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii)
or 6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount
is required to be paid in respect of such Tax under Section 2(d)(i)(4)
(other than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the
next succeeding Scheduled Payment Date will either (1) be required to
pay an additional amount in respect of an Indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) or (2) receive a payment from which an amount has been
deducted or withheld for or on account of any Indemnifiable Tax in
respect of which the other party is not required to pay an additional
amount (other than by reason of Section 2(d)(i)(4)(A) or (B)), in either
case as a result of a party consolidating or amalgamating with, or
merging with or into, or transferring all or substantially all its
assets to, another entity (which will be the Affected Party) where such
action does not constitute an event described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party ("X"),
any Credit Support Provider of X or any applicable Specified Entity of X
consolidates or amalgamates with, or merges with or into, or transfers
all or substantially all its assets to, another entity and such action
does not constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event"
is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
7
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as
an Early Termination Date in respect of all outstanding Transactions. If,
however, "Automatic Early Termination" is specified in the Schedule as
applying to a party, then an Early Termination Date in respect of all
outstanding Transactions will occur immediately upon the occurrence with
respect to such party of an Event of Default specified in Section
5(a)(vii)(1), (3), (5), (6) or, to the extent analogous thereto, (8), and as
of the time immediately preceding the institution of the relevant proceeding
or the presentation of the relevant petition upon the occurrence with respect
to such party of an Event of Default specified in Section 5(a)(vii)(4) or, to
the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying
the nature of that Termination Event and each Affected Transaction and
will also give such other information about that Termination Event as
the other party may reasonably require.
(ii) Transfer to avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is
the Affected Party, the Affected Party will, as a condition to its right
to designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and
obligations under this Agreement in respect of the Affected Transactions
to another of its Offices or Affiliates so that such Termination Event
ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days
after the notice is given under Section 6(b)(i).
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 if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or
a Tax Event occurs and there are two Affected Parties, each party will
use all reasonable efforts to reach agreement within 30 days after
notice thereof is given under Section 6(b)(i) on action to avoid that
Termination Event.
(iv) Right to Terminate If: --
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, has not been effected with
respect to all Affected Transactions within 30 days after an
Affected Party gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected
Party,
either party in the case of an Illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in the case of a Tax
Event or an Additional Termination Event if there is more than one
Affected Party, or the party which is not the Affected Party in the case
of a Credit Event Upon Merger or an Additional Termination Event if
there is only one Affected Party may, by not more than 20 days notice to
the other party and provided that the relevant Termination Event is then
8
continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date
so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(e) in respect of the Terminated Transactions will be
required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and
specifying any amount payable under Section 6(e)) and (2) giving details
of the relevant account to which any amount payable to it is to be paid.
In the absence of written confirmation from the source of a quotation
obtained in determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the existence
and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event
of Default) and on the day which is two Local Business Days after the
day on which notice of the amount payable is effective (in the case of
an Early Termination Date which is designated as a result of a
Termination Event). Such amount will be paid together with (to the
extent permitted under applicable law) interest thereon (before as well
as after judgment) in the Termination Currency, from (and including) the
relevant Early Termination Date to (but excluding) the date such amount
is paid, at the Applicable Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the
parties fail to designate a payment measure or payment method in the Schedule,
it will be deemed that "Market Quotation" or the "Second Method", as the case
may be, shall apply. The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will be subject to
any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default: --
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent
of the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's Loss in respect of
this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the
9
Non-defaulting Party) in respect of the Terminated Transactions
and the Termination Currency Equivalent of the Unpaid Amounts
owing to the Non-defaulting Party less (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the Defaulting Party
will pay it to the Non-defaulting Party; if it is a negative
number, the Non-defaulting Party will pay the absolute value of
that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply,
an amount will be payable equal to the Non-defaulting Party's Loss
in respect of this Agreement. If that amount is a positive number,
the Defaulting Party will pay it to the Non-defaulting Party; if
it is a negative number, the Non-defaulting Party will pay the
absolute value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event: --
(1) One Affected Party. If there is one Affected Party, the
amount payable will be determined in accordance with Section
6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4), if
Loss applies, except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party will be deemed to
be references to the Affected Party and the party which is not the
Affected Party, respectively, and, if Loss applies and fewer than
all the Transactions are being terminated, Loss shall be
calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: --
(A) if Market Quotation applies, each party will determine
a Settlement Amount in respect of the Terminated
Transactions, and an amount will be payable equal to (I) the
sum of (a) one-half of the difference between the Settlement
Amount of the party with the higher Settlement Amount ("X")
and the Settlement Amount of the party with the lower
Settlement Amount ("Y") and (b) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (II) the
Termination Currency Equivalent of the Unpaid Amounts owing
to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with
the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will
be subject to such adjustments as are appropriate and permitted by law
to reflect any payments or deliveries made by one party to the other
under this Agreement (and retained by such other party) during the
period from the relevant Early Termination Date to the date for payment
determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate
of loss and not a penalty. Such amount is payable for the loss of
bargain and the loss of protection against future risks and except as
otherwise provided in this Agreement neither party will be entitled to
recover any additional damages as a consequence of such losses.
10
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of
the other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to
any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be
void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any tender in any currency
other than the Contractual Currency, except to the extent such tender results
in the actual receipt by the party to which payment is owed, acting in a
reasonable manner and in good faith in converting the currency so tendered
into the Contractual Currency, of the full amount in the Contractual Currency
of all amounts payable in respect of this Agreement. If for any reason the
amount in the Contractual Currency so received falls short of the amount in
the Contractual Currency payable in respect of this Agreement, the party
required to make the payment will, to the extent permitted by applicable law,
immediately pay such additional amount in the Contractual Currency as may be
necessary to compensate for the shortfall. If for any reason the amount in the
Contractual Currency so received exceeds the amount in the Contractual
Currency payable in respect of this Agreement, the party receiving the payment
will refund promptly the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party
is entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency and will refund promptly to the other party any excess of
the Contractual Currency received by such party as a consequence of sums paid
in such other currency if such shortfall or such excess arises or results from
any variation between the rate of exchange at which the Contractual Currency
is convened into the currency of the judgment or order for the purposes of
such judgment or order and the rate of exchange at which such party is able,
acting in a reasonable manner and in good faith in converting the currency
received into the Contractual Currency, to purchase the Contractual Currency
with the amount of the currency of the judgment or order actually received by
such party. The term "rate of exchange" includes, without limitation, any
premiums and costs of exchange payable in connection with the purchase of or
conversion into the Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the
party to which any payment is owed and will not be affected by judgment being
obtained or claim or proof being made for any other sums payable in respect of
this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be
sufficient for a party to demonstrate that it would have suffered a loss had
an actual exchange or purchase been made.
11
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced
by a facsimile transmission) and executed by each of the parties or confirmed
by an exchange of telexes or electronic messages on an electronic messaging
system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including
by facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by
facsimile transmission) or be created by an exchange of telexes or by an
exchange of electronic messages on an electronic messaging system, which
in each case will be sufficient for all purposes to evidence a binding
supplement to this Agreement. The parties will specify therein or
through another effective means that any such counterpart, telex or
electronic message constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking
office or jurisdiction of incorporation or organisation of such party, the
obligations of such party are the same as if it had entered into the
Transaction through its head or home office. This representation will be
deemed to be repeated by such party on each date on which a Transaction is
entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a
Transaction will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other
party for and against all reasonable out-of-pocket expenses, including legal
fees and Stamp Tax, incurred by such other party by reason of the enforcement
and protection of its rights under this Agreement or any Credit Support
Document
12
to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details, provided (see the
Schedule) and will be deemed effective as indicated: --
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answer back is
received;
(iii) if sent by facsimile transmission, 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);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably: --
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in New York
City, if this Agreement is expressed to be governed by the laws of the
State of New York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim
that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceedings,
that such court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the
Civil Jurisdiction and Judgments Xxx 0000 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any
13
reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute
process agent acceptable to the other party. The parties irrevocably consent
to service of process given in the manner provided for notices in Section 12.
Nothing in this Agreement will affect the right of either party to serve
process in any other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and
assets (irrespective of their use or intended use), all immunity on the
grounds of sovereignty or other similar grounds from (i) suit, (ii)
jurisdiction of any court, (iii) relief by way of injunction, order for
specific performance or for recovery of property, (iv) attachment of its
assets (whether before or after judgment) and (v) execution or enforcement of
any judgment to which it or its revenues or assets might otherwise be entitled
in any Proceedings in the courts of any jurisdiction and irrevocably agrees,
to the extent permitted by applicable law, that it will not claim any such
immunity in any Proceedings.
14. Definitions
As used in this Agreement: --
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control"
of any entity or person means ownership of a majority of the voting power of
the entity or person.
"Applicable Rate" means: --
(a) in respect of obligations payable or deliverable (or which would have
been but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which
would have been but for Section 2(a)(iii)) by a Non-defaulting Party, the
Non-default Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or after the
date on which the relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified
as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
14
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed
in respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to
such recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having
executed, delivered, performed its obligations or received a payment under, or
enforced, this Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case
of tax matters, by the practice of any relevant governmental revenue
authority) and "lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and
foreign currency deposits) (a) in relation to any obligation under Section
2(a)(i), in the place(s) specified in the relevant Confirmation or, if not so
specified, as otherwise agreed by the parties in writing or determined
pursuant to provisions contained, or incorporated by reference, in this
Agreement, (b) in relation to any other payment, in the place where the
relevant account is located and, if different, in the principal financial
centre, if any, of the currency of such payment, (c) in relation to any notice
or other communication, including notice contemplated under Section 5(a)(i),
in the city specified in the address for notice provided by the recipient and,
in the case of a notice contemplated by Section 2(b), in the place where the
relevant new account is to be located and (d) in relation to Section
5(a)(v)(2), in the relevant locations for performance with respect to such
Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be
its total losses and costs (or gain, in which case expressed as a negative
number) in connection with this Agreement or that Terminated Transaction or
group of Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party but without
duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or reestablishing any hedge or related trading position
(or any gain resulting from any of them). Loss includes losses and costs (or
gains) in respect of any payment or delivery required to have been made
(assuming satisfaction of each applicable condition precedent) on or before
the relevant Early Termination Date and not made, except, so as to avoid
duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does
not include a party's legal fees and out-of-pocket expenses referred to under
Section 11. A party will determine its Loss as of the relevant Early
Termination Date, or, if that is not reasonably practicable, as of the
earliest date thereafter as is reasonably practicable. A party may (but need
not) determine its Loss by reference to quotations of relevant rates or prices
from one or more leading dealers in the relevant markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or
by such party (expressed as a positive number) in consideration of an
agreement between such party (taking into account any existing Credit Support
Document with respect to the obligations of such party) and the quoting
Reference Market-maker to enter into a transaction (the "Replacement
Transaction") that would have the effect of preserving for such party the
economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under Section 2(a)(i) in
respect of such Terminated Transaction or group of Terminated Transactions
that would, but for the occurrence of the relevant Early Termination Date,
have
15
been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is
to be included. The Replacement Transaction would be subject to such
documentation as such party and the Reference Market-maker may, in good faith,
agree. The party making the determination (or its agent) will request each
Reference Market-maker to provide its quotation to the extent reasonably
practicable as of the same day and time (without regard to different time
zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be
obtained will be selected in good Faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the
Market Quotation will be the arithmetic mean of the quotations, without regard
to the quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if
more than one quotation has the same highest value or lowest value, then one
of such quotations shall be disregarded. If fewer than three quotations are
provided, it will be deemed that the Market Quotation in respect of such
Terminated Transaction or group of Terminated Transactions cannot be
determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it)
if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head
or home office.
"Potential Event of Default" means any event which, with the giving of notice
or the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market,
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria
that such party applies generally at the time in deciding whether to offer or
to make an extension of credit and (b) to the extent practicable, from among
such dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a)
in which the party is incorporated, organised, managed and controlled or
considered to have its seat, (b) where an Office through which the party is
acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) in relation to any payment, from or through
which such payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention
or withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or
imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of: --
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to
any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not
(in the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meanings specified in the Schedule.
16
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety or
otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter
entered into between one party to this Agreement (or any Credit Support
Provider of such party or any applicable Specified Entity of such party) and
the other party to this Agreement (or any Credit Support Provider of such
other party or any applicable Specified Entity of such other party) which is a
rate swap transaction, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions),
(b) any combination of these transactions and (c) any other transaction
identified as a Specified Transaction in this Agreement or the relevant
confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment
or fee of any nature (including interest, penalties and additions thereto)
that is imposed by any government or other taxing authority in respect of any
payment under this Agreement other than a stamp, registration, documentation
or similar tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in
effect immediately before the effectiveness of the notice designating that
Early Termination Date (or, if "Automatic Early Termination" applies,
immediately before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated
in the Termination Currency, such Termination Currency amount and, in respect
of any amount denominated in a currency other than the Termination Currency
(the "Other Currency"), the amount in the Termination Currency determined by
the party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or,
if the relevant Market Quotation or Loss (as the case may be), is determined
as of a later date, that later date, with the Termination Currency at the rate
equal to the spot exchange rate of the foreign exchange agent (selected as
provided below) for the purchase of such Other Currency with the Termination
Currency at or about 11:00 a.m. (in the city in which such foreign exchange
agent is located) on such date as would be customary for the determination of
such a rate for the purchase of such Other Currency for value on the relevant
Early Termination Date or that later date. The foreign exchange agent will, if
only one party is obliged to make a determination under Section 6(e), be
selected in good faith by that party and otherwise will be agreed by the
parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon
Merger or, if specified to be applicable, a Credit Event Upon Merger or an
Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or
prior to such Early Termination Date and which remain unpaid as at such Early
Termination Date and (b) in respect of each Terminated Transaction, for each
obligation under Section 2(a)(i) which was (or would have been but for Section
2(a)(iii)) required to be settled by delivery to such party on or prior to
such Early Termination Date and which has not been so settled as at such Early
Termination Date, an amount equal to the fair market
17
value of that which was (or would have been) required to be delivered as of
the originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or
would have been required to have been paid or performed to (but excluding)
such Early Termination Date, at the Applicable Rate. Such amounts of interest
will be calculated on the basis of daily compounding and the actual number of
days elapsed. The fair market value of any obligation referred to in clause
(b) above shall be reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it shall be
the average of the Termination Currency Equivalents of the fair market values
reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
[ ] [Name and ABN of Issuer Trustee]
as trustee of the National RMBS
Trust 200[ ] - [ ]
(Party A) (Party B)
By: __________________ By: ___________________
(Authorised Person) (Authorised Person)
Name: __________________ Name: __________________
Title:__________________ Title: ________________
National Global MBS
Manager Pty Ltd
(ABN 36 102 668 226)
By:_________ ______________
(Authorised Person)
Name: ___________________
Title: ___________________
18
ISDA(R)
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of [ ]
between
National Australia Bank Limited
(ABN 12 004 044 937)
("Party A")
and
[Name and ABN of Issuer Trustee]
as trustee for the National RMBS Trust 200[ ]-[ ]
("Party B")
and
National Global MBS Manager Pty Ltd
(ABN 36 102 668 226)
("Global Trust Manager")
Part 1. Termination Provisions/1/
In this Agreement:
(a) "Specified Entity" in relation to:
(i) Party A, is not applicable; and
(ii) Party B, is not applicable.
(b) "Specified Transaction" will have the meaning specified in Section 14
of this Agreement.
(c) The "Automatic Early Termination" provision of Section 6(a) will not
apply to Party A and will not apply to Party B.
(d) Payments on Early Termination. For the purpose of Section 6(e) of
this Agreement:
(i) A. in respect of the Basis Swap, Loss will apply;
B. in respect of the Fixed Swap, Market Quotation will
apply;
(ii) The Second Method will apply;
--------
/1/ Parts 1-5 are subject to Part 6: Securitisation Provisions.
2
(iii) the definition of "Loss" in Section 14 of this Agreement is
amended by adding the following sentence at the end of that
definition:
"However, in relation to a Terminated Transaction that is a
Basis Swap, each party's Loss is deemed to be zero."
(e) "Termination Currency" will be Australian dollars.
(f) Additional Termination Event. Not Applicable.
Part 2. Tax Representations
(a) Payer Representations. For the purpose of Section 3(e) of this
Agreement, Party A will make the following representation and Party B
will make the following representation:
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account
of any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other
party under this Agreement. In making this representation, it may
rely on:
(i) the accuracy of any representations made by the other party
pursuant to Section 3(f) (as the case may be) of this
Agreement;
(ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement;
and
(iii) the satisfaction of the agreement of the other party
contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not
deliver a form or document under Section 4(a)(iii) by reason of
material prejudice to its legal or commercial position.
(b) Payee Tax Representation. For the purpose of Section 3(f) of this
Agreement, Party A and Party B will make the representation:
It is an Australian resident and does not derive the payments under
this Agreement in part or whole carrying on business in a country
outside Australia at or through a permanent establishment of itself
in that country.
Part 3. Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
3
(a) Tax forms, documents or certificates to be delivered are:
Party required to deliver Form/Document/Certificate Date by which to be delivered Covered by Section
document 3(d) Representations
Party A and Party B Any document or certificate On the earlier of (a) as soon No
reasonably required or reasonably as reasonably practical
requested by Party A or Party B in following learning that such
connection with its obligations to document or certificate is
make a payment under this Agreement required and (b) as soon as
which would enable that party to reasonably practicable
make the payment free from any following a request by the
deduction or withholding for or on other party.
account of Tax or as would reduce
the rate at which deduction or
withholding for or on account of
Tax is applied to that payment.
(b) Other documents to be delivered are:
Party required to deliver Form/Document/Certificate Date by which to be delivered Covered by Section 3(d)
document Representation
Party A and Party B A list of authorised signatories On execution of this Agreement Yes
for the party and, if so requested or any relevant Confirmation
by the other party, evidence and when the list is updated.
satisfactory in form and substance
to the other party of the authority
of the authorised signatories of
the party to execute this Agreement
and any Confirmation on behalf of
the party.
Party A and Party B A legal opinion as to the validity At any time prior to the first Yes
and enforceability of that party's Issue Date.
obligations under this Agreement in
form and substance (and issued by
legal counsel) reasonably
acceptable to each other party.
Global Trust Manager (to A copy (certified by an Authorised In the case of each Credit Yes
be delivered to Party A) Person of the Global Trust Manager Support Document, within 5
to be a true and complete copy) of Business Days (or such period
each Credit Support Document in as Party A agrees to) of
respect of Party B and (without execution of this Agreement
limiting (provided that
4
Party required to deliver Form/Document/Certificate Date by which to be delivered Covered by Section 3(d)
document Representation
any obligation Party B may it must bereceived by the first
have under the terms of the Credit Issue Date) and, in the case of an
Support Documents to notify Party A amending document, within 5
of amendments) a copy (certified by Business Days (or such other
an Authorised Person of the Global period as Party A agrees to)
Trust Manager to be a true and of execution of the amending
complete copy) of any document that document.
amends in any way the terms of any
Credit Support Document.
Global Trust Manager (to Certified (by an Authorised Person Within 5 Business Days of Yes
be delivered to Party A) of the Global Trust Manager) copy execution of this Agreement,
of the Master Trust Deed, provided that they must be
Supplemental Deed, [Conditions of delivered by the first Issue
Class/Classes of US Note] Date.
Conditions, Definitions Schedule
and Note Trust Deed.
Part 4. Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this
Agreement:
Address for notices or communications to Party A:
Address: [10th Floor, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx XXX 0000]
Attention: [Supervisor, Swaps Administration]
Telex No: [Not applicable] Answerback: [Not applicable]
Facsimile No: [(000) 0000 0000] Telephone No: [(000) 0000 0000]
Electronic Messaging System Details: [Not applicable]
Address for notices or communications to Party B:
Address: [ ]
Attention: [ ]
Telex No: [ ] Answerback: [ ]
Facsimile No: [ ] Telephone No: [ ]
5
Electronic Messaging System Details: Not applicable
All notices or communications to Party B to be copied to the Global
Trust Manager at the address below
Address for notices or communications to Global Trust Manager:
Address: [Level 24, 000 Xxxxxx Xxxxxx, Xxxxxxxxx XXX 0000]
Attention: [Manager, Group Funding]
Telex No: [Not applicable] Answerback: [Not Applicable]
Facsimile No: [(000) 0000 0000] Telephone No: [(000) 0000 0000]
Electronic Messaging System Details: [ ]
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
(i) Party A appoints as its Process Agent: Nil.
(ii) Party B appoints as its Process Agent: Nil.
(c) Offices. The provisions of Section 10(a) will not apply to this
Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this
Agreement:
Neither Party A nor Party B is a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) Credit Support Document. Details of any Credit Support Document:
(i) in relation to Party A: nil
(ii) in relation to Party B: the Master Security Trust Deed and
the Deed of Charge.
(g) Credit Support Provider. Credit Support Provider means in relation to
Party A and Party B: nil.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws in force in the Australian Capital Territory
and each party submits to the non-exclusive jurisdiction of the
courts of the Australian Capital Territory. Section 13(b)(i) is
deleted and replaced by the following:
"(ii) submits to the non-exclusive jurisdiction of the
courts of the Australian Capital Territory; and".
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this
Agreement will not apply to any Transactions.
6
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement. For the purpose of Section 3(c), Party A is deemed not to
have any Affiliates.
Part 5. Other Provisions
(1) Payments: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the
corresponding payment or payments payable by the other
party."
(b) In Section 2(a)(ii), the first sentence is deleted and
replaced with the following sentence:
"Unless specified otherwise in this Agreement, payments
under this Agreement will be made by [4.00pm] (Melbourne
time) on the due date for value on that date in the place of
the account specified in the relevant Confirmation or
otherwise pursuant to this Agreement, in freely transferable
funds, free of any set-off, counterclaim, deduction or
withholding (except as expressly provided in this Agreement)
and in the manner customary for payment in the required
currency."
(c) Insert new paragraph (iv) in Section 2(a) immediately after
Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1)
does not apply to a payment due to be made by a
party if it has satisfied all its payment
obligations under Section 2(a)(i) of this Agreement
and has no future payment obligations, whether
absolute or contingent under Section 2(a)(i)."
(d) Add the following new sentence to Section 2(b):
"Each new account so designated shall be in the same tax
jurisdiction as the original account."
(e) Insert the following new Section 2(f):
"(f) If on a Payment Date an amount would otherwise be
payable by Party A pursuant to Section 2(c) in
respect of the Basis Swap, then such amount will be
satisfied in part or in whole, as the case may be,
to the extent of the then Prepayment Adjusted
Amount (if any) by Party B deducting that amount
from the Collateral Account."
(2) Representations: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after
the words "creditors' rights generally" the following:
" (including in the case of a party being an authorised
deposit-taking institution under the Banking Xxx 0000
(Cwlth)), section 13A(3) of the Banking Xxx 0000 (Cwlth) and
section 86 of the Reserve Bank Xxx 0000 (Cwlth) or any
analogous provision under any other law applicable to a
party),"
7
(b) Insert new paragraphs (g) and (h) in Section 3 immediately
after Section 3(f):
"(g) Relationship between Parties. Each party will be
deemed to represent to each other party on the date
on which it enters into a Transaction that (absent
a written agreement between the parties that
expressly imposes affirmative obligations to the
contrary for that Transaction):
(i) Non-Reliance. It is acting for its own
account or, in the case of Party B, as
trustee of the Trust, and it has made its
own independent decisions to enter into
that Transaction or, in the case of Party
B, has been directed to do so by the
Global Trust Manager and as to whether
that Transaction is appropriate or proper
for it based upon its own judgement and
upon advice from such advisers as it has
deemed necessary or, in the case of Party
B, at the direction of the Global Trust
Manager. It is not relying on any
communication (written or oral) of the
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 the other party will
be deemed to be an assurance or guarantee
as to the expected results of that
Transaction.
(ii) Evaluation and Understanding. It is
capable of evaluating and understanding
(on its own behalf or through independent
professional advice), and understands and
accepts, the terms, conditions and risks
of that Transaction. It is also capable of
assuming, and assumes, the risks of that
Transaction.
(iii) Status of Parties. No other party is
acting as a fiduciary or an adviser to it
in respect of that Transaction (other
than, in the case of Party B, the Global
Trust Manager).
(h) Trust. By Party B, in respect of Party B only:
(i) Trust Validly Created. The Trust has been
validly created and is in existence at the
date of this Agreement.
(ii) Sole Trustee. It has been validly
appointed as trustee of the Trust and is
presently the sole trustee of the Trust.
(iii) No Proceedings to Remove. No notice has
been given to it and to its knowledge no
resolution has been passed, or direction
or notice has been given, removing it as
trustee of the Trust.
(iv) Power. It has power under the Master Trust
Deed to enter into this Agreement and the
Credit Support Documents in its capacity
as trustee of the Trust.
(v) Good Title. It is the legal owner of, or
has equitable title to (as applicable),
the Assets of the Trust and has power
under the
8
Master Trust Deed to mortgage or charge
them in the manner provided in the Credit
Support Documents and, subject only to the
Credit Support Documents and any Security
Interest permitted under the Credit
Support Documents, those Assets are free
of all other Security Interests (except
for Party B's right of indemnity out of
the Assets of the Trust)."
(3A) Collateralisation of Party A's Obligations under the Fixed Swap
([name of ratings agency]): If at any time Party A in respect of the
Fixed Swap does not have a short-term credit rating from [name of
ratings agency] equal to or higher than [name of ratings agency]'s
Prescribed Rating, it must, at its cost alone:
(a) immediately seek to enter into, and enter into by no later
than 30 days after Party A ceases to have [name of ratings
agency]'s Prescribed Rating, an agreement to novate all of
its rights and obligations under this Agreement as Party A
to a replacement swap counterparty which has a short-term
credit rating from [name of ratings agency] equal to or
higher than [name of ratings agency]'s Prescribed Rating;
and
(b) until the novation to the replacement swap counterparty
referred to in (a) above is effective:
(i) continue to fulfill its obligations as Party A
under this Agreement in accordance with the terms
of this Agreement;
(ii) upon the expiration of 30 days after becoming aware
that it does not have a short-term credit rating
from [name of ratings agency] equal to or higher
than [name of ratings agency]'s Prescribed Rating
deposit in the Collateral Account an amount equal
to the CCA; and
(iii) on each day which is 30 days after a previous
payment of the CCA, ensure that an amount has been
deposited into the Collateral Account by Party A
equal to the CCA (without duplication of any amount
previously paid).
If Party A is unable to effect a transfer in accordance with
paragraph (a) above within 30 days, or if Party A so elects, it must
enter into such other arrangements in respect of the Fixed Rate Swap
which are satisfactory to the Global Trust Manager and which each
Current Rating Agency confirms will not result in an Adverse Rating
Effect.
Party A may satisfy its obligations following a withdrawal or
downgrade of a credit rating in any of the above manners as it elects
from time to time.
Where Party A transfers its rights and obligations to a replacement
swap counterparty in accordance with paragraph (a) above, Party B, at
the direction of the Global Trust Manager, and each other party to
this Agreement shall do all things necessary at the cost of Party A
to novate the relevant rights and obligations to the replacement swap
counterparty.
9
(3B) Collateralisation of Party A's Obligations under the Fixed Swap (Other
Rating Agencies)
(a) If at any time Party A in respect of the Fixed Swap does not
have a credit rating equal to or higher than the Prescribed
Ratings from [applicable ratings agencies] then on the
earlier of:
(i) 30 days after such downgrade, if and while Party A
has a long term credit rating of at least [long
term rating] by [name of ratings agency] or a short
term credit rating of at least [short term rating]
by [name of ratings agency]; and
(ii) otherwise, 5 days after such downgrade,
Party A must at its cost alone either:
(A) put in place an appropriate xxxx-to-market
collateral agreement (consisting of either cash or
securities) or which may be based on any agreement
reached between the parties, in support of its
obligations under the Agreement, PROVIDED that
Party A and Party B receive prior written
confirmation from each Current Rating Agency
mentioned above that the rating assigned to the
Notes then outstanding by each Current Rating
Agency mentioned above is not adversely affected by
the downgrade following such collateral
arrangements being put in place;
(B) novate all its rights and obligations with respect
to this Agreement to a replacement counterparty
acceptable to the Global Trust Manager, Party B and
each Current Rating Agency on substantially the
same terms as this Agreement; or
(C) enter into other arrangements satisfactory to the
Issuer Trustee and the Global Trust Manager which
each Current Rating Agency confirms will not result
in an Adverse Rating Effect.
(b) Party A may satisfy its obligations following a withdrawal
or downgrade of a credit rating in any of the above manners
as it elects from time to time.
(c) Where Party A transfers its rights and obligations to a
replacement swap counterparty in accordance with paragraph
(a)(B) above, Party B, at the direction of the Global Trust
Manager, and each other party to this Agreement shall do all
things necessary at the cost of Party A to novate the
relevant rights and obligations to the replacement swap
counterparty.
(3C) General Collateralisation Provisions
(a) If, at any time, Party A's obligations under this Agreement
are transferred in accordance with any of Parts 5(3A), (3B),
(4), (5) or (6), Party A shall be, provided that all costs
of the transfer have been satisfied by Party A, immediately
entitled to any collateral which it has provided under any
of Parts 5(3A), (3B), (4), (5) or (6) (less any amount
withdrawn in accordance with sub-paragraph (b) below).
10
(b) Party B may only make withdrawals from the Collateral
Account if directed to do so by the Global Trust Manager and
then only for the purpose of:
(i) transferring obligations under this Agreement in
accordance with any of Parts 5(3A), (3B), (4), (5)
or (6) (including the costs of obtaining a
replacement counterparty);
(ii) refunding to Party A any excess in the amount of
any collateral deposited to the Collateral Account
over the amount Party A is required to maintain
under any of Parts 5(3A), (3B), (4), (5) or (6);
(iii) withdrawing any amount which has been incorrectly
deposited into the Collateral Account;
(iv) paying any relevant bank charges, financial
institutions duty, bank accounts debit tax or other
equivalent Taxes payable in respect of the
Collateral Account; or
(v) funding the amount of any payment due to be made by
Party A under this Agreement following the failure
by Party A to make that payment.
The Global Trust Manager must direct Party B to, and Party B
must, refund or pay to Party A the amount of any payment
which may be made to Party A under (ii) or (iii) above as
soon as such refund or payment is possible.
(c) All interest on the Collateral Account will accrue and be
payable monthly to Party A providing the amount deposited to
the Collateral Account is not less than the amount Party A
is required to maintain under the collateral agreement
contemplated by any of Parts 5(3A), (3B), (4), (5) or (6).
(4) Prepayment of Obligations under Basis Swap: If on any Determination
Date, Party A (in respect of the Basis Swap) does not have a
short-term credit rating equal to or higher than the Prescribed
Rating from any Current Rating Agency Party A (in respect of the
Basis Swap) must do one of the following:
(a) (Prepayment): subject to Part 5(5) and Part 5(6) of this
Schedule, on the relevant Payment Date next following that
Determination Date (each a "Prepayment Date") pay to Party B
the Net Prepayment Amount (if any) for the Interest Period
commencing on that Prepayment Date by depositing such Net
Prepayment Amount into the Collateral Account in cleared
funds; or
(b) (Other arrangements): enter into some other arrangement in
respect of the Basis Swap which is satisfactory to the
Global Trust Manager and Party B and which each Current
Rating Agency confirms will not result in an Adverse Rating
Effect.
Party A may satisfy its obligations following a withdrawal or
downgrade of a credit rating in any of the above manners as it elects
from time to time.
11
(5) Conditions for Maintaining cash collateral and Net Prepayment Amount
in Collateral Account:
(a) (Conditions for depositing): No amount may be deposited into
the Collateral Account unless:
(i) the Collateral Account is held with an Eligible
Bank; or
(ii) either:
(A) the Collateral Account is not held with an
Eligible Bank; or
(B) the Collateral Account is held with an
Eligible Bank which has a short term
credit rating by each Current Rating
Agency of lower than the Prescribed
Ratings from each Current Rating Agency,
and, in each case, a standby guarantee with an
entity rated sufficiently by each Current Rating
Agency has been entered into to support the
obligations of the entity with whom the Collateral
Account is held, to repay from, in accordance with
normal banking practice, moneys deposited and to be
deposited into the Collateral Account.
(b) (Transfer of Net Prepayment Amount):
(i) (Cannot be deposited): If on any Prepayment Date an
amount cannot be deposited into the Collateral
Account pursuant to Part 5(5)(a) of this Schedule,
Party B must, at the direction of the Global Trust
Manager, immediately establish a new interest
bearing account with an Eligible Bank and deposit
the amount of each Net Prepayment Amount into the
new account (and, pending the opening of such new
account, deposit such amount into the Collections
Account).
(ii) (Cannot continue to be deposited): If any amount
has been deposited into the Collateral Account, but
Party B becomes aware that such amount cannot
continue to be deposited in the Collateral Account
pursuant to Part 5(5)(a) of this Schedule, Party B
must, at the direction of the Global Trust Manager:
(A) immediately establish a new interest
bearing account with an Eligible Bank and
transfer each such amount standing to the
credit of the Collateral Account to the
new account; and
(B) deposit each such amount it receives
pursuant to Part 5(4)(a) of this Schedule
into such new account.
(6) Adjustments to Prepayments under the Basis Swap:
(a) (Adjustments when the Variable Rate is less than the
Threshold Rate): If Party A elects to pay to Party B the Net
Prepayment Amount on a Prepayment Date pursuant to Part
5(4)(a) and that Net Prepayment Amount:
12
(i) exceeds the amount remaining after deducting from
the Prepayment Adjusted Amount (if any) for that
Prepayment Date, the amount to be satisfied from it
on that Prepayment Date pursuant to Section 2(f),
then the aggregate amount which Party A is liable
to pay to Party B into the Collateral Account under
Part 5(4)(a) is the amount of the excess and such
amount will be paid as a prepayment of Party A's
obligations under the Basis Swap; or
(ii) is less than the amount remaining after deducting
from the Prepayment Adjusted Amount (if any) for
that Prepayment Date, the amount to be satisfied
from it on that Prepayment Date pursuant to Section
2(f), then Party B must pay to Party A the amount
of the difference from the Collateral Account.
(b) (Adjustments where the Variable Rate equals or exceeds the
Threshold Rate): If, on any Determination Date, Party A has
the Prescribed Rating from each Current Rating Agency, Party
B must pay from the Collateral Account to Party A on the
next Payment Date the amount remaining after deducting from
the then Prepayment Adjusted Amount (if any) the amount to
be satisfied from it on that Payment Date pursuant to
Section 2(f).
(c) (Prepayment): A prepayment by Party A under Part 5(4)(a) or
Part 5(6)(a) will constitute a prepayment of Party A's
payment obligations (to the extent thereof) in respect of
the Basis Swap.
(d) (Party A): All references to Party A in this Part 5(6) are
to Party A in respect of the Basis Swap.
(7) Reduced Payment
If, on any Payment Date, the application of an amount from the Total
Available Income (excluding any net amounts due to be received by the
Issuer Trustee on that Payment Date under clause 14.4(d) of the
Supplemental Deed) towards Party B's obligations under the Basis Swap
and the Fixed Swap for the Collection Period ending immediately prior
to that Payment Date is insufficient to pay in full the amount due by
Party B under the Basis Swap and the Fixed Swap (prior to any payment
netting under Section 2(c) taking effect), then Party B's obligation
to make payment on that Payment Date is limited to the extent that it
has funds available for that purpose. Party A's obligations to make
any payment under the Basis Swap and the Fixed Swap on that Payment
Date will be reduced (prior to any payment netting under Section 2(c)
taking effect) by the same proportion as the reduction in Party B's
payment obligations in respect of the Basis Swap and the Fixed Swap
on that Payment Date (prior to any payment netting under Section 2(c)
taking effect).
(8) Segregation: Where Party A in respect of the Basis Swap is a
different entity to Party A in respect of the Fixed Swap, the
provisions of this Agreement shall have effect separately and
severally in respect of the Basis Swap and the Fixed Swap and shall
be enforceable by Party B as though a separate agreement applied
between Party A and Party B in respect of the Basis Swap and the
Fixed Swap, so that (among other things):
(a) representations made and agreements entered into by the
parties under this Agreement are made and entered into
separately and severally by Party A and Party B in respect
of each of the Fixed Swap and the Basis Swap and may be
enforced by
13
Party B against Party A separately and severally in respect
of each of the Fixed Swap and the Basis Swap;
(b) rights of termination, and obligations and entitlements
consequent upon termination, only accrue to Party A against
Party B separately and severally in respect of each of the
Fixed Swap and the Basis Swap, and only accrue to Party B
against Party A separately and severally in respect of each
of the Fixed Swap and the Basis Swap;
(c) the occurrence of an Event of Default or Termination Event
in respect of the Fixed Swap does not in itself constitute
an Event of Default or Termination Event in respect of the
Basis Swap; and
(d) the occurrence of an Event of Default or Termination Event
in respect of the Basis Swap does not in itself constitute
an Event of Default or Termination Event in respect of the
Fixed Swap.
(9) Payment Default: In Section 5, delete Section 5(a)(i) and replace it
with the following:
"(i) Failure to Pay. 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 on or before:
(1) where the failure is by Party B, [10.00am]
on the tenth Business 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 Business Day after notice of
such failure is given to Party A."
(10) Termination: In Section 6:
(i) add the following sentence at the end of the second
paragraph of Section 6(b)(ii):
"However, if Party A is that other party it must, if so
requested by the Global Trust Manager, use reasonable
efforts (which will not require Party A to incur a loss,
excluding material incidental expenses) to make such a
transfer to an Affiliate (as that expression is defined in
Section 14) provided each Current Rating Agency has given
prior confirmation to Party A that such a transfer will not
result in an Adverse Rating Effect.";
(ii) Section 6(e) is amended by deleting the last sentence of the
first paragraph.
(11) Unpaid Amounts: After Section 6(e)(ii), a new Section 6(e)(iii) is
inserted as follows, Section 6(e)(iii) and 6(e)(iv) are renumbered
accordingly, and all cross references in the Agreement to Sections
6(e)(iii) and (iv) are renumbered to the extent necessary:
"(iii) Unpaid Amounts. If the Second Method and Loss apply
in respect of a Terminated Transaction, in addition
to the amounts (if any) payable under Section
6(e)(i)(4) or Section 6(e)(ii), an amount will be
payable equal to the Termination Currency
Equivalent of the Unpaid Amounts owing to Party A
less the Termination Currency Equivalent of the
Unpaid Amounts owing to Party B. If the amount
payable is a positive number, Party B will pay that
amount to Party A; if it is a negative number,
Party A will pay that amount
14
to Party B. For the purposes of this Section
6(e)(iii), the definition of "Unpaid Amounts" in
Section 14 will be construed so that references in
that definition to "all Terminated Transactions"
and "each Terminated Transaction" are references
only to Terminated Transactions in respect of which
the Second Method and Loss apply."
(12) Facsimile Transmission: In Section 12:
(a) Replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission, on the
date a transmission report is produced by
the machine from which the facsimile was
sent which indicates that the facsimile
was sent in its entirety to the facsimile
number of the recipient notified for the
purpose of this Section unless the
recipient notifies the sender within one
Business Day of the facsimile being sent
that the facsimile was not received in its
entirety in legible form;"
(b) Insert a new paragraph (vi) in Section 12(a) immediately
after Section 12(a)(v) as follows:
"(vi) if sent by ordinary mail, on the third
(seventh, if posted to or from a place
outside Australia) day after posting."
(13) Definitions
In this Agreement, unless the contrary intention appears:
(a) Definitions Schedule and Supplemental Deed: unless defined
in this Agreement, words and phrases defined in the
Definitions Schedule and the Supplemental Deed (each in the
form as at the date of this Agreement) have the same meaning
in this Agreement. Where there is any inconsistency in a
definition between this Agreement (on the one hand) and the
Definitions Schedule or the Supplemental Deed (on the other
hand), this Agreement prevails. Where there is any
inconsistency in a definition between the Definitions
Schedule and the Supplemental Deed, the Supplemental Deed
prevails over the Definitions Schedule in respect of the
Trust. Where words or phrases used but not defined in this
Agreement are defined in the Definitions Schedule in
relation to a Trust (as defined in the Definitions Schedule)
such words or phrases are to be construed in this Agreement,
where necessary, as being used only in relation to the Trust
(as defined in the Supplemental Deed);
(b) Interpretation: references to time are references to
Melbourne time, unless stated otherwise;
(c) Trustee Capacity:
(i) a reference to Party B is a reference to Party B in
its capacity as trustee of the Trust only, and in
no other capacity; and
(ii) a reference to the undertaking, assets, business,
money or other thing of or in relation to Party B
is a reference to the undertaking, assets,
business,
15
money or other thing of or in relation to Party B
in the capacity referred to in paragraph (i) only;
(d) Definitions: in Section 14:
(i) replace the definitions of "Affected Transactions"
and "Local Business Day" with the following:
"Affected Transactions" means, with respect to a
Termination Event, all Transactions."
"Local Business Day" has the same meaning as
"Business Day"."
(ii) insert the following new definitions:
"Basis Swap" means the Transaction entered into
between Party A, Party B and the Global Trust
Manager on the terms specified in the form of the
Confirmation set out in Annexure 1 (or as
otherwise agreed between Party A, Party B and the
Global Trust Manager).
"Basis Swap Amount" means, in relation to a
Determination Date and the Collection Period and
the Interest Period which relate to that
Determination Date, the aggregate Outstanding
Principal Balance in relation to all Housing Loans
forming part of the Purchased Mortgage Loans being
charged a variable rate of interest at the opening
of business on the first day of that Collection
Period.
"Collateral Account" means any account into which
collateral is provided by Party A in accordance
with this Agreement.
"CCA" means, in respect of an entity where the
entity does not have a short term credit rating
from [name of ratings agency] equal to or higher
than [name of ratings agency]'s Prescribed Rating
in respect of the Fixed Swap, an amount at least
equal to the greater of:
(i) zero;
(ii) CR;
(iii) [1]% of the Fixed Swap Amount; or
(iv) the net amount (if any) as determined by
the Global Trust Manager that is
expected to be due by Party A to Party B
in respect of the Fixed Swap on the
immediately following Payment Date.
Where:
CR = MTM + VB
MTM = the aggregate xxxx-to-market value (whether
positive or negative) of each Transaction in
respect of the Fixed Rate Swap determined in
16
accordance with the following paragraph no earlier
than 3 Business Days prior to the date that the CCA
is deposited in the Collateral Account.
Party A must calculate the xxxx-to-market value of
each Transaction in respect of the Fixed Rate Swap
by obtaining 2 bids from counterparties willing to
provide each Transaction in the absence of Party A
with ratings acceptable to [name of ratings
agency]. The xxxx-to-market value may be a positive
or a negative amount. A bid has a negative value if
the payment to be made is from the counterparty to
Party A and has a positive value if the payment to
be made is from Party A to the counterparty. The
xxxx-to-market value is the higher of the bids (on
the basis that any bid of a positive value is
higher than any bid of a negative value).
VB = the volatility buffer, being the value
calculated by multiplying the Fixed Swap Amount as
at the most recent Determination Date by the
relevant percentage obtained from the following
table:
----------------------------- ---------------------------- ----------------------------
Where the period between Where the period between Where the period between
the date of calculation and the date of calculation the date of calculation
the weighted average of the and the weighted average and the weighted average
maturity dates of the then of the maturity dates of of the maturity dates of
fixed rate periods in the then fixed rate the then fixed rate
respect of the Housing periods in respect of the periods in respect of the
Loans forming part of the Housing Loans forming part Housing Loans forming part
Purchased Mortgage Loans of the Purchased Mortgage of the Purchased Mortgage
which are charged a fixed Loans which are charged a Loans which are charged a
rate of interest is less fixed rate of interest is fixed rate of interest is
than or equal to 5 years greater than 5 years and greater than 10 years
less than or equal to 10
years
----------------------------- ---------------------------- ----------------------------
[1.5] [3.15] [6]
----------------------------- ---------------------------- ----------------------------
"Definitions Schedule" means the document entitled
"National RMBS Trusts Definitions Schedule" dated [
] between the parties listed in schedule 1 to that
document (as amended from time to time).
"Fixed Swap" means the Transaction entered into
pursuant to the terms of this Agreement between
Party A, Party B and the Global Trust Manager on
the terms specified in the form of the Confirmation
set out in Annexure 2 (or as otherwise agreed
between Party A, Party B and the Global Trust
Manager).
"Fixed Swap Amount" means, in relation to a
Determination Date and the Collection Period and
the Interest Period which relate to that
Determination Date, the aggregate Outstanding
Principal Balance in relation to all Housing Loans
forming part of the Purchased Mortgage Loans
(excluding Housing Loans being charged a variable
rate of interest) at the opening of business on the
first day of that Collection Period.
"Net Prepayment Amount" in relation to the Basis
Swap and a Determination Date and the Interest
Period commencing on the next
17
Prepayment Date, means the amount determined in
accordance with the following formula:
n
NPA = Y x BSA x -----
365
where:
NPA = the Net Prepayment Amount for that Interest
Period;
Y = TR-VR (expressed as a percentage per annum);
TR = the Threshold Rate on that Determination Date;
VR = the Variable Rate on that Determination Date;
BSA = the Basis Swap Amount for that Interest
Period; and
n = the actual number of days in that Interest
Period.
"Prepayment Adjusted Amount" means:
(a) for the first Prepayment Date, the Net
Prepayment Amount paid by Party A in
respect of the Basis Swap pursuant to Part
5(4)(a) of this Schedule in relation to
the Interest Period commencing on that
Prepayment Date; and
(b) for each subsequent Prepayment Date, the
aggregate balance of the Net Prepayment
Amount paid by Party A in respect of the
Basis Swap pursuant to Part 5(4)(a) of
this Schedule after taking into account
any applications and any additional
prepayments by, or repayments to, Party A
in respect of the Basis Swap pursuant to
Part 5(6)(b) of this Schedule.
"Prescribed Rating" means [insert applicable
ratings from applicable ratings agencies]
"Supplemental Deed" means the deed entitled
"National RMBS Trust 200[ ]-[ ] Supplemental Deed"
dated on or about the date of this Agreement
between Party A, Party B, the Global Trust Manager
and others.
"Trust" means the National RMBS Trust 200[ ]-[ ]
constituted by the Master Trust Deed and a notice
of creation of trust.
"Variable Rate" in relation to a Determination Date
means the rate then equal to the weighted average
of the variable rates charged in respect of the
Housing Loans forming part of the Purchased
Mortgage Loans at the close of business on the last
day of the Collection Period just ended.
(f) ISDA Definitions: The 1991 ISDA Definitions (as supplemented
by the 1998 Supplement to the 1991 ISDA Definitions) (as
published by the International
18
Swaps and Derivatives Association, Inc) (the "1991 ISDA
Definitions") as at the date of this Agreement are
incorporated into this Agreement and each Confirmation.
(g) Inconsistency: Unless specified otherwise, in the event of
any inconsistency between any two or more of the following
documents in respect of a Transaction they will take
precedence over each other in the following order in respect
of that Transaction:
(i) any Confirmation;
(ii) this Agreement;
(iii) the Supplemental Deed;
(iv) the Definitions Schedule; and
(v) the 1991 ISDA Definitions.
(h) 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.
(i) 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.
(j) [Clause 14] of the Supplemental Deed: Party B agrees that it
will not consent to an amendment to [clause 14] of the
Supplemental Deed without the prior consent if Party A.
(14) Limitation of Liability: Insert the following Section 15, after
Section 14:
"15. Party B's Limitation of Liability
Clause 2 of the Definitions Schedule (as at the date of this
Agreement) applies to this Agreement as if set out in full
in it (with any consequential changes as are necessary to
give effect to that clause in this Agreement).
19
(15) Send Information: Insert the following new Section 16 after Section
15:
"16 Send Information
On each Determination Date the Global Trust Manager will
send to each Current Rating Agency such information in the
possession of the Global Trust Manager as each Current
Rating Agency reasonably requires in relation to the Basis
Swap, the Fixed Swap and any other matters in connection
with this Agreement."
(16) Notes Repaid: Insert the following new Section 17 after Section 16:
"17 Notes Repaid
If the Invested Amount in respect of all Notes has been
repaid, or all Notes are deemed under the Transaction
Documents to have been redeemed in full, then the
obligations (if any) of Party A in respect of the Basis Swap
under Part 5(4)(a) and Part 5(7) of the Schedule cease and
Party B must repay to Party A in respect of the Basis Swap
any remaining prepayments made pursuant to those provisions,
together with any collateral provided by Party A to Party
B."
(17) Further Assurances: Each party will, upon request by any 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.
(18) Derivative Contract: The parties acknowledge and agree that for the
purposes of the Transaction Documents this Agreement is a Derivative
Contract.
(19) Procedures for Entering into Transactions
(a) With respect to each Transaction entered into pursuant to
this Agreement and for the purposes of Section 9(e)(ii),
Party A will, by or promptly after the relevant Trade Date,
send:
(i) Party B and the Global Trust Manager a Confirmation
substantially in the form set out in Annexure 1 (or
in such other form as may be agreed between Party
A, Party B and the Global Trust Manager), and Party
B and the Global Trust Manager must promptly then
confirm the accuracy of and sign and return, or
request the correction of, such Confirmation; and
(ii) Party B and the Global Trust Manager a Confirmation
substantially in the form set out in Annexure 2 (or
in such other form as may be agreed between Party
A, Party B and the Global Trust Manager), and Party
B and the Global Trust Manager must promptly then
confirm the accuracy of and sign and return, or
request the correction of, such Confirmation; and
(b) Party B will enter into each Transaction in its capacity as
trustee of the Trust.
(20) Authorised Person: Each party will be entitled to assume, in the
absence of any knowledge to the contrary, that any person signing any
Confirmation, notice or other written
20
communication issued in respect of this Agreement on behalf of a
party is an Authorised Person of that party.
(21) Recorded Conversations: Each party:
(a) consents to the electronic recording of its telephone
conversations with the other party (or any of its associated
persons) with or without the use of an automatic tone
warning device;
(b) will provide transcripts of such recordings (if any) upon
reasonable request by the other party (at the reasonable
cost of the party requesting);
(c) acknowledges that such recordings and transcripts can be
used as evidence by either party in any dispute between
them; and
(d) acknowledges that neither is obligated to maintain copies of
such recordings and transcripts for the benefit of the other
party.
(22) Knowledge or Awareness: Subject to Section 12(a), each party will
only be considered to have knowledge or awareness of, or notice of, a
thing or grounds to believe anything by virtue of the officers of
that party or any Related Entity of that party which have the day to
day responsibility for the administration or management of that
party's (or a Related Entity of that party's) obligations in relation
to the Trust or the Transactions entered into under this Agreement
having actual knowledge, actual awareness or actual notice of that
thing, or grounds or reason to believe that thing (and similar
references will be interpreted in this way).
(23) Amendments to this Agreement: The Global Trust Manager must give 10
Business Days' notice in writing to each Current Rating Agency of any
amendments to this Agreement.
(24) Global Trust Manager's Undertaking: The Global Trust Manager, Party A
and Party B undertake to comply with their respective obligations
under the Supplemental Deed and the other Transaction Documents for
the Trust. For the avoidance of doubt, the parties acknowledge and
agree that the failure by Party B, the Global Trust Manager or Party
A to comply with this undertaking will not give rise to an Event of
Default under this Agreement.
(25) Appointment of Global Trust Manager: Party A acknowledges that, under
the Master Trust Deed, Party B has appointed the Global Trust Manager
as Global Trust Manager of the Trust, with the powers set out in, and
upon and subject to the terms of the Master Trust Deed.
(26) Break Costs: For the avoidance of doubt, the parties acknowledge and
agree that the non-payment to Party A of Early Repayment Costs on a
Payment Date will not give rise to an Event of Default under this
Agreement. The Global Trust Manager will procure the Servicer to pay
any Early Repayment Costs in respect of a Collection Period to Party
A on each Payment Date.
(27) Australian Addenda. The following addenda to Schedule to Master
Agreement of International Swap Dealers Association, Inc. in the form
of the copies attached to this Agreement are deemed to be
incorporated in this Agreement:
21
- September 1991 Australian Addendum No. 1 (as amended in
September 1992, March 1994 and March 1997) - Interest Rate
Caps, Collars and Floors
- September 1991 Australian Addendum No. 2 (as amended in
September 1992 and March 1997) - Swaptions
- September 1992 Australian Addendum No. 6 - $A Forward Rate
Agreements
- September 1992 Australian Addendum No. 7 - Forward Rate Xxxx
Agreements
Part 6 - Securitisation Provisions
(a) Inconsistency. In the event of any inconsistency between the
provisions of this Part 6 and any other provision of this Agreement,
the provisions of this Part 6 will prevail.
(b) Deduction or withholding for tax. Section 2 of the agreement is
amended as follows:
(i) In Section 2(d)(ii)(1) the following words are deleted where
they appear:
"in respect of which X would not be required to pay
an additional amount to Y under section
2(d)(i)(4)".
(ii) Section 2(d)(i)(4) is deleted in its entirety.
(c) Events of Default and Termination Events.
(i) The following provisions of Section 5 will not apply to
either Party A or Party B:
Section 5(a)(ii)
Section 5(a)(iii)
Section 5(a)(iv)
Section 5(a)(v)
Section 5(a)(vi)
Section 5(a)(viii)
Section 5(b)(ii)
Section 5(b)(iii)
Section 5(b)(iv)
(ii) Section 5(a)(i) will not apply to the extent it relates to a
failure to include in amounts due to be paid to Party A
under the Fixed Swap any Early Repayment Costs for the
related Collection Period.
(d) Transfer.
(i) A new paragraph (c) is added to Section 7 as follows:
"a party may make such a transfer under, or in accordance
with, the Master Security Trust Deed."
and replace the "." at the end of Section 7(b) with "; and".
(ii) The following sentence is added to Section 7 immediately
before the last sentence in Section 7:
22
"Any transfer in accordance with this Section 7 must be to a
party with a rating acceptable to each Current Rating Agency
and be notified to each Current Rating Agency by the party
making the transfer."
(e) Role and liability of Global Trust Manager.
Party A acknowledges that the Global Trust Manager will perform the
day to day management of the Trust on the terms and conditions of the
Master Trust Deed.
Notwithstanding any other provision of this Agreement, the Global
Trust Manager is not liable:
(i) in connection with anything done by it in good faith and
without negligence in reliance upon any document, form or
list except where it is actually aware that the document,
form or list is not genuine;
(ii) if it fails to do anything because it is prevented or
hindered from doing it by law or order;
(iii) to anyone for payments made by it in good faith to a fiscal
authority in connection with Taxes (including Taxes assessed
on the income of the Trust) or other charges in respect of a
Trust even if the payment need not have been made;
(iv) if a person fails to carry out an agreement with the Global
Trust Manager in connection with the Trust; or
(v) to anyone because of any error of law or any matter done or
omitted to be done by it in good faith in the event of the
liquidation or dissolution of a company (other than a
company under its control),
except to the extent that any of the foregoing is caused by the
Global Trust Manager's own gross negligence, fraud or wilful default.
The Global Trust Manager personally is not a "party" (as that term is
used in Section 2(a)(i) of the Master Agreement) under the Agreement
for the purposes of determining the obligations, representations and
undertakings of each "party" to it.
(f) Appointment of attorney by Party B. Party B hereby exclusively
appoints the Global Trust 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
Global Trust Manager may issue and receive on behalf of Party B all
notices, certificates and other communications to or by Party A,
under this Agreement until such time as Party B serves written notice
on Party A of the revocation of the Global Trust Manager's authority
to act on behalf of Party B in accordance with this Part 6(f) of the
Schedule.
23
ANNEXURE 1
FORM OF CONFIRMATION FOR BASIS SWAP
- National RMBS Trust 200[ ]-[ ] ("Trust")
[Party A Letterhead]
[ ]
To: [Name and address of Issuer Trustee] [National Global MBS Manager Pty Ltd
Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx XXX 0000]
Attention: [ ] Attention: [Manager, Group Funding]
SWAP CONFIRMATION - BASIS SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below
("Transaction"). This letter constitutes a "Confirmation" as referred to in
the Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented from
time to time ("Agreement"), between National Australia Bank Limited (ABN 12
004 044 937) ("Party A"), [Name and ABN of Issuer Trustee] as trustee of the
Trust ("Party B") and National Global MBS Manager Pty Ltd (ABN 36 102 668 226)
("Global Trust Manager"). All provisions contained in the Agreement govern
this Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Trade Date: [ ]
Effective Date: [ ]
Termination Date: Means the earlier of:
(a) the date that all the Notes
have been redeemed in full;
(b) the Final Termination Date;
and
(c) the Payment Date falling in
[month, year], subject to the
Following Business Day
Convention.
Notional Amount: With respect to each Interest
Period just ended, means the
Basis Swap Amount for that
Interest Period.
Floating Administered Rate Party B
24
Payer:
Floating Administered Rate Payer Payment [ ]
Dates:
Floating Rate Option: The weighted average of the
weighted average interest
rates for all Housing Loans
comprising part of the
Purchased Mortgage Loans being
charged a variable rate of
interest during the Collection
Period which relates to the
relevant Interest Period, as
calculated by the Global Trust
Manager on the first Business
Day of each calendar month
during that Collection Period.
Floating Rate Day Count Fraction: [ ]
Floating BBSW Amounts:
Floating BBSW Rate Payer: Party A
Floating BBSW Rate Payer Payment Dates: [ ]
Payment Dates:
Floating Rate Option: [ ]
Spread: For each payment made on a
Payment Date on or before the
Payment Date falling in
[month, year], [ ]% per annum.
For each payment made on a
Payment Date after the Payment
Date falling in [month, year],[
]% per annum except where the
Noteholders do not approve of
the redemption of the Notes at
their Stated Amount (instead of
their Invested Amount) in
accordance with the Transaction
Documents, in which case the
spread will be [ ]% per annum.
Floating Rate Day Count Fraction: [ ]
Reset Dates: The first day of each Interest
Period.
Business Day: Melbourne
Business Day Convention: Following
Calculation Agent: The Global Trust Manager
25
Account Details Instruction:
Account for payments to Party A: As advised
Account for payments to Party B: As advised
Other Provisions: The Transaction to which this
Confirmation relates is a Basis
Swap for the purposes of the
Agreement.
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning it to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of [NAME AND ABN OF ISSUER SIGNED for and on behalf of NATIONAL AUSTRALIA
TRUSTEE] as trustee of the National RMBS Trust BANK LIMITED (ABN 12 004 044 937)
200[ ]-[ ]
By: _______________________________ By: _______________________________
(Authorised Person) (Authorised Person)
Name: _____________________________ Name: _____________________________
Title: _____________________________ Title: _____________________________
SIGNED for and on behalf of NATIONAL GLOBAL MBS
MANAGER PTY LTD (ABN 36 102 668 226)
By: _______________________________
(Authorised Person)
Name: _____________________________
Title: _____________________________
26
ANNEXURE 2
FORM OF CONFIRMATION FOR FIXED SWAP
- National RMBS Trust 200[ ]-[ ] ("Trust")
[Party A Letterhead]
[ ]
To: [Name and address of Issuer Trustee] [National Global MBS Manager Pty Ltd
Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx XXX 0000]
Attention: [ ] Attention: [Manager, Group Funding]
SWAP CONFIRMATION - FIXED SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below
("Transaction"). This letter constitutes a "Confirmation" as referred to in
the Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented from
time to time ("Agreement"), between National Australia Bank Limited, (ABN 12
004 044 937) ("Party A"), [Name and ABN of Issuer Trustee] as trustee of the
Trust ("Party B") and National Global MBS Manager Pty Ltd (ABN 36 102 668 226)
("Global Trust Manager"). All provisions contained in the Agreement govern
this Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Trade Date: [ ]
Effective Date: [ ]
Termination Date: Means the earlier of:
(a) the date that all the Notes
have been redeemed in full;
(b) the Final Termination Date;
and
(c) the Payment Date falling in
[month, year],
27
subject to the Following
Business Day Convention.
Notional Amount: With respect to each Interest
Period just ended, means the
Fixed Swap Amount for that
Interest Period.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment Dates: [ ]
Fixed Rate:
The weighted average of the
weighted average interest rates
for all Housing Loans comprising
part of the Purchased Mortgage
Loans being charged a fixed
rate of interest during the
Collection Period that relates
to the relevant Interest
Period, as calculated by the
Global Trust Manager on the
first Business Day of each
calendar month during that
Collection Period. Fixed Rate
Day Count Fraction: [ ]
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer Payment Dates: [ ]
Floating Rate Option: [ ]
Spread: For each payment made on a
Payment Date on or before the
Payment Date falling in [month,
year], [ ]% per annum.
For each payment made on a
Payment Date after the Payment
Date falling in [month, year],[
]% per annum, except where the
Noteholders do not approve of
the redemption of the Notes at
their Stated Amount (instead of
their Invested Amount) in
accordance with the Transaction
Documents, in which case the
spread will be [ ]% per annum.
Floating Rate Day Count Fraction: [ ]
Reset Dates: The first day of each Interest
Period.
28
Business Day: Melbourne
Business Day Convention: Following
Calculation Agent: The Global Trust Manager
Account Details Instruction:
Account for payments to Party A As advised
Account for payments to Party B As advised
Other Provisions: The Transaction to which this
Confirmation relates is a Fixed
Swap for the purposes of the
Agreement.
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning it to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of [NAME AND ABN OF ISSUER SIGNED for and on behalf of NATIONAL AUSTRALIA
TRUSTEE] as trustee of the National RMBS Trust BANK LIMITED (ABN 12 004 044 937)
200[ ]-[ ]
By: _______________________________ By: _______________________________
(Authorised Person) (Authorised Person)
Name: _____________________________ Name: _____________________________
Title: _____________________________ Title: ____________________________
SIGNED for and on behalf of NATIONAL
GLOBAL MBS MANAGER PTY LTD
29
(ABN 36 102 668 226)
By: _______________________________
(Authorised Person)
Name: _____________________________
Title: _____________________________
30
SIGNED by [ ] )
as attorney for NATIONAL AUSTRALIA BANK LIMITED )
under power of attorney dated )
)
in the presence of: )
)
................................................ )
Signature of witness )
)
................................................ )
Name of witness (block letters) )
)
................................................ )
Address of witness ) ...............................................
) By executing this agreement the attorney states
................................................ ) that the attorney has received no notice of
Occupation of witness ) revocation of the power of attorney
)
SIGNED by [ ] )
as attorney for [NAME OF ISSUER TRUSTEE] under )
power of attorney dated )
[ ] )
)
in the presence of: )
)
................................................ )
Signature of witness )
)
................................................ )
Name of witness (block letters) )
)
................................................ )
Address of witness ) ...............................................
) By executing this agreement the attorney states
................................................ ) that the attorney has received no notice of
Occupation of witness ) revocation of the power of attorney
31
SIGNED by [ ] on behalf of )
NATIONAL GLOBAL MBS MANAGER PTY LTD in the )
presence of: )
)
................................................ )
Signature of witness )
)
................................................ )
Name of witness (block letters) )
)
................................................ )
Address of witness )
) ...............................................
................................................ ) By executing this agreement the signatory
Occupation of witness ) states that the signatory has received no
) notice of revocation of the authority under
) which this Agreement is executed
)
[NAME OF SUPPORT PROVIDER]
National RMBS Trust 200[ ]-[ ] ("Trust")
[ ]
To: [Name and address of Issuer Trustee] [National Global MBS Manager Pty Ltd
Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Australia]
Attention: [ ] Attention: [Manager, Group Funding]
SWAP CONFIRMATION - BASIS SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below
("Transaction"). This letter constitutes a "Confirmation" as referred to in
the Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented from
time to time ("Agreement"), between National Australia Bank Limited (ABN 12
004 044 937) ("Party A"), [Name and ABN of Issuer Trustee] as trustee of the
Trust ("Party B") and National Global MBS Manager Pty Ltd (ABN 36 102 668 226)
("Global Trust Manager"). All provisions contained in the Agreement govern this
Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Trade Date: [ ]
Effective Date: [ ]
Termination Date: Means the earlier of:
(a) the date that all the Notes
have been redeemed in full;
(b) the Final Termination Date;
and
(c) the Payment Date falling in
[month, year],
subject to the Following
Business Day Convention.
Notional Amount: With respect to each Interest
Period just ended, means the
Basis Swap Amount for that
Interest Period.
Floating Administered Rate Party B
Payer:
Floating Administered Rate [ ]
2
Payer Payment Dates:
Floating Rate Option: The weighted average of the
weighted average interest rates
for all Housing Loans comprising
part of the Purchased Mortgage
Loans being charged a variable
rate of interest during the
Collection Period which relates
to the relevant Interest Period,
as calculated by the Global
Trust Manager on the first
Business Day of each calendar
month during that Collection
Period.
Floating Rate Day Count [ ]
Fraction:
Floating BBSW Amounts:
Floating BBSW Rate Payer: Party A
Floating BBSW Rate Payer [ ]
Payment Dates:
Payment Dates:
Floating Rate Option: [ ]
Spread: For each payment made on a
Payment Date on or before the
Payment Date falling in [month,
year], [ ]% per annum.
For each payment made on a
Payment Date after the Payment
Date falling in [month, year],[
]% per annum except where the
Noteholders do not approve of
the redemption of the Notes at
their Stated Amount (instead of
their Invested Amount) in
accordance with the Transaction
Documents, in which case the
spread will be [ ]% per annum.
Floating Rate Day Count
Fraction: [ ]
Reset Dates: The first day of each Interest
Period.
Business Day: Melbourne
Business Day Convention: Following
Calculation Agent: The Global Trust Manager
Account Details Instruction:
Account for payments to Party As advised
A:
3
Account for payments to Party As advised
B:
Other Provisions: The Transaction to which this
Confirmation relates is a Basis
Swap for the purposes of the
Agreement.
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning it to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of [NAME AND ABN OF ISSUER SIGNED for and on behalf of NATIONAL AUSTRALIA
TRUSTEE] as trustee of the National RMBS Trust BANK LIMITED (ABN 12 004 044 937)
200[ ]-[ ]
By: _________ _________ By: __________ _________
(Authorised Person) (Authorised Person)
Name: __________________ Name: __________________
Title:__________________ Title: ___________________
SIGNED for and on behalf of NATIONAL GLOBAL MBS
MANAGER PTY LTD
By: ______ ____
(Authorised Person)
Name: ______________
Title: __________________
NAME OF SUPPORT PROVIDER]
National RMBS Trust 200[ ]-[ ] ("Trust")
[ ]
To: [Name and address of Issuer Trustee] [National Global MBS Manager Pty Ltd
Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Australia]
Attention: [ ] Attention: [Manager, Group Funding]
SWAP CONFIRMATION - FIXED SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below
("Transaction"). This letter constitutes a "Confirmation" as referred to in
the Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented from
time to time ("Agreement"), between National Australia Bank Limited, (ABN 12
004 044 937) ("Party A"), [Name and ABN of Issuer Trustee] as trustee of the
Trust ("Party B") and National Global MBS Manager Pty Ltd (ABN 36 102 668 226)
("Global Trust Manager"). All provisions contained in the Agreement govern
this Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Trade Date: [ ]
Effective Date: [ ]
Termination Date: Means the earlier of:
(a) the date that all the Notes
have been redeemed in full;
(b) the Final Termination Date;
and
(c) the Payment Date falling in
[month, year],
2
subject to the Following
Business Day Convention.
Notional Amount: With respect to each Interest
Period just ended, means the
Fixed Swap Amount for that
Interest Period.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment Dates: [ ]
Fixed Rate: The weighted average of the
weighted average interest rates
for all Housing Loans
comprising part of the
Purchased Mortgage Loans being
charged a fixed rate of
interest during the Collection
Period that relates to the
relevant Interest Period, as
calculated by the Global Trust
Manager on the first Business
Day of each calendar month
during that Collection Period.
Fixed Rate Day Count Fraction: [ ]
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer Payment [ ]
Dates:
Floating Rate Option: [ ]
Spread: For each payment made on a
Payment Date on or before the
Payment Date falling in [month,
year], [ ]% per annum.
For each payment made on a
Payment Date after the Payment
Date falling in [month, year],
[ ]% per annum, except where the
Noteholders do not approve of
the redemption of the Notes at
their Stated Amount (instead of
their Invested Amount) in
accordance with the Transaction
Documents, in which case the
spread will be [ ]% per annum.
Floating Rate Day Count Fraction: [ ]
Reset Dates: The first day of each Interest
Period.
3
Business Day: Melbourne
Business Day Convention: Following
Calculation Agent: The Global Trust Manager
Account Details Instruction:
Account for payments to Party A As advised
Account for payments to Party B As advised
Other Provisions: The Transaction to which this
Confirmation relates is a Fixed
Swap for the purposes of the
Agreement.
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning it to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of [NAME AND ABN OF ISSUER SIGNED for and on behalf of NATIONAL AUSTRALIA
TRUSTEE] as trustee of the National RMBS Trust BANK LIMITED (ABN 12 004 044 937)
200[ ]-[ ]
By: __________________ By: ________ ___________
(Authorised Person) (Authorised Person)
Name: __________________ Name: ______________________
Title:__________________ Title: _____________________
4
SIGNED for and on behalf of NATIONAL GLOBAL MBS
MANAGER PTY LTD
By: ______ ______
(Authorised Person)
Name: ______________
Title: __________________
ISDA(R)
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of [ ]
between
[name and ABN of Party A]
("Party A")
and
[name and ABN of Issuer Trustee]
as trustee for the National RMBS Trust 200[ ]-[ ]
("Party B")
and
National Global MBS Manager Pty Ltd
(ABN 36 102 668 226)
("Global Trust Manager")
and
[name of Support Provider]
("Support Provider")
Part 1. Termination Provisions
In this Agreement:
(a) "Specified Entity" in relation to:
(i) Party A, is not applicable; and
(ii) Party B, is not applicable.
(b) "Specified Transaction" will have the meaning specified in Section 14
of this Agreement.
(c) The "Automatic Early Termination" provision of Section 6(a) will not
apply to Party A and will not apply to Party B.
(d) Payments on Early Termination. For the purpose of Section 6(e) of
this Agreement:
(i) Market Quotation will apply;
(ii) the Second Method will apply.
(e) "Termination Currency" is Australian dollars.
(f) Additional Termination Event applies. Each of the following is an
Additional Termination Event in relation to which both Party A and
Party B are Affected Parties:
2
"An Event of Default occurs in respect of the Trust and the Security
Trustee has declared the [Class/Classes of US Notes] to be
immediately due and payable."
"All of the [Class/Classes of US Notes] are redeemed under Condition
7.4 of the [Conditions of the Class/Classes of US Notes]."
Part 2. Tax Representations
(a) Payer Representations. For the purpose of Section 3(e) of this
Agreement, Party A will make the following representation and Party B
will make the following representation:
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account
of any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other
party under this Agreement. In making this representation, it may
rely on:
(i) the accuracy of any representations made by the other party
pursuant to Section 3(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 the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement;
and
(iii) the satisfaction of the agreement of the other party
contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not
deliver a form or document under Section 4(a)(iii) by reason of
material prejudice to its legal or commercial position.
(b) Payee Tax Representation. For the purpose of Section 3(f) of this
Agreement, Party A and Party B will make the representation:
It is an Australian resident and does not derive the payments under
this Agreement in part or whole carrying on business in a country
outside Australia at or through a permanent establishment of itself
in that country. Party B further represents that it is a "foreign
trust" for United States tax purposes.
Part 3. Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
(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 and Party B Any document or certificate reasonably On the earlier of (a) as soon as
required or reasonably requested by Party A reasonably practical following
or Party B in connection with its obligations learning that such document or
to make a payment under this Agreement certificate is required and (b) as
3
which would enable that party to make the soon as reasonably practicable
payment free from any deduction or following a request by the other
withholding for or on account of Tax or as party.
would reduce the rate at which deduction or
withholding for or on account of Tax is
applied to that payment (including, without
limitation, any United States Form W-8BEN
of other relevant United States tax form).
(b) Other documents to be delivered are:
Party required to Form/Document/ Certificate Date by which to be Covered by
deliver document delivered document Section 3(d)
Representation
Party A and Party B A list of authorised signatories On execution of this Yes
for the party and, if so Agreement or any relevant
requested by the other party, Confirmation and when the
evidence satisfactory in form list is updated.
and substance to the other party
of the authority of the
authorised signatories of the
party to execute this Agreement
and any Confirmation on behalf of
the party.
Party A and Party B A legal opinion as to the validity At any time prior to the Yes
and enforceability of that first Issue Date.
party's obligations under this
Agreement in form and
substance (and issued by legal
counsel) reasonably acceptable
to each other party.
Global Trust A copy (certified by an Authorised In the case of each Credit Yes
Manager (to be Authorised Person of the Global Suppor Document, within
delivered to Party A) Trust Manager to be a true and 5 Business Days (or such
complete copy) of each Credit period as Party A agrees
Support Document in respect of to) of execution of this
Party B and (without limiting Agreement (provided that
any obligation Party B may it must be received by the
have under the terms of that first Issue Date) and, in the
Credit Support Document to case of an amending
notify Party A of amendments) document, within 5
a copy (certified by an Business Days (or such
Authorised Person of the Global other period as Party A
Trust Manager to be a true and agrees to) of execution of
complete copy) of any the amending document.
document that amends in any
way the terms of any Credit
4
Party required to Form/Document/ Certificate Date by which to be Covered by
deliver document delivered document Section 3(d)
Representation
Support Document.
Global Trust A copy, certified an Within 5 Business Days of Yes
Manager (to be Authorised Person of the Global execution of this
delivered to Party A) Trust Manager, of the Master Agreement, provided that
Trust Deed, Supplemental they must be delivered by
Deed, [Conditions of the the first Issue Date.
Class/Classes of US Notes],
Definitions Schedule and Note
Trust Deed.
Part 4. Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address: [ ]
Attention: [ ]
Telex No: [ ] Answerback: [ ]
Facsimile No: [ ] Telephone No: [ ]
Electronic Messaging System Details: [ ]
Address for notices or communications to Support Provider:
Address: [ ]
Attention: [ ]
Telex No: [ ] Answerback: [ ]
Facsimile No: [ ] Telephone No: [ ]
Electronic Messaging System Details: [ ]
with a copy to: [ ]
Address for notices or communications to Party B:
Address: [ ]
Attention: [ ]
Telex No: [ ] Answerback: [ ]
5
Facsimile No: [ ] Telephone No: [ ]
Electronic Messaging System Details: [ ]
All notices or communications to Party B to be copied to the Global
Trust Manager at the address below
Address for notices or communications to Global Trust Manager:
Address: [Level 24, 000 Xxxxxx Xxxxxx, Xxxxxxxxx XXX 0000]
Attention: [Manager, Group Funding]
Telex No: [Not applicable] Answerback: [Not Applicable]
Facsimile No: [(000 0000 0000] Telephone No: [(000) 0000 0000]
Electronic Messaging System Details: [Not Applicable]
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
(i) Party A appoints as its Process Agent: [ ]
(ii) Party B appoints as its Process Agent: [ ]
(iii) Support Provider appoints as its Process Agent: [ ]
(c) Offices. The provisions of Section 10(a) will not apply to
this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Neither Party A nor Party B is a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) Credit Support Document. Details of any Credit Support Document:
(i) in relation to Party A: Nil;
(ii) in relation to Party B: the Master Security Trust Deed and the
Deed of Charge.
(g) Credit Support Provider. Credit Support Provider means:
(i) in relation to Party A, the Support Provider unless:
(A) a Substitute Transaction becomes effective in
accordance with Section 16 of the Other Agreement,
in which case, nil; or
(B) an Equivalent-Other Transaction becomes effective
in accordance with Section 16 of the Other
Agreement, in which case the New Currency Swap
6
Provider shall be the new Credit Support Provider
in relation to Party A; and
(ii) in relation to Party B: nil.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws in force in the Australian Capital Territory
and each party submits to the non-exclusive jurisdiction of the
courts of the Australian Capital Territory. Section 13(b)(i) is
deleted and replaced by the following:
"(i) submits to the non-exclusive jurisdiction of the
courts of the Australian Capital Territory; and".
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this
Agreement will not apply to any Transactions.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement. For the purpose of Section 3(c), Party A is deemed not to
have any Affiliates.
Part 5. Other Provisions
(1) Payments: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party."
(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:
(1) Party A, will be made by [12 midday] (New York time); and
(2) Party B, will be made by [4.00pm] (Melbourne time),
on the due date for value on that date in the place of the
account specified in the relevant Confirmation or otherwise
pursuant to this Agreement, in freely transferable funds, free
of any set-off, counterclaim, deduction or withholding (except
as expressly provided in this Agreement) and in the manner
customary for payment in the required currency."
(c) Insert new paragraph (iv) in Section 2(a) immediately after
Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not
apply to a payment due to be made by a party if it has
satisfied all its payment obligations under Section
2(a)(i) of this Agreement and has no future payment
obligations, whether absolute or contingent under Section
2(a)(i)."
(d) Add the following new sentence to Section 2(b):
7
"Each new account so designated shall be in the same tax
jurisdiction as the original account."
(e) Insert a new paragraph (v) in Section 2(a) immediately after
Section 2(a)(iv) as follows:
"(v) Where:
(1) payments are due pursuant to Section 2(a)(i) by Party
A to Party B (the "Party A Payment") and by Party B
to Party A (the "Party B Payment") on the same day,
then Party A's obligation to make the Party A Payment will
be subject to the condition precedent (which will be an
"applicable condition precedent" for the purpose of
Section 2(a)(iii)(3)) that Party A first receives either:
(2) the Party B Payment; or
(3) confirmation from Party B's bank that it holds
irrevocable instructions to effect payment of the
Party B Payment and that funds are available to make
that payment."
(f) Party B's Payment Instructions. Party B irrevocably authorises
and instructs Party A to make payment of:
(i) the "Party A Initial Exchange Amount" payable by Party A
under a currency swap transaction 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.
(g) 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 Melbourne 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.
(2) Representations: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the
words "creditors' rights generally" the following:
"(including in the case of a party being an authorised
deposit-taking institution under the Banking Xxx 0000 (Cwlth),
section 13A(3) of the Banking Xxx 0000 (Cwlth) and section 86
of the Reserve Bank Xxx 0000 (Cwlth) or any analogous provision
under any other law applicable to a party),"
8
(b) Insert new paragraphs (g) and (h) in Section 3 immediately
after Section 3(f):
"(g) Relationship between Parties. Each party will be deemed to
represent to each other party on the date on which it
enters into a Transaction that (absent a written agreement
between the parties that expressly imposes affirmative
obligations to the contrary for that Transaction):
(i) Non-Reliance. It is acting for its own account or, in
the case of Party B, as trustee of the Trust, and it
has made its own independent decisions to enter into
that Transaction or, in the case of Party B, has been
directed to do so by the Global Trust Manager and as
to whether that Transaction is appropriate or proper
for it based upon its own judgement and upon advice
from such advisers as it has deemed necessary or, in
the case of Party B, at the direction of the Global
Trust Manager. It is not relying on any communication
(written or oral) of the 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 the
other party will be deemed to be an assurance or
guarantee as to the expected results of that
Transaction.
(ii) Evaluation and Understanding. It is capable of
evaluating and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and
risks of that Transaction. It is also capable of
assuming, and assumes, the risks of that Transaction.
(iii) Status of Parties. No other party is acting as a
fiduciary or an adviser to it in respect of that
Transaction (other than, in the case of Party B, the
Global Trust Manager).
(h) Trust. By Party B, in respect of Party B only:
(i) Trust Validly Created. The Trust has been validly
created and is in existence at the date of this
Agreement.
(ii) Sole Trustee. It has been validly appointed as
trustee of the Trust and is presently the sole
trustee of the Trust.
(iii) No Proceedings to Remove. No notice has been given
to it and to its knowledge no resolution has been
passed, or direction or notice has been given,
removing it as trustee of the Trust.
(iv) Power. It has power to enter into this Agreement and
the Credit Support Documents in its capacity as
trustee of the Trust.
(v) Good Title. It is the legal owner of, or has
equitable title to (as applicable), the Assets of the
Trust and has power to transfer them in the manner
provided in the Credit Support Documents in relation
9
to Party B and, subject only to the Credit Support
Documents in relation to Party B and any Security
Interest permitted under the Credit Support Documents
in relation to Party B, those Assets are free of all
other Security Interests (except for Party B's right
of indemnity out of the Assets of the Trust)."
(3) Event of Default: In Section 5(a), 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
Business 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
Business Day after notice of such failure is given to
Party A;".
(4) Amendment to Section 6
Add a new Section 6(aa):
"(aa) Restricted Termination Rights
(i) Termination by Party B: Party B must not designate an
Early Termination Date without the prior written consent
of the Note Trustee. Party B may only designate an Early
Termination Date at the direction of the Global Trust
Manager. Subject to its duties under the Master Trust Deed
and the Supplemental Deed, Party B may exercise any rights
in its capacity as holder of the Assets of the Trust only
on the instructions of the Global Trust Manager and only
after consultation between Party A, Party B, the Global
Trust Manager and the Note Trustee.
(ii) Consultation regarding timing: Party A and Party B agree
that prior to designating an Early Termination Date they
will attempt to consult with the other as to the timing of
the Early Termination Date.
(iii) Party A's limited rights in relation to Tax Event:
Notwithstanding Part 5(24) of this Schedule, Party A may
designate an Early Termination Date if it is an Affected
Party following a Tax Event but only if the Note Trustee
has confirmed that it is satisfied that the [Noteholders
of the Class/Classes of US Notes] will be paid in full all
principal and interest outstanding on the [Class/Classes
of US Notes].
(iv) Illegality: The parties agree that imposition by any
Governmental Agency of an Australian jurisdiction of any
exchange controls, restrictions or prohibitions will not
constitute an Illegality for the purposes of Section
5(b)(i) or Section 5(c) and Party A will not be entitled
to designate an Early Termination Date.
(v) Transfer where Party B does not gross-up: If any payment
by Party B to Party A under this Agreement is, or is
likely to be, made subject to any
10
deduction or withholding on account of Tax, Party B will
endeavour to procure the substitution as principal obligor
under this Agreement in respect of each Affected
Transaction of a replacement Party B incorporated in
another jurisdiction approved by Party A and the Note
Trustee and in respect of which the Current Rating
Agencies confirm that the substitution will not cause a
reduction or withdrawal of the rating of the
[Class/Classes of US Notes].
(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 Global Trust 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 Current Rating Agencies have given prior
written confirmation to the Global Trust Manager that such a
transfer will not result in an Adverse Rating Effect."
(ii) The third paragraph is deleted and replaced with the following:
"Any such transfer by a party under this Section 6(b)(ii) will
be subject to and conditional upon the prior written consent of
the other party, which consent will not be withheld:
(1) where the other party is Party A, if Party A's policies in
effect at such time would permit it to enter into
transactions with the transferee on the terms proposed; or
(2) where the other party is Party B, if the Current Rating
Agencies have confirmed in writing that such transfer will
not result in an Adverse Rating Effect.
(e) Notice of Event of Default: For the purposes of Section 6(a) and
(b), each of Party A and Party B may only provide a notice
specifying an Event of Default with respect to the other as the
Defaulting Party and may only designate an Early Termination Date
following a Termination Event where either Party A or Party B (or
both) is the Affected Party or the Burdened Party.
(6) Replacement Currency Swap Agreement:
(a) If any Transaction under this Agreement which is a currency
swap is terminated prior to the day upon which the
[Class/Classes of US Notes] are redeemed in full, Party B may,
at the direction of the Global Trust Manager, enter into one or
more currency swaps which replace that Transaction
(collectively a "Replacement Currency Swap") provided that:
(i) the Current Rating Agencies confirm in writing that the
entry into the Replacement Currency Swap by Party B does
not result in an Adverse Rating Effect; and
11
(ii) the liability of Party B under the Replacement Currency
Swap is limited to the satisfaction of Party B and, in any
case, 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 the amount calculated to be payable under
Section 6(e) ("Total Settlement Amount") is payable by Party B
to Party A upon termination of the Transaction referred to in
Part 5(6)(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 Total Settlement Amount to Party A, and to the extent
such premium is not greater than or equal to the Total
Settlement Amount, the balance may be satisfied by Party B as
an Expense of the Trust.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Total Settlement Amount is payable by Party
A to Party B upon termination of the Transaction referred to in
Part 5(6)(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 rights and obligations of Party A and Party B under this
Part 5(6) will survive the termination of this Agreement.
(7) Insert the following Sections 15 and 16 after Section 14:
"15 Guarantee by Support Provider
(a) In consideration of Party B entering into the Other Agreement
(as defined in Section 16(f)) and Transactions under the Other
Agreement with the Support Provider on the same material
economic terms as Transactions under this Agreement, the
Support Provider unconditionally guarantees to Party B the
payment by Party A of moneys which are payable by Party A under
a Transaction (on terms set out in this Agreement and in the
Confirmation for that Transaction) ("Payable Moneys") to Party
B in the event that Party A defaults in the payment of those
Payable Moneys.
(b) If Party B has not been, or Party A reasonably expects that
Party B is not going to be, paid all or any part of the
presently Payable Moneys by Party A, then Party A or Party B
may by notice to the Support Provider demand payment of the
Payable Moneys in respect of which demand is being made. The
Support Provider agrees to make payments of the relevant
Payable Moneys within 3 Business Days of such a demand. The
Support Provider's obligations to pay those Payable Moneys
which have not been paid by Party A are not conditional on the
Support Provider receiving such notice of demand.
(c) The Support Provider agrees that it will not, until all the
present and prospective Payable Moneys have been paid, exercise
any rights of subrogation which it may acquire due to its
payment of Payable Moneys under Section 15(a).
(d) All payments by the Support Provider shall be made in the
currency in which the Payable Moneys are denominated.
12
(e) Party B agrees that, without affecting its rights under Section
16, to the extent that the Support Provider pays the Payable
Moneys, and thereby avoids or remedies a default by Party A,
Party B shall not be entitled to designate an Early Termination
Date in respect of that default by Party A, and such a payment
by the Support Provider shall be deemed to be an "actual
payment" as referred to in line 6 of Section 2(e) of this
Agreement.
(f) The provisions of this Section 15 shall constitute irrevocable
obligations of the Support Provider until a notice of
revocation is served by the Support Provider on Party B, but
such a notice cannot and shall not be served without the prior
written consent of Party A, Party B and the Global Trust
Manager in consultation with the Current Rating Agencies.
16 Support Provider Transactions
(a) If a Credit Event has occurred in respect of Party A then the
Support Provider may give a Substitution Notice to Party B and
to the Global Trust Manager specifying a Transaction which
shall be substituted under this Section 16 (a "Replaced
Transaction").
(b) If the Support Provider gives a Substitution Notice under
Section 16(a), then either:
(i) a Substitute Transaction shall become effective; or
(ii) both:
(A) Party B, the Support Provider and the Global Trust
Manager must enter into an Equivalent Transaction
with a counterparty which has a Prescribed Joint
Rating and which is procured by the Support Provider
and the Note Trustee (the "New Currency Swap
Provider"); and
(B) an Equivalent-Other Transaction shall become
effective. The New Currency Swap Provider, Party B,
the Support Provider and the Global Trust Manager
must execute a Confirmation setting out the terms of
the Equivalent-Other Transaction,
provided that in each case the Current Rating Agencies confirm
that the relevant actions will not cause a reduction or
withdrawal of the rating of the [Class/Classes of US Notes].
For the avoidance of doubt, if the Substitution Notice
specifies that either the Transaction under paragraph (b)(i) or
the Transactions under paragraphs (b)(ii)(A) and (B) shall
become effective as alternatives, and if a counterparty with a
Prescribed Joint Rating is not procured by the Support Provider
and the Note Trustee under paragraph (b)(ii)(A), the Substitute
Transaction must become effective in accordance with paragraph
(b)(i).
(c) On the date on which the Substitute Transaction or an
Equivalent Transaction and an Equivalent-Other Transaction
become effective in accordance with a Substitution Notice under
either paragraph (b)(i) or (b)(ii):
13
(i) the Replaced Transaction shall terminate; and
(ii) the Other Transaction shall terminate.
(d ) Subject to (e), no Settlement Amount, Unpaid Amounts or other
amount under Section 6 or Section 11 shall be payable by, or
to, Party B (as the case may be) upon the termination of these
transactions.
(e) The parties acknowledge that on the Effective Date of the
Substitute Transaction or the Equivalent Transaction, Party A
shall pay to the Support Provider (in the case of the
Substitute Transaction) or to the New Currency Swap Provider
(in the case of the Equivalent Transaction) the amount equal to
the amount (if any) that hypothetically would have been payable
by Party A to Party B under Section 6(e)(i)(3) if:
(i) the Replaced Transaction had been terminated (and it was
the only Terminated Transaction);
(ii) Party A was the Defaulting Party;
(ii) an Early Termination Date had occurred on the Effective
Date; and
(iii) this Section 16 had not applied in respect of the
Replaced Transaction.
If an amount would have been payable by Party B to Party A,
then the Support Provider will pay (in the case of a Substitute
Transaction) or procure that the New Currency Swap Provider
pays (in the case of an Equivalent Transaction) an amount equal
to this amount to Party A.
Any such amount shall be payable by or to, as the case may be,
either the Support Provider in accordance with the terms agreed
between them (in the case of the Substitute Transaction), or
the New Currency Swap Provider in accordance with the terms
agreed between Party A and the New Currency Swap Provider (in
the case of the Equivalent Transaction).
(f) Definitions. For the purposes of Section 16:
"Credit Event" means, in relation to Party A, the occurrence at
any time of any of the following events with respect to Party
A:
(i) failure by Party A to make, when due, any payment under
the Replaced Transaction required to be made by it if such
failure is not remedied on or before the tenth Business
Day after notice of such failure is given to Party A;
(ii) the occurrence with respect to Party A (and not Party A's
Credit Support Provider) of an event specified in Section
5(a)(vii)(1) to (9) inclusive;
(iii) the occurrence with respect to Party A (and not Party A's
Credit Support Provider) of an event specified in Section
5(a)(viii);
(iv) the occurrence with respect to Party A of an event
specified in Section 5(b)(i)(1);
14
(v) on any day on which a failure by Party A under paragraph
(i) is subsisting Party A fails to transfer collateral in
accordance with this Agreement if such failure is not
remedied on or before the second local Business Day after
notice of such failure is given to Party A; or
(vi) the occurrence of:
(A) a default, event of default or other similar
condition or event (however described) in respect of
Party A under an agreement or instrument relating to
Specified Indebtedness of Party A in an aggregate
amount of not less than the applicable Threshold
Amount which has resulted in the Specified
Indebtedness becoming due and payable under such
agreement or instrument before it would otherwise
have been due and payable; or
(B) a default by Party A in making one or more payments
on the due date thereof in an aggregate amount of not
less than the applicable Threshold Amount under an
agreement or instrument relating to Specified
Indebtedness of Party A (after giving effect to any
applicable notice requirement or grace period).
For the purposes of this paragraph (vi), "Specified
Indebtedness" and "Threshold Amount" shall have the
meanings given in the Confirmation for the Replaced
Transaction.
"Equivalent Transaction" means a Transaction governed by a new
agreement on the same material terms as this Agreement and on
the same material economic terms as the Replaced Transaction,
and with the same "Trade Date" as the Replaced Transaction,
except that:
(i) the New Currency Swap Provider is designated as "Party A";
(ii) the Support Provider is designated as the new "Support
Provider" in relation to Party A;
(iii) the "Effective Date" is the same date as that specified
in the Substitution Notice as the Effective Date for the
Equivalent-Other Transaction; and
(iv) no "Party A Initial Exchange Amount" or "Party B Initial
Exchange Amount" are payable under the Transaction.
"Equivalent-Other Transaction" means a Transaction governed by
the Other Agreement and on the same material economic terms as
the Other Transaction and with the same Trade Date as the
Replaced Transaction, except that:
(i) the Support Provider is designated as the new "Party A";
(ii) the New Currency Swap Provider is designated as the new
"Support Provider" in relation to Party A;
(iii) the "Effective Date" is as specified in the relevant
Substitution Notice; and
15
(iv) no "Party A Initial Exchange Amount" or "Party B Initial
Exchange Amount" are payable under the Transaction.
"New Currency Swap Provider" has the meaning given in Section
16 (b)(ii)(A).
"Other Agreement" means the ISDA Master Agreement and Schedule
substantially on the same material terms as this Agreement
between the Support Provider, Party B, the Global Trust Manager
and Party A.
"Other Transaction" means the Transaction governed by the Other
Agreement and on the same economic terms as the Replaced
Transaction, with the same Trade Date as the Replaced
Transaction, and as specified as such in the relevant
Substitution Notice.
"Replaced Transaction" means the Transaction governed by this
Agreement, and specified as such in the relevant Substitution
Notice, as referred to in Section 16(a);
"Substitute Transaction" means a Transaction governed by the
Other Agreement, and on the same economic terms as the Other
Transaction and with the same Trade Date as the Replaced
Transaction, except that:
(i) no party is designated as a "Support Provider";
(ii) the "Effective Date" is as specified in the relevant
Substitution Notice;
(iii) the "Calculation Amounts" applicable to the Floating
Amounts payable by the respective parties under the
Transaction are the same as the "Calculation Amounts"
applicable to the Floating Amounts payable by the
respective parties under the Replaced Transaction except
that the references to "50%" are substituted by references
to "100%";
(iv) no "Party A Initial Exchange Amount" or "Party B Initial
Exchange Amount" are payable under the Transaction; and
(v) Sections 15 and 16 do not apply.
"Substitution Notice" means an irrevocable notice in writing
from the Support Provider to Party B and the Global Trust
Manager, which may be delivered between [9.00 am] and [4.00 pm]
in Sydney on a Business Day in accordance with section 12, and
which:
(i) describes the occurrence of a Credit Event;
(ii) specifies the "Effective Date" for an Equivalent-Other
Transaction or for a Substitute Transaction (or for either
Transactions under Section 16(b)(i) or 16(b)(ii), as
alternatives) and, if an Equivalent-Other Transaction is
specified, the proposed New Currency Swap Provider and the
terms of the Equivalent Transaction (by attaching a
proposed Confirmation for the Equivalent Transaction); and
16
(iii) confirms that the Termination Date for the Replaced
Transaction and the Other Transaction shall be the
Effective Date for the Transactions in either Section
16(b)(i), or 16(b)(ii)(A) and (B), as the case may be.
(f) Section 16 and any related provision in a Confirmation (the
"Substitution Provisions") shall not amend, or effect the
operation of, any other provision in this Agreement, except to
the extent, if any, expressly provided by the Substitution
Provisions."
(8) Payment of A$ amounts by Party B
Party A acknowledges that:
(a) it assumes the risk that any Government Agency of an Australian
jurisdiction may impose exchange controls, restrictions or
prohibitions making it unlawful or requiring that consent be
obtained (for any reason) in order for Party B to make payments
under this Agreement to Party A in A$ outside Australia or to
an account situated outside Australia; and
(b) if and for so long as any Government Agency of an Australian
jurisdiction does impose any controls, restrictions or
prohibitions referred to in paragraph (a), then to the extent
that Party B makes payments to Party A in A$ in Australia or to
an account held by or on behalf of Party A in Australia:
(i) Party B's obligation to make those payments to Party A
will be taken to be satisfied; and
(ii) Party A's obligations will be unaffected.
(9) Facsimile Transmission: In Section 12:
(a) Replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission, on the date a
transmission report is produced by the machine from
which the facsimile was sent which indicates that the
facsimile was sent in its entirety to the facsimile
number of the recipient notified for the purpose of
this Section unless the recipient notifies the sender
within one Business Day of the facsimile being sent
that the facsimile was not received in its entirety
in legible form;"
(b ) Insert a new paragraph (vi) in Section 12(a) immediately after
Section 12(a)(v) as follows:
"(vi) if sent by ordinary mail, on the third (seventh, if
posted to or from a place outside Australia) day
after posting."
(10) Definitions
In this Agreement, unless the contrary intention appears:
(a) Definitions Schedule and Supplemental Deed: unless defined in
this Agreement words and phrases defined in the Definitions
Schedule and the Supplemental Deed
17
(each in the form as at the date of this Agreement) have the
same meaning in this Agreement. Where there is any
inconsistency in a definition between this Agreement (on the
one hand) and the Definitions Schedule or the Supplemental Deed
(on the other hand), this Agreement prevails. Where there is
any inconsistency in a definition between the Definitions
Schedule and the Supplemental Deed, the Supplemental Deed
prevails over the Definitions Schedule in respect of the Trust.
Where words or phrases used but not defined in this Agreement
are defined in the Definitions Schedule in relation to a Trust
(as defined in the Definitions Schedule) such words or phrases
are to be construed in this Agreement, where necessary, as
being used only in relation to the Trust (as defined in the
Supplemental Deed);
(b) Interpretation: references to time are references to Melbourne
time, unless stated otherwise;
(c) Trustee Capacity:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the Trust only, and in no other
capacity; and
(ii) a reference to the undertaking, assets, business, money or
other thing of or in relation to Party B is a reference to
the undertaking, assets, business, money or other thing of
or in relation to Party B in the capacity referred to in
paragraph (i) only;
(d) Definitions: in Section 14:
(i) replace the definitions of "Affected Transactions" and
"Local Business Day" with the following:
""Affected Transactions" means, with respect to a
Termination Event, all Transactions."
"Local Business Day" has the same meaning as "Business
Day"."
(ii) insert the following new definitions:
"Definitions Schedule" means the deed entitled "National
RMBS Trusts Definitions Schedule" dated [ ] between the
parties listed in schedule 1 to that deed (as amended from
time to time).
"Prescribed Rating" means [insert applicable ratings by
applicable ratings agencies]
"Prescribed Joint Rating" means, in respect of a person, a
sufficient credit rating so that the jointly supported
credit rating that can be assigned to senior debt jointly
supported by the person and the Support Provider: [insert
applicable ratings by applicable ratings agencies]
"Supplemental Deed" means the National RMBS Trust 200[ ]-
[ ] Supplemental Deed dated on or about the date of this
Agreement between Party A, the Global Trust Manager, Party
B and certain other parties.
18
"Trust" means the National RMBS Trust 200[ ]-[ ]
constituted by the Master Trust Deed and a Notice of
Creation of Trust.
(e) ISDA Definitions: The 1991 ISDA Definitions (as supplemented by
the 1998 Supplement to the 1991 ISDA Definitions) (each as
published by the International Swaps and Derivatives
Association, Inc) (the "1991 ISDA Definitions") as at the date
of this Agreement are incorporated into this Agreement and each
Confirmation.
(f) Inconsistency: Unless specified otherwise, in the event of any
inconsistency between any two or more of the following
documents in respect of a Transaction they will take precedence
over each other in the following order in respect of that
Transaction:
(i) any Confirmation;
(ii) this Agreement;
(iii) the Supplemental Deed;
(iv) the Definitions Schedule; and
(v) the 1991 ISDA Definitions.
(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.
(i) Clause 14 of Supplemental Deed: Each of Party B and the Support
Provider agrees that it will not consent to an amendment of
Clause 14 of the Supplemental Deed without the prior consent of
Party A.
19
(11) Limitation of Liability: Insert the following Section 17, after
Section 16:
"17. Party B's Limitation of Liability
Clause 2 of the Definitions Schedule (as at the date of
this Agreement) is deemed to be included in full in this
Agreement with any consequential changes necessary to give
effect to that clause.
(12) Send Information: Insert the following new Section 18 after
Section 17:
"18 Send Information
On each Determination Date the Global Trust Manager will
send to each Current Rating Agency such information in the
possession of the Global Trust Manager as each Current
Rating Agency reasonably requires in relation to the
Currency Swap, and any other matters in connection with
this Agreement."
(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) Derivative Contract: The parties acknowledge and agree that for the
purposes of the Transaction Documents this Agreement is a Derivative
Contract.
(15) 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 Global Trust Manager and the Support
Provider a Confirmation substantially in the form set out in
the Annexure (or in such other form as may be agreed between
Party A, Party B, the Global Trust Manager and the Support
Provider), and Party B, the Global Trust Manager and the
Support Provider must promptly then confirm the accuracy of
and sign and return, or request the correction of, such
Confirmation.
(b) Party B will enter into each Transaction in its capacity as
trustee of the Trust.
(16) Authorised Person: Each party will be entitled to assume, in the
absence of any knowledge to the contrary, that any person signing any
Confirmation, notice or other written communication issued in respect
of this Agreement on behalf of a party is an Authorised Person of
that party.
(17) Recorded Conversations: Each party:
(a) consents to the electronic recording of its telephone
conversations with another party (or any of its associated
persons) with or without the use of an automatic tone
warning device;
20
(b) will provide transcripts of such recordings (if any) upon
reasonable request by another party (at the reasonable cost
of the party requesting);
(c) acknowledges that such recordings and transcripts can be
used as evidence by another party in any dispute between
them; and
(d) acknowledges that no party is obligated to maintain copies
of such recordings and transcripts for the benefit of
another party.
(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 Entity of that party which have the day to
day responsibility for the administration or management of that
party's (or a Related Entity of that party's) obligations in relation
to the Trust or the Transactions entered into under this Agreement
having actual knowledge, actual awareness or actual notice of that
thing, or grounds or reason to believe that thing (and similar
references will be interpreted in this way).
(19) Amendments to this Agreement: The Global Trust Manager must give 10
Business Days' notice in writing to each Current Rating Agency of
any amendments to this Agreement.
(20) Global Trust Manager's Undertaking: The Global Trust Manager, Party A
and Party B undertake to comply with their respective obligations
under the Supplemental Deed and the other Transaction Documents for
the Trust. For the avoidance of doubt, the parties acknowledge and
agree that the failure by Party B, the Global Trust Manager or Party
A to comply with this undertaking will not give rise to an Event of
Default under this Agreement.
(21) Appointment of Global Trust Manager: Party A acknowledges that, under
the Master Trust Deed, Party B has appointed the Global Trust Manager
as Global Trust Manager of the Trust, with the powers set out in, and
upon and subject to the terms of the Master Trust Deed.
Notwithstanding any other provision of this Agreement, the Global
Trust Manager is not liable:
(i) in connection with anything done by it in good faith and
without negligence in reliance upon any document, form or list
except where it is actually aware that the document, form or
list is not genuine; or
(ii) if it fails to do anything because it is prevented or hindered
from doing it by law or order; or
(iii) to anyone for payments made by it in good faith to a fiscal
authority in connection with Taxes (including Taxes assessed on
the income of the Trust) or other charges in respect of a Trust
even if the payment need not have been made; or
(iv) if a person fails to carry out an agreement with the Global
Trust Manager in connection with the Trust; or
21
(v) to anyone because of any error of law or any matter done or
omitted to be done by it in good faith in the event of the
liquidation or dissolution of a company (other than a company
under its control),
except to the extent that any of the foregoing is caused by the
Global Trust Manager's own gross negligence, fraud or wilful default.
Other than as expressly provided for in this Agreement, the Global
Trust Manager personally is not a "party" (as that term is used in
Section 2(a)(i) of the Master Agreement) under the Agreement for the
purposes of determining the obligations, representations and
undertakings of each "party" to it.
(22) Appointment of attorney by Party B. Party B hereby exclusively
appoints the Global Trust 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
Global Trust Manager may issue and receive on behalf of Party B all
notices, certificates and other communications to or by Party A,
under this Agreement until such time as Party B serves written notice
on Party A of the revocation of the Global Trust Manager's authority
to act on behalf of Party B in accordance with this Part 5(22) of the
Schedule.
(23) Deduction or withholding for tax. Section 2 of this Agreement is
amended as follows:
(i) In Section 2(d)(ii)(1) the following words are deleted where
they appear:
"in respect of which X would not be required to pay an
additional amount to Y under section 2(d)(i)(4)".
(ii) Section 2(d)(i)(4) is deleted in its entirety.
(24) Events of Default and Termination Events.
(i) The following provisions of Section 5 will not apply to either
Party A or Party B:
Section 5(a)(ii)
Section 5(a)(iii)
Section 5(a)(iv)
Section 5(a)(v)
Section 5(a)(vi)
Section 5(b)(iii)
Section 5(b)(iv)
(25) Transfer. A new paragraph (c) is added to Section 7 as follows:
"a party may make such a transfer under, or in accordance with,
this Agreement or the Master Security Trust Deed."
and replace the "." at the end of Section 7(b) with "; and".
(26) Rating downgrade
(i) [Insert ratings downgrade procedure in respect of each of the
applicable ratings agencies]
22
(27) Currency swap transaction. The parties acknowledge that, unless they
otherwise agree, the only Transactions which are to be governed by
this Master Agreement are:
(a) the currency swap which is confirmed by a Confirmation
substantially in the form of the Annexure ; and
(b) any Transaction entered into in accordance with Section 16 of
this Agreement or Section 16 of the "Other Agreement" (as
defined in Section 16 of this Agreement).
23
ANNEXURE
FORM OF CONFIRMATION FOR CURRENCY SWAP
- National RMBS Trust 200[ ]-[ ] ("Trust")
[Party A Letterhead]
[ ]
To: [name of Issuer Trustee] as Trustee of the [National Global MBS Manager Pty Ltd
National RMBS Trust 200[ ]-[ ] Xxxxx 00
[xxxxxxx of Issuer Trustee] 000 Xxxxxx Xxxxxx
Xxxxxxxxx XXX 0000]
Attention: [Manager, Group Funding]
SWAP CONFIRMATION - CURRENCY SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below
("Transaction"). This letter constitutes a "Confirmation" as referred to in
the Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented from
time to time ("Agreement"), between [name and ABN of Party A] ("Party A"),
[name of Support Provider] ("Support Provider"), [name and ABN of Issuer
Trustee] as trustee of the Trust ("Party B") and National Global MBS Manager
Pty Ltd (ABN 36 102 668 226) ("Global Trust Manager"). All provisions
contained in the Agreement govern this Confirmation except as expressly
modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Trade Date: [ ]
Effective Date: [ ]
Termination Date: Means the earlier of:
(a) the date that all the
[Class/Classes of US Notes]
have been redeemed in full;
(b) the Final Termination Date
for the Trust; and
(c) the Payment Date falling in
[month, year],
subject to the Following
Business Day Convention.
US$ Floating Amounts payable
by Party A:
US$ Floating Rate Payer: Party A
24
US$ Floating Rate Payer Currency On each US$ Floating Rate Payer
Amount: Payment Date, [50]% of the
aggregate Invested Amount
of the [Class/Classes of US
Notes] as at the first day of
the Interest Period ending on
but excluding the US$ Floating
Rate Payer Payment Date (after
taking into account any
reductions in the Invested
Amount of the [Class/Classes of
US Notes] on that day).
US$ Floating Rate Payer Payment [ ]
Dates:
Floating Rate Option: [ ]
Spread: For each payment made on an US$
Floating Rate Payer Payment Date
on or before the Payment Date
falling in (month, year): plus
[ ]% per annum
For each payment made on an US$
Floating Rate Payer Payment Date
after the Payment Date falling
in [month, year]: plus [ ]% per
annum, except where the
Noteholders of the
[Class/Classes of US Notes] do
not approve of the redemption of
the Notes at their Stated Amount
(instead of their Invested
Amount) in accordance with the
Transaction Documents, in which
case the spread is [ ]% per
annum.
Floating Rate Day Count Fraction: [ ]
Reset Dates: The first day of each Interest
Period.
A$ Floating Amounts payable by
Party B:
A$ Floating Rate Payer: Party B
A$ Floating Rate Payer Currency On each A$ Floating Rate Payer
Amount: Payment Date 50% of the A$
Equivalent of the aggregate
Invested Amount of the
[Class/Classes of US Notes] as
at the first day of the Interest
Period ending on but excluding
the A$ Floating Rate Payer
Payment Date (after taking into
account any reductions in the
Invested Amount of the
[Class/Classes of US Notes] on
that day).
A$ Floating Rate Payer Payment [ ]
Dates:
Floating Rate Option: [ ]
Spread: For each payment made on an A$
Floating Rate Payer Payment Date
before and including the Payment
Date in [month, year]; plus [ ]%
per annum
25
For each payment made on an A$
Floating Rate Payer Payment Date
after the Payment Date in
[month, year]: plus [ ]% per
annum, except where the
Noteholders of the
[Class/Classes of US Notes] do
not approve of the redemption of
the Notes at their Stated Amount
(instead of their Invested
Amount) in accordance with the
Transaction Documents, in which
case the spread is [ ]% per
annum.
Floating Rate Day Count Fraction: [ ]
Reset Dates: The first day of each Interest
Period.
Exchanges
Initial Exchange:
Initial Exchange Date: Effective Date
Party A Initial Exchange Amount: A$[ ], being the A$
Equivalent of the Party B Initial
Exchange Amount.
Party B Initial Exchange Amount: US$[ ], being [50]% of the
aggregate Initial Invested
Amount of the [Class/Classes of
US Notes] on the Issue Date.
Notwithstanding Section 2(a)(ii)
of the Agreement, Party A must
pay the Party A Initial Exchange
Amount to Party B by [4.00pm]
(Melbourne time) on the Initial
Exchange Date and Party B must
pay Party A the Party B Initial
Exchange Amount by [4.00pm] (New
York time) on the Initial
Exchange Date.
Instalment Exchange:
Instalment Exchange Date: Each Payment Date (other than the
Final Exchange Date)
Party A Instalment Exchange In respect of an Instalment
Amount: Exchange Date means the US$
Equivalent of the Party B
Instalment Exchange Amount in
relation to that Instalment
Exchange Date.
Party B Instalment Exchange In respect of an Instalment
Amount: Exchange Date means [50]% of the
A$ [Class/Classes of US Notes]
Principal in relation to that
Instalment Exchange Date.
Final Exchange:
Final Exchange Date: Termination Date (as defined in
this Confirmation).
Party A Final Exchange Amount: [50]% of the aggregate of the
Stated Amount of the
[Class/Classes of US Notes] on
the Final Exchange Date (as
specified in a notice issued by
Party B or the Global Trust
Manager to Party A which shall
be prima facie
26
evidence of the amount).
Party B Final Exchange Amount: The A$ Equivalent of [50]% of the
aggregate of the Stated Amount of
the [Class/Classes of US Notes]
on the Final Exchange Date (as
specified in a notice issued by
Party B or the Global Trust
Manager to Party A which shall
be prima facie evidence amount).
Exchange Rates:
For the purpose of the definitions of
"A$ Equivalent" and "US$
Equivalent":
A$ Exchange Rate: A$1 = US$[ ]
US$ Equivalent means, in relation to an amount
which is calculated, determined
or expressed in A$ or which
includes a component determined
or expressed in A$, that A$
amount or A$ component (as the
case may be) multiplied by the
A$ Exchange Rate and expressed
in US$
Business Day: New York, Melbourne and Sydney
Business Day Convention: Following
Calculation Agent: Party A
Account Details Instruction:
Account for payments to Party A: As advised
Account for payments to Party B: As advised
Support Provider Provisions
This Transaction shall be capable of being specified as a Replaced Transaction
in accordance with Section 16 of the Agreement. Those provisions shall apply
as further specified below.
"Specified Indebtedness" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect of
money borrowed or raised or under any finance lease, redeemable preference
share, letter of credit, futures contract, guarantee, indemnity or a
transaction of a type described in the last 6 lines of the definition of
Specified Transaction.
"Threshold Amount" means US$[ ].
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning it to us by facsimile today.
Yours sincerely
SIGNED for and on behalf of [NAME AND SIGNED for and on behalf of [NAME AND
ABN OF ISSUER TRUSTEE] as trustee of
27
the National RMBS Trust 200[ ]-[ ] ABN OF PARTY A]
By: ________________________________ By: _______________________________
(Authorised Person) (Authorised Person)
Name: ______________________________ Name: _____________________________
Title: ____________________________ Title: ____________________________
SIGNED for and on behalf of NATIONAL GLOBAL MBS SIGNED for and on behalf of [NAME OF SUPPORT
MANAGER PTY LTD (ABN 36 102 668 226) PROVIDER]
By: _______________________________ By: _______________________________
(Authorised Person) (Authorised Person)
Name: ______________________________ Name: ______________________________
Title: _____________________________ Title: _____________________________
28
EXECUTION PAGES FOR ISDA MASTER AGREEMENT AND SCHEDULE
SIGNED by [..............................] )
as attorney for [NAME OF PARTY A] under power of )
attorney dated )
)
in the presence of: )
)
................................................ )
Signature of witness )
)
................................................ )
Name of witness (block letters) )
)
................................................ )
Address of witness ) .......................................................
) By executing this agreement the attorney states
................................................ ) that the attorney has received no notice of
Occupation of witness ) revocation of the power of attorney
)
SIGNED by [..............................] )
as attorney for [NAME OF ISSUER TRUSTEE] under )
power of attorney dated )
[........................................] )
)
in the presence of: )
)
................................................ )
Signature of witness )
)
................................................ )
Name of witness (block letters) )
)
................................................ )
Address of witness ) .........................................................
) By executing this agreement the attorney states
................................................ ) that the attorney has received no notice of
Occupation of witness ) revocation of the power of attorney
29
SIGNED by [............................... ] on )
behalf of NATIONAL GLOBAL MBS MANAGER PTY LTD in )
the presence of: )
)
................................................ )
Signature of witness )
)
................................................ )
Name of witness (block letters) )
)
................................................ )
Address of witness )
) .....................................................
................................................ ) By executing this agreement the signatory
Occupation of witness ) states that the signatory has received no
) notice of revocation of the authorisation under
) which this Agreement is executed.
)
SIGNED by [............................... ] on )
behalf for [NAME OF SUPPORT PROVIDER] in the )
presence of: )
)
................................................ )
Signature of witness )
) .......... ..............
................................................ )
Name of witness (block letters) )
)
................................................ )
Address of witness )
) .....................................................
................................................ ) By executing this agreement each signatory
Occupation of witness ) states that the signatory has received no
) notice of revocation of the authorisation
) under which this Agreement is executed.
)
[NAME OF PARTY A]
[ ]
To: [name of Issuer Trustee] as Trustee of the [National Global MBS Manager Pty Ltd
National RMBS Securities Trust 200[ ]-[ ] Xxxxx 00
[xxxxxxx of the Issuer Trustee] 000 Xxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Xxxxxxxxx]
Attention: [ ] Attention: [Manager, Group Funding]
SWAP CONFIRMATION - CURRENCY SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below
("Transaction"). This letter constitutes a "Confirmation" as referred to in
the Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented from
time to time ("Agreement"), between [name and ABN of Party A] ("Party A"),
[name of Support Provider] ("Support Provider"), [name and ABN of Issuer
Trustee] as trustee of the Trust ("Party B") and National Global MBS Manager
Pty Ltd (ABN 36 102 668 226) ("Global Trust Manager"). All provisions contained
in the Agreement govern this Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Trade Date: [ ]
Effective Date: [ ]
Termination Date: Means the earlier of:
(a) the date that all the
[Class/Classes of US Notes]
have been redeemed in full;
(b) the Final Termination Date
for the Trust; and
(c) the Payment Date falling in
[month, year],
subject to the Following
Business Day Convention.
US$ Floating Amounts payable
by Party A:
US$ Floating Rate Payer: Party A
US$ Floating Rate Payer Currency On each US$ Floating Rate Payer
Amount: Payment Date, [50]% of the
aggregate Invested Amount of the
Class A Notes [Class/Classes of
US Notes] as at the first day of
the Interest Period ending on
but excluding the US$ Floating
Rate Payer Payment Date (after
taking into account any
-2-
reductions in the Invested
Amount of the Class A Notes on
that day).
US$ Floating Rate Payer Payment [ ]
Dates:
Floating Rate Option: [ ]
Spread: For each payment made on an US$
Floating Rate Payer Payment Date
on or before the Payment Date
falling in [month, year]: plus
[ ]% per annum
For each payment made on an US$
Floating Rate Payer Payment Date
after the Payment Date falling
in [month, year]: plus [ ]% per
annum, except where the
Noteholders of the
[Class/Classes of US Notes] do
not approve of the redemption of
the Notes at their Stated Amount
(instead of their Invested
Amount) in accordance with the
Transaction Documents, in which
case the spread is [ ]% per
annum.
Floating Rate Day Count Fraction: [ ]
Reset Dates: The first day of each Interest
Period.
A$ Floating Amounts payable by
Party B:
A$ Floating Rate Payer: Party B
A$ Floating Rate Payer Currency On each A$ Floating Rate Payer
Amount: Payment Date [50]% of the A$
Equivalent of the aggregate
Invested Amount of the
[Class/Classes of US Notes] as
at the first day of the Interest
Period ending on but excluding
the A$ Floating Rate Payer
Payment Date (after taking into
account any reductions in the
Invested Amount of the
[Class/Classes of US Notes] on
that day).
A$ Floating Rate Payer Payment [ ]
Dates:
Floating Rate Option: [ ]
Spread: For each payment made on
an A$ Floating Rate Payer
Payment Date before and
including the Payment Date in
[month, year]: plus [ ]% per
annum
For each payment made on an A$
Floating Rate Payer Payment Date
after the Payment Date in
[month, year]: plus [ ]% per
annum, except where the
Noteholders of the
[Class/Classes of US Notes] do
not approve of the redemption of
the Notes at their Stated Amount
(instead
-3-
of their Invested Amount) in
accordance with the Transaction
Documents, in which case the
spread is [ ]% per annum.
Floating Rate Day Count Fraction: [ ]
Reset Dates: The first day of each Interest
Period.
Exchanges
Initial Exchange:
Initial Exchange Date: Effective Date
Party A Initial Exchange Amount: A$[ ], being the A$ Equivalent
of the Party B Initial Exchange
Amount.
Party B Initial Exchange US$[ ], being [50]% of the
Amount: aggregate Initial Invested
Amount of the Class A Notes on
the Issue Date.
Notwithstanding Section 2(a)(ii)
of the Agreement, Party A must
pay the Party A Initial Exchange
Amount to Party B by [4.00pm]
(Melbourne time) on the Initial
Exchange Date and Party B must
pay Party A the Party B Initial
Exchange Amount by [4.00pm] (New
York time) on the Initial
Exchange Date.
Instalment Exchange:
Instalment Exchange Date: [ ]
Party A Instalment Exchange In respect of an Instalment
Amount: Exchange Date means the US$
Equivalent of the Party B
Instalment Exchange Amount in
relation to that Instalment
Exchange Date.
Party B Instalment Exchange In respect of an Instalment
Amount: Exchange Date means [50]% of the
A$ [Class/Classes of US Note]
Principal in relation to that
Instalment Exchange Date.
Final Exchange:
Final Exchange Date: Termination Date (as defined in
this Confirmation).
Party A Final Exchange Amount: [50]% of the aggregate Stated
Amount of the [Class/Classes of
US Notes] on the Final Exchange
Date (as specified in a notice
issued by Party B or the Global
Trust Manager to Party A which
shall be prima facie evidence of
the amount).
Party B Final Exchange Amount: The A$ Equivalent of [50]% of
the aggregate of the Stated
Amount of the [Class/Classes of
US Notes] on the Final Exchange
Date (as specified in a notice
issued by Party B or the Global
Trust Manager to Party A which
shall be
-4-
prima facie evidence of the
amount).
Exchange Rates:
For the purpose of the definitions of
"A$ Equivalent" and "US$
Equivalent":
A$ Exchange Rate: A$1 = US$[ ]
US$ Equivalent means, in relation to an amount
which is calculated, determined
or expressed in A$ or which
includes a component determined
or expressed in A$, that A$
amount or A$ component (as the
case may be) multiplied by the
A$ Exchange Rate and expressed
in US$
Business Day: New York, Melbourne and Sydney
Business Day Convention: Following
Calculation Agent: Party A
Account Details Instruction:
Account for payments to Party A: As advised
Account for payments to Party B: As advised
Support Provider Provisions
This Transaction shall be capable of being specified as a Replaced Transaction
in accordance with Section 16 of the Agreement. Those provisions shall apply
as further specified below.
"Specified Indebtedness" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect of
money borrowed or raised or under any finance lease, redeemable preference
share, letter of credit, futures contract, guarantee, indemnity or a
transaction of a type described in the last 6 lines of the definition of
Specified Transaction.
"Threshold Amount" means US$[ ].
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning it to us by facsimile today.
-5-
Yours sincerely
SIGNED for and on behalf of [NAME AND
ABN OF ISSUER TRUSTEE] as trustee of SIGNED for and on behalf of [NAME
the National RMBS Trust 200[ ]-[ ] AND ABN OF PARTY A]
By: _______ ___________ By: ______ _____________
(Authorised Person) (Authorised Person)
Name: __________________ Name: __________________
Title:__________________ Title: ___________________
SIGNED for and on behalf of NATIONAL GLOBAL MBS SIGNED for and on behalf of [NAME OF SUPPORT
MANAGER PTY LTD PROVIDER]
By: ______ ______ By: ______ _________
(Authorised Person) (Authorised Person)
Name: ______________ Name: ______________
Title: __________________ Title: _____________________________
By: ______ ______________
(Authorised Person)
Name: _______________________
Title: ____________
[NAME OF PARTY A]
[ ]
To: [name of Issuer Trustee] as trustee of the [National Global MBS Manager Pty Ltd
National RMBS Trust 200[ ]-[ ] Xxxxx 00
[xxxxxxx of Issuer Trustee] 000 Xxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Xxxxxxxxx]
Attention: [ ] Attention: [Manager, Group Funding]
SWAP CONFIRMATION - CURRENCY SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below
("Transaction"). This letter constitutes a "Confirmation" as referred to in
the Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented from
time to time ("Agreement"), between [name of Party A] ("Party A"), [name and
ABN of Support Provider] ("Support Provider"), [name and ABN of Support
Provider] as trustee of the Trust ("Party B") and National Global MBS Manager
Pty Ltd (ABN 36 102 668 226) ("Global Trust Manager"). All provisions contained
in the Agreement govern this Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Trade Date: [ ]
Effective Date: [ ]
Termination Date: Means the earlier of:
(a) the date that all the
[Class/Classes of US Notes]
have been redeemed in full;
(b) the Final Termination Date
for the Trust; and
(c) the Payment Date falling in
[month, year],
subject to the Following
Business Day Convention.
US$ Floating Amounts payable
by Party A:
US$ Floating Rate Payer: Party A
US$ Floating Rate Payer Currency On each US$ Floating Rate Payer
Amount: Payment Date, [50]% of the
aggregate Invested Amount of the
Class A Notes as at the first
day of the Interest Period
ending on but excluding the US$
Floating Rate Payer Payment Date
(after taking into account any
reductions in the Invested
-2-
Amount of the [Class/Classes of
US Notes] on that day).
US$ Floating Rate Payer Payment [ ]
Dates:
Floating Rate Option: [ ]
Spread: For each payment made on a US$
Floating Rate Payer Payment Date
on or before the Payment Date
falling in [month, year]: plus [
]% per annum
For each payment made on a US$
Floating Rate Payer Payment Date
after the Payment Date falling
in [month, year]: plus [ ]% per
annum, except where the
Noteholders of the
[Class/Classes of US Notes] do
not approve of the redemption of
the Notes at their Stated Amount
(instead of their Invested
Amount) in accordance with the
Transaction Documents, in which
case the spread is [ ]% per
annum.
Floating Rate Day Count Fraction: [ ]
Reset Dates: The first day of each Interest
Period.
A$ Floating Amounts payable by
Party B:
A$ Floating Rate Payer: Party B
A$ Floating Rate Payer Currency On each A$ Floating Rate Payer
Amount: Payment Date [50]% of the A$
Equivalent of the aggregate
Invested Amount of the
[Class/Classes of US Notes] as
at the first day of the Interest
Period ending on but excluding
the A$ Floating Rate Payer
Payment Date (after taking into
account any reductions in the
Invested Amount of the
[Class/Classes of US Notes] on
that day).
A$ Floating Rate Payer Payment [ ]
Dates:
Floating Rate Option: [ ]
Spread: For each payment made on an A$
Floating Rate Payer Payment Date
before and including the Payment
Date in [month, year]: plus [ ]%
per annum
For each payment made on an A$
Floating Rate Payer Payment Date
after the Payment Date in
[month, year]: plus [ ]% per
annum, except where the
Noteholders of the
[Class/Classes of US Notes] do
not approve of the redemption of
the Notes at their Stated Amount
(instead of their Invested
Amount) in accordance with the
-3-
Transaction Documents, in which
case the spread is [ ]% per
annum.
Floating Rate Day Count Fraction: [ ]
Reset Dates: The first day of each Interest
Period.
Exchanges
Initial Exchange:
Initial Exchange Date: Effective Date
Party A Initial Exchange Amount : A$[ ], being the A$
Equivalent of the Party B
Initial Exchange Amount.
Party B Initial Exchange Amount: US$[ ], being [50]% of the
aggregate Initial Invested
Amount of the [Class/Classes of
US Notes] on the Issue Date.
Notwithstanding Section 2(a)(ii)
of the Agreement, Party A must
pay the Party A Initial Exchange
Amount to Party B by [4.00pm]
(Melbourne time) on the Initial
Exchange Date and Party B must
pay Party A the Party B Initial
Exchange Amount by [4.00pm] (New
York time) on the Initial
Exchange Date.
Instalment Exchange:
Instalment Exchange Date: [ ]
Party A Instalment Exchange In respect of an Instalment
Amount: Exchange Date means the US$
Equivalent of the Party B
Instalment Exchange Amount in
relation to that Instalment
Exchange Date.
Party B Instalment Exchange In respect of an Instalment
Amount: Exchange Date means [50]% of the
A$ [Class/Classes of US Note]
Principal in relation to that
Instalment Exchange Date.
Final Exchange:
Final Exchange Date: Termination Date (as defined in
this Confirmation).
Party A Final Exchange Amount: [50]% of the aggregate Stated
Amount of the [Class/Classes of
US Notes] on the Final Exchange
Date (as specified in a notice
issued by Party B or the Global
Trust Manager to Party A which
shall be prima facie evidence of
the amount).
Party B Final Exchange Amount: The A$ Equivalent of [50]% of
the aggregate of the Stated
Amount of the [Class/Classes of
US Notes] on the Final Exchange
Date (as specified in a notice
issued by Party B or the Global
Trust Manager to Party A which
shall be
-4-
prima facie evidence of the
amount).
Exchange Rates:
For the purpose of the definitions of
"A$ Equivalent" and "US$
Equivalent":
A$ Exchange Rate: A$1 = US$[ ]
US$ Equivalent means, in relation to an amount
which is calculated, determined
or expressed in A$ or which
includes a component determined
or expressed in A$, that A$
amount or A$ component (as the
case may be) multiplied by the
A$ Exchange Rate and expressed
in US$
Business Day: New York, Melbourne and Sydney
Business Day Convention: Following
Calculation Agent: Party A
Account Details Instruction:
Account for payments to Party A: Name: [ ]
Bank: [ ]
Account No: [ ]
Comments: [ ]
Account for payments to Party B: As advised
Support Provider Provisions
This Transaction shall be capable of being specified as a Replaced Transaction
in accordance with Section 16 of the Agreement. Those provisions shall apply
as further specified below.
"Specified Indebtedness" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect of
money borrowed or raised or under any finance lease, redeemable preference
share, letter of credit, futures contract, guarantee, indemnity or a
transaction of a type described in the last 6 lines of the definition of
Specified Transaction.
"Threshold Amount" means US$[ ].
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning it to us by facsimile today.
-5-
Yours sincerely
SIGNED for and on behalf of [NAME AND SIGNED for and on behalf of [NAME OF
ABN OF ISSUER TRUSTEE] as trustee of PARTY A]
the National RMBS Trust 200[ ]-[ ]
By: __________________ By: _______________
(Authorised Person) (Authorised Person)
Name: _________________ Name: ______________
Title: ________________ Title: _____________________________
By: _____ _______________
(Authorised Person)
Name: _______________________
Title: _________________
SIGNED for and on behalf of NATIONAL SIGNED for and on behalf of [NAME AND
GLOBAL MBS MANAGER PTY LTD ABN OF SUPPORT PROVIDER]
By: _______ __________ By: ________________________
(Authorised Person) (Authorised Person)
Name: ______________ Name: ___________________
Title: __________________ Title: ___________________
