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Medallion Trust Series [ ]
ISDA Master Agreement
(Currency Swap Agreement)
[ ]
ABN [ ]
Perpetual Trustee Company Limited
ABN 42 000 001 007
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
If you have any questions about the details of this document
PLEASE CONTACT [ ] ON + 61 2 9353 4000
Xxxxxxx Xxx
Lawyers
Levels 22-35 No. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
XX Xxx X0 Xxxxxxxxx Xxxxxx Xxxxxx XXX 0000
T + 61 2 9353 4000 F + 61 2 8220 6700
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Our reference [ ]
SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF [ ] BETWEEN
SECURITISATION ADVISORY SERVICES PTY. LIMITED
ABN 88 064 133 946
("MANAGER")
AND
[ ]
[ ]
("PARTY A")
AND
PERPETUAL TRUSTEE COMPANY LIMITED
ABN 42 000 001 007
IN ITS SEVERAL CAPACITIES AS TRUSTEE OF VARIOUS SERIES TRUSTS FROM TIME TO TIME
ESTABLISHED UNDER THE MASTER TRUST DEED AND VARIOUS SERIES SUPPLEMENTS
("PARTY B")
PART 1. TERMINATION PROVISIONS.
In this Agreement:
(a) "SPECIFIED ENTITY" does not apply in relation to Party A or Party B.
(b) The definition of "SPECIFIED TRANSACTION" is not applicable.
(c) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(b)(iv)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(b)(iv)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(a)(viii)
(iii) Section 5(b)(ii) will not apply to Party A as the Affected Party
(subject to Part 5(6)(b) of this Schedule) and Section 5(b)(iii) will
not apply to Party A as the Burdened Party.
(d) The "AUTOMATIC EARLY TERMINATION" provisions in Section 6(a) will not apply
to Party A or Party B.
(e) PAYMENTS ON EARLY TERMINATION. For the purposes of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(f) "TERMINATION CURRENCY" means US$ provided that if an amount due in respect
of an Early Termination Date will be payable by Party B to Party A the
Termination Currency for the purpose of calculating and paying that amount
is Australian Dollars.
(g) "ADDITIONAL TERMINATION EVENT" applies. The following is an Additional
Termination Event in relation to which both Party A and Party B are
Affected Parties:
"An Event of Default (as defined in the Security Trust Deed) occurs and the
Security Trustee has declared, in accordance with the Security Trust Deed,
the Relevant Notes immediately due and payable."
For the purposes of calculating a payment due under Sections 6(d) and (e)
when an Early Termination Date is designated under Section 6(b) as a result
of such Additional Termination Event, Party B will be the only Affected
Party.
PART 2. TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant government revenue authority, of any Relevant Jurisdiction to
make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to any other party under this Agreement. In
making this representation, it may rely on:
(i) the accuracy of any representation made by that other party pursuant
to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of any
document provided by that other party pursuant to Section 4(a)(i) or
4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of that other party contained in
Section 4(d) of this Agreement,
PROVIDED THAT it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice to
its legal or commercial position.
(b) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement, Party A and Party B each makes the following representation:
It is an Australian resident and does not derive payments under this
Agreement in part or whole in carrying on a business in a country outside
Australia of or through a permanent establishment of itself in that
country.
PART 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver to each other party the following documents, as applicable:
(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) learning that
required or reasonably requested by a such document or certificate is
party in connection with its obligations required and (b) as soon as
to make a payment under this Agreement reasonably practicable following a
which would enable that party to make the request by a party.
payment free from any deduction or
withholding for or on account of Tax or
which would reduce the rate at which
deduction or withholding for or on account
of Tax is applied to that payment
(including, without limitation, any United
States form W-8BEN or other relevant
United States tax form).
(b) OTHER DOCUMENTS TO BE DELIVERED ARE:
PARTY REQUIRED TO DELIVER FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
DOCUMENT
Party A, Party B and the A certificate specifying the names, On the execution of this Agreement
Manager title and specimen signatures of and each Confirmation unless that
the persons authorised to execute certificate has already been
this Agreement and each supplied and remains true and in
Confirmation or other communication effect and when the certificate is
in writing made pursuant to this updated.
Agreement on its behalf.
Party A, Party B and the Manager A legal opinion as to the validity and Prior to the Closing Date.
enforceability of its obligations under
this Agreement in form and substance (and
issued by legal counsel) reasonably
acceptable to each other party.
Party B A certified copy to Party A of each Credit Not less than 5 Business Days (or
Support Document specified in respect of such lesser period as Party A agrees
Party B and (without limiting any to) before the Trade Date of the
obligation Party B may have under the first occurring Transaction and in
terms of that Credit Support Document to the case of any amending documents
notify Party A of amendments thereto) a entered into subsequent to that
certified copy to Party A of any document date, promptly after each amending
that amends in any way the terms of that document (if any) has been entered
Credit Support Document. into.
Other than the legal opinions, any Credit Support Document or any document
amending a Credit Support Document (but including any certifications in relation
to such documents), all documents delivered under
this Part 3(b) are covered by the Section 3(d) representation. For the purposes
of this Part 3(b), a copy of a document is taken to be certified if a director
or secretary of the party providing the document, or a person authorised to
execute this Agreement or a Confirmation on behalf of that party or a solicitor
acting for that party (or in the case of the Credit Support Document in respect
of Party B, a solicitor acting for the Manager) has certified it to be a true
and complete copy of the document of which it purports to be a copy.
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this Agreement:
Address for notices or communications to [ ] as PARTY A:
Address: [ ]
Attention: [ ]
Facsimile No.: [ ]
Address for notices or communications to PARTY B:
Address: Perpetual Trustee Company Limited
[ ]
Attention: Manager, Securitisation Services
Facsimile No.: 612 9221 7870
Additionally, a copy of all notices as well as any changes to
counterparty's address, telephone number or facsimile number should
be sent to:
Address: Securitisation Advisory Services Pty. Limited
Xxxxx 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: [ ].
Party B appoints as its Process Agent: Not applicable.
(c) OFFICES. The provisions of Section 10(a) will not apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT.
(i) The Calculation Agent is:
(A) in respect of all notices, determinations and calculations in
respect of amounts denominated in US$, the Agent Bank; and
(B) in respect of all other notices, determinations and
calculations, the Manager.
(ii) All determinations and calculations by the Calculation Agent will:
(A) be made in good faith and in the exercise of its commercial
reasonable judgment; and
(B) be determined, where applicable, on the basis of then prevailing
market rates or prices.
All such determinations and calculations will be binding on Party A and
Party B in the absence of manifest error. The Manager (or, if the Manager
fails to do so and Party A notifies Party B, Party B) covenants in favour
of Party A to use reasonable endeavours (including, without limitation,
taking such action as is reasonably necessary to promptly enforce the
obligations of the Agent Bank under the Agency Agreement) to ensure that
the Agent Bank performs its obligations as Calculation Agent under this
Agreement.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
(i) In relation to Party A: Not applicable.
(ii) In relation to Party B: The Security Trust Deed.
(g) CREDIT SUPPORT PROVIDER.
(i) In relation to Party A: None.
(ii) In relation to Party B: None.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws in force in the State of New South Wales, except
the Credit Support Annex, which will be governed by and construed in
accordance with the laws in force in the State of New York as provided in
Paragraph 13(m)(iv) of the Credit Support Annex. Section 13(b)(i) is
deleted and replaced by the following:
"(i) submits to the non-exclusive jurisdiction of the courts of the
State of New South Wales and courts of appeal from them; and".
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this Agreement
will apply in respect of all Transactions.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. However, for the purposes of Section 3(c) Party A and Party B
are deemed not to have any Affiliates.
PART 5. OTHER PROVISIONS
(1) PAYMENTS: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party (if any).".
(b) In Section 2(a)(ii) the first sentence is deleted and replaced with
the following sentence:
"Unless specified otherwise in this Agreement, payments under this
Agreement by:
(i) Party A, will be made by 10.00 am (New York time); and
(ii) Party B, will be made by 4.00pm (Sydney time),
on the due date for value on that date in the place of the account
specified in the relevant Confirmation or otherwise pursuant to this
Agreement, in freely transferable funds, free of any set-off,
counterclaim, deduction or withholding (except as expressly provided
in this Agreement) and in the manner customary for payment in the
required currency.".
(c) Insert a new paragraph (iv) in Section 2(a) immediately after Section
2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply
to a payment due to be made to a party if it has satisfied all
its payment obligations under Section 2(a)(i) of this Agreement
and has no future payment obligations, whether absolute or
contingent under Section 2(a)(i).".
(d) Insert a new paragraph (v) in Section 2(a) immediately after Section
2(a)(iv) as follows:
"(v) Where payments are due pursuant to Section 2(a)(i) by Party A to
Party B (the "PARTY A PAYMENT") and by Party B to Party A (the
"PARTY B PAYMENT") on the same day, then Party A's obligation to
make the Party A Payment will be subject to the condition
precedent (which will be an "applicable condition precedent" for
the purpose of Section 2(a)(iii)(3)) that Party A first receives
either:
(1) the Party B Payment; or
(2) confirmation from Party B's bank that it holds irrevocable
instructions to effect payment of the Party B Payment and
that funds are available to make payment.".
(e) Add the following new sentence to Section 2(b):
"Each new account so designated shall be in the same tax jurisdiction
as the original account.".
(f) Delete Section 2(d)(i)(4) in its entirety.
(g) In Section 2(d)(ii)(1) delete the following words where they appear:
"in respect of which X would not be required to pay an additional
amount to Y under Section 2(d)(i)(4)".
(2) PARTY B'S PAYMENT INSTRUCTIONS: Party B irrevocably authorises and
instructs Party A to make payment of:
(i) the Initial Exchange Amount due from Party A to Party B in respect of
the Initial Exchange Date by paying that amount direct to the account
notified in writing by Party B to Party A for that purpose; and
(ii) any other amount due from Party A to Party B under this Agreement by
paying that amount direct to the Principal Paying Agent to the
account outside Australia notified in writing by the Principal Paying
Agent to Party A for that purpose.
(3) PARTY A'S PAYMENT INSTRUCTIONS: Party A irrevocably authorises and
instructs Party B to make payment of:
(i) any amount denominated in A$ due from Party B to the account in
Sydney notified in writing by Party A to Party B from time to time;
and
(ii) any amount denominated in US$ due from Party B to the account
notified in writing by Party A to Party B from time to time.
(4) REPRESENTATIONS: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the words
"creditors' rights generally" the following:
"(including in the case of a party being an ADI (as that term is
defined in the Banking Act, 1959 (Cth)), section 86 of the Reserve
Bank Act, 1959 (Cth) and section 13A(3) of the Banking Act, 1959
(Cth) or any other analogous provision under any law applicable to a
party).".
(b) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to represent
to the other parties on the date on which it enters into a
Transaction that (absent a written agreement between the parties that
expressly imposes affirmative obligations to the contrary for that
Transaction):
(i) NON-RELIANCE. It is acting for its own account (in the case of
Party B, as trustee of the Series Trust), and it has made its
own independent decisions to enter into that Transaction and as
to whether that Transaction is appropriate or proper for it
based upon its own judgment (and in the case of Party B, also
on the judgment of the Manager) and upon advice from such
advisers as it has deemed necessary. It is not relying on any
communication (written or oral) of any other party as
investment advice or as a recommendation to enter into that
Transaction; it being understood that information and
explanations related to the terms and conditions of a
Transaction will not be considered investment advice or a
recommendation to enter into that Transaction. No communication
(written or oral) received from any other party will be deemed
to be an assurance or guarantee as to the expected results of
that Transaction.
(ii) EVALUATION AND UNDERSTANDING. It is capable of evaluating and
understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable of
assuming, and assumes, the risks of that Transaction.
(iii) STATUS OF PARTIES. No other party is acting as a fiduciary or
an adviser to it in respect of that Transaction.
(c) Insert the following new paragraphs (g), (h) and (i) in Section 3
immediately after Section 3(f):
"(g) SERIES TRUST. By Party B, in respect of Party B only:
(i) TRUST VALIDLY CREATED. The Series Trust has been validly
created and is in existence at the Trade Date of the
first occurring Transaction.
(ii) SOLE TRUSTEE. It has been validly appointed as trustee of
the Series Trust and is presently the sole trustee of the
Series Trust.
(iii) NO PROCEEDINGS TO REMOVE. No notice has been given to it
and to its knowledge no resolution has been passed, or
direction or notice has been given, removing it as
trustee of the Series Trust.
(iv) POWER. It has power under the Master Trust Deed to:
(A) enter into and perform its obligations under this
Agreement and each Credit Support Document in
relation to Party B in its capacity as trustee of
the Series Trust; and
(B) mortgage or charge the Assets of the Series Trust in
the manner provided in the Credit Support Document
in relation to Party B,
and its entry into this Agreement and each Credit Support
Document in relation to Party B is in the interests of
the beneficiaries of the Series Trust and does not
constitute a breach of trust.
(v) GOOD TITLE. It is the lawful owner of the Assets of the
Series Trust and, subject only to the Credit Support
Document in relation to Party B and any Security Interest
permitted under the Credit Support Document in relation
to Party B, those Assets are free of all other Security
Interests (except for Party B's right of indemnity out of
the Assets of the Series Trust).
(vi) ELIGIBLE CONTRACT PARTICIPANT. The Series Trust was not
formed for the specific purpose of constituting an
"eligible contract participant" under the Commodity
Exchange Act.
(vii) TOTAL ASSETS. As at close of business on the Trade Date
of the first occurring Transaction, following the issue
of the Relevant Notes and provided that the aggregate
Invested Amount of the Relevant Notes upon issue exceeds
USD10,000,000, the Series Trust will have total assets
exceeding USD10,000,000.
(h) NON-ASSIGNMENT. It has not assigned (whether absolutely, in
equity, by way of security or otherwise), declared any trust
over or given any charge over any of its rights under this
Agreement or any Transaction except, in the case of Party B,
for the Security Interests created under each Credit Support
Document in relation to Party B.
(i) CONTRACTING AS PRINCIPAL. Each existing Transaction has been
entered into by that party as principal and not otherwise.".
(5) EVENT OF DEFAULT: In Section 5(a):
(a) FAILURE TO PAY OR DELIVER: delete paragraph (i) and replace it with
the following:
"(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when
due, any payment under this Agreement or delivery under Section
2(a)(i) or 2(e) required to be made by it if such failure is
not remedied at or before:
(1) where the failure is by Party B, 10.00am on the tenth day
after notice of such failure is given to Party B; and
(2) where the failure is by Party A, 10.00am on the tenth day
after notice of such failure is given to Party A;";
(b) CONSEQUENTIAL AMENDMENTS:
(i) delete "or" at the end of Section 5(a)(vii); and
(ii) replace the full stop at the end of Section 5(a)(viii) with ";
or"; and
(c) DOWNGRADE OBLIGATIONS: insert the following new paragraph (ix):
"(ix) DOWNGRADE OBLIGATIONS. In respect of Party A only, Party A
fails to comply with Part 5(22) of the Schedule if such failure
is not remedied on or before the tenth Business Day (or such
later day as Party B and the Manager may agree and which the
Rating Agencies confirm in writing will not result in a
reduction, qualification or withdrawal of the credit ratings
then assigned by them to the Relevant Notes) after notice of
such failure is given to Party A.".
(6) TERMINATION EVENTS:
(a) ILLEGALITY: In respect of each Transaction, the parties agree that
the imposition by any Governmental Agency of an Australian
jurisdiction of any exchange controls, restrictions or prohibitions
which would otherwise constitute an Illegality for the purposes of
Sections 5(b)(i) or 5(c) will not be an event which constitutes an
Illegality for the purposes of those Sections so that, following the
occurrence of that event:
(i) neither Party A nor Party B will be entitled to designate an
Early Termination Date in respect of that Transaction as a
result of that event occurring;
(ii) payment by Party B in accordance with Part 5(3) of this
Schedule will continue to constitute proper performance of its
payment obligations in respect of that Transaction; and
(iii) Party A's obligations in respect of that Transaction or this
Agreement will, to the extent permitted by law, be unaffected
by the occurrence of that event.
(b) PARTY A'S LIMITED RIGHTS IN RELATION TO TAX EVENT:
(i) Notwithstanding Part 1(c)(iii) of this Schedule, but subject to
Section 6(b)(ii), Party A may designate an Early Termination
Date if it is an Affected Party following a Tax Event but only
if the Relevant Note Trustee has notified the parties in
writing that it is satisfied that all amounts owing to the
Relevant Noteholders will be paid in full on the date on which
the Relevant Notes are to be redeemed.
(ii) If a Tax Event occurs where Party A is the Affected Party and
Party A is unable to transfer all its rights and obligations
under this Agreement and
each Transaction to an Affiliate pursuant to Section 6(b)(ii),
Party A may, at its cost, transfer all its rights, powers and
privileges and all its unperformed and future obligations under
this Agreement and each Transaction to any person provided
that:
(A) each Rating Agency has confirmed in writing that the
transfer will not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them to
the Relevant Notes; and
(B) that person has a long term credit rating assigned by
each Rating Agency of at least the long term credit
rating assigned by that Rating Agency to Party A, as at
the date of this Agreement.
(7) TERMINATION:
(a) TERMINATION BY TRUSTEE: Party B must not designate an Early
Termination Date without the prior written consent of the Relevant
Note Trustee.
(b) TERMINATION BY THE RELEVANT NOTE TRUSTEE: If following an Event of
Default or Termination Event, Party B does not exercise its right to
terminate a Transaction, then the Relevant Note Trustee may designate
an Early Termination Date in relation to that Transaction as if it
were a party to this Agreement.
(c) TERMINATION PAYMENTS BY PARTY B: Notwithstanding Section 6(d)(ii),
any amount calculated as being due by Party B in respect of any Early
Termination Date under Section 6(e) will be payable on the
Distribution Date immediately following the date that such amount
would otherwise be payable under Section 6(d)(ii) (or will be payable
on that date if that date is a Distribution Date) except to the
extent that such amount may be satisfied from an earlier distribution
under the Security Trust Deed or the payment of an upfront premium in
respect of a Replacement Currency Swap in accordance with Part
5(17)(b) of this Schedule.
(d) TRANSFERS TO AVOID TERMINATION: Section 6(b)(ii) is amended as
follows:
(i) The following sentence is added at the end of the second
paragraph:
"However, if Party A is that other party it must, if so
requested by the Manager, use reasonable efforts (which will
not require Party A to incur a loss, excluding immaterial,
incidental expenses) to make such a transfer to an Affiliate
provided the Rating Agencies have given prior written
confirmation to the Manager that such a transfer will not
result in a reduction, qualification or withdrawal of the
credit ratings then assigned by them to the Relevant Notes.".
(ii) The third paragraph is deleted and replaced with the following:
"Any such transfer by a party under this Section 6(b)(ii) will
be subject to and conditional upon the prior written consent of
the other party, which consent will not be withheld:
(1) where the other party is Party A, if Party A's policies
in effect at such time would permit it to enter into
transactions with the transferee on the terms proposed;
or
(2) where the other party is Party B, if the Rating Agencies
have confirmed in writing that such transfer will not
result in a
reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Relevant Notes.".
(e) DETERMINATION OF MARKET QUOTATION BY PARTY B: If Party B is required
to determine a Market Quotation in respect of a Terminated
Transaction pursuant to Section 6(e), Party B must consult with Party
A in relation to such determination prior to making the determination
and must provide to each Reference Market-maker in relation to the
Market Quotation such information in relation to the Terminated
Transaction, provided by Party A to Party B, as Party A may
reasonably request.
(8) NO SET-OFF: Section 6(e) is amended by deleting the last sentence of the
first paragraph.
(9) TRANSFER: Section 7 is replaced with:
"7. ESSENTIAL TERM: TRANSFER
(a) Neither the interests nor the obligations of any party in or under
this Agreement (including any Transaction) are capable of being
assigned or transferred (whether at law, in equity or otherwise),
charged or the subject of any trust (other than the Series Trust or
the trusts created pursuant to the Credit Support Document in
relation to Party B) or other fiduciary obligation. Any action by a
party which purports to do any of these things is void.
(b) Nothing in this Section 7:
(i) restricts a transfer by a party after the other parties have
agreed to the variation of this Agreement in accordance with
Part 5(20) of the Schedule to the extent necessary to permit
such transfer;
(ii) restricts a novation of the interests and obligations of a
party in or under this Agreement (including any Transaction)
for the purposes of giving effect to a transfer under Section
6(b)(ii);
(iii) restricts a transfer by a party of all or any part of its
interest in any amount payable to it from a Defaulting Party
under Section 6(e);
(iv) restricts a transfer by Party B or the Manager to a Substitute
Trustee or Substitute Manager, respectively, in accordance with
the Master Trust Deed;
(v) restricts Party B from granting security over a Transaction or
this Agreement pursuant to any Credit Support Document in
relation to Party B; or
(vi) limits Parts 5(6)(b)(ii) or 5(22) of the Schedule.
(c) Each party acknowledges that the other party enters into this
Agreement and each Transaction on the basis that this Section 7 must
be strictly observed and is essential to the terms of this Agreement
(including each Transaction).".
(10) FACSIMILE TRANSMISSION: In Section 12:
(a) delete Section 12(a)(ii); and
(b) replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission, on the date a
transmission report is produced by the machine from
which the facsimile
was sent which indicates that the facsimile was sent in
its entirety to the facsimile number of the recipient
notified for the purpose of this Section unless the
recipient notifies the sender within one Business Day of
the facsimile being sent that the facsimile was not
received in its entirety in legible form;".
(11) DEFINITIONS
In this Agreement, unless the contrary intention appears:
(a) MASTER TRUST DEED: subject to Part 5(11)(h) of this Schedule, unless
defined in this Agreement words and phrases defined in the Master
Trust Deed and the Series Supplement have the same meaning in this
Agreement. Subject to Part 5(11)(h) of this Schedule, where there is
any inconsistency in a definition between this Agreement (on the one
hand) and the Master Trust Deed or the Series Supplement (on the
other hand), this Agreement prevails. Where there is any
inconsistency in a definition between the Master Trust Deed (on the
one hand) and the Series Supplement (on the other hand), the Series
Supplement prevails over the Master Trust Deed in respect of the
Series Trust. Where words or phrases used but not defined in this
Agreement are defined in the Master Trust Deed in relation to a
Series Trust (as defined in the Master Trust Deed) such words or
phrases are to be construed in this Agreement, where necessary, as
being used only in relation to the Series Trust;
(b) TRUSTEE CAPACITY:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the relevant Series Trust only, and in
no other capacity;
(ii) a reference to the undertaking, assets, business or money of
Party B is a reference to the undertaking, assets, business or
money of Party B in the capacity referred to in paragraph
11(b)(i) only; and
(iii) without limiting the foregoing, Section 5(a)(vii) will only
apply to Party B in its capacity as trustee of the relevant
Series Trust and:
(A) reference in Section 5(a)(vii)(1) to Party B being
dissolved is to the relevant Series Trust being
dissolved;
(B) Party B in its capacity as trustee of the relevant
Series Trust is not insolvent or unable to pay its debts
for the purposes of Section 5(a)(vii)(2) to the extent
that its obligation to make any payment is limited by
any provision in a Transaction Document in relation to
the Series Trust; and
(C) the appointment of a Substitute Trustee in relation to
the Series Trust in accordance with the Master Trust
Deed is not, of itself, an event to which Section
5(a)(vii) applies in relation to Party B.
(c) DEFINITIONS: in Section 14:
(i) replace the definitions of "AFFECTED TRANSACTIONS" and "LOCAL
BUSINESS DAY" with the following:
""AFFECTED TRANSACTIONS" means, with respect to a Termination
Event, all Transactions."; and
""LOCAL BUSINESS DAY" has the same meaning as "BUSINESS DAY".";
and
(ii) insert the following new definitions:
""BBSW" or "AUD-BBR-BBSW" in relation to a Calculation Period
means the rate appearing at approximately 10.00 am Sydney time
on the Reset Date for that Calculation Period on the Reuters
Screen page "BBSW" as being the average of the mean buying and
selling rates appearing on that page for a xxxx of exchange
having a tenor of three months . If:
(a) on that Reset Date fewer than 4 banks are quoted on the
Reuters Screen page "BBSW"; or
(b) for any other reason the rate for that day cannot be
determined in accordance with the foregoing procedures,
then "BBSW" or "AUD-BBR-BBSW" means such rate as is specified
by the Calculation Agent having regard to comparable indices
then available.
"CREDIT SUPPORT ANNEX" means the Credit Support Annex annexed
to this Agreement.
"DISTRIBUTION DATE" has the meaning given in Section 16.
"MASTER TRUST DEED" means the Master Trust Deed dated 8 October
1997 between Party B and the Manager, as amended from time to
time.
"PRESCRIBED RATING PERIOD" means in relation to the credit
ratings assigned by the Rating Agencies to Party A:
(a) a period of 30 Business Days from the date when a credit
rating assigned by a Rating Agency to Party A is less
than the relevant Prescribed Rating but greater than or
equal to a short term credit rating of A-1 by S&P or a
long term credit rating of A- by S&P and a long term
credit rating of A3 by Xxxxx'x and a short term credit
rating of P-2 by Xxxxx'x; and
(b) a period of 5 Business Days from the date when a credit
rating assigned by a Rating Agency to Party A is less
than a short term credit rating of A-1 by S&P or a long
term credit rating of A- by S&P and a short term credit
rating of P-2 by Xxxxx'x and a long term credit rating
of A3 by Xxxxx'x.
"PRESCRIBED RATINGS" means a short term credit rating of A-1+
by S&P or a long term credit rating of AA- by S&P, and a long
term credit rating of A2 by Xxxxx'x and a short term credit
rating of P-1 by Xxxxx'x.
"RELEVANT CALCULATION AMOUNT" has the meaning given in Section
16.
"RELEVANT NOTES" has the meaning given in Section 16.
"RELEVANT NOTE TRUSTEE" has the meaning given in Section 16.
"RELEVANT NOTEHOLDERS" has the meaning given in Section 16.
"SCHEDULED MATURITY DATE" has the meaning given in Section 16.
"SECURITY TRUST DEED" has the meaning given to it in Section
16.
"SERIES SUPPLEMENT" has the meaning given in Section 16.
"SERIES TRUST" has the meaning given in Section 16.
(d) INTERPRETATION:
(i) references to time are references to Sydney time;
(ii) a reference to "WILFUL DEFAULT" in relation to Party B means,
subject to Part 5(11)(d)(iii) of this Schedule, any wilful
failure by Party B to comply with, or wilful breach by Party B
of, any of its obligations under any Transaction Document,
other than a failure or breach which:
A. (1) arises as a result of a breach of a Transaction
Document by a person other than:
(a) Party B; or
(b) any other person referred to in Part
5(11)(d)(iii) of this Schedule; and
(2) the performance of the action (the
non-performance of which gave rise to such
breach) is a precondition to Party B performing
the said obligation;
B. is in accordance with a lawful court order or direction
or required by law; or
C. is in accordance with any proper instruction or
direction of the Investors given at a meeting convened
under the Master Trust Deed;
(iii) a reference to the "FRAUD", "NEGLIGENCE" or "WILFUL DEFAULT" of
Party B means the fraud, negligence or wilful default of Party
B and of its officers, employees, agents and any other person
where Party B is liable for the acts or omissions of such other
person under the terms of any Transaction Document;
(iv) a reference to "NEITHER PARTY" will be construed as a reference
to "NO party"; and
(v) a reference to "OTHER PARTY" will be construed as a reference
to "OTHER PARTIES".
(e) ISDA DEFINITIONS: The 2000 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc ("ISDA")) (the
"2000 ISDA DEFINITIONS") as at the date of this Agreement are
incorporated into this Agreement and each Confirmation.
(f) INCONSISTENCY: Subject to Part 5(11)(a) of this Schedule, unless
specified otherwise, in the event of any inconsistency between any
two or more of the following documents in respect of a Transaction
they will take precedence over each other in the following order in
respect of that Transaction:
(i) any Confirmation;
(ii) this Schedule and Section 13 ("Elections and Variables") of the
Credit Support Annex (as applicable);
(iii) the 2000 ISDA Definitions; and
(iv) the printed form of the 1992 ISDA Master Agreement and the
printed form of the ISDA Credit Support Annex which form part
of this Agreement.
(g) SWAP TRANSACTION: Any reference to a:
(i) "SWAP TRANSACTION" in the 2000 ISDA Definitions is deemed to be
a reference to a "TRANSACTION" for the purpose of interpreting
this Agreement or any Confirmation; and
(ii) "TRANSACTION" in this Agreement or any Confirmation is deemed
to be a reference to a "SWAP TRANSACTION" for the purpose of
interpreting the 2000 ISDA Definitions.
(h) INCORPORATED DEFINITIONS AND OTHER TRANSACTION DOCUMENTS AND
PROVISIONS: Where in this Agreement a word or expression is defined
by reference to its meaning in another Transaction Document or there
is a reference to another Transaction Document or to a provision of
another Transaction Document, any amendment to the meaning of that
word or expression or to that other Transaction Document or provision
(as the case may be) will be of no effect for the purposes of this
Agreement unless and until the amendment is consented to by the
parties to this Agreement.
(12) LIMITATION OF LIABILITY: Insert the following as Sections 15 and 16, after
Section 14:
"15. PARTY B'S LIMITATION OF LIABILITY
(a) (LIMITATION ON PARTY B'S LIABILITY): Party B enters into this
Agreement only in its capacity as trustee of the relevant
Series Trust and in no other capacity. A liability incurred by
Party B acting in its capacity as trustee of the relevant
Series Trust arising under or in connection with this Agreement
is limited to and can be enforced against Party B only to the
extent to which it can be satisfied out of the Assets of that
Series Trust out of which Party B is actually indemnified for
the liability. This limitation of Party B's liability applies
despite any other provision of this Agreement (other than
Section 15(c)) and extends to all liabilities and obligations
of Party B in any way connected with any representation,
warranty, conduct, omission, agreement or transaction related
to this Agreement.
(b) (CLAIMS AGAINST PARTY B): The parties other than Party B may
not xxx Party B in respect of liabilities incurred by Party B
acting in its capacity as trustee of a Series Trust in any
other capacity other than as trustee of that Series Trust,
including seeking the appointment of a receiver (except in
relation to Assets of that Series Trust), or a liquidator, or
an administrator, or any similar person to Party B or prove in
any liquidation, administration or similar arrangements of or
affecting Party B (except in relation to the Assets of that
Series Trust).
(c) (BREACH OF TRUST): The provisions of this Section 15 will not
apply to any obligation or liability of Party B to the extent
that it is not satisfied because under the Master Trust Deed,
the corresponding Series Supplement or any other corresponding
Transaction Document or by
operation of law there is a reduction in the extent of Party
B's indemnification out of the Assets of the relevant Series
Trust, as a result of Party B's fraud, negligence or wilful
default.
(d) (ACTS OR OMISSIONS): It is acknowledged that the Relevant
Parties are responsible under the corresponding Transaction
Documents for performing a variety of obligations relating to
the relevant Series Trust. No act or omission of Party B
(including any related failure to satisfy its obligations or
any breach of representation or warranty under this Agreement)
will be considered fraudulent, negligent or a wilful default of
Party B for the purpose of paragraph (c) of this Section 15 to
the extent to which the act or omission was caused or
contributed to by any failure by any such Relevant Person or
any other person appointed by Party B under such a Transaction
Document (other than a person whose acts or omissions Party B
is liable for in accordance with any such Transaction Document)
to fulfil its obligations relating to the relevant Series Trust
or by any other act or omission of the Manager or the Servicer
or any other such person.
(e) (NO OBLIGATION): Party B is not obliged to enter into any
commitment or obligation under this Agreement or any
Transaction Document (including incur any further liability)
unless Party B's liability is limited in a manner which is
consistent with this Section 15 or otherwise in a manner
satisfactory to Party B in its absolute discretion.
16. SEGREGATION
Party B will enter into each Transaction as trustee of a Series
Trust. Each Confirmation in relation to a Transaction must specify
the name of the Series Trust to which the Transaction relates.
Notwithstanding anything else in this Agreement, but without limiting
the generality of Section 15, the provisions of this Agreement
(including, without limitation, the Credit Support Annex) shall have
effect severally in respect of each Series Trust and shall be
enforceable by or against Party B in its capacity as trustee of the
relevant Series Trust as though a separate Agreement applied between
Party A, Party B (in its capacity as trustee of the Series Trust
specified in the relevant Confirmation) and the Manager for each of
Party B's said several capacities, to the intent that (inter alia):
(a) (REFERENCES TO PARTY B): unless the context indicates a
contrary intention, each reference to "Party B" in this
Agreement shall be construed as a several reference to Party B
in its respective capacities as trustee of each Series Trust;
(b) (SEPARATE AGREEMENTS): this Master Agreement including, without
limitation, this Schedule and the Credit Support Annex together
with each Confirmation relating to a particular Series Trust
will form a single separate agreement between Party A, the
Manager and Party B in its capacity as trustee of that Series
Trust and references to the respective obligations (including
references to payment obligations generally and in the context
of provisions for the netting of payments and the calculation
of amounts due on early termination) of Party A, the Manager or
Party B shall be construed accordingly as a several reference
to each mutual set of obligations arising under each such
separate agreement between Party A, the Manager and Party B in
its several capacity as trustee of the relevant Series Trust;
(c) (REPRESENTATIONS): representations made and agreements entered
by the
parties under this Agreement are made and entered severally by
Party B in its respective capacities as trustee of each Series
Trust and in respect of the relevant Series Trust and may be
enforced by Party B against Party A or the Manager severally in
Party B's said several capacities (and by Party A or the
Manager against Party B in Party B's said several capacities);
(d) (TERMINATION): rights of termination, and obligations and
entitlements consequent upon termination, only accrue to Party
A against Party B severally in Party B's respective capacities
as trustee of each Series Trust, and only accrue to Party B
against Party A severally in Party B's said several capacities;
(e) (EVENTS OF DEFAULT AND TERMINATION EVENTS): without limiting
Section 15, the occurrence of an Event of Default or
Termination Event in respect of one Series Trust shall not in
itself constitute an Event of Default or Termination Event in
respect of any other Series Trust; and
(f) (DEFINITIONS):
(i) the term "SERIES TRUST":
(A) in this Section 16, means each Series Trust (as
defined in the Master Trust Deed) specified or
to be specified, as the context requires, as the
relevant Series Trust in the Confirmation for a
Transaction; and
(B) elsewhere in this Agreement, means each such
Series Trust severally in accordance with the
preceding provisions of this Section 16;
(ii) the term "TRANSACTION":
(A) in this Section 16, means each Transaction
governed by this Agreement; and
(B) elsewhere in this Agreement, means each such
Transaction entered into by the trustee as
Trustee of the relevant Series Trust;
(iii) the term "AGREEMENT":
(A) in this Section 16, and elsewhere if so
specified, means this Master Agreement,
including, without limitation, this Schedule and
the Credit Support Annex, and all Confirmations
governed by this Master Agreement; and
(B) elsewhere, unless specified otherwise, means the
separate agreement referred to in Section 16(b)
in respect of each particular Series Trust;
(iv) the terms "DISTRIBUTION DATE", "RELEVANT CALCULATION
AMOUNT", "RELEVANT NOTE TRUSTEE", "RELEVANT NOTES",
"RELEVANT NOTEHOLDERS", "SCHEDULED MATURITY DATE",
"SECURITY TRUST DEED" and "SERIES SUPPLEMENT" in this
Agreement to the extent that it applies in relation to a
Series
Trust have the respective meanings given to them in the
Confirmations for the Transactions of that Series
Trust.".
(13) FURTHER ASSURANCES: Each party will, upon request by the other party
(the "REQUESTING PARTY") at the expense of the requesting party,
perform all such acts and execute all such agreements, assurances and
other documents and instruments as the requesting party reasonably
requires (and, in the case of Party B, are within the powers granted
to Party B under the Master Trust Deed) to assure and confirm the
rights and powers afforded, created or intended to be afforded or
created, under or in relation to this Agreement and each Transaction
or other dealing which occurs under or is contemplated by it.
(14) PROCEDURES FOR ENTERING INTO TRANSACTIONS
(a) With respect to each Transaction entered into pursuant to this
Agreement and for the purposes of Section 9(e)(ii), Party A
will, by or promptly after the relevant Trade Date, send Party
B and the Manager a Confirmation substantially in the form set
out in Annexure 1 (or in such other form as may be agreed
between Party A, Party B and the Manager), and Party B and the
Manager must promptly then confirm the accuracy of and sign and
return, or request the correction of, such Confirmation; and
(b) Party B will enter into each Transaction in its capacity as
trustee of the Series Trust.
(15) AUTHORISED OFFICER: Each party will be entitled to assume, in the
absence of any knowledge to the contrary, that any Confirmation,
notice or other written communication, which is issued in respect of
this Agreement and which is purported to be signed on behalf of
another party by a person specified in the certificate provided by
that other party under Part 3(b) of this Schedule, is authorised by
that other party.
(16) RECORDED CONVERSATIONS: Each party:
(a) consents to the electronic recording of its telephone
conversations with another party (or any of its associated
persons) with or without the use of an automatic tone warning
device;
(b) will provide transcripts of such recordings (if any) upon
reasonable request by the other party (at the reasonable cost
of the party requesting);
(c) acknowledges that such recordings and transcripts can be used
as evidence by either party in any dispute between them; and
(d) acknowledges that no party is obligated to maintain copies of
such recordings and transcripts for the benefit of the other
party.
(17) REPLACEMENT CURRENCY SWAP AGREEMENT:
(a) If any Transaction under this Agreement is terminated prior to
the day upon which the Relevant Notes are redeemed in full,
Party B may, at the direction of the Manager, enter into one or
more currency swaps which replace that Transaction
(collectively a "REPLACEMENT CURRENCY SWAP") provided that:
(i) the Rating Agencies confirm in writing that the entry
into the Replacement Currency Swap by Party B does not
result in a reduction, qualification or withdrawal of
the credit ratings then assigned by them to the Relevant
Notes; and
(ii) the liability of Party B under the Replacement Currency
Swap is limited to at least the same extent that its
liability is limited under that Transaction.
(b) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party B to
Party A upon termination of the Transaction referred to in Part
5(17)(a) of this Schedule, Party B must, on the direction of
the Manager, pay any upfront premium to enter into the
Replacement Currency Swap received by Party B from the
Replacement Currency Swap provider to Party A in satisfaction
of and to the extent of Party B's obligation to pay the
Settlement Amount to Party A, and to the extent such premium is
not greater than or equal to the Settlement Amount, the balance
may be satisfied by Party B as an Expense.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party A to
Party B upon termination of the Transaction referred to in Part
5(17)(a) of this Schedule, Party B may direct Party A to pay
that amount to the Replacement Currency Swap provider in
satisfaction of or towards and to the extent of Party B's
obligation (if any) to pay an upfront premium to the
Replacement Currency Swap provider to enter into the
Replacement Currency Swap.
(d) The obligations of Party B (and the rights of Party A) under
this Part 5(17) will survive the termination of this Agreement.
(18) KNOWLEDGE OR AWARENESS: Subject to Section 12(a), each party will
only be considered to have knowledge or awareness of, or notice of, a
thing or grounds to believe anything by virtue of the officers of
that party or any Related Body Corporate of that party which have the
day to day responsibility for the administration or management of
that party's (or a Related Body Corporate of that party's)
obligations in relation to the Series Trust or the Transactions
entered into under this Agreement having actual knowledge, actual
awareness or actual notice of that thing, or grounds or reason to
believe that thing (and similar references will be interpreted in
this way).
(19) RESTRICTIONS ON PARTY B'S RIGHTS: Party B must at all times act in
accordance with the instructions of the Manager in relation to this
Agreement.
(20) AMENDMENT TO THIS AGREEMENT: The parties to this Agreement may only
amend this Agreement in accordance with clause 33.1(b) of the Series
Supplement.
(21) APPOINTMENT OF MANAGER: Party B hereby exclusively appoints the
Manager as its attorney to act on Party B's behalf and exercise all
rights and powers of Party B with respect to this Agreement. Without
limiting the generality of the foregoing, the Manager may issue and
receive on behalf of Party B all notices, certificates and other
communications to or by Party A under this Agreement until such time
as Party B serves written notice on Party A of the revocation of the
Manager's authority to act on behalf of Party B in accordance with
this Part 5(21).
(22) RATINGS DOWNGRADE:
(a) (DOWNGRADE): If, as a result of the reduction or withdrawal of
the credit rating of Party A, Party A is assigned a credit
rating by a Rating Agency less than the relevant Prescribed
Rating, Party A must by the expiry of the Prescribed Rating
Period in relation to the credit ratings assigned by the Rating
Agencies to Party A at that time (or such greater period as is
agreed to in writing by each relevant Rating Agency), at its
cost alone and at its election:
(i) provided that the short term credit rating by S&P is
greater than or equal to A-1 or the long term credit
rating by S&P is greater than or equal to A-, lodge
collateral in accordance with the Credit Support Annex
in an amount equal to the Collateral Amount as defined
in Part 5(22)(b) of this Schedule;
(ii) enter into an agreement novating Party A's rights and
obligations under this Agreement and each Transaction to
a replacement counterparty acceptable to the Manager and
which the Rating Agencies confirm in writing will not
result in a reduction, qualification or withdrawal of
the credit ratings then assigned by them to the Relevant
Notes; or
(iii) enter into such other arrangements in respect of each
Transaction which the Rating Agencies confirm in writing
will not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them
to the Relevant Notes.
Notwithstanding that Party A has elected to satisfy its
obligations pursuant to this Part 5(22)(a) in a particular
manner, it may subsequently and from time to time vary the
manner in which it satisfies its obligations pursuant to this
Part 5(22)(a) (but will not be entitled to any additional grace
period in relation to such a variation).
(b) (COLLATERAL AMOUNT): For the purpose of this Part 5(22) the
Collateral Amount will be an amount equal to the greater of the
following:
(i) zero;
(ii) if the credit rating of Party A is below the Prescribed
Rating in relation to S&P, CCR; and
(iii) if the credit rating of Party A is below the Prescribed
Rating in relation to Xxxxx'x, an amount acceptable to
Xxxxx'x and sufficient to maintain the credit rating
assigned to the Relevant Notes by Xxxxx'x immediately
prior to the review of the credit rating of Party A by
Xxxxx'x.
Where:
CCR = CR x 1.030
CR = MTM + VB
MTM means the aggregate xxxx-to-market value (whether positive
or negative) of each Transaction determined in accordance with
Part 5(22)(c) of this Schedule no earlier than 3 Business Days
prior to the date that the Collateral Amount is lodged.
VB means the volatility buffer, being the value calculated by
multiplying the Relevant Calculation Amount as at the most
recent Distribution Date by the relevant percentage obtained
from the following table:
----------------------------------------------------------------------------------------------
PARTY A'S LONG WHERE THE PERIOD WHERE THE PERIOD WHERE THE PERIOD BETWEEN
TERM CREDIT BETWEEN THE DATE BETWEEN THE DATE OF THE DATE OF RECALCULATION
RATING BY S&P OF RECALCULATION RECALCULATION AND THE AND THE SCHEDULED MATURITY
AND THE SCHEDULED SCHEDULED MATURITY DATE DATE IS GREATER THAN 10
MATURITY DATE IS IS GREATER THAN 5 YEARS YEARS
LESS THAN OR EQUAL AND LESS THAN OR EQUAL TO
TO 5 YEARS 10 YEARS
----------------------------------------------------------------------------------------------
A+ 1.05 1.75 3.0
----------------------------------------------------------------------------------------------
A 1.35 2.45 4.5
----------------------------------------------------------------------------------------------
A- 1.5 3.15 6
----------------------------------------------------------------------------------------------
(c) (XXXX TO MARKET VALUE): If collateral has been lodged or is to
be lodged under Part 5(22)(a)(i) of this Schedule and Part
5(22)(b)(ii) of this Schedule applies, Party A must calculate
the xxxx-to-market value of each Transaction by obtaining 2
bids from counterparties with the Prescribed Ratings willing to
provide each Transaction in the absence of Party A. The
xxxx-to-market value may be a positive or a negative amount. A
bid has a negative value if the payment to be made is from the
counterparty to Party A and has a positive value if the payment
to be made is from Party A to the counterparty. The
xxxx-to-market value is the higher of the bids (on the basis
that any bid of a positive value is higher than any bid of a
negative value).
(d) (RECALCULATION): If collateral has been lodged under Part
5(22)(a)(i) of this Schedule then, unless collateral is no
longer required to be lodged in accordance with Part 5(22)(a)
of this Schedule, Party A must recalculate the Collateral
Amount (including, if Part 5(22)(b)(ii) of this Schedule
applies, the CCR and the xxxx-to-market value) on each
Valuation Date. If:
(i) the Value on such Valuation Date of all Posted Credit
Support held by the Secured Party is less than the
recalculated Collateral Amount, the difference is the
Delivery Amount in relation to that Valuation Date; or
(ii) the Value on such Valuation Date of all Posted Credit
Support held by the Secured Party is greater than the
recalculated Collateral Amount, the difference is the
Return Amount in relation to that Valuation Date.
(e) (DEFINITIONS): For the purposes of this Part 5(22) "Delivery
Amount", "Posted Credit Support", "Return Amount", "Secured
Party", "Value" and "Valuation Date" have the same meaning as
in the Credit Support Annex.
(23) NO AMENDMENT: Each of Party B and the Manager agrees that it will not
consent to any amendment to any provision in any Transaction Document
in relation to the Series Trust dealing with the ranking, priority or
entitlement of Party A in respect of any security or moneys relating
to the Series Trust without the prior written consent of Party A.
ANNEXURE 1
FORM OF CONFIRMATION [NAME OF SERIES TRUST]
[LETTERHEAD OF PARTY A]
[DATE]
TO: Perpetual Trustee Company Limited Securitisation Advisory Services Pty. Limited
as trustee of the Series Trust Xxxxx 0
Xxxxx 0 00 Xxxxxx Xxxxx
0 Xxxxxxxxxxx Xxxxxx Xxxxxx XXX 0000
Xxxxxx XXX 0000 XXXXXXXXX
XXXXXXXXX
ATTENTION: Manager, Securitisation ATTENTION: Manager, Securitisation
Services
CONFIRMATION - [NAME OF TRANSACTION]
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the terms specified below (the
"TRANSACTION"). This letter constitutes a "CONFIRMATION" as referred to in the
Master Agreement specified below.
This Confirmation is entered into by Perpetual Trustee Company Limited, ABN 42
000 001 007 as trustee of the Medallion Trust Series [ ] (the "SERIES TRUST").
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented
from time to time (the "AGREEMENT"), between [ ] ("PARTY A"), Perpetual
Trustee Company Limited ABN 42 000 001 007 as trustee of, inter alia, the Series
Trust ("PARTY B") and Securitisation Advisory Services Pty. Limited ABN 88 064
133 946 (the "MANAGER"). All provisions contained in the Agreement govern this
Confirmation except as expressly modified below.
This Confirmation incorporates the Definitions Schedule which forms part of, and
is subject to, this Confirmation.
The terms of the particular Transaction to which this Confirmation relates are
specified below:
1. OUR REFERENCE: [ ]
2. TRADE DATE: [ ]
3. EFFECTIVE DATE: Issue Date in respect of the Relevant
Notes
4. TERMINATION DATE: The earlier of:
(a) the date that the Relevant Notes
have been redeemed in full in
accordance with the Note Conditions;
and
(b) the Scheduled Maturity Date.
5. FLOATING AMOUNTS
5.1 FLOATING AMOUNTS PAYABLE BY
PARTY A (SUBJECT TO
PARAGRAPH 9 OF THIS
CONFIRMATION):
(A) Floating Rate Payer: Party A
Calculation Amount: For each Floating Rate Payer Payment Date,
the aggregate Invested Amount of the
Relevant Notes as at the first day of the
Calculation Period ending on but excluding
that Floating Rate Payer Payment Date. The
Calculation Amount for the initial
Calculation Period will be
USD1,000,000,000. The Calculation Amount
will not ever exceed USD1,000,000,000 for
any Calculation Period.
Floating Rate Payer Payment Each Distribution Date during the period
Dates: commencing on and including [ ] and ending
on and including the Termination Date,
subject to adjustment in accordance with
the Following Business Day Convention
Floating Rate Option: USD-LIBOR-BBA except that:
(a) references to "London Banking Days"
in section 7.1(a)(w)(xvii) and (xx)
of the Annex (June 2000 version) to
the 2000 ISDA Definitions will be
replaced with references to "Banking
Days" as that expression is defined
in the Note Conditions:
(b) references to "Telerate Page 3750"
in section 7.1(w)(xvii) of the Annex
(June 2000 version) to the 2000 ISDA
Definitions will be replaced with
references to "Rate Page" as that
expression is defined in the Note
Conditions; and
(c) if USD-LIBOR-BBA cannot be
determined in accordance with the
2000 ISDA Definitions as varied
above (including endeavouring to
determine a rate under the
definition of "USD-LIBOR-Reference
banks" in section 7.1(w)(xx)), it
will remain as the most recently
determined rate obtained from a Rate
Page for a preceding Calculation
Period.
Designated Maturity: [ ] months
Spread: [ ]
Floating Rate Day Count
Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
(B) Class A-1 Unpaid Coupon Amount: If on any Distribution Date there is an A$
Class A-1 Unpaid Interest Amount, then on
the Floating Rate Payer Payment Date which
falls on that Distribution Date, Party A
will pay to Party B an amount calculated
as follows:
LIBOR
$US UC = $A UC x ----- x US$ Exchange Rate
BBSW
where:
$US UC = the amount to be paid by Party A;
$A UC = the A$ Class A-1 Unpaid Interest
Payment in relation to that
Distribution Date;
LIBOR = the Floating Rate Option under
this paragraph 5.1 in respect of
the Reset Date which is the same
day as that Floating Rate Payer
Payment Date;
BBSW = the Floating Rate Option under
paragraph 5.2 in respect of the
Reset Date which is the same day
as that Floating Rate Payer
Payment Date.
5.2 FLOATING AMOUNTS PAYABLE BY
PARTY B (SUBJECT TO PARAGRAPH 9
OF THIS CONFIRMATION):
(A) Floating Rate Payer: Party B
Calculation Amount: For each Floating Rate Payer Payment Date,
the A$ Equivalent of the aggregate
Invested Amount of the Relevant Notes as
at the first day of the Calculation Period
ending on but excluding that Floating Rate
Payer Payment Date
Floating Rate Payer Payment
Dates: Each Distribution Date during the period
commencing on and including [ ] and
ending on and including the Termination
Date, subject to adjustment in accordance
with the Following Business Day Convention
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: [ ] months
Spread: [ ]
Floating Rate Day Count
Fraction: Actual/365 (Fixed)
Reset Dates The first day of each Calculation Period
Compounding: Inapplicable
(B) A$ Class A-1 Unpaid Interest
Amount: If on any Distribution Date there is an A$
Class A-1 Unpaid Interest Amount, then on
the Floating Rate Payer Payment Date which
falls on that Distribution Date Party B
will pay to Party A the A$ Class A-1
Unpaid Interest Payment in relation to
that Distribution Date.
5.3 NO LIMIT TO RIGHTS: Nothing in paragraphs 5.1(b) or 5.2(b) is
to be construed as limiting Party A's or
Party B's rights in relation to a failure
by the other to pay the full amount of a
Floating Amount calculated in accordance
with paragraphs 5.1(a) or 5.2(a), as
applicable, on a Floating Rate Payer
Payment Date (including any right to
designate an Early Termination Date in
accordance with Section 6(a) of the
Agreement).
6. EXCHANGES
6.1 INITIAL EXCHANGE:
Initial Exchange Date: Closing Date
Party A Initial Exchange Amount: The A$ Equivalent of the Party B Initial
Exchange Amount, being A$[ ]
Party B Initial Exchange Amount: The Initial Invested Amount of the
Relevant Notes on the Issue Date, being
US$[ ]
Notwithstanding Section 2(a)(ii) of the
Agreement, Party A must pay the Party A
Initial Exchange Amount to Party B by
4.00pm (Sydney time) on the Initial
Exchange Date and Party B must pay Party A
the Party B Initial Exchange Amount by
4.00pm (New York time) on the Initial
Exchange Date. Section 2(a)(v) of the
Agreement will not apply to the payments
of the Initial Exchange Amounts.
6.2 INTERIM EXCHANGE:
Interim Exchange Date: Each Distribution Date (other than the
Final Exchange Date)
Party A Interim Exchange Amount: In respect of an Interim Exchange Date
means the US$ Equivalent of the A$ Class
A-1 Principal Amount in relation to the
Distribution Date occurring on that
Interim Exchange Date
Party B Interim Exchange Amount: In respect of an Interim Exchange Date
means the
A$ Class A-1 Principal Amount in relation
to the Distribution Date occurring on that
Interim Exchange Date
6.3 FINAL EXCHANGE:
Final Exchange Date: Termination Date
Party A Final Exchange Amount: The US$ Equivalent of the A$ Class A-1
Principal Amount in relation to the
Distribution Date which is the Final
Exchange Date
Party B Final Exchange Amount: The A$ Class A-1 Principal Amount in
relation to the Distribution Date which is
the Final Exchange Date
7. EXCHANGE RATES:
For the purpose of the
definitions of "A$ EQUIVALENT"
and "US$ EQUIVALENT":
US$ Exchange Rate: [ ]
A$ Exchange Rate: [ ]
8. ACCOUNT DETAILS:
8.1 PAYMENTS TO PARTY A
Account for payments in US$ The account notified in writing by Party A
to Party B in accordance with Part
5(3)(ii) of the Schedule to the Agreement
Account for payments in A$ The account notified in writing by Party A
to Party B in accordance with Part 5(3)(i)
of the Schedule to the Agreement
8.2 PAYMENTS TO PARTY B
Account for payments in US$: The account notified in writing by the
Principal Paying Agent to Party A in
accordance with Part 5(2)(ii) of the
Schedule to the Agreement
Account for payments in A$: The account notified in writing by Party B
to Party A in accordance with Part 5(2)(i)
of the Schedule to the Agreement
9. NOTIFICATIONS TO PARTY A On or before the Determination Time in
respect of each Distribution Date the
Manager must notify Party A in writing of:
(a) the A$ Class A-1 Principal Amount
which the Manager has directed Party
B to pay to Party A on that
Distribution Date pursuant to clause
10.5(b)(i) of the Series Supplement;
(b) the A$ Class A-1 Interest Payment in
relation to that Distribution Date;
(c) the amounts (if any) allocated to
the Class A-1 Notes in respect of
any Principal Charge-off or
Principal Charge-off Reimbursement
on the immediately preceding
Determination Date in accordance
with Conditions 7.9 and 7.10 of the
Note Conditions; and
(d) the A$ Class A-1 Unpaid Interest
Payment (if any) in relation to that
Distribution Date.
10. OFFICES: The Office of Party A for each Transaction
is [ ].
The Office of Party B for each Transaction
is [ ].
Please confirm that the above correctly sets out the terms of our agreement in
respect of each Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of
[ ]
By:
(Authorised Officer)
Name:
Title:
CONFIRMED AS AT THE DATE FIRST WRITTEN ABOVE: CONFIRMED AS AT THE DATE FIRST WRITTEN ABOVE:
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE SECURITISATION ADVISORY SERVICES PTY.
COMPANY LIMITED ABN 42 000 001 007 LIMITED ABN 88 064 133 946
as trustee of the Medallion Trust Series
[ ]
By: By:
(Authorised Officer ) (Authorised Officer )
Name: Name:
Title: Title:
DEFINITIONS SCHEDULE
In this Confirmation and in the Agreement to the extent that it relates to the
Series Trust, unless the context otherwise requires:
"A$ CLASS A-1 UNPAID INTEREST PAYMENT" means in relation to a Distribution Date
the amount available to be allocated towards payment to Party A in respect of A$
Class A-1 Unpaid Interest Amounts on that Distribution Date in accordance with
clause 10.2(k)(i) of the Series Supplement determined on the basis that all
amounts allocated towards payment of A$ Class A-1 Interest Amounts and A$ Class
A-1 Unpaid Interest Amounts pursuant to clause 10.2(k)(i) of the Series
Supplement are allocated first towards payment of A$ Class A-1 Interest Amounts
and then, once the A$ Class A-1 Interest Amounts are paid in full, towards
payment of A$ Class A-1 Unpaid Interest Amounts.
"DETERMINATION TIME" in relation to a Distribution Date means on or about
11.00am Sydney time 1 Business Day prior to that Distribution Date.
"DISTRIBUTION DATE" has the same meaning as in the Series Supplement.
"NOTE CONDITIONS" means the terms and conditions of the Relevant Notes annexed
to the Relevant Notes.
"RELEVANT CALCULATION AMOUNT" means the Calculation Amount referred to in
paragraph 5.1 of this Confirmation.
"RELEVANT NOTES" means the Class A-1 Notes issued by the Trustee under the US
Dollar Note Trust Deed.
"RELEVANT NOTEHOLDERS" means the Class A-1 Noteholders as that term is defined
in the US Dollar Note Trust Deed.
"RELEVANT NOTE TRUSTEE" means The Bank of New York, New York Branch or, if The
Bank of New York is removed or retires as the trustee for the Class A-1
Noteholders, any person appointed from time to time in its place in accordance
with the US Dollar Note Trust Deed.
"SCHEDULED MATURITY DATE" has the same meaning as in the Series Supplement.
"SECURITY TRUST DEED" means the Security Trust Deed dated on or about the date
of this Confirmation between Party B, the Manager, the Relevant Note Trustee and
P.T. Limited ABN 67 004 454 666.
"SERIES SUPPLEMENT" means the Series Supplement dated on or about the date of
this Confirmation between Party A, Homepath Pty Limited ABN 35 081 986 530,
Party B and the Manager.
"US DOLLAR NOTE TRUST DEED" means the US Dollar Note Trust Deed dated on or
about the date of this Confirmation between Party B, the Manager and the
Relevant Note Trustee.
Terms defined in the Note Conditions have the same meaning in this Confirmation
unless otherwise defined in this Confirmation.
PARAGRAPH 13 TO NEW YORK LAW CREDIT SUPPORT ANNEX
(13) ELECTIONS AND VARIABLES
(a) SECURITY INTEREST FOR "OBLIGATIONS"
The term "Obligations" as used in this Annex includes the additional
obligations referred to in Paragraph 13(m)(vii)(B).
(b) CREDIT SUPPORT OBLIGATIONS
(i) DELIVERY AMOUNT AND RETURN AMOUNT
"DELIVERY AMOUNT" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(22)(d)(i) of
the Schedule to this Agreement for that Valuation Date.
"RETURN AMOUNT" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(22)(d)(ii) of
the Schedule to this Agreement for that Valuation Date.
(ii) ELIGIBLE COLLATERAL. The following items will qualify as
"Eligible Collateral" for Party A provided that the items
specified in paragraphs (E), (F), (G) and (H) will only qualify
as "Eligible Collateral" of Party A upon receipt by Party B of
an opinion as to the perfection of the Secured Party's security
interest in such items in form and substance (and issued by
legal counsel) satisfactory to Party B:
VALUATION
Percentage
A) negotiable debt obligations issued by the 98%
U.S. Treasury Department having a remaining
maturity of not more than one year
B) negotiable debt obligations issued by the 95%
U.S. Treasury Department having a remaining
maturity of more than one year but not more
than five years
C) negotiable debt obligations issued by the 93%
U.S. Treasury Department having a remaining
maturity of more than five years but not more
than ten years
D) negotiable debt obligations issued by the 90%
U.S. Treasury Department having a remaining
maturity of more than ten years
E) Agency Securities having a remaining maturity 97%
of not more than one year
F) Agency Securities having a remaining maturity 94%
of more than one year but not more than five
years
G) Agency Securities having a remaining maturity 92%
of more than five years but not more than ten
years
H) Agency Securities having a remaining maturity 89%
of more than ten years
I) Cash 100%
J) other Eligible Credit Support and Valuation
Percentage agreed by the parties and
acceptable to each Rating Agency
Notwithstanding the foregoing to the contrary, the Valuation
Percentage with respect to all Eligible Credit Support shall be
deemed to be 100% with respect to a Valuation Date which is an
Early Termination Date.
"AGENCY SECURITIES" means negotiable debt obligations which are
fully guaranteed as to both principal and interest by the
Federal National Mortgage Association, the Government National
Mortgage Corporation or the Federal Home Loan Mortgage
Corporation and which have been assigned a short term credit
rating of A-1+ by S&P, but exclude: (i) interest only and
principal only securities; and (ii) collateralized mortgage
obligations, real estate mortgage investment conduits and
similar derivative securities.
(iii) OTHER ELIGIBLE SUPPORT
Not applicable.
(iv) THRESHOLDS
(A) "MINIMUM TRANSFER AMOUNT" means with respect to both
Party A and Party B: US$100,000.
(B) ROUNDING. The Delivery Amount and the Return Amount will
be rounded to the nearest integral multiple of
US$10,000.
(c) VALUATION AND TIMING
(i) "VALUATION AGENT" means Party A.
(ii) "VALUATION DATE" means the last Business Day of each week and,
at the option of Party A, any Business Day between Valuation
Dates.
(iii) "VALUATION TIME" means the close of business on the Business
Day before the Valuation Date; provided that the calculations
of Value and Exposure will be made as of approximately the same
time on the same date.
(iv) "NOTIFICATION TIME" means 11:00 am New York time on the second
Business Day after the Valuation Date.
(d) CONDITIONS PRECEDENT AND SECURED PARTY'S RIGHTS AND REMEDIES
There are no "SPECIFIED CONDITIONS" applicable to Party A. The
following is a Specified Condition with respect to Party B:
"If an Early Termination Date has been designated in respect of the
each Transaction provided that if an amount is due by Party A to
Party B in respect of that Early Termination Date pursuant to Section
6, that amount has been paid in full.".
(e) SUBSTITUTION
(i) "SUBSTITUTION DATE" has the meaning specified in Paragraph
4(d)(ii).
(ii) CONSENT. The Pledgor must obtain the Secured Party's consent
for any substitution pursuant to Paragraph 4(d). However such
consent is not to be unreasonably withheld and the parties
agree that not wanting to accept a particular type of
Substitute Credit Support is not in itself a reasonable basis
for withholding consent if the Substitute Credit Support is
Eligible Collateral. The consent may be provided in a manner
described in Section 12 or otherwise, including orally.
(f) DISPUTE RESOLUTION
(i) "RESOLUTION TIME" means 11:00 am New York time.
(ii) "VALUE". Not applicable.
(iii) "ALTERNATIVE". The provisions of Paragraph 5 will apply.
(g) HOLDING AND USING POSTED COLLATERAL
(i) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS.
Party A: Not Applicable.
Party B is not entitled to hold Posted Collateral. It must
appoint a Custodian to hold Posted Collateral on its behalf
pursuant to paragraph 6(b). Party B may only appoint a
Custodian to hold Posted Collateral on its behalf if the
following conditions are satisfied:
(A) Party B is not a Defaulting Party;
(B) Party B's Custodian will always be the Principal Paying
Agent, unless that party is Party A;
(C) if the Principal Paying Agent is Party A, then Party B
must appoint a Custodian which is a Bank (as defined in
the Federal Deposit Insurance Act, as amended) outside
Australia, whose rating (with respect to its long term
unsecured, unsubordinated indebtedness) is at all times
at least Aa2 by Xxxxx'x and its short term debt rating
is A-1+ by S&P, and Party B must notify Party A in
writing of this appointment and of the relevant account
for Paragraph 13(l); and
(D) Posted Collateral may only be held in one or more
accounts in the name of Party B in the United States and
any account established by Party B's Custodian to hold
Posted Collateral shall be established and maintained
for the sole purpose of receiving deliveries of and
holding Posted Collateral.
(ii) USE OF POSTED COLLATERAL. The provisions of paragraph 6(c) will
not apply to Party B and its Custodian. Party B's Custodian
will permit Party B to secure Party B's obligations under the
Relevant Notes by granting to the Security Trustee the charge
under the Security Trust Deed over Party B's rights in relation
to the Posted Collateral, but subject to Paragraph 13(m)(vi) of
this Annex.
(h) DISTRIBUTIONS AND INTEREST AMOUNT
(i) INTEREST RATE. The "Interest Rate", in respect of Posted
Collateral which is denominated in US$, for any day means the
Federal Funds Overnight Rate. For the purposes hereof, "Federal
Funds Overnight Rate" means, for any day, an interest rate per
annum equal to the rate published as the Federal Funds
Effective Rate that appears on Telerate Page 118 for such day.
The "Interest Rate" in respect of Posted Collateral denominated
in any other Eligible Currency means the rate as agreed between
the parties.
(ii) TRANSFER OF INTEREST AMOUNT. The Transfer of Interest Amount
will be made monthly on the second Business Day of each
calendar month.
(iii) ALTERNATIVE TO INTEREST AMOUNT. The provisions of Paragraph
6(d)(ii) will apply.
(i) ADDITIONAL REPRESENTATION(S)
None.
(j) OTHER ELIGIBLE SUPPORT AND OTHER POSTED SUPPORT
"VALUE" and "TRANSFER" with respect to Other Eligible Support and
Other Posted Support means: not applicable.
(k) DEMANDS AND NOTICES
All demands, specifications and notices under this Annex will be made
pursuant to the Section 12 of this Agreement; provided, that any such
demand, specification or notice may be made by telephone ("TELEPHONE
NOTICE") between duly authorised employees of each party if such
Telephone Notice is confirmed by a subsequent written instruction
(which may be delivered via facsimile) by the close of business of
the same day that such Telephone Notice is given.
(l) ADDRESSES FOR TRANSFERS
Party A: Party A to specify account for returns of collateral.
Party B: Party B must notify Party A of its Custodian's account.
(m) OTHER PROVISIONS
(i) Paragraph 4(b) of the Annex is replaced by the following:
"(b) TRANSFER TIMING. Subject to Paragraph 4(a) and 5 and
unless otherwise specified, if a demand for the Transfer
of Eligible Credit Support or Posted Credit Support is
made by the Notification Time, then the relevant
Transfer will be made within three Business Days of
receipt of the demand; if a demand is made after the
Notification Time, then the relevant Transfer will be
made within four Business Days of receipt of the
demand.".
(ii) EVENT OF DEFAULT
Paragraph 7(i) of the Annex is amended, on line 3, by replacing
"two Business Days" with "three Business Days".
(iii) PARTY A'S EXPENSES
Subject to Section 15 of the Agreement, Party B agrees to pay
Party A's costs and expenses in relation to or caused by any
breach by Party B of its obligations under this Annex. Party A
acknowledges and agrees that its obligations under this Annex
will not be affected by a failure by Party B to comply with its
obligations under this paragraph (m)(iii).
(iv) GOVERNING LAW NOTWITHSTANDING
Notwithstanding that the Agreement is expressed to be governed
by the laws of the State of New South Wales, this Annex (but
not any other provisions of the Agreement) shall be governed by
and construed in accordance with the laws of the State of New
York without giving effect to choice of law doctrine and
parties hereto agree that proceedings relating to any dispute
arising out of or in connection with this Annex shall be
subject to the non-exclusive jurisdiction of the federal or
state courts of competent jurisdiction in the Borough of
Manhattan in New York City, State of New York.
(v) NO TRIAL BY JURY
Each party waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in
respect of any suit, action or proceeding relating to this
Annex.
(vi) NO POOLING OF COLLATERAL WITH OTHER SECURITY TRUST SECURITY
Notwithstanding any provision in the Master Trust Deed, Series
Supplement or Security Trust Deed, but without prejudice to
Party B's rights under Paragraph 8(a) of this Annex, no party
shall be entitled to deal with the Posted Collateral in any
manner inconsistent with the rights of the Pledgor under
Paragraphs 3(d), 4(b) or 8(b)(iii) of this Annex, and each
party covenants to the other that it shall not permit any other
person to gain any rights in relation to the Posted Collateral
that are inconsistent with the rights of the Pledgor.
(vii) PLEDGOR AND SECURED PARTY
In this Annex:
(a) "PLEDGOR" means only Party A; and
(b) "SECURED PARTY" means only Party B.
(viii) NON-AUSTRALIAN ASSETS
Party A must only Transfer Posted Collateral to the Secured
Party from its assets held outside Australia.
(ix) DISPUTE RESOLUTION
Paragraph 5(i) is amended by:
(A) replacing the word "Exposure" with the words "the
Delivery Amount or the Return Amount, as the case may
be" in the first paragraph of Paragraph 5(i);
(B) adding the word "and" at the end of Paragraph 5(i)(A)
and deleting Paragraph 5(i)(B).
(x) SPECIFIED CONDITION
(A) In Paragraph 4(a)(ii) the words "or Specified Condition"
are deleted.
(B) In Paragraph 8(b) the words "or Specified Condition" are
deleted and replaced with the following "with respect to
the Secured Party or a Specified Condition has
occurred".
