XXXXXXX XXX
Medallion Trust Series 2005-2G
ISDA Master Agreement
(Interest Rate Swap Agreement)
Commonwealth Bank of Australia
ABN 48 123 123 124
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 XXXXXX XXXXXXX ON + 61 2 9353 4679
Xxxxxxx Xxx
Lawyers
Levels 19-35 Xx. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
PO Box H3 Australia Square Sydney NSW 1215
T + 61 2 9353 4000 F + 61 2 8220 6700
XXX.XXXXXXXXXX.XXX
Our reference 174/657/80023761
SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF 22 APRIL 2005 BETWEEN
SECURITISATION ADVISORY SERVICES PTY. LIMITED
ABN 88 064 133 946
("MANAGER")
AND
COMMONWEALTH BANK OF AUSTRALIA
ABN 48 123 123 124
("PARTY A")
AND
PERPETUAL TRUSTEE COMPANY LIMITED
ABN 42 000 001 007
AS TRUSTEE OF THE MEDALLION TRUST SERIES 2005-2G
("PARTY B")
PART 1. TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" in relation to
(i) Party A, is not applicable; and
(ii) Party B, is not applicable.
(b) "SPECIFIED TRANSACTION" means - 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)(viii) Section 5(b)(iv)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(ii)
Section 5(a)(iv) Section 5(a)(vii) Section 5(b)(iii)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii) Section 5(b)(iv)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(ii)
Section 5(a)(iv) Section 5(a)(vii) Section 5(b)(iii)
(d) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) will not
apply.
(e) 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; and
B. in respect of each Fixed Rate Swap and the Interest Rate Basis
Cap (if any), Market Quotation will apply;
1
(ii) A. in respect of the Basis Swap, neither the First Method nor the
Second Method will apply; and
B. in respect of each Fixed Rate Swap and the Interest Rate Basis
Cap (if any), the Second Method will apply; and
(iii) the definition of "Loss" is amended by adding the following sentence
at the end of that definition:
"However in relation to a Terminated Transaction that is the Basis
Swap, each party's Loss is deemed to be zero.".
(f) "TERMINATION CURRENCY" means Australian dollars.
(g) ADDITIONAL TERMINATION EVENT. The following is an Additional Termination
Event in relation to which Party B is the only Affected Party and the Basis
Swap is the only Affected Transaction:
If, on any day on which the weighted average Mortgage Rate applicable to
the Mortgage Loans forming part of the Assets of the Series Trust which are
charged interest at a variable rate is equal to or greater than the then
Threshold Rate, Party A notifies Party B and each Rating Agency of its
intention to terminate the Basis Swap.
PART 2. TAX REPRESENTATIONS
(a) PAYER 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 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 any 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 REPRESENTATIONS. For the purpose of Section 3(f) of this Agreement,
Party A will and Party B will make the following representation:
It is an Australian resident and does not derive the payments under this
Agreement in part or whole in carrying on business in a country outside
Australia at or through a permanent establishment of itself in that
country.
2
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 FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
DELIVER DOCUMENT
------------------- ------------------------------ ------------------------------
Party A and Party B Any document or certificate On the earlier of (a) learning
reasonably required or that such document or
reasonably requested by a certificate is required and
party in connection with its (b) as soon as reasonably
obligations to make a payment practicable following a
under this Agreement which request by a party.
would enable that party to
make the payment free from any
deduction or withholding for
or on account of Tax or which
would reduce the rate at which
deduction or withholding for
or on account of Tax is
applied to that payment.
(b) OTHER DOCUMENTS TO BE DELIVERED ARE:
COVERED BY
PARTY REQUIRED TO SECTION 3(D)
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED REPRESENTATION
------------------- ------------------------------ ------------------------------ --------------
Party A A certificate from Party A On execution and delivery of Yes
(or, if available, Party A's any Confirmation unless that
current authorised signature certificate has already been
book) specifying the names, supplied for that purpose and
title and specimen signatures remains true and in effect and
of the Authorised Officers of when the list is updated or
Party A. upon request.
Party A, Party B A legal opinion as to the On or at any time prior to the No
and the Manager validity and enforceability of Closing Date.
that party's obligations under
this Agreement in form and
substance (and issued by legal
counsel) reasonably acceptable
to the other party.
The Manager A copy (certified by the Not less than 5 Business Days Yes
Manager) of the Credit Support (or such lesser period as
Document and (without limiting Party A agrees to) before the
any obligation Party B may Trade Date of the first
have under the terms of the occurring Transaction and in
Credit Support Document to the case of any amending
notify Party A of amendments) documents entered into
a copy (certified by the subsequent to that date,
Manager) of any document that promptly after each amending
amends in any way the terms of document (if any) has been
the Credit Support Document. entered into.
3
For the purposes of this paragraph (b) a copy of a document is taken to be
certified by the Manager if an Authorised Officer of the Manager or legal
counsel for the Manager has certified it to be a true and complete copy of the
document of which it purports to be a copy.
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this Agreement:
Address for notices or communications to PARTY A:
Address: Commonwealth Bank of Australia
Level 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
Address for notices or communications to PARTY B:
Address: Perpetual Trustee Company Limited
Level 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation Services
Facsimile No.: 612 9221 7870
Additionally, a copy of all notices as well as any changes to a party's
address, telephone number or facsimile number should be sent to:
Address: Securitisation Advisory Services Pty. Limited
Level 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent - Not Applicable
Party B appoints as its Process Agent - Not Applicable
(c) OFFICES. The provisions of Section 10(a) will not apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement.
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
4
(e) CALCULATION AGENT. The Calculation Agent is the Manager.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
(i) in relation to Party A: Nil;
(ii) in relation to Party B: the Security Trust Deed.
(g) CREDIT SUPPORT PROVIDER.
(i) In relation to Party A: Not Applicable.
(ii) In relation to Party B: Not Applicable.
(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 and
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. 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."
(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 10.00am on the due date for value on that
date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds, free of any set-off, counterclaim, deduction or
withholding (except as expressly provided in this Agreement) and in
the manner customary for payment in the required currency."
(c) Insert a new paragraph (iv) in Section 2(a) immediately after Section
2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply
to a payment due to be made to a party if it has satisfied all
its payment obligations under Section 2(a)(i) of this Agreement
and has no future payment obligations, whether absolute or
contingent under Section 2(a)(i)."
(d) Add the following new sentence to Section 2(b):
"Each new account so designated will be in the same tax jurisdiction
as the original
5
account."
(e) In Section 2(c) insert the following words at the end of the first
paragraph:
"Subject to Section 2(f), the aggregate amount that would otherwise be
payable will not take into account amounts due on that Payment Date
pursuant to Sections 2(g), 17, 18 or 19."
(f) Delete Section 2(d)(i)(4) in its entirety.
(g) In Section 2(d)(ii)(1) delete the following 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)".
(h) Insert new Sections 2(f) and 2(g) as follows:
"(f) If on a Payment Date an amount would otherwise be payable by
Party A pursuant to Section 2(c):
(i) in respect of a Fixed Rate Swap, then such amount will,
unless otherwise agreed between Party A and Party B, be
satisfied in part, or whole, from the then Fixed Rate
Prepayment Balance; and
(ii) in respect of the Basis Swap, then such amount will, unless
otherwise agreed between Party A and Party B, be satisfied
in part, or whole, from the then Basis Prepayment Balance.
(g) On each Payment Date that a Fixed Rate Swap is existing Party B
will pay Party A any Break Costs determined by the Manager on the
preceding Determination Date in accordance with the Series
Supplement."
(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 ADI (as that term is
defined in the Banking Act, 1959 (Cth)), Section 86 of the Reserve
Bank Act, 1969 (Cth) and section 13A(3) of the Banking Act, 1959
(Cth))."
(b) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to represent
to the other parties on the date on which it enters into a Transaction
that (absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary for that Transaction):
(i) NON-RELIANCE. It is acting for its own account (in the case of
Party B, as trustee of the Series Trust), and it has made its own
independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based
upon its own judgment (and in the case of Party B, also upon 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
6
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) After "Section 3(f)" in line 2 insert ",3(g), 3(h) and 3(i)".
(d) 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 date of this Agreement.
(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 this Agreement and the Credit Support
Documents 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.
(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, to the best of its knowledge without due enquiry,
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).
(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 any Credit Support Document
specified in relation to Party B.
(i) CONTRACTING AS PRINCIPAL. Each existing Transaction has been
entered
7
into by that party as principal and not otherwise."
(3) FAILURE TO PAY OR DELIVER: In Section 5(a)(i) delete the words "third
Local" where they appear in line 3 and replace them with the word "tenth".
(4) TERMINATION: In Section 6:
(i) Add the following sentence at the end of the first paragraph of
Section 6(b)(ii):
"However, if Party B is the Affected Party, then Party B will only be
obliged to make such efforts to effect a transfer in accordance with
this Section 6(b)(ii) as it is able to make by application of funds
held by it as trustee of the Series Trust being funds available for
such application in accordance with the provisions of the Master Trust
Deed and the Series Supplement."
(ii) 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 Manager with the prior consent of the Rating Agencies, use
reasonable efforts to make such a transfer to an Affiliate (as that
expression is defined in Section 14 disregarding any modification made
by this Agreement)."
(iii) Add the following sentence at the end of the last paragraph of
Section 6(b)(ii):
"However, consent may be withheld if the other party considers that
its credit exposure to the transferee would be adversely affected by
the transfer."
(iv) Section 6(e) is amended by deleting the last sentence of the first
paragraph.
(5) FACSIMILE TRANSMISSION: In Section 12:
(a) delete the following words where they appear on lines 2 and 3 of
Section 12(a):
"(except that a notice or other communication under Section 5 or
Section 6 may not be given by facsimile transmission or electronic
messaging system)";
(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 Local Business Day of the facsimile being sent that the
facsimile was not received in its entirety in legible form;"; and
(c) 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."
(6) DEFINITIONS: In this Agreement, unless the contrary intention appears:
(a) MASTER TRUST DEED AND SERIES SUPPLEMENT: Subject to Part 5(6)(h) of
this Schedule, unless otherwise defined in this Agreement, words and
phrases defined in the Master Trust Deed or the Series Supplement have
the same meaning in this Agreement. Where there is any inconsistency
in a definition between this
8
Agreement (on the one hand) and the Master Trust Deed or the Series
Supplement (on the other hand), this Agreement prevails. Subject to
Part 5(6)(h) of this Schedule, where there is any inconsistency in a
definition between the Master Trust Deed and the Series Supplement,
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) and/or an Other
Trust such words or phrases are to be construed in this Agreement,
where necessary, as being used only in relation to the Series Trust
(as defined in the Series Supplement) and/or the CBA Trust, as the
context requires.
(b) TRUSTEE CAPACITY:
(i) a reference to Party B is a reference to Party B in its capacity
as trustee of the Series Trust only, and in no other capacity;
and
(ii) a reference to the undertaking, assets, business or money of
Party B is a reference to the undertaking, assets, business or
money of Party B in the capacity referred to in paragraph (i)
only.
(c) DEFINITIONS: in Section 14:
(i) replace the definitions of "AFFECTED TRANSACTIONS" and "LOCAL
BUSINESS DAY" with the following:
""AFFECTED TRANSACTIONS" means, with respect to a Termination
Event:
(a) where an Early Termination Date is designated pursuant to
Part 1(g) of the Schedule, the Basis Swap; and
(b) where an Early Termination Date is designated following the
occurrence of any other Termination Event, all
Transactions."; and
""LOCAL BUSINESS DAY" has the same meaning as "BUSINESS DAY.";
and
(ii) insert the following new definitions:
"AMOUNTS OUTSTANDING" in relation to a Mortgage Loan means, at
any given time, the amount recorded at that time as the balance
of the Mortgage Loan in the Mortgage Loan System which balance
includes amounts which have been charged to the Mortgage Loan but
excludes amounts which have been or are, accrued against the
Mortgage Loan.
"BASIS PREPAYMENT BALANCE" means the amount then standing to the
credit of the Collections Account in respect of prepayments by
Party A pursuant to Sections 18(c) or (d) and which has not been
utilised pursuant to Section 2(f)(ii).
"BASIS SWAP" means the Transaction entered into between Party A,
Party B and the Manager on the terms specified in the form of
Confirmation set out in Annexure 1 (or as otherwise agreed
between Party A, Party B and the Manager);
"BASIS SWAP ADMINISTERED RATE" means in relation to a
Distribution Date the amount determined in accordance with the
following
9
calculation and expressed as a percentage:
BSAR=[(CVCI+(CBSII x BSS))/BSA] x 365/N
BSAR means the Basis Swap Administered Rate in relation to the
Distribution Date;
BSA means the Basis Swap Amount for the Calculation Period
ending immediately before that Distribution Date;
N means the number of days in the Swap Collection Period
ending immediately before that Distribution Date;
CVCI means the sum of the Variable Interest Earned in respect of
the Swap Collection Period ending immediately before each
Distribution Date since the previous Distribution Date;
CBSII means the sum of the Short-Term Investment Income in
respect of each Distribution Date since the previous
Distribution Date;
BSS means the Basis Swap Share determined in accordance with the
following calculation and expressed as a percentage:
BSS = BSA / (BSA + FRSA + OFRSA)
where:
BSA means the Basis Swap Amount for the Calculation Period
ending immediately before that Distribution Date;
FRSA means the Fixed Rate Swap Amount for the Calculation
Period ending immediately before that Distribution
Date;
OFRSA means the Other Fixed Rate Swap Amount for the
Calculation Period ending immediately before that
Distribution Date.
"BASIS SWAP AMOUNT" in relation to a Calculation Period means the
relevant quarterly proportion of the aggregate Amounts
Outstanding in relation to all Mortgage Loans being charged a
variable rate as certified by the Manager to Party B at the
opening of business on the Determination Date falling within the
relevant preceding Calculation Period.
"CONVERSION" means the conversion of a Mortgage Loan forming part
of the Assets of the Series Trust which is being charged interest
at a variable rate to a Mortgage Loan which is being charged
interest at a fixed rate.
"ELIGIBLE ACCOUNT" means an account in the name of Party B as
trustee of the Series Trust held with a financial institution
with short term credit ratings of P-1 by Xxxxx'x and A-1+ by
Standard & Poor's and includes the Collections Account to the
extent that the holder of the Collections Account is rated in
this manner.
10
"END DATE" means the date on which a Mortgage Loan is to cease
being charged interest at a fixed rate.
"FIXED INTEREST EARNED" in relation to a Distribution Date, and
the Swap Collection Period ending immediately prior to that
Distribution Date, means the aggregate of:
(a) all debit entries made during that Swap Collection Period to
the accounts established in the Servicer's records for the
Mortgage Loans forming part of the Assets of the Series
Trust representing interest charged at a fixed rate (plus
any interest off-set benefits in respect of Mortgage
Interest Saver Accounts which represents amounts which, if
not for the terms of the Mortgage Interest Saver Accounts,
would have been so debited during that Swap Collection
Period to those accounts to the extent paid by CBA pursuant
to clause 15.4 of the Series Supplement and deposited to the
Collections Account prior to that Distribution Date); and
(b) the aggregate, as at the close of business on the last day
of that Swap Collection Period, of all accrued but not
charged fixed rate interest on the Mortgage Loans forming
part of the Assets of the Series Trust less the aggregate,
as at the opening of business on the first day of that Swap
Collection Period, of all accrued but not charged fixed rate
interest on the Mortgage Loans forming part of the Assets of
the Series Trust.
"FIXED RATE PREPAYMENT BALANCE" means the amount then standing to
the credit of the Eligible Account in respect of prepayments by
Party A pursuant to Sections 17(a)(iii), (b)(i), (e)(i) or (g)
and which has not been utilised pursuant to Section 2(f)(i) or
repaid to Party A pursuant to Sections 17(e)(ii) or (h).
"FIXED RATE SWAP AMOUNT" in relation to a Calculation Period
means:
(a) the relevant quarterly proportion of the aggregate Amounts
Outstanding in relation to all Mortgage Loans (excluding
Mortgage Loans being charged a variable rate) as certified
by the Manager to Party B at the opening of business on the
Determination Date falling within the relevant preceding
Calculation Period;
(b) less the Other Fixed Rate Swap Amount in relation to the
relevant Calculation Period.
"FIXED RATE SWAP" means:
(a) the Transaction entered into between Party A, Party B and
the Manager on the terms specified in Annexure 2 (or as
otherwise agreed between Party A, Party B and the Manager);
and
(b) each Transaction entered into pursuant to Section 16 on the
terms specified in Annexure 3 (or as otherwise agreed
between Party A, Party B and the Manager);
"FIXED SWAP ADMINISTERED RATE" means in relation to a
Distribution
11
Date the amount determined in accordance with the following
calculation and expressed as a percentage:
FSAR=[(CFCI + (CFRSII x FRSS))/ FRSA] x 365/N
where:
FSAR means the Fixed Swap Administration Rate in relation to that
Distribution Date;
FRSA means Fixed Rate Swap Amount for the Calculation period
ending immediately preceding that Distribution Date;
NQ means the number of days in the Swap Collection Period
ending immediately before that Distribution Date;
CFCI means the sum of the Fixed Interest Earned in respect of the
Swap Collection Period ending immediately before each
Distribution Date since the previous Distribution Date;
CFRSII means the sum of the Short-Term Investment Income in
respect of each Distribution Date since the previous
Distribution Date;
FRSS means the Fixed Rate Swap Share determined in accordance
with the following calculation and expressed as a
percentage:
FRSS = (FRSA + OFRSA) / (BSA + FRSA + OFRSA)
where:
FRSA means the Fixed Rate Swap Amount for the Calculation
Period ending immediately before that Distribution
Date;
OFRSA means the Other Fixed Rate Swap Amount for the
Calculation Period ending immediately preceding that
Distribution Date;
BSA means the Basis Swap Amount for the Calculation Period
ending immediately before that Distribution Date.
"INTEREST RATE BASIS CAP" means the interest rate cap, if any,
entered into between Party A, Party B and the Manager on or prior
to the Closing Date.
"MASTER TRUST DEED" means the Master Trust Deed dated 8 October
1997 between Party B (as Trustee) and the Manager, as amended
from time to time.
"OTHER FIXED RATE SWAP AMOUNT" in relation to a Calculation
Period means the relevant quarterly proportion of the aggregate
Amounts Outstanding as at the opening of business on the
Determination Date falling within the preceding Calculation
Period in relation to each Mortgage Loan where one or more
further Fixed Rate Swaps have been entered into, and are then
current, to hedge the interest rate risk in
12
respect of the Mortgage Loan pursuant to Section 16(b).
"OUTSTANDING INTEREST RATE SWAP PREPAYMENT AMOUNT" means the sum
of the then Basis Prepayment Balance and the then Fixed Rate
Prepayment Balance.
"PRESCRIBED RATINGS" means:
(a) in respect of each Fixed Rate Swap, either a long term
rating of A2 or a short term rating of P-1 or higher by
Xxxxx'x and a short term rating of A-1 by S & P; and
(b) in respect of the Basis Swap, short term ratings of P-1 by
Xxxxx'x and A-1 by S&P.
"SERIES SUPPLEMENT" means the Series Supplement dated on or about
the date of this Agreement between Party A, Party B, Homepath Pty
Limited ABN 35 081 986 530 and the Manager.
"SERIES TRUST" means the Series 2005-2G Medallion Trust
constituted by the Master Trust Deed and the Series Supplement.
"SHORT-TERM INVESTMENT INCOME" in relation to a Distribution Date
means interest and other income received by Party B during the
Collection Period immediately preceding that Distribution Date in
respect of:
(a) the moneys standing to the credit of the Collections Account
(other than interest earned on the Collections Account
during the Collections Period in respect of the Cash Advance
Deposit, the Seller Deposit or the Interest Rate Swap
Provider Deposit as calculated, respectively, in accordance
with clauses 8.6 and 8.8 of the Series Supplement);
(b) amounts representing interest paid by the Servicer pursuant
to clause 22.5 of the Series Supplement; and
(c) Authorised Short-Term Investments held by the Series Trust
(whether or not reinvested).
"SWAP COLLECTION PERIOD" means:
(a) the period commencing on (and including) the Closing Date
and ending on (but excluding) the Determination Date
immediately preceding the first Distribution Date; and
(b) with respect to each subsequent Determination Date immediately
preceding a Distribution Date, the period commencing on (and
including) the previous Determination Date immediately preceding
a Distribution Date and ending on (but excluding) that
Determination Date.
"VARIABLE INTEREST EARNED" in relation to a Distribution Date,
and the Swap Collection Period ending immediately prior to that
Distribution Date, means the aggregate of:
(a) all debit entries made during that Swap Collection Period to
the accounts established in the Servicer's records for the
13
Mortgage Loans forming part of the Assets of the Series
Trust representing interest charged at a variable rate (plus
any interest off-set benefits in respect of Mortgage
Interest Saver Accounts which represents amounts which, if
not for the terms of the Mortgage Interest Saver Accounts,
would have been so debited during that Swap Collection
Period to those accounts to the extent paid by CBA pursuant
to clause 15.4 of the Series Supplement and deposited to the
Collections Account prior to that Distribution Date); and
(b) the aggregate, as at the close of business on the last day
of that Swap Collection Period, of all accrued but not
charged variable rate interest on the Mortgage Loans forming
part of the Assets of the Series Trust less the aggregate,
as at the opening of business on the first day of that Swap
Collection Period, of all accrued but not charged variable
rate interest on the Mortgage Loans forming part of the
Assets of the Series Trust.
"WEIGHTED MARGIN" in relation to a Distribution Date means the
amount, expressed as a percentage, determined by the following
calculation:
CA CB
WM = (--- x CAM) + (--- x CBM)
TSA TSA
where:
WM means the Weighted Margin in relation to that Distribution
Date;
CA means the A$ Equivalent of the aggregate Invested Amounts of
the Class A Notes on the Determination Date immediately
preceding that Distribution Date;
CAM means the Spread specified in paragraph 5.2 of the
confirmations for the Class A Currency Swap on that
Distribution Date;
CB means the aggregate of the Invested Amounts of the Class B
Notes on the Determination Date immediately preceding that
Distribution Date;
CBM means the Issue Margin in respect of the Class B Notes; and
TSA means the sum of CA and CB.
(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(6)(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
14
Document by a person other than Party B or other than
any other person referred to in Part 5(6)(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. as in accordance with a lawful court order or direction or
is otherwise required by law; or
C. is in accordance with any proper instruction or direction
of:
1) the Secured Creditors given at a meeting (or deemed
meeting) of Secured Creditors convened under the
Security Trust Deed; or
2) 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";
(v) a reference to "OTHER PARTY" will be construed as a reference to
"OTHER PARTIES".
(e) ISDA DEFINITIONS: The 2000 ISDA Definitions and the Annex to the 2000
ISDA Definitions, each 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(6)(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) the Series Supplement;
(iii) the Master Trust Deed;
(iv) this Agreement; and
(v) the 2000 ISDA Definitions.
(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
15
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.
(7) LIMITATION OF LIABILITY: Insert the following Section 15, 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 Series Trust and in
no other capacity. A liability incurred by Party B acting in its
capacity as trustee of the 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
the Series Trust out of which Party B is actually indemnified for the
liability. This limitation of Party B's liability applies despite any
other provision of this Agreement (other than Section 15(c)) and
extends to all liabilities and obligations of Party B in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to this Agreement.
(b) (CLAIMS AGAINST PARTY B): The parties other than Party B may not sue
Party B in respect of liabilities incurred by Party B acting in its
capacity as trustee of the Series Trust in any capacity other than as
trustee of the Series Trust, including seek the appointment of a
receiver (except in relation to Assets of the 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 the 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 Series Supplement
or any other 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 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 Transaction Documents for performing a variety
of obligations relating to the Series Trust. No act or omission of
Party B (including any related failure to satisfy its obligations or
any breach of a 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 Relevant
Person or any other person appointed by Party B under any Transaction
Document (other than a person whose acts or omissions Party B is
liable for in accordance with any Transaction Document) to fulfil its
obligations relating to the Series Trust or by any other act or
omission of a Relevant Party or any other such person.
(e) (NO AUTHORITY): No attorney, agent, receiver or receiver and manager
appointed in accordance with any Transaction Document has authority to
act on behalf of Party B in a way which exposes Party B to any
personal liability and no act or omission
16
of any such person will be considered fraud, negligence or wilful
default of Party B for the purposes of Section 15(c).
(f) (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.".
(8) QUARTERLY SWAP STATEMENT: Prior to each Distribution Date the Manager will
prepare and deliver to Party A and Party B a quarterly payment notice
containing the information specified in Annexure 4 of this Agreement.
(9) 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.
(10) INTEREST RATE SWAP AGREEMENT: The parties acknowledge and agree that for
the purposes of the Transaction Documents that this Agreement is an
Interest Rate Swap Agreement and Party A is an Interest Rate Swap Provider.
(11) PROCEDURES FOR ENTERING INTO TRANSACTIONS:
(a) 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 two
Confirmations substantially in the form set out in Annexure 1 and 2
respectively (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 each such Confirmation.
(b) Party B will enter into each Transaction in its capacity as trustee of
the Series Trust.
(12) AUTHORISED OFFICER: 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 Officer of that party.
(13) 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.
(14) FURTHER FIXED RATE SWAPS AND DOWNGRADING OF PARTY A: Insert the following
new
17
Sections 16, 17, 18 and 19 after Section 15:
"16. FURTHER FIXED RATE SWAPS
(a) If, pursuant to clause 16.6(j) of the Series Supplement, in order for
the Servicer to permit a Conversion the Servicer requests the Manager
(and the Manager directs Party B) to enter into a Fixed Rate Swap in
accordance with this Section 16 for a maximum term not exceeding 10
years, Party B and the Manager will be deemed to have satisfied their
respective obligations to enter into such Fixed Rate Swap if the
calculation of the Fixed Rate Swap Amount for the purposes of a Fixed
Rate Swap then existing includes the Amounts Outstanding in relation
to the Mortgage Loans the subject of the Conversion.
(b) If Section 16(a) does not apply and Party B and the Manager enter into
one or more further Fixed Rate Swaps pursuant to clause 16.6(j) of the
Series Supplement to hedge the interest rate risk of one or more
Mortgage Loans the subject of a Conversion, each such further Fixed
Rate Swap must:
(i) (NOTIONAL AMOUNT): have a Notional Amount for each Calculation
Period at least equal to the aggregate Amounts Outstanding as at
the first day of the relevant Calculation Period in relation to
the Mortgage Loans the subject of the Conversion which have the
same fixed rate and End Date;
(ii) (EFFECTIVE DATE): have as an Effective Date the Distribution Date
immediately following the last day of the Swap Collection Period
in which the Conversion occurs;
(iii) (TERMINATION DATE): have a scheduled Termination Date on or
prior to the tenth anniversary of its Trade Date unless the
Rating Agencies confirm that entering into the Fixed Rate Swap
for a longer period will not result in a reduction, qualification
or withdrawal of the credit ratings then assigned by them to the
Securities; and
(iv) (CONFIRMATION): in all other respects be confirmed as a Fixed
Rate Swap in accordance with this Agreement and the sample
Confirmation for Fixed Rate Swaps set out in Annexure 3 to this
Agreement.
The Spread applicable to the Floating Amounts, if any, in respect of each
Fixed Rate Swap entered into following a Conversion shall be the Weighted
Margin in respect of the relevant Distribution Date plus 0.70% per annum.
17. RATINGS DOWNGRADE OF PARTY A - FIXED RATE SWAPS: If, as a result of the
reduction or withdrawal of its credit rating by a Rating Agency, Party A
does not have the Prescribed Ratings in relation to the Fixed Rate Swaps:
(a) (ACTION BY PARTY A): Party A must:
(i) within 30 Business Days of Party A ceasing to have such
Prescribed Ratings if and while Party A has a long term credit
rating of at least A3 by Xxxxx'x; or
(ii) otherwise, and if sooner, within 5 Business Days of Party A
18
ceasing to have a long term credit rating of at least A3 by
Xxxxx'x,
(or such greater period as is agreed to in writing by the Rating
Agencies), at its cost alone and at its election:
(iii) lodge in an Eligible Account as a prepayment of its obligations
in respect of the Fixed Rate Swaps an amount equal to the Fixed
Rate Prepayment Amount as defined in Section 17(c);
(iv) enter into an agreement novating its rights and obligations under
this Agreement in respect of the Fixed Rate Swaps 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 Securities; or
(v) enter into such other arrangements in respect of all Fixed Rate
Swaps which are satisfactory 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 Securities.
(b) (FIXED RATE PREPAYMENT AMOUNT): For the purposes of this Section 17
the Fixed Rate Prepayment Amount will be an amount equal to the
greater of the following:
(i) where Party A does not have the Prescribed Rating in respect of
the Fixed Rate Swap from Xxxxx'x, an amount acceptable to Xxxxx'x
and sufficient to maintain the credit ratings assigned to the
Securities by Xxxxx'x immediately prior to the review of Party
A's credit rating; and
(ii) where Party A does not have the Prescribed Rating in respect of
the Fixed Rate Swap from S&P, the greater of:
A. zero;
B. CR; and
C. the net amount (if any) as determined by the Manager that is
expected to be due by Party A to Party B in respect of the
Fixed Rate Swap on the immediately following Distribution
Date (calculated on the basis that there will be no
prepayments made by the Mortgagors under the Mortgage Loans
then being charged interest at a fixed rate and no
conversion of the interest rate payable under any Mortgage
Loan from a fixed rate to a variable rate or from a variable
rate to a fixed rate during the relevant Swap Collection
Period).
Where:
CR = MM + V
19
"MM" means the aggregate of the mark-to-market value
(whether positive or negative) of all Fixed Rate Swaps
determined in accordance with Section 17(c) no earlier than
3 Business Days prior to the date that the Fixed Rate
Prepayment Amount is lodged.
"V" means the volatility buffer, being the value calculated
by multiplying the aggregate Notional Amounts (as defined in
the relevant Confirmations) of the Fixed Rate Swaps at the
most recent Distribution Date by the relevant percentage
obtained from the following table:
----------------------------------------------------------------------------
COUNTERPARTY MATURITIES UP TO 5 MATURITIES UP TO 10 MATURITIES GREATER
RATING YEARS YEARS THAN 10 YEARS
----------------------------------------------------------------------------
A-2 6.50% 8.25% 11.75%
---------------
A-3 10.00% 14.50% 31.75%
---------------
BB+ or lower 13.00% 25.75% 68.50
----------------------------------------------------------------------------
(c) (MARK-TO-MARKET VALUE): Party A must calculate the mark-to-market
value of the Fixed Rate Swaps by obtaining 2 bids from counterparties
with the Prescribed Ratings willing to provide the Fixed Rate Swaps in
the absence of Party A. The mark-to-market value may be a positive or
a negative amount. A bid has a negative value if the payment to be
made is from the counterparty to Party A and has a positive value if
the payment to be made is from Party A to the counterparty. The
mark-to-market value is the higher of the bids (on the basis that any
bid of a positive value is higher than any bid of a negative value).
(d) (RECALCULATION): Party A must recalculate the Fixed Rate Prepayment
Amount (including the CR and the mark-to-market value) on a weekly
basis. If:
(i) the recalculated Fixed Rate Prepayment Amount is greater than the
immediately preceding Fixed Rate Prepayment Amount, Party A must
make an additional prepayment in accordance with Section
17(a)(iii) within 3 Business Days of such recalculation so that
the Fixed Rate Prepayment Balance equals the recalculated Fixed
Rate Prepayment Amount; or
(ii) the recalculated Fixed Rate Prepayment Amount is less than the
immediately preceding Fixed Rate Prepayment Amount, Party B must
upon the direction of the Manager withdraw an amount from the
Eligible Account referred to in Section 17(a)(iii) and pay it to
Party A within 3 Business Days of receiving notice of such
recalculation so that the remaining Fixed Rate Prepayment Balance
after such withdrawal equals the recalculated Fixed Rate
Prepayment Amount.
(e) (INTEREST): Interest will be payable by Party B on any prepayment by
Party A under this Section 17 in accordance with clause 8.8 of the
Series Supplement.
(f) (UTILISATION): If the Fixed Rate Prepayment Balance is applied towards
an amount payable by Party A in accordance with Section 2(f)(i) Party
A
20
must within 3 Business Days make an additional prepayment in
accordance with Section 17(a)(iii) equal to the amount so applied.
(g) (REPAYMENT): If Party A regains the Prescribed Rating in respect of
the Fixed Rate Swaps Party B must, upon the direction of the Manager,
repay to Party A the then Fixed Rate Prepayment Balance.
(h) (VARIATION OF MANNER OF SATISFACTION): Notwithstanding that Party A
has elected to satisfy its obligations pursuant to this Section 17 in
a particular manner, it may subsequently and from time to time vary
the manner in which it satisfies its obligations pursuant to this
Section 17 (but will not be entitled to any additional grace period in
relation to such a variation).
18. DOWNGRADING OF PARTY A - BASIS SWAP
If, as a result of the reduction or withdrawal of its credit rating by a
Rating Agency, Party A does not have the Prescribed Rating in respect of
the Basis Swap, Party A must:
(a) (30 BUSINESS DAYS): within 30 Business Days of Party A ceasing to have
the Prescribed Rating if and while Party A has a short term credit
rating of at least P-1 by Xxxxx'x; or
(b) (5 BUSINESS DAYS): otherwise, and if sooner, within 5 Business Days of
Party A ceasing to have a short term credit rating of at least P-1 by
Xxxxx'x;
(or such greater period as is agreed to in writing by Xxxxx'x) (the
"POSTING PERIOD"), at its cost alone and at its election:
(c) (PREPAYMENT):
(i) on or before the last day of the Posting Period, pay to Party B
as a prepayment of its obligations under the Basis Swap for the
then Calculation Period, the relevant net amount (if any) that is
expected to be due by Party A to Party B at the end of that
Calculation Period; and
(ii) on each Distribution Date which follows such prepayment, pay to
Party B as a prepayment of its obligations under the Basis Swap
for the Calculation Period commencing on each such Distribution
Date, the net amount (if any) that is expected to be due by Party
A to Party B at the end of that Calculation Period less any Basis
Swap prepayments relating to any prior Distribution Date held in
the Basis Prepayment Balance at the end of that Distribution
Date,
as determined by the Manager, by depositing such net amount (if any)
into the Collections Account in cleared funds; or
(d) (OTHER ARRANGEMENTS): enter into some other arrangement satisfactory
to the Manager and Party B which the Rating Agencies confirm will not
result in a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Securities. A prepayment on the
first day of any Calculation Period by Party A under Section 18(c)
will constitute a prepayment of Party A's payment obligations (to the
extent thereof) in
21
respect of the Basis Swap for the Calculation Period commencing on the
relevant Distribution Date. Notwithstanding that Party A has elected
to satisfy its obligations pursuant to this Section 18 in a particular
manner, it may subsequently and from time to time vary the manner in
which it satisfies its obligations pursuant to this Section 18 (but
will not be entitled to any additional grace period in relation to
such a variation). Interest will be payable by Party B on any
prepayment by Party A under this Section 18 in accordance with clause
8.8 of the Series Supplement.
19. SECURITIES REPAID
On the date that the Invested Amount in respect of the Securities has been
reduced to zero, or the Securities are redeemed in full or are deemed to
have been redeemed in full under the Series Supplement, whichever is the
earlier, Party A's obligations under Sections 17 and 18 will cease and
Party B must pay to Party A on that date the Outstanding Interest Rate Swap
Prepayment Amount and interest on such payment.".
(15) TRANSFER:
Section 7 is replaced with:
"7. ESSENTIAL TERM: TRANSFER
(a) Neither the interests nor the obligations of either 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 any 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 party has agreed
to the variation of this Agreement 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) including,
but not limited to, 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); or
(iv) restricts Party B from granting security over a Transaction or
this Agreement pursuant to any Credit Support Document in
relation to Party B,
provided that the Rating Agencies have confirmed that such transfer,
variation or assignment by way of security (as the case may be) will
not result in a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Securities.
(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)."
22
(16) 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).
(17) INTEREST RATE BASIS CAP
The parties agree that any Interest Rate Basis Cap entered into between
them pursuant to clause 16.6(k) of the Series Supplement will be entered
into as a transaction governed by the terms of this Agreement.
(18) 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.
23
ANNEXURE 1A
FORM OF CONFIRMATION FOR BASIS SWAP - SERIES 2005-2G MEDALLION TRUST
[COMMONWEALTH BANK OF AUSTRALIA LETTERHEAD]
[DATE]
TO: Perpetual Trustee Company Limited Securitisation Advisory Services Pty.
Limited
ABN 42 000 001 007 ABN 88 064 133 946
as trustee of the Series Trust Level 7
Level 7 48 Xxxxxx Place
0 Xxxxxxxxxxx Xxxxxx XXXXXX XXX 0000
XXXXXX XXX 0000
Attention: Manager, Securitisation
Attention: Manager, Securitisation
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 (the
"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 (the "AGREEMENT"), between Commonwealth Bank of Australia, ABN
48 123 123 124 ("PARTY A"), Perpetual Trustee Company Limited as trustee of the
Series Trust ("PARTY B") and Securitisation Advisory Services Pty. Limited (the
"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:
OUR REFERENCE: [_____]
TRADE DATE: [_____]
EFFECTIVE DATE: [_____]
TERMINATION DATE: Means the earlier of:
(a) the Step-Up Date but only if :
(i) the Issue Margins (as defined in the
Offered Note Conditions in respect of
the Offered Notes) in respect of the
Offered Notes increase as and from
the Step-Up Date; and
(ii) the weighted average Mortgage Rate
applicable to the Mortgage Loans
forming part of the Assets of the
Series Trust which are charged
interest at a variable rate is equal
to or greater than the then Threshold
24
Rate.
(b) the date that all the Securities have been
redeemed in full; and
(c) the Termination Date for the Series Trust,
subject to the Following Business Day
Convention
NOTIONAL AMOUNT: With respect to each Calculation Period means
the Basis Swap Amount for that Calculation
Period
FLOATING ADMINISTERED RATE
AMOUNTS:
Floating Administered Rate Party B
Payer:
Floating Administered Rate Each Distribution Date
Payer Payment Dates:
Floating Rate Option: Basis Swap Administered Rate in relation to the
relevant Distribution Date
Floating Rate Day Count Actual/365 (Fixed)
Fraction:
FLOATING BANK BILL RATE
AMOUNTS:
Floating Bank Bill Rate Party A
Payer:
Floating Bank Bill Rate Each Distribution Date
Payer Payment Dates:
Floating Rate Option: Bank Bill Rate for the Accrual Period
corresponding to the Calculation Period
Spread: Weighted Margin in respect of the relevant
Distribution Date plus [____]% per annum
Floating Rate Day Count Actual/365 (Fixed)
Fraction:
BUSINESS DAY: Sydney
BUSINESS DAY CONVENTION: Following
CALCULATION AGENT: The Manager
OTHER PROVISIONS: For the purposes of the Agreement, the
Transaction to which this Confirmation relates
is the Basis Swap
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 this Confirmation to us by facsimile today.
Executed documents will follow by mail.
25
Yours sincerely
SIGNED for and on behalf of PERPETUAL SIGNED for and on behalf of
TRUSTEE COMPANY LIMITED, COMMONWEALTH BANK OF AUSTRALIA,
ABN 42 000 001 007, as trustee of ABN 48 123 123 124
the Series 2005-2G Medallion Trust
By: By:
---------------------------------- ------------------------------------
(Authorised Officer) (Authorised Officer)
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
SIGNED for and on behalf of
SECURITISATION ADVISORY SERVICES
PTY. LIMITED, ABN 88 064 133 946
By:
----------------------------------
(Authorised Officer)
Name:
-------------------------------
Title:
------------------------------
26
ANNEXURE 2
FORM OF CONFIRMATION FOR FIXED RATE SWAP - SERIES 2005-2G MEDALLION TRUST
[COMMONWEALTH BANK OF AUSTRALIA LETTERHEAD]
[DATE]
TO: Perpetual Trustee Company Limited Securitisation Advisory Services Pty.
Limited
ABN 42 000 001 007 ABN 88 064 133 946
as trustee of the Series Trust Level 7
Level 7 48 Xxxxxx Place
0 Xxxxxxxxxxx Xxxxxx XXXXXX XXX 0000
XXXXXX XXX 0000
Attention: Manager, Securitisation
Attention: Manager, Securitisation
SWAP CONFIRMATION - FIXED RATE SWAP
The purpose of this lFetter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below (the
"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 and
supplemented from time to time (the "AGREEMENT"), between Commonwealth Bank of
Australia, ABN 48 123 123 124 ("PARTY A"), Perpetual Trustee Company Limited as
trustee of the Series Trust ("PARTY B") and Securitisation Advisory Services
Pty. Limited (the "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:
OUR REFERENCE: [______]
TRADE DATE: [______]
EFFECTIVE DATE: [______]
TERMINATION DATE: Means the earlier of:
(a) the date that all the Securities have been
redeemed in full; and
(b) the Termination Date for the Series Trust,
subject to the Following Business Day
Convention
NOTIONAL AMOUNT: With respect to each Calculation Period means
the Fixed Rate Swap Amount for that Calculation
Period
FIXED AMOUNTS:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment Each Distribution Date
Dates:
27
Fixed Rate: The Fixed Swap Administered Rate in relation to
the relevant Distribution Date
Fixed Rate Day Count Actual/365 (Fixed)
Fraction:
FLOATING AMOUNTS:
Floating Rate Payer: Party A
Floating Rate Payer Payment Each Distribution Date
Dates:
Floating Rate Option: Bank Bill Rate for the Accrual Period
corresponding to the Calculation Period
Spread: Weighted Margin in respect of the relevant
Distribution Date plus [__]% per annum
Floating Rate Day Count Actual/365 (Fixed)
Fraction:
BUSINESS DAY: Sydney
BUSINESS DAY CONVENTION: Following
CALCULATION AGENT: The Manager
OTHER PROVISIONS: For the purposes of the Agreement, the
Transaction to which this Confirmation relates
is a Fixed Rate Swap
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 this Confirmation to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of PERPETUAL SIGNED for and on behalf of
TRUSTEE COMPANY LIMITED, COMMONWEALTH BANK OF AUSTRALIA,
ABN 42 000 001 007, as trustee of ABN 48 123 123 124
the Series 2005-2G Medallion Trust
By: By:
---------------------------------- ------------------------------------
(Authorised Officer) (Authorised Officer)
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
28
SIGNED for and on behalf of
SECURITISATION ADVISORY SERVICES
PTY. LIMITED, ABN 88 064 133 946
By:
----------------------------------
(Authorised Officer)
Name:
-------------------------------
Title:
------------------------------
29
ANNEXURE 3
FORM OF CONFIRMATION FOR OTHER FIXED RATE SWAPS - SERIES 2005-2G MEDALLION TRUST
[COMMONWEALTH BANK OF AUSTRALIA LETTERHEAD]
[DATE]
TO: Perpetual Trustee Company Limited Securitisation Advisory Services Pty.
Limited
ABN 42 000 001 007 ABN 88 064 133 946
as trustee of the Series Trust Level 7
Level 7 48 Xxxxxx Place
0 Xxxxxxxxxxx Xxxxxx XXXXXX XXX 0000
XXXXXX XXX 0000
Attention: Manager, Securitisation
Attention: Manager, Securitisation
SWAP CONFIRMATION - OTHER FIXED RATE 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 (the
"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 and
supplemented from time to time (the "AGREEMENT"), between Commonwealth Bank of
Australia, ABN 48 123 123 124 ("PARTY A"), Perpetual Trustee Company Limited as
trustee of the Series Trust ("PARTY B") and Securitisation Advisory Services
Pty. Limited (the "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:
OUR REFERENCE: [______]
TRADE DATE: [______]
EFFECTIVE DATE: [______]
TERMINATION DATE: Means the earlier of:
(a) the date that all the Securities have been
redeemed in full; and
(b) the Termination Date for the Series Trust,
subject to the Following Business Day
Convention
NOTIONAL AMOUNT: With respect to each Calculation Period means
the Other Fixed Rate Swap Amount for that
Calculation Period
FIXED AMOUNTS:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment Each Distribution Date
Dates:
30
Fixed Rate: The Fixed Swap Administered Rate in relation to
the relevant Distribution Date
Fixed Rate Day Count Actual/365 (Fixed)
Fraction:
FLOATING AMOUNTS:
Floating Rate Payer: Party A
Floating Rate Payer Payment Each Distribution Date
Dates:
Floating Rate Option: Bank Bill Rate for the Accrual Period
corresponding to the Calculation Period
Spread: Weighted Margin in respect of the relevant
Distribution Date plus [__]% per annum
Floating Rate Day Count
Fraction: Actual/365 (Fixed)
BUSINESS DAY: Sydney
BUSINESS DAY CONVENTION: Following
CALCULATION AGENT: The Manager
OTHER PROVISIONS: For the purposes of the Agreement, the
Transaction to which this Confirmation relates
is a Fixed Rate Swap
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 this Confirmation to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of PERPETUAL SIGNED for and on behalf of
TRUSTEE COMPANY LIMITED, COMMONWEALTH BANK OF AUSTRALIA,
ABN 42 000 001 007, as trustee of ABN 48 123 123 124
the Series 2005-2G Medallion Trust
By: By:
---------------------------------- ------------------------------------
(Authorised Officer) (Authorised Officer)
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
31
SIGNED for and on behalf of
SECURITISATION ADVISORY SERVICES
PTY. LIMITED, ABN 88 064 133 946
By:
----------------------------------
(Authorised Officer)
Name:
-------------------------------
Title:
------------------------------
32
ANNEXURE 4
QUARTERLY PAYMENT NOTICE - SERIES 2005-2G MEDALLION TRUST
TO: COMMONWEALTH BANK OF AUSTRALIA, ABN 48 123 123 124 ("PARTY A")
AND TO: PERPETUAL TRUSTEE COMPANY LIMITED, ABN 42 000 001 007, as trustee of the
Series Trust, ("PARTY B")
FROM: SECURITISATION ADVISORY SERVICES PTY. LIMITED, ABN 88 064 133 946 (the
"MANAGER")
ISDA MASTER AGREEMENT dated [__________________] between Party A, Party B and
the Manager (the "AGREEMENT")
Determination Date:
The Manager has determined and gives notice of the following:
1. BASIS SWAP
(a) Notional Amount for the current Calculation Period:
(b) Basis Swap Administered Rate for the current Calculation Period just
ended:
2. QUARTERLY RATE SET
Three-month Bank Bill Rate for the current Calculation Period:
Weighted Margin for the current Calculation Period:
3. FIXED RATE SWAPS
(a) Notional Amount for the current Calculation Period:
(b) Fixed Rate Administered Rate for the current Calculation Period just
ended:
4. BREAK COSTS
The Break Costs (if any) in respect of the Determination Date:
5. NET AMOUNT
(a) Net amount due for payment by Party A on the immediately following
Payment Date:
(b) Net amount due for payment by Party B on the immediately following
Payment Date:
Terms used and not otherwise defined in this notice have the same meaning as in
the Agreement, as amended, supplemented or novated from time to time.
33
SIGNED for and on behalf of
SECURITISATION ADVISORY SERVICES
PTY. LIMITED, ABN 88 064 133 946
By:
----------------------------------
(Authorised Officer)
Name:
-------------------------------
Title:
------------------------------
34
