EXHIBIT 10.5
(Multicurrency-Cross Border)
ISDA (R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of_______________
--------------------------------- and ---------------------------------------
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:-
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than by
payment), such delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless otherwise specified in
the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing,
(2) the condition precedent that no Early Termination Date in respect of
the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency: and
(ii) in respect of the same Transaction.
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:--
(1) promptly notify the other party ("Y") of such requirement:
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that such
deduction or withholding is required or receiving notice that such
amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes, whether
assessed against X or Y) will equal the full amount Y would have
received had no such deduction or withholding been required. However,
X will not be required to pay any additional amount to Y to the extent
that it would not be required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to Section
3(f) to be accurate and true unless such failure would not have
occurred but for (i) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect to a party
to this Agreement) or (II) a Change in Tax Law.
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(ii) Liability. If:--
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X.
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including
any related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to deliver
this Agreement and any other documentation relating to this Agreement that
it is required by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any Credit Support
Document to which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance do
not violate or conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been complied
with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding in
equity or at law)).
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(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation:
(ii) any other documents specified in the Schedule or any Confirmation:
and
(iii) upon reasonable demand by such other party, any form or document that
may be required or reasonably requested in writing in order to allow such
other party or its Credit Support Provider to make a payment under this
Agreement or any applicable Credit Support Document without any deduction
or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the
legal or commercial position of the party in receipt of such demand), with
any such form or document to be accurate and completed in a manner
reasonably satisfactory to such other party and to be executed and to be
delivered with any reasonably required certification.
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated,
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organised, managed and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of this Agreement is
located ("Stamp Tax Jurisdiction") and will indemnify the other party against
any Stamp Tax levied or imposed upon the other party or in respect of the other
party's execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the
other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it, if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such party
to comply with or perform any agreement or obligation to be complied
with or performed by it in accordance with any Credit Support
Document if such failure is continuing after any applicable grace
period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction of
all obligations of such party under each Transaction to which such
Credit Support Document relates without the written consent of the
other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party (1)
defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however
described) in respect of such party, any Credit Support Provider of such
party or any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of them
(individually or collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which has
resulted in such Specified Indebtedness becoming, or becoming capable at
such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on the
due date thereof in an aggregate amount of not less than the applicable
Threshold Amount under such agreements or instruments (after giving effect
to any applicable notice requirement or grace period):
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger): (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due: (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors:
(4) Institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof: (5) has a resolution passed for its winding-
up, official management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (6) seeks or becomes subject
to the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official
for it or for all or substantially all its assets: (7) has a secured
party take possession of all or substantially all its assets or has
a distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or substantially
all its assets and such secured party maintains possession, or any
such process is not dismissed, discharged, stayed or restrained, in
each case within 30 days thereafter, (8) causes or is subject to any
event with respect to it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events specified
in clauses (1) to (7) (inclusive): or (9) takes any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer:-
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fails to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event
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Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below:-
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a result
of a breach by the party of Section 4(b)) for such party (which will be the
Affected Party):-
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect of
such Transaction or to comply with any other material provision of
this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on which
a Transaction is entered into (regardless of whether such action is taken
or brought with respect to a party to this Agreement) or (y) a Change in
Tax Law the party (which will be the Affected Party) will, or there is a
substantial likelihood that it will, on the next succeeding Scheduled
Payment Date (1) be required to pay to the other party an additional amount
in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount is required to be deducted or withheld for or
on account of a Tax (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) and no additional amount is required to be paid in
respect of such Tax under Section 2(d)(i)(4) (other than by reason of
Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which the
other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another equity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate, will
be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event"
is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days after
it gives notice under Section 6(b)(i) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another of its
Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject to
and conditional upon the prior written consent of the other party, which
consent will not be withheld if such other party's policies in effect at
such time would permit it to enter into transactions with the transferee on
the terms proposed.
(iii) Two Affected Parties. If an illegality under Section 5(b)(i)(l) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If:--
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event Upon
Merger occurs and the Burdened Party is not the Affected Party.
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a Credit
Event Upon Merger or an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice to the other party and
provided that the relevant Termination Event is then
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continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date
so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(e) in respect of the Terminated Transactions will be
required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and
will provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and
specifying any amount payable under Section 6(e)) and (2) giving
details of the relevant account to which any amount payable to it is
to be paid. In the absence of written confirmation from the source of
a quotation obtained in determining a Market Quotation, the records of
the party obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an
Early Termination Date which is designated or occurs as a result of an
Event of Default) and on the day which is two Local Business Days
after the day on which notice of the amount payable is effective (in
the case of an Early Termination Date which is designated as a result
of a Termination Event). Such amount will be paid together with (to
the extent permitted under applicable law) interest thereon (before as
well as after judgment) in the Termination Currency, from (and
including) the relevant Early Termination Date to (but excluding) the
date such amount is paid, at the Applicable Rate. Such interest will
be calculated on the basis of daily compounding and the actual number
of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs,
the following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the parties
fail to designate a payment measure or payment method in the Schedule, it will
be deemed that "Market Quotation" or the "Second Method", as the case may be,
shall apply. The amount, if any, payable in respect of an Early Termination Date
and determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default:--
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the Non-
defaulting Party the excess, if a positive number, of (A) the sum
of the Settlement Amount (determined by the Non-defaulting Party)
in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the Non-
defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's Loss in respect of
this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A)
the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to the Non-
defaulting Party less (B) the Termination Currency Equivalent of the
Unpaid Amounts owing to the Defaulting Party. If that amount is a positive
number, the Defaulting Party will pay it to the Non-defaulting Party: if
it is a negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an amount
will be payable equal to the Non-defaulting Party's Loss in respect of
this Agreement. If that amount is a positive number, the Defaulting Party
will pay it to the Non-defaulting Party: if it is a negative number, the
Non-defaulting Party will pay the absolute value of that amount to the
Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event:-
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies, except
that, in either case, references to the Defaulting Party and to the Non-
defaulting Party will be deemed to be references to the Affected Party and
the party which is not the Affected Party, respectively, and, if Loss
applies and fewer than all the Transactions are being terminated, Loss
shall be calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:-
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions and an
amount will be payable equal to (I) the sum of (a) one-half of the
difference between the Settlement Amount of the party with the higher
Settlement Amount ("X") and the Settlement Amount of the party with
the lower Settlement Amount ("Y") and (b) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in respect
of this Agreement (or, if fewer than all the Transactions are being
terminated, in respect of all Terminated Transactions) and an amount
will be payable equal to one-half of the difference between the Loss
of the party with the higher Loss ("X") and the Loss of the party
with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it is a
negative number, X will pay the absolute value of that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early Termination
Date occurs because "Automatic Early Termination" applies in respect of a party,
the amount determined under this Section 6(e) will be subject to such
adjustments as are appropriate and permitted by law to reflect any payments or
deliveries made by one party to the other under this Agreement (and retained by
such other party) during the period from the relevant Early Termination Date to
the date for payment determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an amount
recoverable under this Section 6(e) is a reasonable pre-estimate of loss and not
a penalty. Such amount is payable for the loss of bargain and the loss of
protection against future risks and except as otherwise provided in this
Agreement neither party will be entitled to recover any additional damages as a
consequence of such losses.
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7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement): and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be
void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any tender in any currency
other than the Contractual Currency, except to the extent such tender results
in the actual receipt by the party to which payment is owed, acting in a
reasonable manner and in good faith in converting the currency so tendered into
the Contractual Currency, of the full amount in the Contractual Currency of all
amounts payable in respect of this Agreement. If for any reason the amount in
the Contractual Currency so received falls short of the amount in the
Contractual Currency payable in respect of this Agreement, the party required to
make the payment will, to the extent permitted by applicable law, immediately
pay such additional amount in the Contractual Currency as may be necessary to
compensate for the shortfall. If for any reason the amount in the Contractual
Currency so received exceeds the amount in the Contractual Currency payable in
respect of this Agreement, the party receiving the payment will refund promptly
the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner in good faith in converting the currency received into
the Contractual Currency, to purchase the Contractual Currency with the amount
of the currency of the judgment or order actually received by such party. The
term "rate of exchange" includes, without limitation, any premiums and costs of
exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the
party to which any payment is owed and will not be affected by judgement being
obtained or claim or proof being made for any other sums payable in respect of
this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
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9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable and
may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Conformation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
12
to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received.
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Xxx 0000 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any
13
reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to service
of process given in the manner provided for notices in Section 12. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
14
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to such
recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having executed,
delivered, performed its obligations or received a payment under, or enforced,
this Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for
performance with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, as the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting References
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have
been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of
the same day and time (without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than three
quotations are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation will
be the quotation remaining after disregarding the highest and lowest quotations.
For this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If fewer than
three quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of:--
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to
any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination ) produce a
commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
16
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety or
otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that
is imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market
value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
------------------------------------- --------------------------------------
(Name of Party) (Name of Party)
By:---------------------------------- By:-----------------------------------
Name: Name:
Title: Title:
Date: Date:
12
Draft: 14 March 2000
Series 2000-1G Medallion Trust
ISDA Master Agreement
(Currency Swap Agreement)
Date:
Securitisation Advisory Services Pty. Limited
Manager
Xxxxxxx Xxxxx Capital Services Inc.
MLCS and Party A
Perpetual Trustee Company Limited
Party B
Commonwealth Bank of Australia
CBA and Standby Swap Provider
XXXXXXX XXX
Lawyers
Levels 27-35
Xx.0 X'Xxxxxxx Xxxxxx
XXXXXX XXX 0000
Liability is limited by the Solicitors Scheme under the Professional Standards
Act 1994 NSW
SCHEDULE
to the
MASTER AGREEMENT
dated as of 2000 between
Securitisation Advisory Services Pty. Limited
ACN 064 133 946
("Manager")
and
Xxxxxxx Xxxxx Capital Services Inc.
("MLCS" and "Party A")
and
Perpetual Trustee Company Limited
ACN 000 001 007
as trustee of the Series 2000-1G Medallion Trust
("Party B")
and
Commonwealth Bank of Australia
ACN 123 123 124
("CBA" and "Standby Swap Provider")
Part 1. Termination Provisions.
In this Agreement:
(a) "Specified Entity" does not apply in relation to Party A or Party B.
(b) The definition of "Specified Transaction" is not applicable.
(c) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(b)(iv)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iv)
Section 5(a)(iv) Section 5(a)(vii)
(iii) Section 5(b)(ii) will not apply to Party A as the Affected Party
(subject to Part 5(6)(b) of this Schedule) and Section 5(b)(iii)
will not apply to Party A as the Burdened Party.
(d) The "Automatic Early Termination" provisions in Section 6(a) will not
apply to Party A or Party B.
1.
(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 Class A-1 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:
MLCS as Party A makes the following representation:
It is fully eligible for the benefits of the "Business Profits" or
"Industrial and Commercial Profits" provision, as the case may be, the
"Interest" provision or the "Other Income" provision (if any) of the
Specified Treaty with respect to any payment described in such
provisions and received or to be received by it in connection with this
Agreement and no such payment is attributable to a trade or business
carried on by it through a permanent establishment in the Specified
Jurisdiction.
"Specified Treaty" means the income tax treaty between the United
States and the Commonwealth of Australia.
"Specified Jurisdiction" means Commonwealth of Australia.
Party B and CBA as Standby Swap Provider and (on and from the Novation
Date) as Party A each makes the following representation:
2.
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 other 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, Party B, and the Any document or certificate On the earlier of (a)
Standby Swap Provider reasonably required or reasonably learning that such document
requested by a party in connection or certificate is required
with its obligations to make a and (b) as soon as reasonably
payment under this Agreement practicable following a
which would enable that party to request by a party.
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
(including, without limitation, in the case
of Party B, a duly executed and
completed United States Internal Revenue
Form W-8 BEN and W-8EC1 (or any
successor thereto) as requested by Party A with
respect to any payments received
by Party B.
(b) Other documents to be delivered are:
Party required to deliver Form/Document/Certificate Date by which to be delivered
document
Party A, Party B, the A certificate specifying the names, On the execution of this
Standby Swap Provider title and specimen Agreement and each Confirmation
and the Manager signatures of the persons unless that certificate has
authorised to execute this already been supplied and remains
Agreement and each Confirmation true and in effect and when the
or other communication in certificate is updated.
writing made pursuant to
this Agreement on its behalf.
Party A, Party B, the A legal opinion as to the Prior to the Closing Date.
Standby Swap Provider validity and enforceability of
and the Manager 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 Not less than 5 Business Days (or
each Credit Support Document such lesser period as Party A
specified in respect of Party agrees to) before the Trade Date
B and (without limiting any of the first occurring
obligation Party B may have Transaction and in the case of
under the terms of that Credit any amending documents
Support Document to notify
Party
3.
A of amendments thereto) a entered into subsequent to that
certified copy to Party A of date, promptly after each amending
any document that amends in document (if any) has been
any way the terms of that Credit entered into.
Support Document.
Party A A certified copy to Party B, Not less than 5 Business Days
the Standby Swap Provider and (or such lesser period as Party B
the Manager of each Credit and the Manager agree to) before the
Support Document (if any) Trade Date of the first occurring
specified in respect of Party A Transaction and in the case of any
and (without limiting any amending documents entered into
obligation Party A may have under subsequent to that date, promptly
the terms of that Credit after each amending document (if any)
Support Document to notify Party B, has been entered into.
the Standby Swap Provider or the
Manager of amendments thereto) a
certified copy to Party B, the Standby
Swap Provider and the Manager
of any document that amends
in any way the terms of that
Credit Support Document.
Other than the legal opinions, any Credit Support Document or any document
amending a Credit Support Document (but including any certifications in relation
to such documents), all documents delivered under this Part 3(b) are covered by
the Section 3(d) representation. For the purposes of this Part 3(b), a copy of a
document is taken to be certified if a director or secretary of the party
providing the document, or a person authorised to execute this Agreement or a
Confirmation on behalf of that party or a solicitor acting for that party has
certified it to be a true and complete copy of the document of which it purports
to be a copy.
4.
Part 4. Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this
Agreement:
Address for notices or communications to MLCS as Party A:
Address: Xxxxxxx Xxxxx World Headquarters, World Financial
Center, North Tower, 22nd Floor, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, U.S.A.
Attention: Swap Group
Telex No: 6716341
Answerback: MLB SCTR
Facsimile No.: 000 000-0000
Telephone No.: 000 000-0000
Additionally, a copy of all notices pursuant to Sections 5, 6 and 7 as
well as any changes to counterparty's address, telephone number or
facsimile number should be sent to the Standby Swap Provider at the
address set out below and to:
Address: CICG Counsel
Xxxxxxx Xxxxx World Headquarters, World Financial
Center, North Tower, 12th Floor, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, U.S.A.
Attention: Swaps Legal
Facsimile No.: 000 000-0000
Address: Xxxxxxx Xxxxx International (Australia) Limited
Xxxxx 00, 00-00 Xxxxxx Xxxxx, Xxxxxx XXX 0000.
Attention: Swaps Group
Facsimile No.: 612 9225 6767
Address for notices or communications to Party B:
Address: Perpetual Trustee Company Limited
Xxxxx 0
00 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation Services
Facsimile No.: 612 9221 7870
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
5.
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
Address for notices or communications to CBA as Standby Swap Provider
and (on and from the Novation Date) as Party A:
Address: Commonwealth Bank of Australia
Xxxxx 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
MLCS as Party A appoints as its Process Agent: Xxxxxxx Xxxxx
International (Australia) Limited, Xxxxx 00, 00-00 Xxxxxx Xxxxx,
Xxxxxx XXX 0000.
Party B appoints as its Process Agent: not applicable.
CBA as Standby Swap Provider and (on and from the Novation Date) as
Party A appoints as its Process Agent: not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this
Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent.
(i) The Calculation Agent is:
(A) in respect of all notices, determinations and calculations
in respect of amounts denominated in US$, the Agent Bank;
and
(B) in respect of all other notices, determinations and
calculations, the Manager.
(ii) All determinations and calculations by the Calculation Agent will:
(A) be made in good faith and in the exercise of its commercial
reasonable judgment; and
(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. Party B and the Manager
covenant 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.
6.
(f) Credit Support Document. Details of any Credit Support Document:
(i) In relation to MLCS as Party A: A Guarantee from Xxxxxxx Xxxxx
& Co. Inc ("M L & Co.") in the form attached hereto as Annexure
2.
(ii) In relation to Party B: the Security Trust Deed dated on or
about the date of this Agreement, between the Class A-1 Note
Trustee, Party B, the Security Trustee and the Manager (the
"Security Trust Deed").
(iii) In relation to CBA as (on and from the Novation Date) Party A:
not applicable.
(g) Credit Support Provider.
(i) In relation to MLCS as Party A: M L & Co.
(ii) In relation to Party B: None.
(iii) In relation to CBA as (on and from the Novation Date) Party A:
none.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws in force in New South Wales, except the Credit
Support Annex, which will be governed by and construed in accordance
with the laws in force in the State of New York as provided in
Paragraph 13(m)(iv) of the Credit Support Annex. Section 13(b)(i) is
deleted and replaced by the following:
"(i) submits to the non-exclusive jurisdiction of the courts of
New South Wales and courts of appeal from them; and".
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this
Agreement will apply in respect of all Transactions.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement. However, for the purposes of Section 3(c) Party B is deemed
not to have any Affiliates.
7.
Part 5. Other Provisions
(1) Payments: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party (if any)".
(b) In Section 2(a)(ii) the first sentence is deleted and replaced
with the following sentence:
"Unless specified otherwise in this Agreement, payments under this
Agreement by:
(i) Party A, will be made by 10.00 am (New York time); and
(ii) Party B, will be made by 4.00pm (Sydney time),
on the due date for value on that date in the place of the account
specified in the relevant Confirmation or otherwise pursuant to
this Agreement, in freely transferable funds, free of any set-off,
counterclaim, deduction or withholding (except as expressly
provided in this Agreement) and in the manner customary for
payment in the required currency".
(c) Insert a new paragraph (iv) in Section 2(a) immediately after
Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not
apply to a payment due to be made to a party if it has
satisfied all its payment obligations under Section 2(a)(i)
of this Agreement and has no future payment obligations,
whether absolute or contingent under Section 2(a)(i)."
(d) Add the following new sentence to Section 2(b):
"Each new account so designated shall be in the same tax
jurisdiction as the original account."
(e) Amend Section 2(d) as follows:
(i) Delete the word "if" at the beginning of Section 2(d)(i)(4)
and insert the following words instead:
"if and only if X is Party A and".
(ii) In Section 2(d)(ii) insert the words "(if and only if Y is
Party A)" after the word "then" at the beginning of the
last paragraph.
Without prejudice to the above amendments, it is agreed that Party
B:
(iii) is not obliged to pay:
(1) any additional amount to Party A under Section
2(d)(i)(4); or
(2) any amount to Party A under Section 2(d)(ii); and
(iv) will not receive payments under this Agreement or any
Transaction from which deductions or withholdings have been
made.
(2) Party B's Payment Instructions: Party B irrevocably authorises and
instructs Party A
8.
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 notified in writing by the Principal Paying Agent to Party
A for that purpose.
(3) Party A's Payment Instructions: Party A irrevocably authorises and
instructs Party B to make payment of:
(i) any amount denominated in A$ due from Party B to the account in
Sydney notified in writing by Party A to Party B from time to
time; and
(ii) any amount denominated in US$ due from Party B to the account
notified in writing by Party A to Party B from time to time.
(4) Representations: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the
words "creditors' rights generally" the following:
"(including in the case of a party being an ADI (as that term is
defined in the Reserve Bank Act, 1959 (Cth)) and section 13A(3) of
the Banking Act, 1959 (Cth)).";
(b) Relationship Between Parties. Each party will be deemed to
represent to the other parties on the date on which it enters into
a Transaction that (absent a written agreement between the parties
that expressly imposes affirmative obligations to the contrary for
that Transaction):-
(i) Non-Reliance. It is acting for its own account (in the
case of Party B, as trustee of the Series Trust), and it
has made its own independent decisions to enter into that
Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
(and in the case of Party B, also on the judgment of the
Manager) and upon advice from such advisers as it has
deemed necessary. It is not relying on any communication
(written or oral) of any other party as investment advice
or as a recommendation to enter into that Transaction; it
being understood that information and explanations related
to the terms and conditions of a Transaction will not be
considered investment advice or a recommendation to enter
into that Transaction. No communication (written or oral)
received from any other party will be deemed to be an
assurance or guarantee as to the expected results of that
Transaction.
(ii) Evaluation and Understanding. It is capable of evaluating
and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the
terms, conditions and risks of that Transaction. It is
also capable of assuming, and assumes, the risks of that
Transaction.
(iii) Status of Parties. No other party is acting as a fiduciary
or an adviser to it in respect of that Transaction.
(c) insert the following new paragraphs (g), (h) and (i) in Section 3
immediately after Section 3(f):
9.
(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 and perform its obligations under
this Agreement and each Credit Support
Document in relation to Party B in its
capacity as trustee of the Series Trust; and
(B) mortgage or charge the Assets of the Series
Trust in the manner provided in the Credit
Support Document in relation to Party B,
and its entry into this Agreement and each Credit
Support Document in relation to Party B is in the
interests of the beneficiaries of the Series Trust
and does not constitute a breach of trust.
(v) Good Title. It is the lawful owner of the Assets of
the Series Trust and, subject only to the Credit
Support Document in relation to Party B and any
Security Interest permitted under the Credit Support
Document in relation to Party B, those Assets are
free of all other Security Interests (except for
Party B's right of indemnity out of the Assets of
the Series Trust).
(vi) Eligible Swap Participant. The Series Trust was not
formed for the specific purpose of constituting an
eligible swap participant (as that term is used in
Part 35 of the General Regulations under the
Commodity Exchange Act).
(vii) Total Assets. As at close of business on the
Closing Date, following the issue of the Class A-1
Notes and provided that the aggregate Invested
Amount of the Class A-1 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:
10.
""(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(23) 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 Class A-1
Notes) after notice of such failure is given to Party A.".
(6) Termination Events:
(a) Illegality: In respect of each Transaction, the parties agree that
the imposition by any Governmental Agency of an Australian
jurisdiction of any exchange controls, restrictions or
prohibitions which would otherwise constitute an Illegality for
the purposes of Sections 5(b)(i) or 5(c) will not be an event
which constitutes an Illegality for the purposes of those Sections
so that, following the occurrence of that event:
(i) neither Party A nor Party B will be entitled to designate
an Early Termination Date in respect of that Transaction as
a result of that event occurring;
(ii) payment by Party B in accordance with Part 5(3) of the
Schedule will continue to constitute proper performance of
its payment obligations in respect of that Transaction; and
(iii) Party A's obligations in respect of that Transaction or
this Agreement will, to the extent permitted by law, be
unaffected by the occurrence of that event.
(b) Party A's limited rights in relation to Tax Event:
(i) Notwithstanding Part 1(c)(iii) of the Schedule, but subject
to Section 6(b)(ii), Party A may designate an Early
Termination Date if it is an Affected Party following a Tax
Event but only if the Class A-1 Note Trustee has notified
the parties in writing that it is satisfied that all
amounts owing to the Class A-1 Noteholders will be paid in
full on the date on which the Class A-1 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 the Class A-1 Currency
Swap 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 the Class A-1 Currency Swap 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 Class A-1 Notes; and
(B) that person has a long term credit rating assigned
by each Rating Agency of at least the long term
credit rating assigned by that Rating Agency to ML &
Co. as at the date of this Agreement or, otherwise,
the Standby Swap Provider provides its written
consent to the transfer.
(7) Termination:
(a) Termination by Trustee: Party B must not designate an Early
Termination Date without the prior written consent of the Class X-
0 Note Trustee.
(b) Termination by Class A-1 Note Trustee: If following an Event of
Default or Termination Event, Party B does not exercise its right
to terminate a Transaction, then the Class A-1 Note Trustee may
designate an Early Termination Date in relation to that
Transaction as if it were a party to this Agreement.
(c) Termination Payments by Party B: Notwithstanding Section 6(d)(ii),
any amount calculated as being due by Party B in respect of any
Early Termination Date under Section 6(e) will be payable on the
Distribution Date immediately following the date that such amount
would otherwise be payable under Section 6(d)(ii) (or will be
payable on that date if that date is a Distribution Date) except
to the extent that such amount may be satisfied from an earlier
distribution under the Security Trust Deed or the payment of an
upfront premium in respect of a Replacement Currency Swap in
accordance with Part 5(17)(b).
(d) Transfers to avoid Termination: Section 6(b)(ii) is amended as
follows:
(i) The following sentence is added at the end of the second
paragraph:
"However, if Party A is that other party it must, if so
requested by the Manager, use reasonable efforts (which
will not require Party A to incur a loss, excluding
immaterial, incidental expenses) to make such a transfer to
an Affiliate provided the Rating Agencies have given prior
written confirmation to the Manager that such a transfer
will not result in a reduction, qualification or withdrawal
of the credit ratings then assigned by them to the Class X-
0 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 Class A-1 Notes.
(e) Notice of Event of Default. For the purposes of Section 6(a) and
(b):
(i) Party A may only provide a notice specifying an Event of
Default to Party B as the Defaulting Party and may only
designate an Early Termination Date following a Termination
Event where Party A or Party B (or both) is the Affected
Party or the Burdened Party; and
(ii) the Standby Swap Provider may not issue a notice specifying
an Event of Default or designating an Early Termination
Date (except as Party A on or after the Novation Date).
(8) No Set-Off: Section 6(e) is amended by deleting the last sentence of the
first paragraph.
(9) Transfer: Section 7 is replaced with:
"7. Essential term: Transfer
(a) Neither the interests nor the obligations of any party in or under
this Agreement (including any Transaction) are capable of being
assigned or transferred (whether at law, in equity or otherwise),
charged or the subject of any trust (other than the Series Trust
or the trusts created pursuant to the Credit Support Document in
relation to Party B) or other fiduciary obligation. Any action by
a party which purports to do any of these things is void.
(b) Nothing in this Section 7:
(i) restricts a transfer by a party after the other parties
have agreed to the variation of this Agreement in
accordance with Part 5(20) to the extent necessary to
permit such transfer;
(ii) restricts a novation of the interests and obligations of a
party in or under this Agreement (including any
Transaction) for the purposes of giving effect to a
transfer under Section 6(b)(ii);
(iii) restricts a transfer by a party of all or any part of its
interest in any amount payable to it from a Defaulting
Party under Section 6(e);
(iv) restricts a transfer by Party B or the Manager to a
Substitute Trustee or Substitute Manager, respectively, in
accordance with the Master Trust Deed;
(v) restricts Party B from granting security over a Transaction
or this Agreement pursuant to any Credit Support Document
in relation to Party B; or
(vi) limits Parts 5(6)(b)(ii), 5(23), 5(24), 5(25) or 5(26).
(c) Each party acknowledges that the other party enters into this
Agreement and each Transaction on the basis that this Section 7
must be strictly observed and is essential to the terms of this
Agreement (including each Transaction)."
(10) Facsimile Transmission: In Section 12:
(a) delete Section 12(a)(ii); and
(b) replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission:
(A) in the case of any notice or other communication
pursuant to Parts 5(24), (25) or (26), on the date
that transmission is received by a responsible
employee of the recipient in legible form (it being
agreed that the burden of proving receipt will be on
the sender and will not be met by a transmission
report generated by the sender's facsimile machine);
or
(B) otherwise, on the date a transmission report is
produced by the machine from which the facsimile was
sent which indicates that the facsimile was sent in
its entirety to the facsimile number of the
recipient notified for the purpose of this Section
unless the recipient notifies the sender within one
Business Day of the facsimile being sent that the
facsimile was not received in its entirety in
legible form;".
(11) Definitions
In this Agreement, unless the contrary intention appears:
(a) Master Trust Deed, Class A-1 Note Conditions and Series
Supplement: subject to Part 5(11)(h), unless defined in this
Agreement words and phrases defined in the Master Trust Deed, the
Class A-1 Note Conditions and the Series Supplement have the same
meaning in this Agreement. Subject to Part 5(11)(h), where
there is any inconsistency in a definition between this Agreement
(on the one hand) and the Master Trust Deed, the Class A-1 Note
Conditions 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 or the Class A-1 Note Conditions (on the other
hand), the Series Supplement or the Class A-1 Note Conditions, as
applicable, prevail over the Master Trust Deed in respect of the
Series Trust. Where there is an inconsistency in a definition
between the Class A-1 Note Conditions and the Series Supplement,
the Series Supplement prevails over the Class A-1 Note Conditions.
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 11(b)(i) only;
(c) Definitions: in Section 14:
(i) replace the definitions of "Affected Transactions" and
"Local Business Day" with the following:
""Affected Transactions" means, with respect to a
Termination Event, all Transactions."
""Local Business Day" has the same meaning as "Business
Day"."
(ii) insert the following new definitions:
"A$ Class A-1 Unpaid InterestPayment" 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.
"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.
"Class A-1 Currency Swap" means the Transaction entered
into between Party A, Party B, the Standby Swap Provider
and the Manager on the terms specified in the Confirmation
set out in Annexure 1 (or as otherwise agreed between Party
A, Party B, the Standby Swap Provider and the Manager).
"Commission" has the same meaning as in the Class A-1 Note
Trust Deed.
"Credit Support Annex" means the Credit Support Annex
annexed to this Agreement.
"Determination Time" in relation to a Distribution Date
means on or about 11.00am Sydney time 1 Business Day prior
to that Distribution Date.
"Inconvertibility Event" means any event beyond the control
of CBA that makes it impossible for CBA to convert to U.S.
Dollars through customary legal channels an amount of
Australian Dollars sufficient to fulfil CBA's obligations
under this Agreement and the Class A-1 Currency Swap.
"Joint Ratings" means the highest possible jointly
supported short term credit rating or long term credit
rating, as applicable, that can be determined in relation
to Party A and the Standby Swap Provider by Xxxxx'x, S&P
and Fitch IBCA in accordance with Xxxxx'x, S&P's and Fitch
IBCA's respective approaches to jointly supported
obligations provided that if either Party A or the Standby
Swap Provider has a long term credit rating of less than
BBB from S&P the Joint Ratings from S&P will be the credit
ratings of the other party.
"Master Trust Deed" means the Master Trust Deed dated 8
October 1997 between Party B and the Manager, as amended
from time to time.
"Novation Date" means the date upon which the obligations
of MLCS as Party A under this Agreement and the Class A-1
Currency Swap are novated to the Standby Swap Provider
pursuant to Part 5(25)(c).
"Prescribed Rating Period" means in relation to the Joint
Ratings determined by the Rating Agencies:
(a) a period of 30 Business Days from the date of
determination of the relevant credit rating where
any Joint Rating immediately after that
determination is less than the relevant Prescribed
Rating but greater than or equal to a short term
credit rating of A-1 by S&P and long term credit
ratings of A- by S&P, A3 by Xxxxx'x and A- by Fitch
IBCA, as the case may be; and
(b) a period of 5 Business Days from the date of
determination of the relevant credit rating where
any Joint Rating immediately after that
determination is less than a short term credit
rating of A-1 by S&P or less than a long term credit
rating of A- by S&P, A3 by Xxxxx'x and A- by Fitch
IBCA.
"Prescribed Ratings" means a short term credit rating of
A - 1+ by S&P or a long term credit rating of AA- by S&P
and long term credit ratings of AA- by Fitch IBCA and A2 by
Xxxxx'x.
"Series Supplement" means the Series Supplement dated on or
about the date of this Agreement between CBA, Party B and
the Manager.
"Series Trust" means the Series 2000-1G Medallion Trust
constituted by the Master Trust Deed and the Series
Supplement.
(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";
(v) a reference to "other party" will be construed as a
reference to "other parties"; and
(vi) a reference to a credit rating of Party A, where Party A is
MLCS, means the higher of the relevant credit ratings of
MLCS and M L & Co.
(e) ISDA Definitions: The 1991 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc ("ISDA")), as
supplemented by the 1998 Supplement to the 1991 ISDA Definitions
(as published by ISDA) (the "1991 ISDA Definitions") as at the
date of this Agreement are incorporated into this Agreement and
each Confirmation.
(f) Inconsistency: Subject to Part 5(11)(a), unless specified
otherwise, in the event of any inconsistency between any two or
more of the following documents in respect of a Transaction they
will take precedence over each other in the following order in
respect of that Transaction:
(i) any Confirmation;
(ii) this Schedule and Section 13 ("Elections and Variables") of
the Credit Support Annex (as applicable);
(iii) the 1991 ISDA Definitions; and
(iv) the printed form of the 1992 ISDA Master Agreement and the
printed form of the ISDA Credit Support Annex which form
part of this Agreement.
(g) Swap Transaction: Any reference to a:
(i) "Swap Transaction" in the 1991 ISDA Definitions is deemed
to be a reference to a "Transaction" for the purpose of
interpreting this Agreement or any Confirmation; and
(ii) "Transaction" in this Agreement or any Confirmation is
deemed to be a reference to a "Swap Transaction" for the
purpose of interpreting the 1991 ISDA Definitions.
(h) Incorporated Definitions and other Transaction Documents and
provisions: Where in this Agreement a word or expression is
defined by reference to its meaning in another Transaction
Document or there is a reference to another Transaction Document
or to a provision of another Transaction Document, any amendment
to the meaning of that word or expression or to that other
Transaction Document or provision (as the case may be) will be of
no effect for the purposes of this Agreement unless and until the
amendment is consented to by the parties to this Agreement.
(12) Limitation of Liability: Insert the following 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 xxx Party B in respect of liabilities incurred by
Party B acting in its capacity as trustee of the Series
Trust in any other capacity other than as trustee of the
Series Trust, including seeking 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
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 Relevant Person or any
other person appointed by Party B under a 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 the Manager or the
Servicer or any other such person.
(e) (No obligation):
(i) (Obligations under this Agreement or any Transaction
Document): Party B is not obliged to enter into any
commitment or obligation under this Agreement or any
Transaction Document unless Party B's liability is
limited in a manner which is consistent with this
Section 15. For the avoidance of doubt, Party B
agrees and acknowledges that its liability for any
commitment or obligation it has entered into under
this Agreement is limited in a manner which is
consistent with this Section 15.
(ii) (Obligations not contained in this Agreement or any
Transaction Document): Party B is not obliged to
enter into any commitment or obligation contemplated
by but not contained in this Agreement or any
Transaction Document unless Party B's liability in
relation to that commitment or obligation is limited
in a manner satisfactory to Party B in its absolute
discretion."
(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), is authorised by that other party.
(16) Recorded Conversations: Each party:
(a) consents to the electronic recording of its telephone
conversations with the other party (or any of its associated
persons) with or without the use of an automatic tone warning
device;
(b) will provide transcripts of such recordings (if any) upon
reasonable request by the other party (at the reasonable cost of
the party requesting); and
(c) acknowledges that neither is obligated to maintain copies of such
recordings and transcripts for the benefit of the other party.
(17) Replacement Currency Swap Agreement:
(a) If any Transaction under this Agreement is terminated prior to the
day upon which the Class A-1 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 Class A-1 Notes; and
(ii) the liability of Party B under the Replacement Currency
Swap is limited to at least the same extent that its
liability is limited under that Transaction.
(b) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party B to
Party A upon termination of the Transaction referred to in Part
5(17)(a), Party B must direct the Replacement Currency Swap
provider to pay any upfront premium to enter into the Replacement
Currency Swap due to Party B directly to Party A in satisfaction
of and to the extent of Party B's obligation to pay the Settlement
Amount to Party A, and to the extent such premium is not greater
than or equal to the Settlement
Amount, the balance may be satisfied by Party B as an Expense.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party A to
Party B upon termination of the Transaction referred to in Part
5(17)(a), Party B may direct Party A to pay that amount to the
Replacement Currency Swap provider in satisfaction of or towards
and to the extent of Party B's obligation (if any) to pay an
upfront premium to the Replacement Currency Swap provider to enter
into the Replacement Currency Swap.
(d) The obligations of Party B (and the rights of Party A) under this
Part 5(17) will survive the termination of this Agreement.
(18) Knowledge or Awareness: Subject to Section 12(a), each party will only
be considered to have knowledge or awareness of, or notice of, a thing or
grounds to believe anything by virtue of the officers of that party or
any Related Body Corporate of that party which have the day to day
responsibility for the administration or management of that party's (or a
Related Body Corporate of that party's) obligations in relation to the
Series Trust or the Transactions entered into under this Agreement having
actual knowledge, actual awareness or actual notice of that thing, or
grounds or reason to believe that thing (and similar references will be
interpreted in this way).
(19) Restrictions on Party B's Rights: Party B must at all times act in
accordance with the instructions of the Manager in relation to this
Agreement.
(20) Amendment to this Agreement: None of Party A, Party B, the Standby Swap
Provider or the Manager may amend this Agreement unless the Rating
Agencies have confirmed in writing that the proposed amendment will not
result in a reduction, qualification or withdrawal of the credit ratings
then assigned by them to the Class A-1 Notes.
(21) Appointment of Manager: Party B hereby exclusively appoints the Manager
as its attorney to act on Party B's behalf and exercise all rights and
powers of Party B with respect to this Agreement. Without limiting the
generality of the foregoing, the Manager may issue and receive on behalf
of Party B all notices, certificates and other communications to or by
Party A under this Agreement until such time as Party B serves written
notice on Party A of the revocation of the Manager's authority to act on
behalf of Party B in accordance with this Part 5(21) of the Schedule.
(22) Notifications to Party A: On or before the Determination Time in respect
of each Distribution Date the Manager must notify Party A and the Standby
Swap Provider in writing of:
(a) (A$ Class A-1 Principal Amount): 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) (A$ Class A-1 Interest Payment): the A$ Class A-1 Interest Payment
in relation to that Distribution Date;
(c) (Principal Charge-off): 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 Class A-1 Note Conditions; and
(d) (A$ Class A-1 Unpaid Interest Payment): the A$ Class A-1 Unpaid
Interest Payment (if any) in relation to that Distribution Date.
(23) Ratings Downgrade:
(a) (Downgrade): If, as a result of the reduction or withdrawal of the
credit rating of Party A or the Standby Swap Provider a Joint
Rating is less than the relevant Prescribed Rating, Party A must
by the expiry of the Prescribed Rating Period in
relation to the credit ratings assigned by the Rating Agencies to
Party A and the Standby Swap Provider at that time (or such
greater period as is agreed to in writing by each relevant Rating
Agency), at its cost alone and at its election:
(i) provided that the short term Joint Rating by S&P is greater
than or equal to A-1 or the long term Joint Rating by S&P
is greater than or equal to A- and the long term Joint
Rating by Fitch IBCA 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(23)(b); or
(ii) enter into, and procure that the Standby Swap Provider
enters into, an agreement novating Party A's and/or the
Standby Swap Providers' rights and obligations under this
Agreement and the Class A-1 Currency Swap to a replacement
counterparty acceptable to the Manager and the Standby Swap
Provider and which the Rating Agencies confirm in writing
will not result in a reduction, qualification or withdrawal
of the credit ratings then assigned by them to the Class X-
0 Notes; or
(iii) enter into, or procure that the Standby Swap Provider
enters into, such other arrangements in respect of the
Class A-1 Currency Swap 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 Class A-1 Notes.
Notwithstanding that Party A has elected to satisfy its
obligations pursuant to this Part 5(23)(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(23)(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(23) the
Collateral Amount will be an amount equal to the greater of the
following:
(i) zero;
(ii) CCR; and
(iii) an amount acceptable to Xxxxx'x and Fitch IBCA and
sufficient to maintain the credit rating assigned to the
Class A-1 Notes by Xxxxx'x and Fitch IBCA immediately prior
to the review of the Joint Rating.
Where:
CCR = CR x 1.030
CR = MTM + VB
MTM means the xxxx-to-market value (whether positive or negative)
of the Class A-1 Currency Swap determined in accordance with
Part 5(23)(c) no earlier than 3 Business Days prior to the date
that the Collateral Amount is lodged.
VB means the volatility buffer, being the value calculated by
multiplying the Calculation Amount specified in paragraph 5.1
of the Class A-1 Currency Swap as at the most recent Distribution
Date by the relevant percentage obtained from the following table:
21.
----------------------------------------------------------------------------------------------
Party A's and Where the period Where the period Where the period
the Standby between the date of between the date between the date of
Swap recalculation and the of recalculation recalculation and the
Provider's Scheduled Maturity and the Scheduled Scheduled Maturity
jointly Date is less than or Maturity Date is Date is greater than
supported equal to 5 years greater than 5 10 years
long term years and less
credit rating than or equal to 10
by S&P years
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
A+ 1.05 1.75 3.0
----------------------------------------------------------------------------------------------
A 1.35 2.45 4.5
----------------------------------------------------------------------------------------------
A- 1.5 3.15 6
----------------------------------------------------------------------------------------------
(c) (Xxxx to Market Value): Party A must calculate the xxxx-to-market
value of the Class A-1 Currency Swap by obtaining 2 bids from
counterparties with the Prescribed Ratings willing to provide the
Class A-1 Currency Swap in the absence of Party A. The xxxx-to-
market value may be a positive or a negative amount. A bid has a
negative value if the payment to be made is from the counterparty
to Party A and has a positive value if the payment to be made is
from Party A to the counterparty. The xxxx-to-market value is the
higher of the bids (on the basis that any bid of a positive value
is higher than any bid of a negative value).
(d) (Recalculation): Party A must recalculate the Collateral Amount
(including the CCR and the xxxx-to-market value) on each Valuation
Date. If:
(i) the Value on such Valuation Date of all Posted Credit
Support held by the Secured Party is less than the
recalculated Collateral Amount, the difference is the
Delivery Amount in relation to that Valuation Date; or
(ii) the Value on such Valuation Date of all Posted Credit
Support held by the Secured Party is greater than the
recalculated Collateral Amount, the difference is the
Return Amount in relation to that Valuation Date.
(f) (Definitions): For the purposes of this Part 5(23) "Delivery
Amount", "Posted Credit Support", "Secured Party", "Value" and
"Valuation Date" have the same meaning as in the Credit Support
Annex.
(24) Transfer: Notwithstanding the provisions of Section 7, MLCS as Party A
may transfer all its rights powers and privileges and all its unperformed
and future obligations under this Agreement and the Class A-1 Currency
Swap to any subsidiary of ML & Co ("Transferee") by delivering to the
Standby Swap Provider, Party B and the Manager a notice expressed to be
given under this provision signed by both MLCS as Party A and the
Transferee and an executed guarantee of the Transferee's transferred
obligations in the form of Annexure 2. Upon delivery of those documents
to Party B:
(a) (Party A's rights terminate): MLCS's rights powers privileges and
obligations as Party A under this Agreement and the Class A-1
Currency Swap terminate;
(b) (Transfer and Assumption): MLCS will be taken to have transferred
its rights powers and privileges under this Agreement and the
Class A-1 Currency Swap to the Transferee and the Transferee will
be taken to have assumed obligations equivalent to those Party A
had under this Agreement and the Class A-1 Currency Swap;
(c) (Release): Party B will be taken to have released MLCS as Party A
from all its unperformed and future obligations under this
Agreement and the Class A-1 Currency Swap; and
(d) (Documents): this Agreement and the Confirmation relating to the
Class A-1 Currency Swap shall be construed as if the Transferee
was a party to it in place of MLCS.
22.
A Transferee may utilise this provision as Party A. A transfer under
this Part 5(24) will be of no force or effect until each Rating Agency
confirms in writing that such transfer will not result in a reduction,
qualification or withdrawal of the credit ratings then assigned by them
to the Class A-1 Notes and until the Standby Swap Provider has given its
written consent to such a transfer (such consent not to be withheld if
the Transferee is willing to enter into collateral arrangements between
the Transferee and the Standby Swap Provider on substantially the same
terms as have been agreed between MLCS and the Standby Swap Provider in
the Supplemental Agreement to ISDA Master Agreement between the Standby
Swap Provider, MLCS and ML & Co. dated on or about the date of this
Agreement).
(25) Standby Swap Provider:
(a) (Commitment): Notwithstanding any other provision in this
Agreement to the contrary, if MLCS as Party A fails to:
(i) make, when due, any payment required to be made by it to
Party B under the Class A-1 Currency Swap; or
(ii) comply with any obligation under Part 5(23) within the
required period,
then:
(iii) as soon as practicable following such failure but, in
relation to a failure to pay under the Class A-1 Currency
Swap, in any event no later than 11.00 am (New York time)
on the due date for such payment or, in relation to a
failure to comply with an obligation under Part 5(23),
no later than the Business Day following the due date for
compliance with such obligation, Party B must notify MLCS
as Party A and the Standby Swap Provider in writing of such
failure and:
(A) the amount of the defaulted payment and the basis of
calculation of the defaulted payment; or
(B) details of the failure to comply with the obligation
under Part 5(23),
as the case may be; and
(iv) as soon as reasonably practicable after its receipt of such
notice (and in any event, in relation to a failure to pay
under the Class A-1 Currency Swap, no later than 2.00 pm
(New York time) on the due date for such payment, and, in
relation to a failure to comply with an obligation under
Part 5(23), no later than 3 Business Days after the
failure to comply with such obligation, provided, in each
case, that notice has been given by Party B by the required
times in accordance with Part 5(25)(a)(iii)) the Standby
Swap Provider must:
(A) in relation to a failure to pay under the Class A-1
Currency Swap, pay to Party B the amount then owing
by MLCS as Party A to Party B under the Class A-1
Currency Swap by depositing such amount into the
Collections Account in cleared funds; and
(B) in relation to a failure to comply with an obligation
under Part 5(23), satisfy the obligations of MLCS
as Party A under Part 5(23).
(b) (Reimbursement): If on any day the Standby Swap Provider:
(i) makes a payment pursuant to Part 5(25)(a)(iv)(A),
MLCS as Party A must by 2.00 pm (New York time) on
the next following Business Day (or such other time
as the Standby
23.
Swap Provider may agree in writing) pay to the
Standby Swap Provider an amount equal to that payment
by depositing such amount into the account which the
Standby Swap Provider nominates for this purpose in
cleared funds; or
(ii) satisfies the obligations of MLCS as Party A pursuant
to Part 5(25)(a)(iv)(B), MLCS as Party A must:
(A) within 3 Business Days, fulfil its obligations
under Part 5(23) such that any collateral
lodged by the Standby Swap Provider pursuant to
Part 5(23)(a)(i) or any other arrangement made
by the Standby Swap Provider pursuant to Part
5(23)(a)(iii) may be returned to the Standby
Swap Provider or will cease (but MLCS as Party A
will have no obligations to the Standby Swap
Provider under this Part 5(25)(b)(ii)(A) in
relation to any novation pursuant to Part
5(23)(a)(ii)); and
(B) upon demand by the Standby Swap Provider,
indemnify the Standby Swap Provider from and
against any cost or liability incurred by the
Standby Swap Provider in satisfying those
obligations.
(c) (Novation): If:
(i) MLCS as Party A defaults in its payment obligations
under Part 5(25)(b)(i) for reasons other than
solely a technical, computer or similar error outside
the control of Party A and such default is not
remedied on or before one Business Day after such
failure; or
(ii) MLCS as Party A fails to fulfil its obligations under
Part (25)(b)(ii),
then:
(iv) MLCS's rights, powers, privileges and obligations as
Party A under this Agreement and the Class A-1
Currency Swap terminate other than its rights,
powers, privileges and obligations pursuant to Part
5(25)(d) and Paragraph 13(m)(vii) of the Credit
Support Annex;
(v) subject to Part 5(25)(c)(vii), MLCS will be taken to
have transferred its rights powers and privileges as
Party A under this Agreement and the Class A-1
Currency Swap to the Standby Swap Provider and the
Standby Swap Provider will be taken to have assumed
obligations equivalent to those that MLCS as Party A
had under this Agreement and the Class A-1 Currency
Swap;
(vi) Party B and the Standby Swap Provider will be taken
to have released MLCS as Party A from all its
unperformed and future obligations under this
Agreement and the Class A-1 Currency Swap other than
its present and future obligations pursuant to Part
5(25)(d);
(vii) this Agreement and the Confirmation relating to the
Class A-1 Currency Swap shall be construed as if the
Standby Swap Provider was a party to it in place of
Party A except that:
(A) references to "MLCS as Party A" will not apply to
the Standby Swap Provider as Party A;
24.
(B) references to any jointly supported credit rating
of Party A and the Standby Swap Provider will be
deemed to be references to the relevant credit
rating of the Standby Swap Provider;
(C) without limiting Part 5(25)(c)(vii)(A), Part
5(24), this Part 5(25) and Paragraph 13(m)(vii)
of the Credit Support Annex will not apply to the
Standby Swap Provider as Party A;
(D) the Standby Swap Provider must (if it has not
already done so) satisfy the obligations of Party
A under Part 5(23)(a) within 10 Business Days of
the Novation Date on the basis that any
collateral lodged by MLCS as Party A or any other
arrangements made by MLCS as Party A pursuant to
Part 5(23)(a)(iii) will be returned to MLCS as
Party A or will cease (but such collateral will
only be returned and such arrangements will only
cease upon compliance by the Standby Swap
Provider with its obligations under this Part
5(25)(c)(vii)(D) and otherwise, where applicable,
in accordance with Paragraph 13(m)(vii) of the
Credit Support Annex or the terms of such
arrangements).
(d) (Termination Payment): Following novation under Part
[]5(25)(c) MLCS as Party A must pay the Standby Swap
Provider or the Standby Swap Provider must pay MLCS as
Party A an amount (the "Novation Settlement Amount") being:
(i) in the case of payment by MLCS as Party A to the
Standby Swap Provider, an amount equal to the amount
(if any) that would be payable by Party A to Party B;
and
(ii) in the case of payment by the Standby Swap Provider
to MLCS as Party A, an amount equal to the amount (if
any) that would be payable by Party B to Party A,
if the Class A-1 Currency Swap had been terminated,
calculated and payable in accordance with Sections 6(d) and
(e) on the basis that:
(i) the Novation Date is the Early Termination Date
(ii) the Early Termination Date has resulted from an Event
of Default in respect of which Party A is the
Defaulting Party;
(iii) all calculations and determinations which would have
been done by Party B are done by the Standby Swap
Provider and all calculations and determination that
would have been done by Party A are done by MLCS;
(iv) a reference to Unpaid Amounts owing to Party B is a
reference to such amounts payable by Party A to the
Standby Swap Provider pursuant to Part 5(23)(b)
and (e) and there are no Unpaid Amounts owing to
Party A;
(v) without limiting the foregoing, for the purposes of
the definition of "Market Quotation" in Section 14
each Reference Market-maker would be required, upon
entering into a Replacement Transaction, to fulfil
the obligations of Party A under Part 5(23)(a) and
to comply with Section 2(d) as amended by Part
(5)(1)(e); and
(vi) the Termination Currency is U.S. Dollars.
25.
(e) (Default Interest): If MLCS as Party A defaults in the
performance of any payment obligations under Part 5(25)(b)
or Part 5(25)(d), it must pay interest (before as well as
after judgment) on the overdue amount to the Standby Swap
Provider on demand in the same currency as such overdue
amount, for the period from (and including) the original
due date for payment to (but excluding) the date of actual
payment, at the Default Rate. Such interest will be
calculated on the basis of daily compounding and the actual
number of days elapsed.
(26) Inconvertibility: If prior to the Novation Date an Inconvertibility Event
occurs the Standby Swap Provider's rights, powers, privileges and
obligations under this Agreement and the Class A-1 Currency Swap will
terminate upon the Standby Swap Provider delivering a notice expressed to
be given under this provision to Party A, Party B and the Manager and
Party B will be taken to have released the Standby Swap Provider from all
its unperformed and future obligations under this Agreement and the
Class A-1 Currency Swap. Following the delivery of such a notice in
accordance with this Part 5(26), references to any jointly supported
credit rating of Party A and the Standby Swap Provider will be deemed to
references to the relevant credit rating of the Party A.
26.
ANNEXURE 1
FORM OF CONFIRMATION FOR CLASS A-1 CURRENCY SWAP
SERIES 2000-1G MEDALLION TRUST
[Letterhead of Party A]
[DATE]
To: Perpetual Trustee Company Limited Securitisation Advisory Services Pty.
as trustee of the Series Trust Limited
Xxxxx 0 Xxxxx 0
00 Xxxxxx Xxxxxx 00 Xxxxxx Xxxxx
Xxxxxx XXX 0000 Xxxxxx XXX 0000
XXXXXXXXX XXXXXXXXX
Attention: Manager, Securitisation Attention: Manager, Securitisation
Services
Commonwealth Bank of Australia
Xxxxx 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: Manager, Securitisation
CONFIRMATION - CLASS A-1 CURRENCY SWAP
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 supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or
supplemented from time to time (the "Agreement"), between Xxxxxxx Xxxxx Capital
Services Inc. ("Party A"), Perpetual Trustee Company Limited, ACN 000 001 007 as
trustee of the Series Trust ("Party B"), Securitisation Advisory Services Pty.
Limited, ACN 064 133 946 (the "Manager") and Commonwealth Bank of Australia, ACN
123 123 124 (the "Standby Swap Provider"). All provisions contained in the
Agreement govern this Confirmation except as expressly modified below.
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 Class A-1
Notes
4. Termination Date: The earlier of:
(a) the date that the Class A-1 Notes
have been redeemed in full in
accordance with the Class A-1 Note
Conditions; and
(b) the Scheduled Maturity Date,
27.
5. Floating Amounts
5.1 Floating Amounts Payable by
Party A (subject to Paragraph 9
of this Confirmation):
Floating Rate Payer: Party A
Calculation Amount: For each Floating Rate Payer Payment
Date, one half of the aggregate Invested
Amount of the Class A-1 Notes as at the
first day of the Calculation Period
ending on but excluding that Floating
Rate Payer Payment Date
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 references to
"London Banking Days" in section
7.1(ag)(ii) and (iv) of the 1998
Supplement to the 1991 ISDA Definitions
will be replaced with references to
"Banking Days" as that expression is
defined in the Class A-1 Note
Conditions)
Designated Maturity: Three months (except that Linear
Interpolation using [_] and [_] months
will apply in respect of the first
Calculation Period)
Spread: In respect of:
(a) Floating Rate Payer Payment Dates on
or prior to [ ] (or if that day is
not a Business Day, the next
following Business Day), [ ]; and
(b) Floating Rate Payer Payment Dates
after [ ] (or if that day is not a
Business Day, the next following
Business Day), [ ].
Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Class A-1 Unpaid Coupon On each Floating Rate Payer Payment
Amount Date, Party A will pay to Party B an
amount calculated as follows:
LIBOR
$USUC=$AUCx-----x$USExchangeRate
BBSW
where:
$US UC = the amount to be paid by
Party A;
$A UC = the A$ Class A-1 Unpaid
Interest Payment in relation
to the Distribution Date which
is the same day as that
Floating Rate Payer Payment
Date;
LIBOR = the Floating Rate Option under
this paragraph 5.1 in respect
of the Reset Date which is the
same day as that Floating Rate
Payer Payment Date;
28.
BBSW = the Floating Rate Option under
paragraph 5.2 in respect of
the Reset Date which is the
same day as that Floating Rate
Payer Payment Date.
5.2 Floating Amounts Payable by
Party B (subject to paragraph 9
of this Confirmation):
Floating Rate Payer: Party B
Calculation Amount: For each Floating Rate Payer Payment
Date, the A$ Equivalent of one half of
the aggregate Invested Amount of the
Class A-1 Notes as at the first day of
the Calculation Period ending on but
excluding that Floating Rate Payer
Payment Date
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: AUD-BBR-BBSW
Designated Maturity: Three months (except that Linear
Interpolation using [ ] and [ ]
months will apply in respect of the
first Calculation Period)
Spread: In respect of:
(a) Floating Rate Payer Payment Dates
on or prior to [ ] (or if that
day is not a Business Day, the next
following Business Day), [ ]; and
(b) Floating Rate Payer Payment Dates
after [ ] (or if that day is not
a Business Day, the next following
Business Day), [ ].
Floating Rate Day Count Actual/365 (Fixed)
Fraction:
Reset Dates The first day of each Calculation Period
Compounding: Inapplicable
A$ Class A-1 Unpaid Interest On each Floating Rate Payer Payment Date
Amount Party B will pay to Party A the A$ Class
A-1 Unpaid Interest Payment in relation
to the Distribution Date which is the
same day as that Floating Rate Payer
Payment Date.
6. Exchanges
6.1 Initial Exchange:
Initial Exchange Date: Issue Date
Party A Initial Exchange Amount: The A$ Equivalent of the Party B Initial
Exchange Amount, being A$[ ]
Party B Initial Exchange Amount: One half of the Initial Invested Amount
of the Class A-1 Notes on the Issue
Date, being US$[
29.
]
Notwithstanding Section 2(a)(ii) of the
Agreement, Party A must pay the Party A
Initial Exchange Amount to Party B by
4.00pm (Sydney time) on the Initial
Exchange Date and Party B must pay Party
A the Party B Initial Exchange Amount by
4.00pm (New York time) on the Initial
Exchange Date.
6.2 Instalment Exchange:
Instalment Exchange Date: Each Distribution Date (other than the
Final Exchange Date)
Party A Instalment Exchange In respect of an Instalment Exchange
Amount: Date means the US$ Equivalent of one
half of the A$ Class A-1 Principal
Amount in relation to the Distribution
Date occurring on that Instalment
Exchange Date
Party B Instalment Exchange In respect of an Instalment Exchange
Amount: Date means one half of the A$ Class A-1
Principal Amount in relation to the
Distribution Date occurring on that
Instalment Exchange Date
6.3 Final Exchange:
Final Exchange Date: Termination Date
Party A Final Exchange Amount: The US$ Equivalent of one half 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: One half of 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$: The account notified in writing by Part
A to Party B in accordance with Part
5(3)(ii) of the Schedule to the
Agreement
Account for payments in A$: The account notified in writing by Party
A to Party B in accordance with Part
5(3)(i) of the Schedule to the Agreement
8.2 Payments to Party B
Account for payments in US$: The account notified in writing by the
Principal Paying Agent to Party A in
accordance with Part 5(2)(ii) of the
Schedule to the Agreement
Account for payments in A$: The account notified in writing by Party B
to Party A in accordance with Part 5(2)(i)
of the Schedule to the Agreement
9. Offices: The Office of Party A for each Transaction
is New York.
The Office of Party B for each Transaction
is Sydney.
Please confirm that the above correctly sets out the terms of our agreement in
respect of each Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
31.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of
XXXXXXX XXXXX CAPITAL SERVICES INC.
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
COMPANY LIMITED, ACN 000 001 007 PTY. LIMITED, ACN 064 133 946
as trustee of the Series
2000-1G Medallion Trust
By: _______________________________ By:____________________________
(Authorised Officer ) (Authorised Officer )
Name: _____________________________ Name:__________________________
Title: ___________________________ Title:_________________________
SIGNED for and on behalf of
COMMONWEALTH BANK OF AUSTRALIA,
ACN 123 123 124
By: _______________________________
(Authorised Officer )
Name: _____________________________
Title: ___________________________
32.
Annexure 2
GUARANTEE OF XXXXXXX XXXXX & CO., INC.
FOR VALUE RECEIVED, receipt of which is hereby acknowledged, XXXXXXX XXXXX &
CO., INC., a corporation duly organized and existing under the laws of the State
of Delaware ("ML & Co."), hereby unconditionally guarantees to:
(a) Perpetual Trustee Company Limited, ACN 000 001 007 as trustee of the Series
2000-1G Medallion Trust (the "Company"), the due and punctual payment of
any and all amounts payable by Xxxxxxx Xxxxx Capital Services, Inc., a
corporation organized under the laws of the State of Delaware ("MLCS"), to
the Company under the terms of the ISDA Master Agreement (Currency Swap
Agreement) between the Company, Securitisation Advisory Services Pty.
Limited, ACN 064 133 946, Commonwealth Bank of Australia, ACN 123 123 124
and MLCS, dated as of [20] March 2000 (the "Agreement"), including, in case
of default, interest on any amount due, when and as the same shall become
due and payable, whether on the scheduled payment dates, at maturity, upon
declaration of termination or otherwise, according to the terms thereof;
and
(b) Commonwealth Bank of Australia, ACN 123 123 124 ("CBA") the due and
punctual payment of any and all amounts payable by MLCS to CBA under the
terms of the Agreement, including all amounts due under Parts 5(25)(b), (d)
and (e) of the schedule to the Agreement.
In case of the failure of MLCS punctually to make any such payment, ML & Co.
hereby agrees to make such payment, or cause such payment to be made, promptly
upon demand made by the Company (in the case amounts referred to in paragraph
(a)) or CBA (in the case amounts referred to in paragraph (b)) to ML & Co.;
provided, however that delay by the Company or CBA (as the case may be) in
giving such demand shall in no event affect ML & Co.'s obligations under this
Guarantee. This Guarantee shall remain in full force and effect or shall be
reinstated (as the case may be) if at any time any payment guaranteed hereunder,
in whole or in part, is rescinded or must otherwise be returned by the Company
or CBA upon the insolvency, bankruptcy or reorganization of MLCS or otherwise,
all as though such payment had not been made.
ML & Co. hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Agreement; the
absence of any action to enforce the same; any waiver or consent by the Company
or CBA concerning any provisions thereof; the rendering of any judgment against
MLCS or any action to enforce the same; or any other circumstances that might
otherwise constitute a legal or equitable discharge of a guarantor or a defense
of a guarantor. ML & Co. covenants that this guarantee will not be discharged
except by complete payment of the amounts payable under the Agreement. This
Guarantee shall continue to be effective if MLCS merges or consolidates with or
into another entity, loses its separate legal identity or ceases to exist.
ML & Co. hereby waives diligence; presentment; protest; notice of protest,
acceleration, and dishonor; filing of claims with a court in the event of
insolvency or bankruptcy of MLCS; all demands whatsoever, except as noted in the
fourth paragraph hereof; and any right to require a proceeding first against
MLCS.
ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid
obligation of ML & Co. and complies with all applicable laws.
This Guarantee shall be governed by, and construed in accordance with, the laws
of the State of New York.
This Guarantee may be terminated at any time by notice by ML & Co. to the
Company and CBA given in accordance with the notice provisions of the Agreement,
effective upon receipt of such notice by each of the Company and CBA or such
later date as may be specified in such notice; provided, however, that this
Guarantee shall continue in full force and effect with respect to any obligation
of MLCS under the Agreement entered into prior to the effectiveness of such
notice of termination.
This Guarantee becomes effective concurrent with the effectiveness of the
Agreement, according to its terms.
33.
The obligations of ML & Co. to the Company and CBA under this Agreement are
several and may be enforced by each of the Company and CBA without reference to
the other.
IN WITNESS WHEREOF, ML & Co. has caused this Guarantee to be executed in its
corporate name by its duly authorized representative.
XXXXXXX XXXXX & CO., INC.
By:__________________________
Name:
Title:
Date:_________________________
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 does not include any
additional obligations.
"Base Currency" means US$.
"Eligible Currency" means the Base Currency and any other currency
agreed from time to time between Party A, Party B, the Standby Swap
Provider and each Rating Agency.
(b) Credit Support Obligations
(i) Delivery Amount and Return Amount
"Delivery Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(23)(d)(i) for
that Valuation Date.
"Return Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(23)(d)(ii) for
that Valuation Date.
(ii) Eligible Collateral. The following items will qualify as
"Eligible Collateral" for Party A:
Valuation
Percentage
(A) negotiable debt obligations issued 98%
by the U.S. Treasury Department
having a remaining maturity of not
more than one year
(B) negotiable debt obligations issued 95%
by the U.S. Treasury Department
having a remaining maturity of more
than one year but not more than five
years
(C) negotiable debt obligations issued 93%
by the U.S. Treasury Department
having a remaining maturity of more
than five years but not more than
ten years
(D) negotiable debt obligations issued 90%
by the U.S. Treasury Department
having a remaining maturity of more
than ten years
(E) Agency Securities having a remaining 97%
maturity of not more than one year
(F) Agency Securities having a remaining 94%
maturity of more than one year but
not more than five years
(G) Agency Securities having a remaining 92%
maturity of more than five years but
not more than ten years
(H) Agency Securities having a remaining 89%
maturity of more than ten years.
(I) cash in an Eligible Currency. 100%
(J) other Eligible Credit Support and
Valuation Percentage agreed by the
parties and acceptable to each
Rating Agency
Notwithstanding the foregoing to the contrary, the Valuation
Percentage with respect to all Eligible Credit Support shall be
deemed to be 100% with respect to a Valuation Date which is an Early
Termination Date.
"Agency Securities" means negotiable debt obligations which are
fully guaranteed as to both principal and interest by the Federal
National Mortgage Association, the Government National Mortgage
Corporation or the Federal Home Loan Mortgage Corporation and which
have been assigned a short term credit rating of A-1+ by S&P, but
exclude: (i) interest only and principal only securities; and (ii)
collateralized mortgage obligations, real estate mortgage investment
conduits and similar derivative securities.
(iii) Other Eligible Support
Not applicable.
(iv) Thresholds
(A) "Minimum Transfer Amount" means with respect to both Party A
and Party B: US$100,000.
(B) Rounding. The Delivery Amount and the Return Amount will be
rounded to the nearest integral multiple of US$10,000.
(c) Valuation and Timing
(i) "Valuation Agent" means Party A.
(ii) "Valuation Date" means the last Business Day of each week and, at
the option of either Party A or the Standby Swap Provider, any
Business Day between Valuation Dates.
(iii) "Valuation Time" means the close of business on the Business Day
before the Valuation Date; provided that the calculations of Value
and Exposure will be made as of approximately the same time on the
same date.
(iv) "Notification Time" means 11:00 am New York time on the second
Business Day after the Valuation Date.
(d) Conditions Precedent and Secured Party's Rights and Remedies
There are no "Specified Conditions" applicable to Party A and Party B.
(e) Substitution
(i) "Substitution Date" has the meaning specified in paragraph 4(d)(ii).
36.
(ii) Consent. Not applicable.
(f) Dispute Resolution
(i) "Resolution Time"" means 11:00 am New York time.
(ii) "Value". Not applicable.
(iii) "Alternative". The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral
(i) Eligibility to Hold Posted Collateral; Custodians.
Party A: Not Applicable.
Party B is not entitled to hold Posted Collateral. It must appoint
a Custodian to hold Posted Collateral on its behalf pursuant to
paragraph 6(b). Party B may only appoint a Custodian to hold Posted
Collateral on its behalf if the following conditions are satisfied:
(A) Party B is not a Defaulting Party;
(B) Party B's Custodian will always be the Principal Paying Agent,
unless that party is Party A; and
(C) if the Principal Paying Agent is Party A, then Party B must
appoint a Custodian which is a Bank (as defined in the Federal
Deposit Insurance Act, as amended) outside Australia, whose
rating (with respect to its long term unsecured,
unsubordinated indebtedness) is at all times at least Aa2 by
Xxxxx'x and its short term debt rating is A-1+/F-1+ (S&P/Fitch
IBCA), and Party B must notify Party A in writing of this
appointment and of the relevant account for Paragraph 13(l).
(D) Posted Collateral may only be held in one or more accounts in
the name of Party B in the United States and any account
established by Party B's Custodian to hold Posted Collateral
shall be established and maintained for the sole purpose of
receiving deliveries of and holding Posted Collateral.
(ii) Use of Posted Collateral. The provisions of paragraph 6(c) will not
apply to Party B and its Custodian. Party B's Custodian will permit
Party B to secure Party B's obligations under the relevant Class X-
0 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
37.
"Value" and "Transfer" with respect to Other Eligible Support and Other
Posted Support means: not applicable.
(k) Demands and Notices
All demands, specifications and notices under this Annex will be made
pursuant to the Section 12 of this Agreement; provided, that any such
demand, specification or notice may be made by telephone ("Telephone
Notice") between duly authorised employees of each party if such Telephone
Notice is confirmed by a subsequent written instruction (which may be
delivered via facsimile) by the close of business of the same day that such
Telephone Notice is given.
(l) Addresses for Transfers
Party A: Party A to specify account for returns of collateral.
Party B: Party B must notify Party A of its Custodian's account.
(m) Other Provisions
(i) Paragraph 4(b) of the Annex is replaced by the following:
"(b) Transfer Timing. Subject to Paragraph 4(a) and 5 and unless
otherwise specified, if a demand for the Transfer of Eligible
Credit Support or Posted Credit Support is made by the
Notification Time, then the relevant Transfer will be made
within three Business Days of receipt of the demand; if a
demand is made after the Notification Time, then the relevant
Transfer will be made within four Business Days of receipt of
the demand."
(ii) Event of Default
Joint Ratings below specified levels
Paragraph 7(i) of the Annex is amended, on line 3, by replacing "two
Business Days" with "three Business Days".
(iii) Party B's expenses
Subject to Section 15 of the Agreement, Party B agrees to pay Party
A's costs and expenses in relation to or caused by any breach by
Party B of its obligations under this Annex. Party A acknowledges
and agrees that its obligations under this Annex will not be
affected by a failure by Party B to comply with its obligations
under this paragraph (m)(iii).
(iv) Governing Law notwithstanding
Notwithstanding that the Agreement is expressed to be governed by
the laws of New South Wales, this Annex (but not any other
provisions of the Agreement) shall be governed by and construed in
accordance with the laws of the state of New York without giving
effect to choice of law doctrine and parties hereto agree that
proceedings relating to any dispute arising out of or in connection
with this Annex shall be subject to the non-exclusive jurisdiction
of the federal or state courts of competent jurisdiction in the
Borough of Manhattan in New York City, State of New York.
(v) No trial by jury
Each party waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect of any
suit, action or proceeding relating to this Annex.
38.
(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 Paragraph
8(b)(iii) of this Annex, and each party covenants to the other that
it shall not permit any other person to gain any rights in relation
to the Posted Collateral that are inconsistent with the rights of
the Pledgor.
(vii) Rights in Relation to MLCS's Posted Collateral Following Novation
(A) The Secured Party will hold its security interest in, lien on
and right of Set-Off against all Posted Collateral Transferred
or received by the Secured Party from MLCS as Party A hereunder
on trust for the benefit of:
(1) the Series Trust as security for the Obligations of MLCS
as Party A to the Secured Party as trustee of the Series
Trust (other than pursuant to Paragraph 13(m)(vii)(B));
and
(2) the Standby Swap Provider as security for the Obligations
of MLCS as Party A to the Standby Swap Provider pursuant
to Part 5(25)(d) of the Schedule to this Agreement,
in accordance with the provisions of this Paragraph 13(m)(vii),
and Paragraph 2 is varied accordingly.
(B) MLCS as Party A covenants in favour of the Secured Party that
it will duly and punctually pay to the Secured Party all its
Obligations to the Standby Swap Provider pursuant to Part
5(25)(d) of the Schedule to this Agreement as and when the same
fall due for payment. Notwithstanding the foregoing, every
payment by MLCS as Party A, or the Secured Party in accordance
with Paragraph 13(m)(vii)(C)(2)(b), to the Standby Swap
Provider will operate as a payment by MLCS as Party A to the
Secured Party in satisfaction of MLCS's obligations as Party A
pursuant to this Paragraph 13(m)(vii)(B). The Secured Party
will hold the benefit of its rights under this Paragraph
13(m)(vii)(B) on trust for the Standby Swap Provider in
accordance with the provisions of this Paragraph 13(m)(vii).
(C) The Secured Party must deal with all Posted Collateral
Transferred or received by the Secured Party from MLCS as Party
A hereunder:
(1) prior to the Novation Date, in accordance with the
provisions of this Agreement other than this Paragraph
13(m)(vii);
(2) on or after the Novation Date:
(a) until the date upon which the Standby Swap Provider
has initially fulfilled its obligations as Party A
pursuant to Part 5(23)(a) of the Schedule to this
Agreement, such Posted Collateral must be held by the
Secured Party and not Transferred or otherwise
applied;
(b) on or after the date upon which the Standby Swap
Provider has initially fulfilled its obligations as
Party A pursuant to Part 5(23)(a) of the Schedule
to this Agreement and until MLCS as Party A has paid
in full all of its Obligations to the Standby Swap
Provider pursuant to Part 5(25)(d) of the Schedule
to this Agreement, the Secured Party must, upon the
instructions of the Standby Swap Provider, exercise
its rights and remedies pursuant to Paragraph 8(a)
in respect of such Posted Collateral and apply the
proceeds of the exercise of such rights and remedies
in satisfaction of MLCS's Obligations as Party A to
the Standby
39.
Swap Provider pursuant to Part 5(25)(d) of the
Schedule to this Agreement (and to the Secured Party
pursuant to Paragraph 13(m)(vii)(B)) until all such
Obligations have been paid in full; and
(c) on or after the date upon which the Standby Swap
Provider has initially fulfilled its obligations as
Party A pursuant to Part 5(23)(a) of the Schedule to
this Agreement and MLCS as Party A has paid in full all
its Obligations to the Standby Swap Provider pursuant
to Part 5(25)(d) of the Schedule to this Agreement
(including by virtue of Paragraph 13(m)(vii)(B)(2)(b)),
the Secured Party must Transfer to MLCS as Party A all
such Posted Collateral and the Interest Amount in
relation to such Posted Collateral, if any.
(D) The Standby Swap Provider indemnifies the Secured Party from
and against any cost or liability incurred by the Secured
Party in complying with the instructions of the Standby Swap
Provider pursuant to Paragraph 13(m)(vii)(B)(2)(b). The
Standby Swap Provider acknowledges and agrees that the Secured
Party may not, and is not required, to take any action to
exercise its rights and remedies in relation to the Posted
Collateral in respect of the Obligations of MLCS as Party A to
the Standby Swap Provider except upon the directions of the
Standby Swap Provider and in accordance with this Paragraph
13(m)(vii).
(E) Following the Novation Date, the Secured Party must ensure
that any Posted Collateral Transferred or received by the
Secured Party from MLCS as Party A is held by the Custodian
separately from, and is not co-mingled with, Posted Collateral
Transferred or received by the Secured Party from the Standby
Swap Provider as Party A.
(F) This paragraph 13(m)(vii) applies notwithstanding any other
provision of this Agreement.
(viii) Pledgor and Secured Party
In this Annex:
(a) "Pledgor" means only Party A; and
(b) "Secured Party" means only Party B.
(ix) Non-Australian Assets
CBA must only Transfer Posted Collateral to the Secured Party from
its assets held outside Australia.
(x) Dispute Resolution
Paragraph 5(i) is amended by:
(A) replacing the word "Exposure" with the words "the Delivery
Amount or the Return Amount, as the case may be" in the first
paragraph of Paragraph 5(i);
(B) adding the word "and" at the end of Paragraph 5(i)(A) and
deleting Paragraph 5(i)(B).
40.
