(Multicurrency--Cross Border) [LOGO]
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of __________ 1998
Westpac Banking Corporation Westpac Securities Administration Limited
(ARBN 007 457 141) (ACN 000 049 472) in its capacity as
------------------------------ and ---------------------------------------------
trustee of the Series 0000-0X XXX Xxxxx
and other parties shown on page 18 of this
agreement
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 or 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 Identifiable 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 judgement) 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 organsiation 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 judgement 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, 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 part 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
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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
judgement 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 judgement of insolvency or bankruptcy or the entry of
an order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or (9)
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer: --
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event
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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 entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence
of such event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the
Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
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6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and obligations
under this Agreement in respect of the Affected Transactions to another of
its Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If: --
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a
Credit Event Upon Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days notice to the other
party and provided that the relevant Termination Event is then
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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 of effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in
the Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount is paid, at the
Applicable Rate. Such interest will be calculated on the basis of daily
compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an Event
of Default: --
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the
9
Non-defaulting Party) in respect of the Terminated Transactions and
the Termination Currency Equivalent of the Unpaid Amounts owing to
the Non-defaulting Party less (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party. If
that amount is a positive number, the Defaulting Party will pay it
to the Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that amount to
the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(iii) Termination Events. If the Early Termination Date results from a
Termination Event: --
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and
to the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in
respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: --
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with the
lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
10
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
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 and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
11
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of Transaction without prior written
consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
12
to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated: --
(i) if in writing and delivered in person or by courier, on the date it is
delivered;
(ii) if sent by telex, on the date the recipient's 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 an 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 an New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Xxx 0000 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any
13
reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to service
of process given in the manner provided for notices in Section 12. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) Waiver of immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement: --
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means: --
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
14
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have
15
been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group or 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
17
value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
Westpac Securities Administration
Limited
Westpac Banking Corporation (ACN 000 049 472) in its capacity as
ARBN 007 457 141 trustee of the Series 0000-0X XXX Xxxxx
----------------------------- -----------------------------------------
(Name of Party) (Name of Party)
By: By:
------------------------- -------------------------
Name: Name:
Title: Title:
Date: Date:
Westpac Securitisation Xxxxxx Guaranty Trust
Management Pty Limited Company of New York,
(ACN 000 000 000) London branch
----------------------------- -----------------------------
(Name of Party) (Name of Party)
By: By:
------------------------- ------------------
Name: Name:
Title: Title:
Date: Date:
18
SCHEDULE
to the
Master Agreement
dated as of [ June] 1998
between Westpac Banking Corporation (ARBN 007 457 141) ("Party A") and Westpac
Securities Administration Limited (ACN 000 049 472) in its capacity as trustee
of the Series 0000-0X XXX Xxxxx ("Party B") and Westpac Securitisation
Management Pty Limited (ACN 000 000 000) (the "Trust Manager") and Xxxxxx
Guaranty Trust Company of New York, London Office (the "Credit Support
Provider")
Part 1: Termination Provision
(a) "Specified Entity" in relation to:
(i) Party A, is not applicable; and
(ii) Party B, is not applicable.
(b) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v) Section 5(b)(iv)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(b)(iii)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(b)(iii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iv)
Section 5(a)(iv) Section 5(a)(viii)
(iii) Replace Section 5(a)(i) and insert:
"(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 10.00 am on the tenth
Local Business Day after notice of such failure is given to
the party";
(iv) Section 5(b)(ii) will not apply to Party A as the Affected Party
(subject to Part 5(4)(ii) of this Schedule).
(v) The "Bankruptcy" provisions of Section 5(a)(vii) are replaced by "An
Insolvency Event (as defined in the Master Trust Deed) has occurred
in respect of the party. In relation to Party A, the events
described in the definition of Insolvency Event shall apply to it as
if Party A were a relevant corporation referred to in that
definition. The occurrence of an Insolvency Event in respect of
Party B in its personal capacity will not constitute an Event of
Default provided that within thirty days of that occurrence, Party B
procures the novation of this Agreement and all Transactions to a
third party in respect of which the Designated Rating Agencies
confirm that the novation will not cause a reduction or withdrawal
of the rating of
2
the Notes and Party A agrees that it will execute such a novation
agreement in standard ISDA form".
(vi) The application of Section 5(b)(i) will be restricted as set out in
Part 5(4) of this Schedule.
(c) The "Automatic Early Termination" provisions in Section 6(a) will not
apply to Party A nor Party B.
(d) "Payment 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.
(e) "Termination Currency" means US Dollars.
(f) "Additional Termination Event" means the occurrence of any of the
following:
(i) Party B is entitled to issue a notice to redeem all of the Notes (in
accordance with the Conditions of the Notes) for reasons of
taxation, in which case Party A shall be the Affected Party; or
(ii) an Event of Default (as defined in the Security Trust Deed) occurs
and an Extraordinary Resolution of the Voting Mortgagees (as defined
in the Security Trust Deed) is passed directing the Security Trustee
to exercise rights under clause [8] of the Security Trust Deed, in
which case Party B shall be the Affected Party.
3
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 the other party under this Agreement. In
making this representation, it may rely on:
(i) the accuracy of any representation made by the other party pursuant
to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of
any document provided by the other party pursuant to Section 4(a)(i)
or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice
to its legal or commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement:
Party A makes no representations with respect to Transactions for which
Party A is acting through its London Office.
Party B makes the following representation:
It is an Australian resident and does not derive the payments under this
Agreement in part or whole in carrying on business in a country outside
Australia at or through a permanent establishment of itself in that
country.
4
Part 3: Documents To Be Delivered
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver the following documents as applicable:
(a) Tax Forms, documents or certificates to be delivered are:
Party required to deliver Form/Document/ Date by which document
document Certificate to be delivered
Party A and Party B Any document or certificate As soon as reasonably
reasonably required or reasonably practicable following the
requested by a party in connection earlier of (a) the relevant
with its obligations to make a party learning that such
payment under this Agreement document or certificate is
which would enable that party to required and (b) a request
make the payment free from any by other party.
deduction or withholding for or on
account of Tax or as would reduce
the rate at which deduction or
withholding for or on account of
Tax is applied to that payment.
(b) Other documents to be delivered are:
Party required to deliver Form/Document/ Date by which document
document Certificate to be delivered
Party A and Party B A legal opinion as to the validity [ June] 1998.
and enforceability of that party's
obligations under this Agreement
in form and substance reasonably
acceptable to the other party.
5
Party B A certified copy of the Security The date of this
Trust Deed, Master Trust Deed, Agreement.
Series Notice and Note Trust Deed
(including Conditions of Class A
and Class B Notes). For the purposes of
this and the following clause a copy of a
document is taken to be certified if a
director or an Authorised Signatory of
Party B, or a person authorised to execute
this Agreement or a Confirmation on behalf
of Party B or a solicitor acting for Party
B has certified it to be a true and
complete copy of the document of which it
purports to be a copy.
Party B (Without limiting any obligation Promptly after any
Party B may have under the terms such document is
of the Security Trust Deed to notify entered into.
Party A of amendments) a certified
copy of any document that amends
in any way the terms of the
Security Trust Deed
All documents delivered under this Part 3(b) are covered by Section 3(d)
representation.
6
Part 4: Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this Agreement:
Party A:
Address: Westpac Banking Corporation
Xxxxx 0
000 Xxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Attention: Head of Derivative Operations
Telex No: To be advised by Party A
Answerback: to be advised by Party A
Facsimile No: To be advised by Party A
Party B:
Address: Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx
Attention: The Trustee Securitisation Manager
Facsimile No: 02 9220 5300
And a copy to the Trust Manager to the address provided to Party A.
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to Party A.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is a Multibranch Party and will act through its Sydney office and
its London Office. Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A (unless otherwise
specified in a Confirmation in relation to the relevant Transaction).
(f) Credit Support Document. Details of any Credit Support Document:
(i) Party A: The 1994 Credit Support Annex attached to this Agreement
and the provisions of Section 20 of this Agreement.
(ii) Party B: The Security Trust Deed.
(g) Credit Support Provider.
(i) In relation to Party A: Xxxxxx Guaranty Trust Company of New York,
London office, unless:
(A) a Transaction becomes effective in accordance with sections
21(b)(i) or 21(b)(ii)(A) and (B) following a Substitution
Notice being given in accordance with section 21 of this
Agreement, in which case, nil; or
(B) an Equivalent-Other Transaction becomes effective under this
Agreement following a Substitution Notice given in accordance
with section 21 of the Other Agreement, in which case the New
Currency Swap Provider shall be designated as the new Credit
Support Provider to Party A, as specified in that Substitution
Notice, and as confirmed by the New Currency Swap Provider
signing, and the other parties to the Transaction
countersigning, the accession to the Equivalent-Other
Transaction.
(ii) In relation to Party B. Nil.
(h) Governing Law. This Agreement will be governed by and construed in
7
accordance with the laws of the state of New South Wales and section
13(b)(i) is replaced by "submits to the non-exclusive jurisdiction of
the courts of New South Wales and courts of appeal from them".
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement
will apply.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement. The words "or Affiliates" are deleted where they appear in the
first paragraph of Section 6(b)(ii).
8
Part 5: Other Provisions
(1) Payments: In Section 2:
(i) 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";
(ii) In Section 2(a)(ii) insert immediately after the words "freely
transferable funds" the following words:
", free of any set-off, counterclaim, deduction or withholding
(except as expressly provided in this Agreement),"
(iii) Insert new paragraphs (iv) and (v) 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 and delivery obligations under
Section 2(a)(i) and has no future payment or delivery
obligations, whether absolute or contingent under
Section 2(a)(i).
(v) Where:
(1) payments are due pursuant to Section 2(a)(i) by
Party A to Party B (the "Party A Payment") and by
Party B to Party A (the "Party B Payment") on the
same day then Party A's obligation to make the
Party A payment will be subject to the condition
precedent (which will be an "applicable condition
precedent" for the purpose of Section
2(a)(iii)(3)) that Party A first receives either:
(2) the Party B payment; or
(3) confirmation from Party B's bank that it holds
irrevocable instructions to effect payment of the
Party B payment and that funds are available to
make that payment.";
(iv) add the following new sentence to Section 2(b):
"Each new account so designed must be in the same tax jurisdiction
as the original account".
(v) 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";
(vi) 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.
(vii) add the following new Section 2(f):
(f) Payment Instructions.
(i) Party B authorises and instructs Party A to make payment of
any amount due from Party A to Party B hereunder by paying
that amount direct to the Principal Paying Agent to the
account specified in writing by the Principal Paying Agent to
Party A and to Party B.
(ii) Party A authorises and instructs Party B to make payment of
any amount denominated in Australian dollars due from Party B
to Party A to such account in Sydney as is specified by Party
A from time to time.
(2) Additional Representations: In Section 3 add the following immediately
after paragraph (f):
"(g) Non Assignment. It has not assigned (whether absolutely, in equity
or
9
otherwise) or declared any trust over (other than, in respect of
Party B, the trusts created under the Master Trust Deed and the
Series Notice) or given any charge over any of its rights under this
Agreement or any Transaction (except in respect of Party B, for the
security interest created under the Security Trust Deed).
(h) Contracting as Principal. Each existing Transaction has been entered
into by Party A as principal and not otherwise and each existing
Transaction has been entered into by Party B in its capacity as
trustee of the Trust and not otherwise."
(i) Absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary for that
Transaction:
(A) Non-Reliance. It is acting for its own account, 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 upon advice
from the Trust Manager and such advisors as it has deemed
necessary. It is not relying on any communication (written or
oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being
understood that information and explanations related to the
terms and conditions of a Transaction shall not be considered
investment advice or a recommendation to enter into that
Transaction. It has not received from the other party any
assurance or guarantee as to the expected results of that
Transaction;
(B) Evaluation and Understanding. It is capable of evaluating and
understanding (on its own behalf or through independent
professional advice including the Trust Manager), and
understands and accepts the terms, conditions and risks of
that Transaction. It is also capable of assuming, and assumes,
the financial and other risks of that Transaction;
(C) Status of Parties. The other party is not acting as a
fiduciary or an advisor for it in respect of that Transaction;
(j) Party B represents and warrants:
(A) Trust Validly Created. The Trust has been validly created and
is in existence at the date of this Agreement.
(B) Sole Trustee. It has been validly appointed as trustee of the
Trust and is presently the sole trustee of the Trust.
(C) No Proceedings to Remove. No notice has been given to it and
to its knowledge no resolution has been passed, and no
direction or notice has been given, removing it as trustee of
the Trust.
(D) Power. It has power to enter into this Agreement and the
Credit Support Document in its capacity as trustee of the
Trust.
(E) Good Title. It is the owner in equity of the assets of the
Trust and has power to mortgage or charge them in the manner
provided in the Credit Support Document, and, subject only to
the Credit Support Document and any Security Interest
permitted under the Credit Support Document, those
10
assets are free of all other Security Interests.
(3) Additional Covenant: In Section 4 add a new paragraph as follows:
"(f) Contracting as principal. Party A will enter into all Transactions
as principal and not otherwise and Party B will enter into all
Transactions in its capacity as trustee of the Trust and not
otherwise".
(4) Amendment to Section 6. In section 6 make the following amendments:
(i) Section 6(a) is amended by deleting the words "all outstanding
Transactions" where they appear and inserting instead the words "the
Relevant Swap Transaction".
(ii) Add a new section 6(aa):
"(aa) Restricted Termination Rights.
(i) Termination by Party B: Party B must not designate an Early
Termination Date without the prior written consent of the Note
Trustee.
(ii) Consultation with Party A: Each Party may only designate an
Early Termination Date following prior consultation with the
other Party as to the timing of the Early Termination Date.
Subject to its duties under the Master Trust Deed and the
Series Notice, Party B may exercise any rights in its capacity
as holder of the Purchased Receivables only on the
instructions of the Note Trustee and only after consultation
between Party A and Note Trustee. Party B may only designate
an Early Termination Date at the direction of the Trust
Manager.
(iii) Party A's limited rights in relation to Tax Event:
Notwithstanding Part 1(b)(iv) of this Schedule, Party A may
designate an Early Termination Date if it is an Affected Party
following a Tax Event but only if the Note Trustee is
satisfied that the Noteholders and Couponholders will be paid
in full all principal and interest outstanding on the Notes.
(iv) Illegality: The parties agree that [unless this Section
6(aa)(iv) is specified not to apply in the Relevant
Confirmation,] imposition by any Agency of an Australian
jurisdiction of any exchange controls, restrictions or
prohibitions will not constitute an Illegality for the
purposes of Section 5(b)(i) and Party A will not be entitled
to designate an Early Termination Date, and in those
circumstances, payment by Party B in accordance with section
2(f) will continue to be proper performance of its payment
obligation and Party A's obligations will be unaffected, to
the extent of Party B's payments under section 2(f).
(v) Transfer where Party B does not gross-up: If any payment by
Party B to Party A under this Agreement is, or is likely to
be, made subject to any deduction or withholding on account of
Tax, Party B will endeavour to procure the substitution as
principal obligor under this Agreement in respect of each
affected Transaction of a Party B incorporated in another
jurisdiction approved by Party A and the Note Trustee and in
respect of which the Designated Rating Agencies confirm that
the substitution will not cause a reduction or withdrawal of
the rating of the Notes.
(iii) In section 6(b)(ii), add the words "so long as the transfer in
respect of that Transaction would not lead to a rating downgrade of
any rated debt of Party B that is secured under the Security Trust
Deed" after the words "ceases to exist" at the
11
end of the first paragraph.
(iv) In section 6(e), delete the sentence "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." at the end of the first
paragraph.
(5) In section 9, add the following new paragraphs:
"(h) Further Assurances. Each party shall, 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 which are within the powers of that
party 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.
(i) Recorded Conversation. Each party:
(A) consents to the recording of the telephone conversations of
trading and marketing personnel of that party and its
Affiliates in connection with this Agreement or any potential
Transaction; and
(B) agrees to obtain any necessary consent of, and give notice of
such recording to, such personnel of it and its Affiliates.
(j) ISDA Definitions: This Agreement, each Confirmation and each
Transaction are subject to the 1991 ISDA Definitions (as published
by the International Swap Dealers Association, Inc.) (the "ISDA
Definitions"), and will be governed in all respects by any
provisions set forth in the ISDA Definitions, without regard to any
amendments to the ISDA Definitions made after the date of this
Agreement. The ISDA Definitions are incorporated by reference in,
and shall be deemed to be part of, this Agreement and each
Confirmation.
(k) Inconsistency: In the event of any inconsistency between any two or
more of the following documents, they shall take precedence over
each other in the following descending order:
(i) any Confirmation;
(ii) the Schedule to the Master Agreement;
(iii) the other provisions of the Master Agreement;
(iv) the ISDA Definitions."
(6) Facsimile Transmissions: Replace Section 12(a)(iii) with:
"(iii) if sent by facsimile, on production of a transmission report 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 24 hours of the facsimile being
sent that the facsimile was not received in its entirety in legible
form;"
(7) Definitions: In section 14:
(i) add a new paragraph:
"Unless otherwise defined in this Agreement, terms defined in the
Security
12
Trust Deed (either expressly or by incorporation by reference) have
the same meaning where used in this Agreement."
(ii) Insert the following definitions in its appropriate alphabetical
places in Section 14:
"'Relevant Swap Transaction' means, in relation to Class A Notes,
each Transaction which is a Currency Swap for Class A Notes only,
and in relation to Class B Notes, each Transaction which is a
Currency Swap for Class B Notes only."
"'Security Trust Deed' means the Series 0000-0X XXX Xxxxx Security
Trust Deed dated on or about the date of this Agreement between
Party B as chargor, Perpetual Trustee Company Limited as security
trustee, the Trust Manager and Party A as note trustee."
(iii) Swap Transaction. Any reference to a:
(a) "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
(b) "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.
(iv) In the definition of "Market Quotation", on line 1 on page 16 of
this Agreement, replace the words "been required after that date."
with: "been required after that date and, in respect of each
Terminated Transaction which is a Relevant Swap Transaction, on the
basis that the Housing Loan Principal as defined in Series Notice
referred to in the Terminated Transaction will thereafter have an
amortisation schedule based on a constant prepayment rate per annum
("CPR") equal to:
(a) [XX%], if the Replacement Transaction is calculated within one
year of the Effective Date of the Terminated Transaction; or
(b) if the Replacement Transaction is calculated later than one
year after the Effective Date of the Terminated Transaction,
the arithmetic mean of four CPRs most recently published prior
to the relevant quotation on Bloomberg monitor service in
respect of the Class of Notes applicable to the Terminated
Transaction (based on data provided to Bloomberg by the Trust
Manager)."
(8) Other Provisions, including Credit Support:
Insert the following Sections 15, 16, 17, 18, 19, 20 and 21 after Section 14:
"15. Segregation:
The liability of Party B under this Agreement is several and is
separate in respect of each Relevant Swap Transaction. The failure
of Party B to perform its obligations in respect of any Relevant
Swap Transaction shall not release Party B from its obligations
under this Agreement or under any other Relevant Swap Transaction in
respect of any other Notes issued by Party B. Nothing in this
Agreement affects the respective priority rankings of claims against
the Mortgaged Property of Party B under the Security Trust Deed.
Without limiting the generality of the foregoing, the provisions of
this Agreement shall have effect separately and severally in respect
of each Relevant Swap Transaction and shall be enforceable by or
against Party B as though a separate agreement applied between Party
A and Party B for
13
each Relevant Swap Transaction, so that (among other things):
(i) this Agreement together with each Confirmation relating to a
Relevant Swap Transaction will form a single separate
agreement between Party A and Party B and references to the
respective obligations (including references to payment
obligations generally and in the context of provisions for the
netting of payments and the calculation of amounts due on
early termination) of Party A and Party B shall be construed
accordingly as a several reference to each mutual set of
obligations arising under each such separate agreement between
Party A and Party B;
(ii) representations made and agreements entered into by the
parties under this Agreement are made and entered separately
and severally by Party B in respect of each Relevant Swap
Transaction and may be enforced by Party B against Party A
separately and severally in respect of each Relevant Swap
Transaction;
(iii) rights of termination, and obligations and entitlements
consequent upon termination, only accrue to Party A against
Party B separately and severally in respect of each Relevant
Swap Transaction, and only accrue to Party B against Party A
separately and severally in respect of each Relevant Swap
Transaction; and
(iv) the occurrence of an Event of Default or Termination Event in
respect of a Relevant Swap Transaction does not in itself
constitute an Event of Default or Termination Event in respect
of any other Relevant Swap Transaction."
16. Recourse
Party B enters into this Agreement in its capacity as Trustee of the
Trust, and Clause 3.3(b) of the Series Notice applies to this
Agreement as if set out in full. Clause 16 of the Security Trust
Deed shall apply to govern Party A's priority to moneys received
from the sale of Assets or other enforcement of the Charge under the
Security Trust Deed. This Section 16:
(i) applies even though any other provision of this Agreement is
not made subject to it; and
ii) overrides any other provision of this Agreement which is
inconsistent with it.
17. The Manager
Party A acknowledges that the Manager will, at the request of Party
B, perform the day to day management of the Trust on the terms and
conditions of the Master Trust Deed and Series Notice. Unless
expressly advised to the contrary in writing by Party B from time to
time, any rights or obligations of Party B under this Agreement may
be exercised or satisfied (as the case may be) by the Manager on
behalf of Party B and Party A is not obliged to enquire as to the
authority of the
14
Manager to take such action on behalf of Party B. Except where the
context otherwise requires, references in this Agreement to a
"party" to this Agreement are to Party A or Party B.
18. Trust Deed
The parties acknowledge and agree that, for the purposes of the
Master Trust Deed and the Trust Documents, this Agreement is a
"Hedge Agreement" and Party A is a "Swap Provider" and "Support
Facility Provider"."
19. Replacement Currency Swap
(a) If this Agreement is terminated, Party B may, at the direction
of the Trust Manager, enter into one or more currency swaps
which replace the Transactions under this Agreement
(collectively a "Replacement Currency Swap") but only on the
condition that the Settlement Amount payable (if any) by Party
B to Party A upon termination of this Agreement will be paid
in full when due in accordance with the Series Notice and this
Agreement.
(b) If the condition in section 19(a) is satisfied, Party B may
enter into the Replacement Currency Swap and if it does so it
must direct the Replacement Currency Swap 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 as referred to in section 19(a), and to the extent
that such premium is not greater than or equal to the
Settlement Amount, the balance may be satisfied by Party B as
a Trust Expense (as defined in the Series Notice).
(c) The obligations of Party B (and the rights of Party A) under
this section 19 constitute separate and independent
obligations of Party B (and rights of Party A) and shall
survive the termination of this Agreement.
20. Credit Support
(a) In consideration of Party B entering into an agreement on the
same material terms as this Agreement with the Credit Support
Provider (the "Other Agreement") and Transactions under that
Agreement on the same material terms as Transactions under
this Agreement, the Credit Support Provider hereby
unconditionally guarantees to Party B the payment by Party A
of moneys which are payable by Party A under a Relevant Swap
Transaction (on terms set out in this Agreement and in the
Confirmation for that Relevant Swap Transaction) (the "Payable
Moneys") to Party B in the event that Party A defaults in the
payment of those Payable Moneys.
(b) If Party B has not been, or Party A reasonably expects that
Party B is not going to be, paid all or any part of the
presently payable Payable Moneys by Party A, then Party A or
Party B may by notice to the Credit Support Provider demand
payment of the Payable Moneys in respect of which demand is
being made. The Credit Support Provider's obligations to pay
the presently payable Payable Moneys which have not been paid
by Party A shall not, however, be conditional upon the Credit
Support Provider receiving such notice of demand.
(c) The Credit Support Provider agrees that it will not, unless
and until all the present and prospective Payable Moneys have
been paid, exercise
15
any rights of subrogation which it may acquire due to its
payment of Payable Moneys under section 20(a).
(d) All payments by the Credit Support Provider shall be made in
the currency in which the Payable Moneys are denominated.
(e) Party B agrees that, without affecting its rights under clause
21, to the extent that the Credit Support Provider pays the
Payable Moneys and thereby avoids or remedies a default by
Party A, Party B shall not be entitled to designate an Early
Termination Date in respect of that default by Party A, and
such a payment by the Credit Support Provider shall be deemed
to be an "actual payment" as referred to in line 6 of section
2(e) of this Agreement.
(f) The provisions of this section 20 shall constitute irrevocable
obligations of the Credit Support Provider until a notice of
revocation is served by the Credit Support Provider on Party
B, but such a notice cannot and shall not be served without
the prior written consent of Party A, the Note Trustee and the
Trust Manager in consultation with the Designated Rating
Agencies.
21. Credit Support Provider Transactions
(a) The Credit Support Provider may give a Substitution Notice to
Party B specifying a Transaction which shall be substituted
under this Section 21 (a "Replaced Transaction"), but only on
the condition that a Credit Event has occurred in respect of
Party A.
(b) If the Credit Support Provider gives a Substitution Notice
under paragraph 21(a), then either:
(i) a Substitute Transaction shall become effective and the
Effective Date shall be the date specified in the
Substitution Notice; or
(ii) both:
(A) Party B, the Credit Support Provider and the Trust
Manager must enter into an Equivalent Transaction
with a suitably rated counterparty procured by the
Credit Support Provider and accepted by Party B,
the Trust Manager and the Note Trustee (the "New
Currency Swap Provider") and the Effective Date
shall be the date specified in the Substitution
Notice as the Effective Date for the
Equivalent-Other Transaction; and
(B) an Equivalent-Other Transaction shall become
effective and the Effective Date shall be the date
specified in the Substitution Notice. The New
Currency Swap Provider must sign, and Party B, the
Credit Support Provider and the Trust Manager must
countersign, an accession as provided
16
for in the Confirmation for the Equivalent-Other
Transaction.
For the avoidance of doubt, a Substitution Notice may specify
that a Substitution Transaction will become effective in
accordance with paragraph (b)(i) or that an Equivalent
Transaction and an Equivalent Other Transaction will become
effective in accordance with paragraphs (b)(ii)(A) and (B), or
that either a Transaction under paragraph (b)(i) or
Transactions under paragraphs (b)(ii)(A) and (B) shall become
effective as alternatives. If the Substitution Notice
specifies that, as alternatives, the Transaction or
Transactions under paragraphs (b)(i) or (b)(ii)(A) and (B)
shall become effective, and if a suitably rated counterparty
is not procured by the Credit Support Provider under paragraph
(b)(ii)(A), the Substitute Transaction must become effective
in accordance with paragraph (b)(i).
(c) On the date on which the Transactions become effective in
accordance with a Substitution Notice under either paragraph
(b)(i) or (b)(ii):
(i) the Replaced Transaction shall terminate; and
(ii) the Other Transaction shall terminate.
(d) No Settlement Amount or other amount under section 6 or
section 11 shall be payable by, or to, Party B (as the case
may be) upon the termination of the Transactions under
paragraphs (c)(i) and (ii), because the Transactions specified
in paragraphs (b)(i), or (b)(ii)(A) and (B), as the case may
be, shall have the effect of preserving for Party B the
economic equivalent of the payments under the Transactions
which are being terminated.
(e) Definitions. For the purposes of this Section 21:
"Credit Event" means, in relation to Party A, the occurrence
at any time of any of the following events with respect to
Party A:
(i)(A) Failure by Party A to make, when due, any payment
under the Replaced Transaction required to be made by
it if such failure is not remedied on or before the
tenth local Business Day after notice of such failure
is given to Party A; and
(B) On any day on which a failure by Party A under paragraph
(e)(i)(A) is subsisting:
(I) the Market Value of a floating rate Reference
Obligation is below the Initial Price of such by
more than the Price Decline Requirement; or
(II) the sum of the Market Value of a fixed rate
Reference Obligation and the Interest Rate
Adjustment Amount of such is below the Initial
Price of such by more than the Price Decline
Requirement. For the purposes of this paragraph
(e)(i)(B), "Market Value", "Reference Obligation",
"Initial Price", "Price Decline Requirement" and
"Interest Rate Adjustment Amount" shall have the
meanings given in the Confirmation for the
relevant Transaction; or
(ii) the occurrence of (A) a default, event of default or
other similar
17
condition or event (however described) in respect of
Party A under one or more agreements or instruments
relating to Specified Indebtedness of Party A in an
aggregate amount of not less than the applicable
Threshold Amount which has resulted in the Specified
Indebtedness becoming due and payable under such
agreements or instruments before it would otherwise have
been due and payable, or (B) a default by Party A in
making one or more payments on the due date thereof in
an aggregate amount of not less than the applicable
Threshold Amount under such agreements or instruments
(after giving effect to any applicable notice
requirement or grace period).
For the purposes of this paragraph (e)(ii), "Specified
Indebtedness" and "Threshold Amount" shall have the
meanings given in the Confirmation for the relevant
Transaction; or
(iii) the occurrence with respect to Party A of an event
specified in Section 5(a)(vi)(1) to (9) inclusive; or
(iv) the occurrence with respect to Party A of an event
specified in Section 5(b)(i)(1); or
(v) the occurrence with respect to Party A (and not the
Credit Support Provider) of an event specified in
Section 5(a)(viii);
"Equivalent Transaction" means a Transaction governed by a new
agreement on the same material terms as this Agreement and on
the same material economic terms as the Replaced Transaction,
and with the same Trade Date as the Replaced Transaction,
except that:
(i) the New Currency Swap Provider is designated as "Party
A";
(ii) the Credit Support Provider is designated as the new
"Credit Support Provider" to Party A;
(iii) the "Effective Date" is as specified in the relevant
Confirmation for that Transaction, being the same date
as that specified in the Substitution Notice as the
Effective Date for the Equivalent-Other Transaction; and
(iv) no Initial Exchanges are payable under the Transaction.
"Equivalent-Other Transaction" means a Transaction governed by
the Other Agreement and on the same material economic terms as
the Other Transaction and with the same Trade Date as the
Replaced Transaction, except that:
(i) the New Currency Swap Provider is designated as the new
"Credit Support Provider" to Party A;
(ii) the New Currency Swap Provider is designated as the new
"Credit Support Provider" to Party A;
(iii) the "Effective Date" is as specified in the relevant
Substitution
18
Notice; and
(iv) no Initial Exchanges are payable under the Transaction.
"New Currency Swap Provider" has the meaning given in
paragraph (b)(ii)(A);
"Other Agreement" has the meaning given in section 20;
"Other Transaction" means the Transaction governed by the
Other Agreement and on the same economic terms as the Replaced
Transaction and with the same Trade Date as the Replaced
Transaction, and as specified as such in the relevant
Substitution Notice;
"Replaced Transaction" means the Transaction specified as such
in the relevant Substitution Notice, as referred to in section
21(a);
"Substitute Transaction" means a Transaction governed by the
Other Agreement, and on the same economic terms as the Other
Transaction and with the same Trade Date as the Replaced
Transaction, except that:
(i) no party is designated as a "Credit Support Provider";
(ii) the Effective Date is as specified in the relevant
Substitution Notice;
(iii) the Notional Amounts applicable to the Floating Amounts
payable by the respective parties under the Transaction
are the same as the Notional Amounts applicable to the
Floating Amounts payable by the respective parties under
the Replaced Transaction except that the references in
the Replaced Transaction to "fifty (50) percent" are
substituted by references to "one hundred (100)
percent";
(iv) no Initial Exchanges are payable; and
(v) no "Credit Support Provider Provisions" apply.
"Substitution Notice" means an irrevocable notice in writing
from the Credit Support Provider to Party B and the Trust
Manager, which may be delivered between 9.00 am and 4.00 pm in
Sydney on a Business Day in accordance with section 12, and
which:
(i) describes the occurrence of a Credit Event;
(ii) specifies the Effective Date for an Equivalent-Other
Transaction or for a Substitute Transaction, and
specifies the proposed New Currency Swap Provider and
the terms of the Equivalent-Other Transaction by
attaching a proposed Confirmation for thhe
Equivalent-Other Transaction, if required; and
(iii) confirms that the Termination Date for the Replaced
Transaction and the Other Transaction shall be the
Effective Date for the Transactions in either paragraphs
(b)(i), or (b)(ii)(A) and (B), as the case may be.
(f) Section 21 and any related provision in a Confirmation (the
"Substitution Provisions") shall not amend, or affect the
operation of, any other provision in this Agreement, except to
the extent, if any, expressly provided by the Substitution
Provisions. For the avoidance of doubt and without limitation,
the Substitution Provisions shall not amend, or affect the
operation of, the provisions of the Credit Support Annex,
sections 15 to 20 inclusive, and provisions in this Agreement
which specify certain events as Events of Default or
Termination Events.
13. Elections and Variables
(a) Security Interest for "Obligations"
The term "Obligations" as used in this Annex does not include any
additional obligations. For the avoidance of doubt, in respect of
the Obligations which are specified in the Relevant Swap
Transactions, any assumptions made for the purposes of calculating
the Peak Exposure in Paragraph 13(b)(i) or the Benefit Exposure in
Paragraph 13(b)(iv)(A) must not be applied or otherwise taken into
account for the purpose of calculating the Obligations, since those
assumptions are theoretical only and do not accurately reflect any
actual Obligations.
(b) Credit Support Obligations
(i) Delivery Amount, Return Amount and Credit Support Amount
"Delivery Amount" and "Return Amount" each has the meaning
specified in Paragraph 3.
"Credit Support Amount" means, for any Valuation Date:
(A) (I) with respect to Party A as the Secured Party,
Party A's Exposure for that Valuation Date; or
(II) with respect to Party B as the Secured Party,
Party B's Peak Exposure for that Valuation Date;
plus
(B) the aggregate of all Independent Amounts applicable to
the Pledgor, if any; minus
(C) all Independent Amounts applicable to the Secured Party,
if any; minus
(D) the Pledgor's Threshold,
provided, however, that the Credit Support Amount will be
deemed to be zero whenever the calculation of Credit Support
Amount yields a number less than zero.
"Peak Exposure" means the amount equal to Party B's maximum
credit exposure in respect of a Replacement Transaction
entered into on a date three months after the Valuation Date,
calculated by the Valuation Agent using its swap credit
exposure methodology to a 99% confidence interval, as that
methodology is updated to reflect, without limitation, the
levels of volatility current as at the Valuation Time for the
differential between USD-LIBOR-BBA and AUD-BBR-BBSW (each rate
with a Designated Maturity of three months) and the A$-US$
forward exchange rates, and assuming that from that Valuation
Date:
(I) the remaining term of the Relevant Swap
Transaction is calculated on the basis that the
Termination Date is a date, no later than 31 years
after the Effective Date of the first Transaction
in respect of the Notes, calculated by applying
the assumptions specified in subparagraph (II)
below;
(II) the Floating Rate Payer Amounts and Exchange
Amounts are calculated on the basis that the
Housing Loan Principal has an amortisation
schedule based on a constant prepayment rate of 5%
per annum thereafter,
1
as each of those terms are defined for the
Swap or in the Series Notice applicable to the
Relevant Swap Transaction
(ii) Eligible Collateral. The following items will qualify as
"Eligible Collateral" for Party A:
Valuation
Percentage
(A) negotiable debt obligations issued by the U.S. Treasury
Department having a remaining maturity of not more than
one year ("Treasury Bills") 98%
(B) negotiable debt obligations issued by the U.S. Treasury
Department having a remaining maturity of more than one
year but not more than five years ("Treasury Notes") 95%
(C) negotiable debt obligations issued by the U.S. Treasury
Department having a remaining maturity of more than five
years but not more than ten years ("Treasury Notes") 93%
(D) negotiable debt obligations issued by the U.S. Treasury
Department having a remaining maturity of more than ten
years ("Treasury Bonds") 90%
(E) Other: Agency Securities having a remaining maturity of
not more than one year 97%
Agency Securities having a remaining maturity of more than one
year but not more than five years
94%
Agency Securities having a remaining maturity of more than
five years but not more than ten
2
years
92%
Agency Securities having a remaining maturity of more than ten
years.
89%
"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, 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) "Independent Amount" means with respect to Party A, the
Additional Spread. "Additional Spread" means the amount
equal to the excess of Party B's Benefit Exposure less
Party B's Exposure, as each is calculated on the same
Valuation Date.
"Benefit Exposure" means the amount equal to Party B's
Exposure, except calculated on the basis that:
(I) the underlying swap rate for the Replacement
Transaction is equal to the underlying swap rate
for the Replacement Transaction as quoted by the
Reference Market-makers plus 0.25% additional
spread on the A$ side of the swap; and
(II) the remaining term and the Floating Rate Payer
Amounts and Exchange Amounts for the Replacement
Transaction are calculated by applying the
assumptions specified in subparagraphs (I) and
(II) of the definition of Peak Exposure in
paragraph 13(b)(i) above.
For the avoidance of doubt, the Additional Spread is
intended to represent a maximum additional bid/offer
spread of 25 swap points running payable if the
bid/offer swap rates quoted to the Secured Party were
adjusted from market rates to the benefit of the
Reference Market-makers.
"Independent Amount" means with respect to Party B:
Zero.
(B) "Threshold"
With respect to Party A:
(I) if the highest possible jointly supported credit
rating that can be assigned to senior long term
debt jointly supported by Party A and the Credit
Support Provider by Xxxxx'x Investors Service Inc
("Moody's") in accordance with Moody's approach to
jointly supported obligations, and
3
after taking into consideration the nature of the
Relevant Swap Transaction(s), is lower than A2,
(or, in the case of no Credit Support Provider
providing any credit support obligations, if the
credit rating assigned to Party A's senior long
term debt by Xxxxx'x is lower than A2) and any
Notes rated Aaa by Moody's are outstanding at that
Valuation Date, then zero; or
(II) if the highest possible jointly supported credit
rating that can be assigned to senior long term
debt jointly supported by Party A and the Credit
Support Provider by Moody's in accordance with
Moody's approach to jointly supported obligations,
and after taking into consideration the nature of
the Relevant Swap Transactions is A2 or higher,
(or, in the case of no Credit Support Provider
providing any credit support obligations, if the
credit rating assigned to Party A's senior long
term debt is A2 or higher) then infinity.
With respect to Party B: infinity.
"Minimum Transfer Amount" means with respect to both
Party A and Party B: US$100,000.
(D) Rounding. The Delivery Amount and the Return Amount will
be rounded to the nearest integral multiple of US$
10,000.
(c) Valuation and Timing
(i) "Valuation Agent" means Party A.
(ii) "Valuation Date" means:
(A) each Reset Date in respect of the Notes; and
(B) in each month in which a Reset Date does not
occur, each date which is on the same day of the
month as the Reset Dates.
The Modified Following Business Day Convention shall
apply to each date specified in subparagraphs (A) and
(B).
(iii) "Valuation Time" means the close of business on the
Local 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 on a Local Business
Day.
(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).
(ii) Consent. Not applicable.
(f) Dispute Resolution
(i) "Resolution Time"" means 11:00 am on the Local Business
Day following the date on which the notice is given that
gives rise to a dispute under paragraph 5.
(ii) "Value". Not applicable.
4
(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); provided that
the following conditions applicable to Party B are
satisfied:
(A) Party B is not a Defaulting Party;
(B) Party B's Custodian will always be the Principal
Paying Agent of the Notes (in respect of the
Relevant Swap Transaction), unless that party is
Party A; and
(C) if the Principal Paying Agent of the Notes (in
respect of the Relevant Swap Transaction) 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 Moody's, and Party B must
notify Party A in writing of this appointment and
of the relevant account for Paragraph 13(l).
(ii) Use of Posted Collateral. The provisions of paragraph
6(c) will not apply to Party B and its Custodian. Party
B's Custodian will permit Party B to secure Party B's
obligations under the relevant Notes by granting to the
Security Trustee (as defined in the Schedule to this
Agreement) a mortgage or other security over Party B's
rights in relation to the Posted Collateral, but subject
to Paragraph 11(m)(viii) of this Annex.
(h) Distributions and Interest Amount
"Interest Rate", Transfer of Interest Amount, and Alternative
to Interest Amount are not applicable.
(i) Additional Representation(s). None.
(j) Other Eligible Support and Other Posted Support
"Value" and "Transfer" with respect to Other Eligible Support
and Other Posted Support means: not applicable.
(k) Demands and Notices
All demands, specifications and notices under this Annex will
be made pursuant to the Notices Section 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,
subject to paragraph 13(x) below.
Party B: Party B must notify Party A of its Custodian's
account.
(m) Other Provisions
5
(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 one Local
Business Day of receipt of the demand; if a demand is
made after the Notification Time, then the relevant
Transfer will be made within two Local Business Days of
receipt of the demand.
(ii) Local Business Day
Unless otherwise specified in the Schedule, the place is
New York.
(iii) Party B's exposure
In calculating the amounts of Party B's Exposure, Peak
Exposure and Benefit Exposure under Paragraphs 12, and
13(b)(i) and 13(b)(iv)(A) respectively, the Valuation
Agent must:
(A) include all Transactions (or any cashflows under
any Transaction) which correspond with amounts
payable on the Relevant Reset Date by Party B's
Principal Paying Agent in respect of Class A Notes
which are then rated by Moody's with a higher
rating than the then rating of Party A's senior
long term debt; and
(B) must exclude all Transactions (or any cashflows
under any Transaction) which do not correspond
with amounts payable on the Relevant Reset Date by
Party B's Principal Paying Agent in respect of:
(I) Class A Notes which are then rated by
Moody's withthe same or lower rating than
the then rating of Party A's senior long
term debt; and
(II) Class B Notes.
For the purposes of this Paragraph (m)(iii), "Relevant
Reset Date" means:
(C) if a Reset Date occurs on the relevant Valuation
Date, then that Valuation Date; or
(D) if a Reset Date does not occur on the relevant
Valuation Date, then the next Reset Date.
(iv) Event of Default, not Potential Event of Default or
Specified Condition
Paragraph 4(a)(i) and 4(a)(ii) of the Annex are amended
by deleting the words "Potential Event of Default or
Specified Condition" and "or Specified Condition"
respectively.
Paragraph 6(c) of the Annex is amended by deleting the
words "or an Affected Party with respect to a Specified
Condition" on lines 3 and 4 and "or Specified Condition"
on lines 5 and 6.
Paragraph 8(a)(1) and 8(a)(2) of the Annex are amended
by deleting the words "or Specified Condition".
(v) Party B's expenses
Party A acknowledges that, pursuant to Section 17 of the
Agreement, Party
6
B will pay its own costs and expenses under Paragraph
10(a) from proceeds distributed as Trustee's expenses,
in accordance with instructions from the Trustee.
(vi) Governing Law notwithstanding
This Annex 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.
(vii) 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.
(viii) No pooling of Collateral with other Security Trust
security
Notwithstanding any provision in any [Trust Document]
(as defined in the Security Trust Deed), but without
prejudice to Party B's rights under Paragraph 8(a) of
this Annex, Party B shall not be entitled to deal with
the Posted Collateral in any manner inconsistent with
the right of Party A under Paragraph 8(b)(iii) of this
Annex to receive all Posted Collateral and the Interest
Amount upon payment in full of Party A's obligations
under this Agreement and no other person shall gain any
rights in relation to the Posted Collateral or the
Interest Amount that are inconsistent with that right of
Party A.
(ix) Credit Support Provider
For valuable consideration which is hereby acknowledged
by the Credit Support Provider as having been received,
the Credit Support Provider hereby unconditionally
guarantees the obligations of Party A under this Annex,
on the following terms:
(A) If Party A shall in any respect fail to perform
its obligations as Pledgor under this Annex and
the breach is not remedied within any applicable
grace period set out in paragraph 7 of this Annex,
the Credit Support Provider shall perform the
obligations of Party A as Pledgor under and in
accordance with this Annex as if references to
"Party A" were references to the "Credit Support
Provider";
(B) The Credit Support Provider shall be the "Pledgor"
in respect of all Posted Collateral which the
Credit Support Provider transfers pursuant to
paragraph 13(m)(ix)(A), notwithstanding that any
such Posted Collateral is transferred to secure
the Obligations of Party A;
(C) The provisions of this paragraph 13(m)(ix) shall
constitute irrevocable obligations of the Credit
Support Provider until a notice of revocation is
served by the Credit Support Provider on Party B.
Such a notice shall not be served without the
prior written consent of Party A and the Manager
in consultation with the Designated Rating
7
Agencies; and
(D) The Credit Support Provider shall not be
discharged or released from its obligations under
this Annex and this Agreement (including, without
limitation, the obligations under Section 20) by
any agreement, conduct, omission, breach or
repudiation by Party A or Party B, or any other
act, event or circumstance which but for this
clause would or might operate as a matter of law
to discharge, impair or otherwise affect any of
the obligations of the Credit Support Provider
under this Annex or this Agreement.
(x) Party A's Collateral and the Credit Support Provider
(A) If Party A transfers Eligible Collateral to Party
B under this Annex (the "Party A Posted
Collateral") and then a Substitution Notice is
given by the Credit Support Provider and the
Replaced Transaction is terminated in accordance
with section 21 of the Agreement, then Party B
will transfer the Party A Posted Collateral to a
Custodian as specified by Party A in accordance
with paragraph (x)(B) below.
(B) Party A shall, if a Substitution Notice is given
to it by the Credit Support Provider in accordance
with section 21 of the Agreement, demand that
Party B transfer the Party A Posted Collateral (if
any) to a Custodian specified by the Credit
Support Provider as if that Custodian were the
"Pledgor" for the purposes of returning Posted
Collateral under paragraph 3(b), and otherwise in
accordance with paragraph 3(b). Party B must
transfer the Party A Posted Collateral on or by
the Effective Date of the Substitute Transaction
or the Equivalent-Other Transaction (as specified
under section 21 of the Agreement).
(C) Party A shall direct the Custodian referred to in
paragraph (x)(B) to hold the Party A Posted
Collateral on trust for the Credit Support
Provider and shall direct the Custodian to
Transfer to the Credit Support Provider the Party
A Posted Collateral under in accordance with the
Credit Support Annex to the Master Agreement
between Party A and the Credit Support Provider
and/or otherwise as security for, or in
satisfaction (in part of in full) of amounts then
owing by Party A to the Credit Support Provider in
connection with the Replaced Transaction or the
Other Transaction, or any xxxx to market amounts
payable in respect thereof. The Custodian must
hold the Party A Posted Collateral, and must
transfer the Party A Posted Collateral, as
required by this paragraph (x)(C).
(D) The Transfer of the Party A Posted Collateral by
Party B to the Custodian in accordance with
paragraph (x)(B) shall constitute performance by
Party B of its obligations under paragraph 3(b) in
respect of the Party A Posted Collateral.
8
WESTPAC BANKING CORPORATION
Westpac Securities Administration Limited
in its capacity as trustee of the Series 0000-0X XXX Trust
Xxxxx 00, 000 Xxxx Xxxxxx
Xxxxxx
cc: Westpac Securitisation Management Pty Limited
Xxxxx 0, 00 Xxxxxx Xxxxx
Xxxxxx
Xxxxxx Guaranty Trust Company of New York
XX Xxx 000
60 Victoria Embankment
Xxxxxx XX0X OJP
Dear Sir
Currency Swap Transactions - Series 1998-1G WST Trust
Class A Mortgage Backed Floating Rate Notes
The purpose of this letter is to confirm the terms and conditions of the swap
transactions entered into between us on the Trade Dates specified below (the
"Transactions"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
1. This Confirmation supplements, forms part of, and is subject to, the
Master Agreement dated [ June] 1998, as amended and
supplemented from time to time (the "Agreement") between you and us. All
provisions contained in the Agreement govern this Confirmation except as
expressly modified below. Without limitation, Section 21 of the Agreement
shall apply to this Confirmation and the Transactions under it, as further
specified below.
2. Terms defined in the Conditions dated [ June] 1998 in respect
of the issue of US$xxx,xxx,xxx in Class A Mortgage-Backed Floating Rate
Notes due [2032] have the same meanings when used in this Confirmation.
3. The terms of the particular Transaction to which this Confirmation relate
are as specified in the Annexure to this Confirmation.
4. For the purposes of this Confirmation, Westpac Banking Corporation is
known as "Westpac", Westpac Securities Administration Limited in its
capacity as trustee of the Series 0000-0X XXX Xxxxx is known as "Trustee",
Westpac Securitisation Management Pty Limited is known as "Manager" and
Xxxxxx Guaranty Trust Company of New York, London Office, is known as
"Credit Support Provider".
5. Account Details
Payments to Westpac: to be advised
Payments to Trustee: to be advised
Page 1
WESTPAC BANKING CORPORATION
6. Offices
(a) The Office of Westpac for the Swap Transactions is LONDON; and
(b) The Office of the Trustee for the Swap Transactions is SYDNEY.
Yours sincerely,
WESTPAC BANKING CORPORATION (ARBN
007 457 141)
By:
Name:
Title:
Confirmed as of the
date above first written:
WESTPAC SECURITIES ADMINISTRATION LIMITED(ACN 000 049 472)
in its capacity as trustee of the Series 0000-0X XXX Trust
By:
------------------------------
Name:
Title:
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 000 000 000)
in its capacity as Trust Manager
By:
------------------------------
Name:
Title:
Page 2
WESTPAC BANKING CORPORATION
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
in its capacity as Credit Support Provider to Westpac
By:
------------------------------
Name:
Title:
Page 3
WESTPAC BANKING CORPORATION
Annexure 1 - Class A Notes
Westpac Deal Number [ ]
Trade Date: [ June] 1998
Effective Date: Closing Date
Termination Date: Final Maturity Date (adjusted in accordance
with the Modified Following Business Day
Convention)
Floating Interest Amounts
Floating Amounts Payable by Westpac:
These Floating Amounts are payable by Westpac unless there is, on any Floating
Rate Payer Payment Date, any reduction in Class A Interest resulting from a
reduction in A$ Class A Interest Amount pursuant to clause [6.17(a)(ii)(A)] of
the Series Notice (as specified in a notice to Westpac by the Determination
Time), in which case the Floating Amount shall be reduced by the same proportion
as the reduction in the A$ Class A Interest Amount.
Floating Rate Payer: Westpac
Notional Amount: An amount equal to fifty (50) percent of the
total Invested Amount of all Class A Notes
as at the first day of the Interest Period
ending on but excluding the relevant
Floating Rate Payer Payment Date
Page 4
WESTPAC BANKING CORPORATION
Floating Rate Payer Payment Dates: Each Payment Date up to, and including the
last Payment Date prior to Maturity Date,
and the Termination Date
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: Three months
Spread: Plus [ ] percent
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
Page 5
WESTPAC BANKING CORPORATION
Floating Amounts Payable by the Trustee:
These Floating Amounts are payable by the Trustee unless there is, on any
Floating Rate Payer Payment Date, any reduction in A$ Class A Interest Amount
pursuant to clause [6.17(a)(ii)(A)] of the Series Notice (as specified in a
notice by the Trustee or Trust Manager to Westpac by the Determination Time), in
which case instead of the Floating Amount Trustee shall pay an amount equal to
the lesser A$ amount specified in that notice on that Floating Rate Payer
Payment Date.
Floating Rate Payer: Trustee
Notional Amount: An amount equal to fifty (50) percent of the
A$ Equivalent (applying USD 0.6[ ]) of the
total Invested Amount of all Class_A Notes
as at the first day of the Interest Period
ending on but excluding the relevant
Floating Rate Payer Payment Date
Floating Rate Payer Payment Dates: Each Payment Date up to and including the
last Payment Date prior to Maturity Date,
and the Termination Date
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: 90 days
Spread: Plus 0.[ ] percent
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Page 6
WESTPAC BANKING CORPORATION
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
Page 7
WESTPAC BANKING CORPORATION
Exchanges
Initial Exchange:
Initial Exchange Date: Closing Date
Westpac Pays Initial Exchange: An amount equal to fifty (50) percent of the
total Class A Initial Invested Amount of all
Class A Notes on the Closing Date divided by
the exchange rate of USD 0.6[ ] being
(AUD [ ])
Trustee Pays Initial Exchange: An amount equal to fifty (50) percent of the
total of the Class A Initial Invested Amount
of all of the Class A Notes on the Closing
Date being USD [ ]
Instalment Exchange
Instalment Exchange Date Each Payment Date (other than a Final
Exchange Date
Westpac Pays Instalment Exchange: An amount equal to fifty (50) percent of the
Class A Principal Payment paid on the
relevant Instalment Exchange Date towards a
reduction of the Principal Amount of Class A
Notes, as calculated by multiplying the
Trustee Instalment Exchange Payment on the
relevant Instalment Exchange Date by the
exchange rate of USD 0.6[ ]
Page 8
WESTPAC BANKING CORPORATION
Trustee Pays Instalment Exchange: An amount equal to fifty (50) percent of the
amount expressed under clause [6.14, 6.15 or
6.16] (as applicable) of the Series Notice
as being payable under a Confirmation
relating to Class A Notes plus any amount
payable under clause [6.11(a)(ii)(C)] of the
Series Notice (together, the "Trustee
Instalment Exchange Payment") as specified
in the notice issued by the Trustee (or
Trust Manager to Westpac by the
Determination Time in respect of that
Instalment Exchange Date
Page 9
WESTPAC BANKING CORPORATION
Final Exchange:
Final Exchange Date: The earlier of the Termination Date and the
Date of the [10% Clean Up under clause
8.9(d)] of the Master Trust Deed as amended
by the Series Notice and the date of
redemption of all the Class A Notes for
taxation or other reasons, adjusted in
accordance with the Modified Following
Business Day Convention
Westpac Pays Final Exchange: An amount equal to fifty (50) percent of the
aggregate Final Exchange payable by the
Trustee under this Confirmation, multiplied
by the exchange rate of USD 0.6[ ]
Trustee Pays Final Exchange: An amount equal to fifty (50) percent of the
aggregate amount expressed under clause
[6.14, 6.15 or 6.16] (as applicable) of the
Series Notice as being payable under a
Confirmation relating to Class A Notes plus
any amount payable under clause
[6.11(a)(ii)(C)] of the Series Notice as
specified in the Notice issued by the
Trustee (or Trust Manager) to Westpac by the
Determination Time in respect of that Final
Exchange Date
Business Day Locations for Trustee: Sydney
Business Day Locations for Westpac: New York, London
Page 10
WESTPAC BANKING CORPORATION
Payments will be: Gross
Page 11
WESTPAC BANKING CORPORATION
Glossary
1. Terms defined in the Series Notice:
A$ Equivalent Invested Amount
Class A Initial Invested Amount Maturity Date
Class A Notes Payment Date
Closing Date Principal Payment
Interest Period Trust Manager
2. Terms defined in the Agreement (including 1991 ISDA Definitions) are:
Actual/360
Actual/365 (Fixed)
AUD-BBR-BBSW
Modified Following Business Day Convention
Replaced Transaction
USD-LIBOR-BBA
3. Terms defined in this Confirmation:
Agreement
Trustee
"Determination Time" means 5.00 pm Sydney time 4 Sydney Business Days prior to
the relevant Payment Date or other applicable exchange date.
Westpac
Page 12
WESTPAC BANKING CORPORATION
Credit Support Provider Provisions
Each Transaction under this Confirmation shall be capable of being specified as
a Replaced Transaction in accordance with the provisions of Section 21 of the
Agreement. Those provisions shall apply as further specified below.
1. Definitions for Credit Events
"Calculation Agent" means the party to the Transaction (or a third party)
designated as such for the Transaction. The Calculation Agent's
calculations and determinations shall be made in good faith, in a
commercially reasonable manner and be binding in the absence of manifest
error [Credit Support Provider];
"Initial Price" means, with respect to any Reference Obligation, the
percentage listed with respect thereto in the definition of Reference
Obligation herein as the Initial Price;
"Interest Rate Adjustment Amount" means, with respect to any Reference
Obligation, the absolute value of the difference between (i) the Xxxx to
Market Value and (ii) 100% minus the Initial Price;
"Xxxx to Market Value" means, in the determination of the Calculation
Agent, with respect to any Reference Obligation, on any day, the xxxx to
market value payable on that day (expressed as a percentage of the
notional amount thereof), of a hypothetical interest rate swap commencing
on the Effective Date between a hypothetical party ("Party X") and a
counterparty with the highest long term senior debt rating of each Rating
Agency, which swap has a notional amount equal to the Floating Rate Payer
Calculation Amount and under which Party X (i) pays the Xxxx to Market
Rate plus the Initial Spread and (ii) receives a fixed interest amount
equal in amount and timing to the coupons on the Reference Obligation. If,
under such swap, Party X would be due to pay such xxxx to market value,
Xxxx to Market Value will be negative and, if Party X would be due to
receive such xxxx to market value, the Xxxx to Market Value will be
positive.
"Market Value" means, in accordance with the Quotation Method, the
percentage equal to the arithmetic mean of quotations (exclusive of
accrued but unpaid interest and expressed as a percentage) obtained from
Dealers with respect to a Valuation Date in the manner provided below. In
obtaining such price quotations from Dealers, the Calculation Agent will
request each Dealer to provide firm bid and offer quotations for an
aggregate amount of the Reference Obligation equal to the Quotation Amount
to the extent reasonably practicable as of the Valuation Time on such
Valuation Date. If more than three quotations are provided on such date,
the Market Value shall be the arithmetic mean of such quotations without
regard to the quotations having the highest and lowest values. If exactly
three quotations are provided, the Market Value shall 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 exactly two
quotations are provided, the Market Value shall be the arithmetic mean of
such quotations. If fewer than two quotations are provided, then the
Market Value shall be an amount as determined by the Calculation Agent on
the next Business Day on which at least two quotations are provided by
Dealers. If the Calculation Agent is unable to calculate the Market Value
prior to the fifth
Page 13
WESTPAC BANKING CORPORATION
Business Day following the applicable Valuation Date, then the Calculation
Agent shall determine the Market Value for such Valuation Date in its
reasonable discretion;
"Quotation Method":
[Mid-market means that only the arithmetic mean of the bid and offer
quotations provided by Dealers that have provided both bid and offer
quotations shall be used in the calculation of Market Value.];
"Reference Obligation" means the obligation(s) as follows:
Issuer/Borrower: [ ]
Guarantor: [ ]
Maturity: [ ]
Coupon: [ ]
CUSIP/ISIN: [ ]
Original Issue Amount: [ ]
Initial Price: [ ]
Initial Spread: [ ];
"Specified Indebtedness" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise in respect of
money borrowed or raised or under any finance lease, redeemable preference
share, letter of credit, futures contract, guarantee, indemnity or a
transaction of a type described in the last 6 lines of the definition of
Specified Transaction.
"Threshold Amount" means [US$25,000,000]
"Valuation Time" - [ ]
2. The parties acknowledge that on the Effective Date of the Substitute
Transaction or the Equivalent Transaction, Party A shall pay to the Credit
Support Provider (in the case of the Substitute Transaction) or to the new
Currency Swap Provider (in the case of the Equivalent Transaction) the
amount equal to the amount (if a positive number) that hypothetically
would have been payable by Party A to Party B under Section 6(e)(i)(3) if:
(a) the Transaction had been terminated;
(b) an Early Termination Date had occurred on the Effective Date; and
(c) Section 21 had not applied in respect of the Transaction.
Any such amount shall be payable by Party A to the Credit Support Provider
in accordance with the provisions of the relevant Master Agreement between
Party A and the Credit Support Provider (in the case of the Substitute
Transaction) or to the New Currency Swap Provider in accordance with the
relevant Master Agreement between Party A and the New Currency Swap
Provider (in the case of the Equivalent Transaction).
WESTPAC BANKING CORPORATION
Annexure 2 - Class A Notes - "Substitute Transaction"
Westpac Deal Number [ ]
Trade Date: [ June] 1998
Effective Date: The Effective Date shall be the date
specified in a Substitution Notice given by
Westpac as Credit Support Provider under the
Other Agreement.
The Effective Date shall not occur if the
conditions in respect of the Substitution
Notice have not been satisfied in full in
accordance with the Other Agreement.
Termination Date: Final Maturity Date (adjusted in accordance
with the Modified Following Business Day
Convention)
Floating Interest Amounts
Floating Amounts Payable by Westpac:
These Floating Amounts are payable by Westpac unless there is, on any Floating
Rate Payer Payment Date, any reduction in Class A Interest resulting from a
reduction in A$ Class A Interest Amount pursuant to clause [6.17(a)(ii)(A)] of
the Series Notice (as specified in a notice to Westpac by the Determination
Time), in which case the Floating Amount shall be reduced by the same proportion
as the reduction in the A$ Class A Interest Amount.
Floating Rate Payer: Westpac
Page 1
WESTPAC BANKING CORPORATION
Notional Amount: An amount equal to the total Invested Amount
of all Class A Notes as at the first day of
the Interest Period ending on but excluding
the relevant Floating Rate Payer Payment
Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective
Date up to, and including the last Payment
Date prior to Maturity Date, and the
Termination Date
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: Three months
Spread: Plus [ ] percent
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
Page 2
WESTPAC BANKING CORPORATION
Floating Amounts Payable by the Trustee:
These Floating Amounts are payable by the Trustee unless there is, on any
Floating Rate Payer Payment Date, any reduction in A$ Class A Interest Amount
pursuant to clause [6.17(a)(ii)(A)] of the Series Notice (as specified in a
notice by the Trustee or Trust Manager to Westpac by the Determination Time), in
which case instead of the Floating Amount Trustee shall pay an amount equal to
the lesser A$ amount specified in that notice on that Floating Rate Payer
Payment Date.
Floating Rate Payer: Trustee
Notional Amount: An amount equal to the A$ Equivalent
(applying USD 0.6[ ]) of the total Invested
Amount of all Class_A Notes as at the first
day of the Interest Period ending on but
excluding the relevant Floating Rate Payer
Payment Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective
Date up to and including the last Payment
Date prior to Maturity Date, and the
Termination Date
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: 90 days
Spread: Plus 0.[ ] percent
Page 3
WESTPAC BANKING CORPORATION
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
Page 4
WESTPAC BANKING CORPORATION
Exchanges
Instalment Exchange
Instalment Exchange Date Each Payment Date on or after the Effective
Date (other than a Final Exchange Date)
Westpac Pays Instalment Exchange: An amount equal to the Class A Principal
Payment paid on the relevant Instalment
Exchange Date towards a reduction of the
Principal Amount of Class A Notes, as
calculated by multiplying the Trustee
Instalment Exchange Payment on the relevant
Instalment Exchange Date by the exchange
rate of USD 0.6[ ]
Trustee Pays Instalment Exchange: An amount equal to the amount expressed
under clause [6.14, 6.15 or 6.16] (as
applicable) of the Series Notice as being
payable under a Confirmation relating to
Class A Notes plus any amount payable under
clause [6.11(a)(ii)(C)] of the Series Notice
(together, the "Trustee Instalment Exchange
Payment") as specified in the notice issued
by the Trustee (or Trust Manager to Westpac
by the Determination Time in respect of that
Instalment Exchange Date
Final Exchange
Page 5
WESTPAC BANKING CORPORATION
Final Exchange Date: The earlier of the Termination Date and the
Date of the [10% Clean Up under clause
8.9(d)] of the Master Trust Deed as amended
by the Series Notice and the date of
redemption of all the Class A Notes for
taxation or other reasons, adjusted in
accordance with the Modified Following
Business Day Convention
Westpac Pays Final Exchange: An amount equal to the aggregate Final
Exchange payable by the Trustee under this
Confirmation, multiplied by the exchange
rate of USD 0.6[ ]
Trustee Pays Final Exchange: An amount equal to the aggregate amount
expressed under clause [6.14, 6.15 or 6.16]
(as applicable) of the Series Notice as
being payable under a Confirmation relating
to Class A Notes plus any amount payable
under clause [6.11(a)(ii)(C)] of the Series
Notice as specified in the Notice issued by
the Trustee (or Trust Manager) to Westpac by
the Determination Time in respect of that
Final Exchange Date
Business Day Locations for Trustee: Sydney
Business Day Locations for Westpac: New York, London
Payments will be: Gross
Page 6
WESTPAC BANKING CORPORATION
Glossary
1. Terms defined in the Series Notice:
A$ Equivalent Invested Amount
Class A Initial Invested Amount Maturity Date
Class A Notes Payment Date
Closing Date Principal Payment
Interest Period Trust Manager
2. Terms defined in the Agreement (including 1991 ISDA Definitions) are:
Actual/360
Actual/365 (Fixed)
AUD-BBR-BBSW
Modified Following Business Day Convention
Other Agreement. For the avoidance of doubt the Other Agreement is the agreement
between Xxxxxx Guaranty Trust Company of New York, London office as Party A, the
Trustee as Party B, Westpac as the Credit Support Provider to Party A and the
Manager, dated on or about the date of the Agreement.
Substitution Notice
USD-LIBOR-BBA
3. Terms defined in this Confirmation:
Agreement
Trustee
Page 7
WESTPAC BANKING CORPORATION
"Determination Time" means 5.00 pm Sydney time 4 Sydney Business Days prior to
the relevant Payment Date or other applicable exchange date. Westpac
Page 8
WESTPAC BANKING CORPORATION
Annexure 3 - Class A Notes -
"Equivalent-Other Transaction"
Westpac Deal Number [ ]
Trade Date: [ June] 1998
Effective Date: The Effective Date shall be the date
specified in a Substitution Notice given by
Westpac as Credit Support Provider under the
Other Agreement.
The Effective Date shall not occur if the
conditions in respect of the Substitution
Notice have not been satisfied in full in
accordance with the Other Agreement.
Termination Date: Final Maturity Date (adjusted in accordance
with the Modified Following Business Day
Convention)
Floating Interest Amounts
Floating Amounts Payable by Westpac:
These Floating Amounts are payable by Westpac unless there is, on any Floating
Rate Payer Payment Date, any reduction in Class A Interest resulting from a
reduction in A$ Class A Interest Amount pursuant to clause [6.17(a)(ii)(A)] of
the Series Notice (as specified in a notice to Westpac by the Determination
Time), in which case the Floating Amount shall be reduced by the same proportion
as the reduction in the A$ Class A Interest Amount.
Floating Rate Payer: Westpac
Notional Amount: An amount equal to fifty (50) percent of the
total Invested Amount for all Class A Notes
as at the first day of the Interest Period
ending on but excluding the relevant
Floating Rate Payer Payment Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective
Date up to, and including the last Payment
Date prior to Maturity Date, and the
Termination Date
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: Three months
Spread: Plus [ ] percent
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
WESTPAC BANKING CORPORATION
Floating Amounts Payable by the Trustee:
These Floating Amounts are payable by the Trustee unless there is, on any
Floating Rate Payer Payment Date, any reduction in A$ Class A Interest Amount
pursuant to clause [6.17(a)(ii)(A)] of the Series Notice (as specified in a
notice by the Trustee or Trust Manager to Westpac by the Determination Time), in
which case instead of the Floating Amount Trustee shall pay an amount equal to
the lesser A$ amount specified in that notice on that Floating Rate Payer
Payment Date.
Floating Rate Payer: Trustee
Notional Amount: An amount equal to fifty (50) percent of the
A$ Equivalent (applying USD 0.6[ ]) of the
total Invested Amount for all Class A Notes
as at the first day of the Interest Period
ending on but excluding the relevant
Floating Rate Payer Payment Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective
Date up to and including the last Payment
Date prior to Maturity Date, and the
Termination Date
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: 90 days
Spread: Plus 0.[ ] percent
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
Page 2
WESTPAC BANKING CORPORATION
Exchanges
Instalment Exchange
Instalment Exchange Date Each Payment Date on or after the Effective
Date (other than a Final Exchange Date
Westpac Pays Instalment Exchange: An amount equal to fifty (50) percent of the
Class A Principal Payment paid on the
relevant Instalment Exchange Date towards a
reduction of the Principal Amount of Class A
Notes, as calculated by multiplying the
Trustee Instalment Exchange Payment on the
relevant Instalment Exchange Date by the
exchange rate of USD 0.6[ ]
Trustee Pays Instalment Exchange: An amount equal to fifty (50) percent of the
amount expressed under clause [6.14, 6.15 or
6.16] (as applicable) of the Series Notice
as being payable under a Confirmation
relating to Class A Notes plus any amount
payable under clause [6.11(a)(ii)(C)] of the
Series Notice (together, the "Trustee
Instalment Exchange Payment") as specified
in the notice issued by the Trustee (or
Trust Manager to Westpac by the
Determination Time in respect of that
Instalment Exchange Date
Page 3
WESTPAC BANKING CORPORATION
Final Exchange:
Final Exchange Date: The earlier of the Termination Date and the
Date of the [10% Clean Up under clause
8.9(d)] of the Master Trust Deed as amended
by the Series Notice and the date of
redemption of all the Class A Notes for
taxation or other reasons, adjusted in
accordance with the Modified Following
Business Day Convention
Westpac Pays Final Exchange: An amount equal to fifty (50) percent of the
aggregate Final Exchange payable by the
Trustee under this Confirmation, multiplied
by the exchange rate of USD 0.6[ ]
Trustee Pays Final Exchange: An amount equal to fifty (50) percent of the
aggregate amount expressed under clause
[6.14, 6.15 or 6.16] (as applicable) of the
Series Notice as being payable under a
Confirmation relating to Class A Notes plus
any amount payable under clause
[6.11(a)(ii)(C)] of the Series Notice as
specified in the Notice issued by the
Trustee (or Trust Manager) to Westpac by the
Determination Time in respect of that Final
Exchange Date
Business Day Locations for Trustee: Sydney
Business Day Locations for Westpac: New York, London
Payments will be: Gross
Page 4
WESTPAC BANKING CORPORATION
Glossary
1. Terms defined in the Series Notice:
A$ Equivalent Invested Amount
Class A Initial Invested Amount Maturity Date
Class A Notes Payment Date
Closing Date Principal Payment
Interest Period Trust Manager
2. Terms defined in the Agreement (including 1991 ISDA Definitions) are:
Actual/360
Actual/365 (Fixed)
AUD-BBR-BBSW
Modified Following Business Day Convention
Other Agreement. For the avoidance of doubt the Other Agreement is the agreement
between Xxxxxx Guaranty Trust Company of New York, London office as Party A, the
Trustee as Party B, Westpac as the Credit Support Provider to Party A and the
Manager, dated on or about the date of the Agreement.
Replaced Transaction
USD-LIBOR-BBA
3. Terms defined in this Confirmation:
Agreement
Trustee
"Determination Time" means 5.00 pm Sydney time 4 Sydney Business Days prior to
the relevant Payment Date or other applicable exchange date. Westpac
Credit Support Provider Provisions
Each Transaction under this Confirmation shall be capable of being specified as
a Replaced Transaction in accordance with the provisions of Section 21 of the
Agreement. Those provisions shall apply as further specified below.
1. Definitions for Credit Events
"Calculation Agent" means the party to the Transaction (or a third party)
designated as such for the Transaction. The Calculation Agent's
calculations and determinations shall be made in good faith, in a
commercially reasonable manner and be binding in the absence of manifest
error [Credit Support Provider];
"Initial Price" means, with respect to any Reference Obligation, the
percentage listed with respect thereto in the definition of Reference
Obligation herein as the Initial Price;
"Interest Rate Adjustment Amount" means, with respect to any Reference
Obligation, the absolute value of the difference between (i) the Xxxx to
Market Value and (ii) 100% minus the Initial Price;
"Xxxx to Market Value" means, in the determination of the Calculation
Agent, with respect to any Reference Obligation, on any day, the xxxx to
market value payable on that day (expressed as a percentage of the
notional amount thereof), of a hypothetical interest rate swap commencing
on the Effective Date between a hypothetical party ("Party X") and a
counterparty with the highest long term senior debt rating of each Rating
Agency, which swap has a notional amount equal to the Floating Rate Payer
Calculation Amount and under which Party X (i) pays the Xxxx to Market
Rate plus the Initial Spread and (ii) receives a fixed interest amount
equal in
Page 5
WESTPAC BANKING CORPORATION
amount and timing to the coupons on the Reference Obligation. If, under
such swap, Party X would be due to pay such xxxx to market value, Xxxx to
Market Value will be negative and, if Party X would be due to receive such
xxxx to market value, the Xxxx to Market Value will be positive.
"Market Value" means, in accordance with the Quotation Method, the
percentage equal to the arithmetic mean of quotations (exclusive of
accrued but unpaid interest and expressed as a percentage) obtained from
Dealers with respect to a Valuation Date in the manner provided below. In
obtaining such price quotations from Dealers, the Calculation Agent will
request each Dealer to provide firm bid and offer quotations for an
aggregate amount of the Reference Obligation equal to the Quotation Amount
to the extent reasonably practicable as of the Valuation Time on such
Valuation Date. If more than three quotations are provided on such date,
the Market Value shall be the arithmetic mean of such quotations without
regard to the quotations having the highest and lowest values. If exactly
three quotations are provided, the Market Value shall 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 exactly two
quotations are provided, the Market Value shall be the arithmetic mean of
such quotations. If fewer than two quotations are provided, then the
Market Value shall be an amount as determined by the Calculation Agent on
the next Business Day on which at least two quotations are provided by
Dealers. If the Calculation Agent is unable to calculate the Market Value
prior to the fifth Business Day following the applicable Valuation Date,
then the Calculation Agent shall determine the Market Value for such
Valuation Date in its reasonable discretion;
"Quotation Method":
[Bid means that only the bid quotations provided by Dealers shall be
used in the calculation of Market Value] or
[Offer means that only the offer quotations provided by Dealers
shall be used in the calculation of Market Value.] or
[Mid-market means that only the arithmetic mean of the bid and offer
quotations provided by Dealers that have provided both bid and offer
quotations shall be used in the calculation of Market Value.];
"Reference Obligation" means the obligation(s) as follows:
Issuer/Borrower: [ ]
Guarantor: [ ]
Maturity: [ ]
Coupon: [ ]
CUSIP/ISIN: [ ]
Original Issue Amount: [ ]
Initial Price: [ ]
Initial Spread: [ ];
"Specified Indebtedness" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise in respect of
money borrowed or raised or under any finance lease, redeemable preference
share, letter of credit, futures contract, guarantee, indemnity or a
transaction of a type described in the last 6 lines of the definition of
Specified Transaction.
"Threshold Amount" means [US$25,000,000]
"Valuation Time" - [ ]
2. The parties acknowledge that on the Effective Date of the Substitute
Transaction or the Equivalent Transaction, Party A shall pay to the Credit
Support Provider (in the case of the Substitute Transaction) or to the new
Currency Swap Provider (in the case of the Equivalent Transaction) the
amount equal to the amount (if a positive number) that hypothetically
would have been payable by Party A to Party B under Section 6(e)(i)(3) if:
(a) the Transaction had been terminated;
(b) an Early Termination Date had occurred on the Effective Date; and
Page 6
WESTPAC BANKING CORPORATION
(c) Section 21 had not applied in respect of the Transaction.
Any such amount shall be payable by Party A to the Credit Support Provider
in accordance with the provisions of the relevant Master Agreement between
Party A and the Credit Support Provider (in the case of the Substitute
Transaction) or to the New Currency Swap Provider in accordance with the
relevant Master Agreement between Party A and the New Currency Swap
Provider (in the case of the Equivalent Transaction).
Page 7
WESTPAC BANKING CORPORATION
ACCESSION BY NEW CURRENCY SWAP PROVIDER
As specified in the Substitution Notice given by Westpac under the Other
Agreement, we agree to be the Credit Support Provider to Westpac as governed by
the terms of the Agreement, in respect of the Transaction specified by this
Annexure 3, and we agree that all references in the Agreement and this
Transaction to "Credit Support Provider" shall be to us, and for consideration
which we acknowledge as having been received, we hereby accept the accession to
us of all the rights and obligations as Credit Support Provider as and from the
Effective Date of this Transaction.
Agreed and accepted as the new Credit
Support Provider:
By:
Name:
Title:
Agreed and confirmed as of the Effective Date of the Transaction specified
in this Annexure 3:
WESTPAC SECURITIES ADMINISTRATION LIMITED(ACN 000 049 472)
in its capacity as Party B
By:
------------------------------
Name:
Title:
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 000 000 000)
in its capacity as Trust Manager
By:
------------------------------
Name:
Title:
WESTPAC BANKING CORPORATION (ARBN 007 457 141)
in its capacity as Party A
By:
------------------------------
Name:
Title:
Page 8
WESTPAC BANKING CORPORATION
Westpac Securities Administration Limited
in its capacity as trustee of the
Series 0000-0X XXX Trust
Xxxxx 00, 000 Xxxx Xxxxxx Xxxxxx
cc: Westpac Securitisation Management Pty Limited
Xxxxx 0, 00 Xxxxxx Xxxxx
Xxxxxx
Xxxxxx Guaranty Trust Company of New York
XX Xxx 000
60 Victoria Embankment
Xxxxxx XX0X OJP
Dear Sir
Currency Swap Transactions - Series 1998-1G WST Trust
Class B Mortgage Backed Floating Rate Notes
The purpose of this letter is to confirm the terms and conditions of the swap
transactions entered into between us on the Trade Dates specified below (the
"Transactions"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
1. This Confirmation supplements, forms part of, and is subject to, the
Master Agreement dated [ June] 1998, as amended and supplemented from
time to time (the "Agreement") between you and us. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified below. Without limitation, Section 21 of the Agreement shall
apply to this Confirmation and the Transactions under it, as further
specified below.
2. Terms defined in the Conditions dated [ June] 1998 in respect of the
issue of US$xxx,xxx,xxx in Class B Mortgage-Backed Floating Rate Notes due
[2032] have the same meanings when used in this Confirmation.
3. The terms of the particular Transaction to which this Confirmation relate
are as specified in the Annexure to this Confirmation.
4. For the purposes of this Confirmation, Westpac Banking Corporation is
known as "Westpac", Westpac Securities Administration Limited in its
capacity as trustee of the Series 0000-0X XXX Xxxxx is known as "Trustee",
Westpac Securitisation Management Pty Limited is known as "Manager" and
Xxxxxx Guaranty Trust Company of New York, London Office, is known as
"Credit Support Provider".
5. Account Details
Payments to Westpac: to be advised
Payments to Trustee: to be advised
Page 1
WESTPAC BANKING CORPORATION
6. Offices
(a) The Office of Westpac for the Swap Transactions is LONDON; and
(b) The Office of the Trustee for the Swap Transactions is SYDNEY.
Yours sincerely,
WESTPAC BANKING CORPORATION (ARBN
007 457 141)K
By:
Name:
Title:
Confirmed as of the date above first written:
WESTPAC SECURITIES ADMINISTRATION LIMITED(ACN 000 049 472)
in its capacity as trustee of the Series 0000-0X XXX Trust
By:______________________________
Name:
Title:
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 000 000 000)
in its capacity as Trust Manager
By:______________________________
Name:
Title:
Page 2
WESTPAC BANKING CORPORATION
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
in its capacity as Credit Support Provider to Westpac
By:______________________________
Name:
Title:
Page 3
WESTPAC BANKING CORPORATION
Annexure 1 - Class B Notes
Westpac Deal Number [ ]
Trade Date: [ June] 1998
Effective Date: Closing Date
Termination Date: Final Maturity Date (adjusted in
accordance with the Modified
Following Business Day Convention)
Floating Interest Amounts
Floating Amounts Payable by Westpac:
These Floating Amounts are payable by Westpac unless there is, on any Floating
Rate Payer Payment Date, any reduction in Class B Interest resulting from a
reduction in A$ Class B Interest Amount pursuant to clause [6.17(a)(ii)(A)] of
the Series Notice (as specified in a notice to Westpac by the Determination
Time), in which case the Floating Amount shall be reduced by the same proportion
as the reduction in the A$ Class B Interest Amount.
Floating Rate Payer: Westpac
Notional Amount: An amount equal to fifty (50)
percent of the total Invested Amount
of all Class B Notes as at the first
day of the Interest Period ending on
but excluding the relevant Floating
Rate Payer Payment Date
Page 4
WESTPAC BANKING CORPORATION
Floating Rate Payer Payment Dates: Each Payment Date up to, and
including the last Payment Date
prior to Maturity Date, and the
Termination Date
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: Three months
Spread: Plus [ ] percent
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Interest
Period
Compounding: Inapplicable
Page 5
WESTPAC BANKING CORPORATION
Floating Amounts Payable by the Trustee:
These Floating Amounts are payable by the Trustee unless there is, on any
Floating Rate Payer Payment Date, any reduction in A$ Class B Interest Amount
pursuant to clause [6.17(a)(ii)(A)] of the Series Notice (as specified in a
notice by the Trustee or Trust Manager to Westpac by the Determination Time), in
which case instead of the Floating Amount Trustee shall pay an amount equal to
the lesser A$ amount specified in that notice on that Floating Rate Payer
Payment Date.
Floating Rate Payer: Trustee
Notional Amount: An amount equal to fifty (50)
percent of the A$ Equivalent
(applying USD 0.6[ ]) of the total
Invested Amount of all Class < 0- 95 >A
Notes as at the first day of the
Interest Period ending on but
excluding the relevant Floating Rate
Payer Payment Date
Floating Rate Payer Payment Dates: Each Payment Date up to and
including the last Payment Date
prior to Maturity Date, and the
Termination Date
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: 90 days
Spread: Plus 0.[ ] percent
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Page 6
WESTPAC BANKING CORPORATION
Reset Dates: The first day of each Interest
Period
Compounding: Inapplicable
Page 7
WESTPAC BANKING CORPORATION
Exchanges
Initial Exchange:
Initial Exchange Date: Closing Date
Westpac Pays Initial Exchange: An amount
equal to fifty (50) percent of the
total Class B Initial Invested
Amount of all Class B Notes on the
Closing Date divided by the exchange
rate of USD 0.6[ ] being (AUD [ ])
Trustee Pays Initial Exchange: An amount equal to fifty (50)
percent of the total of the Class B
Initial Invested Amount of all of
the Class B Notes on the Closing
Date being USD [ ]
Instalment Exchange
Instalment Exchange Date Each Payment Date (other than a
Final Exchange Date
Westpac Pays Instalment Exchange: An amount equal to fifty (50)
percent of the Class B Principal
Payment paid on the relevant
Instalment Exchange Date towards a
reduction of the Principal Amount of
Class B Notes, as calculated by
multiplying the Trustee Instalment
Exchange Payment on the relevant
Instalment Exchange Date by the
exchange rate of USD 0.6[ ]
Page 8
WESTPAC BANKING CORPORATION
Trustee Pays Instalment Exchange: An amount equal to fifty (50)
percent of the amount expressed
under clause [6.14, 6.15 or 6.16]
(as applicable) of the Series Notice
as being payable under a
Confirmation relating to Class B
Notes plus any amount payable under
clause [6.11(a)(ii)(C)] of the
Series Notice (together, the
"Trustee Instalment Exchange
Payment") as specified in the notice
issued by the Trustee (or Trust
Manager to Westpac by the
Determination Time in respect of
that Instalment Exchange Date
Page 9
WESTPAC BANKING CORPORATION
Final Exchange:
Final Exchange Date: The earlier of the Termination Date
and the Date of the [10% Clean Up
under clause 8.9(d)] of the Master
Trust Deed as amended by the Series
Notice and the date of redemption of
all the Class B Notes for taxation
or other reasons, adjusted in
accordance with the Modified
Following Business Day Convention
Westpac Pays Final Exchange: An amount equal to fifty (50)
percent of the aggregate Final
Exchange payable by the Trustee
under this Confirmation, multiplied
by the exchange rate of USD 0.6[ ]
Trustee Pays Final Exchange: An amount equal to fifty (50)
percent of the aggregate amount
expressed under clause [6.14, 6.15
or 6.16] (as applicable) of the
Series Notice as being payable under
a Confirmation relating to Class B
Notes plus any amount payable under
clause [6.11(a)(ii)(C)] of the
Series Notice as specified in the
Notice issued by the Trustee (or
Trust Manager) to Westpac by the
Determination Time in respect of
that Final Exchange Date
Business Day Locations for Trustee: Sydney
Business Day Locations for Westpac: New York, London
Page 10
WESTPAC BANKING CORPORATION
Payments will be: Gross
Page 11
WESTPAC BANKING CORPORATION
Glossary
1. Terms defined in the Series Notice:
A$ Equivalent Invested Amount
Class B Initial Invested Amount Maturity Date
Class B Notes Payment Date
Closing Date Principal Payment
Interest Period Trust Manager
2. Terms defined in the Agreement (including 1991 ISDA Definitions) are:
Actual/360
Actual/365 (Fixed)
AUD-BBR-BBSW
Modified Following Business Day Convention
Replaced Transaction
USD-LIBOR-BBA
3. Terms defined in this Confirmation:
Agreement
Trustee
"Determination Time" means 5.00 pm Sydney time 4 Sydney Business Days prior to
the relevant Payment Date or other applicable exchange date.
Westpac
Page 12
WESTPAC BANKING CORPORATION
Credit Support Provider Provisions
Each Transaction under this Confirmation shall be capable of being specified as
a Replaced Transaction in accordance with the provisions of Section 21 of the
Agreement. Those provisions shall apply as further specified below.
1. Definitions for Credit Events
"Calculation Agent" means the party to the Transaction (or a third party)
designated as such for the Transaction. The Calculation Agent's
calculations and determinations shall be made in good faith, in a
commercially reasonable manner and be binding in the absence of manifest
error [Credit Support Provider];
"Initial Price" means, with respect to any Reference Obligation, the
percentage listed with respect thereto in the definition of Reference
Obligation herein as the Initial Price;
"Interest Rate Adjustment Amount" means, with respect to any Reference
Obligation, the absolute value of the difference between (i) the Xxxx to
Market Value and (ii) 100% minus the Initial Price;
"Xxxx to Market Value" means, in the determination of the Calculation
Agent, with respect to any Reference Obligation, on any day, the xxxx to
market value payable on that day (expressed as a percentage of the
notional amount thereof), of a hypothetical interest rate swap commencing
on the Effective Date between a hypothetical party ("Party X") and a
counterparty with the highest long term senior debt rating of each Rating
Agency, which swap has a notional amount equal to the Floating Rate Payer
Calculation Amount and under which Party X (i) pays the Xxxx to Market
Rate plus the Initial Spread and (ii) receives a fixed interest amount
equal in amount and timing to the coupons on the Reference Obligation. If,
under such swap, Party X would be due to pay such xxxx to market value,
Xxxx to Market Value will be negative and, if Party X would be due to
receive such xxxx to market value, the Xxxx to Market Value will be
positive.
"Market Value" means, in accordance with the Quotation Method, the
percentage equal to the arithmetic mean of quotations (exclusive of
accrued but unpaid interest and expressed as a percentage) obtained from
Dealers with respect to a Valuation Date in the manner provided below. In
obtaining such price quotations from Dealers, the Calculation Agent will
request each Dealer to provide firm bid and offer quotations for an
aggregate amount of the Reference Obligation equal to the Quotation Amount
to the extent reasonably practicable as of the Valuation Time on such
Valuation Date. If more than three quotations are provided on such date,
the Market Value shall be the arithmetic mean of such quotations without
regard to the quotations having the highest and lowest values. If exactly
three quotations are provided, the Market Value shall 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 exactly two
quotations are provided, the Market Value shall be the arithmetic mean of
such quotations. If fewer than two quotations are provided, then the
Market Value shall be an amount as determined by the Calculation Agent on
the next Business Day on which at least two quotations are provided by
Dealers. If the Calculation Agent is unable to calculate the Market Value
prior to the fifth
Page 13
WESTPAC BANKING CORPORATION
Business Day following the applicable Valuation Date, then the Calculation
Agent shall determine the Market Value for such Valuation Date in its
reasonable discretion;
"Quotation Method":
[Mid-market means that only the arithmetic mean of the bid and offer
quotations provided by Dealers that have provided both bid and offer
quotations shall be used in the calculation of Market Value.];
"Reference Obligation" means the obligation(s) as follows:
Issuer/Borrower: [ ]
Guarantor: [ ]
Maturity: [ ]
Coupon: [ ]
CUSIP/ISIN: [ ]
Original Issue Amount: [ ]
Initial Price: [ ]
Initial Spread: [ ];
"Specified Indebtedness" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise in respect of
money borrowed or raised or under any finance lease, redeemable preference
share, letter of credit, futures contract, guarantee, indemnity or a
transaction of a type described in the last 6 lines of the definition of
Specified Transaction.
"Threshold Amount" means [US$25,000,000]
"Valuation Time" - [ ]
2. The parties acknowledge that on the Effective Date of the Substitute
Transaction or the Equivalent Transaction, Party A shall pay to the Credit
Support Provider (in the case of the Substitute Transaction) or to the new
Currency Swap Provider (in the case of the Equivalent Transaction) the
amount equal to the amount (if a positive number) that hypothetically
would have been payable by Party A to Party B under Section 6(e)(i)(3) if:
(a) the Transaction had been terminated;
(b) an Early Termination Date had occurred on the Effective Date; and
(c) Section 21 had not applied in respect of the Transaction.
Any such amount shall be payable by Party A to the Credit Support Provider
in accordance with the provisions of the relevant Master Agreement between
Party A and the Credit Support Provider (in the case of the Substitute
Transaction) or to the New Currency Swap Provider in accordance with the
relevant Master Agreement between Party A and the New Currency Swap
Provider (in the case of the Equivalent Transaction).
Page 14
WESTPAC BANKING CORPORATION
Annexure 2 - Class B Notes - "Substitute Transaction"
Westpac Deal Number [ ]
Trade Date: [ June] 1998
Effective Date: The Effective Date shall be the date
specified in a Substitution Notice
given by Westpac as Credit Support
Provider under the Other Agreement.
The Effective Date shall not occur
if the conditions in respect of the
Substitution Notice have not been
satisfied in full in accordance with
the Other Agreement.
Termination Date: Final Maturity Date (adjusted in
accordance with the Modified
Following Business Day Convention)
Floating Interest Amounts
Floating Amounts Payable by Westpac:
These Floating Amounts are payable by Westpac unless there is, on any Floating
Rate Payer Payment Date, any reduction in Class A Interest resulting from a
reduction in A$ Class A Interest Amount pursuant to clause [6.17(a)(ii)(A)] of
the Series Notice (as specified in a notice to Westpac by the Determination
Time), in which case the Floating Amount shall be reduced by the same proportion
as the reduction in the A$ Class A Interest Amount.
Floating Rate Payer: Westpac
Page 1
WESTPAC BANKING CORPORATION
Notional Amount: An amount equal to the total
Invested Amount of all Class A Notes
as at the first day of the Interest
Period ending on but excluding the
relevant Floating Rate Payer Payment
Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the
Effective Date up to, and including
the last Payment Date prior to
Maturity Date, and the Termination
Date
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: Three months
Spread: Plus [ ] percent
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Interest
Period
Compounding: Inapplicable
Page 2
WESTPAC BANKING CORPORATION
Floating Amounts Payable by the Trustee:
These Floating Amounts are payable by the Trustee unless there is, on any
Floating Rate Payer Payment Date, any reduction in A$ Class A Interest Amount
pursuant to clause [6.17(a)(ii)(A)] of the Series Notice (as specified in a
notice by the Trustee or Trust Manager to Westpac by the Determination Time), in
which case instead of the Floating Amount Trustee shall pay an amount equal to
the lesser A$ amount specified in that notice on that Floating Rate Payer
Payment Date.
Floating Rate Payer: Trustee
Notional Amount: An amount equal to the A$ Equivalent
(applying USD 0.6[ ]) of the total
Invested Amount of all Class A Notes
as at the first day of the Interest
Period ending on but excluding the
relevant Floating Rate Payer Payment
Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the
Effective Date up to and including
the last Payment Date prior to
Maturity Date, and the Termination
Date
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: 90 days
Spread: Plus 0.[ ] percent
Page 3
WESTPAC BANKING CORPORATION
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Interest
Period
Compounding: Inapplicable
Page 4
WESTPAC BANKING CORPORATION
Exchanges
Instalment Exchange
Instalment Exchange Date Each Payment Date on or after the
Effective Date (other than a Final
Exchange Date
Westpac Pays Instalment Exchange: An amount equal to the Class A
Principal Payment paid on the
relevant Instalment Exchange Date
towards a reduction of the Principal
Amount of Class A Notes, as
calculated by multiplying the
Trustee Instalment Exchange Payment
on the relevant Instalment Exchange
Date by the exchange rate of USD
0.6[ ]
Trustee Pays Instalment Exchange: An amount equal to the amount
expressed under clause [6.14, 6.15
or 6.16] (as applicable) of the
Series Notice as being payable under
a Confirmation relating to Class A
Notes plus any amount payable under
clause [6.11(a)(ii)(C)] of the
Series Notice (together, the
"Trustee Instalment Exchange
Payment") as specified in the notice
issued by the Trustee (or Trust
Manager to Westpac by the
Determination Time in respect of
that Instalment Exchange Date
Final Exchange:
Page 5
WESTPAC BANKING CORPORATION
Final Exchange Date: The earlier of the Termination Date
and the Date of the [10% Clean Up
under clause 8.9(d)] of the Master
Trust Deed as amended by the Series
Notice and the date of redemption of
all the Class A Notes for taxation
or other reasons, adjusted in
accordance with the Modified
Following Business Day Convention
Westpac Pays Final Exchange: An amount equal to the aggregate
Final Exchange payable by the
Trustee under this Confirmation,
multiplied by the exchange rate of
USD 0.6[ ]
Trustee Pays Final Exchange: An amount equal to the aggregate
amount expressed under clause [6.14,
6.15 or 6.16] (as applicable) of the
Series Notice as being payable under
a Confirmation relating to Class A
Notes plus any amount payable under
clause [6.11(a)(ii)(C)] of the
Series Notice as specified in the
Notice issued by the Trustee (or
Trust Manager) to Westpac by the
Determination Time in respect of
that Final Exchange Date
Business Day Locations for Trustee: Sydney
Business Day Locations for Westpac: New York, London
Payments will be: Gross
Page 6
WESTPAC BANKING CORPORATION
Glossary
1. Terms defined in the Series Notice:
A$ Equivalent Invested Amount
Class A Initial Invested Amount Maturity Date
Class A Notes Payment Date
Closing Date Principal Payment
Interest Period Trust Manager
2. Terms defined in the Agreement (including 1991 ISDA Definitions) are:
Actual/360
Actual/365 (Fixed)
AUD-BBR-BBSW
Modified Following Business Day Convention
Other Agreement. For the avoidance of doubt the Other Agreement is the agreement
between Xxxxxx Guaranty Trust Company of New York, London office as Party A, the
Trustee as Party B, Westpac as the Credit Support Provider to Party A and the
Manager, dated on or about the date of the Agreement.
Substitution Notice
USD-LIBOR-BBA
3. Terms defined in this Confirmation:
Agreement
Trustee
Page 7
WESTPAC BANKING CORPORATION
"Determination Time" means 5.00 pm Sydney time 4 Sydney Business Days prior to
the relevant Payment Date or other applicable exchange date.
Westpac
Page 8
WESTPAC BANKING CORPORATION
Annexure 3 - Class B Notes -
"Equivalent-Other Transaction"
Westpac Deal Number [ ]
Trade Date: [ June] 1998
Effective Date: The Effective Date shall be the date
specified in a Substitution Notice given by
Westpac as Credit Support Provider under the
Other Agreement.
The Effective Date shall not occur if the
conditions in respect of the Substitution
Notice have not been satisfied in full in
accordance with the Other Agreement.
Termination Date: Final Maturity Date (adjusted in accordance
with the Modified Following Business Day
Convention)
Floating Interest Amounts
Floating Amounts Payable by Westpac:
These Floating Amounts are payable by Westpac unless there is, on any Floating
Rate Payer Payment Date, any reduction in Class B Interest resulting from a
reduction in A$ Class B Interest Amount pursuant to clause [6.17(a)(ii)(A)] of
the Series Notice (as specified in a notice to Westpac by the Determination
Time), in which case the Floating Amount shall be reduced by the same proportion
as the reduction in the A$ Class B Interest Amount.
Floating Rate Payer: Westpac
Notional Amount: An amount equal to fifty (50) percent of the
total Invested Amount of all Class B Notes
as at the first day of the Interest Period
ending on but excluding the relevant
Floating Rate Payer Payment Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective
Date up to, and including the last Payment
Date prior to Maturity Date, and the
Termination Date
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: Three months
Spread: Plus [ ] percent
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
WESTPAC BANKING CORPORATION
Floating Amounts Payable by the Trustee:
These Floating Amounts are payable by the Trustee unless there is, on any
Floating Rate Payer Payment Date, any reduction in A$ Class B Interest Amount
pursuant to clause [6.17(a)(ii)(A)] of the Series Notice (as specified in a
notice by the Trustee or Trust Manager to Westpac by the Determination Time), in
which case instead of the Floating Amount Trustee shall pay an amount equal to
the lesser A$ amount specified in that notice on that Floating Rate Payer
Payment Date.
Floating Rate Payer: Trustee
Notional Amount: An amount equal to fifty (50) percent of the
A$ Equivalent (applying USD 0.6[ ]) of the
total Invested Amount of all Class A Notes
as at the first day of the Interest Period
ending on but excluding the relevant
Floating Rate Payer Payment Date
Floating Rate Payer Payment Dates: Each Payment Date on or after the Effective
Date up to and including the last Payment
Date prior to Maturity Date, and the
Termination Date
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: 90 days
Spread: Plus 0.[ ] percent
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
Page 2
WESTPAC BANKING CORPORATION
Exchanges
Instalment Exchange
Instalment Exchange Date Each Payment Date on or after the Effective
Date (other than a Final Exchange Date)
Westpac Pays Instalment Exchange: An amount equal to fifty (50) percent of the
Class B Principal Payment paid on the
relevant Instalment Exchange Date towards a
reduction of the Principal Amount of Class B
Notes, as calculated by multiplying the
Trustee Instalment Exchange Payment on the
relevant Instalment Exchange Date by the
exchange rate of USD 0.6[ ]
Trustee Pays Instalment Exchange: An amount equal to fifty (50) percent of the
amount expressed under clause [6.14, 6.15 or
6.16] (as applicable) of the Series Notice
as being payable under a Confirmation
relating to Class B Notes plus any amount
payable under clause [6.11(a)(ii)(C)] of the
Series Notice (together, the "Trustee
Instalment Exchange Payment") as specified
in the notice issued by the Trustee (or
Trust Manager to Westpac by the
Determination Time in respect of that
Instalment Exchange Date
Page 3
Final Exchange:
Final Exchange Date: The earlier of the Termination Date and the
Date of the [10% Clean Up under clause
8.9(d)] of the Master Trust Deed as amended
by the Series Notice and the date of
redemption of all the Class B Notes for
taxation or other reasons, adjusted in
accordance with the Modified Following
Business Day Convention
Westpac Pays Final Exchange: An amount equal to fifty (50) percent of the
aggregate Final Exchange payable by the
Trustee under this Confirmation, multiplied
by the exchange rate of USD 0.6[ ]
Trustee Pays Final Exchange: An amount equal to fifty (50) percent of the
aggregate amount expressed under clause
[6.14, 6.15 or 6.16] (as applicable) of the
Series Notice as being payable under a
Confirmation relating to Class B Notes plus
any amount payable under clause
[6.11(a)(ii)(C)] of the Series Notice as
specified in the Notice issued by the
Trustee (or Trust Manager) to Westpac by the
Determination Time in respect of that Final
Exchange Date
Business Day Locations for Trustee: Sydney
Business Day Locations for Westpac: New York, London
Payments will be: Gross
Page 4
WESTPAC BANKING CORPORATION
Glossary
1. Terms defined in the Series Notice:
A$ Equivalent Invested Amount
Class B Initial Invested Amount Maturity Date
Class B Notes Payment Date
Closing Date Principal Payment
Interest Period Trust Manager
2. Terms defined in the Agreement (including 1991 ISDA Definitions) are:
Actual/360
Actual/365 (Fixed)
AUD-BBR-BBSW
Modified Following Business Day Convention
Other Agreement. For the avoidance of doubt the Other Agreement is the
agreement between Xxxxxx Guaranty Trust Company of New York, London office as
Party A, the Trustee as Party B, Westpac as the Credit Support Provider to
Party A and the Manager, dated on or about the date of the Agreement.
Replaced Transaction
USD-LIBOR-BBA
3. Terms defined in this Confirmation:
Agreement
Trustee
"Determination Time" means 5.00 pm Sydney time 4 Sydney Business Days prior to
the relevant Payment Date or other applicable exchange date.
Westpac
Credit Support Provider Provisions
Each Transaction under this Confirmation shall be capable of being specified as
a Replaced Transaction in accordance with the provisions of Section 21 of the
Agreement. Those provisions shall apply as further specified below.
1. Definitions for Credit Events
"Calculation Agent" means the party to the Transaction (or a third party)
designated as such for the Transaction. The Calculation Agent's
calculations and determinations shall be made in good faith, in a
commercially reasonable manner and be binding in the absence of manifest
error [Credit Support Provider];
"Initial Price" means, with respect to any Reference Obligation, the
percentage listed with respect thereto in the definition of Reference
Obligation herein as the Initial Price;
"Interest Rate Adjustment Amount" means, with respect to any Reference
Obligation, the absolute value of the difference between (i) the Xxxx to
Market Value and (ii) 100% minus the Initial Price;
"Xxxx to Market Value" means, in the determination of the Calculation
Agent, with respect to any Reference Obligation, on any day, the xxxx to
market value payable on that day (expressed as a percentage of the
notional amount thereof), of a hypothetical interest rate swap commencing
on the Effective Date between a hypothetical party ("Party X") and a
counterparty with the highest long term senior debt rating of each Rating
Agency, which swap has a notional amount equal to the Floating Rate Payer
Calculation Amount and under which Party X (i) pays the Xxxx to Market
Rate plus the Initial Spread and (ii) receives a fixed interest amount
equal in
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WESTPAC BANKING CORPORATION
amount and timing to the coupons on the Reference Obligation. If, under
such swap, Party X would be due to pay such xxxx to market value, Xxxx to
Market Value will be negative and, if Party X would be due to receive such
xxxx to market value, the Xxxx to Market Value will be positive.
"Market Value" means, in accordance with the Quotation Method, the
percentage equal to the arithmetic mean of quotations (exclusive of
accrued but unpaid interest and expressed as a percentage) obtained from
Dealers with respect to a Valuation Date in the manner provided below. In
obtaining such price quotations from Dealers, the Calculation Agent will
request each Dealer to provide firm bid and offer quotations for an
aggregate amount of the Reference Obligation equal to the Quotation Amount
to the extent reasonably practicable as of the Valuation Time on such
Valuation Date. If more than three quotations are provided on such date,
the Market Value shall be the arithmetic mean of such quotations without
regard to the quotations having the highest and lowest values. If exactly
three quotations are provided, the Market Value shall 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 exactly two
quotations are provided, the Market Value shall be the arithmetic mean of
such quotations. If fewer than two quotations are provided, then the
Market Value shall be an amount as determined by the Calculation Agent on
the next Business Day on which at least two quotations are provided by
Dealers. If the Calculation Agent is unable to calculate the Market Value
prior to the fifth Business Day following the applicable Valuation Date,
then the Calculation Agent shall determine the Market Value for such
Valuation Date in its reasonable discretion;
"Quotation Method":
[Bid means that only the bid quotations provided by Dealers shall be
used in the calculation of Market Value] or
[Offer means that only the offer quotations provided by Dealers
shall be used in the calculation of Market Value.] or
[Mid-market means that only the arithmetic mean of the bid and offer
quotations provided by Dealers that have provided both bid and offer
quotations shall be used in the calculation of Market Value.];
"Reference Obligation" means the obligation(s) as follows:
Issuer/Borrower: [ ]
Guarantor: [ ]
Maturity: [ ]
Coupon: [ ]
CUSIP/ISIN: [ ]
Original Issue Amount: [ ]
Initial Price: [ ]
Initial Spread: [ ];
"Specified Indebtedness" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise in respect of
money borrowed or raised or under any finance lease, redeemable preference
share, letter of credit, futures contract, guarantee, indemnity or a
transaction of a type described in the last 6 lines of the definition of
Specified Transaction.
"Threshold Amount" means [US$25,000,000]
"Valuation Time" - [ ]
2. The parties acknowledge that on the Effective Date of the Substitute
Transaction or the Equivalent Transaction, Party A shall pay to the Credit
Support Provider (in the case of the Substitute Transaction) or to the new
Currency Swap Provider (in the case of the Equivalent Transaction) the
amount equal to the amount (if a positive number) that hypothetically
would have been payable by Party A to Party B under Section 6(e)(i)(3) if:
(a) the Transaction had been terminated;
(b) an Early Termination Date had occurred on the Effective Date; and
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WESTPAC BANKING CORPORATION
(c) Section 21 had not applied in respect of the Transaction.
Any such amount shall be payable by Party A to the Credit Support Provider
in accordance with the provisions of the relevant Master Agreement between
Party A and the Credit Support Provider (in the case of the Substitute
Transaction) or to the New Currency Swap Provider in accordance with the
relevant Master Agreement between Party A and the New Currency Swap
Provider (in the case of the Equivalent Transaction).
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WESTPAC BANKING CORPORATION
ACCESSION BY NEW CURRENCY SWAP PROVIDER
As specified in the Substitution Notice given by Westpac under the Other
Agreement, we agree to be the Credit Support Provider to Westpac as governed by
the terms of the Agreement, in respect of the Transaction specified by this
Annexure 3, and we agree that all references in the Agreement and this
Transaction to "Credit Support Provider" shall be to us, and for consideration
which we acknowledge as having been received, we hereby accept the accession to
us of all the rights and obligations as Credit Support Provider as and from the
Effective Date of this Transaction.
Agreed and accepted as the new Credit
Support Provider:
By:
Name:
Title:
Agreed and confirmed as of the Effective Date of the Transaction specified
in this Annexure 3:
WESTPAC SECURITIES ADMINISTRATION LIMITED(ACN 000 049 472)
in its capacity as Party B
By:______________________________
Name:
Title:
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN 000 000 000)
in its capacity as Trust Manager
By:______________________________
Name:
Title:
WESTPAC BANKING CORPORATION (ARBN 007 457 141)
in its capacity as Party A
By:______________________________
Name:
Title:
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