(MULTICURRENCY--CROSS BORDER)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of ____________ 2005
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
THE ROYAL BANK OF SCOTLAND PLC (ABN 81 004 029 841)
("PARTY A") IN ITS CAPACITY AS TRUSTEE OF THE
CRUSADE GLOBAL TRUST NO. 1 OF 2005 (IN
THAT CAPACITY, "PARTY B")
AND
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have entered and/or anticipate entering into one or more transactions (each
a "Transaction") that are or will be governed by this Master Agreement,
which includes the schedule (the "Schedule"), and the documents and other
confirming evidence (each a "Confirmation") exchanged between the parties
confirming those Transactions.
Accordingly, the parties agree as follows:--
1. INTERPRETATION
(a) DEFINITIONS. The terms defined in Section 14 and in the Schedule will
have the meanings therein specified for the purpose of this Master
Agreement.
(b) INCONSISTENCY. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the
Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purpose of the relevant
Transaction.
(c) SINGLE AGREEMENT. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single
agreement between the parties (collectively referred to as this
"Agreement"), and the parties would not otherwise enter into any
Transactions.
2. OBLIGATIONS
(a) GENERAL CONDITIONS.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds and in the manner customary for payments in
the required currency. Where settlement is by delivery (that is, other
than by payment), such delivery will be made for receipt on the due
date in the manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or elsewhere in this
Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject
to (1) the condition precedent that no Event of Default or Potential
Event of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination Date
in respect of the relevant Transaction has occurred or been
effectively designated and (3) each other applicable condition
precedent specified in this Agreement.
(b) CHANGE OF ACCOUNT. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to
which such change applies unless such other party gives timely notice of a
reasonable objection to such change.
(c) NETTING. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party
by whom the larger aggregate amount would have been payable to pay to the
other party the excess of the larger aggregate amount over the smaller
aggregate amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same
date in the same currency in respect of such Transactions, regardless of
whether such amounts are payable in respect of the same Transaction. The
election may be made in the Schedule or a Confirmation by specifying that
subparagraph (ii) above will not apply to the Transactions identified as
being subject to the election, together with the starting date (in which
case subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for
different groups of Transactions and will apply separately to each pairing
of Offices through which the parties make and receive payments or
deliveries.
(d) DEDUCTION OR WITHHOLDING FOR TAX.
(i) GROSS-UP. All payments under this Agreement will be made without
any deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as
modified by the practice of any relevant governmental revenue
authority, then in effect. If a party is so required to deduct or
withhold, then that party ("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of determining
that such deduction or withholding is required or receiving
notice that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
ISDA(R) 1995 2
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to
the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure that
the net amount actually received by Y (free and clear of
Indemnifiable Taxes, whether assessed against X or Y) will equal
the full amount Y would have received had no such deduction or
withholding been required. However, X will not be required to pay
any additional amount to Y to the extent that it would not be
required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure
would not have occurred but for (I) any action taken by a
taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (II) a
Change in Tax Law.
(ii) LIABILITY. If:--
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to make
any deduction or withholding in respect of which X would not be
required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the amount
of such liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d)).
(e) DEFAULT INTEREST; OTHER AMOUNTS. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment
obligation will, to the extent permitted by law and subject to Section
6(c), be required to pay interest (before as well as after judgment) on the
overdue amount to the other party on demand in the same currency as such
overdue amount, for the period from (and including) the original due date
for payment to (but excluding) the date of actual payment, at the Default
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed. If, prior to the occurrence or
effective designation of an Early Termination Date in respect of the
relevant Transaction, a party defaults in the performance of any obligation
required to be settled by delivery, it will compensate the other party on
demand if and to the extent provided for in the relevant Confirmation or
elsewhere in this Agreement.
3. REPRESENTATIONS
Each party represents to the other party (which representations will be
deemed to be repeated by each party on each date on which a Transaction is
entered into and, in the case of the representations in Section 3(f), at
all times until the termination of this Agreement) that:--
(a) BASIC REPRESENTATIONS.
(i) STATUS. It is duly organized and validly existing under the laws
of the jurisdiction of its organization or incorporation and, if
relevant under such laws, in good standing;
ISDA(R) 1995 3
(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 authorize such execution, delivery and
performance;
(iii) NO VIOLATION OR CONFLICT. Such execution, delivery and
performance do not violate or conflict with any law applicable to it,
any provision of its constitutional documents, any order or judgment
of any court or other agency of government applicable to it or any of
its assets or any contractual restriction binding on or affecting it
or any of its assets;
(iv) CONSENTS. All governmental and other consents that are required
to have been obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party have been obtained and
are in full force and effect and all conditions of any such consents
have been complied with; and
(v) OBLIGATIONS BINDING. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal,
valid and binding obligations, enforceable in accordance with their
respective terms (subject to applicable bankruptcy, reorganization,
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)).
(b) ABSENCE OF CERTAIN EVENTS. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would occur as
a result of its entering into or performing its obligations under this
Agreement or any Credit Support Document to which it is a party.
(c) ABSENCE OF LITIGATION. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or
proceeding at law or in equity or before any court, tribunal, governmental
body, agency or official or any arbitrator that is likely to affect the
legality, validity or enforceability against it of this Agreement or any
Credit Support Document to which it is a party or its ability to perform
its obligations under this Agreement or such Credit Support Document.
(d) ACCURACY OF SPECIFIED INFORMATION. All applicable information that is
furnished in writing by or on behalf of it to the other party and is
identified for the purpose of this Section 3(d) in the Schedule is, as of
the date of the information, true, accurate and complete in every material
aspect.
(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
ISDA(R) 1995 4
(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 AUTHORIZATIONS. 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, organized,
managed and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of this
Agreement is located ("Stamp Tax Jurisdiction") and will indemnify the
other party against any Stamp Tax levied or imposed upon the other party or
in respect of the other party's execution or performance of this Agreement
by any such Stamp Tax Jurisdiction which is not also a Stamp Tax
Jurisdiction with respect to the other party.
5. EVENTS OF DEFAULT AND TERMINATION EVENTS
(a) EVENTS OF DEFAULT. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any
Specified Entity of such party of any of the following events constitutes
an event of default (an "Event of Default") with respect to such party:--
(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or
2(e) required to be made by it if such failure is not remedied on or
before the third Local Business Day after notice of such failure is
given to the party;
(ii) BREACH OF AGREEMENT. Failure by the party to comply with or
perform any agreement or obligation (other than an obligation to make
any payment under this Agreement or delivery under Section 2(a)(i) or
2(e) or to give notice of a Termination Event or any agreement or
obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied
with or performed by the party in accordance with this Agreement if
such failure is not remedied on or before the thirtieth day after
notice of such failure is given to the party;
(iii) CREDIT SUPPORT DEFAULT.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any
applicable grace period has elapsed;
ISDA(R) 1995 5
(2) the expiration or termination of such Credit Support Document
or the failing or ceasing of such Credit Support Document to be
in full force and effect for the purpose of this Agreement (in
either case other than in accordance with its terms) prior to the
satisfaction of all obligations of such party under each
Transaction to which such Credit Support Document relates without
the written consent of the other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) MISREPRESENTATION. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been
made or repeated by the party or any Credit Support Provider of such
party in this Agreement or any Credit Support Document proves to have
been incorrect or misleading in any material respect when made or
repeated or deemed to have been made or repeated;
(v) DEFAULT UNDER SPECIFIED TRANSACTION. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such
party (1) defaults under a Specified Transaction and, after giving
effect to any applicable notice requirement or grace period, there
occurs a liquidation of, an acceleration of obligations under, or an
early termination of, that Specified Transaction, (2) defaults, after
giving effect to any applicable notice requirement or grace period, in
making any payment or delivery due on the last payment, delivery or
exchange date of, or any payment on early termination of, a Specified
Transaction (or such default continues for at least three Local
Business Days if there is no applicable notice requirement or grace
period) or (3) disaffirms, disclaims, repudiates or rejects, in whole
or in part, a Specified Transaction (or such action is taken by any
person or entity appointed or empowered to operate it or act on its
behalf);
(vi) CROSS DEFAULT. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default,
event of default or other similar condition or event (however
described) in respect of such party, any Credit Support Provider of
such party or any applicable Specified Entity of such party under one
or more agreements or instruments relating to Specified Indebtedness
of any of them (individually or collectively) in an aggregate amount
of not less than the applicable Threshold Amount (as specified in the
Schedule) which has resulted in such Specified Indebtedness becoming,
or becoming capable at such time of being declared, due and payable
under such agreements or instruments, before it would otherwise have
been due and payable or (2) a default by such party, such Credit
Support Provider or such Specified Entity (individually or
collectively) in making one or more payments on the due date thereof
in an aggregate amount of not less than the applicable Threshold
Amount under such agreements or instruments (after giving effect to
any applicable notice requirement or grace period);
(vii) BANKRUPTCY. The party, any Credit Support Provider of such party
or any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to
pay its debts or fails or admits in writing its inability
generally to pay its debts as they become due; (3) makes a
general assignment, arrangement or composition with or for the
benefit of its creditors; (4) institutes or has instituted
against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency
law or other similar law affecting creditors' rights, or a
petition is presented for its winding-up or liquidation, and, in
the case of any such proceeding or petition instituted or
presented against it, such proceeding or petition (A) results in
a judgment of insolvency or bankruptcy or the entry of an order
for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than
pursuant to a consolidation, amalgamation or merger);
ISDA(R) 1995 6
(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 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));
ISDA(R) 1995 7
(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.
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.
ISDA(R) 1995 8
(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 continuing, designate a day not earlier than the day
such notice is effective as an Early Termination Date in respect of
all Affected Transactions.
(c) EFFECT OF DESIGNATION.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date
so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(e) in respect of the Terminated Transactions will be
required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) CALCULATIONS.
ISDA(R) 1995 9
(i) STATEMENT. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and
will provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and
specifying any amount payable under Section 6(e)) and (2) giving
details of the relevant account to which any amount payable to it is
to be paid. In the absence of written confirmation from the source of
a quotation obtained in determining a Market Quotation, the records of
the party obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) PAYMENT DATE. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an
Early Termination Date which is designated or occurs as a result of an
Event of Default) and on the day which is two Local Business Days
after the day on which notice of the amount payable is effective (in
the case of an Early Termination Date which is designated as a result
of a Termination Event). Such amount will be paid together with (to
the extent permitted under applicable law) interest thereon (before as
well as after judgment) in the Termination Currency, from (and
including) the relevant Early Termination Date to (but excluding) the
date such amount is paid, at the Applicable Rate. Such interest will
be calculated on the basis of daily compounding and the actual number
of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the
parties fail to designate a payment measure or payment method in the
Schedule, it will be deemed that "Market Quotation" or the "Second Method",
as the case may be, shall apply. The amount, if any, payable in respect of
an Early Termination Date and determined pursuant to this Section will be
subject to any Set-off.
(i) EVENTS OF DEFAULT. If the Early Termination Date results from an
Event of Default:--
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to
the Non-defaulting Party over (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's Loss in respect of
this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A)
the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated Transactions
and the Termination Currency Equivalent of the Unpaid Amounts
owing to the Non-defaulting Party less (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the Defaulting Party
will pay it to the Non-defaulting Party; if it is a negative
number, the Non-defaulting Party will pay the absolute value of
that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply,
an amount will be payable equal to the Non-defaulting Party's
Loss in respect of this Agreement. If that amount is a positive
number, the Defaulting Party will pay it to the Non-defaulting
Party; if it is a negative number, the Non-defaulting Party will
pay the absolute value of that amount to the Defaulting Party.
ISDA(R) 1995 10
(ii) TERMINATION EVENTS. If the Early Termination Date results from a
Termination Event:--
(1) One Affected Party. If there is one Affected Party, the
amount payable will be determined in accordance with Section
6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4),
if Loss applies, except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party will be deemed
to be references to the Affected Party and the party which is not
the Affected Party, respectively, and, if Loss applies and fewer
than all the Transactions are being terminated, Loss shall be
calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:--
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with
the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X;
if it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies
in respect of a party, the amount determined under this Section 6(e)
will be subject to such adjustments as are appropriate and permitted
by law to reflect any payments or deliveries made by one party to the
other under this Agreement (and retained by such other party) during
the period from the relevant Early Termination Date to the date for
payment determined under Section 6(d)(ii).
(iv) PRE-ESTIMATE. The parties agree that if Market Quotation applies
an amount recoverable under this Section 6(e) is a reasonable
pre-estimate of loss and not a penalty. Such amount is payable for the
loss of bargain and the loss of protection against future risks and
except as otherwise provided in this Agreement neither party will be
entitled to recover any additional damages as a consequence of such
losses.
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.
ISDA(R) 1995 11
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.
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.
ISDA(R) 1995 12
(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 organization of such
party, the obligations of such party are the same as if it had entered into
the Transaction through its head or home office. This representation will
be deemed to be repeated by such party on each date on which a Transaction
is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office
through which it makes and receives payments or deliveries with respect to
a Transaction will be specified in the relevant Confirmation.
11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other
party for and against all reasonable out-of-pocket expenses, including
legal fees and Stamp Tax, incurred by such other party by reason of the
enforcement and protection of its rights under this Agreement or any Credit
Support Document 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:--
ISDA(R) 1995 13
(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 delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered
(or attempted) or received, as applicable, after the close of business on a
Local Business Day, in which case that communication shall be deemed given
and effective on the first following day that is a Local Business Day.
(b) CHANGE OF ADDRESSES. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details
at which notices or other communications are to be given to it.
13. GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) JURISDICTION. With respect to any suit, action or proceedings relating
to this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this
Agreement is expressed to be governed by English law, or to the
non-exclusive jurisdiction of the courts of the State of New York and
the United States District Court located in the Borough of Manhattan
in New York City, if this Agreement is expressed to be governed by the
laws of the State of New York; and
(ii) waives any objection which it may have at any time to the laying
of venue of any Proceedings brought in any such court, waives any
claim that such Proceedings have been brought in an inconvenient forum
and further waives the right to object, with respect to such
Proceedings, that such court does not have any jurisdiction over such
party.
Nothing in this Agreement precludes either party from bringing Proceedings
in any other jurisdiction (outside, if this Agreement is expressed to be
governed by English law, the Contracting States, as defined in Section 1(3)
of the Civil Jurisdiction and Judgments Xxx 0000 or any modification,
extension or re-enactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more jurisdictions preclude the
bringing of Proceedings in any other jurisdiction.
(c) SERVICE OF PROCESS. Each party irrevocably appoints the Process Agent
(if any) specified opposite its name in the Schedule to receive, for it and
on its behalf, service of process in any Proceedings. If for any 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.
ISDA(R) 1995 14
(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, authorization, 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.
ISDA(R) 1995 15
"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.
"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
ISDA(R) 1995 16
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 been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group
of Terminated Transactions are to be excluded but, without limitation, any
payment or delivery that would, but for the relevant Early Termination
Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be included.
The Replacement Transaction would be subject to such documentation as such
party and the Reference Market-maker may, in good faith, agree. The party
making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable
as of the same day and time (without regard to different time zones) on or
as soon as reasonably practicable after the relevant Early Termination
Date. The day and time as of which those quotations are to be obtained will
be selected in good faith by the party obligated 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, organized, 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
ISDA(R) 1995 17
(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.
"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.
ISDA(R) 1995 18
"TERMINATION RATE" means a rate per annum equal to the arithmetic mean of
the cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"UNPAID AMOUNTS" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on
or prior to such Early Termination Date and which remain unpaid as at such
Early Termination Date and (b) in respect of each Terminated Transaction,
for each obligation under Section 2(a)(i) which was (or would have been but
for Section 2(a)(iii)) required to be settled by delivery to such party on
or prior to such Early Termination Date and which has not been so settled
as at such Early Termination Date, an amount equal to the fair market value
of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or
would have been required to have been paid or performed to (but excluding)
such Early Termination Date, at the Applicable Rate. Such amounts of
interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. The fair market value of any obligation
referred to in clause (b) above shall be reasonably determined by the party
obliged to make the determination under Section 6(e) or, if each party is
so obliged, it shall be the average of the Termination Currency Equivalents
of the fair market values reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the
respective dates specified below with effect from the date specified on the
first page of this document.
PARTY A
SIGNED by )
THE ROYAL BANK OF SCOTLAND PLC )
--------------------------------------
in the presence of: ) Signature
)
--------------------------------------
Print name
---------------------------------
Witness
---------------------------------
Print name
ISDA(R) 1995 19
PARTY B
SIGNED on behalf of )
PERPETUAL TRUSTEES CONSOLIDATED )
LIMITED --------------------------------------
by its attorney under power of ) Signature
attorney in the presence of: )
--------------------------------------
---------------------------------- Print name
Witness
----------------------------------
Print name
ISDA(R) 1995 20
SCHEDULE
to the
ISDA MASTER AGREEMENT
dated as of _____ 2005
between
The Royal Bank of Scotland plc ("PARTY A")
and
Perpetual Trustees Consolidated Limited (ABN 81 004 029 841)
in its capacity as trustee of the Trust ("PARTY B")
PART 1
TERMINATION PROVISIONS AND CERTAIN OTHER MATTERS
(1) "SPECIFIED ENTITY" is not applicable in relation to Party A and Party B.
(2) "SPECIFIED TRANSACTION" is not applicable.
(3) (i) Sections 5(a)(ii), (iii), (iv), (v), (vi), 5(b)(iii) and (iv) will not
apply to Party A or Party B.
(ii) Replace Section 5(a)(i) with:
"(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 10.00am on the tenth Business Day after the
due date;"
(iii) Section 5(b)(ii) will not apply to Party A as the Affected Party
(subject to Section 6(aa)(iii) of this Agreement, inserted by Part
5(13) of this Schedule).
(4) The "BANKRUPTCY" provisions of Section 5(a)(vii) do not apply to Party B
and are replaced by "An Insolvency Event under the Security Trust Deed has
occurred in respect of Party B in which case Party B will be the Defaulting
Party); or ". The occurrence of an Insolvency Event under the Security
Trust Deed in respect of Party B in its personal capacity will not
constitute an Event of Default provided that within thirty Business Days of
that occurrence, Party A and Party B are able to procure 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
Note Downgrade, and Party A and Party B agree to execute such a novation
agreement in a form as published by the International Swaps and Derivatives
Association, Inc.
(5) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a):
will not apply to Party A.
will not apply to Party B.
(6) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:
ISDA(R) 1995 21
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(7) "TERMINATION CURRENCY" means United States Dollars provided that if the
payment is payable by Party B to Party A, the Termination Currency shall be
in Australian Dollars.
(8) "ADDITIONAL TERMINATION EVENT" means:
(i) An Event of Default (as defined in the Security Trust Deed) occurs and
the Security Trustee has declared, in accordance with the Security
Trust Deed, the Class A-1 Notes immediately due and payable (and Party
B is the Affected Party);
(ii) Party B becomes obliged to make a withholding or deduction in respect
of any Class A-1 Notes and the Class A-1 Notes are redeemed as a
result (and Party B is the Affected Party). Notwithstanding Section
6(b)(iv) of the Agreement, as a result thereof, Party B must give a
notice designating an Early Termination Date in respect of this
Agreement and all Transactions; or
(iii) Party A fails to comply with its obligations under Section 17(a) (and
Party A is the Affected Party and all Transactions are Affected
Transactions).
(9) "TRANSFER TO AVOID TERMINATION EVENT". In Section 6(b)(ii) after the words
"another of its Offices or Affiliates" on the seventh line add "(in respect
of which the Designated Rating Agencies have given prior written
confirmation to the Manager that such a transfer will not result in a Note
Downgrade)".
(10) (i) In the TRANSFER provision of Section 7, add a new paragraph (c):
"(c) Party B may transfer to a Successor Trustee (as defined below) or
to avoid an Illegality as specified in Section 5(b)(i)."
(ii) Add a new paragraph to Section 7 immediately below paragraph (c):
"In the event that a trustee is appointed as a successor to Party B
under the Trust Deed ("SUCCESSOR TRUSTEE"), Party A undertakes that it
shall (unless, at the time the Successor Trustee is so appointed,
Party A is entitled to terminate the Transaction under Section 6, in
which case it may) novate to the Successor Trustee the Transaction on
the same terms or on other terms to be agreed between Party A, Party B
and the Successor Trustee, and give written notice to the Designated
Rating Agencies of such novation."
ISDA(R) 1995 22
PART 2
TAX REPRESENTATIONS
(1) PAYER TAX REPRESENTATIONS
For the purpose of Section 3(e) of the Agreement, Party A will make the
following representation and Party B will make the following
representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on:
(i) the accuracy of any representations made by the other party pursuant
to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement of the other party 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); 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) of the Agreement by reason of
material prejudice to its legal or commercial position.
(2) PAYEE TAX REPRESENTATIONS
For the purpose of Section 3(f) of this Agreement:
Party A makes the following representation:
It is fully eligible for the benefits of the "Profits", "Business Profits"
or "Industrial or Commercial Profits" provision, as the case may be, the
"Interest" provision or the "Other Income" provision (if any) of the tax
treaty between the United Kingdom and Australia with respect to any payment
described in such provisions and received or to be received by it in
connection with this Agreement and no such payment is attributable to a
trade or business carried on by it through a permanent establishment in
Australia.
Party B makes the following representations:
It is an Australian resident and does not derive payments under this
Agreement in part or in whole carrying on business in a country outside
Australia at or through a permanent establishment or itself in that
country.
The Trust is a non-U.S. branch of a foreign person for U.S. federal income
tax purposes.
ISDA(R) 1995 23
PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following document as applicable:
PARTY REQUIRED TO DATE BY WHICH TO BE COVERED BY SECTION
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DELIVERED 3(D) REPRESENTATION
---------------- ------------------------- ------------------- -------------------
Party B Legal opinions as to the validity Upon execution and No
and enforceability of the delivery of this
obligations of Party B under this Agreement
Agreement, the Trust Deed, the
Security Trust Deed and the Notes in
form and substance and issued by
legal counsel reasonably acceptable
to Party A
Party A and Party B Certified copies of all corporate Upon execution and Yes
authorisations (to be certified by delivery of this
an Authorised Officer of the Agreement or any
relevant party) and any other relevant
documents with respect to the Confirmation
execution, delivery and performance
of this Agreement and each
Confirmation
Party A and Party B Certificate of authority and Upon execution and Yes
specimen signatures of individuals delivery of this
executing this Agreement, Agreement and
Confirmations and each Credit thereafter upon
Support Document (as applicable) request of the
other party
Party B Copies (certified to be true copies Upon execution and Yes
by an authorised signatory of Party delivery of this
B or the Manager) of the Trust Deed, Agreement
the Security Trust Deed, the Note
Trust Deed and the Supplementary
Terms Notice
Party B A copy (certified to be a true copy Promptly upon any Yes
by an authorised signatory of Party such document
B or the Manager) of any document becoming effective
amending or varying the terms of the in accordance with
Trust Deed, the Security Trust Deed, its terms
the Note Trust Deed or the
Supplementary Terms Notice where
such amendment affects this
Agreement or Party A's rights or
obligations under this Agreement
Party A A legal opinion as to the Upon execution and Yes
enforceability of the obligations of delivery of this
Party A under this Agreement and Agreement
each Confirmation.
ISDA(R) 1995 24
PART 4
MISCELLANEOUS
(1) ADDRESS FOR NOTICES. For the purpose of Section 12(a) of this Agreement:
(a) In connection with Section 12(a), all notices to Party A shall, with
respect to any particular Transaction, be sent to the address, telex
number or facsimile number specified in the relevant Confirmation or,
if such information is not specified in the relevant Confirmation, to
the address, telex number or facsimile number specified below. All
notices for the purposes of Section 5 or 6 shall be sent to the
address, telex number or facsimile number below.
Address: c/-RBS Financial Markets
Xxxxx 0
000 Xxxxxxxxxxx
Xxxxxx XX0X 3UR
Attention: Swaps Administrator
Telephone: x00 00 0000 0000
Facsimile: x00 00 0000 0000
(b) All notices or communications to Party B under this Agreement shall be
sent to:
Perpetual Trustees Consolidated Limited
Attention: [*]
Telephone: [*]
Facsimile: [*]
Telex: N/A
With a copy to the Manager:
Xxxxx 00, 00 Xxxxxx Xxxxxx, Xxxxxx XXX 0000
Attention: Middle Office Compliance Manager
Telephone: (00) 0000 0000
Facsimile: (00) 0000 0000
Telex: N/A
(2) PROCESS AGENT. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable
Party B appoints as its Process Agent: Not applicable
(3) OFFICES. The provisions of Section 10(a) will not apply to this Agreement.
(4) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(5) CALCULATION AGENT. The Calculation Agent is Party A, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
ISDA(R) 1995 25
(6) CREDIT SUPPORT DOCUMENTS. Details of any Credit Support Document:
(i) In relation to Party A: Not applicable
(ii) In relation to Party B: Security Trust Deed
(7) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A: Not applicable
Credit Support Provider means in relation to Party B: Not applicable
(8) GOVERNING LAW. This Agreement and each Confirmation will be governed by,
and construed and enforced in accordance with, the laws in force in the
state of New South Wales and each party submits to the non-exclusive
jurisdiction of the courts of the state of New South Wales and the courts
of appeal from them.
(9) NETTING OF PAYMENTS Sub-paragraph (ii) of Section 2(c) of this Agreement
will apply to net Transactions in the same Confirmation and will not apply
to net Transactions specified in different Confirmations.
(10) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. For the purposes of Section 3(c), Party B is deemed not to have
any Affiliates.
(11) All payments to be made to Party B under this Agreement by Party A must be
made to the US$ Account. Any payment so made will, to the extent of that
payment, satisfy the relevant party's obligation to Party B in respect of
that payment.
ISDA(R) 1995 26
PART 5
OTHER PROVISIONS
(1) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding payment
or payments payable by the other party (if any)."
(2) In Section 2(a)(ii), after "freely transferable funds" add the words "save
as required by law, free of any set-off, counterclaim, deduction or
withholding (and except as expressly provided in this Agreement)."
(3) Insert new Sections 2(a)(iv) and 2(a)(v) immediately after Section
2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply to a
payment or delivery due to be made to a party if it has satisfied all
its payment and delivery obligations under Section 2(a)(i) of this
Agreement 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; and
(2) the Security Trust Deed has become, and remains at that time,
enforceable,
then Party A's obligation to make the Party A Payment to Party B shall
be subject to the condition precedent (which shall be an "applicable
condition precedent" for the purpose of Section 2(a)(iii)(3)) that
Party A first receives either:
(3) the Party B Payment; or
(4) confirmation from Party B's bank that it holds irrevocable
instructions to effect payment of the Party B Payment and that
cleared funds are available to make that payment."
(4) Add the following new sentence to Section 2(b):
"Each new account so designated must be in the same tax jurisdiction
as the original account."
(5) 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".
(6) 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. Party B will have
no obligation to pay any amount to Party A under Section 2(d)(ii), and may
make any payment under or in connection with this Agreement net of any
deduction or withholding referred to in Section 2(d)(i).
(7) WAIVER OF JURY TRIAL. 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 Agreement or any Credit Support
Document. Each party (i) certifies that no representative, agent or
attorney of the other party or any Credit Support Provider has represented,
expressly or otherwise, that such other party would not, in the event of
such a suit, action or proceeding, seek to enforce the foregoing waiver and
(ii) acknowledges that it and the other party have been induced to enter
into this Agreement and provide for any Credit Support Document, as
applicable, by, among other things, the mutual waivers and certifications
in this Section.
ISDA(R) 1995 27
(8) TELEPHONIC RECORDING. Each party:
(i) consents to the electronic recording of its telephone conversations
with the other party (or any of its associated persons) with or
without the use of an automated warning device; and
(ii) acknowledges that such recordings and transcripts can be used as
evidence by another party in any dispute between them.
(9) FURTHER REPRESENTATIONS. Insert new Sections 3(g), 3(h) and 3(i)
immediately after Section 3(f) as follows:
"(g) NON ASSIGNMENT. Party B represents to Party A (which representations
will be deemed to be repeated by Party B on each date on which a
Transaction is entered into) that (absent a written agreement between
the parties that expressly imposes affirmative obligations to the
contrary for that Transaction) it has not assigned (whether
absolutely, in equity or otherwise) or declared any trust or given any
charge over any of its rights under this Agreement or any Transaction
(other than, in respect of Party B, the Trust created pursuant to the
Master Trust Deed and the charge given pursuant to the Security Trust
Deed).
(h) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to represent
to the other party on the date on which it enters into a Transaction
that (absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary for that Transaction):
(i) NON-RELIANCE. It is acting for its own account (in the case of
Party B as trustee of the Trust), and it has made its own
independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based
upon its own judgment (and in the case of Party B, also on the
judgment of the Manager) and upon advice from such advisers as it
has deemed necessary. It is not relying on any communication
(written or oral) of 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. No communication (written or oral) received from the
other party shall be deemed to be an assurance or guarantee as to
the expected results of that Transaction.
(ii) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the
merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts,
the terms, conditions and risks of that Transaction. It is also
capable of assuming, and assumes (in the case of Party B, subject
to sub-paragraph (i)), the risks of that Transaction.
(iii) STATUS OF PARTIES. The other party is not acting as a fiduciary
for or an adviser to it in respect of that Transaction.
(i) TRUST. Party B represents to Party A, in respect of Party B only
(which representations will be deemed to be repeated by Party B on
each date on which a Transaction is entered into) that (absent a
written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
(i) TRUST VALIDLY CREATED. The Trust has been validly created under
the laws by which it is stated to be governed and is in existence
at the date of this Agreement.
ISDA(R) 1995 28
(ii) SOLE TRUSTEE. Party B has been validly appointed as trustee of
the Trust and is presently the sole trustee of the Trust.
(iii) NO PROCEEDINGS TO REMOVE. No notice has been given to Party B
and to Party B's knowledge no resolution has been passed, or
direction or notice has been given, removing Party B as trustee
of the Trust.
(iv) POWER. Party B has power under the Trust Deed to enter into this
Agreement and the Security Trust Deed in its capacity as trustee
of the Trust.
(v) GOOD TITLE. Party B has equitable title to the Assets of the
Trust and has power under the Trust Deed to mortgage or charge
them in the manner provided in the Security Trust Deed and,
subject only to the Trust Deed, the Security Trust Deed and any
Security Interest permitted under the Trust Deed, as far as Party
B is aware, those Assets are free from all other Security
Interests (except for Party B's right of indemnity out of the
Assets of the Trust)."
(10) In Section 4, add the following new paragraph immediately after Section
4(e):
"(f) CONTRACTING AS PRINCIPAL. Party A will enter into each Transaction as
principal and not otherwise and, subject to Section 15, Party B will
enter into each Transaction in its capacity as trustee of the Trust
and not otherwise."
(11) EXCHANGE CONTROLS
Section 5(b)(i) (ILLEGALITY) is amended by adding the following paragraph
at the end:-
"This sub-paragraph (i) does not apply to the imposition by the Australian
government or any agency of the Australian government of any exchange
control restrictions or prohibitions ("EXCHANGE CONTROLS")." For the
avoidance of doubt:
(A) exchange controls do not constitute an Illegality or other Termination
Event or an Event of Default under this Agreement, and do not entitle
a party to terminate a Transaction or otherwise refuse to make any
payments it is obliged to make under a Transaction: and
(B) if and for so long as exchange controls are imposed, delivery by Party
B of Australian dollar amounts required to be paid by it under any
relevant Confirmation to the bank account in Australia notified in
writing by Party A to Party B from time to time specified in that
Confirmation will constitute proper payment of those amounts by Party
B and Party A's obligations under this Agreement will be unaffected by
any such exchange controls."
(12) CONFIRMATIONS. For the purposes of Section 9(e)(ii), Party A will, on or
promptly after the relevant Trade Date, send Party B a confirmation
confirming that Transaction and Party B must (either itself or through the
Manager) promptly then confirm the accuracy of and sign and return, or
request the correction of the Confirmation. Notwithstanding the provisions
of Section 9(e)(ii), each Confirmation in respect of a Transaction which is
confirmed by electronic messaging system, an exchange of telexes or an
exchange of facsimiles will be further evidenced by an original
Confirmation signed by the parties, however any failure to sign an original
Confirmation will not affect the validity or enforcement of any
Transaction.
(13) 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.
ISDA(R) 1995 29
(ii) CONSULTATION: Each party may only designate an Early Termination
Date following prior consultation with the other parties as to
the timing of the Early Termination Date. Subject to its duties
under the Trust Deed and the Supplementary Terms 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, the Manager
and the Note Trustee.
(III) PARTY A'S LIMITED RIGHTS IN RELATION TO TAX EVENT:
(a) Notwithstanding Part 1(3)(iii) of this Schedule, Party A may
designate an Early Termination Date if it is an Affected
Party following a Tax Event but only if all Notes will be
redeemed at their Invested Amount (or, if the Noteholders by
Extraordinary Resolution have so agreed, at their Stated
Amount) together with accrued interest to (but excluding)
the date of redemption.
(b) If a Tax Event occurs where Party A is the Affected Party
and Party A is unable to transfer all its rights and
obligations under this Agreement and each Transaction to an
Affiliate pursuant to Section 6(b)(ii), Party A may, at its
cost, transfer all its rights, powers and privileges and all
its unperformed and future obligations under this Agreement
and each Transaction to any person provided that each
Designated Rating Agency has confirmed in writing that the
transfer will not result in a Note Downgrade.
(IV) 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 of Party B as
principal obligor under this Agreement in respect of each
Affected Transaction of a replacement Party B incorporated in
another jurisdiction approved by Party A and the Note Trustee and
in respect of which the Designated Rating Agencies confirm that
the substitution will not cause a Note Downgrade".
(14) 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 end of the first paragraph.
(15) In Section 6(d)(i), in the penultimate line, insert "in the absence of
manifest error" after the word "evidence".
(16) 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.
(17) ISDA DEFINITIONS. This Agreement, each Confirmation and each Transaction
are subject to the 2000 ISDA Definitions and the 1998 FX and Currency
Option Definitions (each as published by the International Swaps and
Derivatives Association, Inc) (together, 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.
(18) SCOPE OF AGREEMENT.
Any reference to a:
ISDA(R) 1995 30
(a) "Swap Transaction" in the ISDA Definitions is deemed to be a reference
to a "Transaction" for the purposes 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
ISDA Definitions.
(19) INCONSISTENCY. In the event of any inconsistency between any two or more of
the following documents in respect of a Transaction, they will take
precedence over each other in the following descending order in respect of
that Transaction:
(i) any Confirmation;
(ii) the Schedule to the Agreement and Credit Support Annex;
(iii) the printed form of the ISDA Master Agreement and the ISDA Credit
Support Annex;
(iv) the 1998 FX and Currency Option Definitions;
(v) the 2000 ISDA Definitions.
(20) Section 12 is amended as follows:
(i) In Section 12(a), insert "and settlement instructions requiring
payment to an entity other than the original counterparty" after
"Section 5 or 6" in line 2.
(ii) Section 12(a)(iii) is replaced with:
"(iii) if sent by facsimile transmission, on the date a transmission
report is produced by the machine from which the facsimile was sent
which indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient notified for the purpose of this
Section, unless the recipient notifies the sender within one Business
Day of the facsimile being sent that the facsimile was not received in
its entirety and in legible form."
(21) DEFINITIONS AND INTERPRETATION
Section 14 of the Agreement is modified as follows:
(a) New definitions are inserted as follows:
"NOTE DOWNGRADE" means any actual or proposed withdrawal or downgrade
of the rating assigned to any Notes by a Designated Rating Agency
which results or would result in any rating assigned to those Notes
being less than that specified in clause 4.2(f) of the Supplementary
Terms Notice.
"REPLACEMENT CURRENCY SWAP PROVIDER" means, at any time, a person that
has agreed to replace Party A at that time and has a credit rating not
less than the Required Rating.
"REQUIRED RATING" means a credit rating of not less than:
(i) A-1+ (short term) by S & P;
(ii) P-1 (short term) and A2 (long term) by Xxxxx'x; and
(iii) F1 (short term) and A+ (long term) by Fitch Ratings.
"SECURITY TRUST DEED" means the Security Trust Deed dated on or about
the date of this Agreement between Party B as issuing trustee, Crusade
Management Limited (ABN 90 072 715 916) as Manager, P.T. Limited (ABN
67 004 454 666) as security trustee and The Bank of New York as note
trustee.
"SUPPLEMENTARY TERMS NOTICE" means the document, so entitled, dated on
or about the date of this Agreement between (among others) Party B,
Crusade Management Limited, Xx.Xxxxxx Bank Limited (ABN 92 055 513
070) and P.T. Limited.
ISDA(R) 1995 31
"TRUST DEED" means the Master Trust Deed dated 14 March 1998 between
(among others) Party B, Crusade Management Limited, Xx.Xxxxxx Bank
Limited and P.T. Limited, as amended by the Supplementary Terms
Notice.
(b) TRUST DEED AND SECURITY TRUST DEED: The parties acknowledge and agree
and for the purposes of the Trust Deed and Security Trust Deed
(i) all Transactions under this Agreement are "Hedge Agreements";
(ii) Party A is a "Support Facility Provider",
(iii) all obligations of Party B under this Agreement and any/all
Transactions under it are Secured Moneys.
(c) Unless defined in this Agreement, words and phrases defined in the
Trust Deed, the Security Trust Deed and the Supplementary Terms Notice
(each in the form as at the date of this Agreement) have the same
meaning in this Agreement. Where there is any inconsistency in a
definition between this Agreement (on the one hand) and the Trust
Deed, Security Trust Deed or the Supplementary Terms Notice (on the
other hand), this Agreement prevails. Where words or phrases used but
not defined in this Agreement are defined in the Trust Deed in
relation to a Trust (as defined in the Trust Deed) such words or
phrases are to be construed in this Agreement, where necessary, as
being used only in relation to the Trust (as defined in the
Supplementary Terms Notice).
(d) Where in this Agreement a word or expression is defined by reference
to its meaning in another Transaction Document or there is a reference
to another Transaction Document or to a provision of another
Transaction Document, any amendment to the meaning of that word or
expression or to that other Transaction Document or provision (as the
case may be) will be of no effect for the purposes of this Agreement
unless and until the amendment is consented to by the parties to this
Agreement.
(22) New Sections 15 and 16 are inserted immediately after Section 14 as
follows:
"15. PARTY B PROVISIONS
(a) (A) General
Clause 30 of the Trust Deed applies to the obligations and
liabilities of Party B under this Agreement. Clause 16 of the
Security Trust Deed applies to govern Party A's priority to
monies received from the sale of Assets of the Trust or other
enforcement of the Charge under the Security Trust Deed (as
defined in the Security Trust Deed).
(B) Limitation of Party B's Liability
(1) Party B enters into this Agreement only in its capacity as
trustee of the Trust and in no other capacity (except where
the Transaction Documents provide otherwise). Subject to
paragraph (3) below, a liability arising under or in
connection with this Agreement or the Trust can be enforced
against Party B only to the extent to which it can be
satisfied out of the assets and property of the Trust which
are available to satisfy the right of Party B to be
exonerated or indemnified for the liability. This limitation
of Party B's liability applies despite any other provision
of this Agreement and extends to all liabilities and
obligations of Party B in any way connected with any
representation, warranty, conduct, omission, Agreement or
transaction related to this Agreement or the Trust.
ISDA(R) 1995 32
(2) Subject to subparagraph (3) below, no person (including any
Relevant Party) may take action against Party B in any
capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under this Agreement), or
a liquidator, an administrator or any similar person to
Party B or prove in any liquidation, administration or
arrangements of or affecting Party B.
(3) The provisions of this Section 15 shall not apply to any
obligation or liability of Party B to the extent that it is
not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of Party
B's indemnification or exoneration out of the Assets of the
Trust as a result of Party B's fraud, negligence, or
Default.
(4) It is acknowledged that the Relevant Parties are responsible
under the Transaction Documents for performing a variety of
obligations relating to the Trust (other than Party A in its
capacity as currency swap provider under this Agreement, in
respect of which its obligations are limited to this
Agreement). No act or omission of Party B (including any
related failure to satisfy its obligations under this
Agreement) will be considered fraud, negligence or Default
of Party B for the purpose of subparagraph (3) above to the
extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or any
person who has been delegated or appointed by Party B in
accordance with this Agreement or any other Transaction
Document to fulfil its obligations relating to the Trust or
by any other act or omission of a Relevant Party or any such
person.
(5) In exercising their powers under the Transaction Documents,
each of Party B, the Security Trustee and the Noteholders
must ensure that no attorney, agent, delegate, receiver or
receiver and manager appointed by it in accordance with this
Agreement has authority to act on behalf of Party B in a way
which exposes Party B to any personal liability and no act
or omission of any such person will be considered fraud,
negligence, or Default of Party B for the purpose of
subparagraph (3) above.
(6) In this clause, RELEVANT PARTIES means each of the Manager,
the Servicer, the Calculation Agent, the Note Registrar,
each Paying Agent, the Note Trustee, and the provider of a
Support Facility.
(7) Nothing in this clause limits the obligations expressly
imposed on Party B under the Transaction Documents.
(b) Nothing in paragraph (a) or (c) limits Party A in:
(i) obtaining an injunction or other order to restrain any
breach of this Agreement by Party B;
(ii) obtaining declaratory relief;
(iii) in relation to its rights under the Security Trust Deed; or
(iv) taking any legal action against Party B in its personal
capacity under or as a result of the operation of Section
15(a)(B)(3).
(c) Except as provided in paragraphs (a) and (b), Party A shall not
(i) (JUDGMENT) obtain a judgment for the payment of money or
damages by Party B;
(ii) (STATUTORY DEMAND) issue any demand under s459E(1) of the
Corporations Xxx 0000 (Cth) (or any analogous provision
under any other law) against Party B;
ISDA(R) 1995 33
(iii) (WINDING UP) apply for the winding up or dissolution of
Party B;
(iv) (EXECUTION) levy or enforce any distress or other execution
to, on, or against any assets of Party B;
(v) (COURT APPOINTED RECEIVER) apply for the appointment by a
court of a receiver to any of the assets of Party B;
(vi) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against Party B; or
(vii) (ADMINISTRATOR) appoint, or agree to the appointment, of
any administrator to Party B,
or take proceedings for any of the above and Party A waives its
rights to make those applications and take those proceedings."
"16. REPLACEMENT CURRENCY SWAP
(a) If this Agreement or any Transaction under this Agreement is
terminated prior to the day upon which the Class A-1 Notes are
repaid in full, Party B must, subject to paragraph (b), enter
into one or more currency swaps which replace the Transactions
under this Agreement (collectively a "REPLACEMENT CURRENCY SWAP")
but only on the following conditions:
(i) the Settlement Amount payable (if any) by Party B to Party A
upon termination of this Agreement or any Transaction will
be paid in full when due in accordance with the
Supplementary Terms Notice and this Agreement;
(ii) the Designated Ratings Agencies confirm that entry into the
Replacement Currency Swap by Party B will not cause a Note
Downgrade; and
(iii) the liability of Party B under the Replacement Currency
Swap is limited to at least the same extent that its
liability is limited under this Agreement or the relevant
Transaction under this Agreement.
(b) If Party B enters into the Replacement Currency Swap pursuant to
paragraph (a) it must direct the Replacement Currency Swap
Provider to pay any upfront premium to enter into the Replacement
Currency Swap due to Party B directly to Party A in satisfaction
of and to the extent of Party B's obligation to pay the
Settlement Amount to Party A as referred to in Section 16(a) and
to the extent that such premium is not greater than or equal to
the Settlement Amount, the balance must be satisfied by Party B
as a Trust Expense.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party A,
Party B (either itself or through the Manager) must direct Party
A to pay any Settlement Amount payable by Party A to Party B on
termination of this Agreement or any Transaction directly to the
Replacement Currency Swap Provider as payment and to the extent
of any premium payable by Party B to enter into the Replacement
Currency Swap, in satisfaction of and to the extent of Party A's
obligation to pay that part of the Settlement Amount to Party B."
(23) APPOINTMENT OF MANAGER: Party A acknowledges that under the Trust Deed,
Party B has appointed the Manager as manager of the Trust with the powers
set out in and upon and subject to the terms of, the Trust Deed.
Accordingly, subject to the terms of the Trust Deed, the Manager:
(i) may arrange, enter into, and monitor Transactions, execute
Confirmations and exercise all other rights and powers of Party B
under this Agreement; and
ISDA(R) 1995 34
(ii) without limiting the generality of the foregoing, the Manager
shall, issue and receive, on behalf of Party B all notices,
Confirmations, certificates and other communications to or by
Party A under this Agreement.
(24) A new Section 17 is added as follows:
"17. RATING DOWNGRADE
(a) If at any time Party A does not have a credit rating equal to or
higher than the Required Rating it must, at its cost alone:
(i) (A) within 30 days of a downgrade of Party A's credit rating to
lower than "P-1" (short term) by Xxxxx'x or A-1+ (short
term) by S&P, not lower than "F2" (short term) by Fitch
Ratings and not lower than "A3" (long term) by Xxxxx'x or
"BBB+" (long term) by Fitch Ratings (or such greater period
as agreed with each relevant Designated Rating Agency):
(1) deliver collateral to Party B pursuant to the Credit
Support Annex to this Agreement in support of its
obligations under this Agreement;
(2) procure the novation of each Transaction to a
Replacement Currency Swap Provider where such novation
does not result in a Note Downgrade; or
(3) enter into some other arrangement in respect of each
Transaction which each Designated Rating Agency
confirms will not result in a Note Downgrade; or
(B) within 5 Business Days of a downgrade of Party A's credit
rating to lower than "A3" (long term) by Xxxxx'x (or such
greater period as agreed with each relevant Designated
Rating Agency):
(1) deliver collateral to Party B pursuant to the Credit
Support Annex to this Agreement in support of its
obligations under this Agreement;
(2) procure the novation of each Transaction to a
Replacement Currency Swap Provider where such novation
does not result in a Note Downgrade; or
(3) enter into some other arrangement in respect of each
Transaction which each Designated Rating Agency
confirms will not result in a Note Downgrade; or
(ii) within 5 Business Days of a downgrade of Party A's credit rating
to lower than "F2" (short term) or "BBB+" (long term) by Fitch
Ratings:
(A) procure the novation of each Transaction to a Replacement
Currency Swap Provider where such novation does not result
in a Note Downgrade; or
(B) enter into such other arrangement in respect of each
Transaction which each Designated Rating Agency confirms
will not result in a Note Downgrade; or
(iii) after a downgrade of Party A's credit rating to lower than BBB-
(long term) by S&P:
(A) within 1 Business Day, deliver collateral to Party B
pursuant to the Credit Support Annex to this Agreement in
support of its obligations under this Agreement; and
ISDA(R) 1995 35
(B) within 3 Business Days, procure the novation of each
Transaction to a Replacement Currency Swap Provider where
such novation does not result in a Note Downgrade.
(b) If Party A novates its rights and obligations to a Replacement
Currency Swap Provider under paragraph (a)(i)(A)(2), (a)(i)(B)(2) or
(a)(iii)(B) above, Party B agrees to, at the cost of Party A, do all
things necessary to effect the novation.
(c) If at any time:
(i) Party A is assigned a credit rating by each Designated Rating
Agency at least equal to the Required Rating; or
(ii) Party A's obligations under this Agreement are novated to a
replacement counterparty in accordance with paragraph
(a)(i)(A)(2), (a)(i)(B)(2) or (a)(iii)(B) above; or
(iii) some other arrangement is entered into in accordance with
paragraph (a)(i)(A)(3), (a)(i)(B)(3) or (a)(ii)(B) above,
Party B agrees to return equivalent collateral to Party A in
accordance with the terms of the Credit Support Annex to this
Agreement less any collateral previously applied by Party B in
accordance with the terms of the Credit Support Annex to this
Agreement.
(25) PARTY B'S PAYMENT INSTRUCTIONS. Party B irrevocably authorises and
instructs Party A to make payment of:
(a) the "Initial Exchange Amount" payable by Party A under a currency swap
transaction by paying that amount direct to the account notified in
writing by Party B to Party A for that purpose; and
(b) any other amount due from Party A to Party B under this Agreement by
paying that amount direct to the Principal Paying Agent to the account
outside Australia notified in writing by the Principal Paying Agent to
Party A for that purpose. Party A is entitled to rely on any such
notice.
(26) NO AMENDMENT. Party B agrees that it will not consent to any amendment to
any provision in any Transaction Document dealing with the ranking,
priority or entitlement of Party A in respect of any security or moneys
without the prior written consent of Party A (which will not be
unreasonably withheld).
(27) TRANSFER. Notwithstanding the provisions of Section 7, Party A may transfer
all its rights, powers and privileges and all its unperformed and future
obligations under this Agreement and each Transaction to any Affiliate
("TRANSFEREE") by delivering to Party B and the Manager a notice expressed
to be given under this Part 5(27) signed by both Party A and the
Transferee. Upon delivery of those documents to Party B (but subject to the
relevant consents and confirmations being given under this Part 5(27)):
(a) The Royal Bank of Scotland plc's rights, powers, privileges and
obligations as Party A under this Agreement and each Transaction
terminate;
(b) The Royal Bank of Scotland plc will be taken to have transferred its
rights, powers and privileges under this Agreement and each
Transaction to the Transferee and the Transferee will be taken to have
assumed obligations equivalent to those Party A had under this
Agreement and each Transaction;
ISDA(R) 1995 36
(c) Party B will be taken to have released The Royal Bank of Scotland plc
as Party A from all its unperformed and future obligations under this
Agreement and each Transaction; and
(d) This Agreement and the Confirmation relating to each Transaction shall
be construed as if the Transferee was a party to it in place of The
Royal Bank of Scotland plc as Party A.
A Transferee may utilise this provision as Party A. A transfer under this
Part 5(27) will be of no force or effect until each Designated Rating
Agency confirms in writing that such transfer will not result in a Note
Downgrade.
ISDA(R) 1995 37
Please confirm your agreement to the terms of the foregoing Schedule by signing
below.
THE ROYAL BANK OF SCOTLAND PERPETUAL TRUSTEES CONSOLIDATED
PLC LIMITED as trustee of the Trust
By: By:
------------------------------------ ---------------------------------
Name: Name:
Title: Title:
ISDA(R) 1995 38
