ANZ CAPEL COURT LIMITED (ABN 30 004 768 807)
Trust Manager
CITIBANK N.A. (ABN 34 072 814 058)
Citibank and Party A
PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001 007)
Party B
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ABN 11 005 357 522)
ANZ and Standby Swap Provider
KINGFISHER TRUST 2001-1G
ISDA MASTER AGREEMENT
(CURRENCY SWAP AGREEMENT)
(i)
SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF 18 MAY 2001 BETWEEN
ANZ CAPEL COURT LIMITED ABN 30 004 768 807
("TRUST MANAGER")
AND
CITIBANK N.A. ABN 34 072 814 058
("CITIBANK " and "PARTY A")
AND
PERPETUAL TRUSTEE COMPANY LIMITED
ABN 42 000 001 007
IN ITS CAPACITY AS TRUSTEE OF THE KINGFISHER TRUST 2001-1G
("PARTY B")
AND
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
ABN 11 005 357 522
("ANZ" and "STANDBY SWAP PROVIDER")
PART 1. TERMINATION PROVISIONS.
In this Agreement:
(a) "SPECIFIED ENTITY" does not apply in relation to Party A or Party B.
(b) The definition of "SPECIFIED TRANSACTION" is not applicable.
(c) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(b)(iv)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iv)
Section 5(a)(iv) Section 5(a)(vii)
(iii) Section 5(b)(ii) will not apply to Party A as the Affected Party
(subject to Part 5(6)(b) of this Schedule) and Section 5(b)(iii)
will not apply to Party A as the Burdened Party.
(d) The "AUTOMATIC EARLY TERMINATION" provisions in Section 6(a) will not
apply to Party A or Party B.
(e) PAYMENTS ON EARLY TERMINATION. For the purposes of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(f) "TERMINATION CURRENCY" means Australian Dollars.
(g) "ADDITIONAL TERMINATION EVENT" applies. The following is an Additional
Termination Event in relation to which both Party A and Party B are
Affected Parties:
"An Event of Default (as defined in the Deed of Charge) occurs and the
Security Trustee has declared, in accordance with the Global Master
Security Trust Deed, the Class A Notes immediately due and payable."
For the purposes of calculating a payment due under Sections 6(d) and (e)
when an Early Termination Date is designated under Section 6(b) as a
result of such Additional Termination Event, Party B will be the only
Affected Party.
PART 2. TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant government revenue authority, of any Relevant Jurisdiction to
make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to any other party under this Agreement. In
making this representation, it may rely on:
(i) the accuracy of any representation made by that other party pursuant
to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of
any document provided by that other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of that other party contained in
Section 4(d) of this Agreement,
PROVIDED THAT it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice
to its legal or commercial position.
(b) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement:
(i) Party B and ANZ as Standby Swap Provider and (on and from the
Novation Date) as Party A, each makes the following representation:
It is an Australian resident and does not derive the payments
under this Agreement in part or whole in carrying on a
business in a country outside Australia at or through a
permanent establishment of itself in that country.
(ii) Citibank as Party A represents that it is an "eligible contract
participant" under the U.S. Commodity Exchange Act.
PART 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver to each other party the following documents, as applicable:
(a) TAX FORMS, DOCUMENTS OR CERTIFICATES TO BE DELIVERED ARE:
PARTY REQUIRED TO FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE
DELIVER DOCUMENT DELIVERED
Party A, Party B, and Any document or certificate On the earlier of
the Standby Swap Provider reasonably required or (a) learning that
reasonably requested such document or
by a party in connection certificate is
with its obligations to required and (b) as
make a soon as payment reasonably practicable
under this Agreement following a
which would enable that request by a party.
party to make the payment
free from any deduction or
withholding for or on
account of Tax or which
would reduce the rate at
which deduction or
withholding for or on
account of Tax is applied
to that payment as
requested by Party A with
respect to any payments
received by Party B.
(b) OTHER DOCUMENTS TO BE DELIVERED ARE:
PARTY REQUIRED TO FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE
DELIVER DOCUMENT DELIVERED
Party A, Party B, the A certificate specifying On the execution of
Standby Swap Provider the names, title and this Agreement and
and the Trust Manager specimen signatures of each Confirmation
the persons authorised to unless that certificate
execute this Agreement has already been
and each Confirmation or supplied and remains
other communication in true and in effect
writing made pursuant to and when the
this Agreement on its certificate is updated.
behalf.
Party A, Party B, the A legal opinion as to the Prior to the Closing
Standby Swap Provider validity and enforceability Date.
and the Trust Manager of its obligations under
this Agreement in form
and substance (and issued
by legal counsel) reasonably
acceptable to each other
party.
-Trust Manager A certified copy to Not less than 5
Party A of each Credit Business Days (or
Support Document specified such lesser period
in respect of Party B and as Party A agrees
(without limiting any to) before the Trade
obligation Party B may Date of the first
have under the terms of occurring Transaction
that Credit Support Document and in the case of any
to notify Party A of amending documents
amendments thereto)a entered into
certified copy to Party A subsequent to that
of any document that date, promptly after
amends in any way the each amending document
terms of that Credit (if any) has been
Support Document. entered into.
Other than the legal opinions, any Credit Support Document or any document
amending a Credit Support Document (but including any certifications in relation
to such documents), all documents delivered under this Part 3(b) are covered by
the Section 3(d) representation. For the purposes of this Part 3(b), a copy of a
document is taken to be certified if a director or secretary of the party
providing the document, or a person authorised to execute this Agreement or a
Confirmation on behalf of that party or a solicitor acting for that party has
certified it to be a true and complete copy of the document of which it purports
to be a copy.
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this Agreement:
Address for notices or communications to Citibank as PARTY A:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Director, Derivatives Operations
Facsimile No.: (▇▇▇) ▇▇▇ ▇▇▇▇
Additionally, a copy of all notices as well as any changes to
counterparty's address, telephone number or facsimile number should be
sent to:
Address: Capital Markets Legal Department,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Head of Department
Address for notices or communications to PARTY B:
Address: Perpetual Trustee Company Limited
▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: Manager, Securitisation
Facsimile No.: 61 2 9221 7870
Address for notices or communications to Trust Manager:
Address: ANZ Capel Court Limited
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: Manager, Primary Markets Group
Facsimile: 61 3 9273 3539
Additionally, a copy of all notices as well as any changes to
counterparty's address, telephone number or facsimile number should be
sent to:
Address: Perpetual Trustee Company Limited
▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: Manager, Securitisation
Facsimile No.: 61 2 9221 7870
Address for notices or communications to ANZ as STANDBY SWAP Provider and
(on and from the Novation Date) as PARTY A:
Address : Markets Division,
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇▇▇
Attention : Manager, Derivative Operations
Telex No.: AA151018 Answerback: ANZAT
Facsimile No.: (▇▇▇) ▇▇▇▇-▇▇▇▇ Telephone No.: (▇▇▇) ▇▇▇▇-▇▇▇▇
SWIFT Code: ▇▇▇▇▇▇▇▇
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Citibank as Party A appoints as its Process Agent: Citibank N.A., Sydney
Branch.
Party B appoints as its Process Agent: Not applicable.
ANZ as Standby Swap Provider and (on and from the Novation Date) as Party
A appoints as its Process Agent: Not applicable.
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT.
The Calculation Agent is Party A.
All such determinations and calculations will be binding on Party A and
Party B in the absence of manifest error.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
(i) In relation to Citibank as Party A: Not applicable.
(ii) In relation to Party B: Global Master Security Trust Deed and Deed
of Charge.
(iii) In relation to ANZ as (on and from the Novation Date) Party A: Not
applicable.
(g) Credit Support Provider.
(i) In relation to Citibank as Party A: None.
(ii) In relation to Party B: None.
(iii) In relation to ANZ as (on and from the Novation Date) Party A: None.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws in force in New South Wales, except the Credit
Support Annex, which will be governed by and construed in accordance with
the laws in force in the State of New York as provided in Paragraph
13(m)(iv) of the Credit Support Annex. Section 13(b)(i) is deleted and
replaced by the following:
"(i) submits to the non-exclusive jurisdiction of the courts of New
South Wales and courts of appeal from them; and".
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this Agreement
will apply in respect of all Transactions.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. However, for the purposes of Section 3(c) Party B is deemed not
to have any Affiliates.
PART 5 OTHER PROVISIONS
(1) PAYMENTS: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party (if any)".
(b) In Section 2(a)(ii) the first sentence is deleted and replaced with
the following sentence:
"Unless specified otherwise in this Agreement, payments under this
Agreement by:
(i) Party A, will be made by 10.00 am (New York time); and
(ii) Party B, will be made by 4.00pm (Melbourne time),
on the due date for value on that date in the place of the account
specified in the relevant Confirmation or otherwise pursuant to this
Agreement, in freely transferable funds, free of any set-off,
counterclaim, deduction or withholding (except as expressly provided
in this Agreement) and in the manner customary for payment in the
required currency.".
(c) Insert a new paragraph (iv) in Section 2(a) immediately after
Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply
to a payment due to be made to a party if it has satisfied all
its payment obligations under Section 2(a)(i) of this
Agreement and has no future payment obligations, whether
absolute or contingent under Section 2(a)(i)."
(d) Add the following new sentence to Section 2(b):
"Each new account so designated shall be in the same tax
jurisdiction as the original account."
(e) Amend Section 2(d) as follows:
(i) Delete the word "if" at the beginning of Section 2(d)(i)(4)
and insert the following words instead:
"if and only if X is Party A and".
(ii) In Section 2(d)(ii) insert the words "(if and only if Y is
Party A)" after the word "then" at the beginning of the last
paragraph.
Without prejudice to the above amendments, it is agreed that Party B:
(iii) is not obliged to pay:
(1) any additional amount to Party A under Section
2(d)(i)(4); or
(2) any amount to Party A under Section 2(d)(ii); and
(iv) will not receive payments under this Agreement or any
Transaction from which deductions or withholdings have been
made.
(2) PARTY B'S PAYMENT INSTRUCTIONS: Party B irrevocably authorises and
instructs Party A to make payment of:
(i) the Initial Exchange Amount due from Party A to Party B in respect
of the Initial Exchange Date by paying that amount direct to the
account notified in writing by Party B to Party A for that purpose;
and
(ii) any other amount due from Party A to Party B under this Agreement by
paying that amount direct to the Principal Paying Agent to the
account outside Australia notified in writing by the Principal
Paying Agent to Party A for that purpose, (or, the extent directed
by the Trust Manager or the Security Trustee, the Collection
Amount).
(3) PARTY A'S PAYMENT INSTRUCTIONS: Party A irrevocably authorises and
instructs Party B to make payment of:
(i) any amount denominated in A$ due from Party B to the account in
Sydney notified in writing by Party A to Party B from time to time;
and
(ii) any amount denominated in US$ due from Party B to the account
notified in writing by Party A to Party B from time to time.
(4) REPRESENTATIONS: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the words
"creditors' rights generally" the following:
"(including in the case of a party being an ADI (as that term is
defined in the Reserve Bank Act, 1959 (Cth)), sections 13A(3) and 16
of the Banking Act, 1959 (Cth)).";
(b) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to represent
to the other parties on the date on which it enters into a
Transaction that (absent a written agreement between the parties
that expressly imposes affirmative obligations to the contrary for
that Transaction):-
(i) NON-RELIANCE. It is acting for its own account (in the case of
Party B, as trustee of the 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 Trust Manager) and upon advice from such
advisers as it has deemed necessary. It is not relying on any
communication (written or oral) of any other party as
investment advice or as a recommendation to enter into that
Transaction; it being understood that information and
explanations related to the terms and conditions of a
Transaction will not be considered investment advice or a
recommendation to enter into that Transaction. No
communication (written or oral) received from any other party
will be deemed to be an assurance or guarantee as to the
expected results of that Transaction.
(ii) EVALUATION AND UNDERSTANDING. It is capable of evaluating and
understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable
of assuming, and assumes, (in the case of Party B, subject to
Section 15), the risks of that Transaction.
(iii) STATUS OF PARTIES. No other party is acting as a fiduciary or
an adviser to it in respect of that Transaction (other than in
the case of Party B, the Trust Manager).
(c) insert the following new paragraphs (g), (h) and (i) in Section 3
immediately after Section 3(f):
(g) TRUST. By Party B, in respect of Party B only:
(i) TRUST VALIDLY CREATED. The Trust has been validly
created and is in existence at the Trade Date of the
first
occurring Transaction.
(ii) SOLE TRUSTEE. It has been validly appointed as trustee
of the Trust and is presently the sole trustee of the
Trust.
(iii) NO PROCEEDINGS TO REMOVE. No notice has been given to it
and to its knowledge no resolution has been passed, or
direction or notice has been given, removing it as
trustee of the Trust.
(iv) POWER. It has power under the Master Trust Deed and the
Supplemental Deed to:
(A) enter into and perform its obligations under this
Agreement and each Credit Support Document; and
(B) mortgage or charge the Assets of the Trust in the
manner provided in the Credit Support Document (in
relation to Party B),
and its entry into this Agreement and each Credit
Support Document (in relation to Party B) is in the
interests of the beneficiaries of the Trust and does not
constitute a breach of trust.
(v) GOOD TITLE. It is the lawful owner of or has equitable
title to (as applicable) the Assets of the Trust and,
subject only to the Credit Support Document in relation
to Party B and any Security Interest permitted under the
Credit Support Document in relation to Party B, those
Assets are free of all other Security Interests (except
for Party B's right of indemnity out of the Assets of
the Trust).
(vi) ELIGIBLE CONTRACT PARTICIPANT. The Trust was not formed
for the specific purpose of constituting an "eligible
contract participant" under the US Commodity Exchange
Act.
(vii) TOTAL ASSETS. As at close of business on the Trade Date
of the first occurring Transaction, following the issue
of the Class A Notes and provided that the aggregate
Invested Amount of the Class A Notes upon issue exceeds
USD 10,000,000 the Trust will have total assets
exceeding USD10,000,000.
(h) NON-ASSIGNMENT. It has not assigned (whether absolutely, in
equity, by way of security or otherwise), declared any trust
over or given any charge over any of its rights under this
Agreement or any Transaction except, in the case of Party B,
for the Security Interests created under each Credit Support
Document in relation to Party B.
(i) CONTRACTING AS PRINCIPAL. Except in the case of Party B, each
Transaction has been entered into by that party as principal
and not otherwise."
(5) EVENT OF DEFAULT: In Section 5(a):
(a) FAILURE TO PAY OR DELIVER: delete paragraph (i) and replace it with
the following:
""(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when
due, any payment under this Agreement or delivery under
Section 2(a)(i)
or 2(e) required to be made by it if such failure is not
remedied at or before:
(1) where the failure is by Party B, 4.00 pm (Melbourne
time) on the tenth Business Day after notice of such
failure is given to Party B;" and
(2) where the failure is by Party A, 10.00am (New York time)
on the tenth Business Day after notice of such failure
is given to Party A;";
(b) Consequential amendments:
(i) delete "or" at the end of Section 5(a)(vii); and
(ii) replace the full stop at the end of Section 5(a)(viii) with ";
or"; and
(c) DOWNGRADE OBLIGATIONS: insert the following new paragraph (ix):
"(ix) DOWNGRADE OBLIGATIONS. In respect of Party A only, Party A
fails to comply with Part 5(22) of the Schedule if such
failure is not remedied on or before the tenth Business Day
(or such later day as Party B and the Trust Manager may agree
and which the Designated Rating Agencies confirm in writing
will not result in an Adverse Rating Effect after notice of
such failure is given to Party A."
(6) TERMINATION EVENTS:
(a) ILLEGALITY: In respect of each Transaction, the parties agree that
the imposition by any Governmental Agency of an Australian
jurisdiction of any exchange controls, restrictions or prohibitions
which would otherwise constitute an Illegality for the purposes of
Sections 5(b)(i) or 5(c) will not be an event which constitutes an
Illegality for the purposes of those Sections so that, following the
occurrence of that event:
(i) neither Party A nor Party B will be entitled to designate an
Early Termination Date in respect of that Transaction as a
result of that event occurring;
(ii) payment by Party B in accordance with Part 5(3) of the
Schedule will continue to constitute proper performance of its
payment obligations in respect of that Transaction; and
(iii) Party A's obligations in respect of that Transaction or this
Agreement will, to the extent permitted by law, be unaffected
by the occurrence of that event.
(b) PARTY A'S LIMITED RIGHTS IN RELATION TO TAX EVENT:
(i) Notwithstanding Part 1(c)(iii) of the Schedule, but subject to
Section 6(b)(ii), Party A may designate an Early Termination
Date if it is an Affected Party following a Tax Event but only
if the Note Trustee has notified the parties in writing that
it is satisfied that all amounts owing to the Class A Note
Holders will be paid in full on the date on which the Class A
Notes are to be redeemed.
(ii) If a Tax Event occurs where Party A is the Affected Party and
Party A is unable to transfer all its rights and obligations
under this Agreement and each Transaction to an Affiliate
pursuant to Section 6(b)(ii), Party A may, at its cost,
transfer all its rights, powers and privileges and all its
unperformed and future obligations under this Agreement and
each Transaction to any person provided that:
(A) each Designated Rating Agency has confirmed in writing
that the transfer will not result in an Adverse Rating
Effect; and
(B) that person has a long term credit rating assigned by
each Designated Rating Agency of at least the long term
credit rating assigned by that Designated Rating Agency
to Citibank as at the date of this Agreement or,
otherwise, the Standby Swap Provider provides its
written consent to the transfer.
(7) TERMINATION:
(a) TERMINATION BY PARTY B: Party B must not designate an Early
Termination Date without the prior written consent of the Note
Trustee. Party B may only designate an Early Termination Date at the
direction of the Trust Manager. Subject to its duties under the
Master Trust Deed and the Supplemental Deed, Party B may exercise
any rights in its capacity as holder of the Assets of the Trust only
on the instructions of the Trust Manager.
(b) TERMINATION BY THE NOTE TRUSTEE: If following an Event of Default or
Termination Event, Party B does not exercise its right to terminate
a Transaction, then the Note Trustee may designate an Early
Termination Date in relation to that Transaction as if it were a
party to this Agreement.
(c) TERMINATION PAYMENTS BY PARTY B: Notwithstanding Section 6(d)(ii),
any amount calculated as being due by Party B in respect of any
Early Termination Date under Section 6(e) will be payable on the
Payment Date immediately following the date that such amount would
otherwise be payable under Section 6(d)(ii) (or will be payable on
that date if that date is a Payment Date) except to the extent that
such amount may be satisfied from an earlier distribution under the
Global Master Security Trust Deed and the Deed of Charge or the
payment of an upfront premium in respect of a Replacement Currency
Swap in accordance with Part 5(17)(b).
(d) TRANSFERS TO AVOID TERMINATION: Section 6(b)(ii) is amended as
follows:
(i) The following sentence is added at the end of the second
paragraph:
"However, if Party A is that other party it must, if so
requested by the Trust Manager, use reasonable efforts (which
will not require Party A to incur a loss, excluding
immaterial, incidental expenses) to make such a transfer to an
Affiliate provided the Designated Rating Agencies have given
prior written confirmation to the Trust Manager that such a
transfer will not result in an Adverse Rating Effect."
(ii) The third paragraph is deleted and replaced with the
following:
"Any such transfer by a party under this Section 6(b)(ii) will
be subject to and conditional upon the prior written consent
of the other party, which consent will not be withheld:
(1) where the other party is Party A, if Party A's policies
in effect at such time would permit it to enter into
transactions with the transferee on the terms proposed;
or
(2) where the other party is Party B, if the Designated
Rating Agencies have confirmed in writing that such
transfer will not result in an Adverse Rating Effect.
(e) NOTICE OF EVENT OF DEFAULT. For the purposes of Section 6(a) and
(b):
(i) Party A may only provide a notice specifying an Event of
Default to Party B as the Defaulting Party and may only
designate an Early Termination Date following a Termination
Event where Party A or Party B (or both) is the Affected Party
or the Burdened Party; and
(ii) the Standby Swap Provider may not issue a notice specifying an
Event of Default or designating an Early Termination Date
(except as Party A on or after the Novation Date).
(8) NO SET-OFF: Section 6(e) is amended by deleting the last sentence of the
first paragraph.
(9) TRANSFER: Section 7 is replaced with:
"7. ESSENTIAL TERM: TRANSFER
(a) Neither the interests nor the obligations of any party in or under
this Agreement (including any Transaction) are capable of being
assigned or transferred (whether at law, in equity or otherwise),
charged or the subject of any trust (other than the Trust or the
trusts created pursuant to the Credit Support Documents in relation
to Party B) or other fiduciary obligation. Any action by a party
which purports to do any of these things is void.
(b) Nothing in this Section 7:
(i) restricts a transfer by a party after the other parties have
agreed to the variation of this Agreement in accordance with
Part 5(20) to the extent necessary to permit such transfer;
(ii) restricts a novation of the interests and obligations of a
party in or under this Agreement (including any Transaction)
for the purposes of giving effect to a transfer under Section
6(b)(ii);
(iii) restricts a transfer by a party of all or any part of its
interest in any amount payable to it from a Defaulting Party
under Section 6(e);
(iv) restricts a transfer by Party B or the Trust Manager to a
substitute Trustee or substitute Trust Manager, respectively,
in accordance with the Master Trust Deed;
(v) restricts Party B from granting security over a Transaction or
this Agreement pursuant to any Credit Support Document in
relation to Party B; or
(vi) limits Parts 5(6)(b)(ii), 5(22), 5(23), 5(24) or 5(25).
(c) Each party acknowledges that the other party enters into this
Agreement and each Transaction on the basis that this Section 7 must
be strictly observed and is essential to the terms of this Agreement
(including each Transaction)."
(10) FACSIMILE TRANSMISSION: In Section 12:
(a) delete Section 12(a)(ii); and
(b) replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission:
(A) in the case of any notice or other communication
pursuant to Parts 5(23), (24) or (25), on the date that
the transmission is received by a responsible employee
of the recipient in legible form (it being agreed that
the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by
the sender's
facsimile machine); or
(B) otherwise, on the date a transmission report is produced
by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to
the facsimile number of the recipient notified for the
purpose of this Section unless the recipient notifies
the sender within one Business Day of the facsimile
being sent that the facsimile was not received in its
entirety in legible form;".
(11) DEFINITIONS
(a) MASTER DEFINITIONS SCHEDULE AND SUPPLEMENTAL DEED: unless defined in
this Agreement words and phrases defined in the Master Definitions
Schedule and the Supplemental Deed have the same meaning in this
Agreement. Where there is any inconsistency in a definition between
this Agreement (on the one hand) and the Master Definitions Schedule
or Supplemental Deed (on the other hand), this Agreement prevails.
Where there is any inconsistency in a definition between the Master
Definitions Schedule and the Supplemental Deed, the Supplemental
Deed prevails over the Master Definitions Schedule in respect of the
Trust. Where words or phrases used but not defined in this Agreement
are defined in the Master Definitions Schedule in relation to a
Trust (as defined in the Master Definitions Schedule) 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
Supplemental Deed);
(b) TRUSTEE CAPACITY:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the Trust only, and in no other
capacity; and
(ii) a reference to the undertaking, assets, business, money or
other thing of or in relation to Party B is a reference to the
undertaking, assets, business, money or other thing of or in
relation to Party B in the capacity referred to in paragraph
(i) only.
(c) DEFINITIONS: in Section 14:
(i) replace the definitions of "AFFECTED TRANSACTIONS" and "LOCAL
BUSINESS DAY" with the following:
""AFFECTED TRANSACTIONS" means, with respect to a Termination
Event, all Transactions."
""LOCAL BUSINESS DAY" has the same meaning as "BUSINESS DAY"."
(ii) insert the following new definitions:
"BBSW" or "AUD-BBR-BBSW" in relation to an Interest Period
means the rate appearing at approximately 10.00 am Sydney time
on the Reset Date for that Interest Period on the Reuters
Screen page "BBSW" as being the average of the mean buying and
selling rates appearing on that page for a ▇▇▇▇ of exchange
having a tenor of three months. If:
(a) on that Reset Date fewer than 4 banks are quoted on the
Reuters Screen page "BBSW"; or
(b) for any other reason the rate for that day cannot be
determined in accordance with the foregoing procedures,
then "BBSW" or "AUD-BBR-BBSW" means such rate as is specified
by the Calculation Agent having regard to comparable indices
then available.
"CREDIT SUPPORT ANNEX" means the Credit Support Annex to be
executed in the form substantially as annexed to this
Agreement.
"INCONVERTIBILITY EVENT" means any event beyond the control of
ANZ that makes it impossible for ANZ to convert to U.S.
Dollars through customary legal channels an amount of
Australian Dollars sufficient to fulfil ANZ's obligations
under this Agreement and each Transaction.
"JOINT RATINGS" means the highest possible jointly supported
short term credit rating or long term credit rating, as
applicable, that can be determined in relation to Party A and
the Standby Swap Provider by ▇▇▇▇▇'▇, S&P and Fitch in
accordance with ▇▇▇▇▇'▇, S&P's and Fitch's respective
approaches to jointly supported obligations provided that if
either Party A or the Standby Swap Provider has a long term
credit rating of less than BBB from S&P the Joint Ratings from
S&P will be the credit ratings of the other party.
"MASTER DEFINITIONS SCHEDULE" means the deed entitled
"Kingfisher Master Trusts Master Definitions Schedule" dated 1
August 2000 between the Trust Manager, Party B and P.T.
Limited as amended by the deed entitled "Kingfisher Master
Trusts Amending Deed" dated 16 May 2001.
"NOVATION DATE" means the date upon which the obligations of
Citibank as Party A under this Agreement and each Transaction
are novated to the Standby Swap Provider pursuant to Part
5(24)(c).
"PRESCRIBED RATING PERIOD" means in relation to the Joint
Ratings determined by the Designated Rating Agencies:
(a) a period of 30 Business Days from the date of
determination of the relevant credit rating where any
Joint Rating immediately after that determination is
less than the relevant Prescribed Rating but greater
than or equal to a short term credit rating of A-1 by
S&P and long term credit ratings of A- by S&P, A3 by
▇▇▇▇▇'▇ and A- by Fitch, as the case may be; and
(b) a period of 5 Business Days from the date of
determination of the relevant credit rating where any
Joint Rating immediately after that determination is
less than a short term credit rating of A-1 by S&P or
less than a long term credit rating of A- by S&P, A3 by
▇▇▇▇▇'▇ and A- by Fitch.
"PRESCRIBED RATINGS" means a short term credit rating of A-1+
by S&P or a long term credit rating of AA- by S&P and long
term credit ratings of AA- by Fitch and a short term credit
rating of P-1 or a long term rating of A2 by ▇▇▇▇▇'▇.
"RELEVANT CALCULATION AMOUNT" has the meaning given in.the
Form of Confirmation Kingfisher Trust 2001-1G Definitions
Schedule
"SUPPLEMENTAL DEED" means the deed entitled "Kingfisher Trust
2001-1G Supplemental Deed" dated on or about the date of this
Agreement between the Trust Manager, Party B and certain other
parties.
"TRUST" means the Kingfisher Trust 2001-1G constituted by the
Master Trust Deed and a notice of creation of trust.
(d) INTERPRETATION:
(i) references to time are references to Melbourne time;
(ii) a reference to "NEITHER PARTY" will be construed as a
reference to "NO PARTY"; and
(iii) a reference to "OTHER PARTY" will be construed as a reference
to "OTHER PARTIES".
(e) ISDA DEFINITIONS: The 2000 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc ("ISDA")), as
at the date of this Agreement are incorporated into this Agreement
and each Confirmation.
(f) INCONSISTENCY: Subject to Part 5(11)(a), unless specified otherwise,
in the event of any inconsistency between any two or more of the
following documents in respect of a Transaction they will take
precedence over each other in the following order in respect of that
Transaction:
(i) any Confirmation;
(ii) this Schedule and Paragraph 13 ("Elections and Variables") of
the Credit Support Annex (as applicable);
(iii) the 2000 ISDA Definitions; and
(iv) the printed form of the 1992 ISDA Master Agreement and the
printed form of the ISDA Credit Support Annex which form part
of this Agreement.
(g) SWAP TRANSACTION: Any reference to a:
(i) "SWAP TRANSACTION" in the 2000 ISDA Definitions is deemed to
be a reference to a "TRANSACTION" for the purpose of
interpreting this Agreement or any Confirmation; and
(ii) "TRANSACTION" in this Agreement or any Confirmation is deemed
to be a reference to a "SWAP TRANSACTION" for the purpose of
interpreting the 2000 ISDA Definitions.
(h) INCORPORATED DEFINITIONS AND OTHER TRANSACTION DOCUMENTS AND
PROVISIONS: Where in this Agreement a word or expression is defined
by reference to its meaning in another Transaction Document or there
is a reference to another Transaction Document or to a provision of
another Transaction Document, any amendment to the meaning of that
word or expression or to that other Transaction Document or
provision (as the case may be) will be of no effect for the purposes
of this Agreement unless and until the amendment is consented to by
the parties to this Agreement.
(12) LIMITATION OF LIABILITY:
Insert the following as Section 15, after Section 14
"(15)(a) (PARTY B'S LIMITATION OF LIABILITY) Party B enters into
this Agreement and each Transaction only in its capacity as
trustee of the Trust and in no other capacity. A liability of
Party B arising under or in connection with this Agreement, a
Transaction or the Trust is limited to and can be enforced
against Party B only to the extent to which it can be
satisfied out of the Assets of the Trust out of which Party B
is actually indemnified for the liability. This limitation of
Party B's liability applies despite any other provision of
this Agreement (other than Section 15(c) below) 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,
any Transaction or the Trust.
(a) The parties other than Party B may not ▇▇▇ Party B in any capacity
other than as trustee of the Trust including seeking the appointment
of a receiver (except in relation to the Assets of the Trust) or
liquidator, administrator or any similar person to Party B or prove
in any liquidation, administration or arrangement of or affecting
Party B (except in relation to the Assets of the Trust).
(b) The provisions of this Section 15 limiting Party B's liability will
not apply to any obligation or liability of Party B to the extent
that it is not satisfied because, under this Agreement or any other
Transaction Document in relation to the Trust, or by operation of
law, there is a reduction in the extent of Party B's indemnification
out of the Assets of the Trust, as a result of Party B's fraud,
gross negligence or willful default.
(c) It is acknowledged that the Relevant Parties are responsible under
this Agreement and the other Transaction Documents in relation to
the Trust for performing a variety of obligations relating to the
Trust. No act or omission of Party B (including any related failure
to satisfy its obligations or breach of representation or warranty
under this Agreement) will be considered fraud, gross negligence or
willful default for the purposes of Section 15(c) above to the
extent the act or omission was caused or contributed to by any
failure by any Relevant Party or any other person appointed by Party
B under any Transaction Document (other than a person whose acts or
omissions Party B is liable for in accordance with any Transaction
Document) to fulfil its obligations relating to the Trust or by any
other act or omission of any Relevant Party or any other such person
regardless of whether or not the act or omission is purported to be
done on behalf of Party B.
(d) No attorney, agent, receiver or receiver and Trust Manager appointed
in accordance with this Agreement or any other Transaction Document
has authority to act on behalf of Party B in a way that exposes
Party B to any personal liability, and no act or omission of any
such person will be considered fraud, gross negligence or willful
default of Party B for the purpose of Section 15(c) above.
(e) Party B is not obliged to do anything or refrain from doing anything
under or in connection with this Agreement (including incur a
liability) unless Party B's liability is limited in the same manner
as set out in this clause.
(13) FURTHER ASSURANCES: Each party will, upon request by the other party (the
"REQUESTING PARTY") at the expense of the requesting party, perform all
such acts and execute all such agreements, assurances and other documents
and instruments as the requesting party reasonably requires (and, in the
case of Party B, are within the powers granted to Party B under the Master
Trust Deed) and as directed by the Trust Manager to assure and confirm the
rights and powers afforded, created or intended to be afforded or created,
under or in relation to this Agreement and each Transaction or other
dealing which occurs under or is contemplated by it.
(14) PROCEDURES FOR ENTERING INTO TRANSACTIONS
(a) With respect to each Transaction entered into pursuant to this
Agreement and for the purposes of Section 9(e)(ii), Party A will, by
or promptly after the relevant
Trade Date, send Party B, the Standby Swap Provider and the Trust
Manager a Confirmation substantially in the form set out in Annexure
1 (or in such other form as may be agreed between Party A, Party B,
the Standby Swap Provider and the Trust Manager), and Party B, the
Standby Swap Provider and the Trust Manager must promptly then
confirm the accuracy of and sign and return, or request the
correction of, such Confirmation; and
(b) Party B will enter into each Transaction in its capacity as trustee
of the Trust.
(15) TRANSACTIONS NOT EXPRESSED TO BE SUBJECT TO ISDA
The parties agree that where a Transaction has not been confirmed by
express reference to this Agreement, or alternatively has been confirmed
by express reference to other terms, another master agreement or
otherwise, that Transaction will, unless the terms of this Agreement have
been expressly excluded, nonetheless be deemed to be governed exclusively
by the terms of this Agreement.
(16) RECORDED CONVERSATIONS: Each party:
(a) consents to the electronic recording of its telephone conversations
with the other party (or any of its associated persons) with or
without the use of an automatic tone warning device;
(b) such recordings may be used as evidence in court proceedings or
arbitration.; and
(c) acknowledges that neither is obligated to maintain copies of such
recordings and transcripts for the benefit of the other party.
(17) REPLACEMENT CURRENCY SWAP AGREEMENT:
(a) If any Transaction under this Agreement is terminated prior to the
day upon which the Notes are redeemed in full, Party B may, at the
direction of the Trust Manager, enter into one or more currency
swaps which replace that Transaction (collectively a "REPLACEMENT
CURRENCY SWAP") provided that:
(i) the Designated Rating Agencies confirm in writing that the
entry into the Replacement Currency Swap by Party B does not
result in an Adverse Rating Effect; and
(ii) the liability of Party B under the Replacement Currency Swap
is limited to at least the same extent that its liability is
limited under that Transaction.
(b) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party B to Party
A upon termination of the Transaction referred to in Part 5(17)(a),
Party B must direct the Replacement Currency Swap provider to pay
any upfront premium to enter into the Replacement Currency Swap due
to Party B directly to Party A in satisfaction of and to the extent
of Party B's obligation to pay the Settlement Amount to Party A, and
to the extent such premium is not greater than or equal to the
Settlement Amount, the balance may be satisfied by Party B as an
Expense of the Trust.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party A to Party
B upon termination of the Transaction referred to in Part 5(17)(a),
Party B may direct Party A to pay that amount to the Replacement
Currency Swap provider in satisfaction of or towards and to the
extent of Party B's obligation (if any) to pay an upfront premium to
the Replacement Currency Swap provider to enter into the Replacement
Currency Swap.
(d) The obligations of Party B (and the rights of Party A) under this
Part 5(17) will
survive the termination of this Agreement.
(18) KNOWLEDGE OR AWARENESS: Subject to Section 12(a), each party will only be
considered to have knowledge or awareness of, or notice of, a thing or
grounds to believe anything by virtue of the officers of that party or any
Related Body Corporate of that party which have the day to day
responsibility for the administration or management of that party's (or a
Related Body Corporate of that party's) obligations in relation to the
Trust or the Transactions entered into under this Agreement having actual
knowledge, actual awareness or actual notice of that thing, or grounds or
reason to believe that thing (and similar references will be interpreted
in this way).
(19) RESTRICTIONS ON PARTY B'S RIGHTS: Party B must at all times act in
accordance with the instructions of the Trust Manager in relation to this
Agreement.
(20) AMENDMENT TO THIS AGREEMENT: None of Party A, Party B, the Standby Swap
Provider or the Trust Manager may amend this Agreement unless the
Designated Rating Agencies have confirmed in writing that the proposed
amendment will not result in an Adverse Rating Effect.
(21) APPOINTMENT OF TRUST MANAGER: Party B hereby exclusively appoints the
Trust Manager as its attorney to act on Party B's behalf and exercise all
rights and powers of Party B with respect to this Agreement other than any
amendment of Party B's rights and powers under this Agreement. Without
limiting the generality of the foregoing, the Trust Manager may issue and
receive on behalf of Party B all notices, certificates and other
communications to or by Party A under this Agreement until such time as
Party B serves written notice on Party A of the revocation of the Trust
Manager's authority to act on behalf of Party B in accordance with this
Part 5(21) of the Schedule.
(22) RATINGS DOWNGRADE:
(a) (DOWNGRADE): If, as a result of the reduction or withdrawal of the
credit rating of Party A or the Standby Swap Provider a Joint Rating
is less than the relevant Prescribed Rating, Party A must by the
expiry of the Prescribed Rating Period in relation to the credit
ratings assigned by the Designated Rating Agencies to Party A and
the Standby Swap Provider at that time (or such greater period as is
agreed to in writing by each relevant Designated Rating Agency), at
its cost alone and at its election:
(i) provided that the short term Joint Rating by S&P is greater
than or equal to A-1 or the long term Joint Rating by S&P is
greater than or equal to A- and the long term Joint Rating by
Fitch is greater than or equal to A-, lodge collateral in
accordance with the Credit Support Annex in an amount equal to
the Collateral Amount as defined in Part 5 (22)(b); or
(ii) enter into, and procure that the Standby Swap Provider enters
into, an agreement novating Party A's and/or the Standby Swap
Providers' rights and obligations under this Agreement and
each Transaction to a replacement counterparty acceptable to
the Trust Manager and the Standby Swap Provider (and notified
to Party B) and which the Designated Rating Agencies confirm
in writing will not result in an Adverse Rating Effect; or
(iii) enter into, or procure that the Standby Swap Provider enters
into, such other arrangements in respect of each Transaction
which the Designated Rating Agencies confirm in writing will
not result in an Adverse Rating Effect.
Notwithstanding that Party A has elected to satisfy its obligations
pursuant to
this Part 5(22)(a) in a particular manner, it may subsequently and
from time to time vary the manner in which it satisfies its
obligations pursuant to this Part 5(22)(a) (but will not be entitled
to any additional grace period in relation to such a variation).
(b) (COLLATERAL AMOUNT): For the purpose of this Part 5(22) the
Collateral Amount will be an amount equal to the greater of the
following:
(i) zero;
(ii) CCR; and
(iii) an amount acceptable to ▇▇▇▇▇'▇ and Fitch and sufficient to
maintain the credit rating assigned to the Class A Notes by
▇▇▇▇▇'▇ and Fitch immediately prior to the review of the Joint
Rating.
Where:
CCR = CR x 1.030
CR = MTM + VB
MTM means the aggregate ▇▇▇▇-to-market value (whether positive or
negative) of each Transaction determined in accordance with Part
5(22)(c) no earlier than 3 Business Days prior to the date that the
Collateral Amount is lodged.
VB means the volatility buffer, being the value calculated by
multiplying the Relevant Calculation Amount as at the most recent
Payment Date by the relevant percentage obtained from the following
table:
------------------------------------------------------------------------------------------------
PARTY A'S AND THE WHERE THE PERIOD WHERE THE PERIOD WHERE THE PERIOD
STANDBY SWAP BETWEEN THE DATE OF BETWEEN THE DATE OF BETWEEN THE DATE OF
PROVIDER'S JOINTLY RECALCULATION AND THE RECALCULATION AND THE RECALCULATION AND THE
SUPPORTED LONG TERM FINAL MATURITY DATE IS FINAL MATURITY DATE IS FINAL MATURITY DATE IS
CREDIT RATING BY S&P LESS THAN OR EQUAL TO 5 GREATER THAN 5 YEARS GREATER THAN 10 YEARS
YEARS AND LESS THAN OR EQUAL
TO 10 YEARS
------------------------------------------------------------------------------------------------
A+ 1.05 1.75 3.0
------------------------------------------------------------------------------------------------
A 1.35 2.45 4.5
------------------------------------------------------------------------------------------------
A- 1.5 3.15 6
------------------------------------------------------------------------------------------------
(c) (▇▇▇▇ TO MARKET VALUE): Party A must calculate the ▇▇▇▇-to-market
value of each Transaction by obtaining 2 bids from counterparties
with the Prescribed Ratings willing to provide each Transaction in
the absence of Party A. The ▇▇▇▇-to-market value may be a positive
or a negative amount. A bid has a negative value if the payment to
be made is from the counterparty to Party A and has a positive value
if the payment to be made is from Party A to the counterparty. The
▇▇▇▇-to-market value is the higher of the bids (on the basis that
any bid of a positive value is higher than any bid of a negative
value).
(d) (RECALCULATION): Party A must recalculate the Collateral Amount
(including the CCR and the ▇▇▇▇-to-market value) on each Valuation
Date. If:
(i) the Value on such Valuation Date of all Posted Credit Support
held by the Secured Party is less than the recalculated
Collateral Amount, the difference is the Delivery Amount in
relation to that Valuation Date; or
(ii) the Value on such Valuation Date of all Posted Credit Support
held by the Secured Party is greater than the recalculated
Collateral Amount, the difference is the Return Amount in
relation to that Valuation Date.
(e) (DEFINITIONS): For the purposes of this Part 5(22) "Delivery
Amount", "Posted Credit Support", "Return Amount", "Secured Party",
"Value" and "Valuation Date" have the same meaning as in the Credit
Support Annex.
(23) TRANSFER: Notwithstanding the provisions of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ as 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 of
its Affiliates ("TRANSFEREE") by delivering to the Standby Swap Provider,
Party B and the Trust Manager a notice expressed to be given under this
provision signed by both Citibank as 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(23)):
(a) (PARTY A'S RIGHTS TERMINATE): Citibank's rights, powers, privileges
and obligations as Party A under this Agreement and each Transaction
terminate;
(b) (TRANSFER AND ASSUMPTION): Citibank 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;
(c) (RELEASE): Party B will be taken to have released Citibank as Party
A from all its unperformed and future obligations under this
Agreement and each Transaction; and
(d) (DOCUMENTS): this Agreement and the Confirmation relating to each
Transaction shall be construed as if the Transferee was a party to
it in place of Citibank as Party A.
A Transferee may utilise this provision as Party A. A transfer under this
Part 5(23) will be of no force or effect until each Designated Rating
Agency confirms in writing that such transfer will not result in an
Adverse Rating Effect and until the Standby Swap Provider has given its
written consent to such a transfer.
(24) STANDBY SWAP PROVIDER:
(a) (COMMITMENT): Notwithstanding any other provision in this Agreement
to the contrary, if Citibank as Party A fails to:
(i) make, when due, any payment required to be made by it to Party
B under a Transaction; or
(ii) comply with any obligation under Part 5(22) within the
required period,
then:
(iii) as soon as practicable following such failure but, in relation
to a failure to pay under a Transaction, in any event no later
than 11.00 am (New York time) on the due date for such payment
or, in relation to a failure to comply with an obligation
under Part 5(22), no later than the Business Day following the
due date for compliance with such obligation, Party B must
notify Citibank as Party A and the Standby Swap Provider in
writing of such failure and:
(A) the amount of the defaulted payment and the basis of
calculation of the defaulted payment; or
(B) details of the failure to comply with the obligation
under Part 5(22),
as the case may be; and
(iv) as soon as reasonably practicable after its receipt of such
notice (and
in any event, in relation to a failure to pay under a
Transaction, no later than 1.30 pm (New York time) on the due
date for such payment, and, in relation to a failure to comply
with an obligation under Part 5(22), no later than 3 Business
Days after the failure to comply with such obligation,
provided, in each case, that notice has been given by Party B
by the required times in accordance with Part 5(24)(a)(iii))
the Standby Swap Provider must:
(A) in relation to a failure to pay under a Transaction, pay
to Party B the amount then owing by Citibank as Party A
to Party B under that Transaction by paying such 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 (or to the
extent directed by the Trust Manager or the Security
Trustee, to the Collections Account); and
(B) in relation to a failure to comply with an obligation
under Part 5(22), satisfy the obligations of Citibank as
Party A under Part 5(22); and
(v) Party B acknowledges that a payment made by the Standby Swap
Provider in full compliance with Part 5(24)(a)(iv)(A) will
fully satisfy and discharge the obligation of Party A to make
that payment.
(b) (REIMBURSEMENT): If on any day the Standby Swap Provider:
(i) makes a payment pursuant to Part 5(24)(a)(iv)(A), Citibank as
Party A must by 2.00 pm (New York time) on the next following
Business Day (or such other time as the Standby Swap Provider
may agree in writing) pay to the Standby Swap Provider an
amount equal to that payment by depositing such amount into
the account which the Standby Swap Provider nominates for this
purpose in cleared funds; or
(ii) satisfies the obligations of Citibank as Party A pursuant to
Part 5(24)(a)(iv)(B), Citibank as Party A must:
(A) within 3 Business Days, fulfill its obligations under
Part 5(22) such that any collateral lodged by the
Standby Swap Provider pursuant to Part 5(22)(a)(i) or
any other arrangement made by the Standby Swap Provider
pursuant to Part 5(22)(a)(iii) is returned to the
Standby Swap Provider or will cease (but Citibank as
Party A will have no obligations to the Standby Swap
Provider under this Part 5(24)(b)(ii)(A) in relation to
any novation pursuant to Part 5(22)(a)(ii)); and
(B) upon demand by the Standby Swap Provider, indemnify the
Standby Swap Provider from and against any other cost or
liability incurred by the Standby Swap Provider in
satisfying those obligations.
(iii) Each of the Standby Swap Provider and Party B acknowledge that
a payment made by ANZ as Party A in full compliance with Part
5(24)(b)(i) will fully satisfy and discharge the obligation of
Party A to make that payment.
(c) (NOVATION): If:
(i) Citibank as Party A defaults in its payment obligations under
Part 5(24)(b)(i) or (b)(ii)(B) for reasons other than solely a
technical, computer or similar error outside the control of
Citibank as Party A and such default is not remedied on or
before one Business Day after such failure; or
(ii) Citibank as Party A fails to fulfill its obligations under
Part 5(24)(b)(ii)(A),
then:
(iii) Citibank's rights, powers, privileges and obligations as Party
A under this Agreement and each Transaction terminate other
than its rights, powers, privileges and obligations pursuant
to Part 5(24)(d) and Paragraph 13(m)(vii) of the Credit
Support Annex;
(iv) subject to Part 5(24)(c)(vi),the Standby Swap Provider agrees
to assume obligations (and is taken to have assumed
obligations) equivalent to those that Citibank as Party A had
under this Agreement and each Transaction and takes the
rights, powers and privileges (and is taken to have received
such rights, powers and privileges) as Party A under this
Agreement.
(v) Party B and the Standby Swap Provider is taken to have
released Citibank as Party A from all its unperformed and
future obligations under this Agreement and each Transaction
other than its present and future obligations pursuant to Part
5(24)(d);
(vi) this Agreement and the Confirmation relating to each
Transaction shall be construed as if the Standby Swap Provider
is a party to it as Party A except that:
(A) references to "Citibank as Party A" will not apply to
the Standby Swap Provider as Party A;
(B) references to any jointly supported credit rating of
Party A and the Standby Swap Provider will be deemed to
be references to the relevant credit rating of the
Standby Swap Provider;
(C) without limiting Part 5(24)(c)(vi)(A), this Part 5(24)
and Paragraph 13(m)(vii) of the Credit Support Annex
will not apply to the Standby Swap Provider as Party A;
(D) the Standby Swap Provider must (if it has not already
done so) satisfy the obligations of Party A under Part
5(22)(a) within 10 Business Days of the Novation Date on
the basis that any collateral lodged by Citibank as
Party A or any other arrangements made by Citibank as
Party A pursuant to Part 5(22)(a)(iii) will be returned
to Citibank as Party A or will cease (but such
collateral will only be returned and such arrangements
will only cease upon compliance by the Standby Swap
Provider with its obligations under this Part
5(24)(c)(vi)(D) and otherwise, where applicable, in
accordance with Paragraph 13(m)(vii) of the Credit
Support Annex or the terms of such arrangements).
(d) (TERMINATION PAYMENT): Following novation under Part 5(24)(c)
Citibank as Party A must pay the Standby Swap Provider or the
Standby Swap Provider must pay Citibank as Party A an amount (the
"NOVATION SETTLEMENT AMOUNT") being:
(i) in the case of payment by Citibank as Party A to the Standby
Swap Provider, an amount equal to the amount (if any) that
would be payable by Party A to Party B; and
(ii) in the case of payment by the Standby Swap Provider to
Citibank as Party A, an amount equal to the amount (if any)
that would be payable by Party B to Party A,
if each Transaction had been terminated, calculated and payable in
accordance with Sections 6(d) and (e) on the basis that:
(i) the Novation Date is the Early Termination Date and the
Novation Settlement Amount is due and payable on the day that
notice of the amount payable is effective;
(ii) the Early Termination Date has resulted from an Event of
Default in respect of which Party A is the Defaulting Party;
(iii) all calculations and determinations which would have been done
by Party B are done by the Standby Swap Provider and all
calculations and determinations that would have been done by
Party A are done by Citibank;
(iv) a reference to Unpaid Amounts owing to Party B is a reference
to such amounts payable by Party A to the Standby Swap
Provider pursuant to Part 5(24)(b) and (e) and there are no
Unpaid Amounts owing to Party A;
(v) without limiting the foregoing, for the purposes of the
definition of "Market Quotation" in Section 14 each Reference
Market-maker would be required, upon entering into a
Replacement Transaction, to fulfill the obligations of Party A
under Part 5(22)(a) and to comply with Section 2(d) as amended
by Part (5)(1)(e); and
(vi) the Termination Currency is U.S. Dollars.
(e) (DEFAULT INTEREST): If Citibank as Party A defaults in the
performance of any payment obligations under Part 5(24)(b) or Part
5(24)(d), it must pay interest (before as well as after judgment) on
the overdue amount to the Standby Swap Provider on demand in the
same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the
date of actual payment, at the Default Rate. Such interest will be
calculated on the basis of daily compounding and the actual number
of days elapsed.
(f) (IRREVOCABLE NOTICE): If the Standby Swap Provider satisfies the
obligations of Citibank as Party A under Part 5(24)(a)(iv)(B) by
lodging collateral on behalf of Citibank as Party A pursuant to Part
5(22)(a), Citibank as Party A must promptly provide an irrevocable
notice to Party B (copied to the Standby Swap Provider) directing
Party B that any such collateral, and any Distribution or Interest
Amount (as those terms are defined in the Credit Support Annex) with
respect to such collateral, is to be returned or paid to the Standby
Swap Provider and not to Citibank as Party A.
(25) INCONVERTIBILITY: If prior to the Novation Date an Inconvertibility Event
occurs the Standby Swap Provider's rights, powers, privileges and
obligations under this Agreement and each Transaction will terminate upon
the Standby Swap Provider delivering a notice expressed to be given under
this provision to Party A, Party B and the Trust Manager and Party B is
taken to have released the Standby Swap Provider from all its unperformed
and future obligations under this Agreement and each Transaction.
Following the delivery of such a notice in accordance with this Part
5(25), references to any jointly supported credit rating of Party A and
the Standby Swap Provider will be deemed to be references to the relevant
credit rating of Party A.
ANNEXURE 1
FORM OF CONFIRMATION KINGFISHER TRUST 2001-1G
[LETTERHEAD OF PARTY A]
[DATE]
TO: Perpetual Trustee Company Limited ANZ Capel Court Limited
as trustee of the Trust ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ATTENTION: Manager, Primary
Markets Group
ATTENTION: Manager,
Securitisation Services
Australia and New Zealand
Banking Group Limited
Address: Markets Division,
Level 12, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇,
▇▇▇▇▇▇▇▇▇
ATTENTION: Manager, Derivative
Operations
CONFIRMATION - KINGFISHER TRUST 2001-1G
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the terms specified below (the
"TRANSACTION"). This letter constitutes a "CONFIRMATION" as referred to in the
Master Agreement specified below.
This Confirmation is entered into by Perpetual Trustee Company Limited as
trustee of the Kingfisher Trust 2001-1G (the "TRUST").
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented from
time to time (the "AGREEMENT"), between CITIBANK N.A.("PARTY A"), Perpetual
Trustee Company Limited, ABN 42 000 001 007 as trustee of, inter alia, the
Trust ("PARTY B"), ANZ Capel Court Limited ABN 30 004 768 807 (the "TRUST
MANAGER") and Australia and New Zealand Banking Group Limited, ABN 11 005 357
522 (the "STANDBY SWAP PROVIDER"). All provisions contained in the Agreement
govern this Confirmation except as expressly modified below.
Capitalised terms used but not defined in this Confirmation have the meanings
assigned to them in the Agreement.
The terms of the particular Transaction to which this Confirmation relates are
specified below:
1. OUR REFERENCE: [ ]
2. TRADE DATE: [ ]
3. EFFECTIVE DATE: Issue Date in respect of the Class A
Notes
4. TERMINATION DATE: The earlier of:
(a) the date that the Class A Notes
have been redeemed in full in
accordance with the Class A Note
Conditions; and
(b) the Scheduled Maturity Date.
5. FLOATING AMOUNTS
5.1 FLOATING AMOUNTS PAYABLE BY
PARTY A (SUBJECT TO PARAGRAPH
9 OF THIS CONFIRMATION):
Floating Rate Payer: Party A
Calculation Amount: For each Floating Rate Payer Payment
Date, one half of the aggregate Invested
Amount of the Class A Notes as at the
first day of the Interest Period ending
on but excluding that Floating Rate Payer
Payment Date
Floating Rate Payer Payment
Dates: Each Payment Date during the period
Dates: commencing on and including the
Payment Date falling in September 2001
and ending on and including the
Termination Date, subject to adjustment
in accordance with the Following Business
Day Convention
Floating Rate Option: USD-LIBOR-BBA (except that references to
"London Banking Days" in section
7.1(ag)(ii) and (iv) of the 1998
Supplement to the 1991 ISDA Definitions
will be replaced with references to
"Banking Days" as that expression is
defined in the Note Conditions)
Designated Maturity: Three months except that Linear
Interpolation using three and four months
will apply in respect of the first
Interest Period
Spread: In respect of:
(a) Floating Rate Payer Payment Dates
on or prior to the Payment Date
falling in September 2008 (or if
that day is not a Business Day,
the next following Business Day),
[ ]%; and
(b) Floating Rate Payer Payment Dates
after the Payment Date falling in
September 2008 (or if that day is
not a Business Day, the next
following Business Day), [ ]%.
Floating Rate Day Count
Fraction: Actual/360
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
5.2 FLOATING AMOUNTS PAYABLE BY
PARTY B (SUBJECT TO PARAGRAPH
9 OF THIS CONFIRMATION):
Floating Rate Payer: Party B
Calculation Amount: For each Floating Rate Payer Payment
Date, the A$ Equivalent of one half of
the aggregate Invested Amount of the
Class A Notes as at the first day of the
Interest Period ending on but excluding
that Floating Rate Payer Payment Date.
Floating Rate Payer Payment
Dates: Each Payment Date during the period
Dates: commencing on and including the
Effective Date and ending on and
including the Termination Date, subject
to adjustment in accordance with the
Following Business Day Convention
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: three months except that Linear
Interpolation using three and four months
will apply in respect of the first
Interest Period
Spread: In respect of:
(a) Floating Rate Payer Payment Dates
on or prior to the Payment Date
falling in September 2008 (or if
that day is not a Business Day,
the next following Business Day),
[ ]%; and
(b) Floating Rate Payer Payment Dates
after the Payment Date falling in
September (or if that day is not
a Business Day, the next following
Business Day), [ ]%.
Floating Rate Day Count
Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Interest Period
Compounding: Inapplicable
6 EXCHANGES
6.1 INITIAL EXCHANGE:
Initial Exchange Date: Closing Date
Party A Initial Exchange Amount: The A$ Equivalent of the Party B Initial
Exchange Amount, being A$[ ]
Party B Initial Exchange Amount: One half of the Initial Invested Amount
of the Class A Notes on the Issue Date,
being US$[ ]
Notwithstanding Section 2(a)(ii) of the
Agreement, Party A must pay the Party A
Initial Exchange Amount to Party B by
4.00pm (Melbourne time) on the Initial
Exchange Date and Party B must pay Party
A the Party B Initial Exchange Amount by
4.00pm (New York time) on the Initial
Exchange Date.
6.2 INSTALLMENT EXCHANGE:
Installment Exchange Date: Each Payment Date (other than the Final
Exchange Date)
Party A Installment Exchange
Amount: In respect of an Installment Exchange
Date means the US$ Equivalent of one half
of the A$ Class A Principal in relation
to the Payment Date occurring on that
Installment Exchange Date
Party B Installment Exchange
Amount: In respect of an Installment Exchange
Date means one half of the A$ Class A
Principal in relation to the Payment Date
occurring on that Installment Exchange
Date
6.3 FINAL EXCHANGE:
Final Exchange Date: Termination Date.
Party A Final Exchange Amount: The US$ Equivalent of one half of the A$
Class A Principal in relation to the
Payment Date which is the Final Exchange
Date
Party B Final Exchange Amount: One half of the A$ Class A Principal in
relation to the Payment Date which is the
Final Exchange Date
7. EXCHANGE RATES:
For the purpose of
the definitions of
"A$ EQUIVALENT" and
"US$ EQUIVALENT":
US$ Exchange Rate: [ ]
A$ Exchange Rate: [ ]
8. ACCOUNT DETAILS:
8.1 PAYMENTS TO PARTY A
Account for payments in US$: The account notified in writing by Party
A to Party B in accordance with Part
5(3)(ii) of the Schedule to the Agreement
Account for payments in A$: The account notified in writing by Party
A to Party B in accordance with Part
5(3)(i) of the Schedule to the Agreement
8.2 PAYMENTS TO PARTY B
Account for payments in US$: The account notified in writing by the
Principal Paying Agent to Party A in
accordance with Part 5(2)(ii) of the
Schedule to the Agreement
Account for payments in A$: The account notified in writing by Party
B to Party A in accordance with Part
5(2)(i) of the Schedule to the Agreement
9. NOTIFICATIONS TO PARTY A On or before the Determination Time in
respect of each Payment Date the Trust
Manager must notify Party A and the
Standby Swap Provider in writing of:
(a) the A$ Class A Principal which the
Trust Manager has directed Party B
to pay to Party A on that Payment
Date pursuant to clause 15.14(a) of
the Supplemental Deed;
(b) the A$ Class A Interest Amount in
relation to that Payment Date;
(c) the amounts (if any) allocated to
the Class A
Notes in respect of any Principal
Charge-Off or any Carryover
Principal Charge-Off on the
immediately preceding Determination
Date in accordance with clauses
15.4A and 15.5 of the Supplemental
Deed.
10. OFFICES: The Office of Citibank as Party A for
each Transaction is New York.
The Office of ANZ (on and from the
Novation Date) as Party A is Melbourne.
The Office of Party B for each
Transaction is Sydney.
In this Confirmation:
"DETERMINATION TIME" in relation to a Payment Date means on or about 11.00am
Melbourne time 4 Business Days prior to that Payment Date.
"RELEVANT CALCULATION AMOUNT" means the Calculation Amount referred to in
paragraph 5 of this Confirmation.
Please confirm that the above correctly sets out the terms of our agreement in
respect of each Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
CONFIRMED AS AT THE DATE FIRST WRITTEN CONFIRMED AS AT THE DATE FIRST
ABOVE: WRITTEN ABOVE:
SIGNED for and on behalf of SIGNED for and on behalf of
CITIBANK N.A. ABN 34 072 814 058 AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By: (Attorney)
ABN 11 005 357 522
Name:
Title:
By:
Witnessed By:
Name:
Name:
Title:
Title:
CONFIRMED AS AT THE DATE FIRST CONFIRMED AS AT THE DATE FIRST WRITTEN
WRITTEN ABOVE: ABOVE:
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED ANZ CAPEL COURT LIMITED
(ABN 42 000 001 007) (ABN 30 004 768 807 )
as trustee of the Kingfisher Trust
2001-1G By:
By: (Authorised Officer)
(Authorised Officer) Name:
Name:
Title: Title:
EXECUTION PAGES FOR ISDA MASTER AGREEMENT
SIGNED by )
as attorney for PERPETUAL )
TRUSTEE COMPANY LIMITED dated )
in the presence of: )
)
)
.............................. )
Signature of witness )
)
.............................. ) ..............................
Name of witness (block letters) ) By executing this agreement the
) attorney states that the attorney
) has received no notice of
) revocation of the power of attorney
SIGNED by )
as attorney for ANZ CAPEL )
COURT LIMITED under power of )
attorney dated )
in the presence of: )
)
)
.............................. )
Signature of witness ) ..............................
) By executing this agreement
.............................. ) the attorney states that the
Name of witness (block letters) ) attorney has received no
) notice of revocation of the
power of attorney
SIGNED by )
as attorney for AUSTRALIA AND )
NEW ZEALAND BANKING GROUP )
LIMITED under power of )
attorney dated )
in the presence of: )
)
)
.............................. ) ..............................
Signature of witness ) By executing this agreement
) the attorney states that the
.............................. ) attorney has received no
Name of witness (block letters) ) notice of revocation of the
power of attorney
SIGNED by )
as attorney for CITIBANK N.A. )
under power of attorney dated )
in the presence of: )
)
)
.............................. )
Signature of witness )
) ..............................
.............................. ) By executing this agreement
Name of witness (block letters) ) the attorney states that the
) attorney has received no
) notice of revocation of the
power of attorney
ANNEXURE-NEW YORK LAW CREDIT SUPPORT ANNEX
PARAGRAPH 13 TO NEW YORK LAW CREDIT SUPPORT ANNEX
(13) ELECTIONS AND VARIABLES
(a) Security Interest for "Obligations"
The term "Obligations" as used in this Annex includes the
additional obligations referred to in Paragraph 13(m)(vii)(B).
"BASE CURRENCY" means US$.
"ELIGIBLE CURRENCY" means the Base Currency and any other
currency agreed from time to time between Party A, Party B, the
Standby Swap Provider and each Designated Rating Agency.
(b) Credit Support Obligations
(i) Delivery Amount and Return Amount
"DELIVERY AMOUNT" for a Valuation Date means the amount
of collateral calculated in accordance with Part
5(22)(d)(i) for that Valuation Date.
"RETURN AMOUNT" for a Valuation Date means the amount
of collateral calculated in accordance with Part
5(22)(d)(ii) for that Valuation Date.
(ii) ELIGIBLE COLLATERAL. The following items will qualify
as "Eligible Collateral" for Party A provided that the
items specified in paragraphs (E), (F), (G) and (H)
will only qualify as "Eligible Collateral" of Party A
upon receipt by Party B and the Standby Swap Provider
of an opinion as to the perfection of the Secured
Party's security interest in such items in form and
substance (and issued by legal counsel) satisfactory to
Party B and the Standby Swap Provider:
VALUATION
PERCENTAGE
(A) negotiable debt obligations issued by 98%
the U.S. Treasury Department having a
remaining maturity of not more than
one year
(B) negotiable debt obligations issued by 95% the U.S.
Treasury Department having a remaining maturity of
more than one year but not more than five years
(C) negotiable debt obligations issued by 93% the U.S.
Treasury Department having a remaining maturity of
more than five years but not more than ten years
(D) negotiable debt obligations issued by 90%
the U.S. Treasury Department having a
remaining maturity of more than ten years
(E) Agency Securities having a remaining 97% maturity
of not more than one year
(F) Agency Securities having a remaining 94% maturity
of more than one year but not more than five years
(G) Agency Securities having a remaining 92% maturity
of more than five years but not more than ten
years
(H) Agency Securities having a remaining 89% maturity
of more than ten years.
(I) cash in an Eligible Currency. 100%
(J) other Eligible Credit Support and Valuation
Percentage agreed by the parties and acceptable to
each Designated Rating Agency
Notwithstanding the foregoing to the contrary, the
Valuation Percentage with respect to all Eligible
Credit Support shall be deemed to be 100% with respect
to a Valuation Date which is an Early Termination Date.
"AGENCY SECURITIES" means negotiable debt obligations
which are fully guaranteed as to both principal and
interest by the Federal National Mortgage Association,
the Government National Mortgage Corporation or the
Federal Home Loan Mortgage Corporation and which have
been assigned a short term credit rating of A-1+ by
S&P, but exclude: (i) interest only and principal only
securities; and (ii) collateralized mortgage
obligations, real estate mortgage investment conduits
and similar derivative securities.
(iii) OTHER ELIGIBLE SUPPORT
Not applicable.
(iv) THRESHOLDS
(A) "MINIMUM TRANSFER AMOUNT" means with respect
to both Party A and Party B: US$100,000.
(B) ROUNDING. The Delivery Amount and the Return
Amount will be rounded to the nearest integral
multiple of US$10,000.
(c) VALUATION AND TIMING
(i) "VALUATION AGENT" means Party A.
(ii) "VALUATION DATE" means the last Business Day of each
week and, at the option of either Party A or the Standby
Swap Provider, any Business Day between Valuation Dates.
(iii) "VALUATION TIME" means the close of business on the
Business Day before the Valuation Date; provided that
the calculations of Value and Exposure will be made as
of approximately the same time on the same date.
(iv) "NOTIFICATION TIME" means 11:00 am New York time on the
second Business Day after the Valuation Date.
(d) CONDITIONS PRECEDENT AND SECURED PARTY'S RIGHTS AND REMEDIES
There are no "SPECIFIED CONDITIONS" applicable to Party A. The
following is a Specified Condition with respect to Party B:
"If an Early Termination Date has been designated in respect of
each Transaction provided that if an amount is due by Party A
to Party B in respect of that Early Termination Date pursuant
to Section 6, that amount has been paid in full."
(e) SUBSTITUTION
(i) "SUBSTITUTION DATE" has the meaning specified in
Paragraph 4(d)(ii).
(ii) CONSENT. The Pledgor must obtain the Secured Party's
consent for any substitution pursuant to Paragraph 4(d).
However such consent is not to be unreasonably withheld
and the parties agree that not wanting to accept a
particular type of Substitute Credit Support is not in
itself a reasonable basis for withholding consent if the
Substitute Credit Support is Eligible Collateral. The
consent may be provided in a manner described in Section
12 or otherwise, including orally.
(f) DISPUTE RESOLUTION
(i) "RESOLUTION TIME"" means 11:00 am New York time.
(ii) "VALUE". For the purpose of Paragraphs 5(i)(C) and
5(ii), the Value of Posted Credit Support will be
calculated as follows; Disputes over value will be
resolved by the Valuation Agent seeking three bid quotes
as of the relevent Valuation Date or date of Transfer
from parties that regularly act as dealers in the
securities or other property in question. The Value will
be the Base Currency Equivalent of the arithmetic mean
of the quotes received by the Valuation Agent mulitplied
by the applicable Valuation Percentage.
(iii) "ALTERNATIVE". The provisions of Paragraph 5 will apply.
(g) HOLDING AND USING POSTED COLLATERAL
(i) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS.
Party A: Not Applicable.
Party B is not entitled to hold Posted Collateral. It
must appoint a Custodian to hold Posted Collateral on
its behalf pursuant to Paragraph 6(b). Party B may only
appoint a Custodian to hold Posted Collateral on its
behalf if the following conditions are satisfied:
(A) Party B is not a Defaulting Party;
(B) Party B's Custodian will always be the
Principal Paying Agent, unless that party is
Party A; and
(C) if the Principal Paying Agent is Party A, then
Party B must appoint a Custodian which is a
Bank (as defined in the Federal Deposit
Insurance Act, as amended) outside Australia,
whose rating (with respect to its long term
unsecured, unsubordinated indebtedness) is at
all times at least Aa2 by ▇▇▇▇▇'▇ and its short
term debt rating is A-1+/F-1+ (S&P/Fitch), and
Party B must notify Party A in writing of this
appointment and of the relevant account for
Paragraph 13(l).
(D) Posted Collateral may only be held in one or
more accounts in the name of Party B in the
United States and any account established by
Party B's Custodian to hold Posted Collateral
shall be established and maintained for the
sole purpose of receiving deliveries of and
holding
Posted Collateral.
(ii) USE OF POSTED COLLATERAL. The provisions of Paragraph
6(c) will not apply to Party B and its Custodian. Party
B's Custodian will permit Party B to secure Party B's
obligations under the Notes by granting to the Security
Trustee the charge under the Deed of Charge over Party
B's rights in relation to the Posted Collateral, but
subject to Paragraph 13(m)(vi) of this Annex.
(h) DISTRIBUTIONS AND INTEREST AMOUNT
(i) INTEREST RATE. The "Interest Rate", in respect of Posted
Collateral which is denominated in US$, for any day
means the Federal Funds Overnight Rate. For the purposes
hereof, "Federal Funds Overnight Rate" means, for any
day, an interest rate per annum equal to the rate
published as the Federal Funds Effective Rate that
appears on Telerate Page 118 for such day. The "Interest
Rate" in respect of Posted Collateral denominated in any
other Eligible Currency means the rate as agreed between
the parties.
(ii) TRANSFER OF INTEREST AMOUNT. The Transfer of Interest
Amount will be made monthly on the second Business Day
of each calendar month.
(iii) ALTERNATIVE TO INTEREST AMOUNT. The provisions of
Paragraph 6(d)(ii) will apply.
(i) ADDITIONAL REPRESENTATION(S)
None.
(j) OTHER ELIGIBLE SUPPORT AND OTHER POSTED SUPPORT
"VALUE" and "TRANSFER" with respect to Other Eligible Support
and Other Posted Support means: not applicable.
(k) DEMANDS AND NOTICES
All demands, specifications and notices under this Annex will
be made pursuant to the Section 12 of this Agreement;
PROVIDED, that any such demand, specification or notice may be
made by telephone ("TELEPHONE NOTICE") between duly authorised
employees of each party if such Telephone Notice is confirmed
by a subsequent written instruction (which may be delivered
via facsimile) by the close of business of the same day that
such Telephone Notice is given.
(l) ADDRESSES FOR TRANSFERS
Party A: Party A to specify account for returns of collateral.
Party B: Party B must notify Party A of its Custodian's
account.
(m) OTHER PROVISIONS
(i) Paragraph 4(b) of the Annex is replaced by the
following:
"(b) TRANSFER TIMING. Subject to Paragraph 4(a) and
5 and unless otherwise specified, if a demand
for the Transfer of Eligible Credit Support or
Posted Credit Support is made by the
Notification Time, then the relevant Transfer
will be made within three Business Days of
receipt of the demand; if a demand is made
after the Notification Time, then the relevant
Transfer will be made within four Business Days
of receipt of the demand."
(ii) EVENT OF DEFAULT
JOINT RATINGS BELOW SPECIFIED LEVELS
Paragraph 7(i) of the Annex is amended, on line 3, by
replacing "two Business Days" with "three Business
Days".
(iii) PARTY B'S EXPENSES
Subject to Section 15 of the Agreement, Party B agrees
to pay Party A's costs and expenses in relation to or
caused by any breach by Party B of its obligations under
this Annex. Party A acknowledges and agrees that its
obligations under this Annex will not be affected by a
failure by Party B to comply with its obligations under
this Paragraph (m)(iii).
(iv) GOVERNING LAW NOTWITHSTANDING
Notwithstanding that the Agreement is expressed to be
governed by the laws of New South Wales, this Annex (but
not any other provisions of the Agreement) shall be
governed by and construed in accordance with the laws of
the State of New York without giving effect to choice of
law doctrine and parties hereto agree that proceedings
relating to any dispute arising out of or in connection
with this Annex shall be subject to the non-exclusive
jurisdiction of the federal or state courts of competent
jurisdiction in the Borough of Manhattan in New York
City, State of New York.
(v) NO TRIAL BY JURY
Each party waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury
in respect of any suit, action or proceeding relating to
this Annex.
(vi) NO POOLING OF COLLATERAL WITH OTHER DEED OF CHARGE
SECURITY
Notwithstanding any provision in the Transaction
Documents , but without prejudice to Party B's rights
under Paragraph 8(a) of this Annex, no party shall be
entitled to deal with the Posted Collateral in any
manner inconsistent with the rights of the Pledgor under
Paragraphs 3(d), 4(b) or 8(b)(iii) of this Annex, and
each party covenants to the other that it shall not
permit any other person to gain any rights in relation
to the Posted Collateral that are inconsistent with the
rights of the Pledgor.
(vii) RIGHTS IN RELATION TO SWAP PROVIDER'S POSTED COLLATERAL
FOLLOWING NOVATION
(A) The Secured Party will hold its security interest
in, lien on and right of Set- Off against all
Posted Collateral Transferred or received by the
Secured Party from Citibank as Party A (or from
the Standby Swap Provider on behalf of Citibank as
Party A but not from the Standby Swap Provider in
its capacity as Party A) hereunder for the benefit
of:
(1) the Trust as security for the Obligations
of Citibank as Party A to the Secured Party
as trustee of the Trust (other than
pursuant to Paragraph 13(m)(vii)(B)); and
(2) the Standby Swap Provider as security for
the
Obligations of Citibank as Party A to the
Standby Swap Provider pursuant to Parts
5(24)(d) and (e) of the Schedule to this
Agreement, as that term is defined in
Section 16(f)(iii)(A),
in accordance with the provisions of this
Paragraph 13(m)(vii), and Paragraph 2 is varied
accordingly.
(B) Citibank as Party A covenants in favour of the
Secured Party that it will duly and punctually pay
to the Secured Party all its Obligations to the
Standby Swap Provider pursuant to Parts 5(24)(d)
and (e) of the Schedule to this Agreement, as that
term is defined in Section 16(f)(iii)(A) as and
when the same fall due for payment.
Notwithstanding the foregoing, every payment by
Citibank as Party A, or the Secured Party in
accordance with Paragraph 13(m)(vii)(C)(2)(b), to
the Standby Swap Provider will operate as a
payment by Citibank as Party A to the Secured
Party in satisfaction of Citibank's obligations as
Party A pursuant to this Paragraph 13(m)(vii)(B).
The Secured Party will hold the benefit of its
rights under this Paragraph 13(m)(vii)(B) for the
Standby Swap Provider in accordance with the
provisions of this Paragraph 13(m)(vii).
(C) The Secured Party must deal with all Posted
Collateral Transferred or received by the Secured
Party from Citibank as Party A (or from the
Standby Swap Provider on behalf of Citibank as
Party A but not from the Standby Swap Provider in
its capacity as Party A) hereunder:
(1) prior to the Novation Date, in accordance
with the provisions of this Agreement other
than this Paragraph 13(m)(vii);
(2) on or after the Novation Date:
(a) until the date upon which the
Standby Swap Provider has initially
fulfilled its obligations as Party
A pursuant to Part 5(22)(a) of the
Schedule to this Agreement, such
Posted Collateral must be held by
the Secured Party and not
Transferred or otherwise applied;
(b) on or after the date upon which the
Standby Swap Provider has initially
fulfilled its obligations as Party
A pursuant to Part 5(22)(a) of the
Schedule to this Agreement and
until Citibank as Party A has paid
in full all of its Obligations to
the Standby Swap Provider pursuant
to Parts 5(24)(d) and (e) of the
Schedule to this Agreement, as that
term is
defined in Section 16(f)(iii)(A),
the Secured Party must, upon the
instructions of the Standby Swap
Provider, exercise the rights and
remedies pursuant to Paragraph 8(a)
in respect of such Posted
Collateral, and Party A agrees that
the Secured Party may exercise such
rights and remedies under Paragraph
8(a) to the same extent and with
the same effect as if an Event of
Default or Specified Condition had
occurred with respect to Party A,
and apply the proceeds of the
exercise of such rights and
remedies in satisfaction of
Citibank's Obligations as Party A
to the Standby Swap Provider
pursuant to Parts 5(24)(d) and (e)
of the Schedule to this Agreement,
as that term is defined in Section
16(f)(iii)(A), as and when these
are due and payable (and to the
Secured Party pursuant to Paragraph
13(m)(vii)(B)) until all such
Obligations have been paid in full;
and
(c) on or after the date upon which the
Standby Swap Provider has initially
fulfilled its obligations as Party
A pursuant to Part 5(22)(a) of the
Schedule to this Agreement and
Citibank as Party A has paid in
full all its Obligations to the
Standby Swap Provider pursuant to
Parts 5(24)(d) and (e) of the
Schedule to this Agreement, as that
term is defined in Section
16(f)(iii)(A), and no amounts are
or thereafter may become payable in
respect to such Obligations, the
Secured Party must Transfer to
Citibank as Party A all such Posted
Collateral and the Interest Amount
in relation to such Posted
Collateral, if any.
(D) The Standby Swap Provider indemnifies the Secured
Party from and against any cost or liability
incurred by the Secured Party in complying with
the instructions of the Standby Swap Provider
pursuant to Paragraph 13(m)(vii)(C)(2)(b). The
Standby Swap Provider acknowledges and agrees that
the Secured Party may not, and is not required, to
take any action to exercise its rights and
remedies in relation to the Posted Collateral in
respect of the Obligations of Citibank as Party A
to the Standby Swap Provider except upon the
directions of the
Standby Swap Provider and in accordance with this
Paragraph 13(m)(vii).
(E) Following the Novation Date, the Secured Party
must ensure that any Posted Collateral Transferred
or received by the Secured Party from Citibank as
Party A is held by the Custodian separately from,
and is not co-mingled with, Posted Collateral
Transferred or received by the Secured Party from
the Standby Swap Provider as Party A.
(F) This Paragraph 13(m)(vii) applies notwithstanding
any other provision of this Agreement.
(viii) PLEDGOR AND SECURED PARTY
In this Annex:
(a) "PLEDGOR" means only Party A; and
(b) "SECURED PARTY" means only Party B.
(ix) NON-AUSTRALIAN ASSETS
ANZ must only Transfer Posted Collateral to the Secured
Party from its assets held outside Australia.
(x) DISPUTE RESOLUTION
Paragraph 5(i) is amended by:
(A) replacing the word "Exposure" with the words "the
Delivery Amount or the Return Amount, as the case
may be" in the first paragraph of Paragraph 5(i);
(B) adding the word "and" at the end of Paragraph
5(i)(A) and deleting Paragraph 5(i)(B).
(xi) SPECIFIED CONDITION
(A) In Paragraph 4(a)(ii) the words "or Specified
Condition" are deleted.
(B) In Paragraph 8(b) the words "or Specified
Condition" are deleted and replaced with the
following "with respect to the Secured Party or a
Specified Condition has occurred".
(xii) RETURN AMOUNTS
If under this Agreement, as that term is defined in
Section 16(f)(iii)(A), a Novation Date has occurred,
each Transfer obligation of the Secured Party under
Paragraphs 3, 4(d)(ii), 5 and 6(d) is subject to the
condition precedent that the Standby Swap Provider, in
its discretion, has consented to the Transfer unless
Citibank as Party A has paid in full all its Obligations
to the Standby Swap Provider pursuant to Parts 5(24)(d)
and (e) of the Schedule to this Agreement, as that term
is defined in Section 16(f)(iii)(A), and no amounts are
or thereafter may become payable with respect to such
Obligations, and no amounts are or thereafter may become
payable with respect to such obligations.