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Medallion Trust Series 2004-1G
ISDA Master Agreement
(Interest Rate Swap Agreement)
Commonwealth Bank of Australia
ABN 48 123 123 124
Perpetual Trustee Company Limited
ABN 42 000 001 007
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
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Our reference 801/784/80003979
Liability limited by the Solicitors Scheme, approved under the Professional
Standards Act 1994 (NSW) and by our Terms of Engagement
Schedule
to the
MASTER AGREEMENT
dated as of 10 March 2004 between
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
("Manager")
and
Commonwealth Bank of Australia
ABN 48 123 123 124
("Party A")
and
Perpetual Trustee Company Limited
ABN 42 000 001 007
as trustee of the Medallion Trust Series 2004-1G
("Party B")
Part 1. Termination provisions
(a) "Specified Entity" in relation to
(i) Party A, is not applicable; and
(ii) Party B, is not applicable.
(b) "Specified Transaction" means - not applicable.
(c) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii) Section 5(b)(iv)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(ii)
Section 5(a)(iv) Section 5(a)(vii) Section 5(b)(iii)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii) Section 5(b)(iv)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(ii)
Section 5(a)(iv) Section 5(a)(vii) Section 5(b)(iii)
(d) The "Automatic Early Termination" provisions of Section 6(a) will not
apply.
(e) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) A. in respect of the Basis Swap, Loss will apply; and
B. in respect of the Fixed Rate Swap and the Interest Rate Basis
Cap, Market Quotation will apply;
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(ii) A. in respect of the Basis Swap, neither the First Method nor the
Second Method will apply; and
B. in respect of the Fixed Rate Swap and the Interest Rate Basis
Cap, the Second Method will apply; and
(iii) the definition of "Loss" is amended by adding the following sentence
at the end of that definition:
"However in relation to a Terminated Transaction that is a Basis Swap,
each party's Loss is deemed to be zero.".
(f) "Termination Currency" means Australian dollars.
(g) Additional Termination Event. The following is an Additional Termination
Event in relation to which Party B is the only Affected Party and the Basis
Swap is the only Affected Transaction:
If, on any day on which the weighted average Mortgage Rate applicable to
the Mortgage Loans forming part of the Assets of the Series Trust which are
charged interest at a variable rate is equal to or greater than the then
Threshold Rate, Party A notifies Party B and each Rating Agency of its
intention to terminate the Basis Swap.
Part 2. Tax Representations
(a) Payer Representations. For the purpose of Section 3(e) of this Agreement,
Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to any other party under this Agreement. In
making this representation, it may rely on:
(i) the accuracy of any representations made by the other party pursuant
to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of any
document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice to
its legal or commercial position.
(b) Payee Representations. For the purpose of Section 3(f) of this Agreement,
Party A will and Party B will make the following representation:
It is an Australian resident and does not derive the payments under this
Agreement in part or whole in carrying on business in a country outside
Australia at or through a permanent establishment of itself in that
country.
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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 Date by which to be
deliver document Form/Document/Certificate delivered
------------------- --------------------------------- ----------------------
Party A and Party B Any document or certificate On the earlier of (a)
reasonably required or reasonably learning that such
requested by a party in document or
connection with its obligations certificate is
to make a payment under this required and (b) as
Agreement which would enable that soon as reasonably
party to make the payment free practicable following
from any deduction or withholding a request by a party.
for or on account of Tax or which
would reduce the rate at which
deduction or withholding for or
on account of Tax is applied to
that payment.
(b) Other documents to be delivered are:
Party required to Covered by Section
deliver document Form/Document/Certificate Date by which to be delivered 3(d) Representation
----------------- ------------------------- ----------------------------- -------------------
Party A A certificate from Party On execution and delivery Yes
A (or, if available, of any Confirmation unless
Party A's current that certificate has
authorised signature already been supplied for
book) specifying the that purpose and remains
names, title and specimen true and in effect and when
signatures of the the list is updated or upon
Authorised Officers of request.
Party A.
Party A, Party B A legal opinion as to the On or at any time prior to No
and the Manager validity and the Closing Date.
enforceability of that
party's obligations under
this Agreement in form
and substance (and issued
by legal counsel)
reasonably acceptable to
the other party.
The Manager A copy (certified by the Not less than 5 Business Yes
Manager) of the Credit Days (or such lesser period
Support Document and as Party A agrees to)
(without limiting any before the Trade Date of
obligation Party B may the first occurring
have under the terms of Transaction and in the case
the Credit Support of any amending documents
Document to notify Party entered into subsequent to
A of amendments) a copy that date, promptly after
(certified by the each amending document (if
Manager) of any document any) has been entered into.
that amends in any way
the terms of the Credit
Support Document.
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For the purposes of this paragraph (b) a copy of a document is taken to be
certified by the Manager if an Authorised Officer of the Manager or legal
counsel for the Manager has certified it to be a true and complete copy of the
document of which it purports to be a copy.
Part 4. Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address: Commonwealth Bank of Australia
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Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
Address for notices or communications to Party B:
Address: Perpetual Trustee Company Limited
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Attention: Manager, Securitisation Services
Facsimile No.: 612 9221 7870
Additionally, a copy of all notices as well as any changes to a party's
address, telephone number or facsimile number should be sent to:
Address: Securitisation Advisory Services Pty. Limited
Level ▇
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Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent - Not Applicable
Party B appoints as its Process Agent - Not Applicable
(c) Offices. The provisions of Section 10(a) will not apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement.
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
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(e) Calculation Agent. The Calculation Agent is the Manager.
(f) Credit Support Document. Details of any Credit Support Document:
(i) in relation to Party A: Nil;
(ii) in relation to Party B: the Security Trust Deed.
(g) Credit Support Provider.
(i) In relation to Party A: Not Applicable.
(ii) In relation to Party B: Not Applicable.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws in force in the State of New South Wales and
Section 13(b)(i) is deleted and replaced by the following:
"(i) submits to the non-exclusive jurisdiction of the courts of the State
of New South Wales and courts of appeal from them; and".
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement
will apply in respect of the following groups of Transactions:
Group 1 - all Transactions being swaps
Group 2 - all Transactions being interest rate options
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement. For the purposes of Section 3(c), Party A and Party B are deemed
not to have any Affiliates.
Part 5. Other Provisions.
(1) Payments: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding payment
or payments payable by the other party.".
(b) In Section 2(a)(ii) the first sentence is deleted and replaced with
the following sentence:
"Unless specified otherwise in this Agreement, payments under this
Agreement will be made by 10.00am on the due date for value on that
date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds, free of any set-off, counterclaim, deduction or
withholding (except as expressly provided in this Agreement) and in
the manner customary for payment in the required currency.".
(c) Insert a new paragraph (iv) in Section 2(a) immediately after Section
2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply
to a payment due to be made to a party if it has satisfied all
its payment obligations under Section 2(a)(i) of this Agreement
and has no future payment obligations, whether absolute or
contingent under Section 2(a)(i).".
5
(d) Add the following new sentence to Section 2(b):
"Each new account so designated will be in the same tax jurisdiction
as the original account.".
(e) In Section 2(c) insert the following words at the end of the first
paragraph:
"Subject to Section 2(f), the aggregate amount that would otherwise be
payable will not take into account amounts due on that Payment Date
pursuant to Sections 2(g), 17, 18 or 19.".
(f) Delete Section 2(d)(i)(4) in its entirety.
(g) In Section 2(d)(ii)(1) delete the following where they appear:
"in respect of which X would not be required to pay an additional
amount to Y under Section 2(d)(i)(4)".
(h) Insert new Sections 2(f) and 2(g) as follows:
"(f) If on a Payment Date an amount would otherwise be payable by
Party A pursuant to Section 2(c):
(i) in respect of a Fixed Rate Swap, then such amount will,
unless otherwise agreed between Party A and Party B, be
satisfied in part, or whole, from the then Fixed Rate
Prepayment Balance; and
(ii) in respect of the Basis Swap, then such amount will, unless
otherwise agreed between Party A and Party B, be satisfied
in part, or whole, from the then Basis Prepayment Balance.
(g) On each Payment Date that a Fixed Rate Swap is existing:
(i) Party B will pay Party A any Net Break Payment determined by
the Manager on the preceding Determination Date in
accordance with the Series Supplement; and
(ii) Party A will pay Party B any Net Break Receipt determined by
the Manager on the preceding Determination Date in
accordance with the Series Supplement."
(2) Representations: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the words
"creditors' rights generally" the following:
"(including in the case of a party being an ADI (as that term is
defined in the Banking Act, 1959 (Cth)), Section 86 of the Reserve
Bank Act, 1969 (Cth) and section 13A(3) of the Banking Act, 1959
(Cth))."
(b) Relationship Between Parties. Each party will be deemed to represent
to the other parties on the date on which it enters into a Transaction
that (absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary for that Transaction):
(i) Non-Reliance. It is acting for its own account (in the case of
Party B, as trustee of the Series Trust), and it has made its own
independent
6
decisions to enter into that Transaction and as to whether that
Transaction is appropriate or proper for it based upon its own
judgment (and in the case of Party B, also upon the judgment of
the Manager) and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or
oral) of any other party as investment advice or as a
recommendation to enter into that Transaction; it being
understood that information and explanations related to the terms
and conditions of a Transaction will not be considered investment
advice or a recommendation to enter into that Transaction. No
communication (written or oral) received from any other party
will be deemed to be an assurance or guarantee as to the expected
results of that Transaction.
(ii) Evaluation and Understanding. It is capable of evaluating and
understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable of
assuming, and assumes, the risks of that Transaction.
(iii) Status of Parties. No other party is acting as a fiduciary or an
adviser to it in respect of that Transaction.
(c) After "Section 3(f)" in line 2 insert ",3(g), 3(h) and 3(i)".
(d) Insert the following new paragraphs (g), (h) and (i) in Section 3
immediately after Section 3(f):
"(g) Series Trust: By Party B, in respect of Party B only:
(i) Trust Validly Created. The Series Trust has been validly
created and is in existence at the date of this Agreement.
(ii) Sole Trustee. It has been validly appointed as trustee of
the Series Trust and is presently the sole trustee of the
Series Trust.
(iii) No Proceedings to Remove. No notice has been given to it
and to its knowledge no resolution has been passed, or
direction or notice has been given, removing it as trustee
of the Series Trust.
(iv) Power. It has power under the Master Trust Deed to:
(A) enter into this Agreement and the Credit Support
Documents in its capacity as trustee of the Series
Trust; and
(B) mortgage or charge the Assets of the Series Trust in
the manner provided in the Credit Support Document in
relation to Party B.
(v) Good Title. It is the lawful owner of the Assets of the
Series Trust and, subject only to the Credit Support
Document in relation to Party B and any Security Interest
permitted under the Credit Support Document in relation to
Party B, those Assets are free of all other Security
Interests (except for Party B's right of indemnity out of
the Assets of the Series Trust).
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(h) Non Assignment. It has not assigned (whether absolutely, in
equity, by way of security or otherwise), declared any trust over
or given any charge over any of its rights under this Agreement
or any Transaction except, in the case of Party B, for the
Security Interests created under any Credit Support Document
specified in relation to Party B.
(i) Contracting as principal. Each existing Transaction has been
entered into by that party as principal and not otherwise.".
(3) Failure to Pay or Deliver: In Section 5(a)(i) delete the words "third
Local" where they appear in line 3 and replace them with the word "tenth".
(4) Termination: In Section 6:
(i) Add the following sentence at the end of the first paragraph of
Section 6(b)(ii):
"However, if Party B is the Affected Party, then Party B will only be
obliged to make such efforts to effect a transfer in accordance with
this Section 6(b)(ii) as it is able to make by application of funds
held by it as trustee of the Series Trust being funds available for
such application in accordance with the provisions of the Master Trust
Deed and the Series Supplement.".
(ii) Add the following sentence at the end of the second paragraph of
Section 6(b)(ii):
"However, if Party A is that other party it must, if so requested by
the Manager with the prior consent of the Rating Agencies, use
reasonable efforts to make such a transfer to an Affiliate (as that
expression is defined in Section 14 disregarding any modification made
by this Agreement).".
(iii) Add the following sentence at the end of the last paragraph of
Section 6(b)(ii):
"However, consent may be withheld if the other party considers that
its credit exposure to the transferee would be adversely affected by
the transfer.".
(iv) Section 6(e) is amended by deleting the last sentence of the first
paragraph.
(5) Facsimile Transmission: In Section 12:
(a) delete the following words where they appear on lines 2 and 3 of
Section 12(a):
"(except that a notice or other communication under Section 5 or
Section 6 may not be given by facsimile transmission or electronic
messaging system)";
(b) replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission, on the date a transmission
report is produced by the machine from which the facsimile was
sent which indicates that the facsimile was sent in its entirety
to the facsimile number of the recipient notified for the purpose
of this Section unless the recipient notifies the sender within
one Local Business Day of the facsimile being sent that the
facsimile was not received in its entirety in legible form;"; and
(c) insert a new paragraph (vi) in Section 12(a) immediately after Section
12(a)(v) as follows:
"(vi) if sent by ordinary mail, on the third (seventh, if posted to or
from a place outside Australia) day after posting.".
8
(6) Definitions: In this Agreement, unless the contrary intention appears:
(a) Master Trust Deed and Series Supplement: Subject to Part 5(6)(h) of
this Schedule, unless otherwise defined in this Agreement, words and
phrases defined in the Master Trust Deed or the Series Supplement have
the same meaning in this Agreement. Where there is any inconsistency
in a definition between this Agreement (on the one hand) and the
Master Trust Deed or the Series Supplement (on the other hand), this
Agreement prevails. Subject to Part 5(6)(h) of this Schedule, where
there is any inconsistency in a definition between the Master Trust
Deed and the Series Supplement, the Series Supplement prevails over
the Master Trust Deed in respect of the Series Trust. Where words or
phrases used but not defined in this Agreement are defined in the
Master Trust Deed in relation to a Series Trust (as defined in the
Master Trust Deed) and/or an Other Trust such words or phrases are to
be construed in this Agreement, where necessary, as being used only in
relation to the Series Trust (as defined in the Series Supplement)
and/or the CBA Trust, as the context requires.
(b) Trustee Capacity:
(i) a reference to Party B is a reference to Party B in its capacity
as trustee of the Series Trust only, and in no other capacity;
and
(ii) a reference to the undertaking, assets, business or money of
Party B is a reference to the undertaking, assets, business or
money of Party B in the capacity referred to in paragraph (i)
only.
(c) Definitions: in Section 14:
(i) replace the definitions of "Affected Transactions" and "Local
Business Day" with the following:
""Affected Transactions" means, with respect to a Termination
Event:
(a) where an Early Termination Date is designated pursuant to
Part 1(g) of the Schedule, the Basis Swap; and
(b) where an Early Termination Date is designated following the
occurrence of any other Termination Event, all
Transactions."; and
""Local Business Day" has the same meaning as "Business Day".";
and
(ii) insert the following new definitions:
""Amounts Outstanding" in relation to a Mortgage Loan means, at
any given time, the amount recorded at that time as the balance
of the Mortgage Loan in the Mortgage Loan System which balance
includes amounts which have been charged to the Mortgage Loan but
excludes amounts which have been or are, accrued against the
Mortgage Loan.
"Basis Prepayment Balance" means the amount then standing to the
credit of the Collections Account in respect of prepayments by
Party A pursuant to Sections 18(c) or (d) and which has not been
utilised pursuant to Section 2(f)(ii).
"Basis Swap Administered Rate" means, in relation to a
Distribution
9
Date, the amount determined in accordance with the following
calculation and expressed as a percentage:
BSA
(SII * ------------------- ) + VIE
FRSA + OFRSA + BSA 365
BSAR = ----------------------------------- * ---
BSA n
where:
BSAR = the Basis Swap Administered Rate for that Distribution
Date;
SII = the Short-Term Investment Income in relation to that
Distribution Date;
FRSA = the Fixed Rate Swap Amount for the Calculation Period
ending immediately before that Distribution Date;
OFRSA= the Other Fixed Rate Swap Amount for the Calculation
Period ending immediately before that Distribution
Date;
BSA = the Basis Swap Amount for the Calculation Period ending
immediately before that Distribution Date;
VIE = the Variable Interest Earned in relation to that
Distribution Date; and
n = the number of days in the Swap Collection Period
immediately preceding that Distribution Date.
"Basis Swap" means the Transaction entered into between Party A,
Party B and the Manager on the terms specified in the form of the
Confirmation set out in Annexure 1 (or as otherwise agreed
between Party A, Party B and the Manager).
"Basis Swap Amount" in relation to a Calculation Period means the
aggregate Amounts Outstanding in relation to all Mortgage Loans
being charged a variable rate as at the opening of business on
the Determination Date falling within the preceding Calculation
Period.
"Conversion" means the conversion of a Mortgage Loan forming part
of the Assets of the Series Trust which is being charged interest
at a variable rate to a Mortgage Loan which is being charged
interest at a fixed rate.
"Eligible Account" means an account in the name of the Trustee as
trustee of the Series Trust held with a financial institution
with short term credit ratings of P-1 by ▇▇▇▇▇'▇ and A-1+ by
Standard & Poor's and includes the Collections Account to the
extent that the holder of the Collections Account is rated in
this manner.
"End Date" means the date on which a Mortgage Loan is to cease
being charged interest at a fixed rate.
"Fixed Interest Earned" in relation to a Distribution Date, and
the Swap Collection Period ending immediately prior to that
Distribution Date, means the aggregate of:
(a) all debit entries made during that Swap Collection Period to
10
the accounts established in the Servicer's records for the
Mortgage Loans forming part of the Assets of the Series
Trust representing interest charged at a fixed rate (plus
any interest off-set benefits in respect of Mortgage
Interest Saver Accounts which represents amounts which, if
not for the terms of the Mortgage Interest Saver Accounts,
would have been so debited during that Swap Collection
Period to those accounts to the extent paid by CBA pursuant
to clause 15.4 of the Series Supplement and deposited to the
Collections Account prior to that Distribution Date); and
(b) the aggregate, as at the close of business on the last day
of that Swap Collection Period, of all accrued but not
charged fixed rate interest on the Mortgage Loans forming
part of the Assets of the Series Trust less the aggregate,
as at the opening of business on the first day of that Swap
Collection Period, of all accrued but not charged fixed rate
interest on the Mortgage Loans forming part of the Assets of
the Series Trust.
"Fixed Swap Administered Rate" means in relation to a
Distribution Date, the amount determined in accordance with the
following calculation and expressed as a percentage:
FRSA + OFRSA
(SII * ------------------) + FIE
FRSA + OFRSA + BSA 365
FSAR = -------------------------------- * ---
FRSA n
where:
FSAR = the Fixed Swap Administered Rate for that Distribution
Date;
SII = the Short Term Investment Income in relation to that
Distribution Date;
FRSA = the Fixed Rate Swap Amount for the Calculation Period
ending immediately before that Distribution Date; and
OFRSA = the Other Fixed Rate Swap Amount for the Calculation
Period ending immediately before that Distribution
Date;
BSA = the Basis Swap Amount for the Calculation Period ending
immediately before that Distribution Date;
FIE = the Fixed Interest Earned in relation to that
Distribution Date; and
n = the number of days in the Swap Collection Period
immediately preceding that Distribution Date.
"Fixed Rate Prepayment Balance" means the amount then standing to
the credit of the Eligible Account in respect of prepayments by
Party A pursuant to Sections 17(a)(iii), (b)(i), (e)(i) or (g)
and which has not been utilised pursuant to Section 2(f)(i) or
repaid to Party A pursuant to Sections 17(e)(ii) or (h).
"Fixed Rate Swap Amount" in relation to a Calculation Period
means:
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(a) the aggregate Amounts Outstanding in relation to all
Mortgage Loans (excluding Mortgage Loans being charged a
variable rate), as certified by the Manager to the Trustee,
as at the opening of business on the Determination Date
falling within the preceding Calculation Period;
(b) less the Other Fixed Rate Swap Amount in relation to that
Calculation Period.
"Fixed Rate Swap" means the Transaction entered into between
Party A, Party B and the Manager on the terms specified in the
form of the Confirmation set out in Annexure 2 (or as otherwise
agreed between Party A, Party B and the Manager) and each
Transaction entered into pursuant to Section 16.
"Interest Rate Basis Cap" means the interest rate cap, if any,
entered into between Party A, Party B and the Manager on or prior
to the Closing Date.
"Master Trust Deed" means the Master Trust Deed dated 8 October
1997 between Party B (as Trustee) and the Manager, as amended
from time to time.
"Other Fixed Rate Swap Amount" in relation to a Calculation
Period means the aggregate Amounts Outstanding as at the opening
of business on the Determination Date falling within the
preceding Calculation Period in respect of each Mortgage Loan
where a further Fixed Rate Swap has been entered into, and is
then current, to hedge the interest rate risk in respect of the
Mortgage Loan pursuant to Section 16(b).
"Outstanding Interest Rate Swap Prepayment Amount" means the sum
of the then Basis Prepayment Balance and the then Fixed Rate
Prepayment Balance.
"Prescribed Ratings" means:
(a) in respect of the Fixed Rate Swaps, either a long term
rating of A2 or a short term rating of P-1 or higher by
▇▇▇▇▇'▇ and either a long term rating of A or a short term
rating of A-1 by S & P; and
(b) in respect of the Basis Swap, a short term rating of P-1 by
▇▇▇▇▇'▇ and either a long term rating of A or a short term
rating of A-1 by S&P.
"Series Supplement" means the Series Supplement dated on or about
the date of this Agreement between Party A, Homepath Pty Limited
ABN 35 081 986 530, Party B and the Manager.
"Series Trust" means the Medallion Trust Series 2004-1G
constituted by the Master Trust Deed and the Series Supplement.
"Short-Term Investment Income" in relation to a Distribution Date
means interest and other income received by the Trustee during
the Swap Collection Period immediately preceding that
Distribution Date in respect of:
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(a) the moneys standing to the credit of the Collections Account
(other than interest earned on the Collections Account
during the Collections Period in respect of the Cash Advance
Deposit or the Interest Rate Swap Provider Deposit as
calculated, respectively, in accordance with clauses 8.6 and
8.8 of the Series Supplement);
(b) amounts representing interest paid by the Servicer pursuant
to clause 22.5 of the Series Supplement; and
(c) Authorised Short-Term Investments held by the Series Trust
(whether or not reinvested).
"Swap Collection Period" means:
(a) with respect to the first Determination Date, the period
commencing on (and including) the Closing Date and ending on
(but excluding) that Determination Date; and
(b) with respect to each subsequent Determination Date, the
period commencing on (and including) the previous
Determination Date and ending on (but excluding) that
Determination Date.
"Variable Interest Earned" in relation to a Distribution Date,
and the Swap Collection Period ending immediately prior to that
Distribution Date, means the aggregate of:
(a) all debit entries made during that Swap Collection Period to
the accounts established in the Servicer's records for the
Mortgage Loans forming part of the Assets of the Series
Trust representing interest charged at a variable rate (plus
any interest off-set benefits in respect of Mortgage
Interest Saver Accounts which represents amounts which, if
not for the terms of the Mortgage Interest Saver Accounts,
would have been so debited during that Swap Collection
Period to those accounts to the extent paid by CBA pursuant
to clause 15.4 of the Series Supplement and deposited to the
Collections Account prior to that Distribution Date); and
(b) the aggregate, as at the close of business on the last day
of that Swap Collection Period, of all accrued but not
charged variable rate interest on the Mortgage Loans forming
part of the Assets of the Series Trust less the aggregate,
as at the opening of business on the first day of that Swap
Collection Period, of all accrued but not charged variable
rate interest on the Mortgage Loans forming part of the
Assets of the Series Trust.
"Weighted Margin" in relation to a Distribution Date means the
amount, expressed as a percentage, determined by the following
calculation:
CA1 CA2 CA3 CB ▇▇ ▇▇
WM = (--- * CA1M) + (--- * CA2M) + (--- * CA3M) + (---CBM) + (--- * RBM) + (--- * SRM)
TSA TSA TSA TSA TSA TSA
13
where:
WM = the Weighted Margin;
CA1 = the A$ Equivalent of the aggregate Stated Amounts of the
Class A-1 Notes on the Determination Date immediately
preceding that Distribution Date;
CA1M = the Spread specified in paragraph 5.2 of the confirmations
for the Class A-1 Currency Swap on that Distribution Date;
CA2 = the aggregate of the Stated Amounts of the Class A-2 Notes
on the Determination Date immediately preceding that
Distribution Date;
CA2M = the Issue Margin in respect of the Class A-2 Notes during
the Accrual Period ending immediately prior to that
Distribution Date;
CA3 = the A$ Equivalent of the aggregate Stated Amounts of the
Class A-3 Notes on the Determination Date immediately
preceding that Distribution Date;
CA3M = the Spread specified in paragraph 5.2 of the confirmations
for the Class A-3 Currency Swap on that Distribution Date;
CB = the aggregate of the Stated Amounts of the Class B Notes
on the Determination Date immediately preceding that
Distribution Date;
CBA = the Issue Margin in respect of the Class B Notes;
RB = the aggregate of the Stated Amounts of the Redraw Bonds on
the Determination Date immediately preceding that
Distribution Date;
RBM = the weighted average of the Issue Margins in respect of
the Redraw Bonds outstanding on the Determination Date
immediately prior to that Distribution Date during the
Accrual Period ending immediately prior to that
Distribution Date (based on the Stated Amounts of those
Redraw Bonds);
SR = the Standby Redraw Facility Principal on the Determination
Date immediately preceding that Distribution Date;
SRM = the Drawdown Margin as defined in the Standby Redraw
Facility Agreement; and
TSA = the sum of CA1, CA2, CA3, CB, RB and SR.".
(d) Interpretation:
(i) references to time are references to Sydney time;
(ii) a reference to "wilful default" in relation to Party B means,
subject to Part 5(6)(d)(iii) of this Schedule, any wilful failure
by Party B to comply with, or wilful breach by Party B of, any of
its obligations under any Transaction Document, other than a
failure or breach which:
14
A. 1) arises as a result of a breach of a Transaction
Document by a person other than Party B or other than
any other person referred to in Part 5(6)(d)(iii) of
this Schedule; and
2) the performance of the action (the non-performance of
which gave rise to such breach) is a precondition to
Party B performing the said obligation;
B. as in accordance with a lawful court order or direction or
is otherwise required by law; or
C. is in accordance with any proper instruction or direction
of:
1) the Secured Creditors given at a meeting (or deemed
meeting) of Secured Creditors convened under the
Security Trust Deed; or
2) the Investors given at a meeting convened under the
Master Trust Deed;
(iii) a reference to the "fraud", "negligence" or "wilful default" of
Party B means the fraud, negligence or wilful default of Party B
and of its officers, employees, agents and any other person where
Party B is liable for the acts or omissions of such other person
under the terms of any Transaction Document;
(iv) a reference to "neither party" will be construed as a reference
to "no party"; and
(v) 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")) (the
"2000 ISDA Definitions") as at the date of this Agreement are
incorporated into this Agreement and each Confirmation.
(f) Inconsistency: Subject to Part 5(6)(a) of this Schedule, unless
specified otherwise, in the event of any inconsistency between any two
or more of the following documents in respect of a Transaction they
will take precedence over each other in the following order in respect
of that Transaction:
(i) any Confirmation;
(ii) the Series Supplement;
(iii) the Master Trust Deed;
(iv) this Agreement; and
(v) the 2000 ISDA Definitions.
(g) Swap Transaction: Any reference to a:
(i) "Swap Transaction" in the 2000 ISDA Definitions is deemed to be a
reference to a "Transaction" for the purpose of interpreting this
Agreement or any Confirmation; and
(ii) "Transaction" in this Agreement or any Confirmation is deemed to
be a
15
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.
(7) Limitation of Liability: Insert the following Section 15, after Section 14:
"15. Party B's Limitation of Liability
(a) (Limitation on Party B's liability): Party B enters into this
Agreement only in its capacity as trustee of the Series Trust and in
no other capacity. A liability incurred by Party B acting in its
capacity as trustee of the Series Trust arising under or in connection
with this Agreement is limited to and can be enforced against Party B
only to the extent to which it can be satisfied out of the Assets of
the Series Trust out of which Party B is actually indemnified for the
liability. This limitation of Party B's liability applies despite any
other provision of this Agreement (other than Section 15(c)) and
extends to all liabilities and obligations of Party B in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to this Agreement.
(b) (Claims against Party B): The parties other than Party B may not sue
Party B in respect of liabilities incurred by Party B acting in its
capacity as trustee of the Series Trust in any capacity other than as
trustee of the Series Trust, including seek the appointment of a
receiver (except in relation to Assets of the Series Trust), or a
liquidator, or an administrator, or any similar person to Party B or
prove in any liquidation, administration or similar arrangements of or
affecting Party B (except in relation to the Assets of the Series
Trust).
(c) (Breach of Trust): The provisions of this Section 15 will not apply to
any obligation or liability of Party B to the extent that it is not
satisfied because under the Master Trust Deed, the Series Supplement
or any other Transaction Document or by operation of law there is a
reduction in the extent of Party B's indemnification out of the Assets
of the Series Trust, as a result of Party B's fraud, negligence or
wilful default.
(d) (Acts or omissions): It is acknowledged that the Relevant Parties are
responsible under the Transaction Documents for performing a variety
of obligations relating to the Series Trust. No act or omission of
Party B (including any related failure to satisfy its obligations or
any breach of a representation or warranty under this Agreement) will
be considered fraudulent, negligent or a wilful default of Party B for
the purpose of paragraph (c) of this Section 15 to the extent to which
the act or omission was caused or contributed to by any Relevant
Person or any other person appointed by Party B under any Transaction
Document (other than a person whose acts or omissions Party B is
liable for in accordance with any Transaction Document) to fulfil its
obligations relating to the Series Trust or by any other act or
omission of a Relevant Party or any other such person.
(e) (No Obligation): The Trustee is not obliged to enter into any
commitment or obligation under this Agreement or any Transaction
Document (including incur any
16
further liability) unless the Trustee's liability is limited in a
manner which is consistent with this Section 15 or otherwise in a
manner satisfactory to the Trustee in its absolute discretion.".
(8) Quarterly Swap Statement: Prior to each Distribution Date the Manager will
prepare and deliver to Party A and Party B a quarterly payment notice
containing the information specified in Annexure 3 of this Agreement.
(9) Further Assurances: Each party will, upon request by the other party (the
"requesting party") at the expense of the requesting party, perform all
such acts and execute all such agreements, assurances and other documents
and instruments as the requesting party reasonably requires (and, in the
case of Party B, are within the powers granted to Party B under the Master
Trust Deed) to assure and confirm the rights and powers afforded, created
or intended to be afforded or created, under or in relation to this
Agreement and each Transaction or other dealing which occurs under or is
contemplated by it.
(10) Interest Rate Swap Agreement: The parties acknowledge and agree that for
the purposes of the Transaction Documents that this Agreement is an
Interest Rate Swap Agreement and Party A is an Interest Rate Swap Provider.
(11) Procedures for Entering into Transactions:
(a) For the purposes of Section 9(e)(ii), Party A will, by or promptly
after the relevant Trade Date, send Party B and the Manager two
Confirmations substantially in the form set out in Annexure 1 and 2
respectively (or in such other form as may be agreed between Party A,
Party B and the Manager), and Party B and the Manager must promptly
then confirm the accuracy of and sign and return, or request the
correction of each such Confirmation.
(b) Party B will enter into each Transaction in its capacity as trustee of
the Series Trust.
(12) Authorised Officer: Each party will be entitled to assume, in the absence
of any knowledge to the contrary, that any person signing any Confirmation,
notice or other written communication issued in respect of this Agreement
on behalf of a party is an Authorised Officer of that party.
(13) Recorded Conversations: Each party:
(a) consents to the electronic recording of its telephone conversations
with the other party (or any of its associated persons) with or
without the use of an automatic tone warning device;
(b) will provide transcripts of such recordings (if any) upon reasonable
request by the other party (at the reasonable cost of the party
requesting);
(c) acknowledges that such recordings and transcripts can be used as
evidence by either party in any dispute between them; and
(d) acknowledges that neither is obligated to maintain copies of such
recordings and transcripts for the benefit of the other party.
(14) Further Fixed Rate Swaps and Downgrading of Party A: Insert the following
new Sections 16, 17, 18 and 19 after Section 15:
"16. Further Fixed Rate Swaps
(a) If, pursuant to clause 16.6(j) of the Series Supplement, in order
for the
17
Servicer to permit a Conversion the Servicer requests the Manager
(and the Manager directs Party B) to enter into a Fixed Rate Swap
in accordance with this Section 16 for a maximum term not
exceeding 10 years, Party B and the Manager will be deemed to
have satisfied their respective obligations to enter into such
Fixed Rate Swap if the calculation of the Fixed Rate Swap Amount
for the purposes of a Fixed Rate Swap then existing includes the
Amounts Outstanding in relation to the Mortgage Loans the subject
of the Conversion.
(b) If Section 16(a) does not apply and Party B and the Manager enter
into one or more further Fixed Rate Swaps pursuant to clause
16.6(j) of the Series Supplement to hedge the interest rate risk
of one or more Mortgage Loans the subject of a Conversion, each
such further Fixed Rate Swap must:
(i) (Notional Amount): have a Notional Amount for each
Calculation Period at least equal to the aggregate Amounts
Outstanding as at the first day of the relevant Calculation
Period in relation to the Mortgage Loans the subject of the
Conversion which have the same fixed rate and End Date;
(ii) (Effective Date): have as an Effective Date the Distribution
Date immediately following the last day of the Swap
Collection Period in which the Conversion occurs;
(iii) (Termination Date): have a scheduled Termination Date on or
prior to the tenth anniversary of its Trade Date unless the
Rating Agencies confirm that entering into the Fixed Rate
Swap for a longer period will not result in a reduction,
qualification or withdrawal of the credit ratings then
assigned by them to the Securities; and
(iv) (Confirmation): in all other respects be confirmed as a
Fixed Rate Swap in accordance with this Agreement and the
sample Confirmation for Fixed Rate Swaps set out in Annexure
2 to this Agreement.
The Spread applicable to the Floating Amounts, if any, in respect of
each Fixed Rate Swap entered into following a Conversion shall be the
Weighted Margin in respect of the relevant Distribution Date plus
0.71% per annum.
17. Ratings Downgrade of Party A - Fixed Rate Swaps: If, as a result of
the reduction or withdrawal of its credit rating by a Rating Agency,
Party A does not have the Prescribed Rating in relation to the Fixed
Rate Swaps, Party A must:
(a) (▇▇▇▇▇'▇): where it ceases to have the Prescribed Ratings from
▇▇▇▇▇'▇ in relation to the Fixed Rate Swap:
(i) within 30 Business Days of Party A ceasing to have such
Prescribed Ratings if and while Party A has a long term
credit rating of at least A3 by ▇▇▇▇▇'▇; or
(ii) otherwise, and if sooner, within 5 Business Days of Party A
ceasing to have a long term credit rating of at least A3 by
▇▇▇▇▇'▇,
(or such greater period as is agreed to in writing by ▇▇▇▇▇'▇),
at its cost
18
alone and at its election:
(iii) lodge in an Eligible Account as a prepayment of its
obligations in respect of the Fixed Rate Swaps an amount
equal to the Fixed Rate Prepayment Amount as defined in
Section 17(c);
(iv) enter into an agreement novating its rights and obligations
under this Agreement in respect of the Fixed Rate Swaps to a
replacement counterparty acceptable to the Manager and which
the Rating Agencies confirm in writing will not result in a
reduction, qualification or withdrawal of the credit ratings
then assigned by them to the Securities; or
(v) enter into such other arrangements in respect of all Fixed
Rate Swaps which are satisfactory to the Manager and which
the Rating Agencies confirm in writing will not result in a
reduction, qualification or withdrawal of the credit ratings
then assigned by them to the Securities; and
(b) (S&P): where it ceases to have the Prescribed Rating in relation
to the Fixed Rate Swap from S&P at its cost alone:
(i) immediately seek to enter into, and enter into by no later
than 60 days after Party A ceases to have the Prescribed
Ratings in respect of the Fixed Rate Swap from S&P, an
agreement novating its rights and obligations under this
Agreement in respect of the Fixed Rate Swap to a replacement
counterparty which holds the Prescribed Ratings in respect
of the Fixed Rate Swap and, if a transfer in accordance with
this Section 17(b)(i) has not occurred within 30 days after
Party A ceases to have the Prescribed Ratings in respect of
the Fixed Rate Swap from S&P, lodge in an Eligible Account
as a prepayment of its obligations in respect of the Fixed
Rate Swaps an amount equal to the Fixed Rate Prepayment
Amount as defined in Section 17(c); or
(ii) (if Party A is unable to effect a transfer in accordance
with Section 17(b)(i) within 60 days of Party A ceasing to
have the Prescribed Rating in respect of the Fixed Rate Swap
from S&P or if Party A otherwise elects) enter into such
other arrangements in respect of the Fixed Rate Swap which
are satisfactory to the Manager and which each Rating Agency
confirms in writing will not result in a reduction,
qualification or withdrawal of the credit ratings then
assigned by it to the Notes.
(c) (Fixed Rate Prepayment Amount): For the purposes of this Section
17 the Fixed Rate Prepayment Amount will be an amount equal to
the greater of the following:
(i) where Party A does not have the Prescribed Rating in respect
of the Fixed Rate Swap from ▇▇▇▇▇'▇, an amount acceptable to
▇▇▇▇▇'▇ and sufficient to maintain the credit ratings
assigned to the Securities by ▇▇▇▇▇'▇ immediately prior to
the review of Party A's credit rating; and
19
(ii) where Party A does not have the Prescribed Rating in respect
of the Fixed Rate Swap from S&P, the greater of:
A. zero;
B. CR;
C. an amount equal to 1 percent of the then Amounts
Outstanding of all Mortgage Loans then being charged
interest at a fixed rate; and
D. the net amount (if any) as determined by the Manager
that is expected to be due by Party A to Party B in
respect of the Fixed Rate Swap on the immediately
following Distribution Date (calculated on the basis
that there will be no prepayments made by the
Mortgagors under the Mortgage Loans then being charged
interest at a fixed rate and no conversion of the
interest rate payable under any Mortgage Loan from a
fixed rate to a variable rate or from a variable rate
to a fixed rate during the relevant Swap Collection
Period).
Where:
CR = MM + V
"MM" means the aggregate of the mark-to-market value
(whether positive or negative) of all Fixed Rate Swaps
determined in accordance with Section 17(d) no earlier than
3 Business Days prior to the date that the Fixed Rate
Prepayment Amount is lodged.
"V" means the volatility buffer, being the value calculated
by multiplying the aggregate Notional Amounts (as defined in
the relevant Confirmations) of the Fixed Rate Swaps at the
most recent Distribution Date by the relevant percentage
obtained from the following table:
------------------------------------------------------------------------------------------------
Where the period between the Where the period between the Where the period between the
date of recalculation and the date of recalculation and the date of recalculation and the
weighted average of the weighted average of the weighted average of the
maturity dates of the then maturity dates of the then maturity dates of the then
fixed rate periods in respect fixed rate periods in respect fixed rate periods in respect
of Mortgage Loans forming part of Mortgage Loans forming part of Mortgage Loans forming part
of the Assets of the Series of the Assets of the Series of the Assets of the Series
Trust which are charged a Trust which are charged a Trust which are charged a
fixed rate of interest is less fixed rate of interest is fixed rate of interest is
than or equal to 5 years greater than 5 years and less greater than 10 years
than or equal to 10 years
------------------------------------------------------------------------------------------------
1.5 3.15 6
------------------------------------------------------------------------------------------------
20
(d) (Mark to Market Value): Party A must calculate the mark-to-market
value of the Fixed Rate Swaps by obtaining 2 bids from
counterparties with the Prescribed Ratings willing to provide the
Fixed Rate Swaps in the absence of Party A. The mark-to-market
value may be a positive or a negative amount. A bid has a
negative value if the payment to be made is from the counterparty
to Party A and has a positive value if the payment to be made is
from Party A to the counterparty. The mark-to-market value is the
higher of the bids (on the basis that any bid of a positive value
is higher than any bid of a negative value).
(e) (Recalculation): Party A must recalculate the Fixed Rate
Prepayment Amount (including the CR and the mark-to-market value)
on a weekly basis. If:
(i) the recalculated Fixed Rate Prepayment Amount is greater
than the immediately preceding Fixed Rate Prepayment Amount,
Party A must make an additional prepayment in accordance
with Section 17(a)(iii) or (b)(i) within 3 Business Days of
such recalculation so that the Fixed Rate Prepayment Balance
equals the recalculated Fixed Rate Prepayment Amount; or
(ii) the recalculated Fixed Rate Prepayment Amount is less than
the immediately preceding Fixed Rate Prepayment Amount,
Party B must upon the direction of the Manager withdraw an
amount from the Eligible Account referred to in Section
17(a)(iii) or (b)(i) and pay it to Party A within 3 Business
Days of receiving notice of such recalculation so that the
remaining Fixed Rate Prepayment Balance after such
withdrawal equals the recalculated Fixed Rate Prepayment
Amount.
(f) (Interest): Interest will be payable by Party B on any prepayment
by Party A under this Section 17 in accordance with clause 8.8 of
the Series Supplement.
(g) (Utilisation): If the Fixed Rate Prepayment Balance is applied
towards an amount payable by Party A in accordance with Section
2(f)(i) Party A must within 3 Business Days make an additional
prepayment in accordance with Section 17(a)(iii) or (b)(i) equal
to the amount so applied.
(h) (Repayment): If Party A regains the Prescribed Rating in respect
of the Fixed Rate Swaps Party B must, upon the direction of the
Manager, repay to Party A the then Fixed Rate Prepayment Balance.
(i) (Variation of Manner of Satisfaction): Notwithstanding that Party
A has elected to satisfy its obligations pursuant to this Section
17 in a particular manner, it may subsequently and from time to
time vary the manner in which it satisfies its obligations
pursuant to this Section 17 (but will not be entitled to any
additional grace period in relation to such a variation).
18. Downgrading of Party A - Basis Swap
If, as a result of the reduction or withdrawal of its credit rating by
a Rating Agency, Party A does not have the Prescribed Rating in
respect of the Basis Swap, Party A
21
must:
(a) (30 Business Days): within 30 Business Days of Party A ceasing to
have the Prescribed Rating if and while Party A has a short term
credit rating of at least P-1 by ▇▇▇▇▇'▇; or
(b) (5 Business Days): otherwise, and if sooner, within 5 Business
Days of Party A ceasing to have a short term credit rating of at
least P-1 by ▇▇▇▇▇'▇;
(or such greater period as is agreed to in writing by ▇▇▇▇▇'▇) (the
"Posting Period"), at its cost alone and at its election:
(c) (Prepayment):
(i) on or before the last day of the Posting Period, pay to
Party B as a prepayment of its obligations under the Basis
Swap for the then Calculation Period, the net amount (if
any) that is expected to be due by Party A to Party B at the
end of that Calculation Period; and
(ii) on each of the following Distribution Dates, pay to Party B
as a prepayment of its obligations under the Basis Swap for
the Calculation Period commencing on each such Distribution
Date, the net amount (if any) that is expected to be due by
Party A to Party B at the end of that Calculation Period
less the then Basis Prepayment Balance at the end of that
Distribution Date,
as determined by the Manager, by depositing such net amount (if
any) into the Collections Account in cleared funds; or
(d) (Other arrangements): enter into some other arrangement
satisfactory to the Manager and Party B which the Rating Agencies
confirm will not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them to the
Securities.
A prepayment on the first day of any Calculation Period by Party A
under Section 18(c) will constitute a prepayment of Party A's payment
obligations (to the extent thereof) in respect of the Basis Swap for
the Calculation Period commencing on that Distribution Date.
Notwithstanding that Party A has elected to satisfy its obligations
pursuant to this Section 18 in a particular manner, it may
subsequently and from time to time vary the manner in which it
satisfies its obligations pursuant to this Section 18 (but will not be
entitled to any additional grace period in relation to such a
variation). Interest will be payable by Party B on any prepayment by
Party A under this Section 18 in accordance with clause 8.8 of the
Series Supplement.
19. Securities Repaid
On the date that the Invested Amount in respect of the Securities has
been reduced to zero, or the Securities are redeemed in full or are
deemed to have been redeemed in full under the Series Supplement,
whichever is the earlier, Party A's obligations under Sections 17 and
18 will cease and Party B must pay to Party A on that date the
Outstanding Interest Rate Swap Prepayment Amount and interest on such
payment.".
22
(15) Transfer:
Section 7 is replaced with:
"7. Essential term: Transfer
(a) Neither the interests nor the obligations of either party in or under
this Agreement (including any Transaction) are capable of being
assigned or transferred (whether at law, in equity or otherwise),
charged or the subject of any trust (other than the Series Trust or
the trusts created pursuant to any Credit Support Document in relation
to Party B) or other fiduciary obligation. Any action by a party which
purports to do any of these things is void.
(b) Nothing in this Section 7:
(i) restricts a transfer by a party after the other party has agreed
to the variation of this Agreement to the extent necessary to
permit such transfer;
(ii) restricts a novation of the interests and obligations of a party
in or under this Agreement (including any Transaction) including,
but not limited to, for the purposes of giving effect to a
transfer under Section 6(b)(ii);
(iii) restricts a transfer by a party of all or any part of its
interest in any amount payable to it from a Defaulting Party
under Section 6(e); or
(iv) restricts Party B from granting security over a Transaction or
this Agreement pursuant to any Credit Support Document in
relation to Party B,
provided that the Rating Agencies have confirmed that such transfer,
variation or assignment by way of security (as the case may be) will
not result in a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Securities.
(c) Each party acknowledges that the other party enters into this
Agreement and each Transaction on the basis that this Section 7 must
be strictly observed and is essential to the terms of this Agreement
(including each Transaction).".
23
(16) Knowledge or Awareness
Subject to Section 12(a), each party will only be considered to have
knowledge or awareness of, or notice of, a thing or grounds to believe
anything by virtue of the officers of that party or any Related Body
Corporate of that party which have the day to day responsibility for the
administration or management of that party's (or a Related Body Corporate
of that party's) obligations in relation to the Series Trust or the
Transactions entered into under this Agreement having actual knowledge,
actual awareness or actual notice of that thing, or grounds or reason to
believe that thing (and similar references will be interpreted in this
way).
(18) Interest Rate Basis Cap
The parties agree that any Interest Rate Basis Cap entered into between
them pursuant to clause 16.6(k) of the Series Supplement will be entered
into as a transaction governed by the terms of this Agreement.
(19) Amendment to this Agreement
The parties to this Agreement may only amend this Agreement in accordance
with clause 33.1(b) of the Series Supplement.
24
Annexure 1
Form of confirmation for Basis Swap - Medallion Trust Series 2004-1G
[Commonwealth Bank of Australia Letterhead]
[DATE]
To: Perpetual Trustee Company Limited Securitisation Advisory Services Pty.
ABN 42 000 001 007 Limited ABN 88 064 133 946
as trustee of the Series Trust Level 6
Level 7 48 ▇▇▇▇▇▇ Place
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Manager, Securitisation
Attention: Manager, Securitisation Services
Swap Confirmation - Basis Swap
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [__________], as amended, novated or supplemented
from time to time (the "Agreement"), between Commonwealth Bank of Australia ABN
48 123 123 124 ("Party A"), Perpetual Trustee Company Limited as trustee of the
Series Trust ("Party B") and Securitisation Advisory Services Pty. Limited (the
"Manager"). All provisions contained in the Agreement govern this Confirmation
except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Our Reference: [______]
Trade Date: [______]
Effective Date: [______]
Termination Date: Means the earlier of:
(a) the Step-Up Date but only if :
(i) the Issue Margins (as defined in the
Offshore Note Conditions in respect
of the Offshore Notes) in respect of
the Offshore Notes and the Class A-2
Notes increase as and from the
Step-Up Date; and
(ii) the weighted average Mortgage Rate
applicable to the Mortgage Loans
forming part of the Assets of the
Series Trust which are charged
interest at a variable rate is equal
to or greater than the then Threshold
Rate;
25
(b) the date that all the Securities have been
redeemed in full; and
(c) the Termination Date for the Series Trust,
subject to the Following Business Day
Convention
Notional Amount: With respect to each Calculation Period means
the Basis Swap Amount for that Calculation
Period
Floating Administered ▇▇▇▇
▇▇▇▇▇▇▇:
Floating Administered Rate
Payer: Party B
Floating Administered Rate
Payer Payment Dates: Each Distribution Date
Floating Rate Option: Basis Swap Administered Rate in relation to the
Distribution Date
Floating Rate Day Count
Fraction: Actual/365 (Fixed)
Floating BBSW Weighted Rate
Amounts:
Floating BBSW Rate Payer: Party A
Floating BBSW Rate Payer
Payment Dates: Each Distribution Date
Floating Rate Option: Bank Bill Rate for the Accrual Period
corresponding to the Calculation Period
Spread: Weighted Margin in respect of the relevant
Distribution Date plus [____]% per annum
Floating Rate Day Count
Fraction: Actual/365 (Fixed)
Business Day: Sydney
Business Day Convention: Following
Calculation Agent: The Manager
Other Provisions: For the purposes of the Agreement, the
Transaction to which this Confirmation relates
is the Basis Swap
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
Executed documents will follow by mail.
26
Yours sincerely
SIGNED for and on behalf of PERPETUAL SIGNED for and on behalf of
TRUSTEE COMPANY LIMITED ABN 42 000 COMMONWEALTH BANK OF AUSTRALIA
001 007, as trustee of the Medallion ABN 48 123 123 124
Trust Series
2004-1G
By: By:
------------------------------- -------------------------------
(Authorised Officer) (Authorised Officer)
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------- -------------------------------
SIGNED for and on behalf of
SECURITISATION ADVISORY SERVICES
PTY. LIMITED ABN 88 064 133 946
By:
-------------------------------
(Authorised Officer)
Name:
-------------------------------
Title:
-------------------------------
27
Annexure 2
Form of Confirmation for Fixed Rate Swaps - Medallion Trust Series 2004-1G
[Commonwealth Bank of Australia Letterhead]
[DATE]
To: Perpetual Trustee Company Limited Securitisation Advisory Services Pty.
ABN 42 000 001 007 Limited ABN 88 064 133 946
as trustee of the Series Trust Level 6
Level 7 48 ▇▇▇▇▇▇ Place
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Manager, Securitisation
Attention: Manager, Securitisation Services
Swap Confirmation - Fixed Rate Swap
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [________], as amended, novated or and supplemented
from time to time (the "Agreement"), between Commonwealth Bank of Australia ABN
48 123 123 124 ("Party A"), Perpetual Trustee Company Limited as trustee of the
Series Trust ("Party B") and Securitisation Advisory Services Pty. Limited (the
"Manager"). All provisions contained in the Agreement govern this Confirmation
except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Our Reference: [______]
Trade Date: [______]
Effective Date: [______]
Termination Date: Means the earlier of:
(a) the date that all the Securities have been
redeemed in full; and
(b) the Termination Date for the Series Trust,
subject to the Following Business Day
Convention
Notional Amount: With respect to each Calculation Period means
the Fixed Rate Swap Amount for that Calculation
Period
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment
Dates: Each Distribution Date
28
Fixed Rate: The Fixed Swap Administered Rate in relation to
the Distribution Date
Fixed Rate Day Count
Fraction: Actual/365 (Fixed)
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer
Payment Dates: Each Distribution Date
Floating Rate Option: Bank Bill Rate for the Accrual Period
corresponding to the Calculation Period
Spread: Weighted Margin in respect of the relevant
Distribution Date plus [____]% per annum
Floating Rate Day Count
Fraction: Actual/365 (Fixed)
Business Day: Sydney
Business Day Convention: Following
Calculation Agent: The Manager
Other Provisions: For the purposes of the Agreement, the
Transaction to which this Confirmation relates
is the Fixed Rate Swap
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of PERPETUAL SIGNED for and on behalf of
TRUSTEE COMPANY LIMITED ABN 42 000 COMMONWEALTH BANK OF AUSTRALIA
001 007, as trustee of the Medallion ABN 48 123 123 124
Trust Series
2004-1G
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------- -------------------------------
(Authorised Officer) (Authorised Officer)
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------- -------------------------------
Title: Manager Title: General Manager,
------------------------------- Capital Management &
Securitization
-------------------------------
29
SIGNED for and on behalf of
SECURITISATION ADVISORY SERVICES
PTY. LIMITED ABN 88 064 133 946
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
(Authorised Officer)
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: General Manager, Capital Management Securitization
--------------------------------------------------
30
Annexure 3
Quarterly Payment Notice - Medallion Trust Series 2004-1G
To: Commonwealth Bank Of Australia ABN 48 123 123 124 ("Party A")
And To: Perpetual Trustee Company Limited ABN 42 000 001 007, as trustee of the
Series Trust, ("Party B")
From: Securitisation Advisory Services Pty. Limited ABN 88 064 133 946 (the
"Manager")
ISDA MASTER AGREEMENT dated [________] between Party A, Party B and the Manager
(the "Agreement")
Determination Date:
The Manager has determined and gives notice of the following:
1. Basis Swap
(a) Notional Amount for the current Calculation Period:
(b) Basis Swap Administered Rate for the current Calculation Period just
ended:
2. Fixed Rate Swap
(a) Notional Amount for the current Calculation Period:
(b) Fixed Rate Administered Rate for the current Calculation Period just
ended:
3. Rate Set
(a) Bank Bill Rate for the current Calculation Period:
(b) Weighted Margin for the current Calculation Period:
4. Net Break Receipts and Payments
(a) The Net Break Receipt (if any) in respect of the Determination Date:
(b) The Net Break Payment (if any) in respect of the Determination Date:
5. Net Amount
(a) Net amount due for payment by Party A on the immediately following
Payment Date:
(b) Net amount due for payment by Party B on the immediately following
Payment Date:
Terms used and not otherwise defined in this notice have the same meaning as in
the Agreement, as amended, supplemented or novated from time to time.
31
SIGNED for and on behalf of
SECURITISATION ADVISORY SERVICES
PTY. LIMITED ABN 88 064 133 946
By:
-------------------------------
(Authorised Officer)
Name:
-------------------------------
Title:
-------------------------------
32