SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF NOVEMBER 2003
BETWEEN
WESTPAC BANKING CORPORATION (ABN 33 007 457 141) ("PARTY A")
AND
PERPETUAL TRUSTEES AUSTRALIA LIMITED (ABN 86 000 000 000) IN ITS CAPACITY AS
TRUSTEE OF THE SECURITISATION FUND KNOWN AS SMHL GLOBAL FUND NO. 5 ("PARTY B")
AND
ME PORTFOLIO MANAGEMENT LIMITED (ABN 79 005 964 134) IN ITS CAPACITY AS
MANAGER OF THE SECURITISATION FUND KNOWN AS SMHL GLOBAL FUND NO. 5 ("MANAGER")
PART 1. TERMINATION PROVISIONS.
In this Agreement:
(a) "SPECIFIED ENTITY" is not applicable to Party A and Party B.
(b) "SPECIFIED TRANSACTION" will not apply.
(c) "EVENTS OF DEFAULT"
(i) Sections 5(a)(ii), 5(a)(iii), 5(a)(iv), 5(a)(v), 5(a)(vi), 5(b)(iii)
and 5(b)(iv) will not apply to Party A or Party B.
(ii) In Section 5(a), 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 10:00am on the tenth
Local Business Day after the due date;"
(iii) Section 5(b)(ii) will not apply if Party A is the sole Affected Party
(subject to Section 6(aa)(iii) of the Agreement, inserted by Part 5(y)
of this Schedule).
(d) The "Bankruptcy" provisions of Section 5(a)(vii) are replaced by "An
Insolvency Event under the Security Trust Deed has occurred in respect of
Party A (which will be the Defaulting Party) or Party B (which will be the
Defaulting Party); or". The occurrence of an Insolvency Event under the
Security Trust Deed in respect of Party B in its personal capacity will not
constitute an Event of Default PROVIDED that within thirty Local Business
Days of that occurrence, Party A, Party B and the Manager are able to
procure the novation of this Agreement and all Transactions to a third
party in respect of which the Designated Rating Agencies confirm that the
novation will not cause a reduction or withdrawal of the rating of the
Notes, and Party A and Party B agree to execute such a novation agreement
in a form agreed between the parties.
(e) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) will not apply
to Party A and will not apply to Party B.
(f) PAYMENTS ON EARLY TERMINATION for the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means United States Dollars provided that if an
amount due in respect of an Early Termination Date will be payable by Party
B to Party A, the Termination Currency for the purpose of calculating and
paying that amount is Australian Dollars.
(h) "ADDITIONAL TERMINATION EVENT" means:
(i) Party B becomes obliged to make a withholding or deduction in respect
of any Class A Notes and the Class A Notes are redeemed as a result
(and Party B is the Affected Party and, notwithstanding Section
6(b)(iv) of this Agreement, as a result thereof Party B must, at the
direction of the Manager, give a notice designating an Early
Termination Date in respect of this Agreement and all Transactions);
(ii) An Event of Default (as defined in the Security Trust Deed) occurs and
the Security Trustee has declared, in accordance with the Security
Trust Deed, the Class A Notes immediately due and payable (and Party B
is the Affected Party); and
(iii) Party A breaches Part 5(w) (and Party A is the Affected Party and,
notwithstanding Section 6(b)(iv) of the Agreement, as a result
thereof Party B must, at the direction of the Manager, give a notice
designating an Early Termination Date in respect of this Agreement
and all Transactions).
(i) TRANSFER TO AVOID TERMINATION EVENT. In Section 6(b)(ii), after the words
"another of its Offices or Affiliates" on the seventh line add "(in respect
of which the Designated Rating Agencies have given prior written
confirmation to the Manager that such a transfer will not result in a
reduction or withdrawal of the rating of the Notes)"
PART 2. TAX REPRESENTATIONS.
(a) PAYER REPRESENTATIONS: For the purpose of Section 3(e), Party A will make
the following representation and Party B will make the following
representation:-
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on:
(i) the accuracy of any representations made by the other party pursuant
to Section 3(f);
(ii) the satisfaction of the agreement of the other party contained in
Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant to
Section 4(a)(i) or 4(a)(iii) 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) of the Agreement 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 make the
following representation 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. Party B further represents that it is a "foreign trust" for United
States tax purposes.
PART 3. DOCUMENTS TO BE DELIVERED.
For the purposes of Section 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents as applicable:-
(a) Tax forms, documents or certificates to be delivered are:-
FORM/DOCUMENT/CERTIFICATE: Any document or certificate required or
requested by Party A or Party B in connection with its obligations under
this Agreement which would enable that party to make the payment free from
any deduction or withholding for or on account of Tax or as would reduce
the rate at which deduction or withholding for or on account of Tax is
applied to that payment.
PARTY REQUIRED TO DELIVER DOCUMENT: Party A and Party B.
DATE BY WHICH TO BE DELIVERED: On the earlier of (a) as soon as reasonably
practicable following learning that such document or certificate is
required and (b) as soon as reasonably practicable following a request by
the other party.
Each document provided under this paragraph (a) is covered by the
representation contained in Section 3(d) of this Agreement.
(b) Other documents to be delivered are:-
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COVERED BY SECTION
PARTY REQUIRED DATE BY WHICH TO BE 3(D)
TO DELIVER FORM/DOCUMENT/CERTIFICATE DELIVERED REPRESENTATIONS
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Party A and Party B A list of authorised signatories On execution and delivery Yes
and the Manager for the party and evidence of this Agreement or any
satisfactory in form and relevant Confirmation and
substance to the other parties thereafter promptly upon
of the authorised signatories of any change in authorised
the party to execute this persons or upon request.
Agreement and each Confirmation
on behalf of each relevant party.
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Party B and the Manager Copies of any reports or Upon reasonable request Yes
accounts relating to the by Party A subject to not
Securitisation Fund that are being obliged to deliver
produced for (a) distribution to any document if to do so
the investors in the Class A would breach or infringe
Notes, or (b) presentation to any law or legally
the Board of Directors of the binding obligation or
Manager and such other restraint.
information in the Managers
control regarding the financial
condition and business
operations of the Securitisation
Fund as Party A may reasonably
require.
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Party B and the Legal opinions as to the Promptly after Yes
Manager validity and enforceability of entering into this
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COVERED BY SECTION
PARTY REQUIRED DATE BY WHICH TO BE 3(D)
TO DELIVER FORM/DOCUMENT/CERTIFICATE DELIVERED REPRESENTATIONS
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the obligations of Party B and Agreement, the form previously
the Manager under this agreed with the other
Agreement, the Master Trust parties.
Deed, the Security Trust Deed
and the Class A Notes in form
and substance and issued by
legal counsel reasonably
acceptable to Party A.
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Party A A legal opinion as to the Promptly after entering Yes
validity and enforceability of into this agreement.
the obligations of Party A under
this Agreement issued by legal
counsel to Party A.
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Manager Copies (certified to be true On execution and delivery Yes
copies by an authorised of this Agreement.
signatory of the Manager) of the
Master Trust Deed, the Note
Trust Deed, the Security Trust
Deed and the Supplementary Bond
Terms Notice.
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Manager A copy (certified to be a true Promptly upon any such Yes
copy by an authorised signatory document becoming
of the Manager) of any document effective in accordance
amending or varying the terms of with its terms.
the Master Trust Deed or the
Security Trust Deed.
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PART 4 - MISCELLANEOUS
(a) ADDRESS FOR NOTICES. For the purpose of Section 12(a) of this Agreement:-
(i) All notices to Party A under this Agreement shall be sent to:
Westpac Banking Corporation Xxxxx 0, 000 Xxxxxxxxx Xxxxxx, Xxxxxx,
XXX, 0000
Attention: Senior Manager, Global Derivatives
Operations
Telephone: 61- 0 - 0000 0000
Facsimile: 61- 0 - 0000 0000
(ii) All notices to Party B under this Agreement shall be sent to:
Perpetual Trustees Australia Limited
Xxxxx 0
00 Xxxxxx Xxxxxx
XXXXXX XXX 0000
Attention: Manager, Securitisation Services
Telephone: 61-2-9229-9000
Facsimile: 00-0-0000-0000
(iii) All notices to the Manager under this Agreement shall be sent to:
ME Portfolio Management Limited
Xxxxx 00
000 Xxxxxxx Xxxxxx
XXXXXXXXX XXX 0000
Attention: The Manager, Treasury Operations
Administration
Telephone: 00-0-0000-0000
Facsimile: 00-0-0000-0000
(b) PROCESS AGENT. For the purpose of Section 13(c):
Party A appoints as its Process Agent - not applicable. Party B
appoints as its Process Agent - not applicable.
(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.
(e) CALCULATION AGENT. The Calculation Agent is Party A, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:-
In relation to Party A: None.
In relation to Party B: Security Trust Deed
(g) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A:-
Not Applicable.
Credit Support Provider 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 each
party submits to the non-exclusive jurisdiction of the Courts of the State
of New South Wales and the courts of appeal from them.
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this Agreement
will not apply to the following Transactions or group of Transactions (in
each case starting from the date of this Agreement).
All Transactions being of the same type and which have been entered into
through the same Office of Party A.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. For the purposes of Section 3(c), each of Party A, Party B and
the Manager are deemed not to have any Affiliates.
PART 5. OTHER PROVISIONS.
(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) insert the following immediately after the words
"freely transferable funds":
", free of any set-off, counterclaim, deduction or withholding (except as
expressly provided in this Agreement)".
(c) Insert new Sections 2(a)(iv) and (v) immediately after Section 2(a)(iii) as
follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply to a
payment due to be made by 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).
(v) Where:
(1) payments are due pursuant to Section 2(a)(i) by Party A to Party
B (THE "PARTY A PAYMENT") and by Party B to Party A (the "PARTY B
PAYMENT") on the same day; and
(2) the Security Trust Deed applicable to Party B's obligations and
entitlement referred to in Section 2(a)(v)(1) has become, and
remains at the time, enforceable,
then Party A's obligation to make the Party A Payment will be
subject to the condition precedent (which will be an "applicable
condition precedent" for the purpose of Section 2(a)(iii)(3))
that Party A first receives either:
(3) the Party B Payment; or
(4) confirmation from Party B's bank that it holds irrevocable
instructions to effect payment of the Party B Payment and that
funds are available to make that payment."
(d) Add the following new sentence to Section 2(b):
"Each new account so designated shall be in same tax jurisdiction as the
original account."
(e) 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".
(f) In Section 2(d)(ii) insert the words "(if and only if Y is Party A)" after
the word "then" at the beginning of the last paragraph. Party B will have
no obligation to pay any amount to Party A under Section 2(d)(ii), and may
make any payment under or in connection with this Agreement net of any
deduction or withholding referred to in Section 2(d)(i).
(g) Section 3(a)(v) of this Agreement is modified by adding in the fourth line
thereof the words "including without limitation in the case of Party A
being an authorised deposit taking institution authorised to carry on
banking business in the Commonwealth of Australia, Subsection 13A(3) of the
Banking Xxx 0000 (Cth) and Section 86 of the Reserve Bank Xxx 0000 (Cth) or
any amending or replacement legislation as may be in effect" after the word
"generally".
(h) In the third line of Section 3(c), insert "materially" before the word
"affect".
(i) Insert new Sections 3(g), 3(h) and 3(i) immediately after Section 3(f) as
follows:
"(g) NON ASSIGNMENT. It has not assigned (whether absolutely, in equity or
otherwise) or declared any trust or given any charge over any of its
rights under this Agreement or any Transaction (other than, in respect
of Party B, the Securitisation Fund created pursuant to the Master
Trust Deed and the charge given pursuant to the Security Trust Deed).
(h) RELATIONSHIP BETWEEN PARTIES
Each party will be deemed to represent to the other party on the date
on which it enters into a Transaction that (absent a written agreement
between the parties that expressly imposes affirmative obligations to
the contrary for that Transaction):-
(i) NON-RELIANCE. It is acting for its own account (or, in the
case of Party B, as trustee of the Securitisation Fund), and
has made its own independent decision 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, on the judgement of the Manager,
upon advice from such advisers as it has deemed necessary.
It is not relying on any communication (written or oral) of
the other party as investment advice or as a recommendation
to enter into that Transaction; it being understood that
information and explanations related to the terms and
conditions of a Transaction shall not be considered
investment advice or a recommendation to enter into that
Transaction. No communication (written or oral) received
from the other party shall be deemed to be an assurance or
guarantee as to the expected results of that Transaction.
(ii) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the
merits of and understanding (on its own behalf or through
independent professional advice), and understands and
accepts, the terms, conditions and risks of that
Transaction. It is also capable of assuming, and assumes,
the risks of that Transaction.
(iii) STATUS OF PARTIES. The other party is not acting as a
fiduciary for or as an adviser to it in respect of that
Transaction.
(i) SECURITISATION FUND. Party B represents to Party A, in respect of
Party B only (which representations will be deemed to be repeated by
Party B on each date on which a Transaction is entered into) that:
(i) SECURISATION FUND VALIDLY CREATED. The Securitisation Fund
has been validly created and is in existence at the date of
this Agreement and each Transaction.
(ii) SOLE TRUSTEE. It has been validly appointed as trustee of
the Securitisation Fund and is presently the sole trustee of
the Securitisation Fund.
(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 Securitisation Fund.
(iv) POWER. It has power to enter into this Agreement and the
Security Trust Deed in its capacity as trustee
of the Securitisation Fund.
(v) GOOD TITLE. It is the legal owner of the assets of the
Securitisation Fund and has the power under the Master Trust
Deed to mortgage or charge them in the manner provided in
the Security Trust Deed and those assets are free from all
other prior encumbrances except for the Prior Interest."
(j) In Section 4, add the following new paragraph immediately after Section
4(e):
"(f) CONTRACTING AS PRINCIPAL. Party A will enter into each Transaction as
principal and not otherwise and, subject to Section 15, Party B will
enter into each Transaction in its capacity as trustee of the
Securitisation Fund and not otherwise."
(k) In Section 6(d)(i) in the seventh line, insert "in the absence of manifest
error" after the word "evidence".
(l) CONFIRMATIONS. For the purposes of Section 9(e)(ii), Party A will, on or
promptly after the relevant Trade Date, send the Manager a confirmation
confirming that Transaction and the Manager and Party B must (either itself
or through the Manager) promptly then confirm the accuracy of and sign and
return, or request the correction of the Confirmation. Notwithstanding the
provisions of Section 9(e)(ii), each Confirmation in respect of a
Transaction which is confirmed by electronic messaging system, an exchange
of telexes or an exchange of facsimiles will be further evidenced by an
original Confirmation signed by the parties, however any failure to sign an
original Confirmation will not affect the validity or enforcement of any
Transaction.
(m) In Section 6(e), delete the sentence "The amount, if any, payable in
respect of an Early Termination Date and determined pursuant to this
Section will be subject to any Set-off.", at the end of the first
paragraph.
(n) In Section 12:
(i) insert the words "and settlement instructions requiring payment to an
entity other than the original counterparty" after the words "Section
5 or 6" in line 2.
(ii) 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
purposes 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 and in legible
form;"
(iii) 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."
(o) DEFINITIONS AND INTERPRETATION
(i) Section 14 of the Agreement is modified by inserting the following new
definitions:
"MASTER TRUST DEED" means the Master Trust Deed dated 4 July 1994 as
amended between Party B and the Manager.
"RELEVANT SWAP TRANSACTION" means in relation to the Class A Notes,
each Transaction which is a Currency Swap for Class A Notes only.
"SECURITY TRUST DEED" means the Security Trust Deed dated on or about
the date of this Agreement between Party B as issuing trustee, ME
Portfolio Management Limited as manager, Perpetual Trustee Company
Limited as security trustee and The Bank of New York as note trustee.
The definition of "Local Business Day" is replaced with the following:
"LOCAL BUSINESS DAY" has the same meaning as Business Day.
(ii) Each of the following expressions has the meaning given to them
in the Master Trust Deed and the Security Trust Deed (as the case
may be):
"CHARGED PROPERTY"
"CURRENCY SWAP"
"DESIGNATED RATING AGENCY"
"EXPENSE"
"EXTRAORDINARY RESOLUTION"
"NOTE TRUSTEE"
"NOTE TRUST DEED"
"OUTSTANDING PRINCIPAL BALANCE"
"PRIOR INTEREST"
"SECURED CREDITOR"
"SECURED DOCUMENT"
"SECURED MONEYS"
"SECURITISATION FUND"
"SUPPLEMENTARY BOND TERMS NOTICE"
"WILFUL DEFAULT"
The expressions "CLASS A NOTES", "CLASS A NOTEHOLDER", "INVESTED
AMOUNT" and "NOTES" have the meanings given to them in the
Supplementary Bond Terms Notice.
(iii) Unless defined in this Agreement, words and phrases defined in
the Master Trust Deed, the Security Trust Deed and the
Supplementary Bond Terms Notice (each in the form as at the date
of this Agreement) have the same meaning in this Agreement. Where
there is any inconsistency in a definition between this Agreement
(on the one hand) and the Master Trust Deed, Security Trust Deed
or the Supplementary Bond Terms Notice (on the other hand), this
Agreement prevails. Where words or phrases
used but not defined in this Agreement are defined in the Master
Trust Deed in relation to a Securitisation Fund (as defined in
the Master Trust Deed) such words or phrases are to be construed
in this Agreement, where necessary, as being used only in
relation to the Securitisation Fund (as defined in the
Supplementary Bond Terms Notice).
(iv) 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.
(p) MASTER TRUST DEED AND SECURITY TRUST DEED. The parties acknowledge for the
purposes of the Master Trust Deed and Security Trust Deed that:
(i) this Agreement and all Transactions under this Agreement are Secured
Documents;
(ii) Party A is a Secured Creditor; and
(iii) all of the obligations of Party B under this Agreement and any/all
Transactions under it are Secured Moneys.
(q) ISDA DEFINITIONS. This Agreement, each Confirmation and each Transaction
are subject to the 2000 ISDA Definitions (as published by the International
Swaps and Derivatives Association, Inc) (the "ISDA Definitions"), and will
be governed in all respects by any provisions set forth in the ISDA
Definitions, without regard to any amendments to the ISDA Definitions made
after the date of this Agreement. The ISDA Definitions are incorporated by
reference in, and shall be deemed to be part of, this Agreement and each
Confirmation.
(r) INCONSISTENCY. In the event of any inconsistency between any two or more of
the following documents in respect of a Transaction, they will take
precedence over each other in the following descending order in respect of
that Transaction:
(i) any Confirmation;
(ii) the Schedule to the Agreement;
(iii) the other provisions of the Agreement;
(iv) the ISDA Definitions.
(s) Any reference to a:
(i) "SWAP TRANSACTION" in the 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
ISDA Definitions.
(t) New Sections 15, 16 and 17 are inserted immediately after Section 14 as
follows:
"15. CAPACITY OF PARTY B AND THE MANAGER
(a) Party B enters into this Agreement only in its capacity as
trustee of the Securitisation Fund under the Master Trust Deed
and in no other capacity. A liability incurred by Party B 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 property of the Securitisation Fund 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) The parties other than Party B may not xxx Party B (in respect of
liabilities incurred by Party B in its capacity as trustee of the
Securitisation Fund) in any capacity other than as trustee of the
Securitisation Fund including seeking the appointment of a
receiver (except in relation to property of the Securitisation
Fund), a liquidator, an 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
property of the Securitisation Fund).
(c) The provisions of this Section 15 shall not apply to any
obligation or liability of Party B except to the extent that it
is not satisfied because under the Master Trust Deed or by
operation of law there is a reduction in the extent of Party B's
indemnification out of the assets of the Securitisation Fund, as
a result of Party B's fraud, negligence or Wilful Default
(d) It is acknowledged that the Manager is responsible under the
Master Trust Deed for performing a variety of obligations
relating to the Securitisation Fund, including under this
Agreement. 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,
negligence or Wilful Default of Party B for the purposes of
paragraph (c) of this Section 15 to the extent to which the act
or omission was caused or contributed to by any failure by the
Manager or any other person to fulfil its obligations relating to
the Securitisation Fund or by any other act or omission of the
Manager or any other person.
(e) Party B is not obliged to do or refrain from doing anything under
this Agreement (including incurring any liability) unless Party
B's liability is limited in the same manner set out in paragraphs
(a) to (c) of this Section 15.
16. REPLACEMENT CURRENCY SWAP
(a) If this Agreement or any Transaction under this Agreement which
is a currency swap is terminated prior to the day upon which the
Class A Notes are redeemed in full, Party B must, subject to
paragraph (b), at the direction of the Manager, enter into one or
more currency swaps which replace the Transactions under this
Agreement (collectively, a "REPLACEMENT CURRENCY SWAP") but only
under the following conditions:
(i) the amount payable under Section 6(e) (if any) by Party B to
Party A upon termination of this Agreement or any
Transaction will be paid in
full when due in accordance with the Supplementary Bond
Terms Notice and this Agreement;
(ii) the Designated Rating Agencies confirm in writing that the
entry into the Replacement Currency Swap by Party B will not
cause a reduction or withdrawal of the ratings of the Notes;
and
(iii) the liability of Party B under the Replacement
Currency Swap is limited to at least the same extent that
its liability is limited under that Transaction.
(b) If the conditions in Section 16(a) are satisfied, Party B must,
provided it is satisfied with the terms of the Replacement
Currency Swap, acting reasonably and considering the interests of
the Class A Noteholders, at the direction of the Manager, enter
into the Replacement Currency Swap and if the amount calculated
to be payable under Section 6(e) ("TOTAL SETTLEMENT AMOUNT") is
payable by Party B to Party A upon termination of the Transaction
referred to in Section 16(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 Total Settlement Amount to Party A, and to the extent
such premium is not greater than or equal to the Total Settlement
Amount, the balance may be satisfied by Party B as an Expense of
the Securitisation Fund.
(c) If Party B enters into a Replacement Currency Swap pursuant to
Section 16(a) and a Total Settlement Amount is payable by Party A
to Party B upon termination of the Transaction referred to in
Section 16(a), Party B must 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 obligations (if any) to an
upfront premium to the Replacement Currency Swap provider to
enter into the Replacement Currency Swap in satisfaction of and
to the extent of Party A's obligation to pay that party of the
amount payable under Section 6(e) to Party B.
17. SEGREGATION
The liability of Party B under this Agreement is several and is separate in
respect of each Relevant Swap Transaction. The failure of Party B to
perform its obligations in respect of any relevant Swap Transaction does
not release Party B from its obligations under this Agreement or under any
other Relevant Swap Transaction in respect of any other Class A Notes
issued by Party B. Nothing in this Agreement affects the respective
priority rankings of claims against the Charged Property under the Security
Trust Deed. Without limiting the generality of the foregoing, the
provisions of this Agreement have effect separately and severally in
respect of each Relevant Swap Transaction and are enforceable by or against
Party B as though a separate agreement applied between Party A, Party B and
the Manager for each Relevant Swap Transaction, so that (among other
things):
(i) this Agreement together with each Confirmation relating to a Relevant
Swap Transaction will form single separate agreement between Party A,
Party B and the Manager and references to the respective obligations
(including references to payment obligations generally and in the
context of provisions for the netting of payments and the calculation
of amounts due on early termination) of Party A, Party B and the
Manager shall be construed
accordingly as a several reference to each mutual set of obligations
arising under each such separate agreement between Party A, Party B
and the Manager;
(ii) representations made and agreements entered into by the parties under
this Agreement are made and entered into separately and severally in
respect of each Relevant Swap Transaction and may be enforced
separately and severally in respect of each Relevant Swap Transaction;
(iii) rights of termination, and obligations and entitlements consequent
upon termination, only accrue to Party A against Party B separately
and severally in respect of each Relevant Swap Transaction, and only
accrue to Party B against Party A separately and severally in respect
of each Relevant Swap Transaction; and
(iv) the occurrence of an Event of Default or Termination Event in respect
of a Relevant Swap Transaction does not in itself constitute an Event
of Default or Termination Event in respect of any other Relevant Swap
Transaction."
(u) TELEPHONE RECORDING. Each party:
(i) consents to the electronic recording of its telephone conversations
with the other party (or any of its associated persons) with or
without the use of an automated warning device;
(ii) acknowledges that such recordings and transcripts can be used as
evidence by another party in any dispute between them; and
(iii) acknowledges that no party is obligated to maintain copies of such
recordings and transcripts for the benefit of the other party.
(v) APPOINTMENT OF MANAGER. Party A acknowledges that under the Master Trust
Deed Party B has appointed the Manager as manager of the Securitisation
Fund with the powers set out in, and upon and subject to the terms of, the
Master Trust Deed. Accordingly, subject to the terms of the Master Trust
Deed, the Manager:
(i) may arrange, enter into, and monitor Transactions, execute
Confirmations and exercise all other rights and powers of Party B
under this Agreement; and
(ii) without limiting the generality of the foregoing, the Manager shall
issue and receive, on behalf of Party B all notices, Confirmations,
certificates and other communications to Party A under this Agreement.
(w) RATINGS DOWNGRADE
(i) In the event that the unsecured and unsubordinated debt obligations of
Party A (or any applicable assignee or its guarantor) shall have (1) a
short-term credit rating of less than A-1+ by S&P, or (2) a long-term
credit rating of less than A2 by Xxxxx'x and a short-term credit
rating of less than P-1 by Xxxxx'x, or (3) a long-term credit rating
of less than AA- by Fitch Ratings and a short-term credit rating of
less than F1+ by Fitch Ratings and Party B does not receive written
affirmation of the then current rating of the Notes; or
(ii) in the event that the Commonwealth of Australia's foreign currency
rating shall have a long-term credit rating of less than AA- by Fitch
Ratings and a short-term credit rating of less than F1+ by Fitch
Ratings and Party B does not receive written affirmation of the then
current rating of the Notes,
THEN Party A shall immediately notify the Designated Rating Agencies and
Party B and within 5 Local Business Days (or 30 Local Business Days if the
downgrade is to no less than A-1 (S&P short-term) and A3 (Xxxxx'x
long-term) and A- (Fitch Ratings long-term) and F1 (Fitch Ratings
short-term) of such downgrade (unless during this period, Party A and Party
B receive written confirmation from S&P, Xxxxx'x and Xxxxx Ratings that
such downgrade would not result in the Notes being downgraded) at its cost
either:
(A) if a downgrade in respect of either or each of Part 5(w)(i) or
Part 5(w)(ii) has occurred, put in place an appropriate
xxxx-to-market collateral agreement (consisting of either cash or
securities) which may be based either on S&P's New Interest Rate
and Currency Swap Criteria published in January 1999 (as may be
amended from time to time) or on any other agreement reached
between the parties, in support of its obligations under the
Agreement PROVIDED that Party A and Party B receive prior written
confirmation from S&P, Xxxxx'x and Xxxxx Ratings that the rating
assigned to the Notes then outstanding by S&P, Xxxxx'x and Fitch
Ratings is not adversely affected by the downgrade following such
collateral arrangements being put in place.
If collateral is lodged under this sub-paragraph (A), the parties
must execute an amending agreement incorporating into this
Agreement the 1995 ISDA Credit Support Annex (Bilateral Form -
Transfer), and until executed the 1995 ISDA Credit Support Annex
will be taken to supplement and form part of this Agreement and
any collateral lodged under this sub-paragraph (A) is subject to
its terms as if the Credit Support Annex were incorporated into
this Agreement (but without any Paragraph 11 other than as
necessary to give effect to the obligations described in this
sub-paragraph (A) prior to the lodgement of such collateral; or
(B) transfer all its rights and obligations with respect to this
Agreement to:
(i) if a downgrade in respect of Part 5(w)(i) alone has
occurred, a replacement third party whose unsecured and
unsubordinated debt obligations have (1) a short-term credit
rating of at least A-1+ by S&P, and (2) a long-term credit
rating of at least A2 by Xxxxx'x and a short-term credit
rating of at least P-1 by Xxxxx'x, and (3) a long-term
credit rating of at least AA- by Fitch Ratings and a
short-term credit rating of at least F1+ by Fitch Ratings;
or
(ii) if a downgrade in respect of Part 5(w)(ii) alone has
occurred, a replacement third party whose country of
domicile shall have a foreign currency rating assigned by
Fitch Ratings of at least AA- long-term and F1+ short-term,
PROVIDED that the replacement third party is acceptable to
each Designated Rating Agency; or
(iii) if each of the downgrades in respect of Part 5(w)(i) and
Part 5(w)(ii) have occurred, a replacement third party
whose:
(a) unsecured and unsubordinated debt obligations have (1)
a short-term credit rating of at least A-1+ by S&P, and
(2) a long-term credit rating of at least A2 by Xxxxx'x
and a short-term credit
rating of at least P-1 by Xxxxx'x, and (3) a long-term
credit rating of at least AA- by Fitch Ratings and a
short-term credit rating of at least F1+ by Fitch
Ratings; and
(b) country of domicile has a foreign currency rating
assigned by Fitch Ratings of at least AA- a long-term
and F1+ short-term; or
(C) procure that its obligations with respect to this Agreement are
guaranteed by:
(i) if a downgrade in respect of Part 5(w)(i) alone has
occurred, a replacement third party whose unsecured and
unsubordinated debt obligations have (1) a short-term credit
rating of at least A-1+ by S&P, and (2) a long-term credit
rating of at least A2 by Xxxxx'x and a short-term credit
rating of at least P-1 by Xxxxx'x, and (3) a long-term
credit rating of at least AA- by Fitch Ratings and a
short-term credit rating of at least F1+ by Fitch Ratings;
or
(ii) if a downgrade in respect of Part 5(w)(ii) alone has
occurred, a replacement third party whose country of
domicile shall have a foreign currency rating assigned by
Fitch Ratings of at least AA- long-term and F1+ short-term,
PROVIDED that the replacement third party is acceptable to
each Designated Rating Agency; or
(iii) if each of the downgrades in respect of Part 5(w)(i) and
Part 5(w)(ii) have occurred, a replacement third party
whose:
(a) unsecured and unsubordinated debt obligations have (1)
a short-term credit rating of at least A-1+ by S&P, and
(2) a long-term credit rating of at least A2 by Xxxxx'x
and a short-term credit rating of at least P-1 by
Xxxxx'x, and (3) a long-term credit rating of at least
AA- by Fitch Ratings and a short-term credit rating of
at least F1+ by Fitch Ratings; and
(b) country of domicile has a foreign currency rating
assigned by Fitch Ratings of at least AA- long-term and
F1+ short-term; or
(D) enter into such other arrangements which each Designated Rating
Agency has confirmed will not result in there being a withdrawal
or downgrade of any credit rating assigned by it to the Notes.
(iii) Where Party A transfers its rights and obligations to a replacement
counterparty in accordance with Part 5(w)(i)(B) or 5(w)(ii)(B), the
Trustee, at the direction of the Manager, and each other party to this
Agreement shall do all things reasonably necessary at the cost of
Party A to novate the relevant rights and obligations to the
replacement counterparty.
(iv) If, at any time, Party A's obligations under this Agreement are
transferred in accordance with Part 5(w)(i)(B) or 5(w)(ii)(B), Party A
shall be immediately entitled to any collateral which it has provided
under any collateral agreement contemplated by Part 5(w)(i)(A) or
5(w)(ii)(A) (less any amount withdrawn in accordance with
sub-paragraph (v) below).
(v) Party B may only make withdrawals from any account into which
collateral is provided by Party A (the COLLATERAL ACCOUNT) if directed
to do so by the Manager and then only for the purpose of:
(A) transferring obligations under this Agreement in accordance with
Part 5(w)(i)(B) or 5(w)(ii)(B) (including the costs of obtaining
a replacement counterparty);
(B) refunding to Party A any excess in the amount of any collateral
deposited to the Collateral Account over the amount Party A is
required to maintain under any collateral agreement contemplated
by Part 5(w)(i)(A) or 5(w)(ii)(A);
(C) withdrawing any amount which has been incorrectly deposited into
the Collateral Account;
(D) paying bank accounts debit tax or other equivalent Taxes payable
in respect of the Collateral Account; or
(E) funding the amount of any payment due to be made by Party A under
this Agreement following the failure by Party A to make that
payment.
The Manager must direct Party B to, and Party B must, refund or
pay to Party A the amount of any payment which may be made to
Party A under Part 5(w)(v)(B) or 5(w)(v)(C) as soon as such
refund or payment is possible.
(vi) All interest on the Collateral Account will accrue and be payable
monthly to Party A providing the amount deposited to the Collateral
Account is not less than the amount Party A is required to maintain
under the collateral agreement contemplated by Part 5(w)(i)(A) or
5(w)(ii)(A)."
(x) EXCHANGE CONTROLS
Section 5(b)(i) (ILLEGALITY) is amended by adding the following paragraph
at the end:-
"This sub-paragraph (i) does not apply to the imposition by the Australian
government or any agency of the Australian government of any exchange
control restrictions or prohibitions ("EXCHANGE CONTROLS")." For the
avoidance of doubt:
(A) exchange controls do not constitute an Illegality or other Termination
Event or an Event of Default under this Agreement, and do not entitle
a party to terminate a Transaction or otherwise refuse to make any
payments it is obliged to make under a Transaction: and
(B) if and for so long as exchange controls are imposed, delivery by Party
B of Australian dollar amounts required to be paid by it under any
relevant Confirmation to the bank account in Australia notified in
writing by Party A to Party B from time to time specified in that
Confirmation will constitute proper payment of those amounts by Party
B and Party A's obligations under this Agreement will be unaffected by
any such exchange controls."
(y) Add a new Section 6(aa) as follows:
"(aa) RESTRICTED TERMINATION RIGHTS
(i) TERMINATION BY PARTY B: Party B must not designate an Early
Termination Date without the prior written consent of the Note
Trustee.
(ii) CONSULTATION REGARDING TIMING: Each party may only designate an
Early Termination Date following prior consultation with the
other parties as to the
timing of the Early Termination Date. Subject to Party B's duties
under the Master Trust Deed and the Supplementary Bond Terms
Notice, Party B may exercise its rights only on the instructions
of the Note Trustee and only after consultation between Party A,
Party B, the Manager and the Note Trustee.
(iii) PARTY A'S LIMITED RIGHTS IN RELATION TO A TAX EVENT:
(a) Notwithstanding Part 1(c)(ii) of this Schedule, Party A may
designate an Early Termination Date if it is an Affected
Party following a Tax Event but only if the Note Trustee has
confirmed that the Class A Notes will be redeemed at the
full amount of the Invested Amount (or, if the Class A
Noteholders by Extraordinary Resolution have so agreed; at a
lesser amount) together with accrued interest to (but
excluding) the date of the redemption.
(b) If a Tax Event occurs where Party A is the Affected Party
and Party A is unable to transfer all its rights and
obligations under this Agreement and each Transaction to an
Affiliate pursuant to Section 6(b)(ii), Party A may, at its
cost, transfer all its rights, powers and privileges and all
its unperformed and future obligations under this Agreement
and each Transaction to any person provided that, each
Designated Rating Agency has confirmed in writing that the
transfer will not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them to
the relevant Class A Notes.
(iv) TRANSFER WHERE PARTY B DOES NOT GROSS-UP: If any payment by Party
B to Party A under this Agreement is, or is likely to be, made
subject to any deduction or withholding on account of Tax, Party
B will endeavour to procure the substitution as principal obligor
under this Agreement in respect of each Affected Transaction of a
replacement Party B incorporated in another jurisdiction approved
by Party A and the Note Trustee and in respect of which the
Designated Rating Agencies confirm that the substitution will not
cause a reduction or withdrawal of the rating of the Class A
Notes."
(z) TRANSFER. A new paragraph (c) is added to Section 7 as follows:
"a party may make such a transfer under, or in accordance with, this
Agreement."
and the full stop at the end of paragraph (b) is replaced with "; and".
(aa) PARTY B'S PAYMENT INSTRUCTIONS. Party B irrevocably authorises and
instructs Party A to make payment of:
(i) the "Initial Exchange Amount" payable by Party A under a currency swap
transaction by paying that amount direct to the account notified in
writing by Party B to Party A for that purpose; and
(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. Party A is entitled to rely on any such
notice.
(ab) NO AMENDMENT. Each of Party B and the Manager agrees that it will not
consent to any amendment to any provision in any Transaction Document
dealing with the ranking, priority or entitlement of Party A in respect of
any security or moneys without the prior written consent of Party A.
IN WITNESS WHEREOF the parties have executed this Agreement on the respective
dates and specified below with effect from the date specified on the first page
of this Agreement.
SIGNED for
WESTPAC BANKING CORPORATION
ABN 33 007 457 141 (PARTY A)
by its attorney in
the presence of:
------------------------------------------------ --------------------------------------------------
Witness Attorney
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED for
PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000 (PARTY B)
by its attorney in
the presence of:
------------------------------------------------ --------------------------------------------------
Witness Attorney
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134 (MANAGER)
for the SMHL Global Fund No. 5
by its attorney in
the presence of:
------------------------------------------------ --------------------------------------------------
Witness Attorney
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
