ISDA
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of __________ [o]
between
[o] ("PARTY A")
AND
PERPETUAL LIMITED (ABN 86 000 000 000) IN ITS CAPACITY AS
TRUSTEE OF THE SECURITISATION FUND ("PARTY B")
AND
ME PORTFOLIO MANAGEMENT LIMITED (ABN 79 005 964 134) IN ITS CAPACITY
AS MANAGER OF THE SECURITISATION FUND ("MANAGER")
PART 1
TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" is not applicable in relation to Party A and Party B.
(b) "SPECIFIED TRANSACTION" will not apply.
(i) (i) Sections 5(a)(ii), (iii), (iv), (v), (vi), (viii), 5(b)(iii) and
(iv) will not apply to Party A or Party B.
(ii) Replace Section 5(a)(i) with:
"(i) FAILURE TO PAY OR DELIVER. Failure by the party to make when
due any payment under this Agreement or delivery under Section
2(a)(i) or 2(e) required to be made by it if such failure is not
remedied at or before 10:00am on the tenth 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 1(j) of this Schedule).
27
(c) The "BANKRUPTCY" provisions of Section 5(a)(vii) are replaced by "An
Insolvency Event (as defined in 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).".
However, the parties agree for the purposes of this Agreement that the
occurrence of an Insolvency Event (as defined in the Security Trust Deed)
in respect of Party B in its personal capacity will not constitute an
Event of Default provided that:
(i) within 30 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;
(ii) the Rating Agencies confirm that the novation will not cause a
reduction or withdrawal of the rating of the Notes; and
(iii) Party A, Party B and the Manager agree to execute such a novation
agreement in a form agreed between the parties.
(d) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a):
will not apply to Party A; and
will not apply to Party B.
(e) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(f) "TERMINATION CURRENCY" means United States Dollars in respect of a
Transaction which relates to United States Dollars and Euros in respect of
a Transaction which relates to Euros 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.
(g) "ADDITIONAL TERMINATION EVENT" will apply. The following shall constitute
an Additional Termination Event:
(i) With respect to Class A1 Notes only, Party B becomes obliged to make
a withholding or deduction in respect of any Class A1 Notes and the
Class A1 Notes are redeemed as a result.
For the purposes of this Additional Termination Event, Party B is
the Affected Party.
Notwithstanding Section 6(b)(iv) of the Agreement, if this
Additional Termination Event occurs, 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 (in each case in
relation to the Class A1 Notes only) provided that such Early
Termination Date must not be earlier than the time of redemption of
the Class A1 Notes.
(ii) With respect to Class A2 Notes only, Party B becomes obliged to make
a withholding or deduction in respect of any Class A2 Notes and the
Class A2 Notes are redeemed as a result.
For the purposes of this Additional Termination Event, Party B is
the Affected Party.
Notwithstanding Section 6(b)(iv) of the Agreement, if this
Additional Termination Event occurs, 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 (in each case in
relation to the Class A2 Notes only) provided that such Early
Termination Date must not be earlier than the time of redemption of
the Class A2 Notes.
28
(iii) 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.
For the purposes of this Additional Termination Event, Party B is
the Affected Party.
(iv) Party A fails to comply with its obligations under Part 5(x). For
the purposes of this Additional Termination Event, Party A is the
Affected Party.
Notwithstanding Section 6(b)(iv) of the Agreement, if this
Additional Termination Event occurs, 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.
(v) Party A fails to comply with its obligations under Part 5(cc). For
the purposes of this Additional Termination Event, Party A is the
Affected Party.
Notwithstanding Section 6(b)(iv) of the Agreement, if this
Additional Termination Event occurs, 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.
(h) 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 Rating Agencies confirm that the transfer will not
cause a reduction or withdrawal of the ratings for the Notes if any)".
(i) RESTRICTED TERMINATION RIGHTS
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 (if applicable).
(ii) CONSULTATION: Each party may only designate an Early
Termination Date following prior consultation with the other
party as to the timing of the Early Termination Date. Subject
to its duties under the Master Trust Deed and the
Supplementary Bond Terms Notice, Party B may exercise its
rights only after consultation with and on the instructions of
the Note Trustee and only after consultation between Party A
and the Note Trustee (if applicable). Party B may only
designate an Early Termination Date at the direction of the
Manager.
(iii) PARTY A'S LIMITED RIGHTS IN RELATION TO TAX EVENT:
(a) Notwithstanding Part 1(b)(iii) of the Schedule to this
Agreement, Party A may designate an Early Termination
Date if it is an Affected Party following a Tax Event
but only if all 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:
29
(A) each 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 the them to the relevant Class A
Notes; and
(B) that person has a long term credit rating assigned
by each of the Rating Agencies of at least the
long term credit rating assigned by that Rating
Agency to Party A as at the date of this
Agreement.
(iv) TRANSFER WHERE PARTY B DOES NOT GROSS-UP: If any payment by
Party B to Party A under this Agreement is, or is likely to
be, made subject to any deduction or withholding on account of
Tax, Party B will endeavour to procure the substitution of
Party B as principal obligor under this Agreement in respect
of each Affected Transaction with an Affiliate of Party B
incorporated in another jurisdiction approved by Party A and
the Note Trustee and in respect of which the Rating Agencies
confirm that the substitution will not cause a reduction or
withdrawal of the rating of Class A Notes and in respect of
which a deduction or withholding on account of Tax would not
be necessary".
30
PART 2
TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS
For the purpose of Section 3(e) of this Agreement, Party A and Party B
will make the following representations:
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 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);
(ii) the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement; and
(iii) the accuracy of any representation made by the other party pursuant
to Section 3(f) of this Agreement;
PROVIDED that it shall not be a breach of this representation where
reliance is placed on clause (i) 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 TAX REPRESENTATIONS:
For the purpose of Section 3(f) of this Agreement:
(i) Party A represents that:
(A) It is a "foreign person" within the meaning of the applicable
U.S. Treasury Regulations concerning information reporting and
backup withholding tax (as in effect on January 1, 2001),
unless Party A provides written notice to Party B that it is
no longer a foreign person. In respect of each Transaction it
enters into through an office or discretionary agent in the
United States or which otherwise is allocated for United
States federal income tax purposes to such United States trade
or business, each payment received or to be received by it
under such Transaction will be effectively connected with its
conduct of a trade or business in the United States.
(B) In respect of all Transactions (other than those described in
(a) above), no payment received or to be received by it in
connection with this Agreement is attributable to a trade or
business carried on by it through a permanent establishment in
the United States.
(ii) Party B represents that it is an Australian resident and does not
derive the payments under this Agreement in part or in 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 non-US person acting out of a non-US office
or branch.
(iii) The Manager represents that it is an Australian resident and does
not derive the payments under this Agreement in part or in whole in
carrying on business in a country outside Australia at or through a
permanent establishment of itself in that country. The Manager
further represents that it is a non-US branch of a non-US person for
United States tax purposes.
31
PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purposes of Section 4(a)(i) and (ii) of this Agreement each party
further agrees to deliver the following documents as applicable in accordance
with the following:
------------------------ --------------------------------------- ------------------------------ ---------------------
PARTY REQUIRED TO COVERED BY SECTION
DELIVER DOCUMENT DATE BY WHICH TO BE DELIVERED 3(D) REPRESENTATIONS
------------------------ --------------------------------------- ------------------------------ ---------------------
Party A, Party B and A list of authorised signatories for Yes
the Manager the party and evidence satisfactory On execution and delivery of
in form and substance to the other this Agreement or any
parties of the authority of the relevant Confirmation and at
authorised signatories of the party any time on the request of
to execute this Agreement and each the other party.
confirmation on behalf of each
relevant party.
------------------------ --------------------------------------- ------------------------------ ---------------------
Party A, Party B and As reasonably required by any other Upon reasonable request. Yes
the Manager party any document or certificate in
connection with its obligations to make
a payment 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
that would reduce the rate at which the
deduction or withholding for or on
account of Tax is applied to that
payment (including, without limitation,
any United States Form W-8BEN or other
relevant United States tax form).
------------------------ --------------------------------------- ------------------------------ ---------------------
Party A The financial data relating to Party If Party B or the Manager Yes
A required to be disclosed by the notifies Party A that the
Manager in the Manager's reasonable significance percentage as
judgment pursuant to Item 1115(b)(1) computed by the Manager in
of Regulation AB. accordance with Regulation
AB is or becomes 10% or
greater, in accordance with
Part 5(x).
------------------------ --------------------------------------- ------------------------------ ---------------------
Party A The financial statements relating to If Party B or the Manager Yes
Party A required to be disclosed by notifies Party A that the
the Manager in the Manager's significance percentage as
reasonable judgment pursuant to Item computed by the Manager in
1115(b)(2) of Regulation AB. accordance with Regulation
AB is or becomes 20% or
greater, in accordance with
Part 5(x).
------------------------ --------------------------------------- ------------------------------ ---------------------
Party A A certificate of an authorised person At the execution of this Yes
of Party A certifying that the Agreement and thereafter
information provided by Party A to upon the provision of any
the Manager for use in a prospectus financial data or financial
is true and accurate in all material statements as may be
respects. required above.
------------------------ --------------------------------------- ------------------------------ ---------------------
Party B and the Manager Copies of any reports or accounts Upon reasonable request by Yes
relating to the Securitisation Fund Party A subject to not being
that are produced for (a) obliged to deliver any
distribution to the investors in the document if to do so would
Class A Notes, or (b) presentation to breach or infringe any law
the Board of Directors of the Manager or legally binding
and such other information in the obligation or restraint.
Manager's control regarding the
financial condition and business
operations of the Securitisation Fund
as Party A may reasonably require.
32
------------------------ --------------------------------------- ------------------------------ ---------------------
PARTY REQUIRED TO COVERED BY SECTION
DELIVER DOCUMENT DATE BY WHICH TO BE DELIVERED 3(D) REPRESENTATIONS
------------------------ --------------------------------------- ------------------------------ ---------------------
Party B and the Manager Legal opinions as to the validity and Promptly after entering into Yes
enforceability of the obligations of this Agreement, in the form
Party B and the Manager under this previously agreed with the
Agreement, the Master Trust Deed, the other parties.
Note Trust Deed, the Security Trust
Deed and the Class A Notes in form
and substance and issued by legal
counsel reasonably acceptable to
Party A.
------------------------ --------------------------------------- ------------------------------ ---------------------
Manager Copies of the Master Trust Deed, the On execution and delivery of Yes
Note Trust Deed, the Supplementary this Agreement.
Bond Terms Notice and the Security
Trust Deed certified to be true
copies by two authorised signatories
of the Manager.
------------------------ --------------------------------------- ------------------------------ ---------------------
Manager A copy of any document amending or Promptly upon any such Yes
varying the terms of the Master Trust document becoming effective
Deed, the Security Trust Deed, the in accordance with its terms.
Note Trust Deed or the Supplementary
Bond Terms Notice certified to be a
true copy by two authorised
signatories of the Manager.
------------------------ --------------------------------------- ------------------------------ ---------------------
Party A A legal opinion by Party A's internal Promptly after entering into Yes
counsel as previously provided to the this Agreement.
Rating Agencies.
------------------------ --------------------------------------- ------------------------------ ---------------------
33
PART 4
MISCELLANEOUS
(a) ADDRESS FOR NOTICES. For the purpose of Section 12(a) of this Agreement:
(i) All notices to Party A under Sections 5 or 6 of this Agreement
(other than Section 5(a)(i)) shall be sent to:
[o]
Attention: [o]
Telephone No: [o]
Facsimile No: [o]
All other notices to Party A shall be sent directly to the Office
through which Party A is acting for the relevant Transaction, using
the address and contact particulars specified in the Confirmation of
that Transaction or otherwise notified.
(ii) ADDRESSES FOR NOTICES TO PARTY B:
Xxxxx 00
000 Xxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Attention: [o]
Telephone: [o]
Facsimile: [o]
ADDRESS FOR NOTICES TO MANAGER:
Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Xxxxxxxxx
Attention: Settlements Officer
Telephone: (000) 0000 0000
Facsimile: (000) 0000 0000
(b) PROCESS AGENT. For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Nil.
Party B appoints as its Process Agent: Nil.
(c) OFFICES. The provisions of Section 10(a) will not apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purposes of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
34
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
(i) In relation to Party A: Nil
(ii) In relation to Party B: Security Trust Deed.
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means:
(i) In relation to Party A: Nil.
(ii) In relation to Party B: Nil
(h) GOVERNING LAW. This Agreement and each Confirmation will be governed by
and construed in accordance with New South Wales law and each party hereby
submits to the non-exclusive jurisdiction of the New South Wales courts
and courts of appeal from them.
Section 13(b)(i) is deleted and replaced with the following:
"(i) submits to the non-exclusive jurisdiction of the courts of New South
Wales and courts of appeal from them and a reference in section
13(b)(ii) to "such court" is a reference to those courts".
(i) NETTING OF PAYMENTS. Sub-paragraph (ii) of Section 2(c) of this Agreement
will not apply in respect of all Transactions.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. For the purposes of Section 3(c), each of Party A and Party B
is deemed not to have any Affiliates.
35
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), after "freely transferable funds" add "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) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply to a
payment or delivery due to be made to a party if it has satisfied
all its payment and delivery obligations under Section 2(a)(i) of
this Agreement and has no future payment or delivery obligations,
whether absolute or contingent under Section 2(a)(i).
(v) Where:
(1) payments are due pursuant to Section 2(a)(i) by Party A to
Party B (the "PARTY A PAYMENT") and by Party B to Party A (the
"PARTY B PAYMENT") on the same day; and
(2) the Security Trust Deed applicable to Party B's obligations
and entitlement referred to in Section 2(a)(v)(1) has become,
and remains at that time, enforceable,
then Party A's obligation to make the Party A Payment to Party B
shall be subject to the condition precedent (which shall be an
"applicable condition precedent" for the purpose of Section
2(a)(iii)(3)) that Party A first receives the Party B Payment or
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 the end of Section 2(b):
"Each new account so designated must be in the 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) ADDITIONAL REPRESENTATIONS. In Section 3:
(i) add the following in section 3(a)(v) after the words "creditors
rights generally":
"(including in the case of a party being an ADI (as that term is
defined in the Reserve Bank Xxx 0000 (Cth)), sections 11F and 13A(3)
of the Banking Xxx 0000 (Cth) or any other analogous provision under
any law applicable to a party)".
36
(ii) add the following immediately after paragraph (f):
"(g) NON ASSIGNMENT. It has not assigned (whether absolutely, in
equity or otherwise) or declared any trust over any of its
rights under any Transaction (other than, in respect of Party
B, the Securitisation Fund created pursuant to the Master
Trust Deed) and has not given any charge, in the case of Party
A, over its rights under any Transaction and, in the case of
Party B, over assets of the Securitisation Fund (other than as
provided in the Security Trust Deed)."
(h) Party B also represents to Party A (which representations will be deemed
to be repeated by Party B on each date on which a Transaction is entered
into) that:
(i) SECURITISATION FUND VALIDITY CREATED. The Securitisation Fund has
been validly created and is in existence at the date of this
Agreement and each Transaction.
(ii) SOLE SECURITISATION FUND. Party B 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 Party B and to
Party B's knowledge no resolution has been passed, or direction or
notice has been given, removing Party B as trustee of the
Securitisation Fund.
(iv) POWER. Party B has power under the Master Trust Deed to enter into
this Agreement and the Security Trust Deed in its capacity as
trustee of the Securitisation Fund.
(v) GOOD TITLE. Party B 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
save for the Prior Interest.
(vi) INDEMNITY. Party B has not committed any fraud, negligence or breach
of trust which would prejudice its right of indemnity out of the
Securitisation Fund.
(i) In Section 4 add a new paragraph as follows:
"(f) CONTRACTING AS PRINCIPAL. Party A will enter into all Transactions
as principal and not otherwise and Party B will enter into all
Transactions in its capacity as trustee of the Securitisation Fund
and not otherwise."
(j) In the third line of Section 3(c), insert "materially" before the word
"affect".
(k) In Section 6(d)(i), in the last sentence, 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 such Confirmation. 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.
37
(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) Section 12 is amended as follows:
(i) In Section 12(a), insert "and settlement instructions requiring
payment to an entity other than the original counterparty" after
"Section 5 or 6" in line 2.
(ii) Section 12(a)(iii) is replaced with:
"(iii) if sent by facsimile transmission, on the date a transmission
report is produced by the machine from which the facsimile was
sent which indicates that the facsimile was sent in its
entirety to the facsimile number of the recipient notified for
the purpose of this Section, unless the recipient notifies the
sender within one Local Business Day of the facsimile being
sent that the facsimile was not received in its entirety and
in legible form".
(o) Definitions and interpretation.
(i) Section 14 of the Agreement is modified by inserting the following
new definitions:
"COMMISSION" means the United States Securities and Exchange
Commission.
"EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended.
"MASTER TRUST DEED" means the Master Trust Deed dated 4 July 1994
(as amended and restated) made between the Manager (formerly called
Superannuation Members' Home Loans Limited) as manager and Party B
(formerly called Perpetual Trustees Australia Limited) as trustee,
pursuant to which the trust funds, collectively known as
"Superannuation Members' Home Loans Trusts" are constituted,
including the Securitisation Fund.
"RATING AGENCY CONFIRMATION" means, at any time, a confirmation from
each Rating Agency that there will not be a downgrade or withdrawal
of the rating of any of the Notes at that time.
"REGULATION AB" means Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. sections 229.1100-229.1123 as may be
amended from time to time and subject to such clarification and
interpretation as have been provided by the Commission in the
adopting release (Asset Backed Securities, Securities Act Release
No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7 2005)) or by the
staff of the Commission or as may be provided by the Commission or
its staff from time to time.
"RELEVANT SWAP TRANSACTION" means in relation to the Class A Notes,
each Transaction which is a Currency Swap for Class A Notes only.
"SECURITISATION FUND" means SMHL Global Fund No. [o].
"SECURITY TRUST DEED" means the Security Trust Deed dated [o]
between Party B, the Manager, the Security Trustee and the Note
Trustee.
"SIGNIFICANCE PERCENTAGE" has the meaning given to it in Item 1115
of Regulation AB.
"SWAP FINANCIAL DISCLOSURE" means, if the Manager determines
reasonably and in good faith that the significance percentage of
this Agreement is or has become:
(a) 10% or more, the information set forth in Item 1115(b)(1) of
Regulation AB; or
(b) 20% or more, the information set forth in Item 1115(b)(2) of
Regulation AB.
38
"SWAP FINANCIAL DISCLOSURE REQUEST" means a request by the Manager
or Party B for Party A to provide the Swap Financial Disclosure
pursuant to Part 5(cc)(iii) of the Schedule to this Agreement.
"WILFUL DEFAULT" in relation to Party B means a wilful default of
the Master Trust Deed or the Security Trust Deed by Party B:
(a) other than a default which:
(A) arises out of a breach of a Transaction Document by a
person other than Party B;
(B) arises because some other act or omission is a
precondition to the relevant act or omission of Party B,
and that other act or omission does not occur;
(C) is in accordance with a lawful court order or direction
or is required by law; or
(D) is in accordance with an instruction or direction given
to it by any person in circumstances where that person
is authorised to do so by any Transaction Document; and
(b) in circumstances where had it not committed that default it
would have been entitled to recoupment, reimbursement or a
right of indemnity for its costs and expenses (if any)
incurred in complying with the Master Trust Deed or the
Security Trust Deed from the Securitisation Fund.
(ii) Each of the following expressions has the meanings given to them in
the Master Trust Deed and the Security Trust Deed (as the case may
be) provided that in the event of any inconsistency those in the
Security Trust Deed will prevail:
"CHARGED PROPERTY"
"CURRENCY SWAP"
"EXPENSE"
"EXTRAORDINARY RESOLUTION"
"NOTE TRUSTEE"
"NOTE TRUST DEED"
"OUTSTANDING PRINCIPAL BALANCE"
"PAYING AGENT"
"PRINCIPAL PAYING AGENT"
"PRIOR INTEREST"
"RATING AGENCY"
"SECURED CREDITOR"
"SECURED DOCUMENT"
"SECURED MONEYS"
"SECURITY TRUSTEE"
"SECURITISATION FUND"
"SUPPLEMENTARY BOND TERMS NOTICE"
"TRANSACTION DOCUMENT"
39
(iii) The expressions "CLASS A NOTES", "CLASS A NOTEHOLDER", "INVESTED
AMOUNT" and "NOTES" have the meanings given to them in the
Supplementary Bond Terms Notice.
(iv) Where in this Agreement a word or expression is defined by reference
to 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 will be of no effect for the
purposes of this Agreement unless and until the amendment is
consented to by all 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; and
(ii) Party A is a Secured Creditor; and
(iii) all of the obligations of Party B under this Agreement and all
Transactions under it are Secured Moneys and
(iv) this Agreement is a "Currency Swap" and a "Transaction Document" and
Party A is a "Currency Swap Provider" in respect of the
Securitisation Fund.
(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, they shall take precedence over each other in
the following descending order:
(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 purposes of interpreting
the ISDA Definitions.
(t) New Sections 15, 16 and 17 are added 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 assets of the
Securitisation Fund which are available to satisfy the right
of Party B to be exonerated or indemnified for the liability.
This limitation of Party B's liability applies despite any
other provision of this Agreement 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.
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(b) The parties other than Party B may not xxx Party B in any
capacity other than as trustee of the Securitisation Fund or
seek the appointment of a receiver (except in relation to the
assets of the Securitisation Fund), or 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 assets of the
Securitisation Fund).
(c) The provisions of this Section 15 shall not apply to any
obligation or liability of Party B to the extent that it is
not satisfied because under the Master Trust Deed or any other
Transaction Document or by operation of law there is a
reduction in the extent of Party B's indemnification or
exoneration out of the assets of the 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 a
representation or warranty under this Agreement) will be
considered fraud, negligence or 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 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 as
set out in paragraphs (b) to (d) of this Section 15.
(f) No attorney, agent, receiver or receiver and manager appointed
in accordance with this Agreement has authority to act on
behalf of Party B in a way which exposes Party B to any
personal liability and no act or omission of any such person
will be considered fraud, negligence or Wilful Default of
Party B for the purpose of paragraph (c) of this Section 15.
(g) Subject to the provisions related to deemed receipt of notices
and other communications under this Agreement, Party B will
only be considered to have knowledge or awareness of, or
notice of, any thing, or grounds to believe any thing, by
virtue of the officers of Party B having day to day
responsibility for the administration or management of Party
B's obligations in relation to the Securitisation Fund 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). In addition,
notice, knowledge or awareness of an Event of Default or other
default (howsoever described) means notice, knowledge or
awareness of the occurrence of the events or circumstances
constituting that Event of Default or other default (as the
case may be).
(h) In this Agreement, except where expressly provided to the
contrary:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the Securitisation Fund only, and
in no other capacity; and
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(ii) a reference to the undertaking, assets, business, money
or any other thing of or in relation to Party B is a
reference to such undertaking, assets, business, money
or other thing of or in relation to Party B only in its
capacity as trustee of the Securitisation Fund, and in
no other capacity.
(i) The provision of this Section 15:
(i) are paramount and apply regardless of any other
provision of this Agreement or any other instrument,
even a provision which seeks to apply regardless of any
other provision;
(ii) survive and endure beyond any termination of this
Agreement for any reason; and
(iii) are not severable from this Agreement.
16. Replacement Swap Transaction
(a) If any Transaction under this Agreement is terminated, Party B
must, subject to paragraph (b), at the direction of the
Manager, enter into one or more swaps which replace those
Transactions (collectively a "REPLACEMENT SWAP TRANSACTION")
but only on the following conditions:
(i) the amount payable under Section 6(e) (if any) by Party
B to Party A upon termination of any Transactions will
be paid in full when due in accordance with the
Supplementary Bond Terms Notice and this Agreement;
(ii) the Rating Agencies confirm that the Replacement Swap
Transaction will not cause a reduction or withdrawal of
the ratings of the Notes; and
(iii) the liability of Party B under the Replacement Swap
Transaction is limited to at least the same extent that
its liability is limited under this Agreement.
(b) If the conditions in Section 16(a) are satisfied, Party B
must, provided it is satisfied with the terms of the
Replacement Swap Transaction, acting reasonably and
considering the interests of Class A Noteholders, at the
direction of the Manager, enter into the Replacement Swap
Transaction and if it does it must direct the Replacement Swap
Transaction provider to pay any upfront premium to enter into
the Replacement Swap Transaction due to Party B directly to
Party A in satisfaction of and to the extent of Party B's
obligation to pay an amount to Party A as referred to in
Section 16(a)(i) and to the extent that such premium is not
greater than or equal to the amount referred to in Section
16(a)(i), the balance must be satisfied by Party B as an
Expense of the Securitisation Fund.
(c) If Party B enters into a Replacement Swap Transaction pursuant
to paragraph (a), Party B must direct Party A to pay any
amount payable under Section 6(e) by Party A to Party B on
termination of this Agreement or any Transaction directly to
the Replacement Swap Transaction provider as payment of and to
the extent of any premium payable by Party B to enter into the
Replacement Swap Transaction, in satisfaction of and to the
extent of Party A's obligation to pay that part 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):
42
(i) this Agreement together with each Confirmation relating to a
Relevant Swap Transaction will form a 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 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 recording of the telephone conversations of trading
and marketing personnel of that party and its Affiliates in
connection with this Agreement or any potential transaction; and
(ii) agrees to obtain any necessary consent of, and give notice of such
recording to, such personnel of it and its Affiliates; and
(iii) will provide transcripts of such recordings (if any) upon reasonable
request by another party; and
(iv) acknowledges that such recordings and transcripts can be used as
evidence by another party in any dispute between them.
(v) 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 the 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 it has made its
own independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based upon
its own judgment and in the case of Party B, on the judgment of the
Manager, and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or oral)
of the other party as investment advice or as a recommendation to
enter into that Transaction; it being understood that information
and explanations related to the terms and conditions of a
Transaction shall not be considered investment advice or a
recommendation to enter into that Transaction. No communication
(written or oral) received from the other party shall be deemed to
be an assurance or guarantee as to the expected results of that
Transaction.
43
(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.
(w) 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 or by Party A under this
Agreement.
Subject to Section 15, Party B agrees that it is bound by anything
the Manager does under this Part 5(w).
(x) 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 long term credit rating of less than AA- by S&P and 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 Moody's and a short term
credit rating of less than P-1 by Moody's, or (3) a long term credit
rating of less than BBB+ by Fitch Ratings and a short term credit
rating of less than F2 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 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- (S&P long term) and A-1 (S&P short
term) and A3 (Moody's long term) and A+ (Fitch long term) and F1
(Fitch short term)) of such downgrade (unless during this period,
Party A and Party B receive written confirmation from S&P, Fitch
Ratings and Moody's that such downgrade would not result in the
Notes either being downgraded or placed under review for possible
downgrade) at its cost either:
(A) put in place an appropriate xxxx-to-market collateral
agreement (consisting of either cash or securities) which is
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), Fitch Ratings' Counterparty Risk in Structured
Finance Transactions: Swap Criteria published on 13 September
2004 (as amended from time to time) or on any other agreement
reached between the parties (whichever of these has the
highest ratings criteria), in support of its obligations under
the Agreement, PROVIDED that Party A and Party B receive prior
written confirmation from S&P, Fitch Ratings and Moody's that
the rating assigned to the Notes then outstanding by S&P,
Fitch Ratings and Xxxxx'x is not adversely affected by the
downgrade following such collateral arrangements being put in
place and PROVIDED FURTHER that this Part 5(x)(i)(A) will not
apply where the long term credit rating falls to BBB+ (or
less) by Fitch Ratings and the short term credit rating falls
to F2 (or less) by Fitch Ratings;
44
(B) transfer all its rights and obligations with respect to this
Agreement to a replacement third party whose unsecured and
unsubordinated debt obligations have (1) a long term credit
rating of at least AA- by S&P and a short-term credit rating
of at least A-1+ by S&P, or (2) a long term credit rating of
at least A2 by Moody's and a short term credit rating of at
least P-1 by Moody's, or (3) a long term credit rating of at
least A+ by Fitch Ratings and a short term credit rating of at
least F1 by Fitch Ratings;
(C) procure that its obligations with respect to this Agreement
are guaranteed by a third party resident outside Australia
whose unsecured and unsubordinated debt obligations have (1) a
long term credit rating of at least AA- by S&P and a
short-term credit rating of at least A-1+ by S&P, or (2) a
long term credit rating of at least A2 by Moody's and a short
term credit rating of at least P-1 by Moody's, or (3) a long
term credit rating of at least A+ by Fitch Ratings and a short
term credit rating of at least F1 by Fitch Ratings; or
(D) enter into such other arrangements which each Rating Agency
has confirmed will result in there not being a withdrawal or
downgrade of any credit rating assigned by it to the Notes.
(ii) Where Party A transfers its rights and obligations to a replacement
counterparty in accordance with Part 5(x)(i)(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.
(iii) If, at any time, Party A's obligations under this Agreement are
transferred in accordance with Part 5(x)(i)(B), Party A shall be
immediately entitled to any collateral which it has provided under
any collateral agreement contemplated by Part 5(x)(i)(A) (less any
amount withdrawn in accordance with Part 5(x)(iv)).
(iv) 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(x)(i)(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(x)(i)(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;
(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; or
(F) making interest payments to Party A as contemplated by Part
5(x)(v).
45
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 (B), (C) or (F) above as soon as such refund
or payment is possible.
(v) 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(x)(i)(A).
(y) 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 either party of Australian dollar amounts required to be
paid by it under any relevant Confirmation to the bank account
in Australia notified in writing by a party (the "PAYER") to
the other party from time to time specified in that
Confirmation will constitute proper payment of those amounts
by that other party and the payer's obligations under this
Agreement will be unaffected by any such exchange controls."
(z) TRANSFER
A new paragraph (c) is added to Section 7 as follows:
"a party may make such a transfer in accordance with this Agreement
or the Security Trust Deed".
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 (as defined in a Confirmation) 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 relevant Paying Agent to the
account notified in writing by the relevant Paying Agent to Party A
for that purpose. Party A is entitled to rely on any such notice.
(bb) NO AMENDMENT
(i) 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.
46
(ii) No amendment may be made to this agreement unless each of S&P,
Xxxxx'x and Xxxxx Ratings have confirmed in writing that such
proposed amendment will not result in a reduction or withdrawal of
the then rating of any outstanding Notes.
(cc) REGULATION AB FINANCIAL DISCLOSURE
(i) Party A acknowledges that for so long as there are reporting
obligations with respect to any Transaction under this Agreement
under Regulation AB, the Manager is required under Regulation AB to
disclose certain information set forth in Regulation AB regarding
Party A or its group of affiliated entities, if applicable,
depending on the aggregate significance percentage of this Agreement
and any other derivative contracts between Party A or its group of
affiliated entities, if applicable, and Party B, as calculated from
time to time in accordance with Item 1115 of Regulation AB.
(ii) If the Manger determines, reasonably and in good faith, that the
significance percentage of this Agreement is or has become:
(A) 10% or more; or
(B) 20% or more,
then on any Local Business Day after the date of such determination,
Party B or the Manager may request Party A to provide the relevant
Swap Financial Disclosure.
(iii) Party A, at its own expense, shall within four Local Business Days
after receipt of a Swap Financial Disclosure Request provide the
Manager with the relevant Swap Financial Disclosure.
(iv) If Party A is not able to provide the relevant Swap Financial
Disclosure in accordance with Part 5(cc)(iii) of this Schedule, then
Party A shall:
(A) secure another entity to replace Party A as party to this
Agreement on terms substantially similar to this Agreement
which entity is able to and will provide the Swap Financial
Disclosure for such entity within the time period specified in
Part 5(cc)(iii) of this Schedule (subject to Rating Agency
Confirmation having been obtained and to approval by the
Manager (which approval will not be unreasonably withheld or
delayed)); or
(B) obtain a guarantee of Party A's obligations under this
Agreement from an affiliate of Party A that is able to provide
the Swap Financial Disclosure for such affiliate, such that
disclosure provided in respect of the affiliate will satisfy
any disclosure requirements applicable to Party A, and cause
such affiliate to provide Swap Financial Disclosure within the
time period specified in Party 5(x)(iii) of this Schedule
(subject to Rating Agency Confirmation and to approval by the
Manager (which approval will not be unreasonably withheld or
delayed));
(v) The parties agree that, if permitted by Regulation AB, any required
Swap Financial Disclosure may be provided by incorporation by
reference from reports filed pursuant to the Exchange Act.
47
IN WITNESS WHEREOF the parties have executed this Schedule on the respective
dates specified below with effect from the date specified on the first page of
this document.
PARTY A PARTY B
PERPETUAL LIMITED
By:________________________ Attorney:________________________
Name: Name:
Title: Title:
Date: Date:
By:________________________ Witness:________________________
Name: Name:
Title: Title:
Date: Date:
THE MANAGER
ME PORTFOLIO MANAGEMENT LIMITED
Attorney:________________________
Name:
Title:
Date:
Witness:________________________
Name:
Title:
Date:
48
