[ALLENS XXXXXX XXXXXXXX LOGO]
Exhibit 10.4
SCHEDULE
TO THE
MASTER AGREEMENT
ARMS II GLOBAL FUND 3
dated as of [*] 2004
between
DEUTSCHE BANK AKTIENGESELLSCHAFT
(PARTY A)
and
PERMANENT CUSTODIANS LIMITED, ACN 001 426 384
(PARTY B)
and
AUSTRALIAN SECURITISATION MANAGEMENT PTY LIMITED, ACN 103 852 428
(TRUST MANAGER)
PART 1: TERMINATION PROVISION
In this Agreement:
(a) "SPECIFIED ENTITY" is not applicable to Party A nor to Party B.
(b) "SPECIFIED TRANSACTION" is not applicable.
(c) (i) The following provisions of Section 5 will not apply to Party
A:
Section 5(a)(ii)
Section 5(a)(iii)
Section 5(a)(iv)
Section 5(a)(v)
Section 5(a)(vi)
Section 5(b)(iv)
Section 5(b)(v)
(ii) The following provisions of Section 5 will not apply to Party
B:
Section 5(a)(ii)
Section 5(a)(iii)
Section 5(a)(iv)
Section 5(a)(v)
Section 5(a)(vi)
Section 5(b)(iv)
Section 5(b)(v)
Page 1
[ALLENS XXXXXX XXXXXXXX LOGO]
(iii) Section 5(b)(ii) will not apply to Party A as the Affected
Party (subject to Part 5(j)(iii) of this Schedule) and Section
5(b)(iii) will not apply to Party A as the Burdened Party.
(iv) For the purposes of Section 5(b)(v), ADDITIONAL TERMINATION
EVENT means an Event of Default (as defined in the Security
Trust Deed) occurs and the Security Trustee enforces the
security under the Security Trust Deed (in which case Party B
is the Affected Party (unless the Event of Default results
from a failure by Party A to fulfil its obligations under this
Agreement, in which case Party A is the Affected Party )).
(d) The "AUTOMATIC EARLY TERMINATION" provisions in Section 6(a) will not
apply to Party A nor to Party B.
(e) "PAYMENT ON EARLY TERMINATION". For the purposes of Section 6(e) of
this Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(f) "TERMINATION CURRENCY" means Euros.
PART 2: TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice
of any relevant government revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, it may rely on:
(i) the accuracy of any representation made by the other party
pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i)
or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement;
and
(iii) the satisfaction of the agreement of the other party contained
in Section 4(d) of this Agreement,
PROVIDED THAT it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver
a form or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(b) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement:
Party A makes the following representation:
It will bring into account payments made and received in respect of
each Transaction in computing its income for German tax purposes.
Party B makes the following representation:
Page 2
[ALLENS XXXXXX XXXXXXXX LOGO]
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 its permanent establishment in that
country.
PART 3: DOCUMENTS TO BE DELIVERED
For the purpose 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:
PARTY REQUIRED TO DATE BY WHICH TO BE
DELIVER DOCUMENT FORM/DOCUMENT DELIVERED
Parties A & B Any form or document reasonably requested by the other party As soon as possible after
to permit payments without (or with minimum) deduction or request.
withholding of Tax
(b) Other documents to be delivered are:
DATE BY WHICH
PARTY REQUIRED TO DOCUMENT TO BE
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DELIVERED
Parties A & B Such evidence as the other party may reasonably require to Before the entering into
satisfy itself as to the authority of the persons executing of any Transaction and
and delivering this Agreement on behalf of the party and thereafter promptly upon
each Confirmation to be signed on behalf of the party. request.
Party B A legal opinion as to the validity and enforceability of Before the entering into
that party's obligations under this Agreement in form and of any Transaction.
substance and issued by legal counsel reasonably acceptable
to Party A.
Party A A copy of the most recent annual report of the party Upon reasonable request
containing consolidated financial statements, certified by Party B.
without qualification by independent public accountants and
such other public information respecting its condition or
operations, financial or otherwise, as the other party may
reasonably request from time to time.
All documents delivered under this Part 3(b) are covered by Section 3(d)
representation.
PART 4: MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
All notices to Party A under Sections 5 or 6 of this Agreement (other
than Section 5(a)(i)) shall be sent to:
Page 3
[ALLENS XXXXXX XXXXXXXX LOGO]
Address: Deutsche Bank AG, Head Office
Xxxxxxxxxxxx 00
00000 Xxxxxxxxx
XXXXXXX
Attention: Legal Department
Telex Xx. 000000 xx 000000 or 41233
Answerback: DBF-D
Facsimile No: x00 00 000 00000
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 for that
Transaction or as otherwise notified by Party A to Party B care of the
Trust Manager.
Address for notices or communications to PARTY B CARE OF THE TRUST
MANAGER:
Address: Xxxxx 0
00 Xxxxxxxxxxx Xxxxxx
XXXXXX XXX 0000
Attention: Deputy Managing Director
Facsimile: x000 0000 0000
Telephone: x000 0000 0000
All notices from Party A under Sections 5 or 6 of this Agreement shall
be copied to Party B.
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: not applicable.
Party B appoints as its Process Agent: not applicable.
(c) OFFICES. The provisions of Section 10(a) will not apply to this
Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party B is not a Multibranch Party.
Party A is a Multibranch Party and may act through the following
Offices - Sydney Branch and Frankfurt Head Office.
(e) CALCULATION AGENT. The Calculation Agent is Party A.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
(i) In relation to Party A: nil.
(ii) In relation to Party B: The Security Trust Deed.
(g) CREDIT SUPPORT PROVIDER.
(i) In relation to Party A: nil.
(ii) In relation to Party B: nil.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of 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 without reference to choice of law doctrine. The
provisions of Section 13(b) will apply (mutatis mutandis) to this
choice of governing law and submission to jurisdiction.
Page 4
[ALLENS XXXXXX XXXXXXXX LOGO]
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this
Agreement will not apply to any Transaction.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. However, for the purpose of Section 3(c) Party A and Party B
are each deemed not to have any Affiliates.
(k) TRANSACTION DOCUMENT.
(i) This Agreement and each Transaction are Transaction Documents
relating to the Fund for the purposes of the Master Trust
Deed.
(ii) Each Transaction is a Currency Swap as defined in and for the
purposes of the Bond Trust Deed.
PART 5: OTHER PROVISIONS
(a) 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 or the Annex to the ISDA Definitions subsequent to
the date thereof. The provisions of the ISDA Definitions are
incorporated by reference in, and shall be deemed to be part of, this
Agreement and each Confirmation. In the event of any inconsistency
between the provisions of this Agreement and the ISDA Definitions, this
Agreement will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Agreement, such Confirmation
will prevail for the purpose of the relevant Transaction. 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.
(b) MASTER TRUST DEED DEFINITIONS: Words and expressions which are defined
in the Master Trust Deed (unless the context otherwise requires, or
unless otherwise defined in this Agreement) have the same meanings when
used in this Agreement.
(c) APPOINTMENT OF TRUST MANAGER:
(i) Pursuant to its powers under the Master Trust Deed (including,
without limiting the generality of the foregoing, pursuant to
clauses 14.2(i) and ( l) and 14.4(c)), Party B hereby appoints
the Trust Manager as its sole and exclusive agent to act on
Party B's behalf with respect to this Agreement. The Trust
Manager:
(A) may arrange, enter into, and monitor Transactions,
execute Confirmations, and exercise all other rights
and powers of Party B under this Agreement; and
(B) without limiting the generality of the foregoing,
shall issue, and receive, on behalf of Party B all
notices, Confirmations, certificates and other
communications to or by Party A under this Agreement.
(ii) The Trust Manager acknowledges and confirms to Party B and
Party A that the Trust Manager considers it appropriate, for
the effective performance of its obligations as Trust
Page 5
[ALLENS XXXXXX XXXXXXXX LOGO]
Manager and the due management and administration of the Fund,
that Party B appoint the Trust Manager as its agent for the
purposes of this Agreement, in the manner provided for in
sub-paragraph (i) above;
(iii) In acting as Party B's agent, the Trust Manager must comply
with the terms of the Master Trust Deed (in particular, but
without limitation, clauses 12.2(a), (b) and (c)), and all
relevant Transaction Documents;
(iv) The Trust Manager must indemnify Party B from and against all
costs, losses, damages, expenses or liabilities (including the
amount of any compensation found by a Final Judgment (or
admitted by Party B) to be payable by Party B to restore the
Fund because of a failure by Party B to exercise the degree of
care, diligence and prudence required of it under the
Transaction Documents, or because of some other neglect,
default or breach of duty by Party B under the Transaction
Documents):
(A) which Party B may suffer or incur as a result of any
claim being made against it under clause 14.5 of the
Master Trust Deed which arises from any act or
omission (or alleged act or omission) by the Trust
Manager in acting as Party B's agent under or for the
purposes of this Agreement; and
(B) in respect of which Party B is not entitled to be
indemnified personally from the Assets of the Fund in
accordance with clause 25.10 of the Master Trust
Deed.
(v) The parties agree that if:
(A) the Trust Manager, in acting as agent of Party B
under sub-paragraph (i) above, acts in breach of its
duties to Party B, or acts negligently or
fraudulently; and
(B) as a result of such breach, negligence or fraud,
Party A suffers any losses, costs or damages; and
(C) Party B is not entitled for any reason
(notwithstanding clause 25.10 of the Master Trust
Deed) to be indemnified from the Assets of the Fund
in respect of those losses, costs or damages,
then:
(D) the Trust Manager must indemnify Party A on demand
from and against such losses, costs and damages; and
(E) Party B shall have no liability to Party A in respect
of those losses, costs or damages.
(vi) The Trust Manager confirms in respect of each Transaction
that:
(A) it is acting as agent of Party B;
(B) it has made its own independent decisions to enter
into that Transaction, on behalf of Party B, and as
to whether that Transaction is appropriate or proper
for it to enter into, on behalf of Party B, based
upon its own judgment and upon advice from such
advisers as it has deemed necessary;
(C) it is not relying on any communication (written or
oral) of Party A as investment advice or as a
recommendation to enter into that Transaction; it
being understood that information and explanation
related to the terms and conditions of a
Page 6
[ALLENS XXXXXX XXXXXXXX LOGO]
Transaction shall not be considered investment advice
or a recommendation to enter into that Transaction.
No communication (written or oral) received from
Party A shall be deemed to be an assurance or
guarantee as to the expected results of that
Transaction;
(D) it is capable of assessing the merits of, and
understanding (on its own behalf or through
independent professional advice), and understands and
accepts, on behalf of Party B, the terms, conditions
and risks of that Transaction. It is also capable of
assuming, on behalf of Party B, and assumes, on
behalf of Party B, the risks of that Transaction; and
(E) Party A is not acting as a fiduciary or an adviser to
it in respect of that Transaction.
(d) CHANGE OF ACCOUNTS: For the purposes of Section 2(b) of the Agreement
both parties agree that such new account so designated shall, unless
otherwise agreed, be in the same tax jurisdiction as the original
account.
(e) PAYMENTS: In Section 2:
(i) In Section 2(a)(i) add after "made by it":
"which will be by way of exchange for the corresponding
payment or payments payable by the other party";
(ii) In Section 2(a)(ii) insert immediately after the words "freely
transferable funds" the following words:
", free of any set-off, counterclaim, deduction or withholding
(except as expressly provided in this Agreement)".
(iii) Insert new Sections 2(a)(iv) and 2(a)(v) immediately after
Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does
not apply to a payment due to be made to a party if
it has satisfied all its payment and delivery
obligations under Section 2(a)(i) 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 charge created by the Security Trust Deed
has become, and remains at that time,
enforceable,
then Party A's obligation to make the Party A payment
to Party B shall be subject to the condition
precedent (which 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.
Page 7
[ALLENS XXXXXX XXXXXXXX LOGO]
(iv) Delete the word "if" at the beginning of Section 2(d)(i)(4),
and insert the following words "if and only if X is Party A
and".
(v) In Section 2(d)(ii) insert the words "(if and only if Y is
Party A)" after the word "then" at the beginning of the last
paragraph.
Without prejudice to the above amendments, it is agreed that Party B is
not obliged to:
(A) pay any additional amount to Party A under Section 2(d)(i)(4);
(B) pay any amount to Party A under Section 2(d)(ii); or
(C) receive payments under this Agreement or any Transaction from
which deductions or withholdings have been made.
(f) ADDITIONAL REPRESENTATIONS: In Section 3 add new paragraphs as follows:
"(g) NON ASSIGNMENT. It has not assigned (whether absolutely, in
equity or otherwise) or declared any trust over or given any
charge over any of its rights under any Transaction (other
than, in respect of Party B, under and in accordance with the
Master Trust Deed and the charge given pursuant to the
Security Trust Deed).
(h) CONTRACTING AS PRINCIPAL. In relation to Party A and Party B,
each Transaction is and will be entered into by it as
principal and not otherwise."
(g) ADDITIONAL COVENANT: In Section 4 a new paragraph is added as follows:
"(f) CONTRACTING AS PRINCIPAL: It will enter into all Transactions
as principal and not otherwise."
(h) MANDATORY NOVATION: If an Incoming Trustee is appointed in accordance
with the Master Trust Deed, Party A must, unless it is then entitled to
terminate this Agreement, promptly upon being requested to do so by or
on behalf of Party B, execute such documents and do such things as
Party B may reasonably require to novate this Agreement to the Incoming
Trustee. The Trust Manager must give notice to each Designated Rating
Agency for the Fund promptly following any such novation.
(i) EVENT OF DEFAULT: In Section 5(a):
(i) Delete Section 5(a)(i) and insert instead:
"(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 10.00 am on the fifth Business Day after
notice of such failure is given to the party;".
For the avoidance of doubt, there will be no failure to pay by
Party B to Party A for the purposes of Section 5(a)(i) to the
extent that Party B pays to Party A on each Payment Date the
amounts available to Party B on that Payment Date for payment
to Party A (in the case of a Class A EURO Currency Swap) under
Conditions 4.4(e)(i) and 5.1(b)(i) and (in the case of a Class
B EURO Currency Swap) under Conditions 4.4(f) and 5.1(c).
(ii) In relation to Party B, Section 5(a)(vii) does not apply, and
the following Event of Default applies in its place:
Page 8
[ALLENS XXXXXX XXXXXXXX LOGO]
"(vii) INSOLVENCY. An Event of Insolvency occurs in relation
to Party B, and within 30 days after the occurrence
of that Event (or such longer period as Party A may
agree):
(1) Party B has not been replaced as trustee of
the Fund in accordance with the Master Trust
Deed; and
(2) Party A and Party B's replacement have not
entered into an agreement (whether or not
there are other parties thereto) which has
the effect of novating or replacing this
Agreement and each Transaction as between
Party A and Party B's replacement.".
(iii) It is also an Event of Default under this Agreement, in
respect of Party A only, if Party A fails to comply with
Section 16.
(j) TERMINATION EVENTS:
(i) ILLEGALITY: In respect of each Transaction, the parties agree
that the imposition by any Government Body of an Australian
Jurisdiction of any exchange controls, restrictions or
prohibitions which would otherwise constitute an Illegality
for the purposes of Sections 5(b)(i) or 5(c) will not be an
event which constitutes an Illegality for the purposes of
those Sections so that, following the occurrence of that
event:
(A) neither Party A nor Party B will be entitled to
designate an Early Termination Date in respect of
that Transaction as a result of that event occurring;
(B) payment by Party B in accordance with Part 5(e) of
the Schedule will continue to constitute proper
performance of its payment obligations in respect of
that Transaction; and
(C) Party A's obligations in respect of that Transaction
or this Agreement will be unaffected by the
occurrence of that event.
(ii) TAX EVENT: Section 5(b)(ii) is amended by deleting the words",
or there is a substantial likelihood that it will,"
where they appear in that provision.
(iii) PARTY A's LIMITED RIGHTS IN RELATION TO TAX EVENT:
Notwithstanding Part 1(c)(iii) of the Schedule, Party A may
designate an Early Termination Date if it is an Affected Party
following a Tax Event but only if the Bond Trustee has
notified the parties in writing that it is satisfied that all
amounts owing to the EURO Bondholders will be paid in full on
the date on which the EURO Bonds are to be redeemed.
(k) TERMINATION:
(i) TERMINATION BY BOND TRUSTEE: Party B must not designate an
Early Termination Date without the prior written consent of
the Bond Trustee.
(ii) TERMINATION BY BOND TRUSTEE: If following an Event of Default
or Termination Event, Party A or Party B does not exercise its
right to terminate a Transaction, then the Bond Trustee may
designate an Early Termination Date in relation to that
Transaction as if it were a party to this Agreement.
(iii) TIMING OF EARLY TERMINATION DATE: Party A may not specify an
Early Termination Date unless it has consulted with the other
parties as to which date it should specify as the Early
Page 9
[ALLENS XXXXXX XXXXXXXX LOGO]
Termination Date, provided that Part A is not required to take
into account any matters arising from the consultation
process. If the other parties are not reasonably available for
such consultation then Part A may specify an Early Termination
Date without such consultation.
(iv) TRANSFERS TO AVOID TERMINATION: Section 6(b)(ii) is amended as
follows:
The following sentence is added at the end of the second
paragraph:
"However, if Party A is that other party it must, if
so requested by the Bond Trustee, use reasonable
efforts to make such a transfer to an Affiliate (as
that expression is defined in Section 14 disregarding
any modification made by this Agreement) provided
that each Designated Rating Agency has given prior
written confirmation to the Bond Trustee that such a
transfer will not result in a reduction,
qualification or withdrawal of the credit ratings
then assigned by it to the Bonds."
(v) 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, the Trust Manager will endeavour to procure Party B's
substitution as principal obligor under this Agreement in
respect of each Affected Transaction by an entity in another
jurisdiction approved by Party A and the Bond Trustee.
(vi) NO SET-OFF: Section 6(e) is amended by deleting the last
sentence of the first paragraph.
(l) TRANSFER: Section 7 is deleted and replaced with the following:
"7. TRANSFER
(a) Neither the interests nor obligations of either party in or
under this Agreement (including any Transaction) are capable
of being assigned or transferred (whether at law, in equity or
otherwise or whether by way of security or otherwise), charged
or the subject of any trust or other fiduciary obligation
(other than, in respect of Party B, under and in accordance
with the Master Trust Deed and the charge created by the
Security Trust Deed, or as expressly contemplated by or
provided for in this Agreement). Any action by a party which
purports to do any of these things is void.
(b) Nothing in this Section 7:
(i) restricts the parties agreeing to a novation of the
interests and obligations of a party in or under this
Agreement (including any Transaction) including, but
not limited to, for the purposes of giving effect to
a transfer by a party under Section 6(b)(ii);
(ii) restricts a transfer by a party of its interests and
obligations in or under this Agreement (including any
Transaction) pursuant to a consolidation or
amalgamation with or merger into, or transfer of all
or substantially all its assets to, another entity
(but without prejudice to any other right or remedy
under this Agreement);
(iii) restricts a transfer by a party of all or any part of
its interest in any amount payable to it from a
Defaulting Party under Section 6(e); or
Page 10
[ALLENS XXXXXX XXXXXXXX LOGO]
(iv) restricts a transfer by a party after the other party
has agreed to a variation of this Agreement to the
extent necessary to permit such a transfer,
provided that Party B must not agree to or give effect to any
novation or transfer referred to in this Section 7(b) unless
it has first obtained the written consent of each Designated
Rating Agency.
(c) Each party acknowledges that the other party enters into this
Agreement and each Transaction on the basis that this Section
7 must be strictly observed and is fundamental to the terms of
this Agreement (including each Transaction)."
(m) AMENDMENTS: In Section 9:
(i) the first word "No" in Section 9(b) is replaced with:
"Except to the extent that the entering into of each
Transaction takes effect as an amendment to this Agreement,
no"; and
(ii) the following words are added at the end of Section 9(b):
", and unless each Designated Rating Agency has confirmed in
writing that such amendment will not adversely affect the
credit rating of any Bonds."
(n) NOTICES: In Section 12:
(i) delete the following words where they appear on lines 2 and 3
of Section 12(a):
"(except that a notice or other communication under Section 5
or 6 may not be given by facsimile transmission or electronic
messaging system)"; and
(ii) delete paragraph (iii) of Section 12(a) and insert instead:
"(iii) if sent by facsimile, on production of a transmission
report 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 24 hours of the
facsimile being sent that the facsimile was not
received in its entirety in legible form;".
(o) DEFINITIONS: In Section 14:
(i) delete the following words from the definition of "Default
Rate":
"plus 1% per annum";
(ii) insert the following additional definitions in Section 14 in
alphabetical order:
"ALTERNATIVE ARRANGEMENT" means an arrangement referred to in Section
16(a)(i), (ii) or (iii).
"BOND TRUST DEED" means the deed so entitled dated on or about the date
of this Agreement made between Party B, the Trust Manager, Australian
Mortgage Securities Ltd and Permanent Registry Limited.
"BOND TRUSTEE" means, initially, The Bank of New York and subsequently
the person who is from time to time the trustee of the trust
constituted under the Bond Trust Deed.
"CONDITIONS" has the meaning given in the Bond Trust Deed.
"FUND" means the Issuing Fund constituted under the Master Trust Deed
known as ARMS II Global Fund 3 .
Page 11
[ALLENS XXXXXX XXXXXXXX LOGO]
"FUTURE OBLIGATIONS" means all payment or delivery obligations (whether
the underlying obligation was absolute or contingent and assuming the
satisfaction of each applicable condition precedent) of a party under
Section 2(a)(i) in respect of a Terminated Transaction or group of
Terminated Transactions, that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date.
(For this purpose, Unpaid Amounts in respect of the Terminated
Transaction or group of Terminated Transactions are to be excluded but,
without limitation, any payment or delivery that would, but for the
relevant Early Termination Date, have been required (assuming
satisfaction of each applicable condition precedent) after that Early
Termination Date is to be included).
"MASTER TRUST DEED" means the Master Trust Deed for the ARMS II Funds
dated 7 March 1995 made between Permanent Custodians Limited and
Australian Mortgage Securities Ltd, as amended and restated from time
to time and as applicable to the Fund.
"PRESCRIBED RATING" means a short term credit rating of "A-1+" by S&P
and "P-1" by Xxxxx'x and a long term credit rating of "A2" by Xxxxx'x.
"SECURITY TRUST DEED" means the deed so entitled dated 19 December 2003
made between Party B, Permanent Registry Limited, The Bank of New York
and the Trust Manager.
"SECURITY TRUSTEE" means, initially, Permanent Registry Limited and
subsequently the person who is from time to time the trustee of the
trust constituted under the Security Trust Deed.
(p) CAPACITY AND LIABILITY OF TRUSTEE: Insert a new section 15 as follows:
"15. LIABILITY OF TRUSTEE AND LIMITED RECOURSE
(a) THIS CLAUSE TO PREVAIL: All provisions of this Agreement are
subject to this section 15.
(b) DEFINITIONS FOR THE PURPOSES OF THIS SECTION: In this
section 15:
"ASSETS" means all property and assets (real and personal)
(including choses in action and other rights), tangible and
intangible, present or future, comprised in, and held by Party
B as trustee of the Fund.
"FINAL JUDGMENT" means a judgment of a court of law in
Australia against which there can be no appeal or in relation
to which the time to appeal has expired.
"TRUSTEE'S INDEMNITY" means:
(a) Party B's right of indemnity from the Assets of the
Fund in respect of liabilities incurred by Party B
acting in its capacity as trustee of the Fund; and
(b) all equitable liens and other Security Interests
which Party B has over the Assets of the Fund.
(c) LIMITATION OF LIABILITY:
(i) Party B enters into this Agreement, and will enter
into each Transaction in its capacity as trustee of
the Fund. Accordingly, Party B has no personal
liability in relation to any of its obligations under
or arising out of this Agreement or any Transaction.
Page 12
[ALLENS XXXXXX XXXXXXXX LOGO]
(ii) In relation to each such obligation, the liability of
Party B is limited to and does not extend beyond the
Assets of the Fund as they stand at the time at which
the obligation is met or satisfied.
(iii) Party B is not liable to meet or satisfy any such
obligation from its own assets (except the Trustee's
Indemnity) and each such obligation must be met or
satisfied from the Fund or the Trustee's Indemnity.
(iv) The preceding paragraphs apply notwithstanding the
fact that the liabilities of Party B in its capacity
as the trustee of the Fund may from time to time and
at any time almost equal, equal or exceed the value
of the Assets of the Fund at the relevant time.
(v) The previous paragraphs of this Section 15(c) do not
apply to the liability of Party B in relation to any
obligation which Party B expressly assumes in its
personal capacity.
(vi) It is acknowledged by Party B that the Assets of the
Fund at any time will include the amount of any
compensation found by a Final Judgment (or admitted
by Party B) to be payable by Party B to restore the
Fund because of a failure by Party B to exercise in
relation to the Fund the degree of care, diligence
and prudence required of a trustee or because of some
other neglect, default or breach of duty by Party B
having regard to the powers and duties conferred on
Party B by the Master Trust Deed or this Agreement in
either case occurring before the time in question and
causing loss to the Fund quantified before the time
in question.
(d) LIMITED RECOURSE: Subject to paragraph (e) and clause 6.4 of
the Security Trust Deed, Party A agrees that it will not seek
to enforce its rights against Party B under or in respect of
this Agreement or any Transaction by:
(i) suing Party B;
(ii) obtaining judgment against Party B;
(iii) apply for or seeking to wind up the Fund; or
(iv) levying execution against any Asset of the Fund.
(e) PROVISO: Nothing in paragraph (d) restricts or prohibits Party
A from taking any proceedings for specific performance or
injunctive or declaratory relief in respect of its rights or
Party B's obligations under or in respect of this Agreement or
any Transaction."
(q) RATINGS DOWNGRADE
(i) In the event that the unsecured and unsubordinated debt
obligations of Party A (or any applicable assignee or its
guarantor) shall cease to have a credit rating equal to or
higher than the Prescribed Rating and Party B (or the Trust
Manager on behalf of Party B) does not receive written
affirmation of the then current rating of the relevant Bonds,
then within 30 days of such downgrade (or within 5 days (or
such greater period agreed with each relevant Designated
Rating Agency) if Party A's credit rating is lower than "A-1"
(short term) by S&P or "A3" (long term) by Xxxxx'x) (unless
during this period, Party A and Party B (or the Trust Manager
on behalf of Party B) receive written confirmation from S&P
Page 13
[ALLENS XXXXXX XXXXXXXX LOGO]
that such downgrade would not result in the Bonds of the Fund
either being downgraded or placed under review for possible
downgrade) Party A must at its cost either:
(A) 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 (or the Trust Manager on behalf
of Party B) receive prior written confirmation from
each Designated Rating Agency that the rating
assigned to the Bonds by each Designated Rating
Agency is not adversely affected by the downgrade
following such collateral arrangements being put in
place;
(B) transfer all its rights and obligations with respect
to this Agreement to a replacement third party whose
unsecured and unsubordinated debt obligations have a
short-term rating by each Designated Rating Agency at
least equivalent to the Prescribed Rating;
(C) procure that its obligations with respect to this
Agreement are guaranteed by a third party whose
unsecured and unsubordinated debt obligations have a
short-term rating by each Designated Rating Agency at
least equivalent to the Prescribed Rating; or
(D) enter into such other arrangements in respect of each
Transaction which each Designated Rating Agency
confirms will not result in a reduction,
qualification or withdrawal of the credit ratings
then assigned by it to the Bonds.
It is agreed that the amount of collateral which needs to be
provided under any collateral agreement referred to in (A)
above in respect of any Transaction is the amount which is
necessary to be provided so that the credit rating of Party A
does not cause the then current rating of the Bonds to be
downgraded or withdrawn as a result of Party A being the
counterparty to Party B under that Transaction.
(ii) Where Party A transfers its rights and obligations to a
replacement counterparty in accordance with sub-paragraph
(i)(B) above, Party B shall do all things 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 sub-paragraph (i)(B) above,
Party A shall be immediately entitled to any collateral which
it has provided under any collateral agreement contemplated by
sub-paragraph (i)(A) (less any amount withdrawn in accordance
with sub-paragraph (iv)).
(iv) Party B (at the direction of the Trust Manager) may only make
withdrawals from any account into which collateral is provided
by Party A (the "COLLATERAL ACCOUNT") for the purpose of:
(A) transferring obligations under this Agreement in
accordance with sub-paragraph (i)(B) (including the
costs of obtaining a replacement counterparty);
Page 14
[ALLENS XXXXXX XXXXXXXX LOGO]
(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 sub-paragraph
(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;
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.
Party B (at the direction of the Trust Manager) must refund or
pay to Party A the amount of any payment which may be made to
Party A under (B) or (C) 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 provided 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 sub-paragraph (i)(A)."
(r) Code of banking practice (2003): Insert a new section 17 as follows:
"17. CODE OF BANKING PRACTICE (2003)
The parties to this Agreement agree that the Code of Banking Practice
(2003) does not apply to this Agreement or any transaction or service
under this Agreement.
(s) CONSENT TO RECORDING. Each party:
(i) consents to the recording of the telephone conversations of
its personnel or any personnel employed by an Affiliate or any
third party acting on its behalf in connection with this
Agreement or any potential Transaction;
(ii) agrees to obtain any necessary consent of and give notice of
such recording to such personnel; and
(iii) agrees that recordings may be submitted in evidence in any
Proceedings relating to this Agreement.
(t) TRUSTEE REPRESENTATIONS
By Party B represents to Party A, in respect of Party B only:
(i) TRUST VALIDLY CREATED. The Fund has been validly created and
is in existence at the date of this Agreement.
(ii) SOLE TRUSTEE. It has been validly appointed as trustee of the
Fund and is presently the sole trustee of the 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 Fund.
(iv) POWER. It has power under the Master Trust Deed to enter into
this Agreement and the Credit Support Document in its capacity
as trustee of the Fund.
Page 15
[ALLENS XXXXXX XXXXXXXX LOGO]
(v) GOOD TITLE. It is the lawful owner of the Assets of the Fund
and has power under the Master Trust Deed to mortgage or
charge them in the manner provided in the Credit Support
Document to which it is a party, subject only to that Credit
Support Document, any Security Interest permitted thereunder
and Party B's right of indemnity out of the Assets of the
Fund, those Assets are free of all other Security Interests.
(vi) INDEMNITY. It is entitled to be fully indemnified out of the
Assets of the Fund for all its losses or liabilities under
this Agreement, each Transaction and any Credit Support
Document to which it is a party and these rights of indemnity
are unrestricted and have not been prejudiced.
(vii) TRUST DEED. The copies of the Master Trust Deed and Bond Trust
deed relating to the Fund provided by Party B to Party A
disclose all the terms of the Fund (other than terms implied
by law).
(viii) BENEFIT. Party B's entry into this Agreement and each
Transaction Document is for the benefit of and in the
interests of the beneficiaries of the Fund.
(u) INDEMNIFIABLE TAX. The definition of the term "Indemnifiable Tax" also
means any Tax imposed in respect of a payment under this Agreement by
reason of a Change in Tax Law by a government or taxing authority of a
Relevant Jurisdiction of the party making such payment, unless the
other party is incorporated, organised, managed and controlled or
considered to have its seat in such jurisdiction, or is acting for
purposes of this Agreement through a branch or office located in such
jurisdiction.
Page 16
[ALLENS XXXXXX XXXXXXXX LOGO]
WITNESS the parties have executed this document as of the date specified on the
first page of this document
DEUTSCHE BANK PERMANENT CUSTODIANS LIMITED
AKTIENGESELLSCHAFT
By: By:
-------------------------------------- --------------------------------------
Name: Name:
-------------------------------------- --------------------------------------
Title: Title:
-------------------------------------- --------------------------------------
Date: Date:
-------------------------------------- --------------------------------------
By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
Date:
--------------------------------------
AUSTRALIAN SECURITISATION
MANAGEMENT PTY LIMITED
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
Date:
------------------------------------------
Page 17
