ISDA
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of __________
between
Deutsche Bank Aktiengesellschaft ("Party A")
and
Perpetual Trustees Australia Limited (ABN 86 000 000 000) in its capacity as
trustee of a Securitisation Fund known as the SMHL Global Fund No. 6 ("Party B")
and
ME Portfolio Management Limited (ABN 79 005 964 134) in its capacity as manager
of a Securitisation Fund known as SMHL Global Fund No. 6 ("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.
(c) (i) Sections 5(a)(ii), (iii), (iv), (v), (vi), 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 Melbourne Business Day after the due
date;"
(iii) Section 5(b)(ii) will not apply if Party A is the sole Affected Party
(subject to Section 6(aa)(iii) of the Agreement, inserted by Part
5(aa) of this Schedule).
(d) The "Bankruptcy" provisions of Section 5(a)(vii) are replaced by "An
Insolvency Event under the Security Trust Deed has occurred in respect of
Party A (which will be the Defaulting Party) or Party B (which will be the
Defaulting Party); or". The occurrence of an Insolvency Event under the
Security Trust Deed in respect of Party B in its personal capacity will not
constitute an Event of Default provided that within thirty Melbourne
Business Days of that occurrence, Party A, Party B and the Manager are able
to procure the novation of this Agreement and all Transactions to a third
party in respect of which the Designated Rating Agencies confirm that the
novation will not cause a reduction or withdrawal of the rating of the
Notes, and Party A and Party B agree to execute such a novation agreement
in a form agreed between the parties.
(e) The "Automatic Early Termination" provisions of Section 6(a):
will not apply to Party A; and
will not apply to Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(g) "Termination Currency" means United States Dollars provided that if an
amount due in respect of an Early Termination Date will be payable by Party
B to Party A, the Termination Currency for the purpose of calculating and
paying that amount is Australian Dollars.
(h) "Additional Termination Event" means:
(i) Party B becomes obliged to make a withholding or deduction in respect
of any Class A Notes and the Class A Notes are redeemed as a result
(and Party B is the Affected Party and, notwithstanding Section
6(b)(iv) of the Agreement, as a result thereof Party B must, at the
direction of the Manager, give a notice designating an Early
Termination Date in respect of this Agreement and all Transactions);
(ii) An Event of Default (as defined in the Security Trust Deed) occurs and
the Security Trustee has declared, in accordance with the Security
Trust Deed, the Class A Notes immediately due and payable (and Party B
is the Affected Party); and
(iii) Party A breaches Part 5(x) (and Party A is the Affected Party and,
notwithstanding Section 6(b)(iv) of the Agreement, as a result thereof
Party B must, at the direction of the Manager, give a notice
designating an Early Termination Date in respect of this Agreement and
all Transactions).
(i) Transfer to Avoid Termination Event. In Section 6(b)(ii), after the words
"another of its Offices or Affiliates" on the seventh line add "(in respect
of which the Designated Rating Agencies confirm that the transfer will not
cause a reduction or withdrawal of the ratings for the Notes)".
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), 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 satisfaction 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 it is either a "United States person" within
the meaning of section 7701(a)(30) of the Internal Revenue Code of
1986, as amended, or a non-US branch of an entity that is not a United
States person.
(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 "foreign trust" for United States tax
purposes.
(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.
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:
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Covered by
Party required Date by which to be section 3(d)
to deliver Document delivered representations
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Party A, Party B A list of authorised signatories for On execution and delivery of Yes
and the Manager the party and evidence satisfactory this Agreement or any
in form and substance to the other relevant Confirmation and at
parties of the authority of the any time on the request of
authorised signatories of the party the other party.
to execute this Agreement and each
confirmation on behalf of each
relevant party.
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Party B and the Copies of any reports or account Upon reasonable request by Yes
Manager 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.
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Covered by
Party required Date by which to be section 3(d)
to deliver Document delivered representations
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Party B and the Legal opinions as to the validity and Promptly after entering into Yes
Manager 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.
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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.
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Manager A copy of any document amending or Promptly upon any such Yes
varying the terms of the Master Trust document becoming effective
Deed or the Security Trust Deed in accordance with its terms.
certified to be a true copy by two
authorised signatories of the Manager.
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Party A A legal opinion as previously Promptly after entering into Yes
provided to the Designated Rating this Agreement.
Agencies.
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Part 4
Miscellaneous
(a) Address for Notices. For the purpose of Section 12(a) of this Agreement:
(i) All notices to Party A under Sections 5 or 6 of this Agreement (other
than Section 5(a)(i)) shall be sent to:
Deutsche Bank Aktiengesellschaft, Head Office
Xxxxxxxxxxxx 00
00000 Xxxxxxxxx
XXXXXXX
Attention: Legal Department
Telex No.: 411836 or 416731 or 41233
Answerback: DBF-D
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 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Attention: Manager - Securitisation
Telephone: (00 0) 0000 0000
Facsimile: (00 0) 0000 0000
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: Deutsche Bank AG, Sydney Branch
(ABN 13 064 165 162)
Grosvenor Place
Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Party B appoints as its Process Agent: Nil.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purposes of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) Credit Support Document Details of any Credit Support Document:
(i) In relation to Party A: Nil
(ii) In relation to Party B: 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 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.
(i) Netting of Payments. Sub-paragraph (ii) of Section 2(c) of this Agreement
will not apply.
(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.
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 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)), section 13A(3) of the
Banking Xxx 0000 (Cth) or any other analogous provision under any law
applicable to a party)".
(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 Funds 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. This 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.
(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 seventh line, insert "in the absence of manifest
error" after the word "evidence".
(l) Confirmations. For the purposes of Section 9(e)(i) 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. Notwithstanding the
provisions or Section 9(e)(ii), each Confirmation in respect of a
Transaction which is confirmed by electronic messaging system, an exchange
of telexes or an exchange of facsimiles will be further
evidenced by an original Confirmation signed by the parties, however any
failure to sign an original Confirmation will not affect the validity or
enforcement of any Transaction.
(m) In Section 6(e), delete the sentence "The amount, if any, payable in
respect of an Early Termination Date and determined pursuant to this
Section will be subject to any Set-off.", at the end of the first
paragraph.
(n) 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:
"Master Trust Deed" means the Master Trust Deed dated 4 July 1994 as
amended between Party B and the Manager.
"Relevant Swap Transaction" means in relation to the Class A Notes,
each Transaction which is a Currency Swap for Class A Notes only.
"Security Trust Deed" means the Security Trust Deed dated on or about
the date of this Agreement between Party B as issuing trustee, the
Manager as manager, Perpetual Trustee Company Limited as security
trustee and The Bank of New York as note trustee.
(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):
"Charged Property"
"Currency Swap"
"Designated Rating Agency"
"Expense"
"Extraordinary Resolution"
"Note Trustee"
"Note Trust Deed"
"Outstanding Principal Balance"
"Prior Interest"
"Secured Creditor"
"Secured Document"
"Secured Moneys"
"Securitisation Fund"
"Supplementary Bond Terms Notice"
"Willful Default"
(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 any/all
Transactions under it are Secured Moneys.
(q) ISDA Definitions: This Agreement, each Confirmation and each Transaction
are subject to the 2000 ISDA Definitions (as published by the International
Swaps and Derivatives Association, Inc.) (the "ISDA Definitions"), and will
be governed in all respects by any provisions set forth in the ISDA
Definitions, without regard to any amendments to the ISDA Definitions made
after the date of this Agreement. The ISDA Definitions are incorporated by
reference in, and shall be deemed to be part of, this Agreement and each
Confirmation.
(r) Inconsistency. In the event of any inconsistency between any two or more of
the following documents, 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 property of the Securitisation Fund out of which
Party B is actually indemnified for the liability. This
limitation of Party B's liability applies despite any other
provision of this Agreement other than section 15(c) and extends
to all liabilities and obligations of Party B in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to this Agreement.
(b) The parties other than Party B may not xxx Party B (in respect of
liabilities incurred by Party B in its capacity as trustee of the
Securitisation Fund) in any capacity other than as trustee of the
Securitisation Fund including seek the appointment of a receiver
(except in relation to property of the Securitisation Fund), a
liquidator, an administrator or any similar person to Party B or
prove in any liquidation, administration or arrangement of or
affecting Party B (except in relation to property 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 no t
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 out of the assets of
the Securitisation Fund, as a result of Party B's fraud,
negligence or Willful 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 Willful 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 (a) to (c) of this Section 15.
16. Replacement Swap Transaction
(a) If this Agreement or 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 the Transactions under this Agreement (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 this Agreement or any
Transaction
will be paid in full when due in accordance with the
Supplementary Bond Terms Notice and this Agreement;
(ii) the Designated Rating Agencies confirm 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):
(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 and 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
(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.
(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.
(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 AA- by Fitch Ratings and a short term credit rating of less than
F1+ by Fitch Ratings and Party B does not receive written affirmation
of the then current rating of the Notes, then Party A shall
immediately notify the Designated Rating Agencies and Party B and
within 5 Local Business Days (or 30 Local Business Days if the
downgrade is to no less than A- (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 may be based
either on S&P's New Interest Rate and Currency Swap Criteria
published in January 1999 (as may be amended from time to time)
or on any other agreement reached between the parties, in support
of its obligations under the Agreement, PROVIDED that Party A and
Party B receive prior written confirmation from S&P, 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;
(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 AA-
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 AA- 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 Designated 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 sub-paragraph (i)(B) above, 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 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 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
sub-paragraph (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 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.
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) 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 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 sub-paragraph (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 Party
B of Australian dollar amounts required to be paid by it under any
relevant Confirmation to the bank account in Australia notified in
writing by Party A to Party B from time to time specified in that
Confirmation will constitute proper payment of those amounts by Party
B and Party A's obligations under this Agreement will be unaffected by
any such exchange controls."
(z) Deleted.
(aa) 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.
(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 on the instructions of the
Note Trustee and only after consultation between Party A and the
Note Trustee.
(iii) Party A's limited rights in relation to Tax Event:
(a) Notwithstanding Part 1(c)(iii) of this Schedule, 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:
(A) each Designated Rating Agency has confirmed in writing
that the transfer will not result in a reduction,
qualification or withdrawal of the credit ratings then
assigned by the them to the relevant Class A Notes; and
(B) that person has a long term credit rating assigned by
each of the Designated Rating Agencies of at least the
long term credit rating assigned by that Designated
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 as principal obligor
under Agreement in respect of each Affected Transaction of a
Party B incorporated in another jurisdiction approved by Party A
and the Note Trustee and in respect of which the Designated
Rating Agencies confirm that the substitution will not cause a
reduction or withdrawal of the rating of Class A Notes".
(bb) Transfer
A new paragraph (c) is added to Section 7 as follows:
"a party may make such a transfer in accordance with this
Agreement".
and the full-stop at the end of paragraph (b) is replaced with "; and"
(cc) Party B's Payment Instructions
Party B irrevocably authorises and instructs Party A to make payment
of:
(i) the Initial Exchange Amount payable by Party A under a currency
swap transaction by paying that amount direct to the account
notified in writing by Party B to Party A for that purpose; and
(ii) any other amount due from Party A to Party B under this Agreement
by paying that amount direct to the Principal Paying Agent to the
account notified in writing by the Principal Paying Agent to
Party A for that purpose. Party A is entitled to rely on any such
notice.
(dd) No Amendment
Each of Party B and the Manager agrees that it will not consent to any
amendment to any provision in any Transaction Document dealing with
the ranking, priority or entitlement of Party A in respect of any
security or moneys without the prior written consent of Party A.
IN WITNESS WHEREOF the parties have executed this Schedule on the respective
dates specified below with effect from the date specified on the first page of
this document.
Deutsche Bank Aktiengesellschaft Perpetual Trustees Australia Limited
By: By:
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Name: Name:
Title: Title:
Date: Date:
By: By:
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Name: Name:
Title: Title:
Date: Date:
ME Portfolio Management Limited
By:
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Name:
Title:
Date:
By:
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Name:
Title:
Date:
