ISDA
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of __________ 2004
between
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ABN. 11 005 357 522)
("PARTY A")
AND
PERPETUAL TRUSTEES AUSTRALIA LIMITED (ABN 86 ▇▇▇ ▇▇▇ ▇▇▇) IN ITS CAPACITY AS
TRUSTEE OF A SECURITISATION FUND KNOWN AS THE SMHL GLOBAL FUND NO. 7 ("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. 7 ("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), (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
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 (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); or". 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 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, Party B and the Manager 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
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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 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.
(h) "ADDITIONAL TERMINATION EVENT" will apply. The following shall
constitute an Additional Termination Event:
(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. For the purposes of this Termination
Event, Party B is the Affected Party. Notwithstanding Section
6(b)(iv) of the Agreement, if this 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;
(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. For the purposes of this Termination Event,
Party B is the Affected Party; and
(iii) Party A fails to comply with its obligations under Part 5(x).
For the purposes of this Termination Event, Party A is the
Affected Party. Notwithstanding Section 6(b)(iv) of the
Agreement, if this 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.
(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)".
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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 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 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.
(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.
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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 DOCUMENT DATE BY WHICH TO BE DELIVERED COVERED BY SECTION
DELIVER 3(D) REPRESENTATIONS
------------------------ --------------------------------------- ------------------------------ ---------------------
Party A, Party B and A list of authorised signatories for On execution and delivery of Yes
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.
------------------------ --------------------------------------- ------------------------------ ---------------------
Party A, Party B and Any document or certificate Upon reasonable request. Yes
the Manager reasonably required by
the other party 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, in the case of Party A,
Form W-8ECI or Form W-8BEN as
appropriate) or other relevant
United States tax form).
------------------------ --------------------------------------- ------------------------------ ---------------------
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.
------------------------ --------------------------------------- ------------------------------ ---------------------
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------------------------ --------------------------------------- ------------------------------ ---------------------
PARTY REQUIRED TO DOCUMENT DATE BY WHICH TO BE DELIVERED COVERED BY SECTION
DELIVER 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 or the Security Trust Deed in accordance with its terms.
certified to be a true copy by two
authorised signatories of the Manager.
------------------------ --------------------------------------- ------------------------------ ---------------------
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:
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: Manager - Derivatives Operations
Telephone: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
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:
▇▇▇▇▇ ▇
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: Manager - Securitisation
Telephone: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
ADDRESS FOR NOTICES TO MANAGER:
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: Settlements Officer
Telephone: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
(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 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.
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(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 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.
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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 ▇▇▇ ▇▇▇▇ (Cth)), section 13A(3)
of the Banking ▇▇▇ ▇▇▇▇ (Cth) or any other analogous provision
under any law applicable to a party)".
26
(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 and at all times until the termination of this Agreement)
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)(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.
(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:
27
(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 and restated 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) provided that in the event of any
inconsistency those in the Security Trust Deed shall prevail:
"CHARGED PROPERTY"
"CURRENCY SWAP"
"DESIGNATED RATING AGENCY"
"EXPENSE"
"EXTRAORDINARY RESOLUTION"
"NOTE TRUSTEE"
"NOTE TRUST DEED"
"OUTSTANDING PRINCIPAL BALANCE"
"PRINCIPAL PAYING AGENT"
"PRIOR INTEREST"
"SECURED CREDITOR"
"SECURED DOCUMENT"
"SECURED MONEYS"
"SECURITY TRUSTEE"
"SECURITISATION FUND"
"SUPPLEMENTARY BOND TERMS NOTICE"
"TRANSACTION DOCUMENT"
"WILFUL DEFAULT" (AS DEFINED IN CLAUSE 26.24 OF THE MASTER
TRUST DEED)
(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
28
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; 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
29
any representation, warranty, conduct, omission,
agreement or transaction related to this Agreement..
(b) The parties other than Party B may not ▇▇▇ 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 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 breach of trust 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 provisions 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 enure 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 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.
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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 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 any
necessary 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):
32
(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.
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 credit rating of Party A (or any
applicable assignee or its guarantor) shall have (1) in the
case of S&P a short-term credit rating of less than A-1+ by
S&P, or (2) in the case of Moody's a long term credit rating
of less than A2 by Moody's or a short term credit rating of
less than P-1 by Moody's, then Party A shall immediately
notify the Designated Rating Agencies and Party B and within 5
Local Business Days (or 30 Local Business Days if the
downgrade is to no less than A-1 (S&P short term) and A3
(Moody's long term)) of such downgrade (unless during this
period, Party A and Party B receive written confirmation from
S&P 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 ▇▇▇▇-to-market collateral
agreement (consisting of either cash or securities)
which may be based either on S&P's swap criteria at
that 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 and Moody's that
the rating assigned to the Notes then outstanding by
S&P and ▇▇▇▇▇'▇ is not adversely affected by the
downgrade following such collateral arrangements being
put in place;
33
(B) novate all its rights and obligations with respect to
this Agreement to a replacement third party whose
credit rating is (1) in the case of S&P a short-term
credit rating of at least A-1+ by S&P, or (2) in the
case of Moody's a long term credit rating of at least
A2 by Moody's or a short term credit rating of at least
P-1 by Moody's;
(C) procure that its obligations with respect to this
Agreement are guaranteed by a third party whose
credit rating is (1) in the case of S&P 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) in the
case of Moody's a long term credit rating of at least
A2 by Moody's or a short term credit rating of at
least P-1 by Moody's; 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 novates its rights and obligations to a
replacement counterparty in accordance with sub-paragraph
(i)(B) above, Party B , 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:
(A) Party A is assigned (1) in the case of S&P a
short-term credit rating of at least A-1+ by S&P, or
(2) in the case of Moody's a long term credit rating
of at least A2 by Moody's or a short term credit
rating of at least P-1 by Moody's; or
(B) Party A's obligations under this Agreement are
novated in accordance with sub-paragraph (i)(B)
above; or
(C) a third party provides a guarantee in accordance with
paragraph (i)(C) above; or
(D) some other arrangement is entered into in accordance
with paragraph (i)(D) above,
Party A shall be immediately entitled to any collateral which
it has provided together with any interest which has accrued
but not been paid to Party A under paragraph (v) (less any
amount withdrawn in accordance with sub-paragraph (iv)).
(iv) Cash collateral provided by Party A must be deposited into a
bank account (the COLLATERAL ACCOUNT) with a bank having (1)
in the case of S&P a short-term credit rating of at least A-1+
by S&P, or (2) in the case of Moody's a long term credit
rating of at least A2 by Moody's or a short term credit rating
of at least P-1 by Moody's. The Collateral Account must be in
the name of Party B and must bear interest at a commercial
rate 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). No money may
be paid into the Collateral Account other than cash collateral
and interest payable on the money credited to of the
Collateral Account.
34
(v) Party B may only make withdrawals from the Collateral Account
into which collateral is provided by Party A if directed to do
so by the Manager and then only for the purpose of:
(A) novating the rights and obligations of Party A 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; or
(E) funding the amount of any payment due to be made by
Party A under this Agreement if Party A fails to make
that payment and any applicable grace period has
expired.
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.
(vi) The provision of collateral by Party A under this Part 5(x) is
not intended to create a charge.
(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.
35
(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 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 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 this Agreement in respect of each
Affected Transaction an Affiliate of 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" and in respect of
which a deduction or withholding on account of Tax
would not be necessary.
(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 or the Security Trust Deed".
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:
36
(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.
(ee) FRAUD AND SECURITY
(i) Each party is responsible for the accuracy and authorisation
of all its instructions.
(ii) Any credit limit, in respect of a party ("PARTY X") is imposed
for the other pearty's ("PARTY Y") benefit. Party X must not
rely upon it as a security feature. Party Y may, in its
absolute discretion, process, or decline to process, a request
for a Transaction(s) in excess of the credit limit, without
further reference to Party X. Party Y may, in its absolute
discretion, disapprove a request for a Transaction(s) in
excess of the credit limit despite Party Y having previously
approved a request for a Transaction(s) in excess of the
credit limit.
(iii) Nothing in this clause allows a party to terminate a
previously agreed Transaction.
(ff) THIRD PARTY PAYMENT INSTRUCTIONS
In Section 12(a) in the second line add after "messaging system":
"and each party agrees that it will not make any payment under
or in connection with this Agreement to an entity other than
the other party to this Agreement or its nominee or at its
direction".
(gg) SET OFF RIGHT
The parties acknowledge that they have entered or intend to enter into
certain Relevant Swap Transactions under this Agreement, and that under
Section 17 of this Agreement, each Relevant Swap Transaction is a
separate agreement between them (each a "SWAP AGREEMENT"). Party B
agrees that any amount that becomes payable by one party ("PARTY X") to
the other party ("PARTY Y") under Section 6(e) of a Swap Agreement may,
at Party X's option, be set off against any amount payable by Party Y
to Party X under Section 6(e) of any other Swap Agreement if those
Section 6(e) amounts are payable under the relevant Swap Agreement:
(i) at the same time; and
37
(ii) in each case, as a result of an Event of Default with respect
to Party B or a Termination Event where Party B is the sole
affected party.
For this purpose, the amount payable by Party X under one Swap
Agreement may be converted by Party X into the currency in which the
amount owing to it under the other Swap Agreement is denominated at the
rate of exchange at which Party X would be able, acting in a reasonable
manner and in good faith, to purchase the relevant amount of such
currency.
38
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.
"Set off right
SIGNED FOR AND ON BEHALF OF AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED BY:
______________________________ _______________________________
(Signature) (Signature)
______________________________ _______________________________
(Name - (please print)) (Name - (please print))
______________________________ _______________________________
(Title) (Title)
Date: ____________________ Date: ____________________
SIGNED FOR AND ON BEHALF OF PERPETUAL TRUSTEES AUSTRALIA LIMITED
By:________________________ By:___________________________
Name: Name:
Title: Title:
Date: Date:
By:________________________ By:___________________________
Name: Name:
Title: Title:
Date: Date:
SIGNED FOR AND ON BEHALF OF ME PORTFOLIO MANAGEMENT LIMITED
By:________________________
Name:
Title:
Date:
By:________________________
Name:
Title:
Date:
39