SCHEDULE
TO THE
MASTER AGREEMENT (1992 ISDA MULTI-CURRENCY CROSS BORDER)
DATED AS OF [o]
BETWEEN
[o] ABN [o]
("PARTY A")
AND
PERPETUAL LIMITED ABN 86 ▇▇▇ ▇▇▇ ▇▇▇
in its capacity as trustee of the Securitisation Fund
("PARTY B")
AND
ME PORTFOLIO MANAGEMENT LIMITED ABN 79 005 964 134
in its capacity as manager of the Securitisation Fund
("MANAGER")
PART 1. TERMINATION PROVISIONS
(a) "Specified Entity" means:
(i) in relation to Party A for the purposes of:
Section 5(a)(v): Nil
Section 5(a)(vi): Nil
Section 5(a)(vii): Nil
Section 5(b)(iv): Nil
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and
(ii) in relation to Party B for the purposes of:
Section 5(a)(v): Nil
Section 5(a)(vi): Nil
Section 5(a)(vii): Nil
Section 5(b)(iv): Nil
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14.
(c) The following provisions of Section 5 will not apply to Party A or Party
B:
(i) Section 5(a)(ii)
Section 5(a)(iii)
Section 5(a)(iv)
Section 5(a)(v)
Section 5(a)(vi)
Section 5(a)(viii)
Section 5(b)(iii)
Section 5(b)(iv)
(ii) Section 5(b)(ii) will not apply to Party A as the Affected Party
(subject to Part 5(t) of this Schedule).
(d) EVENT OF DEFAULT. 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 Section 2(e) required to be made by it if such failure is not
remedied at or before 10.00am on the tenth Local Business Day after
notice of such failure is given to the party;".
(e) The "BANKRUPTCY" provisions of Section 5(a)(vii) are replaced by:
"An Insolvency Event (as defined in the Security Trust Deed) has occurred
in respect of Party A (which will be the Defaulting Party) or Party B
(which will be the Defaulting Party)".
However the parties agree for the purposes of this Agreement that the
occurrence of an Insolvency Event (as defined in the Security Trust Deed)
in respect of Party B will not constitute an Event of Default provided
that:
(i) within 30 days of that occurrence, Party A, Party B and the Manager
are able to procure the novation of this Agreement and all
Transactions under this Agreement to a third party;
(ii) the Rating Agencies confirm that the novation will not cause a
reduction or withdrawal of the rating of the Notes; and
(iii) Party A and Party B agree to execute a novation agreement in a form
agreed between the parties.
(f) "AUTOMATIC EARLY TERMINATION". The provisions of Section 6(a) will not
apply to Party A nor to Party B.
(g) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e):
(i) Market Quotation will apply.
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(ii) The Second Method will apply.
(h) "TERMINATION CURRENCY" means Australian Dollars.
(i) 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 Notes and the Notes are redeemed as a result (in
which case Party B shall be the Affected Party).
(ii) Party A fails to comply with the requirements of Part 5(t) of this
Schedule (in which case Party A shall be the Affected Party).
(iii) Party A fails to comply with the requirements of Part 5(x) of this
Schedule (in which case Party A shall be the Affected Party).
(j) NOTICE TO TERMINATE. Section 6 is amended by replacing "20 days" in line 3
with "5 Local Business Days".
(k) TRANSFER TO AVOID TERMINATION EVENT. In Section 6(b)(ii), after the words
"another of its Offices or Affiliates" on the seventh line add "(in
respect of which the Rating Agencies confirm that the transfer will not
cause a reduction or withdrawal of the ratings for the Notes, if any)".
(l) EARLY TERMINATION. In Section 6:
(i) add the following sentence at the end of the first paragraph of
Section 6(b)(ii):
"However, if Party B is the Affected Party, then Party B will only
be obliged to make such efforts to effect a transfer in accordance
with this Section 6(b)(ii) as it is able to make by application of
funds available for such application in accordance with the
provisions of the Master Trust Deed".
(ii) add the following sentence at the end of the second paragraph of
Section 6(b)(ii):
"so long as the transfer in respect of that Transaction would not
lead to a rating downgrade, or rating withdrawal, of any rated debt
of Party B that is secured under the Security Trust Deed. However,
if Party A is that other party it must, if so requested by Party B,
use reasonable efforts to make such a transfer to an Affiliate (as
that expression is defined in Section 14) at the expense of Party B
in its capacity as trustee of the Securitisation Fund and such
expense will be an expense of the Securitisation Fund.";
(iii) add the following sentence at the end of the last paragraph of
Section 6(b)(ii):
"However, consent may be withheld if the other party considers that
its credit exposure to the transferor would be adversely affected by
the transfer."
(m) NO SET OFF. Delete the last sentence of the first paragraph in Section
6(e).
(n) RESTRICTED TERMINATION RIGHTS. Add a new Section 6(aa) as follows:
"(AA) RESTRICTED TERMINATION RIGHTS
(i) TERMINATION BY PARTY B. Party B must not designate an Early
Termination Date without the prior written consent of the Note
Trustee (if applicable).
(ii) CONSULTATION. Each Party may only designate an Early
Termination Date following prior consultation with the other
Party as to the timing of the Early Termination Date. Subject
to its duties under the Master Trust Deed and the
Supplementary Bond Terms Notice, Party B may exercise its
rights only on the instructions of the Note
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Trustee (if applicable) and only after consultation between
Party A and the Note Trustee (if applicable). Party B may only
designate an Early Termination Date at the direction of the
Manager.
(iii) PARTY A'S LIMITED RIGHTS IN RELATION TO TAX EVENT.
(a) Notwithstanding Part 1(c)(ii) of this Schedule, Party A
may designate an Early Termination Date if it is an
Affected Party following a Tax Event but only if all
Notes will be redeemed at the full amount of the
Invested Amount (or if the Noteholders by Extraordinary
Resolution have so agreed, at a lesser amount) together
with accrued interest to (but excluding) the date of
redemption.
(b) If a Tax Event occurs where Party A is the Affected
Party and Party A is unable to transfer all its rights
and obligations under this Agreement and each
Transaction to an Affiliate pursuant to Section
6(b)(ii), Party A may, at its cost, transfer all its
rights, powers and privileges and all its unperformed
and future obligations under this Agreement and each
Transaction to any person provided that each 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
Notes.
(iii) 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 transfer of its
obligations under this Agreement in respect of each Affected
Transaction to a third party, which is incorporated in another
jurisdiction, approved by Party A and the Note Trustee (if
applicable) and in respect of which the Rating Agencies
confirm that such transfer to such party will not cause a
reduction or withdrawal of the rating of the Notes".
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PART 2. TAX REPRESENTATIONS
(a) PAYER REPRESENTATIONS.
For the purpose of Section 3(e), Party A and Party B each make the
representation specified below:
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), Section 6(d)(ii) or
Section 6(e)) to be made by it to the other party under this Agreement. In
making this representation, it may rely on:
(i) the accuracy of any representations made by the other party pursuant
to Section 3(f),
(ii) the satisfaction of the agreement of the other party contained in
Section 4(a)(i) or Section 4(a)(iii) and the accuracy and
effectiveness of any document provided by the other party pursuant
to Section 4(a)(i) or Section 4(a)(iii); and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d),
provided that it shall not be a breach of this representation where
reliance is placed on Part 2(a)(ii) above 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):
Party A and Party B represents that it is an Australian resident and
does not derive the payments under this Agreement in part or whole in
carrying on business in a country outside Australia at or through a
permanent establishment of itself in that country.
5
PART 3. DOCUMENTS TO BE DELIVERED
For the purposes of Section 4(a)(i) and Section 4(a)(ii), each party agrees to
deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
PARTY REQUIRED DATE BY WHICH DOCUMENT
TO DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED
-------------------------------- --------------------------------------------- ---------------------------------------------
Party A and Party B Any document or certificate reasonably As soon as reasonably practicable following a
required or reasonably requested by a party request 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 as would reduce the rate at
which deduction or withholding for or on
account of Tax is applied to that payment.
(b) Other documents to be delivered are:
PARTY REQUIRED DATE BY WHICH DOCUMENT
TO DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED
-------------------------------- --------------------------------------------- ---------------------------------------------
Party A, Party B and the Manager A list of authorised signatories for the At the execution of this Agreement and
party and evidence satisfactory in form and thereafter promptly upon any change in
substance to the other party of the authority authorised persons or upon request.
of the authorised signatories of the party to
execute this Agreement and each Confirmation
on behalf of the party.
Party A A copy of the most recent annual report of Upon reasonable request by Party B or the
the party containing consolidated financial Manager.
statements, certified by independent public
accountants and prepared in accordance with
accounting principles that are generally
accepted in the country which Party A is
organised, and such other public information
respecting its condition or operations,
financial or otherwise, as the other party
may reasonably request from time to time.
6
PARTY REQUIRED DATE BY WHICH DOCUMENT
TO DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED
-------------------------------- --------------------------------------------- ---------------------------------------------
Party A The financial data relating to Party A If Party B or the Manager notifies Party A
required to be disclosed by the Manager in that the significance percentage as computed
the Manager's reasonable judgment pursuant to by the Manager in accordance with Regulation
Item 1115(b)(1) of Regulation AB. AB is or becomes 10% or greater, in
accordance with Part 5(x).
Party A The financial statements relating to Party A If Party B or the Manager notifies Party A
required to be disclosed by the Manager in that the significance percentage as computed
the Manager's reasonable judgment pursuant to by the Manager in accordance with Regulation
Item 1115(b)(2) of Regulation AB. AB is or becomes 20% or greater, in
accordance with Part 5(x).
Party A A certificate of an authorised person of At the execution of this Agreement and
Party A certifying that the information thereafter upon the provision of any
provided by Party A to the Manager for use in financial data or financial statements as may
a prospectus is true and accurate in all be required above.
material respects.
The Manager Copies of any reports or accounts relating to Upon reasonable request by Party A subject to
the Securitisation Fund as are produced for not being obliged to deliver any document if
distribution to Noteholders or presentation to do so would breach or infringe any law or
to the Board of Directors of the Manager and legally binding obligation or restraint.
such other information in the Manager's
control regarding the financial condition and
business operations of the Securitisation
Fund as Party A may reasonably require from
time to time
The Manager A copy of the Master Trust Deed certified to The date of this Agreement.
be a true copy by two authorised signatories
of the Manager.
The Manager A copy of any document amending or varying Promptly upon any such document becoming
the terms of the Master Trust Deed certified effective in accordance with its terms.
to be a true copy by two authorised
signatories of the Manager.
7
PARTY REQUIRED DATE BY WHICH DOCUMENT
TO DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED
-------------------------------- --------------------------------------------- ---------------------------------------------
The Manager A copy of the Security Trust Deed and any 5 Local Business Days prior to the date of
disclosure document relating to Notes in the first Transaction made under this
connection with the Securitisation Fund Agreement.
certified to be a true copy by two authorised
signatories of the Manager.
Each of the documents in Part 3(a) and Part 3(b) of this Schedule are covered by
the representation contained in Section 3(d).
8
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):
(i) Address for notices or communications to PARTY A:
Address: [o]
Attention: [o]
Telex No: [o]
Answerback: [o]
Facsimile No: [o]
(ii) Address for notices or communications to PARTY B:
Address: ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: [o]
Telephone: [o]
Answerback: [o]
Facsimile No: [o]
(iii) Address for notices or communications to the MANAGER:
Address: ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Settlements Officer
Telephone: ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Facsimile No. ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇
(b) PROCESS AGENT. For the purpose of Section 13(c):
Party A: Not Applicable
Party B: Not applicable
The Manager: Not applicable
(c) OFFICES. The provisions of Section 10(a) will not apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purposes of Section 10(c):
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. Credit Support Provider means:
9
(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 in force in the State of New South Wales and each
party submits to the non-exclusive jurisdiction of the courts of that
State without reference to choice of law doctrine. Section 13(b)(i) is
deleted and replaced with the following:
"(i) submits to the non-exclusive jurisdiction of the courts of New
South Wales and courts of appeal from them and a reference in
Section 13(b)(ii) to "such court" is a reference to those
courts".
(i) NETTING OF PAYMENTS.
Section 2(c)(ii) will not apply to all Transactions.
(j) "AFFILIATE" will have the meaning specified in Section 14. For the purpose
of Section 3(c) each of Party A, Party B and the Manager are deemed not to
have any Affiliates.
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PART 5. OTHER PROVISIONS
(a) APPLICATION AND ISDA DEFINITIONS.
(i) APPLICATION. Every transaction between the parties which is, or is
described in its confirmation as being, of the type specified in the
table below is a Transaction governed by the terms of this Agreement
(and not any other master agreement) and forms part of this
Agreement unless the parties expressly agree in writing that this
clause is not to apply. This applies whether or not the parties
refer to this Agreement or state that the transaction is governed by
the terms of any other master agreement when entering into the
transaction.
(ii) ISDA DEFINITIONS. The definitions and provisions contained in the
respective ISDA Definitions specified below are incorporated into
each Confirmation of a Transaction between the parties which is, or
is described in its Confirmation as being, of a type specified
below. If there is an inconsistency between those definitions and
provisions and any such Confirmation or this Agreement, the
Confirmation or this Agreement prevails.
TYPE OF
TRANSACTION ISDA DEFINITIONS
---------------- -------------------------------------------------
All Transactions 2000 ISDA Definitions, to the extent they are
relevant and not inconsistent with the above
(the "2000 DEFINITIONS")
(b) PAYMENTS. In:
(i) 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".
(ii) 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) Section 2(a) immediately after Section 2(a)(iii) insert new
paragraphs (iv) and (v) 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 Security Trust Deed applicable to Party B's
obligations and entitlement referred to in Section
2(a)(v)(1) has become, and remains at that time,
enforceable,
then Party A's obligation to make the Party A Payment to Party
B shall be subject to the condition precedent (which shall be
an "applicable condition precedent" for the purpose of Section
2(a)(iii)(3)) that Party A first receives either:
11
(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".
(iv) Add the following new sentence to Section 2(b):
"Each new account so designated must be in the same tax jurisdiction
as the original account."
(c) Section 3(a)(v) is modified by adding in the fourth line thereof the words
"including without limitation in the case of Party A being an authorised
deposit taking institution authorised to carry on banking business in the
Commonwealth of Australia, Section 13A(3) of the Banking ▇▇▇ ▇▇▇▇ (Cth)
and Section 86 of the Reserve Bank ▇▇▇ ▇▇▇▇ (Cth) or any amending or
replacement legislation as may be in effect" after the word "generally".
(d) ADDITIONAL REPRESENTATIONS. In addition to the representations in Section
3, the parties make the following representations:
(i) 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):
(A) 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.
(B) 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.
(C) STATUS OF PARTIES. The other party is not acting as a
fiduciary or an adviser to it in respect of that Transaction.
(ii) 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 this Agreement or any Transaction (other
than, in respect of Party B, the Securitisation Fund created
pursuant to the Master Trust Deed and the charge given pursuant to
the Security Trust Deed).
(iii) CONTRACTING AS PRINCIPAL. Subject to Section 15, each Transaction
has been entered into by that party:
(A) in the case of Party A, as principal and not otherwise; and
(B) in the case of Party B, in its capacity as trustee of the
Securitisation Fund and not otherwise.
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(e) ADDITIONAL COVENANT. In Section 4 add a new paragraph as follows:
"(f) CONTRACTING AS PRINCIPAL. Subject to Section 15, Party A will enter
into all Transactions as principal and not otherwise and Party B
will enter into each Transaction in its capacity as trustee of the
Securitisation Fund constituted under the Master Trust Deed and not
otherwise."
(f) TRANSFER. Section 7 is deleted and replaced with the following:
"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 and
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, the trusts and fiduciary obligations created pursuant to
the Master Trust Deed and any charge created by the Security Trust
Deed). 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 under Section
6(b)(ii);
(ii) restricts a transfer by a party or any part of its interest in
any amount payable to it from a Defaulting Party under Section
6(e);
(iii) restricts a transfer by a party after the other party has
agreed to the variation of this Agreement to the extent
necessary to permit such transfer; or
(iv) restricts a transfer by a Security Trustee pursuant to the
exercise of its powers under a Security Trust Deed.
(c) Unless otherwise agreed by the parties, S&P, ▇▇▇▇▇'▇ and ▇▇▇▇▇
Ratings, any transfer or assignment pursuant to this Section 7 must
be made to an entity of which each of these rating agencies have
confirmed will not result in a reduction or withdrawal of the then
rating for any outstanding Notes by each of those rating agencies.
(d) 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)."
(g) AMENDMENT. In Section 9, add at the end of Section 9(b):
"Any amendment made under this Section 9(b) may only be made after S&P,
and ▇▇▇▇▇'▇ and Fitch Ratings have confirmed in writing that such proposed
amendment will not result in a reduction or withdrawal of the then rating
of any outstanding Notes by each of those Rating Agencies."
(h) 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
Section 6 may not be given by facsimile transmission or electronic
messaging system)"; and
(ii) delete Section 12(a)(iii) 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
13
recipient notifies the sender within one Local Business Day of
the facsimile being sent that the facsimile was not received
in its entirety in legible form;".
(i) DEFINITIONS: In Section 14:
(i) Section 14 is renumbered as Section 14(a);
(ii) delete the definition "Affected Transactions" and insert the
following:
""AFFECTED TRANSACTIONS" means all Transactions.";
(iii) insert the following new definitions:
"COMMISSION" means the United States Securities and Exchange Commission.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as
amended.
"INFORMATION MEMORANDUM" means the Information Memorandum prepared by the
Manager in relation to a Securitisation Fund.
"MASTER TRUST DEED" means a Master Trust Deed dated 4 July 1994 (as
amended and restated) made between the Manager (formerly called
Superannuation Members' Home Loans Limited) as manager and Party B
(formerly called Perpetual Trustees Australia Limited) as trustee,
pursuant to which the trust funds, collectively known as the
"Superannuation Members' Home Loans Trusts", are constituted, including
the Securitisation Fund.
"RATING AGENCY CONFIRMATION" means, at any time, a confirmation from each
Rating Agency that there will not be a downgrade or withdrawal of the
rating of any of the Notes at that time.
"REGULATION AB" means Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. Sections. 229.1100-229.1123 as may be amended
from time to time and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission or as may be provided by
the Commission or its staff from time to time.
"SECURITISATION FUND" means SMHL Global Fund No. [o].
"SECURITY TRUST DEED" means the security trust deed dated [o] between
Party B, the Manager, the Note Trustee and the Security Trustee.
"SECURITY TRUSTEE" means Perpetual Trustee Company Limited ABN 42 222 221
007.
"SIGNIFICANCE PERCENTAGE" has the meaning given to it in Item 1115 of
Regulation AB.
"SUPPLEMENTARY BOND TERMS NOTICE" means the document so entitled dated [o]
between the Manager and Party B.
"SWAP FINANCIAL DISCLOSURE" means, if the Manager determines reasonably
and in good faith that the significance percentage of this Agreement is or
has become:
(a) 10% or more, the information set forth in Item 1115(b)(1) of
Regulation AB; or
(b) 20% or more, the information set forth in Item 1115(b)(2) of
Regulation AB.
"SWAP FINANCIAL DISCLOSURE REQUEST" means a request by the Manager or
Party B for Party A to provide the Swap Financial Disclosure pursuant to
Part 5(x)(ii) of the Schedule to this Agreement.
"WILFUL DEFAULT" in relation to Party B means a wilful default of the
Master Trust Deed or the Security Trust Deed by Party B:
(a) other than a default which:
(i) arises out of a breach of a Transaction Document by a person
other than Party B;
14
(ii) arises because some other act or omission is a precondition to
the relevant act or omission of Party B, and that other act or
omission does not occur;
(iii) is in accordance with a lawful court order or direction or is
required by law; or
(iv) is in accordance with an instruction or direction given to it
by any person in circumstances where that person is authorised
to do so by any Transaction Document; and
(iv) in circumstances where had it not committed that default it
would have been entitled to recoupment, reimbursement or a
right of indemnity for its costs and expenses (if any)
incurred in complying with the Master Trust Deed or the
Security Trust Deed from the Securitisation Fund.
(iv) Insert the following new Sections 14(b) and (c) after Section 14(a);
"(b) Unless otherwise defined herein, terms defined in the Master
Trust Deed and the Security Trust Deed have the same meaning
where used in this Agreement.
(c) A reference to the "fraud", "negligence" or "Wilful Default"
of Party B means the fraud, negligence or Wilful Default of
Party B and of its officers or employees, but not of its
agents or delegates, unless Party B is liable for the acts or
omissions of such other person under the terms of the Master
Trust Deed or the Security Trust Deed."
(v) Each of the following expressions has the meaning given to them in
the Supplementary Bond Terms Notice:
"INVESTED AMOUNT"
"NOTES"
"NOTEHOLDER"
"NOTE TRUSTEE"
(vi) 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.
(j) MASTER TRUST DEED AND SECURITY TRUST DEED:
Party B and the Manager acknowledge and agree that:
(i) this Agreement and all Transactions under it constitute Secured
Documents under the Security Trust Deed;
(ii) Party A is a Secured Creditor under the Security Trust Deed;
(iii) Party B's obligations under this Agreement and each Transaction
under it constitute Secured Moneys under the Security Trust Deed;
and
(iv) this Agreement is an "Interest Hedge" and a "Transaction Document"
and Party A is an "Interest Hedge Provider" in respect of the
Securitisation Fund under the Security Trust Deed.
(k) Party B also represents to Party A the following representations (which
representations will be deemed to be repeated by Party B on each date on
which a Transaction is entered into) that:
(i) TRUST VALIDLY CREATED. The Securitisation Fund will be or has been
validly created and is in existence at the time a Transaction is
entered into in relation to the Securitisation Fund.
15
(ii) SOLE TRUSTEE. Party B has been validly appointed as trustee 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.
(l) SCOPE OF AGREEMENT. Notwithstanding anything contained in this Agreement
to the contrary, if the parties enter into, or have entered into, any
Specified Transaction, such Specified Transaction shall be subject to,
governed by and construed in accordance with the terms of this Agreement
unless the Confirmation relating thereto shall specifically state to the
contrary. Each such specified Transaction shall be a Transaction for the
purposes of this Agreement.
(m) PROCEDURES FOR ENTERING INTO TRANSACTIONS.
CONFIRMATION OF TRANSACTIONS. Transactions shall be created at the moment
that the parties agree sufficient particulars for completion of a
Confirmation. With respect to each Transaction entered into pursuant to
this Agreement between Party A and Party B, Party A shall, on or promptly
after the relevant Trade Date, send to Party B care of the Manager a
Confirmation confirming that Transaction and the Manager shall on behalf
of Party B promptly then confirm the accuracy of or request the correction
of such Confirmation. The Manager shall send to Party B a copy of such
Confirmation.
(n) INCONSISTENCY. In the event of any inconsistency between any of the
following documents, the relevant document first listed below shall
govern:
(i) a Confirmation;
(ii) the Schedule to this Agreement;
(iii) the other provisions of this Agreement; and
(iv) the ISDA Definitions.
(o) FURTHER ASSURANCES. Each party shall, upon request by the other party (the
"REQUESTING PARTY") at the expense of the requesting party, perform all
such acts and execute all such agreements, assurances and other documents
and instruments as the requesting party reasonably requires to assure and
confirm the rights and powers afforded, created or intended to be afforded
or created, under or in relation to this Agreement and each Transaction or
other dealing which occurs under or is contemplated by it.
(p) Any reference to a:
(i) "Swap Transaction" in the 2000 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" 2000 Definitions.
(q) CONSENT TO RECORDING.
Each Party (i) consents to the recording of the telephone conversations of
trading and marketing personnel of the parties and their 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.
(r) CONSENT TO INFORMATION DISCLOSURE.
16
Each party hereby consents to the communication and disclosure of all
information in respect of this Agreement, the Transactions and all matters
incidental hereto and thereto by the other party to (i) any other branches
of the other party; and (ii) all government and regulatory authorities as
and when required by such government and regulatory authorities.
(s) CONSOLIDATION OF TRANSACTIONS.
(i) From time to time the Manager (on behalf of Party B) may, in respect
of a Securitisation Fund, request more than one Transaction to be
consolidated into one Transaction by notifying Party A of the
Transactions to be consolidated and Party A will issue a replacement
Confirmation for that one consolidated Transaction in substitution
for the original Confirmation for the Transaction.
(ii) Each such consolidation will be on such terms and conditions as
agreed by Party A, Party B and the Manager.
(iii) Party B and the Manager agree to provide Party A with such financial
and other information in relation to the consolidation as Party A
reasonably requires.
(t) RATINGS DOWNGRADE.
(i) If, as a result of the withdrawal or downgrade of its credit rating
by a Rating Agency, Party A does not have any of the following:
(A) a long term credit rating of at least AA- by S&P;
(B) a short term credit rating of at least A-1+ by S&P;
(C) a short term credit rating of at least P-1 by ▇▇▇▇▇'▇
(D) a long term credit rating of at least A2 by ▇▇▇▇▇'▇;
(E) a short term credit rating of at least F1 by Fitch; or
(F) a long term rating of at least A by Fitch Ratings; and
in the case of a downgrade by ▇▇▇▇▇'▇ or ▇▇▇▇▇ Ratings, such a
downgrade would, except for this clause adversely affect the rating
of the relevant securities, Party A shall:
(1) within 30 Local Business Days (or within such greater
period as is agreed to in writing by the relevant Rating
Agency) of a downgrade of its long term credit rating by
S&P to not lower than A- together with a downgrade of
its short term credit rating by S&P to not lower than
A-1, or the downgrade of its long term credit rating by
▇▇▇▇▇'▇ to not lower than A3 or the downgrade of its
long term credit rating by Fitch Ratings to not lower
than A together with a downgrade of its short-term
credit rating by Fitch Ratings to not lower than F1,
comply with Part 5(t)(ii) or Part 5(t)(iii) of this
Schedule; or
(2) within 5 Local Business Days (or within such greater
period as is agreed to in writing by the relevant Rating
Agency) of any other such withdrawal or downgrade of
Party A's short term or long term credit rating by the
relevant Rating Agency not already covered in Part
5(t)(i)(F)(1) of this Schedule, comply with Part
5(t)(ii) or Part 5(t)(iii) of this Schedule provided
that Part 5(t)(ii)(A) of this Schedule will not apply
where the long term credit rating falls to BBB+ (or
less) by Fitch Ratings and the short term credit rating
falls to F2 (or less) by Fitch Ratings,
(ii)
17
(A) In respect of each Transaction, lodge cash collateral (the
"CASH COLLATERAL") with an Approved Bank to the account of
Party B (to be used by Party B solely for the purpose of
discharging Party A's obligations under the relevant
Transaction) in an amount equivalent to the Cash Collateral
Amount as defined in Part 5(t)(iv)(A) of this Schedule. If on
the last Local Business Day in any subsequent week during the
life of the relevant Transaction the aggregate value of the
Cash Collateral lodged pursuant to this Part 5(t)(ii)(A) of
this Schedule falls below the required Cash Collateral Amount
(such shortfall value hereinafter referred to as the
"SHORTFALL"), Party A shall (on demand) provide such further
Cash Collateral to Party B equal to the Shortfall. Any
interest earned on the Cash Collateral shall accrue to Party A
and will constitute additional Cash Collateral lodged by Party
A (and must be returned to Party A in accordance with Part
5(t)(ii)(B) and (C) of this Schedule). Party A will pay any
costs associated with lodgment of the Cash Collateral.
(B) If on the last Local Business Day in any week during the life
of the relevant Transaction the aggregate value of the Cash
Collateral lodged by Party A pursuant to Part 5(t)(ii)(A) of
this Schedule (including any interest earned on the Cash
Collateral) exceeds the required Cash Collateral Amount (as
determined pursuant to sub-clause Part 5(t)(iv)(A) of this
Schedule) (such excess value hereinafter referred to as the
"EXCESS COLLATERAL"), Party A may give notice thereof to Party
B requiring the return of the Excess Collateral. Party B must
repay such Excess Collateral to Party A within three Local
Business Days of receipt of such notice.
(C) Upon the occurrence of any of the following:
(1) the subsequent upgrade of
(i) either Party A's long term credit rating by S&P to
at least AA- or its short term credit rating by
S&P to at least A-1+; and
(ii) the upgrade of its long term credit rating by
▇▇▇▇▇'▇ to at least A2 and short term credit
rating to at least P-1 by ▇▇▇▇▇'▇ and an upgrade
of its long term credit rating by Fitch Ratings to
at least A and short-term credit rating to at
least F1; or
(2) the termination, cessation or conclusion of the relevant
Transaction to which it relates,
Party A may give notice thereof to Party B requiring the
return of any Cash Collateral lodged by Party A pursuant to
Part 5(t)(ii)(A) of this Schedule (including any interest
earned on the Cash Collateral) and not previously returned to
Party A pursuant to Part 5(t)(ii)(B) of this Schedule. Party B
must, with the approval of the Rating Agencies (such approval
not to be unreasonably withheld), repay all such Cash
Collateral to Party A within three Local Business Days of
receipt of such notice from Party A.
(iii) At the cost of Party A, enter into an agreement novating this
Agreement and each relevant Transaction to a replacement
counterparty proposed by any of Party A, Party B or the Manager (if
any) and which each Rating Agency has confirmed will result in there
not being a withdrawal or downgrade of any credit rating, assigned
by it, to the Notes or enter into such other arrangements which each
Rating Agency has confirmed will result in there not being a
withdrawal or downgrade of any credit rating assigned by it to the
Notes. Party B shall return to Party A all Cash Collateral lodged by
Party A pursuant to sub-clause Part 5(t)(ii)(A) of this Schedule and
not previously returned to Party A pursuant to Part 5(t)(ii)(B) of
this Schedule within one Local Business Day of such novation or
other arrangement.
18
(iv) For the purpose of this Part 5(t) of this Schedule:
(A) CASH COLLATERAL AMOUNT means an amount equal to the greater of
the following:
(1) zero;
(2) CR in the case of single currency interest rate
Transactions and CCR in the case of cross currency
interest rate Transactions; and
(3) an amount acceptable to ▇▇▇▇▇'▇ and Fitch and sufficient
to maintain the credit rating assigned to the Notes by
▇▇▇▇▇'▇ and Fitch immediately prior to the review of
Party A's credit rating; and
(B) APPROVED BANK means, in the case of single currency interest
rate transactions a Bank which has a short-term rating of at
least A-1+ (S&P), P-1 (▇▇▇▇▇'▇) and F1 (Fitch Ratings) and in
the case of cross currency interest rate Transactions, a Bank
which is located outside Australia which has a short-term
rating of at least A-1+ (S&P), P-1 (▇▇▇▇▇'▇) and F1 (Fitch
Ratings). The Approved Bank must be an entity that each Rating
Agency confirms will not affect the rating of the Notes.
(C) For the purpose of Part 5(t)(iv)(A) of this Schedule,
CCR means CR x 1.030;
CR means MTM + VB;
MTM means the ▇▇▇▇-to-market value of the swap. Party A will
have to ▇▇▇▇ the swap to market and post collateral on a
weekly basis, with a grace period of 3 Local Business Days.
The ▇▇▇▇-to-market value should reflect the higher of 2 bids
from counterparties that will be eligible and willing to
provide the swap in the absence of Party A; and
VB means the volatility buffer, being the relevant percentage
of the Notional Amount of the relevant Transaction calculated
from the following table:
VOLATILITY BUFFER (%)
TRANSACTIONS WITH
TRANSACTIONS WITH MATURITIES OF MORE TRANSACTIONS WITH
COUNTERPARTY MATURITIES OF UP TO 5 THAN 5 YEARS AND UP TO MATURITIES OF MORE
RATING YEARS 10 YEARS THAN 10 YEARS
------------ --------------------- ----------------------- ------------------
A+ 1.05 1.75 3.0
A 1.35 2.45 4.5
A-1 1.5 3.15 6.0
(u) TRUSTEE PROVISIONS
Insert the following new Section 15 after Section 14:
"15. TRUSTEE PROVISIONS
(a) TRUSTEE UNDERTAKINGS. Party B undertakes that it will, subject
to its duties and obligations under the Master Trust Deed:
(i) exercise its rights of indemnity out of the assets of
the Securitisation Fund;
(ii) observe its obligations under the Master Trust Deed and
otherwise as trustee of the Securitisation Fund; and
19
(iii) not knowingly do anything which could impair its right
of indemnity out of the assets of the Securitisation
Fund.
(b) TRUSTEE REPRESENTATIONS. In addition to the representations in
Section 3, Party B represents to Party A (which
representations will be deemed to be repeated at all times
until termination of this Agreement) that:
(i) its execution and delivery of this Agreement and of any
document required or contemplated by this Agreement, and
the performance by it of its obligations under this
Agreement are authorised under the Master Trust Deed;
(ii) it is the present and only trustee of the Securitisation
Fund;
(iii) subject to the Master Trust Deed and the law there is no
restriction on its right of recourse or indemnity to or
out of the assets for the time being of the
Securitisation Fund and to the best of its knowledge and
belief nothing has happened which could impair its right
of indemnity out of the assets of the Securitisation
Fund;
(iv) its entry into this Agreement and each Transaction in
relation to the Securitisation Fund is for the benefit
of and in the interests of the beneficiaries of the
Securitisation Fund; and
(v) it is not in material breach of any provision of the
Master Trust Deed nor has it committed any material
breach of duty or trust in respect of the Securitisation
Fund which has not been waived by Party A.
(c) Capacity of Party B.
(i) 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)(iii) 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.
(ii) The parties other than Party B may not ▇▇▇ Party B in
any capacity other than as trustee of the Securitisation
Fund or seek the appointment of a receiver (except in
relation to the assets of the Securitisation Fund), or a
liquidator, an administrator or any similar person to
Party B or prove in any liquidation, administration or
arrangement of or affecting Party B (except in relation
to the assets of the Securitisation Fund).
(iii) 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.
20
(iv) 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 Section 15(c)(iii) 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.
(v) No attorney, agent, receiver or receiver and manager
appointed in accordance with this Agreement has
authority to act on behalf of Party B in a way which
exposes Party B to any personal liability and no act or
omission of any such person will be considered fraud,
negligence or Wilful Default of Party B for the purpose
of Section 15(c)(iii).
(vi) Party B is not obliged to do or refrain from doing
anything under this Agreement (including incur any
liability) unless Party B's liability is limited in the
same manner as set out in Section 15(c)(iii).
(v) ROLE OF THE MANAGER
The Manager:
(i) may on behalf of Party B arrange, enter into and monitor
Transactions and novations of Transactions, execute Confirmations,
and exercise all other rights and powers of Party B hereunder;
(ii) shall, without limiting the generality of the foregoing, issue and
receive Confirmations, Certificates and other communications to or
by Party A hereunder;
(iii) must provide copies of all Confirmations and notices given by Party
A to Party B promptly upon receipt of such notices from Party A; and
(iv) must provide at least 2 Local Business Days prior notice to Party B
of the details of any proposed Transaction or novation of
Transactions.
A failure by the Manager to give notice to Party B under the above
provisions will not of itself affect the validity of any Transaction or
novation of Transaction. For the avoidance of doubt, a Transaction or
novation of Transaction entered into by the Manager on behalf of Party B
as contemplated under this Agreement is binding on each of Party A, Party
B and the Manager."
(w) APPOINTMENT OF MANAGER. Party A acknowledges that under the Master Trust
Deed the Manager is appointed manager of the Securitisation Fund with the
powers set out in and upon and subject to the terms of, the Master Trust
Deed.
(x) REGULATION AB FINANCIAL DISCLOSURE
(i) Party A acknowledges that for so long as there are reporting
obligations with respect to any Transaction under this Agreement
under Regulation AB, the Manager is required under Regulation AB to
disclose certain information set forth in Regulation AB regarding
Party A or its group of affiliated entities, if applicable,
depending on the aggregate significance percentage of this Agreement
and any other derivative contracts between Party A or its group of
affiliated entities, if applicable, and Party B, as calculated from
time to time in accordance with Item 1115 of Regulation AB.
21
(ii) If the Manager determines, reasonably and in good faith, that the
significance percentage of this Agreement is or has become:
(A) 10% or more; or
(B) 20% or more,
then on any Local Business Day after the date of such determination,
Party B or the Manager may request Party A to provide the relevant
Swap Financial Disclosure.
(iii) Party A, at its own expense, shall within four Local Business Days
after receipt of a Swap Financial Disclosure Request provide the
Manager with the relevant Swap Financial Disclosure.
(iv) If Party A is not able to provide the relevant Swap Financial
Disclosure in accordance with Part 5(x)(iii) of this Schedule, then
Party A shall:
(A) secure another entity to replace Party A as party to this
Agreement on terms substantially similar to this Agreement
which entity is able to and will provide the Swap Financial
Disclosure for such entity within the time period specified in
Part 5(x)(iii) of this Schedule (subject to Rating Agency
Confirmation having been obtained and to approval by the
Manager (which approval will not be unreasonably withheld or
delayed)); or
(B) obtain a guarantee of Party A's obligations under this
Agreement from an affiliate of Party A that is able to provide
the Swap Financial Disclosure for such affiliate, such that
disclosure provided in respect of the affiliate will satisfy
any disclosure requirements applicable to Party A, and cause
such affiliate to provide Swap Financial Disclosure within the
time period specified in Party 5(x)(iii) of this Schedule
(subject to Rating Agency Confirmation and to approval by the
Manager (which approval will not be unreasonably withheld or
delayed)).
(v) The parties agree that, if permitted by Regulation AB, any required
Swap Financial Disclosure may be provided by incorporation by
reference from reports filed pursuant to the Exchange Act.
22
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 Agreement.
PARTY A: PARTY B:
[o] PERPETUAL LIMITED
----------------------------------- ---------------------------------------
Name: Name:
Title: Title:
Date: Date:
----------------------------------- ---------------------------------------
Name: Name:
Title: Title:
Date: Date:
THE MANAGER:
ME PORTFOLIO MANAGEMENT LIMITED
-----------------------------------
Name:
Title:
Date:
23
-----------------------------------
Name:
Title:
Date:
24