AMENDING DEED
ISDA MASTER AGREEMENT
WESTPAC BANKING CORPORATION
ABN 33 007 457 141
PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 ▇▇▇ ▇▇▇ ▇▇▇
and
ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
[FREEHILLS LOGO OMITTED]
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TABLE OF CONTENTS
1 DEFINITIONS AND INTERPRETATION 3
2 AMENDMENTS TO THE MASTER AGREEMENT 4
2.1 Amendments to the Schedule to the Master Agreement for SMHL Global Fund No. 5 4
2.2 Amendments not to affect validity, rights, obligations 4
2.3 Acknowledgment 4
3 GENERAL 4
3.1 Governing law and jurisdiction 4
3.2 Attorneys 4
3.3 Counterparts 4
2
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THIS AMENDING DEED
is made on 2003 between the following parties:
1. WESTPAC BANKING CORPORATION
ABN 33 007 457 141
of ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
(PARTY A )
2. PERPETUAL TRUSTEES AUSTRALIA LIMITED
in its capacity as trustee of the Trusts
ABN 86 ▇▇▇ ▇▇▇ ▇▇▇
of ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
(PARTY B)
3. ME PORTFOLIO MANAGEMENT LIMITED
in its capacity as manager of the Trusts
ABN 79 005 964 134
of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
(PARTY C)
RECITALS
A. Party B is a trustee of trusts known as Superannuation
Members' Home Loans Trusts (the TRUSTS) and Party C is
a manager of the Trusts.
B. The parties entered into an ISDA Master Agreement
(including all schedules and annexures) (MASTER
AGREEMENT).
C. Section 9(b) of the Master Agreement permits the
parties to amend the Master Agreement (which includes
the Schedule) and the parties have complied with
Section 9(b) of the Master Agreement in respect of the
amendments to be effected by this deed.
D. The parties wish to amend the Master Agreement in the
manner set out in this deed.
THIS DEED WITNESSES
that in consideration of, among other things, the
mutual promises contained in this deed, the parties
agree:
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1 DEFINITIONS AND INTERPRETATION
In this deed:
(a) EFFECTIVE DATE means in relation to the amendments in
clause 2.1(a), means the date on which the
securitisation fund known as "SMHL Global Fund No. 5"
is established; and
(b) a word or phrase (except as otherwise provided)
defined in the Master Agreement has the same meaning
as in the Master Agreement.
3
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2 AMENDMENTS TO THE MASTER AGREEMENT
2.1 AMENDMENTS TO THE SCHEDULE TO THE MASTER AGREEMENT FOR
SMHL GLOBAL FUND NO. 5
(a) In relation to SMHL Global Fund No. 5 only, the Schedule to
the Master Agreement is amended as shown in Schedule 1 by:
(1) deleting the text which is struck through in
Schedule 1; and
(2) inserting the text which is underlined in
Schedule 1.
(b) The amendments in clause 2.1(a) take effect in respect of
any Transaction entered into after the date of this deed,
unless the parties otherwise expressly agree.
(c) The amendments to the Master Agreement in clause 2.1(a) take
effect from the Effective Date.
2.2 AMENDMENTS NOT TO AFFECT VALIDITY, RIGHTS, OBLIGATIONS
(a) An amendment to the Master Agreement does not affect the
validity or enforceability of the Master Agreement.
(b) Nothing in this deed:
(1) prejudices or adversely affects any right, power,
authority, discretion or remedy arising under the
Master Agreement before the date of this deed; or
(2) discharges, releases or otherwise affects any
liability or obligation arising under the Master
Agreement before the date of this deed.
2.3 ACKNOWLEDGMENT
Each party acknowledges that this deed is issued in accordance
with the Master Agreement.
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3 GENERAL
3.1 GOVERNING LAW AND JURISDICTION
(a) This deed is governed by the laws of New South Wales.
(b) The parties irrevocably submit to the non-exclusive
jurisdiction of the courts of New South Wales.
3.2 ATTORNEYS
Each of the Attorneys executing this deed states that the
attorney has no notice of the revocation of the power of attorney
appointing that attorney.
3.3 COUNTERPARTS
(a) This deed may be executed in any number of counterparts.
(b) All counterparts, taken together, constitute one instrument.
(c) A party may execute this deed by signing any counterpart.
4
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EXECUTED AS A DEED:
SIGNED SEALED AND DELIVERED for
WESTPAC BANKING CORPORATION
by its attorney in the
presence of:
------------------------------------------------ --------------------------------------------------
Witness Attorney
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
PERPETUAL TRUSTEES AUSTRALIA LIMITED
by its attorney in the
presence of:
------------------------------------------------ --------------------------------------------------
Witness Attorney
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
ME PORTFOLIO MANAGEMENT LIMITED
by its attorney in the
presence of:
------------------------------------------------ --------------------------------------------------
Witness Attorney
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
5
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SCHEDULE 1 - AMENDMENTS TO THE SCHEDULE TO THE MASTER AGREEMENT
(Clause 2.1)
6
SCHEDULE
TO THE
MASTER AGREEMENT (1992 ISDA MULTI-CURRENCY CROSS BORDER)
(THE "AGREEMENT")
DATED AS OF _______________ 2001
BETWEEN
WESTPAC BANKING CORPORATION ABN 33 007 457 141 ("PARTY A")
AND
PERPETUAL TRUSTEES AUSTRALIA LIMITED ("PARTY B")
ABN 86 ▇▇▇ ▇▇▇ ▇▇▇
In its capacity as trustee of various Origination Funds and Securitisation
Funds from time to time established under the Master Trust Deed and
nominated to Party A
AND
ME PORTFOLIO MANAGEMENT LIMITED ("PARTY C")
ABN 79 005 964 134
In its capacity as manager of various Origination Funds and Securitisation
Funds from time to time established under the Master Trust Deed and
nominated to Party A
PART 1. TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" means 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
and 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
of this Agreement.
(c) The following provisions of Section 5 will not apply to Party A or
Party B:
(i) Section 5(a)(ii) Section 5(a)(v) Section 5(b)(iii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iv)
Section 5(a)(iv) Section 5(a)(viii)
(ii) Section 5(b)(ii) will not apply to Party A as the Affected Party
(subject to Part 5.2(p) of this Schedule).
(d) The "BANKRUPTCY" provisions of Section 5(a)(vii) are replaced by
7
"Insolvency Event under the Security Trust Deed has occurred in respect
of Party A (which will be the Defaulting Party) or Party B (which will
be the Defaulting Party)". The occurrence of an Insolvency Event in
respect of Party B in its personal capacity will not constitute an
Event of Default provided that within thirty Business Days of that
occurrence, Party A, Party B and Party C are able to procure the
novation of this Agreement and all Transactions to a third party in
respect of which the Rating Agencies confirm that the novation will not
cause a reduction or withdrawal of the rating of the Notes, and Party A
and Party B agree to execute such a novation agreement in standard ISDA
form.
(e) "AUTOMATIC EARLY TERMINATION" - The provisions of Section 6(a) will not
apply to Party A nor to Party B.
(f) PAYMENTS ON EARLY TERMINATION - For the purpose of Section 6(e) of this
Agreement: -
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means Australian Dollars
(H) ADDITIONAL TERMINATION EVENT means:
(i) Party B must, at the direction of Party C, terminate this
Agreement if it becomes obliged to make a withholding or
deduction in respect of any Bonds or Notes and the Bonds or Notes
are redeemed as a result (and Party B is the Affected Party); and
(ii) Party B must, at the direction of Party C, terminate this
Agreement if Party A breaches Part 5.2(o) (and Party A is the
Affected Party);
(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 Rating Agencies confirm that the transfer
will not cause a reduction or withdrawal of the ratings for the Bonds
or Notes, if any)".
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),
6(d)(ii) or 6(e) of this agreement) to be made by it to the other
party under this Agreement. In making this representation, it may rely
on:
(i) the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement,
(ii) the satisfaction of the agreement of the other party contained in
Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy
and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party contained
in Section 4(d) of this Agreement,
8
PROVIDED that it shall not be a breach of this representation where
reliance is placed on clause (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) of this
Agreement:
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.
PART 3. DOCUMENTS TO BE DELIVERED
For the purposes of Section 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:-
(a) Tax forms, documents or certificates to be delivered are:
PARTY REQUIRED TO FORM/DOCUMENT/CERTIFICATE DATE BY WHICH DOCUMENT
DELIVER DOCUMENT TO BE DELIVERED
Parties A & 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 TO FORM/DOCUMENT/CERTIFICATE DATE BY WHICH DOCUMENT
DELIVER DOCUMENT TO BE DELIVERED
Parties A, B and C 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 party containing consolidated financial Party C.
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.
Party C Copies of any reports or accounts relating to Upon reasonable request by Party A subject to
any relevant Origination Fund or not being obliged to deliver any document if
Securitisation Fund as are produced for to do so would beach or infringe any law or
distribution to Bondholders or Noteholders or legally binding obligation or restraint.
presentation to the Board of Directors of
Party C and such other information in Party
C's control regarding the financial condition
and business operations of any relevant
Origination Fund or Securitisation Fund as
Party A may reasonably require from time to
time
9
Party C A copy of the Master Trust Deed certified The date of this Agreement.
to be a true copy by two authorised
signatories of Party C.
Party C 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 Party C.
Party C A copy of the Relevant Security Trust Deed 5 Local Business Days prior to the date of
and Information Memorandum relating to a the first Transaction made under this
Securitisation Fund certified to be a true Agreement relating to that Securitisation
copy by two authorised signatories of Fund
Party C.
Party C A copy of any document amending or varying Promptly upon any such document becoming
the terms of the Relevant Security Trust Deed effective in accordance with its terms.
or the Information Memorandum relating to any
Securitisation Fund certified to be a true
copy by two authorised signatories of Party
C.
Each of the foregoing documents is covered by the representation contained in
Section 3(d) of this Agreement.
10
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES - For the purpose of Section 12(a) of this
Agreement:-
(i) Address for notices or communications to Party A -
Address : Financial Markets Operations
▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ 2000-10-05
Attention: Senior Manager, Global Derivatives Operations
Telex No: AA178147 Answeback: WBCTRS
Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇
(ii) Address for notices or communications to Party B:-
Address: ▇▇▇▇▇ ▇, ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Manager - Securitisation
Telephone: (▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇
(iii) Address for notices or communications to Party C:-
Address: ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
Attention: Settlements Officer
Telephone: (▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇▇ ▇▇▇▇
(b) PROCESS AGENT - For the purpose of Section 13(c) of this Agreement:-
Party A: Not Applicable
Party B: Not applicable
Party C: Not applicable
(c) OFFICES - The provisions of Section 10(a) to this Agreement will not
apply to this Agreement.
(d) MULTIBRANCH PARTY - For the purposes of Section 10(c) of this
Agreement:-
Party A is not a Multibranch Party.
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 and each Securitisation Fund: the Relevant
Security Trust Deed relating to that Securitisation Fund (as the
case may be)
11
(g) CREDIT SUPPORT PROVIDER - Credit Support Provider means:
(i) In relation to PARTY A: nil
(ii) In relation to PARTY B: nil.
(h) GOVERNING LAW - This Agreement 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. The provisions
of Section 13(b) will apply (mutatis mutandis) to this choice of
governing law and submission of jurisdiction.
(i) NETTING OF PAYMENTS.
Subparagraph (ii) of Section 2(c) of this Agreement will not apply to
the following Transactions or group of Transactions (in each case
starting from the date of this Agreement).
All Transactions being of the same type.
(J) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. However, for the purpose of Section 3(c) each of Party A,
Party B and Party C are deemed not to have any Affiliates.
PART 5. OTHER PROVISIONS
5.1 MODIFICATIONS TO THE AGREEMENT
(a) SINGLE AGREEMENT: Section 1(c) is replaced with:
"All Transactions are entered into in reliance on the fact that this
Master Agreement and all Transactions (as evidenced by their
Confirmations) form a single contract (collectively referred to as
this "Agreement") and the parties would not otherwise enter into any
Transactions. The entering into of each Transaction takes effect as an
amendment to this Agreement (but no such amendment is effective to
defeat or prejudice the operation of Section 15)."
(b) PAYMENTS: In Section 2:
(i) 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".
(ii) In Section 2(a)(ii) insert immediately after the words "freely
transferable funds" the following words:
", free of any set-off, counterclaim, deduction or withholding
(except as expressly provided in this Agreement)".
(iii) Insert new paragraphs (iv) and (v) in Section 2(a) immediately
after Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not
apply to a payment due to be made to a party if it has
satisfied all its payment and delivery obligations under
Section 2(a)(i) and has no future payment or delivery
obligations, whether absolute or contingent under Section
2(a)(i).
(v) Where:
(1) payments are due pursuant to Section 2(a)(i) by
Party A to Party B (the "PARTY A PAYMENT") and by
Party B to Party A (the "PARTY B PAYMENT") on the
same day; and
(2) the Relevant 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:
(3) the Party B Payment; or
12
(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."
(v) Delete the Section 2(d)(i)(4) and Section 2(d)(ii).
(c) Section 3(a)(v) of this Agreement 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, Subsection
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 Section 3 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 or given any
charge over any of its rights under this Agreement or any
Transaction (other than, in respect of Party B, the Origination
Funds or Securitisation Funds created pursuant to the Master
Trust Deed and the charge given pursuant to the Relevant Security
Trust Deed).
(h) CONTRACTING AS PRINCIPAL. Subject to Section 15, each
Transaction has been entered into by that party:
(i) in the case of Party A, as principal and not
otherwise; and
(ii) in the case of Party B, in its capacity as trustee
of the Relevant Securitisation Fund and not
otherwise.
(i) EXPERTISE:
(i) In the case of Party A, it has sufficient knowledge and
expertise to enter into each Transaction and is relying
on its own judgement and not on the advice of Party B.
(ii) In the case of Party B, it relies on the knowledge,
expertise and judgement of Party C in entering into each
Transaction and does not rely on the advice of Party A."
(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 an Origination Fund or Securitisation Fund constituted
under the Master Trust Deed and not otherwise."
(f) 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 2(e) required to be made by it if such failure is not
remedied:
(1) in respect of any Relevant Securitisation Fund which has
"SMHL Global" included in its name, at or before 10.00am on
the tenth Local Business Day after notice of such failure is
given to the party;
13
(2) in respect of the Relevant Securitisation Fund (other than a
Relevant Securitisation Fund which has "SMHL Global" included
in its name), at or before 10.00am on the fifth Local
Business Day after notice of such failure is given to the
party;"
(g) 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 relevant
Origination Fund and the Relevant Securitisation Fund (as the
case may be) and such expense will be an expense of the relevant
Origination Fund and the Relevant Securitisation Fund (as the
case may be).";
(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."
(h) Delete the last sentence of the first paragraph in Section 6(e).
(i) 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 Relevant 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 Relevant
Security Trust Deed.
14
(c) Unless otherwise agreed by the parties, Standard & Poor's
Ratings Group, ▇▇▇▇▇'▇ Investors Service and Fitch 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 Bonds or Notes (as
the case may be) 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)."
(j) MISCELLANEOUS: In Section 9(b):
(i) the first word "No" is replaced with:
"Except to the extent that the entering into of each Transaction
takes effect as an amendment to this Agreement (in the manner and
subject to the qualification referred to in Section 1(c), as
varied by this Schedule), no"; and
(ii) add at the end of Section 9(b):
"Any amendment made under this Section 9(b) may only be made
after Standard & Poor's Ratings Group, and ▇▇▇▇▇'▇ Investors
Service 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 Bonds or Notes (as the case
may be) by each of those rating agencies."
(k) 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 Sections 5 or
6 may not be given by facsimile transmission or electronic
messaging system)"; and
(ii) delete paragraph (iii) of Section 12(a) and insert instead:
"(iii) if sent by facsimile, on production of a transmission
report by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient notified for the purpose of
this Section unless the recipient notifies the sender within one
Business Day of the facsimile being sent that the facsimile was
not received in its entirety in legible form;".
(l) 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:
"INFORMATION MEMORANDUM" means the Information Memorandum
prepared by Party B and Party C in relation to a Securitisation
Fund.
"MASTER TRUST DEED" means a Master Trust Deed dated 4 July 1994
(as amended) made between Party C (formerly called Superannuation
Members' Home Loans Limited) as manager and Party B as trustee,
pursuant to which the trust funds, collectively known as the
"Superannuation Members' Home Loans Trusts" are constituted.
"RELEVANT SECURITY TRUST DEED" means the relevant security trust
deed created by Party B, in its capacity as trustee of the
Relevant Securitisation Fund, granting security over the assets
of that fund to secure the obligations of Party B as trustee of
the relevant Securitisation Fund.
15
"RELEVANT SECURITISATION FUND" means, in relation to a
Transaction, the Securitisation Fund specified in the
Confirmation relating to that Transaction.
"SECURITISATION FUNDS" means the Securitisation Funds created
under the Master Trust Deed from time to time, and
"SECURITISATION FUND" means any of them.
"SUPPLEMENTARY BOND TERMS NOTICE" has the meaning given to it in
the Master Trust Deed.
"WILFUL DEFAULT" in relation to Party B means a wilful default of
the Master Trust Deed or the Relevant Security Trust Deed (as the
case may be) by Party B:
(i) other than a default which:
(A) arises out of a breach of a Transaction Document by a
person other than Party B;
(B) arises because some other act or omission is a
precondition to the relevant act or omission of Party
B, and that other act or omission does not occur;
(C) is in accordance with a lawful court order or
direction or is required by law; or
(D) is in accordance with an instruction or direction
given to it by any person in circumstances where that
person is authorised to do so by any Transaction
Document; and
(ii) 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 Relevant Security Trust Deed (as the case may be) from
the Fund.
(iii) 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 Relevant Security Trust Deed
(as the case may be).
(iv) Insert the following new Section 14(b) after Section
14(a);
"(b) Unless otherwise defined herein, terms defined in the
Master Trust Deed and the Relevant Security Trust Deed (as
the case may be) have the same meaning where used in this
Agreement."
(v) Each of the following expressions has the meaning given to
them in the Supplementary Bond Terms Notice:
"INVESTED AMOUNT"
"NOTES"
"NOTEHOLDER"
"NOTE TRUSTEE"
(m) MASTER TRUST DEED AND RELEVANT SECURITY TRUST DEED:
Party B and Party C acknowledge and agree that:
(a) this Agreement and all Transactions under it constitute Secured
Documents under each Relevant Security Trust Deed; and
(b) Party A is a Secured Creditor under each Relevant Security Trust
Deed; and
(c) Party B's obligations under this Agreement and each Transaction
under it constitute Secured Moneys under each Relevant Security
Trust Deed.
(n) Party B also represents to Party A the representations in (ii) and
(iii) below (will be deemed to be repeated by Party B on each date on
which a Transaction is entered into) that:
16
(i) TRUST VALIDLY CREATED. Each Origination Fund and Securitisation
Fund (as the case may be) will and has been validly created and
is in existence at the time a Transaction is entered into in
relation to that Origination Fund or Securitisation Fund (as the
case may be).
(ii) SOLE TRUSTEE. Party B has been validly appointed as trustee and
is presently the sole trustee of each Origination Fund and
Securitisation Fund (as the case may be).
(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 each Origination Fund or Securitisation Fund (as the case may
be).
(iv) POWER. Party B has power under the Master Trust Deed to enter
into this Agreement and each Relevant Security Trust Deed in its
capacity as trustee of each Origination Fund and Securitisation
Fund (as the case may be).
(o) TRUSTEE PROVISIONS: Insert the following new Section 15 after Section
14:
"15 CAPACITY OF PARTY B AND SEGREGATION OF FUNDS
(a) Party B enters into this agreement only in its capacity as
trustee of each relevant Fund established under the Master
Trust Deed from time to time and in no other capacity. A
liability arising under or in connection with this Agreement
is limited to and can be enforced against Party B only to the
extent to which it can be satisfied out of property of the
Fund out of which Party B is actually indemnified for the
liability. This limitation of Party B's liability applies
despite any other provision of this Agreement (except as noted
in this Section 15) and extends to all liabilities and
obligations of Party B in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this Agreement.
(b) The parties other than Party B may in respect of this
Agreement not ▇▇▇ Party B in any capacity other than as
trustee of the relevant Fund, including seek the appointment
of a receiver (except in relation to property of the Fund), a
liquidator, an administrator or any similar person to Party B
or prove in any liquidation, administration or arrangement of
or affecting Party B (except in relation to property of the
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 Trust Deed or by operation of
law there is a reduction in the extent of Party B's
indemnification out of the assets of the relevant Fund, as a
result of Party B's fraud, negligence or Wilful Default.
(d) It is acknowledged that Party C is responsible under the
Master Trust Deed for performing a variety of obligations
relating to the Funds, including under this Agreement. No act
or omission of Party B (including any related failure to
satisfy its obligations or breach of 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
Party C or any other person to fulfil its obligations relating
to the Funds or by any other act or omission of Party C or any
other person.
(e) Party B is not obliged to do or refrain from doing anything
under this Agreement (including incurring any liability)
unless Party B's liability is limited in the same manner as
set out in paragraphs (a) to (c) of this Section 15.
(f) Without limiting the generality of Sections 15(a) to (e)
inclusive, the provisions of this Agreement shall have effect
severally in respect of each Fund and shall be enforceable by
or against Party B in its capacity as trustee of each such
Fund as though a separate Agreement applied between Party A
and Party B for each of Party B's said several capacities, to
the intent that (inter alia):
(i) unless the context indicates a contrary intention,
each reference to "Party B" in this Agreement shall
be construed as a several reference to Party B in its
respective capacities as trustee of each Fund;
(ii) this Agreement together with each Confirmation
relating to a particular Fund will form a single
separate agreement between Party A, Party C in its
capacity as manager of that Fund and Party B in its
capacity as trustee of that Fund 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 and Party B shall be construed accordingly as
a several reference to each mutual set of obligations
arising under each such separate agreement between
Party
17
A and Party B in its several capacities as trustee of
each Fund and Party C in its several capacities as
Manager of each Fund;
(iii) representations made and agreements entered by the
parties under this Agreement are made and entered in
the case of Party B severally by Party B in its
respective capacities as trustee of each Fund and, in
the case of Party C, made and entered severally by
Party C in its respective capacities as manager of
each Fund and may be enforced by Party B or Party C
(as the case requires) against Party A severally in
Party B's or Party C's (as the case requires) said
several capacities;
(iv) rights of termination, and obligations and
entitlements consequent upon termination, only accrue
to Party A against Party B severally in Party B's
respective capacities as trustee of each Fund, and
against Party C severally in Party C's respective
capacities as manager of each Fund and only accrue to
Party B against Party A severally in Party B's said
several capacities and only accrue to Party C against
Party A severally in Party C's said several
capacities; and
(v) without limiting Section 15(f)(iv), the occurrence of
an Event of Default or Termination Event in respect
of one Fund shall not in itself constitute an Event
of Default or Termination Event in respect of any
other Fund."
5.2 ADDITIONAL PROVISIONS
(a) ISDA DEFINITIONS. Reference is hereby made to the ISDA Definitions
("the 1991 Definitions") and the 1998 Supplement to the 1991
Definitions (collectively the "ISDA Definitions"), as published by the
International Swap and Derivatives Association, Inc., which are hereby
incorporated by reference herein. Any terms used and not otherwise
defined herein which are contained in the ISDA Definitions, shall have
the meaning set forth therein.
(b) SCOPE OF AGREEMENT. Notwithstanding anything contained in the 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.
(c) ROLE OF PARTY C:
Party C:
(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) without limiting the generality of the foregoing, Party C, will
issue, and receive, Confirmations, certificates and other
communications to or by Party A hereunder;
(iii) must provide copies of all Confirmations and notices given under
the Master Novation Annex to Party B promptly upon receipt of
such Confirmations and notices from Party A; and
(iv) must provide to Party B, at the same time as the notice of the
details of the loan pool allocation is provided to Party B, a
notice of the details of any proposed Transaction or novation of
Transaction.
A failure of Party C 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 effected into by Party C on behalf of Party
B as contemplated under this Agreement is binding on each of Party A,
Party B and Party C.
(d) PROCEDURES FOR ENTERING INTO TRANSACTIONS.
(i) 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 Party C a Confirmation confirming that
Transaction and Party C shall on behalf of Party B promptly then
confirm the accuracy of or request the correction of such
Confirmation. Party C shall send to Party B a copy of such
Confirmation.
18
(ii) SPECIFICATION OF FUND. Each Confirmation regarding a Transaction
must specify the name of the Origination Fund or Securitisation
Fund (as the case may be) to which the Transaction relates.
(e) 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) this Agreement; and (iii) the ISDA
Definitions.
(f) 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.
(g) INTEREST RATE CAPS, COLLARS AND FLOORS: For purposes of the
determination of a Market Quotation for a Terminated Transaction in
respect of which a party ("X") had, immediately prior to the
designation or occurrence of the relevant Early Termination Date, no
future payment obligations, whether absolute or contingent, under
Section 2(a)(i) of this Agreement with respect of the Terminated
Transaction, (i) the quotations obtained from Reference Market makers
shall be such as to preserve the economic equivalent of the payment
obligations of the party ("Y") that had, immediately prior to the
designation or occurrence of the relevant Early Termination Date,
future payment obligations, whether absolute or contingent, under
Section 2(a)(i) of this Agreement with respect to the Terminated
Transaction and (ii) if X is making the determination such amounts
shall be expressed as positive amounts and if Y is making the
determination such amounts shall be expressed as negative amounts.
(h) OPTIONS: For the purposes of the determination of a Market Quotation
for a Terminated Transaction that is identified as an Option, the
quotations obtained from Reference Market-makes shall take into
account, as of the relevant Early Termination Date, the economic
equivalent of the right or rights granted pursuant to that Option
which are or may become exercisable.
(i) SEPTEMBER ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ADDENDUM NO. 6 FORWARD RATE AGREEMENTS: The
September 1992 Australian Addendum No. 6 - A$ Forward Rate Agreements
in the form of the copy attached to this Agreement is deemed to be
incorporated in this Agreement.
(j) Any reference to a:
(i) "Swap Transaction" in the 1991 Definitions (as supplemented by
the 1998 Supplement) (the "1991 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 1991 ISDA Definitions (as supplemented by the
1998 Supplement) (the "1991 Definitions").
(k) 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.
(l) CONSENT TO INFORMATION DISCLOSURE.
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 (2) all government and
regulatory authorities as and when required by such government and
regulatory authorities.
(m) MASTER NOVATION ANNEX.
From time to time Party C (on behalf of Party B), after notifying
Party B of the proposed novation, may require the novation of one or
more Transactions or a proportion of one or more Transactions from an
Origination Fund or a Securitisation Fund to an Origination Fund or a
Securitisation Fund. Each such novation will be governed by the Master
Novation Annex annexed to this Agreement unless otherwise agreed by
Party A, Party B and Party C.
(n) CONSOLIDATION OF TRANSACTIONS
(i) From time to time Party C (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
19
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 Party C.
(iii) Party B and Party C agree to provide Party A with such financial
and other information in relation to the consolidation as Party A
reasonably requires.
(o) 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 Moody's
(d) a long term credit rating of at least A2 by Moody's or a long
term rating of at least A by Fitch Ratings,
(and in the case of a downgrade by Moody's or ▇▇▇▇▇ Ratings, such a
downgrade would, except for this clause adversely affect the rating of
the relevant securities), Party A shall:
(A) within 30 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 Moody's to
not lower than A3, or a downgrade of its long term credit
rating by Fitch Ratings to not lower than A-, comply with
sub-clause (i)(C) or (i)(D) below; or
(B) within 5 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 sub-clause (i)(A) above ,
comply with sub-clauses (i)(C) or (i)(D) below,
(C) (i) 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
sub-clause (ii)(A) below. 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 sub-clause 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 sub-clauses (i)(C)(ii) & (iii)
below. Party A will pay any costs associated with
lodgment of the Cash Collateral;
(ii) 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
sub-clause (i)(C)(i) above (including any interest earned
on the Cash Collateral) exceeds the required Cash
Collateral Amount (as determined pursuant to sub-clause
(ii)(A) below) (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;
(iii) upon the occurrence of any of the following:
(a) 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; or
(b) the termination, cessation or conclusion of the
relevant Transaction to which it relates,
20
Party A may give notice thereof to Party B requiring
the return of any Cash Collateral lodged by Party A
pursuant to sub-clause (i)(C)(i) above (including
any interest earned on the Cash Collateral) and not
previously returned to Party A pursuant to
sub-clause (i)(C)(ii) above. 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.
(D) 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 Bonds
or Notes (as the case may be) 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 Bonds or Notes (as the case
may be). Party B shall return to Party A all Cash
Collateral lodged by Party A pursuant to sub-clause
(i)(C)(i) above and not previously returned to Party
A pursuant to sub-clause (i)(C)(ii) above within one
Local Business Day of such novation or other
arrangement (as the case may be).
(ii) For the purpose of this paragraph (o):
(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 Bonds or Notes (as
the case may be) 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 Bonds or Notes (as the case
may be).
(iii) For the purpose of paragraph (ii)(A),
CCR means CR x 1.030; and
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 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.
VB means the volatility buffer, being the relevant
percentage of the Notional Amount of the relevant
Transaction calculated from the following table:
VOLATILITY BUFFER (%)
COUNTERPARTY TRANSACTIONS WITH TRANSACTIONS WITH TRANSACTIONS WITH
RATING MATURITIES OF UP TO 5 MATURITIES OF MORE MATURITIES OF MORE
YEARS THAN 5 YEARS AND UP TO THAN 10 YEARS
10 YEARS
A+ 1.05 1.75 3.0
A 1.35 2.45 4.5
A-1 1.5 3.15 6.0
21
(p) 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
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 Party C.
(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
Bonds or Notes (as the case may be) will be redeemed at
the full amount of the Invested Amount (or if the
Bondholders or Noteholders (as the case may be) 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 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 Bonds or Notes (as the case may
be).
(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 Bonds or Notes (as the
case may be)".
(q) Section 6 is amended by replacing "20 days" in line 3 with "5 local
business days".
(r) APPOINTMENT OF MANAGER. Party A acknowledges that under the Master
Trust Deed the Manager is appointed manager of the Relevant
Securitisation Fund with the powers set out in and upon and subject to
the terms of, the Master Trust Deed.
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.
22
WESTPAC BANKING CORPORATION PERPETUAL TRUSTEES AUSTRALIA LIMITED
........................................... ..................................
Name: Name:
Title: Title:
Date: Date:
........................................... ..................................
Name: Name:
Title: Title:
Date: Date:
ME PORTFOLIO MANAGEMENT LIMITED
............................................
Name:
Title:
Date:
............................................
Name:
Title:
Date:
23
MASTER NOVATION ANNEX
This Master Novation Annex is annexed to and forms part of the ISDA Master
Agreement ("Agreement") dated as of 2001 between Westpac Banking Corporation as
Party A, Perpetual Trustees Australia Limited (in its capacity as trustee of
various Origination Funds and Securitisation Funds established from time to time
under the Master Trust Deed) as Party B and ME Portfolio Management Limited as
Party C.
1. DEFINITIONS
(a) In this Annex:
"NOVATION CONFIRMATION" means the form of novation confirmation set out in
the Schedule to this Annex.
"NOVATION DATE" means, in relation to a Transaction, the date the novation
of that Transaction or proportion of that Transaction becomes effective.
"RELEVANT ORIGINATION FUND" means, in relation to a Transaction, Party B in
its capacity as trustee of the Origination Fund, from or to, which that
Transaction or proportion of that Transaction is to be novated.
"RELEVANT SECURITISATION FUND" means in relation to a Transaction, Party B
in its capacity as trustee of the Securitisation Fund, from or to, which
that Transaction or proportion of that Transaction is to be novated.
"TRANSFEROR FUND" means, as the case may be, either a Relevant
Securitisation Fund or Relevant Origination Fund.
"TRANSFEREE FUND" means, as the case may be, either a Relevant
Securitisation Fund or Relevant Origination Fund.
(b) Terms not other wise defined in this Annex have the same meaning as in
the Agreement
2. CONSIDERATION
Each novation of a Transaction or proportion of a Transaction under this
Annex constitutes, without the need for anything further, a binding
agreement on the part of each of the Relevant Origination Fund, the
Relevant Securitisation Fund, Party A and Party C that the consideration
constituted by the releases and obligations given and undertaken
respectively pursuant to this annex, together with such consideration as
may be provided under the Master Trust Deed or elsewhere, in respect of the
novation of that Transaction or proportion of that Transaction and any
other dealing or transaction that occurs in conjunction with that novation,
comprises adequate commercial consideration for their respective releases
and obligations under this Annex in relation to the novation of that
Transaction.
3. NOVATION FROM TRANSFEROR FUND TO TRANSFEREE FUND
3.1 RELEASE OF TRANSFEROR FUND
On and from the Novation Date for a Transaction or proportion of a
Transaction, the Transferor Fund, Party A and Party C in its capacity as
manager of that Transferor Fund will have no further rights against, or
obligations to, each other in connection with that Transaction or
proportion of that Transaction.
3.2 ASSUMPTION BY TRANSFEREE FUND
On the Novation Date for a Transaction or proportion of a Transaction, the
Transferee Fund and Party C in its capacity as manager of that Fund are
deemed to undertake to Party A that they will duly observe and perform and
totally assume all the obligations of the Transferor Fund and Party C
respectively under that Transaction or proportion of that Transaction, the
time for performance of which is on or after the Novation Date as if the
Transferee Fund had been named originally as a party to that Transaction or
proportion of that Transaction instead of the Transferor Fund.
3.3 ACKNOWLEDGEMENT BY WESTPAC BANKING CORPORATION
On the Novation Date for a Transaction, or proportion of that Transaction,
Party A is deemed to undertake and acknowledge to the Transferee Fund and
Party C in its capacity as manager of the Transferee Fund that the
Transferee Fund and Party C in its capacity as manager of the Transferee
Fund (as the case may be) are on and from the Novation Date respectively
entitled to all the rights and entitlements of the Transferor Fund and
Party C in its capacity as manager of the Transferor
24
Fund under that Transaction or proportion of that Transaction to the extent
that such rights and entitlements arise or accrue on or after the Novation
Date.
3.4 REFERENCES TO PARTY B AND PARTY C
On and from the Novation Date for a Transaction or proportion of a
Transaction, every reference in the Confirmation for that Transaction or
proportion to "Party B" or the Transferor Fund is deemed to be a reference
to Perpetual Trustees Australia Limited in its capacity as trustee of the
Transferee Fund and every reference to Party C (if any) is deemed to be a
reference to ME Portfolio Management Limited in its capacity as manager of
the Transferee Fund.
4. REPRESENTATIONS AND WARRANTIES
On the Novation Date for a Transaction or proportion of a Transaction,
Party C (in respect of the Transferor Fund) and Party A are deemed to
represent and warrant that:
(a) (DUE PERFORMANCE): it has duly and punctually performed and observed
all the terms and conditions of that Transaction on its part to be
performed and observed;
(b) (NO DEFAULT): to the best of its knowledge and belief there is no
default or any event which is, or with the lapse of time or expiry of
notice or at the election of any person could become, an Event of
Default or a Termination Event in relation to that Transaction;
(c) (NO AMENDMENT): other than as disclosed in writing prior to that
Novation Date, the terms of that Transaction are fully disclosed in
its Confirmation and have not been supplemented, amended or varied.
5. AGREEMENT AND CONFIRMATION
5.1 AGREEMENT TO NOVATE
A novation of a Transaction or proportion of a Transaction under this Annex
becomes binding when Party A accepts (in its absolute discretion) in
accordance with Section 5.2 a Novation Confirmation from Party C which sets
out the Novation Date for that Transaction or proportion of a Transaction
and the Transferee Fund to which it will be novated and is otherwise in the
form of the Schedule to this Master Novation Annex. Party C shall provide
to Party B a copy of the Novation Confirmation.
5.2 NOVATION CONFIRMATIONS
As soon as practicable after a Novation Confirmation prepared in accordance
with Section 5.1 of this Annex has been delivered by Party C to Party A and
Party B, Party A must soon as reasonably practicable either (in its
absolute discretion):
(a) accept the Novation Confirmation by confirming the accuracy of the
Novation Confirmation by counter-signing and returning that Novation
Confirmation to Party C; or
(c) request the correction of that Novation Confirmation and upon receipt
of a corrected Novation Confirmation accept that corrected Novation
Confirmation in the manner contemplated by Section 5.2(a) of this
Master Novation Annex;
(c) reject the novation request constricted by the delivery of the
Novation Confirmation.
25
WESTPAC BANKING CORPORATION PERPETUAL TRUSTEES AUSTRALIA LIMITED
........................................... ....................................
Name: Name:
Title: Title:
Date: Date:
........................................... ....................................
Name: Name:
Title: Title:
Date: Date:
ME PORTFOLIO MANAGEMENT LIMITED
...........................................
Name:
Title:
Date:
...........................................
Name:
Title:
Date:
26
SCHEDULE TO THE MASTER NOVATION ANNEX
NOVATION CONFIRMATION
[Date]
TO: WESTPAC BANKING CORPORATION ("PARTY A")
COPY TO: PERPETUAL TRUSTEES AUSTRALIA LIMITED, ACN ▇▇▇ ▇▇▇ ▇▇▇ ("PARTY B")
FROM: ME PORTFOLIO MANAGEMENT LIMITED, ACN 005 964 134 ("PARTY C")
NOVATION CONFIRMATION
The parties refer to the ISDA Master Agreement dated as of 2001
made between Party A, Party B and Party C (the "MASTER AGREEMENT"). Unless the
context indicates a contrary intention, terms defined in the Master Agreement
have the same meaning where used in this Novation Confirmation.
For the purposes of this Novation Confirmation:
a) a reference to the Transferor Fund is a reference to [Name of Relevant
Origination Fund/Relevant Securitisation Fund, as the case may be];
b) a reference to the Relevant Transferee Fund is a reference to [Name of
Relevant Origination Fund/Relevant Securitisation Fund, as the case may
be]; and
c) a reference to the Novation Date is a reference to [Insert Date].
The parties hereby confirm and agree that as of the Novation Date each of the
Transactions or proportion of the Transactions (the "NOVATED TRANSACTIONS")
referred to in the Schedule to this Novation Confirmation is novated from the
Transferor Fund to the Transferee Fund in accordance with the terms of the
Master Novation Annex.
SCHEDULE
------------------- ---------------- ---------------- ---------------- ---------------- ----------------- ----------------
TRADE DATE FACILITY NO. NOTIONAL AMOUNT FIXED SWAP RATE CURRENT PROPORTION OF
SERIAL NO. FLOATING RATE TRANSACTION
------------------- ---------------- ---------------- ---------------- ---------------- ----------------- ----------------
------------------- ---------------- ---------------- ---------------- ---------------- ----------------- ----------------
------------------- ---------------- ---------------- ---------------- ---------------- ----------------- ----------------
------------------- ---------------- ---------------- ---------------- ---------------- ----------------- ----------------
------------------- ---------------- ---------------- ---------------- ---------------- ----------------- ----------------
Aggregate Notional Amount:
Aggregate Fixed Swap Rate (being a weighted average calculated by reference to
the Notional Amount of each Novated Transaction):
This Novation Confirmation supplements and forms part of the Master Agreement.
Confirmed as of the date first above written.
27
For and on behalf of Party A
-------------------------------------------------- ----------------------------------------
(Authorised Officer (Authorised Officer)
For and on behalf of Party C as attorney for Party B
-------------------------------------------------- ----------------------------------------
(Authorised Officer (Authorised Officer)
For and on behalf of Party C
-------------------------------------------------- ----------------------------------------
(Authorised Officer (Authorised Officer)
28