ISDA
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of __________ 2005
between
SOCIETE GENERALE AUSTRALIA BRANCH (ABN 71 092 516 286) ("PARTY A")
AND
PERPETUAL TRUSTEES AUSTRALIA LIMITED (ABN 86 ▇▇▇ ▇▇▇ ▇▇▇) IN ITS CAPACITY AS
TRUSTEE OF A SECURITISATION FUND KNOWN AS THE SMHL GLOBAL FUND NO. 8 ("PARTY B")
AND
ME PORTFOLIO MANAGEMENT LIMITED (ABN 79 005 964 134) IN ITS CAPACITY AS MANAGER
OF A SECURITISATION FUND KNOWN AS SMHL GLOBAL FUND NO. 8 ("MANAGER")
PART 1
TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" is not applicable in relation to Party A and Party B.
(b) "SPECIFIED TRANSACTION" will not apply.
(c) (i) Sections 5(a)(ii), (iii), (iv), (v), (vi), (viii), 5(b)(iii) and (iv)
will not apply to Party A or Party B.
(ii) Replace Section 5(a)(i) with:
"(i) FAILURE TO PAY OR DELIVER. Failure by the party to make when due
any payment under this Agreement or delivery under Section 2(a)(i) or
2(e) required to be made by it if such failure is not remedied at or
before 10:00am on the tenth Melbourne Business Day after the due
date;"
(iii) Section 5(b)(ii) will not apply if Party A is the sole Affected Party
(subject to Section 6(aa)(iii) of the Agreement, inserted by Part
5(aa) of this Schedule).
(d) The "BANKRUPTCY" provisions of Section 5(a)(vii) are replaced by "An
Insolvency Event (as defined in the Security Trust Deed) has occurred in
respect of Party A (which will be the Defaulting Party) or Party B (which
will be the Defaulting Party); or". The occurrence of an Insolvency Event
(as defined in the Security Trust Deed) in respect of Party B in its
personal capacity will not constitute an Event of Default provided that
within 120 Melbourne Business Days of that occurrence, Party A, Party B and
the Manager are able to procure the novation of this Agreement and all
Transactions to a third party in respect of which the Designated Rating
Agencies confirm that the novation will not cause a reduction or withdrawal
of the rating of the Notes, and Party A, Party B and the Manager agree to
execute such a novation agreement in a form agreed between the parties.
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(e) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a):
will not apply to Party A; and
will not apply to Party B.
(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(g) "TERMINATION CURRENCY" means United States Dollars in respect of a
Transaction which relates to United States Dollars and Euros in respect of
a Transaction which relates to Euros provided that if an amount due in
respect of an Early Termination Date will be payable by Party B to Party A,
the Termination Currency for the purpose of calculating and paying that
amount is Australian Dollars.
(h) "ADDITIONAL TERMINATION EVENT" will apply. The following shall constitute
an Additional Termination Event:
(i) With respect to Class A1 Notes only, Party B becomes obliged to make a
withholding or deduction in respect of any Class A1 Notes and the
Class A1 Notes are redeemed as a result. For the purposes of this
Additional Termination Event, Party B is the Affected Party.
Notwithstanding Section 6(b)(iv) of the Agreement, if this Additional
Termination Event occurs, Party B must, at the direction of the
Manager, give a notice designating an Early Termination Date in
respect of this Agreement and all Transactions (in each case in
relation to the Class A1 Notes only) provided that such Early
Termination Date must not be earlier than the time of redemption of
the Class A1 Notes.
(ii) With respect to Class A2 Notes only, Party B becomes obliged to make a
withholding or deduction in respect of any Class A2 Notes and the
Class A2 Notes are redeemed as a result. For the purposes of this
Additional Termination Event, Party B is the Affected Party.
Notwithstanding Section 6(b)(iv) of the Agreement, if this Additional
Termination Event occurs, Party B must, at the direction of the
Manager, give a notice designating an Early Termination Date in
respect of this Agreement and all Transactions (in each case in
relation to the Class A2 Notes only) provided that such Early
Termination Date must not be earlier than the time of redemption of
the Class A2 Notes.
(iii) An Event of Default (as defined in the Security Trust Deed) occurs
and the Security Trustee has declared, in accordance with the Security
Trust Deed, the Class A Notes immediately due and payable. For the
purposes of this Additional Termination Event, Party B is the Affected
Party.
(iv) Party A fails to comply with its obligations under Part 5(x). For the
purposes of this Additional Termination Event, Party A is the Affected
Party. Notwithstanding Section 6(b)(iv) of the Agreement, if this
Additional Termination Event occurs, Party B must, at the direction of
the Manager, give a notice designating an Early Termination Date in
respect of this Agreement and all Transactions.
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(i) TRANSFER TO AVOID TERMINATION EVENT. In Section 6(b)(ii), after the words
"another of its Offices or Affiliates" on the seventh line add "(in respect
of which the Designated Rating Agencies confirm that the transfer will not
cause a reduction or withdrawal of the ratings for the Notes)".
21
PART 2
TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS
For the purpose of Section 3(e) of this Agreement, Party A and Party B will
make the following representations:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii), 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on:
(i) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of any
document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii);
(ii) the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement; and
(iii) the accuracy of any representation made by the other party pursuant
to Section 3(f) of this Agreement;
PROVIDED that it shall not be a breach of this representation where
reliance is placed on clause (i) and the other party does not deliver a
form or document under Section 4(a)(iii) of the Agreement by reason of
material prejudice to its legal or commercial position.
(b) PAYEE TAX REPRESENTATIONS:
For the purpose of Section 3(f) of this Agreement:
(i) Party A represents that:
(a) It is a "foreign person" within the meaning of the
applicable U.S. Treasury Regulations concerning information
reporting and backup withholding tax (as in effect on
January 1, 2001), unless Party A provides written notice to
Party B that it is no longer a foreign person. In respect of
each Transaction it enters into through an office or
discretionary agent in the United States or which otherwise
is allocated for United States federal income tax purposes
to such United States trade or business, each payment
received or to be received by it under such Transaction will
be effectively connected with its conduct of a trade or
business in the United States.
(b) In respect of all Transactions (other than those described
in (a) above), no payment received or to be received by it
in connection with this Agreement is attributable to a trade
or business carried on by it through a permanent
establishment in the United States
(ii) Party B represents that it is an Australian resident and does not
derive the payments under this Agreement in part or in whole in
carrying on business in a country outside Australia at or through a
permanent establishment of itself
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in that country. Party B further represents that it is a non-US person
acting out of a non-US office or branch.
(iii) The Manager represents that it is an Australian resident and does not
derive the payments under this Agreement in part or in whole in
carrying on business in a country outside Australia at or through a
permanent establishment of itself in that country. The Manager further
represents that it is a non-US branch of a non-US person for United
States tax purposes.
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PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purposes of Section 4(a)(i) and (ii) of this Agreement each party
further agrees to deliver the following documents as applicable in accordance
with the following:
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PARTY REQUIRED TO DOCUMENT DATE BY WHICH TO BE DELIVERED COVERED BY SECTION
DELIVER 3(D) REPRESENTATIONS
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Party A, Party B and A list of authorised signatories for On execution and delivery of Yes
the Manager the party and evidence satisfactory this Agreement or any
in form and substance to the other relevant Confirmation and at
parties of the authority of the any time on the request of
authorised signatories of the party the other party.
to execute this Agreement and each
confirmation on behalf of each
relevant party.
--------------------------------------------------------------------------------------------------------------------------
Party A, Party B and As reasonably required by any other Upon reasonable request. Yes
the Manager party any document or certificate in
connection with its obligations to make
a payment under this Agreement which
would enable that party to make the
payment free from any deduction or
withholding for or on account of Tax or
that would reduce the rate at which the
deduction or withholding for or on
account of Tax is applied to that
payment (including, without limitation,
any United States Form W-8BEN or other
relevant United States tax form).
--------------------------------------------------------------------------------------------------------------------------
Party B and the Manager Copies of any reports or accounts Upon reasonable request by Yes
relating to the Securitisation Fund Party A subject to not being
that are produced for (a) obliged to deliver any
distribution to the investors in the document if to do so would
Class A Notes, or (b) presentation to breach or infringe any law
the Board of Directors of the Manager or legally binding
and such other information in the obligation or restraint.
Manager's control regarding the
financial condition and business
operations of the Securitisation Fund
as Party A may reasonably require.
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PARTY REQUIRED TO DOCUMENT DATE BY WHICH TO BE DELIVERED COVERED BY SECTION
DELIVER 3(D) REPRESENTATIONS
--------------------------------------------------------------------------------------------------------------------------
Party B and the Manager Legal opinions as to the validity and Promptly after entering into Yes
enforceability of the obligations of this Agreement, in the form
Party B and the Manager under this previously agreed with the
Agreement, the Master Trust Deed, the other parties.
Note Trust Deed, the Security Trust
Deed and the Class A Notes in form
and substance and issued by legal
counsel reasonably acceptable to
Party A.
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Manager Copies of the Master Trust Deed, the On execution and delivery of Yes
Note Trust Deed, the Supplementary this Agreement.
Bond Terms Notice and the Security
Trust Deed certified to be true
copies by two authorised signatories
of the Manager.
--------------------------------------------------------------------------------------------------------------------------
Manager A copy of any document amending or Promptly upon any such Yes
varying the terms of the Master Trust document becoming effective
Deed, the Security Trust Deed, the in accordance with its terms.
Note Trust Deed or the Supplementary
Bond Terms Notice certified to be a
true copy by two authorised
signatories of the Manager.
--------------------------------------------------------------------------------------------------------------------------
Party A A legal opinion by Party A's internal Promptly after entering into Yes
counsel as previously provided to the this Agreement.
Designated Rating Agencies.
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25
PART 4
MISCELLANEOUS
(a) ADDRESS FOR NOTICES. For the purpose of Section 12(a) of this Agreement:
(i) All notices to Party A under Sections 5 or 6 of this Agreement (other
than Section 5(a)(i)) shall be sent to:
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: Director of Structured Finance/Securitisation
Telephone No: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Facsimile No: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
All other notices to Party A shall be sent directly to the Office
through which Party A is acting for the relevant Transaction, using
the address and contact particulars specified in the Confirmation of
that Transaction or otherwise notified.
(ii) ADDRESSES FOR NOTICES TO PARTY B:
▇▇▇▇▇ ▇
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: Head of Debt Markets / Manager - Securitisation
Telephone: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
ADDRESS FOR NOTICES TO MANAGER:
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: Settlements Officer
Telephone: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
(b) PROCESS AGENT. For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Nil.
Party B appoints as its Process Agent: Nil.
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
26
(d) MULTIBRANCH PARTY. For the purposes of Section 10(c) of this Agreement:
Party A is a Multibranch Party and may act through the following Offices:
Sydney.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) CREDIT SUPPORT DOCUMENT Details of any Credit Support Document:
(i) In relation to Party A: Nil
(ii) In relation to Party B: Security Trust Deed.
(g) CREDIT SUPPORT PROVIDER.
(i) In relation to Party A: Nil.
(ii) In relation to Party B: Nil
(h) GOVERNING LAW. This Agreement and each Confirmation will be governed by and
construed in accordance with New South Wales law and each party hereby
submits to the non-exclusive jurisdiction of the New South Wales courts and
courts of appeal from them.
(i) NETTING OF PAYMENTS. Sub-paragraph (ii) of Section 2(c) of this Agreement
will not apply in respect of all Transactions.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. For the purposes of Section 3(c), each of Party A and Party B is
deemed not to have any Affiliates.
27
PART 5
OTHER PROVISIONS
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding payment
or payments payable by the other party."
(b) In Section 2(a)(ii), after "freely transferable funds" add "free of any
set-off, counterclaim, deduction or withholding (except as expressly
provided in this Agreement)".
(c) Insert new Sections 2(a)(iv) and (v) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply
to a payment or delivery due to be made to a party if it has
satisfied all its payment and delivery obligations under Section
2(a)(i) of this Agreement and has no future payment or delivery
obligations, whether absolute or contingent under Section
2(a)(i).
(v) Where:
(1) payments are due pursuant to Section 2(a)(i) by Party A to
Party B (the "PARTY A PAYMENT") and by Party B to Party A
(the "PARTY B PAYMENT") on the same day; and
(2) the Security Trust Deed has become, and remains at that
time, enforceable,
then Party A's obligation to make the Party A Payment to Party B
shall be subject to the condition precedent (which shall be an
"applicable condition precedent" for the purpose of Section
2(a)(iii)(3)) that Party A first receives the Party B Payment or
confirmation from Party B's bank that it holds irrevocable
instructions to effect payment of the Party B Payment and that
funds are available to make that payment."
(d) Add the following new sentence to the end of Section 2(b):
"Each new account so designated must be in the same tax jurisdiction as the
original account."
(e) Delete the word "if" at the beginning of Section 2(d)(i)(4) and insert the
following words instead:
"if and only if X is Party A and".
(f) In Section 2(d)(ii) insert the words "(if and only if Y is Party A)" after
the word "then" at the beginning of the last paragraph. Party B will have
no obligation to pay any amount to Party A under Section 2(d)(ii), and may
make any payment under or in connection with this Agreement net of any
deduction or withholding referred to in Section 2(d)(i).
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(g) ADDITIONAL REPRESENTATIONS. In Section 3:
(i) add the following in section 3(a)(v) after the words "creditors rights
generally":
"(including in the case of a party being an ADI (as that term is
defined in the Reserve Bank ▇▇▇ ▇▇▇▇ (Cth)), sections 11F and 13A(3)
of the Banking ▇▇▇ ▇▇▇▇ (Cth) or any other analogous provision under
any law applicable to a party)".
(ii) add the following immediately after paragraph (f):
"(g) NON ASSIGNMENT. It has not assigned (whether absolutely, in
equity or otherwise) or declared any trust over any of its rights
under any Transaction (other than, in respect of Party B, the
Securitisation Funds created pursuant to the Master Trust Deed) and
has not given any charge, in the case of Party A, over its rights
under any Transaction and, in the case of Party B, over assets of the
Securitisation Fund (other than as provided in the Security Trust
Deed)."
(h) Party B also represents to Party A (which representations will be deemed to
be repeated by Party B on each date on which a Transaction is entered into)
that:
(i) SECURITISATION FUND VALIDITY CREATED. The Securitisation Fund has been
validly created and is in existence at the date of this Agreement and
each Transaction.
(ii) SOLE SECURITISATION FUND. Party B has been validly appointed as
trustee of the Securitisation Fund and is presently the sole trustee
of the Securitisation Fund.
(iii) NO PROCEEDINGS TO REMOVE. No notice has been given to Party B and to
Party B's knowledge no resolution has been passed, or direction or
notice has been given, removing Party B as trustee of the
Securitisation Fund.
(iv) POWER. Party B has power under the Master Trust Deed to enter into
this Agreement and the Security Trust Deed in its capacity as trustee
of the Securitisation Fund.
(v) GOOD TITLE. Party B is the legal owner of the assets of the
Securitisation Fund and has the power under the Master Trust Deed to
mortgage or charge them in the manner provided in the Security Trust
Deed and those assets are free from all other prior encumbrances save
for the Prior Interest.
(vi) INDEMNITY. Party B has not committed any fraud, negligence or breach
of trust which would prejudice its right of indemnity out of the
Securitisation Fund.
(i) In Section 4 add a new paragraph as follows:
"(f) CONTRACTING AS PRINCIPAL. Party A will enter into all
Transactions as principal and not otherwise and Party B will
enter into all Transactions in its capacity as trustee of the
Securitisation Fund and not otherwise."
(j) In the third line of Section 3(c), insert "materially" before the word
"affect".
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(k) In Section 6(d)(i), in the seventh line, insert "in the absence of manifest
error" after the word "evidence".
(l) CONFIRMATIONS. For the purposes of Section 9(e)(i) Party A will, on or
promptly after the relevant Trade Date, send the Manager a confirmation
confirming that Transaction and the Manager and Party B must (either itself
or through the Manager) promptly then confirm the accuracy of and sign and
return, or request the correction of such Confirmation. Each Confirmation
in respect of a Transaction which is confirmed by electronic messaging
system, an exchange of telexes or an exchange of facsimiles will be further
evidenced by an original Confirmation signed by the parties. However any
failure to sign an original Confirmation will not affect the validity or
enforcement of any Transaction.
(m) In Section 6(e), delete the sentence "The amount, if any, payable in
respect of an Early Termination Date and determined pursuant to this
Section will be subject to any Set-off.", at the end of the first
paragraph.
(n) Section 12 is amended as follows:
(i) In Section 12(a), insert "and settlement instructions requiring
payment to an entity other than the original counterparty" after
"Section 5 or 6" in line 2.
(ii) Section 12(a)(iii) is replaced with:
"(iii) if sent by facsimile transmission, on the date a transmission
report is produced by the machine from which the facsimile was
sent which indicates that the facsimile was sent in its entirety
to the facsimile number of the recipient notified for the purpose
of this Section, unless the recipient notifies the sender within
one Local Business Day of the facsimile being sent that the
facsimile was not received in its entirety and in legible form".
(o) Definitions and interpretation.
(i) Section 14 of the Agreement is modified by inserting the following new
definitions:
"MASTER TRUST DEED" means the Master Trust Deed dated 4 July 1994 as
amended and restated between Party B and the Manager.
"RELEVANT SWAP TRANSACTION" means in relation to the Class A Notes,
each Transaction which is a Currency Swap for Class A Notes only.
"SECURITY TRUST DEED" means the Security Trust Deed dated on or about
the date of this Agreement between Party B as issuing trustee, the
Manager as manager, Perpetual Trustee Company Limited as security
trustee and The Bank of New York as note trustee.
(ii) Each of the following expressions has the meanings given to them in
the Master Trust Deed and the Security Trust Deed (as the case may be)
provided that in the event of any inconsistency those in the Security
Trust Deed will prevail:
30
"CHARGED PROPERTY"
"CURRENCY SWAP"
"DESIGNATED RATING AGENCY"
"EXPENSE"
"EXTRAORDINARY RESOLUTION"
"NOTE TRUSTEE"
"NOTE TRUST DEED"
"OUTSTANDING PRINCIPAL BALANCE"
"PRINCIPAL PAYING AGENT"
"PRIOR INTEREST"
"SECURED CREDITOR"
"SECURED DOCUMENT"
"SECURED MONEYS"
"SECURITY TRUSTEE"
"SECURITISATION FUND"
"SUPPLEMENTARY BOND TERMS NOTICE"
"TRANSACTION DOCUMENT"
"WILFUL DEFAULT"(AS DEFINED IN CLAUSE 26.25 OF THE MASTER TRUST DEED)
(iii) The expressions "CLASS A NOTES", "CLASS A NOTEHOLDER", "INVESTED
AMOUNT" and "NOTES" have the meanings given to them in the
Supplementary Bond Terms Notice.
(iv) Where in this Agreement a word or expression is defined by reference
to another Transaction Document or there is a reference to another
Transaction Document or to a provision of another Transaction
Document, any amendment to the meaning of that word or expression or
to that other Transaction Document will be of no effect for the
purposes of this Agreement unless and until the amendment is consented
to by all parties to this Agreement.
(p) MASTER TRUST DEED AND SECURITY TRUST DEED: The parties acknowledge for the
purposes of the Master Trust Deed and Security Trust Deed that:
(i) this Agreement and all Transactions under this Agreement are Secured
Documents; and
(ii) Party A is a Secured Creditor; and
(iii) all of the obligations of Party B under this Agreement and any/all
Transactions under it are Secured Moneys and
(iv) this Agreement is a "Currency Swap" and a "Transaction Document" and
Party A is a "Currency Swap provider" in respect of the Securitisation
Fund.
(q) ISDA DEFINITIONS: This Agreement, each Confirmation and each Transaction
are subject to the 2000 ISDA Definitions (as published by the International
Swaps and Derivatives Association, Inc.) (the "ISDA DEFINITIONS"), and will
be governed in all respects by any provisions set forth in the ISDA
Definitions, without regard to any amendments to the ISDA Definitions made
after the date of this Agreement. The ISDA Definitions are incorporated by
reference in, and shall be deemed to be part of, this Agreement and each
Confirmation.
(r) INCONSISTENCY. In the event of any inconsistency between any two or more of
the following documents, they shall take precedence over each other in the
following descending order:
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(i) any Confirmation;
(ii) the Schedule to the Agreement;
(iii) the other provisions of the Agreement;
(iv) the ISDA Definitions.
(s) Any reference to a:
(i) "SWAP TRANSACTION" in the ISDA Definitions is deemed to be a reference
to a "Transaction" for the purpose of interpreting this Agreement or
any Confirmation; and
(ii) "TRANSACTION" in this Agreement or any Confirmation is deemed to be a
reference to a "Swap Transaction" for the purposes of interpreting the
ISDA Definitions.
(t) New Sections 15, 16 and 17 are added as follows:
"15. CAPACITY OF PARTY B AND THE MANAGER
(a) Party B enters into this Agreement only in its capacity as
trustee of the Securitisation Fund under the Master Trust Deed
and in no other capacity. A liability incurred by Party B arising
under or in connection with this Agreement is limited to and can
be enforced against Party B only to the extent to which it can be
satisfied out of the assets of the Securitisation Fund which are
available to satisfy the right of Party B to be exonerated or
indemnified for the liability. This limitation of Party B's
liability applies despite any other provision of this Agreement
other than section 15(c) and extends to all liabilities and
obligations of Party B in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this Agreement.
(b) 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).
(c) The provisions of this Section 15 shall not apply to any
obligation or liability of Party B to the extent that it is not
satisfied because under the Master Trust Deed or any other
Transaction Document or by operation of law there is a reduction
in the extent of Party B's indemnification or exoneration out of
the assets of the Securitisation Fund, as a result of Party B's
fraud, negligence or willful default.
(d) It is acknowledged that the Manager is responsible under the
Master Trust Deed for performing a variety of obligations
relating to the Securitisation Fund, including under this
Agreement. No act or omission of Party B (including any related
failure to satisfy its obligations or breach of a representation
or warranty under this
32
Agreement) will be considered fraud, negligence or willful
default of Party B for the purpose of paragraph (c) of this
Section 15 to the extent to which the act or omission was caused
or contributed to by any failure by the Manager or any other
person to fulfil its obligations relating to the Securitisation
Fund or by any other act or omission of the Manager or any other
person.
(e) Party B is not obliged to do or refrain from doing anything under
this Agreement (including incurring any liability) unless Party
B's liability is limited in the same manner as set out in
paragraphs (b) to (d) of this Section 15.
(f) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Agreement has authority to act on behalf of
Party B in a way which exposes Party B to any personal liability
and no act or omission of any such person will be considered
fraud, negligence or wilful default of Party B for the purpose of
paragraph (c) of this Section 15.
(g) Subject to the provisions related to deemed receipt of notices
and other communications under this Agreement, Party B will only
be considered to have knowledge or awareness of, or notice of,
any thing, or grounds to believe any thing, by virtue of the
officers of Party B having day to day responsibility for the
administration or management of Party B's obligations in relation
to the Securitisation Fund having actual knowledge, actual
awareness or actual notice of that thing, or grounds or reason to
believe that thing (and similar references will be interpreted in
this way). In addition, notice, knowledge or awareness of an
Event of Default or other default (howsoever described) means
notice, knowledge or awareness of the occurrence of the events or
circumstances constituting that Event of Default or other default
(as the case may be).
(h) In this Agreement, except where expressly provided to the
contrary:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the Securitisation Fund only, and in
no other capacity; and
(ii) a reference to the undertaking, assets, business, money or
any other thing of or in relation to Party B is a reference
to such undertaking, assets, business, money or other thing
of or in relation to Party B only in its capacity as trustee
of the Securitisation Fund, and in no other capacity.
(i) The provision of this Section 15:
(i) are paramount and apply regardless of any other provision of
this Agreement or any other instrument, even a provision
which seeks to apply regardless of any other provision;
(ii) survive and endure beyond any termination of this Agreement
for any reason; and
(iii) are not severable from this Agreement.
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16. REPLACEMENT SWAP TRANSACTION
(a) If any Transaction under this Agreement is terminated, Party B
must, subject to paragraph (b), at the direction of the Manager,
enter into one or more swaps which replace those Transactions
(collectively a "REPLACEMENT SWAP TRANSACTION") but only on the
following conditions:
(i) the amount payable under Section 6(e) (if any) by Party B to
Party A upon termination of any Transactions will be paid in
full when due in accordance with the Supplementary Bond
Terms Notice and this Agreement;
(ii) the Designated Rating Agencies confirm that the Replacement
Swap Transaction will not cause a reduction or withdrawal of
the ratings of the Notes; and
(iii) the liability of Party B under the Replacement Swap
Transaction is limited to at least the same extent that its
liability is limited under this Agreement.
(b) If the conditions in Section 16(a) are satisfied, Party B must,
provided it is satisfied with the terms of the Replacement Swap
Transaction, acting reasonably and considering the interests of
Class A Noteholders, at the direction of the Manager, enter into
the Replacement Swap Transaction and if it does it must direct
the Replacement Swap Transaction provider to pay any upfront
premium to enter into the Replacement Swap Transaction due to
Party B directly to Party A in satisfaction of and to the extent
of Party B's obligation to pay an amount to Party A as referred
to in Section 16(a)(i) and to the extent that such premium is not
greater than or equal to the amount referred to in Section
16(a)(i), the balance must be satisfied by Party B as an Expense
of the Securitisation Fund.
(c) If Party B enters into a Replacement Swap Transaction pursuant to
paragraph (a), Party B must direct Party A to pay any amount
payable under Section 6(e) by Party A to Party B on termination
of this Agreement or any Transaction directly to the Replacement
Swap Transaction provider as payment of and to the extent of any
premium payable by Party B to enter into the Replacement Swap
Transaction, in satisfaction of and to the extent of Party A's
obligation to pay that part of the amount payable under Section
6(e) to Party B.
17. SEGREGATION
The liability of Party B under this Agreement is several and is
separate in respect of each Relevant Swap Transaction. The failure of
Party B to perform its obligations in respect of any Relevant Swap
Transaction does not release Party B from its obligations under this
Agreement or under any other Relevant Swap Transaction in respect of
any other Class A Notes issued by Party B. Nothing in this Agreement
affects the respective priority rankings of claims against the Charged
Property under the Security Trust Deed. Without limiting the
generality of the foregoing, the provisions of this Agreement have
effect separately and severally in respect of each Relevant Swap
Transaction and
34
are enforceable by or against Party B as though a separate agreement
applied between Party A, Party B and the Manager for each Relevant
Swap Transaction, so that (among other things):
(i) this Agreement together with each Confirmation relating to a
Relevant Swap Transaction will form a single separate agreement
between Party A, Party B and the Manager and references to the
respective obligations (including references to payment
obligations generally and in the context of provisions for the
netting of payments and the calculation of amounts due on early
termination) of Party A, Party B and the Manager shall be
construed accordingly as a several reference to each mutual set
of obligations arising under each such separate agreement between
Party A, Party B and the Manager;
(ii) representations made and agreements entered into by the parties
under this Agreement are made and entered separately and
severally in respect of each Relevant Swap Transaction and may be
enforced separately and severally in respect of each Relevant
Swap Transaction;
(iii) rights of termination, and obligations and entitlements
consequent upon termination, only accrue to Party A against Party
B separately and severally in respect of each Relevant Swap
Transaction, and only accrue to Party B against Party A
separately and severally in respect of each Relevant Swap
Transaction; and
(iv) the occurrence of an Event of Default or Termination Event in
respect of a Relevant Swap Transaction does not in itself
constitute an Event of Default or Termination Event in respect of
any other Relevant Swap Transaction."
(u) TELEPHONE RECORDING: Each party:
(i) consents to the recording of the telephone conversations of trading
and marketing personnel of that party and its Affiliates in connection
with this Agreement or any potential transaction; and
(ii) agrees to obtain any necessary consent of, and give notice of such
recording to, such personnel of it and its Affiliates; and
(iii) will provide transcripts of such recordings (if any) upon reasonable
request by another party; and
(iv) acknowledges that such recordings and transcripts can be used as
evidence by another party in any dispute between them.
(v) RELATIONSHIP BETWEEN PARTIES: Each party will be deemed to represent to the
other parties on the date on which it enters into a Transaction that
(absent a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for the Transaction):
(i) NON-RELIANCE. It is acting for its own account (or, in the case of
Party B, as trustee of the Securitisation Fund), and it has made its
own independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based upon
its own judgment and in the case of
35
Party B, on the judgment of the Manager, and upon advice from such
advisers as it has deemed necessary. It is not relying on any
communication (written or oral) of the other party as investment
advice or as a recommendation to enter into that Transaction; it being
understood that information and explanations related to the terms and
conditions of a Transaction shall not be considered investment advice
or a recommendation to enter into that Transaction. No communication
(written or oral) received from the other party shall be deemed to be
an assurance or guarantee as to the expected results of that
Transaction.
(ii) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the merits of
and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable of
assuming, and assumes, the risks of that Transaction.
(iii) STATUS OF PARTIES. The other party is not acting as a fiduciary for
or as an adviser to it in respect of that Transaction.
(w) APPOINTMENT OF MANAGER: Party A acknowledges that under the Master Trust
Deed Party B has appointed the Manager as manager of the Securitisation
Fund with the powers set out in and upon and subject to the terms of, the
Master Trust Deed. Accordingly, subject to the terms of the Master Trust
Deed, the Manager:
(i) may arrange, enter into, and monitor Transactions, execute
Confirmations and exercise all other rights and powers of Party B
under this Agreement; and
(ii) without limiting the generality of the foregoing, the Manager shall
issue and receive, on behalf of Party B all notices, Confirmations,
certificates and other communications to or by Party A under this
Agreement.
Subject to Section 15, Party B agrees that it is bound by anything the
Manager does under this Part 5(w).
(x) RATINGS DOWNGRADE:
(i) In the event that the unsecured and unsubordinated debt obligations of
Party A (or any applicable assignee or its guarantor) shall have (1) a
long term credit rating of less than AA- by S&P and a short-term
credit rating of less than A-1+ by S&P, or (2) a long term credit
rating of less than A2 by Moody's and a short term credit rating of
less than P-1 by Moody's, or (3) a long term credit rating of less
than BBB+ by Fitch Ratings and a short term credit rating of less than
F2 by Fitch Ratings and Party B does not receive written affirmation
of the then current rating of the Notes, then Party A shall
immediately notify the Designated Rating Agencies and Party B and
within 5 Local Business Days (or 30 Local Business Days if the
downgrade is to no less than A- (S&P long term) and A-1 (S&P short
term) and A3 (Moody's long term) and A+ (Fitch long term) and F1
(Fitch short term)) of such downgrade (unless during this period,
Party A and Party B receive written confirmation from S&P, Fitch
Ratings and Moody's that such downgrade would not result in the Notes
either being downgraded or placed under review for possible downgrade)
at its cost either:
36
(A) put in place an appropriate ▇▇▇▇-to-market collateral agreement
(consisting of either cash or securities) which is based either
on S&P's New Interest Rate and Currency Swap Criteria published
in January 1999 (as may be amended from time to time), Fitch
Ratings' Counterparty Risk in Structured Finance Transactions:
Swap Criteria published on 13 September 2004 (as amended from
time to time) or on any other agreement reached between the
parties (whichever of these has the highest ratings criteria), in
support of its obligations under the Agreement, PROVIDED that
Party A and Party B receive prior written confirmation from S&P,
Fitch Ratings and Moody's that the rating assigned to the Notes
then outstanding by S&P, Fitch Ratings and ▇▇▇▇▇'▇ is not
adversely affected by the downgrade following such collateral
arrangements being put in place and PROVIDED FURTHER that this
sub-paragraph (i)(A) 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;
(B) transfer all its rights and obligations with respect to this
Agreement to a replacement third party whose unsecured and
unsubordinated debt obligations have (1) a long term credit
rating of at least AA- by S&P and a short-term credit rating of
at least A-1+ by S&P, or (2) a long term credit rating of at
least A2 by Moody's and a short term credit rating of at least
P-1 by Moody's, or (3) a long term credit rating of at least A+
by Fitch Ratings and a short term credit rating of at least F1 by
Fitch Ratings;
(C) procure that its obligations with respect to this Agreement are
guaranteed by a third party resident outside Australia whose
unsecured and unsubordinated debt obligations have (1) a long
term credit rating of at least AA- by S&P and a short-term credit
rating of at least A-1+ by S&P, or (2) a long term credit rating
of at least A2 by Moody's and a short term credit rating of at
least P-1 by Moody's, or (3) a long term credit rating of at
least A+ by Fitch Ratings and a short term credit rating of at
least F1 by Fitch Ratings; or
(D) enter into such other arrangements which each Designated Rating
Agency has confirmed will result in there not being a withdrawal
or downgrade of any credit rating assigned by it to the Notes.
(ii) Where Party A transfers its rights and obligations to a replacement
counterparty in accordance with sub-paragraph (i)(B) above, the
Trustee, at the direction of the Manager, and each other party to this
Agreement shall do all things reasonably necessary at the cost of
Party A to novate the relevant rights and obligations to the
replacement counterparty.
(iii) If, at any time, Party A's obligations under this Agreement are
transferred in accordance with sub-paragraph (i)(B) above, Party A
shall be immediately entitled to any collateral which it has provided
under any collateral agreement contemplated by sub-paragraph (i)(A)
(less any amount withdrawn in accordance with sub-paragraph (iv)).
37
(iv) Party B may only make withdrawals from any account into which
collateral is provided by Party A (the COLLATERAL ACCOUNT) if directed
to do so by the Manager and then only for the purpose of:
(A) transferring obligations under this Agreement in accordance with
sub-paragraph (i)(B) (including the costs of obtaining a
replacement counterparty);
(B) refunding to Party A any excess in the amount of any collateral
deposited to the Collateral Account over the amount Party A is
required to maintain under any collateral agreement contemplated
by sub-paragraph (i)(A);
(C) withdrawing any amount which has been incorrectly deposited into
the Collateral Account;
(D) paying bank accounts debit tax or other equivalent Taxes payable
in respect of the Collateral Account;
(E) funding the amount of any payment due to be made by Party A under
this Agreement following the failure by Party A to make that
payment; or
(F) making interest payments to Party A as contemplated by
sub-paragraph (v).
The Manager must direct Party B to, and Party B must, refund or pay to
Party A the amount of any payment which may be made to Party A under
(B), (C) or (F) above as soon as such refund or payment is possible.
(v) All interest on the Collateral Account will accrue and be payable
monthly to Party A providing the amount deposited to the Collateral
Account is not less than the amount Party A is required to maintain
under the collateral agreement contemplated by sub-paragraph (i)(A).
(y) EXCHANGE CONTROLS
Section 5(b)(i) (ILLEGALITY) is amended by adding the following paragraph
at the end:
"this sub paragraph (i) does not apply to the imposition by the Australian
government or any agency of the Australian government of any exchange
control restrictions or prohibitions ("EXCHANGE CONTROLS"). For the
avoidance of doubt:
(A) exchange controls do not constitute an Illegality or other Termination
Event or an Event of Default under this Agreement, and do not entitle
a party to terminate a Transaction or otherwise refuse to make any
payments it is obliged to make under a Transaction: and
(B) if and for so long as exchange controls are imposed, delivery by
either party of Australian dollar amounts required to be paid by it
under any relevant Confirmation to the bank account in Australia
notified in writing by a party (the "PAYER") to the other party from
time to time specified in that Confirmation will constitute proper
payment of those amounts by that other
38
party and the payer's obligations under this Agreement will be
unaffected by any such exchange controls."
(z) Deleted.
(aa) RESTRICTED TERMINATION RIGHTS
Add a new Section 6(aa) as follows:
"(aa) Restricted Termination Rights
(i) TERMINATION BY PARTY B: Party B must not designate an Early
Termination Date without the prior written consent of the Note
Trustee.
(ii) CONSULTATION: Each party may only designate an Early Termination
Date following prior consultation with the other party as to the
timing of the Early Termination Date. Subject to its duties under
the Master Trust Deed and the Supplementary Bond Terms Notice,
Party B may exercise its rights only after consultation with the
Note Trustee and only after consultation between Party A and the
Note Trustee.
(iii) PARTY A'S LIMITED RIGHTS IN RELATION TO TAX EVENT:
(a) Notwithstanding Part 1(c)(iii) of this Schedule, Party A may
designate an Early Termination Date if it is an Affected
Party following a Tax Event but only if all Class A Notes
will be redeemed at the full amount of the Invested Amount
(or, if the Class A Noteholders by Extraordinary Resolution
have so agreed, at a lesser amount) together with accrued
interest to (but excluding) the date of the redemption.
(b) If a Tax Event occurs where Party A is the Affected Party
and Party A is unable to transfer all its rights and
obligations under this Agreement and each Transaction to an
Affiliate pursuant to Section 6(b)(ii), Party A may, at its
cost, transfer all its rights, powers and privileges and all
its unperformed and future obligations under this Agreement
and each Transaction to any person provided that:
(A) each Designated Rating Agency has confirmed in writing
that the transfer will not result in a reduction,
qualification or withdrawal of the credit ratings then
assigned by the them to the relevant Class A Notes; and
(B) that person has a long term credit rating assigned by
each of the Designated Rating Agencies of at least the
long term credit rating assigned by that Designated
Rating Agency to Party A as at the date of this
Agreement.
(iv) TRANSFER WHERE PARTY B DOES NOT GROSS-UP: If any payment by Party
B to Party A under this Agreement is, or is likely to be, made
subject to any deduction or withholding on account of Tax, Party
B will endeavour to procure the substitution of Party B as
principal obligor under this Agreement in respect of each
Affected Transaction with
39
an Affiliate of Party B incorporated in another jurisdiction
approved by Party A and the Note Trustee and in respect of which
the Designated Rating Agencies confirm that the substitution will
not cause a reduction or withdrawal of the rating of Class A
Notes and in respect of which a deduction or withholding on
account of Tax would not be necessary".
(bb) TRANSFER
A new paragraph (c) is added to Section 7 as follows:
"a party may make such a transfer in accordance with this Agreement or
the Security Trust Deed".
and the full-stop at the end of paragraph (b) is replaced with "; and"
(cc) PARTY B'S PAYMENT INSTRUCTIONS
Party B irrevocably authorises and instructs Party A to make payment of:
(i) the Initial Exchange Amount payable by Party A under a currency swap
transaction by paying that amount direct to the account notified in
writing by Party B to Party A for that purpose; and
(ii) any other amount due from Party A to Party B under this Agreement by
paying that amount direct to the Principal Paying Agent to the account
notified in writing by the Principal Paying Agent to Party A for that
purpose. Party A is entitled to rely on any such notice.
(dd) NO AMENDMENT
Each of Party B and the Manager agrees that it will not consent to any
amendment to any provision in any Transaction Document dealing with the
ranking, priority or entitlement of Party A in respect of any security or
moneys without the prior written consent of Party A.
40
IN WITNESS WHEREOF the parties have executed this Schedule on the respective
dates specified below with effect from the date specified on the first page of
this document.
SOCIETE GENERALE AUSTRALIA BRANCH PERPETUAL TRUSTEES AUSTRALIA LIMITED
By: By:
----------------------------- --------------------------------
Name: Name:
Title: Title:
Date: Date:
By: By:
----------------------------- --------------------------------
Name: Name:
Title: Title:
Date: Date:
ME PORTFOLIO MANAGEMENT LIMITED
By:
-----------------------------
Name:
Title:
Date:
By:
-----------------------------
Name:
Title:
Date:
41