--------------------------------------------------------------------------------
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. 6 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
--------------------------------------------------------------------------------
THIS AMENDING DEED
is made on 2004 between the following parties:
1. AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ABN 11
005 357 522 of Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
(PARTY A)
2. PERPETUAL TRUSTEES AUSTRALIA LIMITED in its capacity
as trustee of the Trusts ABN 86 000 000 000 of Xxxxx
0, 00 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx
(PARTY B)
3. ME PORTFOLIO MANAGEMENT LIMITED in its capacity as
manager of the Trusts ABN 79 005 964 134 of Xxxxx 00,
000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
(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
dated 24 April 2003 (including all schedules and
annexures) (MASTER AGREEMENT) in respect of the
Trusts.
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:
--------------------------------------------------------------------------------
1 DEFINITIONS AND INTERPRETATION
In this deed:
(a) EFFECTIVE DATE means in relation to the amendments in
clause 2.1(a), the date on which the securitisation
fund known as "SMHL Global Fund No. 7" 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
--------------------------------------------------------------------------------
2 AMENDMENTS TO THE MASTER AGREEMENT
2.1 AMENDMENTS TO THE SCHEDULE TO THE MASTER AGREEMENT FOR SMHL
GLOBAL FUND NO. 7
(a) In relation to SMHL Global Fund No. 7 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.
--------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------
EXECUTED AS A DEED:
SIGNED SEALED AND DELIVERED for
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
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
--------------------------------------------------------------------------------
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 24 APRIL 2003
BETWEEN
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ABN 11 005 357 522 ("PARTY A")
AND
PERPETUAL TRUSTEES AUSTRALIA LIMITED ("PARTY B") ABN 86 000 000 000
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(n)(iii) 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)".
7
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 30 Days of that occurrence, Party A, Party
B and Party C are able to procure a 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 Bonds, and Party A, Party B and Party C agree to execute such
a novation agreement in standard ISDA form agreed between the parties.
(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 will apply. Each of the following shall
constitute an Additional Termination Event:
(i) Party B becomes obliged to make a withholding or deduction in
respect of any Bonds and the Bonds are redeemed as a result. For
the purposes of this Termination Event, Party B is the Affected
Party. Notwithstanding Section 6(b)(iv) of the Agreement, if this
Termination Event occurs, Party B must, at the direction of the
Manager, give a notice designating an Early Termination Date in
respect of this Agreement and all Transactions;
(ii) Party A fails to comply with its obligations under Part 5.2(m).
For the purposes of this Termination Event, Party A is the
Affected Party. Notwithstanding Section 6(b)(iv) of the Agreement,
if this Termination Event occurs, Party B must, at the direction
of the Manager, give a notice designating an Early Termination
Date in respect of this Agreement and all Transactions); and
(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 Bonds immediately due and payable. For
the purposes of this Termination Event, Party B 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,
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.
8
(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
required or reasonably requested by a practicable following a
party in connection with its obligations reasonable request by the
to make a payment under this Agreement other party.
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 At the execution of this Agreement
for the party and evidence satisfactory in and thereafter promptly upon any
form and substance to the other party of the change in authorised persons
authority of the authorised signatories or upon request.
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
the party containing consolidated financial Party B or Party C.
statements, certified by independent
public accountants and prepared in
accordance with accounting principles
that are generally accepted in the country
in 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 Upon reasonable request by
to any relevant Origination Fund or Party A subject to not being
Securitisation Fund as are produced for obliged to deliver any
distribution to Bondholders or Noteholders document if to do so would
or presentation to the Board of Directors beach or infringe any law or
of Party C and such other information in legally binding obligation or
Party C's control regarding the financial restraint.
condition and business operations of any
relevant Origination Fund or Securitisation
9
Fund as Party A may reasonably require from
time to time
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
the terms of the Master Trust Deed becoming effective in accordance
certified to be a true copy by two with its terms.
authorised signatories of Party C.
Party C A copy of the Relevant Security Trust Deed 5 Local Business Days prior
and Information Memorandum relating to a to the date of the first
Securitisation Fund certified to be a true Transaction made under this
copy by two authorised signatories of Agreement relating to that
Party C. Securitisation Fund.
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 : Xxxxx 00, 000 Xxxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Attention: Manager, Derivatives Operations
Telex No: AA151018 Answeback: ANZAT
Telephone No: (00) 0000 0000
Fax No: (00) 0000 0000
SWIFT Code: XXXXXX0X
(ii) Address for notices or communications to Party B:-
Address: Xxxxx 0
00 Xxxxxx Xxxxxx,
Xxxxxx XXX 0000
Attention: Manager, Securitisation Services
Telephone: (00) 0000 0000
Facsimile No: (00) 0000 0000
(iii) Address for notices or communications to Party C:-
Address: Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 0000
Attention: Settlements Officer
Telephone: (00) 0000 0000
Facsimile No. (000) 0000 0000
(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
11
(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)
(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.
(k) An additional Section 3(g) is inserted as follows:
"(g) RELATIONSHIP BETWEEN PARTIES. Subject to Section 3(i), each
party will be deemed to represent to the other party 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 that Transaction):
(1) Non-Reliance. It is acting for its own account, 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 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 will not be considered investment advice
or a recommendation to enter into that Transaction. No
communication (written or oral) received from the other
party will be deemed to be an assurance or guarantee as
to the expected results of that Transaction.
(2) 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.
(3) Status of Parties. The other party is not acting as a
fiduciary for or an adviser to it in respect of that
Transaction."
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)."
12
(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
(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 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 Xxx 0000 (Cth) and Section 86 of the Reserve Bank
Xxx 0000 (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.
13
(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;
(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
14
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.
(c) Unless otherwise agreed by the parties, Standard & Poor's Ratings
Group and Xxxxx'x Investors Service, any transfer or assignment
pursuant to this Section 7 must be made to an entity of which both
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 Xxxxx'x Investors Service 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 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.
15
(iii) insert the following new definitions:
"INFORMATION MEMORANDUM" means the Information Memorandum prepared
by Party C in relation to a Securitisation Fund.
"MASTER TRUST DEED" means a Master Trust Deed dated 4 July 1994
(as amended and restated) 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.
"ORIGINATION FUND" means an origination fund established under the
Master Trust Deed.
"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.
"RELEVANT SECURITISATION FUND" means, in relation to a
Transaction, the Securitisation Fund specified in the Confirmation
relating to that Transaction.
"SECURITISATION FUNDS" means a securitisation fund created under
the Master Trust Deed from time to time listed in Annexure 1 to
this Agreement as varied by the parties from to time in writing,
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.
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
provided that in the event of any inconsistency those in the
Relevant Security Trust Deed shall prevail."
(m) DEFINED TERMS
(i) Each of the following expressions has the meaning given to them in
the Supplementary Bond Terms Notice:
16
"INVESTED AMOUNT"
"NOTES"
"NOTEHOLDER"
"NOTE TRUSTEE"
(ii) 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.
(n) 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; and
(d) this Agreement is an "Interest Hedge" and a "Transaction
Document" and Party A is an "Interest Hedge Provider" in respect
of the Relevant Securitisation Fund.
(o) Party B also represents to Party A (which representations will be deemed to
be repeated by Party B on each date on which a Transaction is entered into
and at all times until the termination of this Agreement) that:
(i) 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).
(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.
(p) 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 the assets 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 not xxx Party B (in respect of
liabilities incurred by Party B in its capacity as trustee of the
relevant Fund) in any capacity other than as trustee of the
relevant Fund or seek the appointment of a receiver (except in
relation to the assets 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 the assets of the Fund).
17
(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 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.
(g) 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.
18
(h) 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 EACH RELEVANT 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).
(i) 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 each relevant 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 each relevant Fund only, and in no other capacity.
(j) The provisions of this Section 15:
(i) are paramount and apply regardless of any other provision of
this Agreement or any other instrument, even a provision
which seeks to apply regardless of any other provision;
(ii) survive and enure beyond any termination of this Agreement
for any reason; and
(iii) are not severable from this Agreement.."
(q) THIRD PARTY PAYMENT INSTRUCTIONS. In Section 12(a) in the second line add
after "messaging system":
"and each party agrees that it will not make any payment under or in
connection with this Agreement to an entity other than the other party to
this Agreement or its nominee or at its discretion".
(r) FRAUD AND SECURITY
(i) Each party is responsible for the accuracy and authorisation of all
its instructions.
(ii) ANY CREDIT LIMIT, IN RESPECT OF A PARTY ("PARTY X") IS IMPOSED
FOR THE OTHER PEARTY'S ("PARTY Y") BENEFIT. PARTY X MUST NOT RELY
UPON IT AS A SECURITY FEATURE. PARTY Y MAY, IN ITS ABSOLUTE
DISCRETION, PROCESS, OR DECLINE TO PROCESS, A REQUEST FOR A
TRANSACTION(S) IN EXCESS OF THE CREDIT LIMIT, WITHOUT FURTHER
REFERENCE TO PARTY X. PARTY Y MAY, IN ITS ABSOLUTE DISCRETION,
DISAPPROVE A REQUEST FOR A TRANSACTION(S) IN EXCESS OF THE CREDIT
LIMIT DESPITE PARTY Y HAVING PREVIOUSLY APPROVED A REQUEST FOR A
TRANSACTION(S) IN EXCESS OF THE CREDIT LIMIT.
(iii) Nothing in this clause allows a party to terminate a previously
agreed Transaction.
5.2 ADDITIONAL PROVISIONS
(a) ISDA DEFINITIONS. the 2000 ISDA (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) Deleted
(c) ROLE OF PARTY C:
Party C:
19
(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 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.
(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) Deleted
(h) Any reference to a:
(i) "Swap Transaction" in 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.
(i) 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.
(j) 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
20
other party; and (2) all government and regulatory authorities as and
when required by such government and regulatory authorities.
(k) 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.
(l) 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
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.
(m) RATINGS DOWNGRADE:
(a) Downgrade of Party A
For the purpose of this clause, "Rating Agency" means any one of
the following:
o Standard & Poor's ("S&P"); or
x Xxxxx'x
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:
o Short term credit rating of at least A-1 by S&P; and
o Short term credit rating of at least P-1 or a long term credit
rating of at least A2 by Xxxxx'x,
Party A shall within 30 Days of receipt by Party A of notification of
such downgrade, at its cost alone:
(i) novate all its rights and obligations under this Agreement to
a replacement counterparty which holds:
o Short term credit rating of at least A-1 by S&P; and
o Short term credit rating of at least P-1 or a long term credit
rating of at least A2 by Xxxxx'x, or
(ii) procure a third party, which holds:
o Short term credit rating of at least A-1 by S&P; and
o Short term credit rating of at least P-1 or a long term credit
rating of at least A2 by Xxxxx'x,
to guarantee Party A's obligations under this Agreement; or
(iii) put into place such other arrangement (as agreed by the parties
from time to time) in respect of which each of the Rating
Agencies issues a Rating Affirmation.
21
For the purposes of this clause, "RATING AFFIRMATION"
means in respect of anything done or to be done under
this Agreement or any related Agreement, an
affirmation from the Rating Agency that the doing of
that thing will not adversely impact on the rating of
any Bonds (a letter or other communication from the
Rating Agency to that effect being conclusive
evidence of its contents for all purposes of this
Agreement or any related agreement),
provided that, in the event that none of the events set out in
sub-clauses (i), (ii) or (iii) above occur within 30 Days of
receipt by Party A of notification of such downgrade, Party A
will, on the 31st Day after such notification execute and
deliver to Party B a xxxx-to-market collateral agreement based
on an amount equal to the greater of the following:
1. the requirements set out in S&P's criteria as it
relates to Interest Rate Swaps (as amended from
time to time) ("MTM AGREEMENT") which will
include the Volatility Buffer set out in
sub-clause (b) below; or
2. for any Business Day, the swap collateral amount
in respect of a Transaction ("SWAP COLLATERAL
AMOUNT") calculated by Party A in accordance
with sub-paragraphs (i) -(vi) below.
(i) A repricing profile of the loans to which
the Transaction relates will be run as at
the close of business on the previous
Business Day.
(ii) The repricing duration (weighted average
repricing term) of the profile will be
calculated using a 5% constant prepayment
rate and the spot mid-market zero coupon
yield curve, which is derived from the
average of the four major banks' mid-market
inter bank swap curves.
(iii) The implied volatility for the term derived
in (ii) above will be calculated using the
Sydney Futures Exchange futures strip.
(iv) The forward one week mid-market zero curve
plus 5 basis points will be derived.
(v) A 99% degree of confidence will be applied
to the zero curve derived in (iv) above
(i.e. 2.33 x volatility)
(vi) The profile run under (i) above will be
marked-to-market using the curve described
in (v) above.
If the market value of the outcome of step (vi)
is greater than the Notional Amount of the
Transaction, then the difference will be the Swap
Collateral Amount. Step (vi) will be repeated on
a weekly basis in accordance with sub-clause (c)
(iii) below; or
3. the amount of collateral required to be provided
under any other agreement agreed to by the
parties to this Agreement, under which Party A is
required to provide collateral (consisting of
cash in an agreed currency or Securities (as
defined below and as discounted by a rate agreed
with each of the Rating Agencies for the purpose
of determining the amount of collateral the
Security represents) ("COLLATERAL") (to be used
by Party B solely for the purpose of discharging
Party A's obligations under the relevant
Transaction),
provided that the Rating Agency confirms in writing
that the execution and delivery of such agreement
will not result in an Adverse Rating Effect.
For the purpose of this clause, "SECURITIES" means any of the
following instruments provided they are denominated in
Australian dollars and held in the name of downgraded party
(Party A):
(i) any stock, bond, note, debenture, treasury xxxx,
other security, deposit or loan secured or
guaranteed by the Commonwealth of Australia or
any State or Territory of the Commonwealth of
Australia; or
22
(ii) deposits with or bills of exchange, promissory
notes or other negotiable instruments issued,
accepted, drawn or endorsed by any entity
having:
o an S&P rating of AAA or A-1+; and
x Xxxxx'x rating of Aaa or P-1;
at the time of acquisition by Party A; or
(iii) such other instruments as agreed by each Ratings
Agency.
(b) Volatility Buffer
Volatility Buffer means the relevant percentage of the Notional Amount
of the relevant Transaction calculated from the following table:
VOLATILITY BUFFER (%)
---------------------------------------------------------------------------------------------------------------
PARTY A'S TRANSACTIONS WITH TRANSACTIONS WITH TRANSACTIONS WITH MATURITIES OF
RATING MATURITIES OF UP TO 5 MATURITIES OF MORE THAN 5 MORE THAN 10 YRS
YRS YRS AND UP TO 10 YRS
---------------------------------------------------------------------------------------------------------------
A-1 1.5 3.15 6.0
---------------------------------------------------------------------------------------------------------------
(c) MTM Agreement.
Where Party A and Party B enter into a MTM Agreement under this Part
5.2(c), that MTM Agreement must include the following provisions:
(i) if the aggregate value of the Collateral already provided by
Party A under the MTM Agreement is less than the amount that
Party A is required to maintain under the MTM Agreement, Party A
must provide additional Collateral to the Collateral Account
(defined below) equal to the amount of the shortfall. Party A
must provide any such additional Collateral as soon as payment is
possible, but in any case, within three Local Business Days of
receipt of a demand from Party B;
(ii) if the aggregate value of the Collateral already provided by
Party A under the MTM Agreement exceeds the amount that Party A
is required to maintain under the MTM Agreement, Party B must
refund any such excess collateral to Party A as provided by
paragraph (f) within three Local Business Days of a notice from
Party A;
(iii) Party A, in its capacity as Calculation Agent, will determine
whether the amount of Collateral already lodged by Party A is
less than or exceeds the amount of collateral that Party A is
required to maintain under the MTM Agreement. Party A will make
these determinations on a weekly basis on the last Local Business
Day of each week and will notify Party B of its determinations by
5:00pm (Sydney time) on the next following Local Business Day.
(d) Novation.
If Party A novates its rights and obligations to a replacement
counterparty pursuant to paragraph (a)(i) above, Party B (at the
direction of Party C) and each other party will do all things
reasonably necessary, at the cost of Party A, to effect the novation.
(e) Conditions for maintaining Collateral.
Any Collateral provided by Party A pursuant to paragraph (a) above must
be deposited or delivered (whichever is appropriate) into a bank
account with a bank having a short-term credit rating of P-1, a short
term credit rating of A-1 (S&P) , in the name of Party B (bearing
interest at a commercial rate) which must be an account which is
separate from the Issuer Account (any such account the "COLLATERAL
ACCOUNT"). If the Collateral is paid or delivered into the Collateral
Account, then no other moneys are to be paid or delivered into such
account (other than interest pursuant to paragraph (f)).
(f) Application of amount of Collateral.
23
Party B may only make withdrawals from any Collateral Account described
in paragraph (e) above if directed to do so by the Trust Manager and
then only for the purpose of:
(i) 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 entered into
in accordance with paragraph (a);
(ii) withdrawing any amount which has been incorrectly deposited in to
the Collateral Account or any other account as part of the
Collateral;
(iii) paying bank accounts debit tax or other equivalent Taxes payable
in respect of the Collateral; or
(iv) funding the amount of any payment due to be made by Party A under
the Agreement following the failure by Party A to make that
payment and the expiry of any grace period which Party A is
permitted in respect of such payment under this Agreement.
Party B must, refund or pay to Party A the amount of any payment which
may be made to Party A under paragraphs (f)(i) or (ii) above as soon as
such refund or payment is possible.
(g) Interest on Collateral
All interest earned on the Collateral will accrue and be payable
monthly to Party A providing the amount deposited as the Collateral is
not less than the amount Party A is required to maintain under the
collateral agreement under paragraph (a) in which case such interest
will be deposited to the Collateral Account.
(h) Repayment to Party A.
If at any time:
(i) Party A is assigned a short-term credit rating by the Rating
Agency equal to P-1 and a long term credit rating equal to or
greater than A2 (Xxxxx'x), a short term credit rating of A-1
(S&P); or
(ii) Party A's obligations under this Agreement are novated to a
replacement counterparty in accordance with paragraph (a)(i); or
(iii) a third party provides a guarantee in accordance with paragraph
(a)(ii); or
(iv) some other arrangement is entered into in accordance with
paragraph (a)(iii),
Party B must following receipt of notification of an event referred to
in sub-paragraph (i), (ii), (iii) or (iv) above, repay to Party A the
amount then standing to the credit of the Collateral Account including
interest which has accrued and not been paid to Party A pursuant to
paragraph (f) above.
(i) No Creation of a Charge
To the extent any collateral is provided by Party A under this Part
5.2(m), it is not intended to create a charge.
(n) ESTRICTED 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
24
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)".
(o) Section 6 is amended by replacing "20 days" in line 3 with "10 local
business days".
(p) 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.
25
AUSTRALIA AND NEW ZEALAND BANKING GROUP PERPETUAL TRUSTEES AUSTRALIA LIMITED
LIMITED
------------------------------ -------------------------------------
Name: Name:
Title: Title:
Date: Date:
------------------------------ -------------------------------------
Name: Name:
Title: Title:
Date: Date:
ME PORTFOLIO MANAGEMENT LIMITED
------------------------------
Name:
Title:
Date:
------------------------------
Name:
Title:
Date:
26
ANNEXURE 1
The Superannuation Members' Home Loans Origination Fund No. 3
The Superannuation Members' Home Loans Securitisation Fund No. 4
The Superannuation Members' Home Loans Securitisation Fund No. 5
The Superannuation Members' Home Loans Securitisation Fund No. 6
The Superannuation Members' Home Loans Securitisation Fund No. 7
The Superannuation Members' Home Loans Securitisation Fund No. 8
The Superannuation Members' Home Loans Securitisation Fund No. 9
The Superannuation Members' Home Loans Securitisation Fund No. 10
The Superannuation Members' Home Loans Securitisation Fund No. 11
The Superannuation Members' Home Loans Securitisation Fund No. PP5
The Superannuation Members' Home Loans Securitisation Fund No. PP9
The Superannuation Members' Home Loans Securitisation Fund No. PP10
The SMHL Global Fund No. 7
27
MASTER NOVATION ANNEX
This Master Novation Annex is annexed to and forms part of the ISDA Master
Agreement ("Agreement") dated as of [ ] 2002 between Australia and New Zealand
Banking Group Limited 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 otherwise 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 PARTY A
28
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
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.
29
AUSTRALIA AND NEW ZEALAND BANKING GROUP PERPETUAL TRUSTEES AUSTRALIA LIMITED
LIMITED
------------------------------ ------------------------------
Name: Name:
Title: Title:
Date: Date:
------------------------------ ------------------------------
Name: Name:
Title: Title:
Date: Date:
ME PORTFOLIO MANAGEMENT LIMITED
------------------------------
Name:
Title:
Date:
------------------------------
Name:
Title:
Date:
30
SCHEDULE TO THE MASTER NOVATION ANNEX
NOVATION CONFIRMATION
[Date]
TO: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ("PARTY A")
COPY TO: PERPETUAL TRUSTEES AUSTRALIA LIMITED, ACN 000 000 000 ("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 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
--------------------------------------------------------------------------------------------------------------------------
SERIAL NO. TRADE DATE FACILITY NO. NOTIONAL AMOUNT FIXED SWAP RATE CURRENT PROPORTION OF
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.
31
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)
32
