ISDA® International Swap Dealers Association, Inc. MASTER AGREEMENT dated as of 29 May 2007 Australia and New Zealand Banking Group Limited (ABN 11 005 357 522) (“Party A”) and Perpetual Limited (ABN 86 000 431 827) in its capacity as trustee of the...
ISDA®
International
Swap Dealers Association, Inc.
dated
as
of 29 May 0000
Xxxxxxxxx
and New Zealand Banking Group Limited (ABN 11 005 357 522) (“Party
A”)
and
Perpetual
Limited (ABN 86 000 000 000) in its capacity as trustee of the
Securitisation
Fund
(“Party
B”)
and
ME
Portfolio Management Limited (ABN 79 005 964 134) in its capacity as
manager
of the Securitisation Fund
(“Manager”)
have
entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming
those
Transactions.
Accordingly,
the parties agree as follows:-
1. Interpretation
(a) Definitions.
The
terms defined in Section 14 and in the Schedule will have the meanings therein
specified for the purpose of this Master Agreement.
(b) Inconsistency.
In the
event of any inconsistency between the provisions of the Schedule and the
other
provisions of this Master Agreement, the Schedule will prevail. In the event
of
any inconsistency between the provisions of any Confirmation and this Master
Agreement (including the Schedule), such Confirmation will prevail for the
purpose of the relevant Transaction.
(c) Single
Agreement. All
Transactions are entered into in reliance on the fact that this Master Agreement
and all Confirmations form a single agreement between the parties (collectively
referred to as this "Agreement"), and the parties would not otherwise enter
into
any Transactions.
2. Obligations
(a) General
Conditions.
(i) Each
party will make each payment or delivery specified in each Confirmation to
be
made by it, subject to the other provisions of this Agreement.
(ii) Payments
under this Agreement will be made on the due date for value on that date
in the
place of the account specified in the relevant Confirmation or otherwise
pursuant to this Agreement, in freely transferable funds and in the manner
customary for payments in the required currency. Where settlement is by delivery
(that is, other
Copyright
© 1992 by International Swap Dealers
Association, Inc.
than
by
payment), such delivery will be made for receipt on the due date in the manner
customary for the relevant obligation unless otherwise specified in the relevant
Confirmation or elsewhere in this Agreement.
(iii) Each
obligation of each party under Section 2(a)(i) is subject to (1) the condition
precedent that no Event of Default or Potential Event of Default with respect
to
the other party has occurred and is continuing, (2) the condition precedent
that
no Early Termination Date in respect of the relevant Transaction has occurred
or
been effectively designated and (3) each other applicable condition precedent
specified in this Agreement.
(b) Change
of Account.
Either
party may change its account for receiving a payment or delivery by giving
notice to the other party at least five Local Business Days prior to the
scheduled date for the payment or delivery to which such change applies unless
such other party gives timely notice of a reasonable objection to such
change.
(c) Netting.
If
on any
date amounts would otherwise be payable:-
(i) in
the
same currency; and
(ii) in
respect of the same Transaction,
by
each
party to the other, then, on such date, each party's obligation to make payment
of any such amount will be automatically satisfied and discharged and, if
the
aggregate amount that would otherwise have been payable by one party exceeds
the
aggregate amount that would otherwise have been payable by the other party,
replaced by an obligation upon the party by whom the larger aggregate amount
would have been payable to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount.
The
parties may elect in respect of two or more Transactions that a net amount
will
be determined in respect of all amounts payable on the same date in the same
currency in respect of such Transactions, regardless of whether such amounts
are
payable in respect of the same Transaction. The election may be made in the
Schedule or a Confirmation by specifying that subparagraph (ii) above will
not
apply to the Transactions identified as being subject to the election, together
with the starting date (in which case subparagraph (ii) above will not, or
will
cease to, apply to such Transactions from such date). This election may be
made
separately for different groups of Transactions and will apply separately
to
each pairing of Offices through which the parties make and receive payments
or
deliveries.
(d) Deduction
or Withholding for Tax.
(i) Gross-Up. All
payments under this Agreement will be made without any deduction or withholding
for or on account of any Tax unless such deduction or withholding is required
by
any applicable law, as modified by the practice of any relevant governmental
revenue authority, then in effect. If a party is so required to deduct or
withhold, then that party ("X") will:-
(1) promptly
notify the other party ("Y") of such requirement;
(2) pay
to
the relevant authorities the full amount required to be deducted or withheld
(including the full amount required to be deducted or withheld from any
additional amount paid by X to Y under this Section 2(d)) promptly upon the
earlier of determining that such deduction or withholding is required or
receiving notice that such amount has been assessed against Y;
2
(3) promptly
forward to Y an official receipt (or a certified copy), or other documentation
reasonably acceptable to Y, evidencing such payment to such authorities;
and
(4) if
such
Tax is an Indemnifiable Tax, pay to Y, in addition to the payment to which
Y is
otherwise entitled under this Agreement, such additional amount as is necessary
to ensure that the net amount actually received by Y (free and clear of
Indemnifiable Taxes, whether assessed against X or Y) will equal the full
amount
Y would have received had no such deduction or withholding been required.
However, X will not be required to pay any additional amount to Y to the
extent
that it would not he required to be paid but for:-
(A) the
failure by Y to comply with or perform any agreement contained in Section
4(a)(i), 4(a)(iii) or 4(d); or
(B) the
failure of a representation made by Y pursuant to Section 3(f) to be accurate
and true unless such failure would not have occurred but for (I) any action
taken by a taxing authority, or brought in a court of competent jurisdiction,
on
or after the date on which a Transaction is entered into (regardless of whether
such action is taken or brought with respect to a party to this Agreement)
or
(II) a Change in Tax Law.
(ii) Liability.
If:-
(1) X
is
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, to make any deduction or withholding in respect
of which X would not be required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X
does
not so deduct or withhold; and
(3) a
liability resulting from such Tax is assessed directly against X,
then,
except to the extent Y has satisfied or then satisfies the liability resulting
from such Tax, Y will promptly pay to X the amount of such liability (including
any related liability for interest, but including any related liability for
penalties only if Y has failed to comply with or perform any agreement contained
in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default
Interest; Other Amounts.
Prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party that defaults in the performance of
any
payment obligation will, to the extent permitted by law and subject to Section
6(c), be required to pay interest (before as well as after judgment) on the
overdue amount to the other party on demand in the same currency as such
overdue
amount, for the period from (and including) the original due date for payment
to
(but excluding) the date of actual payment, at the Default Rate. Such interest
will be calculated on the basis of daily compounding and the actual number
of
days elapsed. If, prior to the occurrence or effective designation of an
Early
Termination Date in respect of the relevant Transaction, a party defaults
in the
performance of any obligation required to be settled by delivery, it will
compensate the other party on demand if and to the extent provided for in
the
relevant Confirmation or elsewhere in this Agreement.
3. Representations
3
Each
party represents to the other party (which representations will be deemed
to be
repeated by each party on each date on which a Transaction is entered into
and,
in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:-
(a) Basic
Representations.
(i) Status.
It
is
duly organised and validly existing under the laws of the jurisdiction of
its
organisation or incorporation and, if relevant under such laws, in good
standing;
(ii) Powers.
It
has
the power to execute this Agreement and any other documentation relating
to this
Agreement to which it is a party, to deliver this Agreement and any other
documentation relating to this Agreement that it is required by this Agreement
to deliver and to perform its obligations under this Agreement and any
obligations it has under any Credit Support Document to which it is a party
and
has taken all necessary action to authorise such execution, delivery and
performance;
(iii) No
Violation or Conflict. Such
execution, delivery and performance do not violate or conflict with any law
applicable to it, any provision of its constitutional documents, any order
or
judgment of any court or other agency of government applicable to it or any
of
its assets or any contractual restriction binding on or affecting it or any
of
its assets;
(iv) Consents.
All
governmental and other consents that are required to have been obtained by
it
with respect to this Agreement or any Credit Support Document to which it
is a
party have been obtained and are in full force and effect and all conditions
of
any such consents have been complied with; and
(v) Obligations
Binding. Its
obligations under this Agreement and any Credit Support Document to which
it is
a party constitute its legal, valid and binding obligations, enforceable
in
accordance with their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting creditors'
rights generally and subject, as to enforceability, to equitable principles
of
general application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
(b) Absence
of Certain Events. No
Event
of Default or Potential Event of Default or, to its knowledge, Termination
Event
with respect to it has occurred and is continuing and no such event or
circumstance would occur as a result of its entering into or performing its
obligations under this Agreement or any Credit Support Document to which
it is a
party.
(c) Absence
of Litigation.
There is
not pending or, to its knowledge, threatened against it or any of its Affiliates
any action, suit or proceeding at law or in equity or before any court,
tribunal, governmental body, agency or official or any arbitrator that is
likely
to affect the legality, validity or enforceability against it of this Agreement
or any Credit Support Document to which it is a party or its ability to perform
its obligations under this Agreement or such Credit Support
Document.
(d) Accuracy
of Specified Information.
All
applicable information that is furnished in writing by or on behalf of it
to the
other party and is identified for the purpose of this Section 3(d) in the
Schedule is, as of the date of the information, true, accurate and complete
in
every material respect.
(e) Payer
Tax Representation.
Each
representation specified in the Schedule as being made by it for the purpose
of
this Section 3(e) is accurate and true.
4
(f) Payee
Tax Representations. Each
representation specified in the Schedule as being made by it for the purpose
of
this Section 3(f) is accurate and true.
4. Agreements
Each
party agrees with the other that, so long as either party has or may have
any
obligation under this Agreement or under any Credit Support Document to which
it
is a party:-
(a) Furnish
Specified Information. It
will
deliver to the other party or, in certain cases under subparagraph (iii)
below,
to such government or taxing authority as the other party reasonably
directs:-
(i) any
forms, documents or certificates relating to taxation specified in the Schedule
or any Confirmation;
(ii) any
other
documents specified in the Schedule or any Confirmation; and
(iii) upon
reasonable demand by such other party, any form or document that may be required
or reasonably requested in writing in order to allow such other party or
its
Credit Support Provider to make a payment under this Agreement or any applicable
Credit Support Document without any deduction or withholding for or on account
of any Tax or with such deduction or withholding at a reduced rate (so long
as
the completion, execution or submission of such form or document would not
materially prejudice the legal or commercial position of the party in receipt
of
such demand), with any such form or document to be accurate and completed
in a
manner reasonably satisfactory to such other party and to be executed and
to be
delivered with any reasonably required certification,
in
each
case by the date specified in the Schedule or such Confirmation or, if none
is
specified, as soon as reasonably practicable.
(b) Maintain
Authorisations. It
will
use all reasonable efforts to maintain in full force and effect all consents
of
any governmental or other authority that are required to be obtained by it
with
respect to this Agreement or any Credit Support Document to which it is a
party
and will use all reasonable efforts to obtain any that may become necessary
in
the future.
(c) Comply
with Laws. It
will
comply in all material respects with all applicable laws and orders to which
it
may be subject if failure so to comply would materially impair its ability
to
perform its obligations under this Agreement or any Credit Support Document
to
which it is a party.
(d) Tax
Agreement. It
will
give notice of any failure of a representation made by it under Section 3(f)
to
be accurate and true promptly upon learning of such failure.
(e) Payment
of Stamp Tax. Subject
to Section 11, it will pay any Stamp Tax levied or imposed upon it or in
respect
of its execution or performance of this Agreement by a jurisdiction in which it
is incorporated, organised, managed and controlled, or considered to have
its
seat, or in which a branch or office through which it is acting for the purpose
of this Agreement is located ("Stamp Tax Jurisdiction") and will indemnify
the
other party against any Stamp Tax levied or imposed upon the other party
or in
respect of the other party's execution or performance of this Agreement by
any
such Stamp Tax Jurisdiction which is not also a Stamp Tax Jurisdiction with
respect to the other party.
5. Events
of
Default and Termination Events
5
(a) Events
of Default. The
occurrence at any time with respect to a party or, if applicable, any Credit
Support Provider of such party or any Specified Entity of such party of any
of
the following events constitutes an event of default (an "Event of Default")
with respect to such party:-
(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 on or before the third Local Business Day after notice of such failure
is given to the party;
(ii) Breach
of Agreement.
Failure
by the party to comply with or perform any agreement or obligation (other
than
an obligation to make any payment under this Agreement or delivery under
Section
2(a)(i) or 2(e) or to give notice of a Termination Event or any agreement
or
obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with
or
performed by the party in accordance with this Agreement if such failure
is not
remedied on or before the thirtieth day after notice of such failure is given
to
the party;
(iii) Credit
Support Default.
(1) Failure
by the party or any Credit Support Provider of such party to comply with
or
perform any agreement or obligation to be complied with or performed by it
in
accordance with any Credit Support Document if such failure is continuing
after
any applicable grace period has elapsed;
(2) the
expiration or termination of such Credit Support Document or the failing
or
ceasing of such Credit Support Document to be in full force and effect for
the
purpose of this Agreement (in either case other than in accordance with its
terms) prior to the satisfaction of all obligations of such party under each
Transaction to which such Credit Support Document relates without the written
consent of the other party; or
(3) the
party
or such Credit Support Provider disaffirms, disclaims, repudiates or rejects,
in
whole or in part, or challenges the validity of, such Credit Support
Document;
(iv) Misrepresentation. A
representation (other than a representation under Section 3(e) or (f)) made
or
repeated or deemed to have been made or repeated by the party or any Credit
Support Provider of such party in this Agreement or any Credit Support Document
proves to have been incorrect or misleading in any material respect when
made or
repeated or deemed to have been made or repeated;
(v) Default
under Specified Transaction.
The
party, any Credit Support Provider of such party or any applicable Specified
Entity of such party (1) defaults under a Specified Transaction and, after
giving effect to any applicable notice requirement or grace period, there
occurs
a liquidation of, an acceleration of obligations under, or an early termination
of, that Specified Transaction, (2) defaults, after giving effect to any
applicable notice requirement or grace period, in making any payment or delivery
due on the last payment, delivery or exchange date of, or any payment on
early
termination of, a Specified Transaction (or such default continues for at
least
three Local Business Days if there is no applicable notice requirement or
grace
period) or (3) disaffirms, disclaims, repudiates or rejects, in whole or
in
part, a Specified Transaction (or such action is taken by any person or entity
appointed or empowered to operate it or act on its behalf);
6
(vi) Cross
Default. If
"Cross
Default" is specified in the Schedule as applying to the party, the occurrence
or existence of (1) a default, event of default or other similar condition
or
event (however described) in respect of such party, any Credit Support Provider
of such party or any applicable Specified Entity of such party under one
or more
agreements or instruments relating to Specified Indebtedness of any of them
(individually or collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which has resulted
in
such Specified Indebtedness becoming, or becoming capable at such time of
being
declared, due and payable under such agreements or instruments, before it
would
otherwise have been due and payable or (2) a default by such party, such
Credit
Support Provider or such Specified Entity (individually or collectively)
in
making one or more payments on the due date thereof in an aggregate amount
of
not less than the applicable Threshold Amount under such agreements or
instruments (after giving effect to any applicable notice requirement or
grace
period);
(vii) Bankruptcy. The
party, any Credit Support Provider of such party or any applicable Specified
Entity of such party:-
(1) is
dissolved (other than pursuant to a consolidation, amalgamation or merger);
(2)
becomes insolvent or is unable to pay its debts or fails or admits in writing
its inability generally to pay its debts as they become due; (3) makes a
general
assignment, arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a judgment
of
insolvency or bankruptcy or any other relief under any bankruptcy or insolvency
law or other similar law affecting creditors' rights, or a petition is presented
for its winding-up or liquidation, and, in the case of any such proceeding
or
petition instituted or presented against it, such proceeding or petition
(A)
results in a judgment of insolvency or bankruptcy or the entry of an order
for
relief or the making of an order for its winding-up or liquidation or (B)
is not
dismissed, discharged, stayed or restrained in each case within 30 days of
the
institution or presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (6) seeks or becomes subject to the
appointment of an administrator, provisional liquidator, conservator, receiver,
trustee, custodian or other similar official for it or for all or substantially
all its assets; (7) has a secured party take possession of all or substantially
all its assets or has a distress, execution, attachment, sequestration or
other
legal process levied, enforced or sued on or against all or substantially
all
its assets and such secured party maintains possession, or any such process
is
not dismissed, discharged, stayed or restrained, in each case within 30 days
thereafter; (8) causes or is subject to any event with respect to it which,
under the applicable laws of any jurisdiction, has an analogous effect to
any of
the events specified in clauses (1) to (7) (inclusive); or (9) takes any
action
in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the foregoing acts; or
(viii)
Merger
Without Assumption. The
party
or any Credit Support Provider of such party consolidates or amalgamates
with,
or merges with or into, or transfers all or substantially all its assets
to,
another entity and, at the time of such consolidation, amalgamation, merger
or
transfer:-
7
(1) the
resulting, surviving or transferee entity fails to assume all the obligations
of
such party or such Credit Support Provider under this Agreement or any Credit
Support Document to which it or its predecessor was a party by operation
of law
or pursuant to an agreement reasonably satisfactory to the other party to
this
Agreement; or
(2) the
benefits of any Credit Support Document fail to extend (without the consent
of
the other party) to the performance by such resulting, surviving or transferee
entity of its obligations under this Agreement.
(b) Termination
Events. The
occurrence at any time with respect to a party or, if applicable, any Credit
Support Provider of such party or any Specified Entity of such party of any
event specified below constitutes an Illegality if the event is specified
in (i)
below, a Tax Event if the event is specified in (ii) below or a Tax Event
Upon
Merger if the event is specified in (iii) below, and, if specified to be
applicable, a Credit Event Upon Merger if the event is specified pursuant
to
(iv) below or an Additional Termination Event if the event is specified pursuant
to (v) below:-
(i) Illegality. Due
to
the adoption of, or any change in, any applicable law after the date on which
a
Transaction is entered into, or due to the promulgation of, or any change
in,
the interpretation by any court, tribunal or regulatory authority with competent
jurisdiction of any applicable law after such date, it becomes unlawful (other
than as a result of a breach by the party of Section 4(b)) for such party
(which
will be the Affected Party):-
(1) to
perform any absolute or contingent obligation to make a payment or delivery
or
to receive a payment or delivery in respect of such Transaction or to comply
with any other material provision of this Agreement relating to such
Transaction; or
(2) to
perform, or for any Credit Support Provider of such party to perform, any
contingent or other obligation which the party (or such Credit Support Provider)
has under any Credit Support Document relating to such Transaction;
(ii) Tax
Event.
Due to
(x) any action taken by a taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with respect to a
party
to this Agreement) or (y) a Change in Tax Law, the party (which will be the
Affected Party) will, or there is a substantial likelihood that it will,
on the
next succeeding Scheduled Payment Date (1) be required to pay to the other
party
an additional amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4)
(except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2)
receive a payment from which an amount is required to be deducted or withheld
for or on account of a Tax (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) and no additional amount is required to be paid in respect
of
such Tax under Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A)
or (B));
(iii) Tax
Event Upon Merger. The
party
(the "Burdened Party") on the next succeeding Scheduled Payment Date will
either
(1) be required to pay an additional amount in respect of an Indemnifiable
Tax
under Section 2(d)(i)(4) (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) or (2) receive a payment from which an amount has been
deducted or withheld for or on account of any Indemnifiable Tax in respect
of
which the other party is not required to pay an additional amount (other
than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party
consolidating or amalgamating with, or merging with or into, or transferring
all
or substantially all its assets to, another entity (which will be the Affected
Party) where such action does not constitute an event described in Section
5(a)(viii);
8
(iv) Credit
Event Upon Merger.
If
"Credit Event Upon Merger" is specified in the Schedule as applying to the
party, such party ("X"), any Credit Support Provider of X or any applicable
Specified Entity of X consolidates or amalgamates with, or merges with or
into,
or transfers all or substantially all its assets to, another entity and such
action does not constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is materially
weaker than that of X, such Credit Support Provider or such Specified Entity,
as
the case may be, immediately prior to such action (and, in such event, X
or its
successor or transferee, as appropriate, will be the Affected Party);
or
(v) Additional
Termination Event. If
any
"Additional Termination Event" is specified in the Schedule or any Confirmation
as applying, the occurrence of such event (and, in such event, the Affected
Party or Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) Event
of Default and Illegality. If
an
event or circumstance which would otherwise constitute or give rise to an
Event
of Default also constitutes an Illegality, it will be treated as an Illegality
and will not constitute an Event of Default.
6. Early
Termination
(a) Right
to Terminate Following Event of
Default. If
at any
time an Event of Default with respect to a party (the "Defaulting Party")
has
occurred and is then continuing, the other party (the "Non-defaulting Party")
may, by not more than 20 days notice to the Defaulting Party specifying the
relevant Event of Default, designate a day not earlier than the day such
notice
is effective as an Early Termination Date in respect of all outstanding
Transactions. If, however, "Automatic Early Termination" is specified in
the
Schedule as applying to a party, then an Early Termination Date in respect
of
all outstanding Transactions will occur immediately upon the occurrence with
respect to such party of an Event of Default specified in Section 5(a)(vii)(1),
(3), (5), (6) or, to the extent analogous thereto, (8), and as of the time
immediately preceding the institution of the relevant proceeding or the
presentation of the relevant petition upon the occurrence with respect to
such
party of an Event of Default specified in Section 5(a)(vii)(4) or, to the
extent
analogous thereto, (8).
(b) Right
to
Terminate Following Termination Event.
(i)
Notice.
If
a
Termination Event occurs, an Affected Party will, promptly upon becoming
aware
of it, notify the other party, specifying the nature of that Termination
Event
and each Affected Transaction and will also give such other information about
that Termination Event as the other party may reasonably require.
(ii) Transfer
to Avoid Termination Event. If
either
an Illegality under Section 5(b)(i)(1) or a Tax Event occurs and there is
only
one Affected Party, or if a Tax Event Upon Merger occurs and the Burdened
Party
is the Affected Party, the Affected Party will, as a condition to its right
to
designate an Early Termination Date under Section 6(b)(iv), use all reasonable
efforts (which will not require such party to incur a loss, excluding
immaterial, incidental expenses) to transfer within 20 days after it gives
notice under Section 6(b)(i) all its rights and obligations under this Agreement
in respect of the Affected Transactions to another of its Offices or Affiliates
so that such Termination Event ceases to exist.
9
If
the
Affected Party is not able to make such a transfer it will give notice to
the
other party to that effect within such 20 day period, whereupon the other
party
may effect such a transfer within 30 days after the notice is given under
Section 6(b)(i).
Any
such
transfer by a party under this Section 6(b)(ii) will be subject to and
conditional upon the prior written consent of the other party, which consent
will not be withheld if such other party's policies in effect at such time
would
permit it to enter into transactions with the transferee on the terms
proposed.
(iii) Two
Affected Parties.
If
an
Illegality under Section 5(b)(i)(1) or a Tax Event occurs and there are two
Affected Parties, each party will use all reasonable efforts to reach agreement
within 30 days after notice thereof is given under Section 6(b)(i) on action
to
avoid that Termination Event.
(iv) Right
to Terminate. If:-
(1) a
transfer under Section 6(b)(ii) or an agreement under Section 6(b)(iii),
as the
case may be, has not been effected with respect to all Affected Transactions
within 30 days after an Affected Party gives notice under Section 6(b)(i);
or
(2) an
Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger or an Additional
Termination Event occurs, or a Tax Event Upon Merger occurs and the Burdened
Party is not the Affected Party,
either
party in the case of an Illegality, the Burdened Party in the case of a Tax
Event Upon Merger, any Affected Party in the case of a Tax Event or an
Additional Termination Event if there is more than one Affected Party, or
the
party which is not the Affected Party in the case of a Credit Event Upon
Merger
or an Additional Termination Event if there is only one Affected Party may,
by
not more than 20 days notice to the other party and provided that the relevant
Termination Event is then continuing, designate a day not earlier than the
day
such notice is effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect
of Designation.
(i) If
notice
designating an Early Termination Date is given under Section 6(a) or (b),
the
Early Termination Date will occur on the date so designated, whether or not
the
relevant Event of Default or Termination Event is then continuing.
(ii) Upon
the
occurrence or effective designation of an Early Termination Date, no further
payments or deliveries under Section 2(a)(i) or 2(e) in respect of the
Terminated Transactions will be required to be made, but without prejudice
to
the other provisions of this Agreement. The amount, if any, payable in respect
of an Early Termination Date shall be determined pursuant to Section
6(e).
(d) Calculations.
(i) Statement. On
or as
soon as reasonably practicable following the occurrence of an Early Termination
Date, each party will make the calculations on its part, if any, contemplated
by
Section 6(e) and will provide to the other party a statement (1) showing,
in
reasonable detail, such calculations (including all relevant quotations and
specifying any amount payable under Section 6(e)) and (2) giving details
of the
relevant account to which any amount payable to it is to be paid. In the
absence
of written confirmation from the source of a quotation obtained in determining
a
Market Quotation, the records of the party obtaining such quotation will
be
conclusive evidence of the existence and accuracy of such
quotation.
10
(ii) Payment
Date.
An
amount
calculated as being due in respect of any Early Termination Date under Section
6(e) will be payable on the day that notice of the amount payable is effective
(in the case of an Early Termination Date which is designated or occurs as
a
result of an Event of Default) and on the day which is two Local Business
Days
after the day on which notice of the amount payable is effective (in the
case of
an Early Termination Date which is designated as a result of a Termination
Event). Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early Termination
Date
to (but excluding) the date such amount is paid, at the Applicable Rate.
Such
interest will be calculated on the basis of daily compounding and the actual
number of days elapsed.
(e) Payments
on Early Termination. If
an
Early Termination Date occurs, the following provisions shall apply based
on the
parties' election in the Schedule of a payment measure, either "Market
Quotation" or "Loss", and a payment method, either the "First Method" or
the
"Second Method". If the parties fail to designate a payment measure or payment
method in the Schedule, it will be deemed that "Market Quotation" or the
"Second
Method", as the case may be, shall apply. 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.
(i) Events
of Default. If
the
Early Termination Date results from an Event of Default:-
(1) First
Method and Market Quotation.
If the
First Method and Market Quotation apply, the Defaulting Party will pay to
the
Non-defaulting Party the excess, if a positive number, of (A) the sum of
the
Settlement Amount (determined by the Non-defaulting Party) in respect of
the
Terminated Transactions and the Termination Currency Equivalent of the Unpaid
Amounts owing to the Non-defaulting Party over (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party.
(2) First
Method and Loss. If
the
First Method and Loss apply, the Defaulting Party will pay to the Non-defaulting
Party, if a positive number, the Non-defaulting Party's Loss in respect of
this
Agreement.
(3) Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, an amount will be payable equal
to (A)
the sum of the Settlement Amount (determined by the Non-defaulting Party)
in
respect of the Terminated Transactions and the Termination Currency Equivalent
of the Unpaid Amounts owing to the Non-defaulting Party less (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to the Defaulting Party.
If that
amount is a positive number, the Defaulting Party will pay it to the
Non-Defaulting Party; if it is a negative number, the Non-defaulting Party
will
pay the absolute value of that amount to the Defaulting Party.
(4) Second
Method and Loss.
If the
Second Method and Loss apply, an amount will be payable equal to the
Non-defaulting Party's Loss in respect of this Agreement. If that amount
is a
positive number, the Defaulting Party will pay it to the Non-defaulting Party;
if it is a negative number, the Non-defaulting Party will pay the absolute
value
of that amount to the Defaulting Party.
11
(ii) Termination
Events.
If the
Early Termination Date results from a Termination Event:-
(1) One
Affected Party. If
there
is one Affected Party, the amount payable will be determined in accordance
with
Section 6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4), if
Loss
applies, except that, in either case, references to the Defaulting Party
and to
the Non-defaulting Party will be deemed to be references to the Affected
Party
and the party which is not the Affected Party, respectively, and, if Loss
applies and fewer than all the Transactions are being terminated, Loss shall be
calculated in respect of all Terminated Transactions.
(2) Two
Affected Parties. If
there
are two Affected Parties:-
(A) if
Market
Quotation applies, each party will determine a Settlement Amount in respect
of
the Terminated Transactions, and an amount will be payable equal to (I) the
sum
of (a) one-half of the difference between the Settlement Amount of the party
with the higher Settlement Amount ("X") and the Settlement Amount of the
party
with the lower Settlement Amount ("Y") and (b) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (II) the Termination Currency
Equivalent of the Unpaid Amounts owing to Y; and
(B) if
Loss
applies, each party will determine its Loss in respect of this Agreement
(or, if
fewer than all the Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal to one-half
of the
difference between the Loss of the party with the higher Loss ("X") and the
Loss
of the party with the lower Loss ("Y").
If
the
amount payable is a positive number, Y will pay it to X; if it is a negative
number, X will pay the absolute value of that amount to Y.
(iii) Adjustment
for Bankruptcy. In
circumstances where an Early Termination Date occurs because "Automatic Early
Termination" applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are appropriate and
permitted by law to reflect any payments or deliveries made by one party
to the
other under this Agreement (and retained by such other party) during the
period
from the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate.
The parties agree that if Market Quotation applies an amount recoverable
under
this Section 6(e) is a reasonable pre-estimate of loss and not a penalty.
Such
amount is payable for the loss of bargain and the loss of protection against
future risks and except as otherwise provided in this Agreement neither party
will be entitled to recover any additional damages as a consequence of such
losses.
7. Transfer
Subject
to Section 6(b)(ii), neither this Agreement nor any interest or obligation
in or
under this Agreement may be transferred (whether by way of security or
otherwise) by either party without the prior written consent of the other
party,
except that:-
12
(a) a
party
may make such a transfer of this Agreement pursuant to a consolidation or
amalgamation with, or merger with or into, or transfer of all or substantially
all its assets to, another entity (but without prejudice to any other right
or
remedy under this Agreement); and
(b) a
party
may make such a transfer of all or any part of its interest in any amount
payable to it from a Defaulting Party under Section 6(e).
Any
purported transfer that is not in compliance with this Section will be
void.
8. Contractual
Currency
(a) Payment
in the Contractual Currency. Each
payment under this Agreement will be made in the relevant currency specified
in
this Agreement for that payment (the "Contractual Currency"). To the extent
permitted by applicable law, any obligation to make payments under this
Agreement in the Contractual Currency will not be discharged or satisfied
by any
tender in any currency other than the Contractual Currency, except to the
extent
such tender results in the actual receipt by the party to which payment is
owed,
acting in a reasonable manner and in good faith in converting the currency
so
tendered into the Contractual Currency, of the full amount in the Contractual
Currency of all amounts payable in respect of this Agreement. If for any
reason
the amount in the Contractual Currency so received falls short of the amount
in
the Contractual Currency payable in respect of this Agreement, the party
required to make the payment will, to the extent permitted by applicable
law,
immediately pay such additional amount in the Contractual Currency as may
be
necessary to compensate for the shortfall. If for any reason the amount in
the
Contractual Currency so received exceeds the amount in the Contractual Currency
payable in respect of this Agreement, the party receiving the payment will
refund promptly the amount of such excess.
(b) Judgments.
To
the
extent permitted by applicable law, if any judgment or order expressed in
a
currency other than the Contractual Currency is rendered (i) for the payment
of
any amount owing in respect of this Agreement, (ii) for the payment of any
amount relating to any early termination in respect of this Agreement or
(iii)
in respect of a judgment or order of another court for the payment of any
amount
described in (i) or (ii) above, the party seeking recovery, after recovery
in
full of the aggregate amount to which such party is entitled pursuant to
the
judgment or order, will be entitled to receive immediately from the other
party
the amount of any shortfall of the Contractual Currency received by such
party
as a consequence of sums paid in such other currency and will refund promptly
to
the other party any excess of the Contractual Currency received by such party
as
a consequence of sums paid in such other currency if such shortfall or such
excess arises or results from any variation between the rate of exchange
at
which the Contractual Currency is converted into the currency of the judgment
or
order for the purposes of such judgment or order and the rate of exchange
at
which such party is able, acting in a reasonable manner and in good faith
in
converting the currency received into the Contractual Currency, to purchase
the
Contractual Currency with the amount of the currency of the judgment or order
actually received by such party. The term "rate of exchange" includes, without
limitation, any premiums and costs of exchange payable in connection with
the
purchase of or conversion into the Contractual Currency.
(c) Separate
Indemnities. To
the
extent permitted by applicable law, these indemnities constitute separate
and
independent obligations from the other obligations in this Agreement, will
be
enforceable as separate and independent causes of action, will apply
notwithstanding any indulgence granted by the party to which any payment
is owed
and will not be affected by judgment being obtained or claim or proof being
made
for any other sums payable in respect of this Agreement.
13
(d) Evidence
of Loss. For
the
purpose of this Section 8, it will be sufficient for a party to demonstrate
that
it would have suffered a loss had an actual exchange or purchase been
made.
9. Miscellaneous
(a) Entire Agreement. This
Agreement constitutes the entire agreement and understanding of the parties
with
respect to its subject matter and supersedes all oral communication and prior
writings with respect thereto.
(b) Amendments. No
amendment, modification or waiver in respect of this Agreement will be effective
unless in writing (including a writing evidenced by a facsimile transmission)
and executed by each of the parties or confirmed by an exchange of telexes
or
electronic messages on an electronic messaging system.
(c) Survival
of Obligations.
Without
prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of the parties
under this Agreement will survive the termination of any
Transaction.
(d) Remedies
Cumulative. Except
as
provided in this Agreement, the rights, powers, remedies and privileges provided
in this Agreement are cumulative and not exclusive of any rights, powers,
remedies and privileges provided by law.
(e) Counterparts and
Confirmations.
(i) This
Agreement (and each amendment, modification and waiver in respect of it)
may be
executed and delivered in counterparts (including by facsimile transmission),
each of which will be deemed an original.
(ii) The
parties intend that they are legally bound by the terms of each Transaction
from
the moment they agree to those terms (whether orally or otherwise). A
Confirmation shall be entered into as soon as practicable and may be executed
and delivered in counterparts (including by facsimile transmission) or be
created by an exchange of telexes or by an exchange of electronic messages
on an
electronic messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The parties
will
specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.
(f) No
Waiver of Rights. A
failure
or delay in exercising any right, power or privilege in respect of this
Agreement will not be presumed to operate as a waiver, and a single or partial
exercise of any right, power or privilege will not be presumed to preclude
any
subsequent or further exercise, of that right, power or privilege or the
exercise of any other right, power or privilege.
(g) Headings. The
headings used in this Agreement are for convenience of reference only and
are
not to affect the construction of or to be taken into consideration in
interpreting this Agreement.
10.
Offices; Multibranch Parties
(a) If
Section 10(a)
is
specified in the Schedule as applying, each party that enters into a Transaction
through an Office other than its head or home office represents to the other
party that, notwithstanding the place of booking office or jurisdiction of
incorporation or organisation of such party, the obligations of such party
are
the same as if it had entered into the Transaction through its head or home
office. This representation will be deemed to be repeated by such party on
each
date on which a Transaction is entered into.
14
(b) Neither
party may change the Office through which it makes and receives payments
or
deliveries for the purpose of a Transaction without the prior written consent
of
the other party.
(c) If
a
party is specified as a Multibranch Party in the Schedule, such Multibranch
Party may make and receive payments or deliveries under any Transaction through
any Office listed in the Schedule, and the Office through which it makes
and
receives payments or deliveries with respect to a Transaction will be specified
in the relevant Confirmation.
11. Expenses
A
Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees
and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
to
which the Defaulting Party is a party or by reason of the early termination
of
any Transaction, including, but not limited to, costs of
collection.
12.
Notices
(a) Effectiveness. Any
notice or other communication in respect of this Agreement may be given in
any
manner set forth below (except that a notice or other communication under
Section 5 or 6 may not be given by facsimile transmission or electronic
messaging system) to the address or number or in accordance with the electronic
messaging system details provided (see the Schedule) and will be deemed
effective as indicated:-
(i) if
in
writing and delivered in person or by courier, on the date it is
delivered;
(ii) if
sent
by telex, on the date the recipient's answerback is received;
(iii) if
sent
by facsimile transmission, on the date that transmission is received by a
responsible employee of the recipient in legible form (it being agreed that
the
burden of proving receipt will be on the sender and will not be met by a
transmission report generated by the sender's facsimile machine);
(iv) if
sent
by certified or registered mail (airmail, if overseas) or the equivalent
(return
receipt requested), on the date that mail is delivered or its delivery is
attempted; or
(v) if
sent
by electronic messaging system, on the date that electronic message is
received,
unless
the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered
(or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change
of Addresses.
Either
party may by notice to the other change the address, telex or facsimile number
or electronic messaging system details at which notices or other communications
are to be given to it.
13. Governing
Law and
Jurisdiction
15
(a) Governing
Law. This
Agreement will he governed by and construed in accordance with the law specified
in the Schedule.
(b) Jurisdiction.
With
respect to any suit, action or proceedings relating to this Agreement
("Proceedings"), each party irrevocably:-
(i) submits
to the jurisdiction of the English courts, if this Agreement is expressed
to be
governed by English law, or to the non-exclusive jurisdiction of the courts
of
the State of New York and the United States District Court located in the
Borough of Manhattan in New York City, if this Agreement is expressed to
be
governed by the laws of the State of New York; and
(ii) waives
any objection which it may have at any time to the laying of venue of any
Proceedings brought in any such court, waives any claim that such Proceedings
have been brought in an inconvenient forum and further waives the right to
object, with respect to such Proceedings, that such court does not have any
jurisdiction over such party.
Nothing
in this Agreement precludes either party from bringing Proceedings in any
other
jurisdiction (outside, if this Agreement is expressed to be governed by English
law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Xxx 0000 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service
of Process. Each
party irrevocably appoints the Process Agent (if any) specified opposite
its
name in the Schedule to receive, for it and on its behalf, service of process
in
any Proceedings. If for any reason any party's Process Agent is unable to
act as
such, such party will promptly notify the other party and within 30 days
appoint
a substitute process agent acceptable to the other party. The parties
irrevocably consent to service of process given in the manner provided for
notices in Section 12. Nothing in this Agreement will affect the right of
either
party to serve process in any other manner permitted by law.
(d) Waiver
of Immunities. Each
party irrevocably waives, to the fullest extent permitted by applicable law,
with respect to itself and its revenues and assets (irrespective of their
use or
intended use), all immunity on the grounds of sovereignty or other similar
grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way
of
injunction, order for specific performance or for recovery of property, (iv)
attachment of its assets (whether before or after judgment) and (v) execution
or
enforcement of any judgment to which it or its revenues or assets might
otherwise be entitled in any Proceedings in the courts of any jurisdiction
and
irrevocably agrees, to the extent permitted by applicable law, that it will
not
claim any such immunity in any Proceedings.
14. Definitions
As
used
in this Agreement:-
"Additional
Termination Event" has
the
meaning specified in Section 5(b).
"Affected
Party" has
the
meaning specified in Section 5(b).
"Affected
Transactions" means
(a)
with respect to any Termination Event consisting of an Illegality, Tax Event
or
Tax Event Upon Merger, all Transactions affected by the occurrence of such
Termination Event and (b) with respect to any other Termination Event, all
Transactions.
16
"Affiliate" means,
subject to the Schedule, in relation to any person, any entity controlled,
directly or indirectly, by the person, any entity that controls, directly
or
indirectly, the person or any entity directly or indirectly under common
control
with the person. For this purpose, "control" of any entity or person means
ownership of a majority of the voting power of the entity or
person.
"Applicable
Rate" means:-
(a) in
respect of obligations payable or deliverable (or which would have been but
for
Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in
respect of an obligation to pay an amount under Section 6(e) of either party
from and after the date (determined in accordance with Section 6(d)(ii))
on
which that amount is payable, the Default Rate;
(c) in
respect of all other obligations payable or deliverable (or which would have
been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate;
and
(d) in
all
other cases, the Termination Rate.
"Burdened
Party" has
the
meaning specified in Section 5(b).
"Change
in Tax Law" means
the
enactment, promulgation, execution or ratification of, or any change in or
amendment to, any law (or in the application or official interpretation of
any
law) that occurs on or after the date on which the relevant Transaction is
entered into.
"consent"
includes
a consent, approval, action, authorisation, exemption, notice,
filing, registration
or exchange control consent.
"Credit
Event Upon Merger" has
the
meaning specified in Section 5(b).
"Credit
Support Document" means
any
agreement or instrument that is specified as such in this
Agreement.
"Credit
Support Provider" has
the
meaning specified in the Schedule.
"Default
Rate" means
a
rate per annum equal to the cost (without proof or evidence of any actual
cost)
to the relevant payee (as certified by it) if it were to fund or of funding
the
relevant amount plus 1% per annum.
"Defaulting
Party" has
the
meaning specified in Section 6(a).
"Early
Termination Date"
means
the date determined in accordance with Section 6(a) or 6(b)(iv).
"Event
of Default" has
the
meaning specified in Section 5(a) and, if applicable, in the
Schedule.
"Illegality"
has
the
meaning specified in Section 5(b).
"Indemnifiable
Tax"
means
any Tax other than a Tax that would not be imposed in respect of a payment
under
this Agreement but for a present or former connection between the jurisdiction
of the government or taxation authority imposing such Tax and the recipient
of
such payment or a person related to such recipient (including, without
limitation, a connection arising from such recipient or related person being
or
having been a citizen or resident of such jurisdiction, or being or having
been
organised, present or engaged in a trade or business in such jurisdiction,
or
having or having had a permanent establishment or fixed place of business
in
such jurisdiction, but excluding a connection arising solely from such recipient
or related person having executed, delivered, performed its obligations or
received a payment under, or enforced, this Agreement or a Credit Support
Document).
17
"law" includes
any treaty, law, rule or regulation (as modified, in the case of tax matters,
by
the practice of any relevant governmental revenue authority) and "lawful"
and
"unlawful" will
be
construed accordingly.
"Local
Business Day" means,
subject to the Schedule, a day on which commercial banks are open for business
(including dealings in foreign exchange and foreign currency deposits) (a)
in
relation to any obligation under Section 2(a)(i), in the place(s) specified
in
the relevant Confirmation or, if not so specified, as otherwise agreed by
the
parties in writing or determined pursuant to provisions contained, or
incorporated by reference, in this Agreement, (b) in relation to any other
payment, in the place where the relevant account is located and, if different,
in the principal financial centre, if any, of the currency of such payment,
(c)
in relation to any notice or other communication, including notice contemplated
under Section 5(a)(i), in the city specified in the address for notice provided
by the recipient and, in the case of a notice contemplated by Section 2(b),
in
the place where the relevant new account is to be located and (d) in relation
to
Section 5(a)(v)(2), in the relevant locations for performance with respect
to
such Specified Transaction.
"Loss" means,
with respect to this Agreement or one or more Terminated Transactions, as
the
case may be, and a party, the Termination Currency Equivalent of an amount
that
party reasonably determines in good faith to be its total losses and costs
(or
gain, in which case expressed as a negative number) in connection with this
Agreement or that Terminated Transaction or group of Terminated Transactions,
as
the case may be, including any loss of bargain, cost of funding or, at the
election of such party but without duplication, loss or cost incurred as
a
result of its terminating, liquidating, obtaining or reestablishing any hedge
or
related trading position (or any gain resulting from any of them). Loss includes
losses and costs (or gains) in respect of any payment or delivery required
to
have been made (assuming satisfaction of each applicable condition precedent)
on
or before the relevant Early Termination Date and not made, except, so as
to
avoid duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies.
Loss
does not include a party's legal fees and out-of-pocket expenses referred
to
under Section 11. A party will determine its Loss as of the relevant Early
Termination Date, or, if that is not reasonably practicable, as of the earliest
date thereafter as is reasonably practicable. A party may (but need not)
determine its Loss by reference to quotations of relevant rates or prices
from
one or more leading dealers in the relevant markets.
"Market
Quotation" means,
with respect to one or more Terminated Transactions and a party making the
determination, an amount determined on the basis of quotations from Reference
Market-makers. Each quotation will be for an amount, if any, that would be
paid
to such party (expressed as a negative number) or by such party (expressed
as a
positive number) in consideration of an agreement between such party (taking
into account any existing Credit Support Document with respect to the
obligations of such party) and the quoting Reference Market-maker to enter
into
a transaction (the "Replacement Transaction") that would have the effect
of
preserving for such party the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that date. For this purpose, Unpaid
Amounts in respect of the Terminated Transaction or group of Terminated
Transactions are to be excluded but, without limitation, any payment or delivery
that would, but for the relevant Early Termination Date, have been required
(assuming satisfaction of each applicable condition precedent) after that
Early
Termination Date is to be included. The Replacement Transaction would be
subject
to such documentation as such party and the Reference Market-maker may, in
good
faith, agree. The party making the determination (or its agent) will request
each Reference Market-maker to provide its quotation to the extent reasonably
practicable as of the same day and time (without regard to different time
zones)
on or as soon as reasonably practicable after the relevant Early Termination
Date. The day and time as of which those quotations are to be obtained will
be
selected in good faith by the party obliged to make a determination under
Section 6(e), and, if each party is so obliged, after consultation with the
other. If more than three quotations are provided, the Market Quotation will
be
the arithmetic mean of the quotations, without regard to the quotations having
the highest and lowest values. If exactly three such quotations are provided,
the Market Quotation will be the quotation remaining after disregarding the
highest and lowest quotations. For this purpose, if more than one quotation
has
the same highest value or lowest value, then one of such quotations shall
be
disregarded. If fewer than three quotations are provided, it will be deemed
that
the Market Quotation in respect of such Terminated Transaction or group of
Terminated Transactions cannot be determined.
18
"Non-default
Rate" means
a
rate per annum equal to the cost (without proof or evidence of any actual
cost)
to the Non-defaulting Party (as certified by it) if it were to fund the relevant
amount.
"Non-defaulting
Party" has
the
meaning specified in Section 6(a).
"Office" means
a
branch or office of a party, which may be such party's head or home
office.
"Potential
Event of Default" means
any
event which, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.
"Reference
Market-makers" means
four leading dealers in the relevant market selected by the party determining
a
Market Quotation in good faith (a) from among dealers of the highest credit
standing which satisfy all the criteria that such party applies generally
at the
time in deciding whether to offer or to make an extension of credit and (b)
to
the extent practicable, from among such dealers having an office in the same
city.
"Relevant
Jurisdiction" means,
with respect to a party, the jurisdictions (a) in which the party is
incorporated, organised, managed and controlled or considered to have its
seat,
(b) where an Office through which the party is acting for purposes of this
Agreement is located, (c) in which the party executes this Agreement and
(d) in
relation to any payment, from or through which such payment is
made.
"Scheduled
Payment Date" means
a
date on which a payment or delivery is to be made under Section 2(a)(i) with
respect to a Transaction.
"Set-off"
means
set-off, offset, combination of accounts, right of retention or withholding
or
similar right or requirement to which the payer of an amount under Section
6 is
entitled or subject (whether arising under this Agreement, another contract,
applicable law or otherwise) that is exercised by, or imposed on, such
payer.
"Settlement
Amount" means,
with respect to a party and any Early Termination Date, the sum
of:-
(a) the
Termination Currency Equivalent of the Market Quotations (whether positive
or
negative) for each Terminated Transaction or group of Terminated Transactions
for which a Market Quotation is determined; and
(b) such
party's Loss (whether positive or negative and without reference to any Unpaid
Amounts) for each Terminated Transaction or group of Terminated Transactions
for
which a Market Quotation cannot be determined or would not (in the reasonable
belief of the party making the determination) produce a commercially reasonable
result.
"Specified
Entity" has
the
meaning specified in the Schedule.
"Specified
Indebtedness" means,
subject to the Schedule, any obligation (whether present or future, contingent
or otherwise, as principal or surety or otherwise) in respect of borrowed
money.
19
"Specified
Transaction"
means, subject
to the Schedule, (a) any transaction (including an agreement with respect
thereto) now existing or hereafter entered into between one party to this
Agreement (or any Credit Support Provider of such party or any applicable
Specified Entity of such party) and the other party to this Agreement (or
any
Credit Support Provider of such other party or any applicable Specified Entity
of such other party) which is a rate swap transaction, basis swap, forward
rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option
or any other similar transaction (including any option with respect to any
of
these transactions), (b) any combination of these transactions and (c) any
other
transaction identified as a Specified Transaction in this Agreement or the
relevant confirmation.
"Stamp
Tax" means
any
stamp, registration, documentation or similar tax.
"Tax"
means
any
present or future tax, levy, impost, duty, charge, assessment or fee of any
nature (including interest, penalties and additions thereto) that is imposed
by
any government or other taxing authority in respect of any payment under
this
Agreement other than a stamp, registration, documentation or similar
tax.
"Tax
Event" has
the
meaning specified in Section 5(b).
"Tax Event
Upon Merger" has
the
meaning specified in Section 5(b).
"Terminated
Transactions" means
with respect to any Early Termination Date (a) if resulting from a Termination
Event, all Affected Transactions and (b) if resulting from an Event of Default,
all Transactions (in either case) in effect immediately before the effectiveness
of the notice designating that Early Termination Date (or, if "Automatic
Early
Termination" applies, immediately before that Early Termination
Date).
"Termination
Currency" has
the
meaning specified in the Schedule.
"Termination
Currency Equivalent"
means,
in respect of any amount denominated in the Termination Currency, such
Termination Currency amount and, in respect of any amount denominated in
a
currency other than the Termination Currency (the "Other Currency"), the
amount
in the Termination Currency determined by the party making the relevant
determination as being required to purchase such amount of such Other Currency
as at the relevant Early Termination Date, or, if the relevant Market Quotation
or Loss (as the case may be), is determined as of a later date, that later
date,
with the Termination Currency at the rate equal to the spot exchange rate
of the
foreign exchange agent (selected as provided below) for the purchase of such
Other Currency with the Termination Currency at or about 11:00 a.m. (in the
city
in which such foreign exchange agent is located) on such date as would be
customary for the determination of such a rate for the purchase of such Other
Currency for value on the relevant Early Termination Date or that later date.
The foreign exchange agent will, if only one party is obliged to make a
determination under Section 6(e), be selected in good faith by that party
and
otherwise will be agreed by the parties.
"Termination Event" means
an
Illegality, a Tax Event or a Tax Event Upon Merger or, if specified to be
applicable, a Credit Event Upon Merger or an Additional Termination
Event.
"Termination
Rate" means
a
rate per annum equal to the arithmetic mean of the cost (without proof or
evidence of any actual cost) to each party (as certified by such party) if
it
were to fund or of funding such amounts.
20
"Unpaid
Amounts"
owing to
any party means, with respect to an Early Termination Date, the aggregate
of (a)
in respect of all Terminated Transactions, the amounts that became payable
(or
that would have become payable but for Section 2(a)(iii)) to such party
under
Section 2(a)(i) on or prior to such Early Termination Date and which remain
unpaid as at such Early Termination Date and (b) in respect of each Terminated
Transaction, for each obligation under Section 2(a)(i) which was (or would
have
been but for Section 2(a)(iii)) required to be settled by delivery to such
party
on or prior to such Early Termination Date and which has not been so settled
as
at such Early Termination Date, an amount equal to the fair market value
of that
which was (or would have been) required to be delivered as of the originally
scheduled date for delivery, in each case together with (to the extent
permitted
under applicable law) interest, in the currency of such amounts, from (and
including) the date such amounts or obligations were or would have been
required
to have been paid or performed to (but excluding) such Early Termination
Date,
at the Applicable Rate. Such amounts of interest will be calculated on
the basis
of daily compounding and the actual number of days elapsed. The fair market
value of any obligation referred to in clause (b) above shall be reasonably
determined by the party obliged to make the determination under Section
6(e) or,
if each party is so obliged, it shall be the average of the Termination
Currency
Equivalents of the fair market values reasonably determined by both
parties.
IN
WITNESS WHEREOF the parties have executed this document on the respective
dates
specified below with effect from the date specified on the first page of
this
document.
|
PARTY
A
|
|
Signed
in
on the
day
of
for Australia
and New Zealand Banking Group Limited
by its duly appointed Attorney under Power of Attorney dated Registered
Book
No.
each of whom declares
that he/she has not received notice of revocation of the
power
|
In
the
presence of
|
Witness:
/s/
Xxxxx Xxxxxxx
|
Attorney:
/s/ Xxxxx Xxx
|
|
Name:
Xxxxx Xxxxxxx
|
Name:
Xxxxx Xxx
|
|
Title:
Legal Assistant
|
Title:
Corporate Lawyer
Institutional
Legal Group
|
|
Date:
29 May 2007
|
Date:
29 May 2007
|
|
|
|
|
Attorney:
/s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Senior Lawyer
Institutional
Legal Group
|
|
|
Date:
29 May 2007
|
|
PARTY
B
|
|
Signed
by Perpetual
Limited
by
its attorney who declares that he/she has not received notice of
revocation of the power
|
In
the
presence of
|
Witness:/s/
Xxxxxxx Low
|
Attorney:/s/
Xxxxx Xxxxxx
|
|
Name:
Xxxxxxx Low
|
Name:
Xxxxx Xxxxxx
|
|
Title:
Paralegal
|
Title:
Assistant Manager
|
|
Date:
29 May 2007
|
Date:
29 May 2007
|
22
|
THE
MANAGER
|
|
Signed
by ME
Portfolio Management Limited by
its attorney who declares that he/she has not received notice of
revocation of the power.
|
In
the
presence of
|
Witness:/s/
Xxxxxxx Xxxxx
|
Attorney:/s/
Xxxxxxx X. Xxxxxx
|
|
Name:
Xxxxxxx Xxxxx
|
Name:
Xxxxxxx X. Xxxxxx
|
|
Title:
Secretary
|
Title:
Attorney
|
|
Date:
29 May 2007
|
Date:
29 May 2007
|
23
ISDA
International
Swaps and Derivatives Association, Inc.
SCHEDULE
to
the
dated
as
of 29 May 2007
between
Australia
and New Zealand Banking Group Limited (ABN 11 005 357 522)
(“Party
A”)
and
Perpetual
Limited (ABN 86 000 000 000) in its capacity as trustee of the Securitisation
Fund
(“Party
B”)
and
ME
Portfolio Management Limited (ABN 79 005 964 134) in its capacity as manager
of
the Securitisation Fund
(“Manager”)
Part
1
Termination
Provisions
|
(a)
|
“Specified
Entity”
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 Local
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
1(j)
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).”.
|
However,
the parties agree for the purposes of this Agreement that the occurrence
of an
Insolvency Event (as defined in the Security Trust Deed) in respect of Party
B
will not constitute an Event of Default provided that:
|
(i)
|
within
30 Local 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;
|
|
(ii)
|
the
Designated Rating Agencies confirm that the novation will not cause
a
reduction or withdrawal of the rating of the Notes;
and
|
|
(iii)
|
Party
A, Party B and the Manager agree to execute such a novation agreement
in a
form agreed between the parties.
|
For
the
avoidance of doubt, the occurrence of an Insolvency Event in respect of Party
B
in its personal capacity shall not constitute an Event of Default.
|
(e)
|
The
“Automatic
Early Termination”
provisions of Section 6(a):
|
|
(i)
|
will
not apply to Party A; and
|
|
(ii)
|
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 both Party A and Party B are
Affected Parties.
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, both Party A and Party B are
Affected Parties.
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 Offered 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(bb).
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.
|
(v)
|
Party
A fails to comply with its obligations under Part
5(gg).
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.
|
(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 if
any)”.
|
|
(j)
|
Restricted
Termination Rights
|
Add
a new
Section 6(aa) as follows:
“(aa)
Restricted
Termination Rights
|
(i)
|
Termination
by Party B: Party
B must not designate an Early Termination Date without the prior
written
consent of the Note Trustee (if
applicable).
|
|
(ii)
|
Consultation:
Each party may only designate an Early Termination Date following
prior
consultation with the other party as to the timing of the Early
Termination Date. Subject to its duties under the Master Trust
Deed and
the Supplementary Bond Terms Notice, Party B may exercise its rights
only
after consultation with and on the instructions of the Note Trustee
(if
applicable) and only after consultation between Party A and the
Note
Trustee (if applicable). Party B may only designate an Early Termination
Date at the direction of the
Manager.
|
|
(iii)
|
Party
A’s limited rights in relation to Tax
Event:
|
|
(a)
|
Notwithstanding
Part
1(c)(iii)
of
the Schedule to this Agreement, Party A may designate an Early
Termination
Date if it is an Affected Party following a Tax Event but only
if all
Class A Offered Notes will be redeemed at the full amount of the
Invested
Amount (or, if the Class A Offered Noteholders by Extraordinary
Resolution
have so agreed, at a lesser amount) together with accrued interest
to (but
excluding) the date of the
redemption.
|
|
(b)
|
If
a Tax Event occurs where Party A is the Affected Party and Party
A is
unable to transfer all its rights and obligations under this Agreement
and
each Transaction to an Affiliate pursuant to Section 6(b)(ii),
Party A
may, at its cost, transfer all its rights, powers and privileges
and all
its unperformed and future obligations under this Agreement and
each
Transaction to any person provided that:
|
(A)
each
Designated Rating Agency has confirmed in writing that the transfer will
not
result in a reduction, qualification or withdrawal of the credit ratings
then
assigned by them to the relevant Class A Offered 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 use reasonable endeavours to procure the substitution
of
Party B as principal obligor under this Agreement in respect of
each
Affected Transaction with 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 Offered
Notes
and in respect of which a deduction or withholding on account of
Tax would
not be necessary”.
|
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) 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
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.
|
Payee
Tax Representations:
|
For
the
purpose of Section 3(f) of this Agreement:
|
(i)
|
Party
A represents that:
|
|
(A)
|
It
is a resident of the Commonwealth of Australia and it is fully
eligible
for the benefits of the “Business Profits” or “Industrial and Commercial
Profits” provision, as the case may be, the “Interest” provision or the
“Other Income” provision (if any) of the double tax treaties entered into
between the Commonwealth of Australia and other foreign jurisdictions,
with respect to any payment described in such provisions and received
or
to be received by it in connection with this Agreement. Except
where the
Office specified for the purposes of a particular transaction is
located
outside the Commonwealth of Australia, no such payment is attributable
to
a trade or business carried on by it through a permanent establishment
located outside the Commonwealth of
Australia.
|
|
(B)
|
Each
payment received or to be received by it in connection with a Transaction
will be effectively connected with its conduct or a trade or business
in
the Office through which it entered into that Transaction as determined
in
accordance with this Agreement.
|
|
(C)
|
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.
|
|
(D)
|
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 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.
|
Part
3
Agreement
to Deliver DocumentsFor
the
purposes of Section 4(a)(i) and (ii) of this Agreement each party further
agrees
to deliver the following documents as applicable in accordance with the
following:
|
Party
required to deliver
|
Document
|
Date
by which to be delivered
|
Covered
by section 3(d) representations
|
|
Party
A, Party B and the Manager
|
A
list of authorised signatories for the party and evidence satisfactory
in
form and substance to the other parties of the authority of the
authorised
signatories of the party to execute this Agreement and each confirmation
on behalf of each relevant party.
|
On
execution and delivery of this Agreement or any relevant Confirmation
and
at any time on the request of the other party.
|
Yes
|
|
Party
A, Party B and the Manager
|
As
reasonably required by any other 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).
|
Upon
reasonable request.
|
Yes
|
|
Party
A
|
The
financial data relating to Party A required to be disclosed by
the Manager
in the Manager’s reasonable judgment pursuant to Item 1115(b)(1) of
Regulation AB and relevant auditor's consents relating to such
financial
data.
|
If
the Manager notifies Party A that the significance percentage as
computed
by the Manager in accordance with Regulation AB is or becomes 8%
or
greater, in accordance with Part
5(gg).
|
Yes
|
|
Party
A
|
The
financial statements relating to Party A required to be disclosed
by the
Manager in the Manager’s reasonable judgment pursuant to Item 1115(b)(2)
of Regulation AB and relevant auditor's consents relating to such
financial statements.
|
If
the Manager notifies Party A that the significance percentage as
computed
by the Manager in accordance with Regulation AB is or becomes 18%
or
greater, in accordance with Part
5(gg).
|
Yes
|
|
Party
A
|
A
certificate of an authorised person of Party A certifying that
(i) the
information provided by Party A to the Manager for use in a prospectus
and
(ii) the financial data or financial statements as may be required
above
(A) are true and accurate in all material respects, (B) do not
contain any
untrue statement of a material fact and (C) do not omit to state
a
material fact required to be stated therein or necessary in order
to make
the statements therein, in the light of the circumstances under
which they
were made, not misleading.
|
At
the execution of this Agreement and thereafter upon the provision
of any
financial data or financial statements as may be required
above.
|
Yes
|
|
Party
required to deliver
|
Document
|
Date
by which to be delivered
|
Covered
by section 3(d) representations
|
|
Party
A
|
A
certificate of an authorised person of Party A certifying that
(i) Party A
is required to file reports with the Commission pursuant to section
13(a)
or 15(d) of the Exchange Act; (ii) Party A has filed all reports
and other
materials required to be filed by such requirements during the
preceding
12 months (or such shorter period that Party A was required to
file such
reports and materials); (iii) the reports filed by Party A include
(or
properly incorporate by reference) the financial statements of
Party
A.
|
Upon
the provision of any financial data or financial statements as
may be
required above.
|
Yes
|
|
Party
B (where applicable) and the Manager
|
Copies
of any reports or accounts relating to the Securitisation Fund
that are
produced for (a) distribution to the Class A Offered Noteholders,
or (b)
presentation to the Board of Directors of the Manager and such
other
information in the Manager’s control regarding the financial condition and
business operations of the Securitisation Fund as Party A may reasonably
require.
|
Upon
reasonable request by Party A subject to not being obliged to deliver
any
document if to do so would breach or infringe any law or legally
binding
obligation or restraint.
|
Yes
|
|
Party
required to deliver
|
Document
|
Date
by which to be delivered
|
Covered
by section 3(d) representations
|
|
Party
B and the Manager
|
Legal
opinions as to the validity and enforceability of the obligations
of Party
B and the Manager under this Agreement, the Master Trust Deed,
the Note
Trust Deed, the Security Trust Deed and the Class A Offered Notes
in form
and substance and issued by legal counsel reasonably acceptable
to Party
A.
|
Promptly
after entering into this Agreement, in the form previously agreed
with the
other parties.
|
Yes
|
|
Manager
|
Copies
of the Master Trust Deed, the Note Trust Deed, the Supplementary
Bond
Terms Notice and the Security Trust Deed certified to be true copies
by
two authorised signatories of the Manager.
|
On
execution and delivery of this Agreement.
|
Yes
|
|
Manager
|
A
copy of any document amending or varying the terms of the Master
Trust
Deed, the Security Trust Deed, the Note Trust Deed or the Supplementary
Bond Terms Notice certified to be a true copy by two authorised
signatories of the Manager.
|
Promptly
upon any such document becoming effective in accordance with its
terms.
|
Yes
|
|
Party
required to deliver
|
Document
|
Date
by which to be delivered
|
Covered
by section 3(d) representations
|
|
Party
A
|
A
legal opinion by Party A’s internal counsel as previously provided to the
Designated Rating Agencies.
|
Promptly
after entering into this Agreement.
|
Yes
|
|
Manager
|
A
legal opinion by the Manager’s Australian counsel in relation to taxation
matters, as previously provided to the Designated Rating
Agencies.
|
Promptly
after entering into this Agreement.
|
Yes
|
Part
4
Miscellaneous
|
(a)
|
Address
for Notices.
For the purpose of Section 12(a) of this
Agreement:
|
|
(i)
|
Address
for Notices to Party A:
|
All
notices to Party
A
under
Sections 5 or 6 of this Agreement (other than Section 5(a)(i)) shall be
sent
to:
|
Address
|
ANZ
Investment Bank Market Operations
|
Xxxxx
00,
000 Xxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxx 0000 Xxxxxxxxx
|
Attention:
|
Manager,
Derivative Operations
|
|
Telex
No:
|
AA151018
|
|
Answerback:
|
ANZAT
|
|
Facsimile
No:
|
(000)
0000 0000
|
|
Telephone
No:
|
(000)
0000 0000
|
(For
all
Transactions through that Office or through the Sydney Office and for all
notices or other communications pursuant to Sections 5, 6 and 9(b))
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)
|
Address
for Notices to Party B:
|
Xxxxx
00
000
Xxxx
Xxxxxx
Xxxxxx
XXX 0000
Xxxxxxxxx
|
Attention:
|
Manager,
Securitisation
|
|
Telephone:
|
(000)
0000 0000
|
|
Facsimile:
|
(000)
0000 0000
|
|
(iii)
|
Address
for Notices to Manager:
|
Xxxxx
00
000
Xxxxxxx Xxxxxx
Xxxxxxxxx
XXX 0000
Xxxxxxxxx
|
Attention:
|
Settlements
Officer
|
|
Telephone:
|
(000)
0000 0000
|
|
Facsimile:
|
(000)
0000 0000
|
|
(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.
|
Offices. The
provisions of Section 10(a) will apply to this
Agreement.
|
|
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.
|
|
Credit
Support Document.
Details of any Credit Support
Document:
|
|
(i)
|
In
relation to Party A: Nil
|
|
(ii)
|
In
relation to Party B: Security Trust
Deed.
|
|
(g)
|
Credit
Support Provider.
Credit Support Provider means:
|
|
(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.
|
Section
13(b)(i) is deleted and replaced with the following:
|
“(i)
|
submits
to the non-exclusive jurisdiction of the courts of New South
Wales and
courts of appeal from them and a reference in section 13(b)(ii)
to ”such
court“ is a reference to those
courts.”
|
|
(i)
|
Netting
of Payments. Unless
otherwise agreed between Party A and Party B (at the direction
of the
Manager), 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.
|
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):
|
|
(i)
|
after
“freely transferable funds” add “free of any set-off, counterclaim,
deduction or withholding (except as expressly provided in this
Agreement)”; and
|
|
(ii)
|
add
the following sentence at the end:
|
“Unless
otherwise specified in any Confirmation, all amounts payable by Party A
to Party
B on any Payment Date must be paid in accordance with this Section 2(a)(ii)
by
10.00am local time in the place of the account specified in the relevant
Confirmation for such payments.”
|
(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 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 the Party
B
Payment or confirmation from Party B’s bank that it holds irrevocable
instructions to effect payment of the Party B Payment and that funds are
available to make that payment.”
|
(d)
|
Add
the following new sentence to the end of Section
2(b):
|
“Each
new
account so designated must be in the same tax jurisdiction as the original
account.”
|
(e)
|
Delete
the word “if” at the beginning of Section 2(d)(i)(4) and insert the
following words instead:
|
“if
and
only if X is Party A and”.
|
(f)
|
In
Section 2(d)(ii) insert the words “(if and only if Y is Party A)” after
the word “then” at the beginning of the last paragraph. Party B will have
no obligation to pay any amount to Party A under Section 2(d)(ii),
and may
make any payment under or in connection with this Agreement net
of any
deduction or withholding referred to in Section
2(d)(i).
|
|
(g)
|
Additional
Representations.
In Section 3:
|
|
(i)
|
add
the following in section 3(a)(v) after the words “creditors rights
generally”:
|
“(including
in the case of a party being an ADI (as that term is defined in the Reserve
Bank
Xxx 0000 (Cth)), sections 11F and 13A(3) of the Banking Xxx 0000 (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 Fund 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
Trustee.
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 Wilful Default
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”.
|
|
(k)
|
In
Section 6(d)(i), in the last sentence, insert “in the absence of manifest
error” after the word
“evidence”.
|
|
(l)
|
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.
|
|
(m)
|
Section
12 is amended as follows by replacing Section 12(a)(iii)
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”.
|
|
(n)
|
Definitions
and interpretation.
|
|
(i)
|
Section
14 of the Agreement is modified by inserting the following new
definitions:
|
“Commission”
means
the United States Securities and Exchange Commission.
“Exchange
Act”
means
the United States Securities Exchange Act of 1934, as amended.
“Master
Trust Deed”
means
the Master Trust Deed dated 4 July 1994 (as amended and restated) made
between
the Manager (formerly called Superannuation Members’ Home Loans Limited) as
manager and Party B (formerly called Perpetual Trustees Australia Limited)
as
trustee, pursuant to which the trust funds, collectively known as
“Superannuation Members’ Home Loans Trusts” are constituted, including the
Securitisation Fund.
“Rating
Agency Confirmation” means,
at
any time, a confirmation from each Designated Rating Agency that there
will not
be a downgrade or withdrawal of the rating of any of the Notes at that
time.
“Regulation
AB” means
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R. §§
229.1100-229.1123 as may be amended from time to time and subject to such
clarification and interpretation as have been provided by the Commission
in the
adopting release (Asset Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (Jan. 7 2005)) or by the staff of the Commission
or as
may be provided by the Commission or its staff from time to time.
“Relevant
Swap Transaction”
means in
relation to the Class A Offered Notes, each Transaction which is a Currency
Swap
for Class A Offered Notes only.
“Securities
Act”
means
the United States Securities Act of 1933, as amended.
“Securitisation
Fund” means
the
trust fund known as “SMHL Global Fund 2007-1”
created
pursuant to the Master Trust Deed on 2 May 2007.
“Security
Trust Deed”
means
the Security Trust Deed dated 2 May, 2007 between Party B, the Manager,
the
Security Trustee and the Note Trustee.
“significance
percentage” has
the
meaning given to it in Item 1115 of Regulation AB.
“Swap
Financial Disclosure” means,
if
the Manager determines reasonably and in good faith that the significance
percentage of this Agreement is or has become:
|
(a)
|
8%
or more, the information set forth in Item 1115(b)(1) of Regulation
AB and
auditor's consents relating to the information set forth in Item
1115(b)(1) of Regulation AB; or
|
|
(b)
|
18%
or more, the information set forth in Item 1115(b)(2) of Regulation
AB and
auditor's consents relating to the information set forth in Item
1115(b)(2) of Regulation AB.
|
“Swap
Financial Disclosure Request”
means
a
request by the Manager or Party B for Party A to provide the Swap Financial
Disclosure pursuant to Part
5(gg)(iii)
of the
Schedule to this Agreement.
“Wilful
Default”
in
relation to Party B means a wilful default of this Agreement by Party
B:
(a) other
than a default which:
|
(A)
|
arises
out of a breach of a Transaction Document by a person other than
Party B
or any person referred to in paragraph (c) in relation to 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
|
|
(b)
|
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 this Agreement
from
the Securitisation Fund.
|
|
(c)
|
A
reference to the “fraud”, “negligence” or “Wilful Default” of Party B
means the fraud, negligence or Wilful Default of Party B and
of its
officers or employees, but not of its agents or delegates, unless
Party B
is liable for the acts or omissions of such other person under
the terms
of this Agreement.
|
|
(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:
|
“Charged
Property”
“Currency
Swap”
“Designated
Rating Agency”
“Expense”
“Extraordinary
Resolution”
“Note
Trustee”
“Note
Trust Deed”
“Outstanding
Principal Balance”
“Paying
Agent”
“Principal
Paying Agent”
“Prior
Interest”
“Secured
Creditor”
“Secured
Document”
“Secured
Moneys”
“Security
Trustee”
“Securitisation
Fund”
“Supplementary
Bond Terms Notice”
“Transaction
Document”
|
(iii)
|
The
expressions “Class
A Offered Notes”, “Class A Offered Noteholder”, “Class A1
Notes”, “Class A2 Notes”, “Invested Amount”,
“Notes”
and “Payment
Date” 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.
|
|
(o)
|
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 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.
|
|
(p)
|
Scope
of Agreement.
Notwithstanding anything contained in this Agreement to the contrary,
if
the parties enter into, or have entered into, any Specified Transaction,
such Specified Transaction shall be subject to, governed by and
construed
in accordance with the terms of this Agreement unless the Confirmation
relating thereto shall specifically state to the contrary. Each
such
specified Transaction shall be a Transaction for the purposes
of this
Agreement.
|
|
(q)
|
Procedures
for Entering into
Transactions.
|
Confirmation
of Transactions.
Transactions shall be created at the moment that the parties agree sufficient
particulars for completion of a Confirmation. With respect to each Transaction
entered into pursuant to this Agreement between Party A and Party B, Party
A
shall, on or promptly after the relevant Trade Date, send to Party B care
of the
Manager a Confirmation confirming that Transaction and the Manager shall
on
behalf of Party B promptly then confirm the accuracy of or request the
correction of such Confirmation. The Manager shall send to Party B a copy
of
such Confirmation.
|
(r)
|
Inconsistency.
In
the event of any inconsistency between any of the following documents,
the
relevant document first listed below shall
govern:
|
|
(i)
|
a
Confirmation;
|
|
(ii)
|
the
Schedule to this Agreement;
|
|
(iii)
|
the
other provisions of this Agreement;
and
|
|
(iv)
|
the
ISDA Definitions.
|
|
(s)
|
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.
|
|
(t)
|
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.
|
|
(u)
|
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.
|
|
(v)
|
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 xxx 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 Wilful
Default.
|
|
(d)
|
It
is acknowledged that the Manager is responsible under the Master
Trust
Deed for performing a variety of obligations relating to the
Securitisation Fund, including under this Agreement. No act or
omission of
Party B (including any related failure to satisfy its obligations
or
breach of a representation or warranty under this Agreement)
will be
considered fraud, negligence or Wilful Default of Party B for
the purpose
of Section 15(c) 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 Sections 15(a) to 15(d) and
15(f).
|
|
(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 Section
15(c).
|
|
(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.
|
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 Offered 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
Section
16(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 Offered Notes issued by Party
B.
Nothing in this Agreement affects the respective priority rankings of claims
against the Charged Property under the Security Trust Deed. Without limiting
the
generality of the foregoing, the provisions of this Agreement have effect
separately and severally in respect of each Relevant Swap Transaction and
are
enforceable by or against Party B as though a separate agreement applied
between
Party A, Party B and the Manager for each Relevant Swap Transaction, so
that
(among other things):
|
(i)
|
this
Agreement together with each Confirmation relating to a Relevant
Swap
Transaction will form a single separate agreement between Party
A, Party B
and the Manager and references to the respective obligations
(including
references to payment obligations generally and in the context
of
provisions for the netting of payments and the calculation of
amounts due
on early termination) of Party A, Party B and the Manager shall
be
construed accordingly as a several reference to each mutual set
of
obligations arising under each such separate agreement between
Party A,
Party B and the Manager;
|
|
(ii)
|
representations
made and agreements entered into by the parties under this Agreement
are
made and entered separately and severally in respect of each
Relevant Swap
Transaction and may be enforced separately and severally in respect
of
each Relevant Swap Transaction;
|
|
(iii)
|
rights
of termination, and obligations and entitlements consequent upon
termination, only accrue to Party A against Party B separately
and
severally in respect of each Relevant Swap Transaction, and only
accrue to
Party B against Party A separately and severally in respect of
each
Relevant Swap Transaction; and
|
|
(iv)
|
the
occurrence of an Event of Default or Termination Event in respect
of a
Relevant Swap Transaction does not in itself constitute an Event
of
Default or Termination Event in respect of any other Relevant
Swap
Transaction.
|
|
(w)
|
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, to the extent permitted by applicable law, such recordings
and
transcripts can be used as evidence by another party in any dispute
between them.
|
|
(x)
|
Consent
to Information Disclosure.
|
Each
party hereby consents to the communication and disclosure of all information
in
respect of this Agreement, the Transactions and all matters incidental
hereto
and thereto by the other party to (i) any other branches of the other party;
and
(ii) all government and regulatory authorities as and when required by
such
government and regulatory authorities.
|
(y)
|
Consolidation
of Transactions.
|
|
(i)
|
From
time to time the Manager (on behalf of Party B) may, in respect
of the
Securitisation Fund, request more than one Transaction to be
consolidated
into one Transaction by notifying Party A of the Transactions
to be
consolidated and Party A will issue a replacement Confirmation
for that
one consolidated Transaction in substitution for the original
Confirmation
for the Transaction.
|
|
(ii)
|
Each
such consolidation will be on such terms and conditions as agreed
by Party
A, Party B and the Manager.
|
|
(iii)
|
Party
B and the Manager agree to provide Party A with such financial
and other
information in relation to the consolidation as Party A reasonably
requires.
|
|
(z)
|
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 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.
|
|
(aa)
|
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
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 under this
Agreement;
|
|
(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;
|
|
(iii)
|
must
provide copies of all Confirmations and notices given by Party
A to Party
B promptly upon receipt of such notices from Party A;
and
|
|
(iv)
|
must
provide at least two Local Business Days prior notice to Party
B of the
details of any proposed Transaction or novation of
Transactions.
|
A
failure
by the Manager to give notice to Party B under the above provisions will
not of
itself affect the validity of the Transactions or novation of Transactions.
For
the avoidance of doubt, a Transaction or novation of a Transaction entered
into
by the Manager on behalf of Party B as contemplated under this Agreement
is
binding on each of Party A, Party B and the Manager.
Subject
to Section 15, Party B agrees that it is bound by anything the Manager
does
under this Part
5(aa).
Party
A
is not obliged to enquire into the authority of the Manager to exercise
or
satisfy any of Party B’s rights or obligations on Party B’s behalf.
|
(bb)
|
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:
|
|
(A)
|
put
in place an appropriate xxxx-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 February 2004 (as
may be
amended from time to time), Moody’s Framework for De-Linking Hedge
Counterparty Risks from Global Structured Finance Cashflow Transactions
published May 2006 (as 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
Xxxxx’x is not adversely affected by the downgrade following such
collateral arrangements being put in place and PROVIDED FURTHER
that this
Part
5(bb)(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, which each Designated Rating Agency
has provided
its Rating Agency Confirmation, 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 Xxxxx’x and a short term
credit rating of at least P-1 by Xxxxx’x, 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 Part
5(bb)(i)(B),
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 Part
5(bb)(i)(B),
Party A shall be immediately entitled to any collateral which
it has
provided under any collateral agreement contemplated by Part
5(bb)(i)(A)
(less any amount withdrawn in accordance with Part
5(bb)(iv)).
|
|
(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 Part
5(bb)(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 Part
5(bb)(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 Part
5(bb)(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 Part
5(bb)(i)(A).
|
|
(cc)
|
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 party
and the
payer’s obligations under this Agreement will be unaffected by any
such
exchange controls.
|
|
Nothing
in this Section 5(b)(i) limits the rights of Party A or Party
B in
relation to any other Termination Event or Event of Default
resulting from
such event including any rights of Party A or Party B arising
as a result
of a failure by Party A or Party B to make any payment in accordance
with
this Agreement.”
|
|
(dd)
|
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”
|
(ee)
|
Party
B’s Payment Instructions
|
Party
B
irrevocably authorises and instructs Party A to make payment of:
|
(i)
|
the
Initial Exchange Amount (as defined in a Confirmation) 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 relevant Paying Agent to
the account notified in writing by the relevant Paying Agent
to Party A
for that purpose. Party A is entitled to rely on any such
notice.
|
|
(ff)
|
No
Amendment
|
|
(i)
|
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.
|
|
(ii)
|
No
amendment may be made to this agreement unless each of the Designated
Rating Agencies has provided a Rating Agency
Confirmation.
|
|
(gg)
|
Regulation
AB Financial Disclosure
|
|
(i)
|
Party
A acknowledges that for so long as there are reporting obligations
with
respect to any Transaction under this Agreement under Regulation
AB, the
Manager is required under Regulation AB to disclose certain information
set forth in Regulation AB regarding Party A or its group of
affiliated
entities, if applicable, depending on the aggregate significance
percentage of this Agreement and any other derivative contracts
between
Party A or its group of affiliated entities, if applicable, and
Party B,
as calculated from time to time in accordance with Item 1115
of Regulation
AB.
|
|
(ii)
|
If
the Manager determines, reasonably and in good faith, that the
significance percentage of this Agreement is or has
become:
|
|
(A)
|
8%
or more; or
|
|
(B)
|
18%
or more,
|
then
on
any Local Business Day after the date of such determination, Party B (at
the
direction of the Manager) or the Manager may request Party A to provide
the
relevant Swap Financial Disclosure.
|
(iii)
|
Party
A, at its own expense, shall within four Local Business Days
after receipt
of a Swap Financial Disclosure Request provide the Manager with
the
relevant Swap Financial Disclosure.
|
|
(iv)
|
If
Party A is not able to provide the relevant Swap Financial Disclosure
in
accordance with Part
5(gg)(iii)
of
this Schedule, then Party A, at its own expense, shall secure
another
entity to replace Party A as party to this Agreement on terms
substantially similar to this Agreement which entity is able
to and will
provide the Swap Financial Disclosure for such entity within
the time
period specified in Part
5(gg)(iii)
of
this Schedule (subject to Rating Agency Confirmation having been
obtained
and to approval by the Manager (which approval will not be unreasonably
withheld or delayed)).
|
|
(v)
|
The
parties agree that, if permitted by Regulation AB, any required
Swap
Financial Disclosure may be provided by incorporation by reference
from
reports filed pursuant to the Exchange Act. The parties agree
that the
Manager and the Securitisation Fund are authorised to incorporate
by
reference into the prospectus relating to the Securitisation
Fund any
reports filed by the Manager or the Securitisation Fund with
the
Commission pursuant to section 13(a) or 15(d) of the Exchange
Act any
required Swap Financial Disclosure contained in any reports filed
by Party
A with the Commission pursuant to section 13(a) or 15(d) of the
Exchange
Act. The parties also agree that the Manager and the Securitisation
Fund
are authorised to incorporate by reference into the prospectus
relating to
the Securitisation Fund any documents filed by Party A with the
Commission
pursuant to section 13(a) or 15(d) of the Exchange Act after
the date of
this Agreement and prior to the termination of the offering described
in
the prospectus relating to the Securitisation
Fund.
|
|
(vi)
|
Party
A shall indemnify the Manager, the Securitisation Fund and each
underwriter, the respective present and former directors, officers,
employees and agents of each of the foregoing and each person,
if any, who
controls the Manager, the Securitisation Fund or any underwriter
within
the meaning of Section 15 of the Securities Act or Section 20
of the
Exchange Act (collectively, the "indemnified persons") and shall
hold each
of them harmless from and against any and all losses, claims,
damages or
liabilities (including legal fees and reasonable expenses) to
which any of
them may become subject, under the Securities Act, the Exchange
Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or
actions in respect thereof) arise out of or are based
upon:
|
|
(A)
|
any
untrue statement or alleged untrue statement of any material
fact
contained in the Swap Financial Disclosure provided by Party
A;
|
|
(B)
|
any
omission or alleged omission to state in the Swap Financial Disclosure
provided by Party A a material fact required to be stated therein
or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
or
|
|
(C)
|
any
failure by Party A to provide the Manager with the relevant Swap
Financial
Disclosure when and as required under this Part
5(gg);
provided, however, that, if Party A secures another entity to
replace
Party A as party to this Agreement pursuant to Part
5(gg)(iv)
of
this Schedule, Party A shall not be liable for any losses, claims,
damages
or liabilities (including reasonable legal fees and expenses)
to which any
of the indemnified persons may become subject arising out of
or based upon
a failure by Party A to provide the Manager with the relevant
Swap
Financial Disclosure following the provision of the relevant
Swap
Financial Disclosure by the other entity to the
Manager.
|
page
25
The
provisions of this Part
5(gg)(vi)
shall
not limit whatever rights the Manager may have under other provisions of
this
Agreement, the other Transaction Documents or otherwise, whether in equity
or at
law, such as an action for damages, specific performance or injunctive
relief.
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.
|
PARTY
A
|
|
Signed
in
on the
day
of
for Australia
and New Zealand Banking Group Limited
by its duly appointed Attorney under Power of Attorney dated
Registered
Book
No.
each of whom declares
that he/she has not received notice of revocation of the
power
|
In
the
presence of
|
Witness:
/s/
Xxxxx Xxxxxxx
|
Attorney:
/s/ Xxxxx Xxx
|
|
Name:
Xxxxx Xxxxxxx
|
Name:
Xxxxx Xxx
|
|
Title:
Legal Assistant
|
Title:
Corporate
Lawyer
Institutional Legal Group |
|
Date:
29 May 2007
|
Date:
29 May 2007
|
|
|
|
|
Attorney:
/s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Senior Lawyer
Institutional Legal Group
|
|
|
Date:
29 May 2007
|
|
PARTY
B
|
|
Signed
by Perpetual
Limited
by
its attorney who declares that he/she has not received notice
of
revocation of the power
|
In
the
presence of
|
Witness:/s/
Xxxxxxx Low
|
Attorney:/s/
Xxxxx Xxxxxx
|
|
Name:
Xxxxxxx Low
|
Name:
Xxxxx Xxxxxx
|
|
Title:
Paralegal
|
Title:
Assistant Manager
|
|
Date:
29/5/07
|
Date:
29 May 2007
|
|
THE
MANAGER
|
|
Signed
by ME
Portfolio Management Limited
by
its attorney who declares that he/she has not received notice
of
revocation of the power.
|
In
the
presence of
|
Witness:/s/
Xxxxxxx Xxxxx
|
Attorney:/s/
Xxxxxxx X. Xxxxxx
|
|
Name:
Xxxxxxx Xxxxx
|
Name:
Xxxxxxx X. Xxxxxx
|
|
Title:
Secretary
|
Title:
Attorney
|
|
Date:
29 May 2007
|
Date:
29 May 2007
|
page
28
|
To:
|
Perpetual
Limited (ABN 86 000 000 000) as trustee for SMHL Global
Fund 2007-1
|
|
C/o
ME Portfolio Management Limited
|
|
|
Copy
To:
|
ME
Portfolio Management Limited (ABN 79 005 964 134) as manager
of the SMHL
Global Fund 2007-1
|
|
Attention:
|
Derivative
Operations
|
|
Facsimile
no.:
|
x000
0000 0000
|
|
Re:
|
Cross
Currency Swap Transaction
|
|
Our
Reference:
|
CS382830
|
Ladies
and Gentlemen:
The
purpose of this letter is to confirm the terms and conditions of the
Transaction
entered into between
Australia and New Zealand Banking Group (ABN 11 005 357 522) (“Party A”) and ME
Portfolio Management Limited (ABN 79 005 964 134) as manager
of the SMHL Global Fund 2007-1 (“Manager”)
and
for Perpetual Limited (ABN 86 000 431 827) as trustee of the
SMHL Global Fund 2007-1 (“Party B”) on the Trade Date specified below (the
“Transaction”). This letter agreement constitutes a “Confirmation” as referred
to in the Agreement specified below.
The
definitions and provisions contained in the 2000 ISDA Definitions as
published
by the International Swaps and Derivatives Association, Inc. (the “Definitions”)
are incorporated by reference herein. Any terms used and not otherwise
defined
herein, which are contained in the Definitions, shall have the meaning
set forth
therein. This Confirmation incorporates the attached Definitions Schedule
which
forms part of, and is subject to this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will prevail for the purposes of this Transaction.
Where
in
this Confirmation a word or expression is defined by reference to the
Supplementary Bond Terms Notice or there is a reference to the Supplementary
Bond Terms Notice, any amendment to the meaning of the word or expression
or to
the Supplementary Bond Terms Notice will be of no effect for the purposes
of
this Confirmation unless and until the amendment is consented to by all
parties
to this Confirmation.
For
the
purpose of this Confirmation, all references in the Definitions or the
Agreement
to a “Swap Transaction” shall be deemed to be references to this
Transaction.
1.
This
Confirmation supplements, forms part of, and is subject to, the ISDA
Master
Agreement dated as of 29 May 2007, (as the same may be amended or supplemented
from time to time, the “Agreement”), between Party A, Party B and the Manager.
All provisions contained in the Agreement shall govern this Confirmation
except
as expressly modified below.
1
2.
The
terms of the particular Transaction to which this Confirmation relates
are as
follows:
|
1.
|
Trade Date: | 31 May 2007 | ||
|
2.
|
Effective Date: | 05 June 2007 | ||
|
3.
|
Termination Date: | The date of redemption of the Class A1 Notes in accordance with clause 3.4 of the Supplementary Bond Terms Notice. | ||
|
4.
|
Floating Amounts | |||
|
4.1
|
Floating Amounts Payable by Party A: | |||
|
(A)
|
Floating
Rate Payer:
|
Party A | ||
|
Calculation
Amount:
|
For each Floating Rate Payer Payment Date, the aggregate Invested Amount of the Class A1 Notes as at the end of the first day of the Quarterly Interest Period ending on but excluding that a Floating Rate Payer Payment Date (after taking into account any reductions in the Invested Amount of the Class A1 Notes on that day) provided that the Calculation Amount for any Floating Rate Payer Payment Date cannot be higher than the Calculation Amount for the previous Floating Rate Payer Payment Period Date (or US$1,200,000,000.00 in the case of the first Floating Rate Payer Payment Date). | |||
|
Party
A Floating Rate
Payer
Payment Dates:
|
Commencing
on the 12th September 2007 and quarterly thereafter on the
12th day of
March, June, September and December of each calendar year
up to and
including the Termination Date, subject to adjustment in
accordance with
the Modified Following Business Day Convention.
Payment
by Party A of the Calculation Amount must be made before
9:30am (New York
time) on each Party A Floating Rate Payer Payment Date.
|
|||
|
Party
A Floating Rate
Option:
|
USD-LIBOR-BBA | |||
|
Floating
Rate Day
Count
Fraction:
|
Actual/360 | |||
|
Reset
Dates:
|
The first Business Day of each Quarterly Interest Period. | |||
|
Designated
Maturity:
|
Three months (except that in the case of the first Quarterly Interest Period, the rate will be determined by linear interpolation calculated by reference to the duration of the first Quarterly Interest Period). | |||
|
Party
A Spread:
|
In respect of: | |||
|
(a)
|
Floating
Rate Payer Payment Dates on or prior to 12 March 2013 (or
if that day is
not a Business Day, the next following Business Day), 0.06%;
and
|
|||
2
|
(b)
|
Floating
Rate Payer Payment Dates after 12
March 2013 (or if that day is not a Business Day, the next
following
Business Day), 0.12%.
|
|||
|
(B)
|
Floating
Rate Payer:
|
Party A | ||
|
Calculation
Amount:
|
An amount equal to the Class A1 Unpaid Interest Amount in relation to that Floating Rate Payer Payment Date. | |||
|
Floating
Rate Payer
Payment
Dates:
|
Commencing
on the 12th September 2007 and quarterly thereafter on the
12th day of
March, June, September and December of each calendar year
up to and
including the Termination Date, subject to adjustment in
accordance with
the Modified Following Business Day Convention.
Payment
by Party A of the Calculation Amount must be made before
9:30am (New York
time) on each Party A Floating Rate Payer Payment Date.
|
|||
|
Floating
Rate Option:
|
USD-LIBOR-BBA | |||
|
Designated
Maturity:
|
Three months (except that in the case of the first Quarterly Interest Period, the rate will be determined by linear interpolation calculated by reference to the duration of the first Quarterly Interest Period). | |||
|
Spread:
|
In respect of: | |||
|
(a)
|
Floating
Rate Payer Payment Dates on or prior to 12 March 2013 (or
if that day is
not a Business Day, the next following Business Day), 0.06%;
and
|
|||
|
(b)
|
Floating
Rate Payer Payment Dates after 12 March 2013 (or if that
day is not a
Business Day, the next following Business Day), 0.12%.
|
|||
|
Floating
Rate Day
Count
Fraction:
|
Actual/360 | |||
|
Reset
Dates:
|
The first Business Day of each Quarterly Interest Period | |||
|
Compounding
|
Inapplicable | |||
|
(C)
|
Class
A1 Unpaid Interest Amount
|
On each Floating Rate Payer Payment Date Party A will pay to Party B an amount equal to the Class A1 Unpaid Interest Amount, if any, in relation to that Floating Rate Payer Payment Date. | ||
|
4.2
|
Floating
Amounts Payable
by
Party B:
|
|||
|
(A)
|
Floating
Rate Payer:
|
Party B | ||
|
Calculation
Amount:
|
For each Floating Rate Payer Payment Date, the A$ Equivalent of the aggregate Invested Amount of the Class A1 Notes as at the end of the first day of the Quarterly Interest Period referrable to a Floating Rate Payer Payment Date (after taking into account any reductions in the Invested Amount of the Class A1 Notes on that day) provided that the Calculation Amount for any Floating Rate Payment Date cannot be higher than the Calculation Amount for the previous Floating Rate Payer Payment Period Date (or A$1,463,414,634.15 in the case of the first Floating Rate Payer Payment Date). | |||
3
|
Party
B Floating Rate
Payer
Payment Dates:
|
Commencing
on the 12th September 2007 and quarterly thereafter on the
12th day of
March, June, September and December of each calendar year
up to and
including the Termination Date, subject to adjustment in
accordance with
the Modified Following Business Day Convention.
Payment
of the Calculation Amount by Party B must be made by 4.00pm
(Sydney time)
on each Party B Floating Rate Payer Payment Date.
|
|||
|
Party
B Floating Rate Option:
|
AUD-BBR-BBSW | |||
|
Party
B Floating Rate Day Count Fraction
|
Actual/365 (Fixed) | |||
| Reset Dates | The first day of each Quarterly Interest Period | |||
|
Designated
Maturity:
|
Three months (except that in the case of the first Quarterly Interest Period, the rate will be determined by linear interpolation calculated by reference to the duration of the first Quarterly Interest Period) | |||
|
Party
B Spread:
|
In respect of: | |||
|
(a)
|
Floating
Rate Payer Payment Dates on or prior to 12 March 2013 (or
if that day is
not a Business Day, the next following Business Day), 0.1456%;
and
|
|||
|
(b)
|
Floating
Rate Payer Payment Dates after 12 March 2013 (or if that
day is not a
Business Day, the next following Business Day), 0.2456%.
|
|||
|
(B)
|
Floating
Rate Payer:
|
Party B | ||
|
Calculation
Amount:
|
An amount equal to the A$ Class A1 Unpaid Interest Amount in relation to that Floating Rate Payer Payment Date. | |||
|
Floating
Rate Payer Payment Dates:
|
Commencing on the 12th September 2007 and quarterly thereafter on the 12th day of March, June, September and December of each calendar year up to and including the Termination Date, subject to adjustment in accordance with the Modified Following Business Day Convention. | |||
| Payment of the Calculation Amount by Party B must be made by 4.00pm (Sydney time) on each Party B Floating Rate Payer Payment Date. | ||||
4
|
Floating
Rate Option:
|
AUD-BBR-BBSW | |||
|
Designated
Maturity:
|
Three months (except that in the case of the first Quarterly Interest Period, the rate will be determined by linear interpolation calculated by reference to the duration of the first Quarterly Interest Period). | |||
|
Spread:
|
In respect of: | |||
|
(a)
|
Floating
Rate Payer Payment Dates on or prior to 12 March 2013 (or
if that day is
not a Business Day, the next following Business Day), 0.1456%;
and
|
|||
|
(b)
|
Floating
Rate Payer Payment Dates after 12 March 2013 (or if that
day is not a
Business Day, the next following Business Day), 0.2456%.
|
|||
|
Floating
Rate Day Count Fraction:
|
Actual/365 (Fixed) | |||
|
Reset
Dates
|
The first day of each Quarterly Interest Period | |||
|
Compounding:
|
Inapplicable | |||
|
(C)
|
A$
Class A1 Unpaid
Interest
Amount
|
On
each Floating Rate Payer Payment Date Party B will pay to
Party A an
amount equal to the
A$
Class A1 Unpaid Interest Amount, if any, in relation to that
Floating Rate
Payer Payment Date.
|
||
|
4.3
|
Proportional
Adjustment
of
Floating Amounts
|
If the A$ Class A1 Interest Payment in relation to a Quarterly Payment Date will be less than the aggregate of the Floating Amounts payable by Party B to Party A on that Quarterly Payment Date (including any A$ Class A1 Unpaid Interest Amount), Party A may, in its discretion, elect, by notice in writing to Party B and the Manager (such notice to be received by both such parties prior to that Quarterly Payment Date), to pay to Party B on that Quarterly Payment Date (in return for payment by Party B of the A$ Class A1 Interest Payment and in lieu of the Floating Amounts that would otherwise be payable by Party A to Party B on that Quarterly Payment Date) a proportion of the Floating Amounts that would otherwise be payable by Party A to Party B on that Quarterly Payment Date (including any Class A1 Unpaid Interest Amounts) being the same proportion as the A$ Class A1 Interest Payment bears to the Floating Amounts payable by Party B to Party A on that Quarterly Payment Date. | ||
| Notwithstanding any election by Party A pursuant to this paragraph 4.3, a failure by Party B to pay to Party A the full amount of the Floating Amounts payable by Party B on a Quarterly Payment Date constitutes a failure to pay for the purposes of Section 5(a)(i) of the Agreement. | ||||
5
|
5.
|
Exchanges | |||
|
5.1
|
Initial Exchange: | |||
|
Initial
Exchange Date:
|
Effective Date | |||
|
Party
A Initial Exchange
Amount:
|
The A$ Equivalent of the Party B Initial Exchange Amount, being A$1,463,414,634.15 | |||
|
Party
B Initial Exchange
Amount:
|
The total Invested Amount of the Class A1 Notes on the Effective Date, being US$1,200,000,000.00 | |||
| Notwithstanding Section 2(a)(ii) of the Agreement, Party A must pay the Party A Initial Exchange Amount to Party B by 4.00pm (Sydney time) on the Initial Exchange Date and Party B must pay Party A the Party B Initial Exchange Amount by 4.00pm (London time) on the Initial Exchange Date. Section 2(a)(v) does not apply to the payment of the Party A Initial Exchange Amount. | ||||
|
5.2
|
Interim
(Instalment)
Exchange:
|
|||
|
Interim
Exchange Date:
|
Each Quarterly Payment Date (other than the Final Exchange Date) | |||
|
Party
A Interim Exchange Amount:
|
In
respect of an Instalment Exchange Date means the US$ Equivalent
of the
A$
Class A1 Principal in relation to the Quarterly Payment Date
occurring on
that Instalment Exchange Date.
|
|||
|
Party
B Interim Exchange Amount:
|
In respect of an Instalment Exchange Date means the A$ Class A1 Principal in relation to the Quarterly Payment Date occurring on that Instalment Exchange Date. | |||
|
5.3
|
Final Exchange: | |||
|
Final
Exchange Date:
|
Termination Date | |||
|
Party
A Final Exchange Amount:
|
The US$ Equivalent of the A$ Class A1 Principal in relation to the Quarterly Payment Date which is the Final Exchange Date. | |||
|
Party
B Final Exchange Amount:
|
The A$ Class A1 Principal in relation to the Quarterly Payment Date which is the Final Exchange Date. | |||
|
5.4
|
Business Days: | |||
|
Business
Days for USD:
|
Any day (other than a Saturday, Sunday or public holiday) on which banks are open for business in London, New York, Sydney and Melbourne and which is a TARGET Settlement Day. | |||
|
Business
Days for AUD:
|
Any day (other than a Saturday, Sunday or public holiday) on which banks are open for business in London, New York, Sydney and Melbourne and which is a TARGET Settlement Day. | |||
6
|
6.
|
Exchange Rates: | |||
|
For
the purpose of the
definitions
of "A$
Equivalent"
and "US$
Equivalent":
|
||||
|
US$
Exchange Rate:
|
0.8200 | |||
|
A$
Exchange Rate:
|
1 / 0.8200 | |||
|
7.
|
Account Details: | |||
|
7.1
|
Payments to Party A | |||
|
Account
for payments in
US$
|
The account notified in writing by Party A to Party B in accordance with the Agreement. | |||
|
Account
for payments in
A$
|
The account notified in writing by Party A to Party B in accordance with the Agreement. | |||
|
7.2
|
Payments to Party B | |||
|
Account
for payments in
US$
|
The
account notified in writing by the Principal Paying Agent
to Party A as
contemplated by
Part
5(cc)(ii) of the Schedule to the Agreement.
|
|||
|
Account
for payments in
A$
|
The account notified in writing by Party B to Party A in accordance with Part 5(cc)(i) of the Schedule to the Agreement. | |||
|
8.
|
Offices: |
The
Office of Party A for the Transaction is Melbourne.
The
Office of Party B for the Transaction is Sydney.
The
Office of the Manager for the Transaction is Melbourne.
|
||
|
9.
|
Notification
of Invested
Amount
|
The Manager must notify Party A of all of the matters which the Manager is required to notify the Currency Swap Provider of under clause 8(b) of the Supplementary Bond Terms Notice, by the time required under that clause for the notification. | ||
|
10.
|
Calculation Agent | Party A | ||
11.
In
connection with this Confirmation and the Transaction to which this Confirmation
relates, each party to this Confirmation represents and acknowledges
to the
other party that:
(a)
Non-reliance.
It is
acting for its own account (or, in the case of Party B as trustee of
the
Securitisation Fund), and it has made its own independent decision to
enter into
this Transaction and as to whether this Transaction is appropriate or
proper for
it based upon its own judgment and, in the case of Party B, 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 a recommendation to enter into this Transaction;
it being
understood that information and explanations related to the terms and
conditions
of this Transaction shall not be considered investment advice or a
recommendation to enter into this 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 this Transaction.
7
(b)
Assessment
and Understanding.
It is
capable of assessing the merits of and understanding (on its own behalf
or
through independent professional advice), and understands and accepts,
the
terms, conditions and risks of this Transaction. It is also capable of
assuming,
and assumes, the risks of this Transaction.
(c)
Status
of Parties.
The
other party is not acting as a fiduciary for or an adviser to it in respect
of
this Transaction.
12.
This
Confirmation will be governed by and construed in accordance with the
laws
specified in the Agreement.
13.
Please confirm that the above correctly sets out the terms of our agreement
in
respect of each Transaction to which this Confirmation relates by signing
and
returning this Confirmation to us by facsimile today to:
Attention:
Global Confirmations
Address:
Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx XXX 0000
Facsimile
No.: 61 3 9273 3444
Yours
sincerely
|
SIGNED
for and on behalf of
Australia
and New Zealand Banking Group
(ABN
11
005 357 522)
|
||
| By: | ||
|
/s/
Xxxxx Xxxxxxxxx
|
||
|
(Authorised
Officer)
|
||
|
Name
|
Xxxxx
Xxxxxxxxx
|
|
|
Title
|
Team
Manager - Market Operations
|
|
|
SIGNED
for and on behalf of
Australia
and New Zealand Banking Group
(ABN
11
005 357 522)
|
||
| By: | ||
|
|
||
|
(Authorised
Officer)
|
||
|
Name
|
|
|
|
Title
|
|
|
8
Confirmed
as at the date first written above:
|
SIGNED
by
ME
Portfolio Management
Limited,
ABN 79 005 964 134 as
manager
of
the SMHL Global Fund 2007-1 itself and
on
behalf of PERPETUAL
LIMITED, ABN
86
000 000 000 as
trustee for the SMHL
Global
Fund 2007-1
|
||||
| By: | ||||
|
/s/
Xxxx Xxxxxxxxxx
|
/s/
Xxxxx Xxxxxx
|
|||
|
(Authorised
Officer)
|
||||
|
Name
|
Xxxx
Xxxxxxxxxx
|
Xxxxx Xxxxxx | ||
|
Title
|
Authorised
Signatory
|
Authorised Signatory | ||
9
Definitions
Schedule
In
this
Confirmation and in the Agreement unless the context otherwise
requires,
"A$
Equivalent", "Class
A1 Notes", " Conditions", “Currency Swap Provider”, "Invested Amount", “Note
Trustee”, "Notes", "Quarterly Interest Period" and
"Quarterly
Payment Date", have
the
meanings given to those terms in the Supplementary Bond Terms
Notice.
"A$
Class A1 Principal" means
the
amount available for distribution to Party A in accordance with clause
6.2(c)(7)(B) of the Supplementary Bond Terms Notice.
"A$
Class A1 Interest Payment" means
the
amount available for distribution to Party A in accordance with 6.1(c)(4)(B)
of
the Supplementary Bond Terms Notice.
"A$ Class
A1 Unpaid Interest Amount"
in
relation to a Floating Rate Payer Payment Date means the aggregate amount
of the
Floating Amounts referred to in paragraph 4.2 with respect to the immediately
preceding Floating Rate Payer Payment Date which were not paid by Party
B on
that Floating Rate Payer Payment Date as a result of the operation of
paragraph
4.3.
"Class
A1 Unpaid Interest Amount" in
relation to a Floating Rate Payer Payment Date means the aggregate amount
of the
Floating Amounts referred to in paragraph 4.1 with respect to the immediately
preceding Floating Rate Payer Payment Date which were not paid by Party
A on
that Floating Rate Payer Payment Date as a result of the operation of
paragraph
4.3.
"Rate
Page"
means
Telerate Page 3750 or, if Telerate Page 3750 ceases to quote the relevant
rate,
such other page, section or part of Telerate as quotes the relevant rate
and is
selected by the Calculation Agent or, if there is no such page, section
or part
of such other page, section or part of a different screen information
service as
quotes the relevant rate selected by the Calculation Agent and approved
by the
Note Trustee and the Currency Swap Provider.
"Supplementary
Bond Terms Notice" means
the
document entitled “Supplementary Bond Terms Notice: SMHL Global Fund 2007-1 -
Class A and Class B Notes” dated 29 May 2007 executed by ME Portfolio Management
Limited, Perpetual Limited, Perpetual Trustee Company Limited and The
Bank of
New York (as the same may be supplemented or amended from time to
time).
"US$
Equivalent"
means:
|
(a)
|
in
relation to an amount denominated or to be denominated in
A$, the amount
converted to (and denominated in) US$ at the US$ Exchange
Rate;
or
|
|
(b)
|
in
relation to an amount denominated in US$ the amount of
$US.
|
"USD-LIBOR-BBA"
has the
meaning ascribed to that term in the 2000 ISDA Definitions except
that:
|
(a)
|
reference
to "London Banking Days" in section
7.1(w)(xvii) of the Annex to the 2000 ISDA Definitions is
replaced with
reference to "Banking Day" as that expression is defined
in the
Conditions;
|
|
(b)
|
reference
to "Telerate Page 3750" in
section
7.1(w)(xvii) of the Annex to the 2000 ISDA Definitions is
replaced with
reference to "Rate Page" (as defined above);
and
|
|
(c)
|
the
interest rate so determined will be rounded down to the nearest
four
decimal places,
|
10
and
that
if USD-LIBOR-BBA cannot be determined in accordance with the 2000 ISDA
Definitions as varied above (including endeavouring to determine a
rate under
the definition of "USD-LIBOR-Reference Banks" in section 7.1(w)(xx)
of the Annex to the 2000 ISDA Definitions ((a) above will apply in
this
circumstance to 7.1(w)(xx))),
it
will remain as the most recently determined rate obtained from a Rate
Page for a
preceding Quarterly Interest Period.
11
|
To:
|
Perpetual
Limited (ABN 86 000 000 000) as trustee for SMHL Global
Fund 2007-1
|
|
|
C/o
ME Portfolio Management Limited
|
|
Copy
To:
|
ME
Portfolio Management Limited (ABN 79 005 964 134) as manager
of the SMHL
Global Fund 2007-1
|
|
Attention:
|
Derivative
Operations
|
|
Facsimile
no.:
|
x000
0000 0000
|
|
Re:
|
Cross
Currency Swap Transaction
|
|
Our
Reference:
|
CS382836
|
Ladies
and Gentlemen:
The
purpose of this letter is to confirm the terms and conditions of
the Transaction
entered into between
Australia and New Zealand Banking Group (ABN 11 005 357 522) (“Party A”) and ME
Portfolio Management Limited (ABN 79 005 964 134) as manager
of the SMHL Global Fund 2007-1 (“Manager”)
and
for Perpetual Limited (ABN 86 000 431 827) as trustee of the
SMHL Global Fund 2007-1 (“Party B”) on the Trade Date specified below (the
“Transaction”). This letter agreement constitutes a “Confirmation” as referred
to in the Agreement specified below.
The
definitions and provisions contained in the 2000 ISDA Definitions
as published
by the International Swaps and Derivatives Association, Inc. (the
“Definitions”)
are incorporated by reference herein. Any terms used and not otherwise
defined
herein, which are contained in the Definitions, shall have the meaning
set forth
therein. This Confirmation incorporates the attached Definitions
Schedule which
forms part of, and is subject to this Confirmation. In the event
of any
inconsistency between the Definitions and this Confirmation, this
Confirmation
will prevail for the purposes of this Transaction.
Where
in
this Confirmation a word or expression is defined by reference to
the
Supplementary Bond Terms Notice or there is a reference to the Supplementary
Bond Terms Notice, any amendment to the meaning of the word or expression
or to
the Supplementary Bond Terms Notice will be of no effect for the
purposes of
this Confirmation unless and until the amendment is consented to
by all parties
to this Confirmation.
For
the
purpose of this Confirmation, all references in the Definitions or
the Agreement
to a “Swap Transaction” shall be deemed to be references to this
Transaction.
1.
This
Confirmation supplements, forms part of, and is subject to, the ISDA
Master
Agreement dated as of 29 May 2007, (as the same may be amended or
supplemented
from time to time, the “Agreement”), between Party A, Party B and the Manager.
All provisions contained in the Agreement shall govern this Confirmation
except
as expressly modified below.
1
2.
The
terms of the particular Transaction to which this Confirmation relates
are as
follows:
|
|
|
|
|
|
|
1.
|
Trade
Date:
|
31
May 2007
|
||
|
|
|
|
|
|
|
2.
|
Effective
Date:
|
05
June 2007
|
||
|
3.
|
Termination
Date:
|
The
date of redemption of the Class A2 Notes in accordancewith
clause 3.4 of
the Supplementary Bond Terms Notice.
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4.
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Floating
Amounts
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4.1
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Floating
Amounts Payable
by
Party A:
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(A)
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Floating
Rate Payer:
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Party
A
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Calculation
Amount:
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For
each Floating Rate Payer Payment Date, the aggregate
Invested Amount of
the
Class
A2 Notes as at the end of the first day of the Quarterly
Interest Period
ending on but excluding that Floating Rate Payer Payment
Date (after
taking into account any reductions in the Invested Amount
of the Class A2
Notes on that day) provided that the Calculation Amount
for any Floating
Rate Payer Payment Date cannot be higher than the Calculation
Amount for
the previous Floating Rate Payer Payment Period Date
(or EUR500,000,000.00
in the case of the first Floating Rate Payer Payment
Date).
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Party
A Floating Rate
Payer
Payment Dates:
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Commencing
on the 12th September 2007 and quarterly thereafter on
the 12th day of
March, June, September and December of each calendar
year up to and
including the Termination Date, subject to adjustment
in accordance with
the Modified Following Business Day Convention.
Payment
by Party A of the Calculation Amount must be made before
9:30am (London
time) on each Party A Floating Rate Payer Payment Date.
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Party
A Floating Rate
Option:
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EUR-EURIBOR-Telerate
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Floating
Rate Day
Count
Fraction:
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Actual/360
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Reset
Dates:
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The
first Business Day of each Quarterly Interest Period.
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Designated
Maturity:
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Three
months (except that in the case of the first Quarterly
Interest Period,
the rate will be determined by linear interpolation calculated
by
reference to the duration of the first Quarterly Interest
Period).
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Party
A Spread:
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In respect of: | |||
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(a)
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Floating Rate Payer Payment Dates on or prior to 12 March 2013 (or if that day is not a Business Day, the next following Business Day), 0.08%; and | |||
2
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(b)
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Floating
Rate Payer Payment Dates after 12
March 2013 (or if that day is not a Business Day, the
next following
Business Day), 0.16%.
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(B)
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