<PAGE>
EXHIBIT 10.5
ISDA-REGISTERED TRADMARK-
INTERNATIONAL SWAPS AND DERIVATIVES ASSOCIATION, INC.
SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF 24 January 2001
BETWEEN
NATIONAL AUSTRALIA BANK LIMITED
(ABN 12 004 044 937)
("PARTY A")
AND
PERPETUAL TRUSTEE COMPANY LIMITED
(ABN 42 000 001 007) AS TRUSTEE FOR THE HOMESIDE MORTGAGE SECURITIES TRUST
2001-1
("PARTY B")
AND
HOMESIDE GLOBAL MBS MANAGER, INC.
("GLOBAL TRUST MANAGER")
AND
DEUTSCHE BANK AG, NEW YORK BRANCH
("SUPPORT PROVIDER")
PART 1. TERMINATION PROVISIONS
In this Agreement:
(a) "SPECIFIED ENTITY" in relation to:
(i) Party A, is not applicable; and
(ii) Party B, is not applicable.
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of
this Agreement.
(c) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not apply
to Party A and will not apply to Party B.
(d) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply;
(ii) the Second Method will apply.
(e) "TERMINATION CURRENCY" is Australian dollars.
(f) ADDITIONAL TERMINATION EVENT applies. Each of the following is an
Additional Termination Event in relation to which both Party A and Party B
are Affected Parties:
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"An Event of Default occurs in respect of the Trust and the Security
Trustee has declared the Class A Notes to be immediately due and payable."
"All of the Class A Notes are redeemed under Condition 7.4 of the Class A
Note Conditions."
PART 2. TAX REPRESENTATIONS
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this Agreement,
Party A will make the following representation and Party B will make the
following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on:
(i) the accuracy of any representations made by the other party pursuant
to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of any
document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice to
its legal or commercial position.
(b) PAYEE TAX REPRESENTATION. For the purpose of Section 3(f) of this
Agreement, Party A [PARTY A EXCLUDED IN THE DEUTSCHE ISDA] and Party B will
make the representation:
It is an Australian resident and does not derive the payments under this
Agreement in part or whole 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 "foreign trust" for United
States tax purposes.
[IN DEUTSCHE ISDA ONLY] For the purpose of Section 3(f) of this Agreement,
Party A represents that:
Each payment received or to be received by it under each Transaction will
be effectively connected with its conduct of a trade or business in the
United States.
PART 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
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(a) TAX FORMS, DOCUMENTS OR CERTIFICATES TO BE DELIVERED ARE:
<TABLE>
<CAPTION>
PARTY REQUIRED TO DELIVER FORM/DOCUMENT/ CERTIFICATE DATE BY WHICH TO BE DELIVERED
DOCUMENT
<S> <C> <C>
Party A and Party B Any document or certificate reasonably required or On the earlier of (a) as soon as
reasonably requested by Party A or Party B in reasonably practical following
connection with its obligations to make a payment learning that such document or
under this Agreement which would enable that party certificate is required and (b) as
to make the payment free from any deduction or soon as reasonably practicable
withholding for or on account of Tax or as would following a request by the other
reduce the rate at which deduction or withholding party.
for or on account of Tax is applied to that payment
(including, without limitation, any United States
Form W-8BEN of other relevant United States tax
form).
</TABLE>
(B) OTHER DOCUMENTS TO BE DELIVERED ARE:
<TABLE>
<CAPTION>
PARTY REQUIRED TO DELIVER FORM/DOCUMENT/ CERTIFICATE DATE BY WHICH TO BE DELIVERED COVERED BY SECTION
DOCUMENT 3(d) REPRESENTATION
<S> <C> <C> <C>
Party A and Party B A list of authorised signatories On execution of this Agreement Yes
for the party and, if so requested or any relevant Confirmation
by the other party, evidence and when the list is updated.
satisfactory in form and substance
to the other party of the authority
of the authorised signatories of
the party to execute this Agreement
and any Confirmation on behalf of
the party.
Party A and Party B A legal opinion as to the validity At any time prior to the first Yes
and enforceability of that party's Issue Date.
obligations under this Agreement in
form and substance (and issued by
legal counsel) reasonably
acceptable to each other party.
Global Trust Manager (to A copy (certified by an Authorised In the case of each Credit Yes
be delivered to Party A) Person of the Global Trust Manager Support Document, within 5
to be a true and complete copy) of Business Days (or such period
each Credit Support Document in as Party A agrees to) of
respect of Party B and (without execution of this Agreement
limiting any obligation Party B may (provided that it must be
have received by the first Issue
Date) and, in the
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PARTY REQUIRED TO DELIVER FORM/DOCUMENT/ CERTIFICATE DATE BY WHICH TO BE DELIVERED COVERED BY SECTION
DOCUMENT 3(d) REPRESENTATION
under the terms of that credit case of an amending document,
Support Document to notify Party A within 5 Business Days (or
of amendments) a copy (certified by such other period as Party A
an Authorised Person of the Global agrees to) of execution of
Trust Manager to be a true and the amending document.
complete copy) of any document that
amends in any way the terms of any
Credit Support Document.
Global Trust Manager (to A copy, certified by an Authorised Within 5 Business Days of Yes
be delivered to Party A) Person of the Global Trust Manager, execution of this Agreement,
of the Master Trust Deed, provided that they must be
Supplemental Deed, Class A Notes delivered by the first Issue
Conditions, Definitions Schedule Date.
and Note Trust Deed.
</TABLE>
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
ADDRESS FOR NOTICES OR COMMUNICATIONS TO PARTY A:
ADDRESS: Level 10, 120 Spencer Street, Melbourne, Victoria, 3000
ATTENTION: Alicia Scammell
TELEX NO: Not applicable ANSWERBACK: Not applicable
FACSIMILE NO: (61 3) 8614 0907 TELEPHONE NO: (61 3) 8614 0224
ELECTRONIC MESSAGING SYSTEM DETAILS: Not applicable
ADDRESS FOR NOTICES OR COMMUNICATIONS TO SUPPORT PROVIDER:
ADDRESS: [#]
ATTENTION: [#]
TELEX NO: Not applicable ANSWERBACK: Not applicable
FACSIMILE NO: [#] TELEPHONE NO: [#]
ELECTRONIC MESSAGING SYSTEM DETAILS: Not applicable
ADDRESS FOR NOTICES OR COMMUNICATIONS TO PARTY B:
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ADDRESS: Level 3, 39 Hunter Street, Sydney NSW 2000
ATTENTION: Manager, Securitisation
TELEX NO: Not applicable ANSWERBACK: Not applicable
FACSIMILE NO: 612 9221 7870 TELEPHONE NO: 612 9229 9000
ELECTRONIC MESSAGING SYSTEM DETAILS: Not applicable
All notices or communications to Party B to be copied to the Global
Trust Manager at the address below
ADDRESS FOR NOTICES OR COMMUNICATIONS TO GLOBAL TRUST MANAGER:
ADDRESS: 7301 Baymeadows Way, Jacksonville, Florida, United States
of America
ATTENTION: Robert Jacobs
TELEX NO: Not applicable ANSWERBACK: Not Applicable
FACSIMILE NO: 1 904 281 3062 TELEPHONE NO: 1 904 281 3422
ELECTRONIC MESSAGING SYSTEM DETAILS: Not Applicable
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
(i) Party A appoints as its Process Agent: Nil.[Deutsche Bank AG, Sydney
Branch, Level 18, 225 George Street, Sydney NSW 2000 - IN THE DEUTSCHE
ISDA].
(ii) Party B appoints as its Process Agent: Nil.
(iii) Support Provider appoints as its Process Agent: Deutsche Bank AG,
Sydney Branch, Level 18, 225 George Street, Sydney NSW 2000 [Nil - IN
THE DEUTSCHE ISDA
(c) OFFICES. The provisions of Section 10(a) will not apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Neither Party A nor Party B is a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
(i) in relation to Party A: Nil;
(ii) in relation to Party B: the Master Security Trust Deed and the Deed of
Charge.
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means:
(i) in relation to Party A, the Support Provider unless:
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(A) a Substitute Transaction becomes effective in accordance with
Section 16 of the Other Agreement, in which case, nil; or
(B) an Equivalent-Other Transaction becomes effective in accordance
with Section 16 of the Other Agreement, in which case the New
Currency Swap Provider shall be the new Credit Support Provider
in relation to Party A; and
(ii) in relation to Party B: nil.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws in force in the Australian Capital Territory and
each party submits to the non-exclusive jurisdiction of the courts of the
Australian Capital Territory. Section 13(b)(i) is deleted and replaced by
the following:
"(i) submits to the non-exclusive jurisdiction of the courts of the
Australian Capital Territory; and".
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this Agreement
will not apply to any Transactions.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. For the purpose of Section 3(c), Party A is deemed not to have
any Affiliates.
PART 5. OTHER PROVISIONS
(1) PAYMENTS: In Section 2:
(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), the first sentence is deleted and replaced with
the following sentence:
"Unless specified otherwise in this Agreement, payments under this
Agreement by:
(1) Party A, will be made by 12 midday (New York time); and
(2) Party B, will be made by 4.00pm (Melbourne time),
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, free of any set-off,
counterclaim, deduction or withholding (except as expressly provided
in this Agreement) and in the manner customary for payment in the
required currency."
(c) Insert new paragraph (iv) in Section 2(a) immediately after Section
2(a)(iii) as follows:
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"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply
to a payment due to be made by a party if it has satisfied all
its payment obligations under Section 2(a)(i) of this Agreement
and has no future payment obligations, whether absolute or
contingent under Section 2(a)(i)."
(d) Add the following new sentence to Section 2(b):
"Each new account so designated shall be in the same tax jurisdiction
as the original account."
(e) Insert a new paragraph (v) in Section 2(a) immediately after Section
2(a)(iv) as follows:
"(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,
then Party A's obligation to make the Party A Payment will be
subject to the condition precedent (which will be an "applicable
condition precedent" for the purpose of Section 2(a)(iii)(3))
that Party A first receives either:
(2) the Party B Payment; or
(3) 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."
(f) PARTY B'S PAYMENT INSTRUCTIONS. Party B irrevocably authorises and
instructs Party A to make payment of:
(i) the "Party A Initial Exchange Amount" payable by Party A under a
currency swap transaction by paying that amount direct to the
account notified in writing by Party B to Party A for that
purpose; and
(ii) any other amount due from Party A to Party B under this Agreement
by paying that amount direct to the Principal Paying Agent to the
account outside Australia notified in writing by the Principal
Paying Agent to Party A for that purpose.
(g) PARTY A'S PAYMENT INSTRUCTIONS. Party A irrevocably authorises and
instructs Party B to make payment of:
(i) any amount denominated in A$ due from Party B to the account in
Melbourne [New York - IN DEUTSHCE ISDA] notified in writing by
Party A to Party B from time to time; and
(ii) any amount denominated in US$ due from Party B to the account
notified in writing by Party A to Party B from time to time.
<PAGE>
(2) REPRESENTATIONS: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the words
"creditors' rights generally" the following:
"(including in the case of a party being an authorised deposit-taking
institution under the Banking Act 1959 (Cwlth), section 13A(3) of the
Banking Act 1959 (Cwlth) and section 86 of the Reserve Bank Act 1959
(Cwlth) or any analogous provision under any other law applicable to a
party),"
(b) Insert new paragraphs (g) and (h) in Section 3 immediately after
Section 3(f):
"(g) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to
represent to each other party on the date on which it enters into
a Transaction that (absent a written agreement between the
parties that expressly imposes affirmative obligations to the
contrary for that Transaction):
(i) NON-RELIANCE. It is acting for its own account or, in the
case of Party B, as trustee of the Trust, and it has made
its own independent decisions to enter into that
Transaction or, in the case of Party B, has been directed
to do so by the Global Trust Manager and as to whether
that Transaction is appropriate or proper for it based upon
its own judgement and upon advice from such advisers as it
has deemed necessary or, in the case of Party B, at the
direction of the Global Trust Manager. It is not relying on
any communication (written or oral) of the other party as
investment advice or as a recommendation to enter into that
Transaction; it being understood that information and
explanations related to the terms and conditions of a
Transaction will not be considered investment advice or a
recommendation to enter into that Transaction. No
communication (written or oral) received from the other
party will be deemed to be an assurance or guarantee as to
the expected results of that Transaction.
(ii) EVALUATION AND UNDERSTANDING. It is capable of evaluating
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. No other party is acting as a fiduciary
or an adviser to it in respect of that Transaction (other
than, in the case of Party B, the Global Trust Manager).
(h) TRUST. By Party B, in respect of Party B only:
(i) TRUST VALIDLY CREATED. The Trust has been validly created
and is in existence at the date of this Agreement.
(ii) SOLE TRUSTEE. It has been validly appointed as trustee of
the Trust and is presently the sole trustee of the Trust.
<PAGE>
(iii) NO PROCEEDINGS TO REMOVE. No notice has been given to it
and to its knowledge no resolution has been passed, or
direction or notice has been given, removing it as
trustee of the Trust.
(iv) POWER. It has power to enter into this Agreement and the
Credit Support Documents in its capacity as trustee of
the Trust.
(v) GOOD TITLE. It is the legal owner of, or has equitable
title to (as applicable), the Assets of the Trust and has
power to transfer them in the manner provided in the
Credit Support Documents in relation to Party B and,
subject only to the Credit Support Documents in relation
to Party B and any Security Interest permitted under the
Credit Support Documents in relation to Party B, those
Assets are free of all other Security Interests (except
for Party B's right of indemnity out of the Assets of the
Trust)."
(3) EVENT OF DEFAULT: In Section 5(a), delete paragraph (i) and replace it with
the following:
"(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
(1) where the failure is by Party B, 10.00am on the tenth Business
Day after notice of such failure is given to Party B;" and
(2) where the failure is by Party A, 10.00am on the tenth Business
Day after notice of such failure is given to Party A;".
(4) AMENDMENT TO SECTION 6
Add a new Section 6(aa):
"(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. Party B may only designate an Early Termination Date
at the direction of the Global Trust Manager. Subject to its
duties under the Master Trust Deed and the Supplemental Deed,
Party B may exercise any rights in its capacity as holder of
the Assets of the Trust only on the instructions of the Global
Trust Manager and only after consultation between Party A,
Party B, the Global Trust Manager and the Note Trustee.
(ii) CONSULTATION REGARDING TIMING: Party A and Party B agree that
prior to designating an Early Termination Date they will
attempt to consult with the other as to the timing of the
Early Termination Date.
(iii) PARTY A'S LIMITED RIGHTS IN RELATION TO TAX EVENT:
Notwithstanding Part 5(22) of this Schedule, Party A may
designate an Early Termination Date if it is an Affected Party
following a Tax Event but only if the Note Trustee has
confirmed that it is satisfied that the Class A Noteholders
will be paid in full all principal and interest outstanding on
the Class A Notes.
<PAGE>
(iv) ILLEGALITY: The parties agree that imposition by any
Governmental Agency of an Australian jurisdiction of any
exchange controls, restrictions or prohibitions will not
constitute an Illegality for the purposes of Section 5(b)(i)
or Section 5(c) and Party A will not be entitled to designate
an Early Termination Date.
(v) TRANSFER WHERE PARTY B DOES NOT GROSS-UP: If any payment by
Party B to Party A under this Agreement is, or is likely to be,
made subject to any deduction or withholding on account of Tax,
Party B will endeavour to procure the substitution as principal
obligor under this Agreement in respect of each Affected
Transaction of a replacement Party B incorporated in another
jurisdiction approved by Party A and the Note Trustee and in
respect of which the Current Rating Agencies confirm that the
substitution will not cause a reduction or withdrawal of the
rating of the Class A Notes.
(d) TRANSFERS TO AVOID TERMINATION: Section 6(b)(ii) is amended as
follows:
(i) The following sentence is added at the end of the second
paragraph:
"However, if Party A is that other party it must, if so
requested by the Global Trust Manager, use reasonable efforts
(which will not require Party A to incur a loss, excluding
immaterial, incidental expenses) to make such a transfer to an
Affiliate provided the Current Rating Agencies have given prior
written confirmation to the Global Trust Manager that such a
transfer will not result in an Adverse Rating Effect."
(ii) The third paragraph is deleted and replaced with the following:
"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:
(1) where the other party is Party A, if Party A's policies in
effect at such time would permit it to enter into
transactions with the transferee on the terms proposed; or
(2) where the other party is Party B, if the Current Rating
Agencies have confirmed in writing that such transfer will
not result in an Adverse Rating Effect.
(e) NOTICE OF EVENT OF DEFAULT: For the purposes of Section 6(a) and (b),
each of Party A and Party B may only provide a notice specifying an
Event of Default with respect to the other as the Defaulting Party and
may only designate an Early Termination Date following a Termination
Event where either Party A or Party B (or both) is the Affected Party
or the Burdened Party.
(6) REPLACEMENT CURRENCY SWAP AGREEMENT:
(a) If any Transaction under this Agreement which is a currency swap is
terminated prior to the day upon which the Class A Notes are redeemed
in full, Party B may, at the direction of the Global Trust Manager,
enter into one or more currency
<PAGE>
swaps which replace that Transaction (collectively a "REPLACEMENT
CURRENCY SWAP") provided that:
(i) the Current Rating Agencies confirm in writing that the entry
into the Replacement Currency Swap by Party B does not result in
an Adverse Rating Effect; and
(ii) the liability of Party B under the Replacement Currency Swap is
limited to the satisfaction of Party B and, in any case, to at
least the same extent that its liability is limited under that
Transaction.
(b) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and the amount calculated to be payable under Section
6(e) ("TOTAL SETTLEMENT AMOUNT") is payable by Party B to Party A upon
termination of the Transaction referred to in Part 5(6)(a), Party B
must direct the Replacement Currency Swap provider to pay any upfront
premium to enter into the Replacement Currency Swap due to Party B
directly to Party A in satisfaction of and to the extent of Party B's
obligation to pay the Total Settlement Amount to Party A, and to the
extent such premium is not greater than or equal to the Total
Settlement Amount, the balance may be satisfied by Party B as an
Expense of the Trust.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Total Settlement Amount is payable by Party A to
Party B upon termination of the Transaction referred to in Part
5(6)(a), Party B may direct Party A to pay that amount to the
Replacement Currency Swap provider in satisfaction of or towards and
to the extent of Party B's obligation (if any) to pay an upfront
premium to the Replacement Currency Swap provider to enter into the
Replacement Currency Swap.
(d) The rights and obligations of Party A and Party B under this Part 5(6)
will survive the termination of this Agreement.
(7) Insert the following Sections 15 and 16 after Section 14:
"15 GUARANTEE BY SUPPORT PROVIDER
(a) In consideration of Party B entering into the Other Agreement (as
defined in Section 16(f)) and Transactions under the Other Agreement
with the Support Provider on the same material economic terms as
Transactions under this Agreement, the Support Provider
unconditionally guarantees to Party B the payment by Party A of moneys
which are payable by Party A under a Transaction (on terms set out in
this Agreement and in the Confirmation for that Transaction) ("PAYABLE
MONEYS") to Party B in the event that Party A defaults in the payment
of those Payable Moneys.
(b) If Party B has not been, or Party A reasonably expects that Party B is
not going to be, paid all or any part of the presently Payable Moneys
by Party A, then Party A or Party B may by notice to the Support
Provider demand payment of the Payable Moneys in respect of which
demand is being made. The Support Provider agrees to make payments of
the relevant Payable Moneys within 3 Business Days of such a demand.
The Support Provider's obligations to pay those Payable Moneys
<PAGE>
which have not been paid by Party A are not conditional on the
Support Provider receiving such notice of demand.
(c) The Support Provider agrees that it will not, until all the present
and prospective Payable Moneys have been paid, exercise any rights of
subrogation which it may acquire due to its payment of Payable Moneys
under Section 15(a).
(d) All payments by the Support Provider shall be made in the currency in
which the Payable Moneys are denominated.
(e) Party B agrees that, without affecting its rights under Section 16, to
the extent that the Support Provider pays the Payable Moneys, and
thereby avoids or remedies a default by Party A, Party B shall not be
entitled to designate an Early Termination Date in respect of that
default by Party A, and such a payment by the Support Provider shall
be deemed to be an "actual payment" as referred to in line 6 of
Section 2(e) of this Agreement.
(f) The provisions of this Section 15 shall constitute irrevocable
obligations of the Support Provider until a notice of revocation is
served by the Support Provider on Party B, but such a notice cannot
and shall not be served without the prior written consent of Party A,
Party B and the Global Trust Manager in consultation with the Current
Rating Agencies.
16 SUPPORT PROVIDER TRANSACTIONS
(a) If a Credit Event has occurred in respect of Party A then the Support
Provider may give a Substitution Notice to Party B and to the Global
Trust Manager specifying a Transaction which shall be substituted
under this Section 16 (a "REPLACED TRANSACTION").
(b) If the Support Provider gives a Substitution Notice under Section
16(a), then either:
(i) a Substitute Transaction shall become effective; or
(ii) both:
(A) Party B, the Support Provider and the Global Trust Manager
must enter into an Equivalent Transaction with a
counterparty which has a Prescribed Joint Rating and which
is procured by the Support Provider and the Note Trustee
(the "NEW CURRENCY SWAP PROVIDER"); and
(B) an Equivalent-Other Transaction shall become effective. The
New Currency Swap Provider, Party B, the Support Provider
and the Global Trust Manager must execute a Confirmation
setting out the terms of the Equivalent-Other Transaction,
provided that in each case the Current Rating Agencies confirm that
the relevant actions will not cause a reduction or withdrawal of the
rating of the Class A Notes.
For the avoidance of doubt, if the Substitution Notice specifies that
either the Transaction under paragraph (b)(i) or the Transactions
under paragraphs (b)(ii)(A)
<PAGE>
and (B) shall become effective as alternatives, and if a counterparty
with a Prescribed Joint Rating is not procured by the Support
Provider and the Note Trustee under paragraph (b)(ii)(A), the
Substitute Transaction must become effective in accordance with
paragraph (b)(i).
(c) On the date on which the Substitute Transaction or an Equivalent
Transaction and an Equivalent-Other Transaction become effective in
accordance with a Substitution Notice under either paragraph (b)(i) or
(b)(ii):
(i) the Replaced Transaction shall terminate; and
(ii) the Other Transaction shall terminate.
(d) Subject to (e), no Settlement Amount, Unpaid Amounts or other amount
under Section 6 or Section 11 shall be payable by, or to, Party B (as
the case may be) upon the termination of these transactions.
(e) The parties acknowledge that on the Effective Date of the Substitute
Transaction or the Equivalent Transaction, Party A shall pay to the
Support Provider (in the case of the Substitute Transaction) or to the
New Currency Swap Provider (in the case of the Equivalent Transaction)
the amount equal to the amount (if a positive number) that
hypothetically would have been payable by Party A to Party B under
Section 6(e)(i)(3) if:
(i) the Replaced Transaction had been terminated (and it was the
only Terminated Transaction);
(ii) Party A was the Defaulting Party;
(ii) an Early Termination Date had occurred on the Effective Date;
and
(iii) this Section 16 had not applied in respect of the Replaced
Transaction.
Any such amount shall be payable by Party A to, as the case may
be, either the Support Provider in accordance with the terms
agreed between them (in the case of the Substitute Transaction),
or the New Currency Swap Provider in accordance with the terms
agreed between Party A and the New Currency Swap Provider (in the
case of the Equivalent Transaction).
(f) DEFINITIONS. For the purposes of Section 16:
"CREDIT EVENT" means, in relation to Party A, the occurrence at any
time of any of the following events with respect to Party A:
(i) failure by Party A to make, when due, any payment under the
Replaced Transaction required to be made by it if such failure
is not remedied on or before the tenth Business Day after notice
of such failure is given to Party A;
(ii) the occurrence with respect to Party A (and not Party A's Credit
Support Provider) of an event specified in Section 5(a)(vii)(1)
to (9) inclusive;
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(iii) the occurrence with respect to Party A (and not Party A's
Credit Support Provider) of an event specified in Section
5(a)(viii);
(iv) the occurrence with respect to Party A of an event specified in
Section 5(b)(i)(1);
(v) on any day on which a failure by Party A under paragraph (i) is
subsisting:
(A) the Market Value of a floating rate Reference Obligation is
below the Initial Price of such by more than the Price
Decline Requirement;
(B) the sum of the Market Value of a fixed rate Reference
Obligation and the Interest Rate Adjustment Amount of such
is below the Initial Price of such by more than the Price
Decline Requirement; or
(C) Party A fails to transfer collateral in accordance with this
Agreement if such failure is not remedied on or before the
second local Business Day after notice of such failure is
given to Party A.
For the purposes of this paragraph (v), "Market Value",
"Reference Obligation", "Initial Price", "Price Decline
Requirement" and "Interest Rate Adjustment Amount" shall
have the meanings given in the Confirmation for the Replaced
Transaction; or
(vi) the occurrence of:
(A) a default, event of default or other similar condition or
event (however described) in respect of Party A under an
agreement or instrument relating to Specified Indebtedness
of Party A in an aggregate amount of not less than the
applicable Threshold Amount which has resulted in the
Specified Indebtedness becoming due and payable under such
agreement or instrument before it would otherwise have been
due and payable; or
(B) a default by Party A in making one or more payments on the
due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under an agreement or instrument
relating to Specified Indebtedness of Party A (after giving
effect to any applicable notice requirement or grace
period).
For the purposes of this paragraph (vi), "Specified
Indebtedness" and "Threshold Amount" shall have the meanings
given in the Confirmation for the Replaced Transaction.
"EQUIVALENT TRANSACTION" means a Transaction governed by a new
agreement on the same material terms as this Agreement and on the same
material economic terms as the Replaced Transaction, and with the same
"Trade Date" as the Replaced Transaction, except that:
(i) the New Currency Swap Provider is designated as "Party A";
<PAGE>
(ii) the Support Provider is designated as the new "Support
Provider" in relation to Party A;
(iii) the "Effective Date" is the same date as that specified in the
Substitution Notice as the Effective Date for the
Equivalent-Other Transaction; and
(iv) no "Party A Initial Exchange Amount" or "Party B Initial
Exchange Amount" are payable under the Transaction.
"EQUIVALENT-OTHER TRANSACTION" means a Transaction governed by the
Other Agreement and on the same material economic terms as the Other
Transaction and with the same Trade Date as the Replaced Transaction,
except that:
(i) the Support Provider is designated as the new "Party A";
(ii) the New Currency Swap Provider is designated as the new
"Support Provider" in relation to Party A;
(iii) the "Effective Date" is as specified in the relevant
Substitution Notice; and
(iv) no "Party A Initial Exchange Amount" or "Party B Initial
Exchange Amount" are payable under the Transaction.
"NEW CURRENCY SWAP PROVIDER" has the meaning given in Section 16
(b)(ii)(A).
"OTHER AGREEMENT" means the ISDA Master Agreement and Schedule
substantially on the same material terms as this Agreement between the
Support Provider, Party B, the Global Trust Manager and Party A.
"OTHER TRANSACTION" means the Transaction governed by the Other
Agreement and on the same economic terms as the Replaced Transaction,
with the same Trade Date as the Replaced Transaction, and as specified
as such in the relevant Substitution Notice.
"REPLACED TRANSACTION" means the Transaction governed by this
Agreement, and specified as such in the relevant Substitution Notice,
as referred to in Section 16(a);
"SUBSTITUTE TRANSACTION" means a Transaction governed by the Other
Agreement, and on the same economic terms as the Other Transaction and
with the same Trade Date as the Replaced Transaction, except that:
(i) no party is designated as a "Support Provider";
(ii) the "Effective Date" is as specified in the relevant
Substitution Notice;
(iii) the "Calculation Amounts" applicable to the Floating Amounts
payable by the respective parties under the Transaction are the
same as the "Calculation Amounts" applicable to the Floating
Amounts payable by the respective parties under the Replaced
Transaction except that the references to "50%" are substituted
by references to "100%";
<PAGE>
(iv) no "Party A Initial Exchange Amount" or "Party B Initial
Exchange Amount" are payable under the Transaction; and
(v) Sections 15 and 16 do not apply.
"SUBSTITUTION NOTICE" means an irrevocable notice in writing from the
Support Provider to Party B and the Global Trust Manager, which may be
delivered between 9.00 am and 4.00 pm in Sydney on a Business Day in
accordance with section 12, and which:
(i) describes the occurrence of a Credit Event;
(ii) specifies the "Effective Date" for an Equivalent-Other
Transaction or for a Substitute Transaction (or for either
Transactions under Section 16(b)(i) or 16(b)(ii), as
alternatives) and, if an Equivalent-Other Transaction is
specified, the proposed New Currency Swap Provider and the terms
of the Equivalent Transaction (by attaching a proposed
Confirmation for the Equivalent Transaction); and
(iii) confirms that the Termination Date for the Replaced Transaction
and the Other Transaction shall be the Effective Date for the
Transactions in either Section 16(b)(i), or 16(b)(ii)(A) and
(B), as the case may be.
(f) Section 16 and any related provision in a Confirmation (the
"Substitution Provisions") shall not amend, or effect the operation
of, any other provision in this Agreement, except to the extent, if
any, expressly provided by the Substitution Provisions."
(68 PAYMENT OF A$ AMOUNTS BY PARTY B
Party A acknowledges that:
(a) it assumes the risk that any Government Agency of an Australian
jurisdiction may impose exchange controls, restrictions or
prohibitions making it unlawful or requiring that consent be obtained
(for any reason) in order for Party B to make payments under this
Agreement to Party A in A$ outside Australia or to an account situated
outside Australia; and
(b) if and for so long as any Government Agency of an Australian
jurisdiction does impose any controls, restrictions or prohibitions
referred to in paragraph (a), then to the extent that Party B makes
payments to Party A in A$ in Australia or to an account held by or on
behalf of Party A in Australia:
(i) Party B's obligation to make those payments to Party A will be
taken to be satisfied; and
(ii) Party A's obligations will be unaffected.
(9) FACSIMILE TRANSMISSION: In Section 12:
(a) Replace Section 12(a)(iii) with:
<PAGE>
"(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 Business Day of the facsimile being sent that
the facsimile was not received in its entirety in legible
form;"
(b) Insert a new paragraph (vi) in Section 12(a) immediately after Section
12(a)(v) as follows:
"(vi) if sent by ordinary mail, on the third (seventh, if posted to or
from a place outside Australia) day after posting."
(10) DEFINITIONS
In this Agreement, unless the contrary intention appears:
(a) DEFINITIONS SCHEDULE AND SUPPLEMENTAL DEED: unless defined in this
Agreement words and phrases defined in the Definitions Schedule and
the Supplemental Deed have the same meaning in this Agreement. Where
there is any inconsistency in a definition between this Agreement (on
the one hand) and the Definitions Schedule or the Supplemental Deed
(on the other hand), this Agreement prevails. Where there is any
inconsistency in a definition between the Definitions Schedule and the
Supplemental Deed, the Supplemental Deed prevails over the Definitions
Schedule in respect of the Trust. Where words or phrases used but not
defined in this Agreement are defined in the Definitions Schedule in
relation to a Trust (as defined in the Definitions Schedule) such
words or phrases are to be construed in this Agreement, where
necessary, as being used only in relation to the Trust (as defined in
the Supplemental Deed);
(b) INTERPRETATION: references to time are references to Melbourne time,
unless stated otherwise;
(c) TRUSTEE CAPACITY:
(i) a reference to Party B is a reference to Party B in its capacity
as trustee of the Trust only, and in no other capacity; and
(ii) a reference to the undertaking, assets, business, money or other
thing of or in relation to Party B is a reference to the
undertaking, assets, business, money or other thing of or in
relation toParty B in the capacity referred to in paragraph (i)
only;
(d) DEFINITIONS: in Section 14:
(i) replace the definitions of "AFFECTED TRANSACTIONS" and "LOCAL
BUSINESS DAY" with the following:
""AFFECTED TRANSACTIONS" means, with respect to a Termination
Event, all Transactions."
"LOCAL BUSINESS DAY" has the same meaning as "BUSINESS DAY"."
<PAGE>
(ii) insert the following new definitions:
"DEFINITIONS SCHEDULE" means the deed entitled "HomeSide
Mortgage Securities Trusts Definitions Schedule" dated on or
about the date of this Agreement between the parties listed
in schedule 1 to that deed.
"PRESCRIBED RATING" means a credit rating of A-1+ (short term) by
S&P, P-1 (short term) and A2 (long term) by Moody's and AA- (long
term) by Fitch.
"PRESCRIBED JOINT RATING" means, in respect of a person, a
sufficient credit rating so that the jointly supported credit
rating that can be assigned to senior debt jointly supported by
the person and the Support Provider:
(a) by S&P is A-1+ (short term);
(b) Moody's is at least P-1 (short term) and A2 (long term); and
(c) Fitch, is at least AA- (long term),
in accordance with S&P, Moody's and Fitch's respective approaches
to jointly supported obligations.
"SUPPLEMENTAL DEED" means the HomeSide Mortgage Securities Trust
2001-1 Supplemental Deed dated on or about the date of this
Agreement between Party A, the Global Trust Manager, Party B and
certain other parties.
"TRUST" means the HomeSide Mortgage Securities Trust 2001-1
constituted by the Master Trust Deed and a Notice of Creation of
Trust.
(e) ISDA DEFINITIONS: The 1991 ISDA Definitions (as supplemented by the
1998 Supplement to the 1991 ISDA Definitions) (each as published by
the International Swaps and Derivatives Association, Inc) (the "1991
ISDA DEFINITIONS") as at the date of this Agreement are incorporated
into this Agreement and each Confirmation.
(f) INCONSISTENCY: Unless specified otherwise, in the event of any
inconsistency between any two or more of the following documents in
respect of a Transaction they will take precedence over each other in
the following order in respect of that Transaction:
(i) any Confirmation;
(ii) this Agreement;
(iii) the Supplemental Deed;
(iv) the Definitions Schedule; and
(v) the 1991 ISDA Definitions.
<PAGE>
(g) SWAP TRANSACTION: Any reference to a:
(i) "SWAP TRANSACTION" in the 1991 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 purpose of
interpreting the 1991 ISDA Definitions.
(h) INCORPORATED DEFINITIONS AND OTHER TRANSACTION DOCUMENTS AND
PROVISIONS: Where in this Agreement a word or expression is defined by
reference to its meaning in 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 or provision( as the
case mey be) will be of no effect for the purposes of this Agreement
unless and until the amendment is consented to by the parties to this
Agreement.
(i) CLAUSE 14 OF SUPPLEMENTAL DEED: Party B agrees that it will not
consent to an amendment of Clause 14 of the Supplemental Deed without
the prior consent of Party A.
(11) LIMITATION OF LIABILITY: Insert the following Section 17, after Section 16:
"17. PARTY B'S LIMITATION OF LIABILITY
Clause 2 of the Definitions Schedule is deemed to be included in full
in this Agreement with any consequential changes necessary to give
effect to that clause.
(12) SEND INFORMATION: Insert the following new Section 18 after Section 17:
"18 SEND INFORMATION
On each Determination Date the Global Trust Manager will send to each
Current Rating Agency such information in the possession of the Global
Trust Manager as each Current Rating Agency reasonably requires in
relation to the Currency Swap, and any other matters in connection
with this Agreement."
(13) FURTHER ASSURANCES: Each party will, 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 (and, in the
case of Party B, are within the powers granted to Party B under the Master
Trust Deed) 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.
(14) DERIVATIVE CONTRACT: The parties acknowledge and agree that for the
purposes of the Transaction Documents this Agreement is a Derivative
Contract.
<PAGE>
(15) PROCEDURES FOR ENTERING INTO TRANSACTIONS
(a) With respect to each Transaction entered into pursuant to this
Agreement and for the purposes of Section 9(e)(ii), Party A will, by
or promptly after the relevant Trade Date, send Party B, the Global
Trust Manager and the Support Provider a Confirmation substantially in
the form set out in Annexure 1 (or in such other form as may be agreed
between Party A, Party B, the Global Trust Manager and the Support
Provider), and Party B, the Global Trust Manager and the Support
Provider must promptly then confirm the accuracy of and sign and
return, or request the correction of, such Confirmation.
(b) Party B will enter into each Transaction in its capacity as trustee of
the Trust.
(16) AUTHORISED PERSON: Each party will be entitled to assume, in the absence of
any knowledge to the contrary, that any person signing any Confirmation,
notice or other written communication issued in respect of this Agreement
on behalf of a party is an Authorised Person of that party.
(17) RECORDED CONVERSATIONS: Each party:
(a) consents to the electronic recording of its telephone conversations
with another party (or any of its associated persons) with or without
the use of an automatic tone warning device;
(b) will provide transcripts of such recordings (if any) upon reasonable
request by another party (at the reasonable cost of the party
requesting);
(c) acknowledges that such recordings and transcripts can be used as
evidence by another party in any dispute between them; and
(d) acknowledges that no party is obligated to maintain copies of such
recordings and transcripts for the benefit of another party.
(18) KNOWLEDGE OR AWARENESS: Subject to Section 12(a), each party will only be
considered to have knowledge or awareness of, or notice of, a thing or
grounds to believe anything by virtue of the officers of that party or any
Related Entity of that party which have the day to day responsibility for
the administration or management of that party's (or a Related Entity of
that party's) obligations in relation to the Trust or the Transactions
entered into under this Agreement 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).
(19) AMENDMENTS TO THIS AGREEMENT: The Global Trust Manager must give 10
Business Days' notice in writing to each Current Rating Agency of any
amendments to this Agreement.
(20) GLOBAL TRUST MANAGER'S UNDERTAKING: The Global Trust Manager, Party A and
Party B undertake to comply with their respective obligations under the
Supplemental Deed and the other Transaction Documents for the Trust. For
the avoidance of doubt, the parties acknowledge and agree that the failure
by Party B, the Global Trust Manager or Party A to comply with this
undertaking will not give rise to an Event of Default under this Agreement.
<PAGE>
(21) APPOINTMENT OF GLOBAL TRUST MANAGER: Party A acknowledges that, under the
Master Trust Deed, Party B has appointed the Global Trust Manager as Global
Trust Manager of the Trust, with the powers set out in, and upon and
subject to the terms of the Master Trust Deed.
Notwithstanding any other provision of this Agreement, the Global Trust
Manager is not liable:
(i) in connection with anything done by it in good faith and without
negligence in reliance upon any document, form or list except where
it is actually aware that the document, form or list is not genuine;
or
(ii) if it fails to do anything because it is prevented or hindered from
doing it by law or order; or
(iii) to anyone for payments made by it in good faith to a fiscal authority
in connection with Taxes (including Taxes assessed on the income of
the Trust) or other charges in respect of a Trust even if the payment
need not have been made; or
(iv) if a person fails to carry out an agreement with the Global Trust
Manager in connection with the Trust; or
(v) to anyone because of any error of law or any matter done or omitted
to be done by it in good faith in the event of the liquidation or
dissolution of a company (other than a company under its control),
except to the extent that any of the foregoing is caused by the Global
Trust Manager's own gross negligence, fraud or wilful default.
Other than as expressly provided for in this Agreement, the Global Trust
Manager personally is not a "party" (as that term is used in Section
2(a)(i) of the Master Agreement) under the Agreement for the purposes of
determining the obligations, representations and undertakings of each
"party" to it.
(22) APPOINTMENT OF ATTORNEY BY PARTY B. Party B hereby exclusively appoints the
Global Trust Manager as its attorney to act on Party B's behalf and
exercise all rights and powers of Party B with respect to this Agreement.
Without limiting the generality of the foregoing, the Global Trust Manager
may issue and receive on behalf of Party B all notices, certificates and
other communications to or by Party A, under this Agreement until such time
as Party B serves written notice on Party A of the revocation of the Global
Trust Manager's authority to act on behalf of Party B in accordance with
this Part 5(20) of the Schedule.
(23) DEDUCTION OR WITHHOLDING FOR TAX. Section 2 of this Agreement is amended as
follows:
(i) In Section 2(d)(ii)(1) the following words are deleted where they
appear:
"in respect of which X would not be required to pay an
additional amount to Y under section 2(d)(i)(4)".
(ii) Section 2(d)(i)(4) is deleted in its entirety.
<PAGE>
(24) EVENTS OF DEFAULT AND TERMINATION EVENTS.
(i) The following provisions of Section 5 will not apply to either Party A
or Party B:
Section 5(a)(ii)
Section 5(a)(iii)
Section 5(a)(iv)
Section 5(a)(v)
Section 5(a)(vi)
Section 5(b)(iii)
Section 5(b)(iv)
(25) TRANSFER. A new paragraph (c) is added to Section 7 as follows:
"a party may make such a transfer under, or in accordance with, this
Agreement or the Master Security Trust Deed."
and replace the "." at the end of Section 7(b) with "; and".
(26) RATING DOWNGRADE
(i) MOODY'S AND FITCH: If, during the term of any Class A Notes rated
Aaa/AAA (Moody's/Fitch) issued by Party B:
(A) there is a Support Provider providing credit support obligations
and the highest possible jointly supported credit rating that can
be assigned to senior debt jointly supported by Party A and the
Support Provider by Moody's or Fitch in accordance with Moody's
and Fitch's respective approaches to jointly supported
obligations is lower than the relevant Prescribed Joint Rating;
or
(B) there is no Support Provider providing any credit support
obligations and the credit rating assigned to Party A's senior
debt is lower than the relevant Prescribed Rating ,
and such downgrade would except for this clause adversely affect the
rating of the Class A Notes, then Party A must on request by the
Global Trust Manager lodge sufficient cash or other collateral (if
any) as may be necessary to maintain the credit rating of those Class
A Notes at the rating that was applicable to those Class A Notes
immediately prior to the downgrade.
This collateral must be lodged with an Eligible Bank and any interest
earned on it is payable to Party A. If Party A is an eligible entity
as at the date of lodgement, the collateral must be lodged with Party
A (in an account in the name of Party B) and remain with Party A for
so long as it continues to be an eligible entity.
If collateral is lodged under this paragraph the parties must execute
an amending agreement incorporating into this Agreement the 1995 ISDA
Credit Support Annex (Bilateral Form - Transfer), and until executed
the 1995 ISDA Credit Support Annex will be taken to supplement and
form part of this Agreement, and any collateral lodged under this
paragraph is subject to its terms, as if the Credit Support Annex were
incorporated into this Agreement (but without any Paragraph
<PAGE>
11 other than as necessary to give effect to the obligations described
in this Part 5(24)(i)) prior to the lodgement of any such collateral.
(ii) S&P: If, during the term of any Class A Notes rated AAA (S&P) issued
by Party B:
(A) there is a Support Provider providing credit support obligations
and the highest possible jointly supported credit rating that can
be assigned to senior debt jointly supported by Party A and the
Support Provider by S&P in accordance with S&P's approach to
jointly supported obligations is lower than the relevant
Prescribed Joint Rating; or
(B) there is no Support Provider providing any credit support
obligations and the credit rating assigned to Party A's senior
debt is lower than relevant the Prescribed Rating,
and such downgrade would except for this clause adversely affect the
rating of the Class A Notes, then Party A must on request by the
Global Trust Manager either (at the Global Trust Manager's option):
(C) lodge sufficient cash or other collateral (if any) as may be
necessary to maintain the credit rating of those Class A Notes at
the rating that was applicable to those Class A Notes immediately
prior to the downgrade.
This collateral must be lodged with an Eligible Bank and any
interest earned on it is payable to Party A. Party A will pay any
costs associated with lodgement of the collateral.
If collateral is lodged under this paragraph the parties must
execute an amending agreement incorporating into this Agreement
the 1995 ISDA Credit Support Annex (Bilateral Form - Transfer),
and until executed the 1995 ISDA Credit Support Annex will be
taken to supplement and form part of this Agreement, and any
collateral lodged under this paragraph is subject to its terms,
as if the Credit Support Annex were incorporated into this
Agreement (but without any Paragraph 11 other than as
necessary to give effect to the obligations described in this
Part 5(24)(ii)(A)) prior to the lodgement of any such collateral;
or
(D) arrange, at Party A's cost, for a standby guarantee of Party A's
obligations under this Agreement to be provided by a third party
acceptable to the Global Trust Manager and with a sufficient long
term credit rating by S&P as will, under S&P's "joint
probabilistic approach", maintain the credit rating of those
Class A Notes by S&P at the rating that was applicable to those
Class A Notes immediately prior to the downgrade.
(iii) For valuable consideration which is hereby acknowledged by the
Support Provider as having been received, the Support Provider hereby
unconditionally guarantees the obligations of Party A to lodge
collateral under this paragraph. The Support Provider will lodge any
such collateral on the terms agreed between it and Party B.
<PAGE>
(26) CURRENCY SWAP TRANSACTION. The parties acknowledge that, unless they
otherwise agree, the only Transactions which are to be governed by this
Master Agreement are:
(a) the currency swap which is confirmed by a Confrimation substantially
in the form of Annexure 1; and
(b) any Transaction entered into in accordance with Section 16 of this
Agreement or Section 16 of the "Other Agreement" (as defined in
Section 16 of this Agreement).
<PAGE>
ANNEXURE 1
FORM OF CONFIRMATION FOR CURRENCY SWAP
- HOMESIDE MORTGAGE SECURITIES TRUST 2001-1 ("TRUST")
[PARTY A LETTERHEAD]
[DATE]
TO: Perpetual Trustee Company Limited HomeSide Global MBS Manager, Inc.
Level 3, 39 Hunter Street 7301 Baymeadows Way
SYDNEY NSW 2000 Jacksonville, Florida
AUSTRALIA UNITED STATES OF AMERICA[#]
ATTENTION: Manager, Securitisation ATTENTION: Robert Jacobs
SWAP CONFIRMATION - CURRENCY SWAP
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below
("TRANSACTION"). This letter constitutes a "CONFIRMATION" as referred to in the
Master Agreement specified below.
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented from time
to time ("AGREEMENT"), between [ ] (ABN [ ]) ("PARTY A"), [ ] (ABN [ ])
("SUPPORT PROVIDER"), Perpetual Trustee Company Limited, (ABN 42 000 001 007) as
trustee of the Trust ("PARTY B") and HomeSide Global MBS Manager, Inc. ("GLOBAL
TRUST MANAGER"). All provisions contained in the Agreement govern this
Confirmation except as expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
OUR REFERENCE: [ ]
TRADE DATE: [ ]
EFFECTIVE DATE: [ ]
TERMINATION DATE: Means the earlier of:
(a) the date that all the
Class A Notes have been
redeemed in full;
(b) the Termination Date for
the Trust; and
(c) specify final maturity
date of Class A Notes,
subject to the Modified Following
Business Day Convention.
<PAGE>
<TABLE>
<CAPTION>
US$ FLOATING AMOUNTS PAYABLE BY PARTY A:
<S> <C>
US$ Floating Rate Payer: Party A
US$ Floating Rate Payer Currency Amount: On each Payment Date 50% of the
aggregate Invested Amount of the
Class A Notes as at that Payment
Date (after taking into account
any reductions in the Invested
Amount of the Class A Notes on
that day).
US$ Floating Rate Payer Payment Dates: Each Payment Date
Floating Rate Option: USD - LIBOR - BBA (as defined in
the Class A Note Conditions)
Spread: For each US$ Floating Rate Payer
Payment Date before and including
the Payment Date in April 2008:
plus [ ]
For each US$ Floating Rate Payer
Payment Date after the Payment
Date in April 2008: plus [ ]
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Interest
Period.
A$ FLOATING AMOUNTS PAYABLE BY PARTY B:
A$ Floating Rate Payer: Party B
A$ Floating Rate Payer Currency Amount: On each Payment Date 50% of the
A$ Equivalent of the aggregate
Invested Amount of the Class A
Notes as at that Payment Date
(after taking into account any
reductions in the Invested Amount
of the Class A Notes on that day).
A$ Floating Rate Payer Payment Dates: Each Payment Date
Floating Rate Option: Bank Bill Rate (as defined in the
Supplemental Deed)
Spread: For each A$ Floating Rate Payer
Payment Date before and including
the Payment Date in April 2008:
plus [ ]
For each A$ Floating Rate Payer
Payment Date after the Payment
Date in April 2008: plus [ ]
Floating Rate Day Count Fraction: Actual/365 (Fixed)
<PAGE>
Reset Dates: The first day of each Interest
Period.
EXCHANGES
INITIAL EXCHANGE:
Initial Exchange Date: Effective Date
Party A Initial Exchange Amount: The A$ Equivalent of the Party B
Initial Exchange Amount, being
A$[ ].
Party B Initial Exchange Amount: 50% of the aggregate Initial Invested
Amount of the Class A Notes on the
Issue Date, being US$[500,000,000].
Notwithstanding Section 2(a)(ii) of
the Agreement, Party A must pay the
Party A Initial Exchange Amount to
Party B by 4.00pm (Melbourne time)
on the Initial Exchange Date and
Party B must pay Party A the Party B
Initial Exchange Amount by 4.00pm
(New York time) on the Initial
Exchange Date.
INSTALMENT EXCHANGE:
Instalment Exchange Date: Each Payment Date (other than the
Final Exchange Date)
Party A Instalment Exchange Amount: In respect of an Instalment Exchange
Date means the US$ Equivalent of the
Party B Instalment Exchange Amount
in relation to that Instalment
Exchange Date.
Party B Instalment Exchange Amount: In respect of an Instalment Exchange
Date means 50% of the A$ Class A
Principal in relation to that
Instalment Exchange Date.
FINAL EXCHANGE:
Final Exchange Date: Termination Date.
Party A Final Exchange Amount: 50% of the aggregate Stated Amount
of the Class A Notes on the Final
Exchange Date (as specified in a
notice issued by Party B or the
Global Trust Manager to Party A
which shall be prima facie evidence
of the amount).
Party B Final Exchange Amount: The A$ Equivalent of 50% of the
aggregate of the Stated Amount of
the Class A Notes on the Final
Exchange Date (as specified in a
notice issued by Party B or the
Global Trust Manager to Party A
which shall be prima facie evidence
of the amount).
</TABLE>
EXCHANGE RATES:
<PAGE>
<TABLE>
<CAPTION>
For the purpose of the definitions of "A$ EQUIVALENT" and "US$ EQUIVALENT":
<S> <C>
US$ Exchange Rate: [ ]
A$ Exchange Rate: [ ]
BUSINESS DAY: New York, Melbourne and Sydney
BUSINESS DAY CONVENTION: Modified Following
CALCULATION AGENT: Party A
ACCOUNT DETAILS INSTRUCTION:
Account for payments to Party A: [Please advise]
Account for payments to Party B: [Please advise]
</TABLE>
SUPPORT PROVIDER PROVISIONS
This Transaction shall be capable of being specified as a Replaced Transaction
in accordance with Section 16 of the Agreement. Those provisions shall apply as
further specified below.
"CALCULATION AGENT" means the Support Provider or such other party designated as
such for the Transaction. The Calculation Agent's calculations and
determinations shall be made in good faith, in a commercially reasonable manner
and be binding in the absence of manifest error.
"INITIAL PRICE" means the Initial Price specified in respect to any Reference
Obligation.
"INITIAL SPREAD" means the Initial Spread specified in respect of the Reference
Obligation.
"INTEREST RATE ADJUSTMENT AMOUNT" means, with respect to the Reference
Obligation, the difference between (i) the Mark to Market Value and (ii) 100%
minus the Initial Price.
"MARK TO MARKET RATE" means the Mark to Market Rate specified in respect of the
Reference Obligation.
"MARK TO MARKET VALUE" means, in the determination of the Calculation Agent,
with respect to any Reference Obligation, on any day, the mark to market value
payable on that day (expressed as a percentage of the notional amount thereof)
of a hypothetical interest rate swap commencing on the Effective Date between a
hypothetical party ("PARTY X") and a counterparty with the highest long term
senior debt rating of each Rating Agency, which swap has a notional amount equal
to US$100,000,000 and under which Party X (i) receives the Mark to Market Rate
plus the Initial Spread and (ii) pays a fixed interest amount equal in amount
and timing to the coupons on the Reference Obligation (except a notional amount
of US$100,000,000 shall be applied). If, under such swap, Party X would be due
to pay such mark to market value, Mark to Market Value will be negative and, if
Party X would be due to receive such mark to market value, the Mark to Market
Value will be positive.
"MARKET VALUE" means, in accordance with the Quotation Method, the percentage
equal to the arithmetic mean of quotations (exclusive of accrued but unpaid
interest and expressed as a
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percentage) obtained from dealers with respect to a Valuation Date in the
manner provided below. In obtaining such price quotations from dealers, the
Calculation Agent will request each dealer to provide firm bid and offer
quotations for an aggregate amount of the Reference Obligation equal to the
Quotation Amount to the extent reasonably practicable as of the Valuation
Time on such Valuation Date. If more than three quotations are provided on
such date, the Market Value shall be the arithmetic mean of such quotations
without regard to the quotations having the highest and lowest values. If
exactly three quotations are provided, the Market Value shall 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 exactly two
quotations are provided, the Market Value shall be the arithmetic mean of
such quotations. If fewer than two quotations are provided, then the Market
Value shall be an amount as determined by the Calculation Agent on the next
Business Day on which at least two quotations are provided by dealers. If the
Calculation Agent is unable to calculate the Market Value prior to the fifth
Business Day following the applicable Valuation Date, then the Calculation
Agent shall determine the Market Value for such Valuation Date in its
reasonable discretion.
"PRICE DECLINE REQUIREMENT" means the product of [1.5]% [and the modified
duration] of the Reference Obligation at the time of calculation.
"QUOTATION AMOUNT" means the Quotation Amount specified in respect of the
Reference Obligation.
"QUOTATION METHOD" means that only the arithmetic mean of the bid and offer
quotations provided by dealers that have provided both bid and offer quotations
shall be used in the calculation of Market Value.
"REFERENCE OBLIGATION" means the obligation(s) as follows:
Issuer/Borrower: [ ]
Maturity: [ ]
Coupon: [ ]
CUSIP/ISIN [ ]
Original Issue Amount [ ]
Initial Price: [ ]
Initial Spread: [ ]
Mark to Market Rate: [ ]
Quotation Amount: [ ]
CHANGES WITH RESPECT TO ANY REFERENCE OBLIGATION. In the event that the
aggregate outstanding principal amount of any Reference Obligation has, in the
opinion of the Calculation Agent, been materially reduced by redemption or
otherwise (other than due to any regularly scheduled amortisation or
prepayments), then the Calculation Agent, after consultation with the parties,
shall identify a substitute obligation which ranks equal in priority of payment
with such Reference Obligation and is issued or guaranteed (as to both principal
and interest) by the same issuer and/or guarantor to replace the Reference
Obligation. Upon notice to the parties of a substitute obligation having been
identified by the Calculation Agent, such substitute obligation shall without
further action replace the Reference Obligation.
"SPECIFIED INDEBTEDNESS" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect of
money borrowed or raised or under any finance lease, redeemable preference
share, letter of credit, futures contract, guarantee,
<PAGE>
indemnity or a transaction of a type described in the last 6 lines of the
definition of Specified Transaction.
"THRESHOLD AMOUNT" means US$[AT LEAST 10 MILLION].
"VALUATION DAY" means the day in respect of which Market Value is required to be
calculated.
"VALUATION TIME" means 10.00am (New York time).
Please confirm that the above correctly sets out the terms of our agreement in
respect of the Transaction to which this Confirmation relates by signing and
returning it to us by facsimile today.
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<CAPTION>
Yours sincerely
SIGNED for and on behalf of PERPETUAL TRUSTEE COMPANY [SIGNED for and on behalf of NATIONAL AUSTRALIA
LIMITED (ABN 42 000 001 007) as trustee of the BANK LIMITED (ABN 12 004 044 937)]
HomeSide Mortgage Securities Trust 2001-1
<S> <C>
By: _______________________________ By: _______________________________
(Authorised Person) (Authorised Person)
Name: _____________________________ Name: _____________________________
Title: ____________________________ Title: ____________________________
SIGNED for and on behalf of HOMESIDE GLOBAL MBS SIGNED for and on behalf of DEUTSCHE BANK AG, NEW
MANAGER, INC. YORK BRANCH.
By: _______________________________ By: _______________________________
(Authorised Person) (Authorised Person)
Name: _____________________________ Name: _____________________________
<PAGE>
Title: ____________________________ Title: ____________________________
</TABLE>
<PAGE>
SIGNED for and on behalf of HOMESIDE GLOBAL MBS
MANAGER, INC.
By: _______________________________
(Authorised Officer)
Name: _____________________________
Title: ____________________________
<PAGE>
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<CAPTION>
<S> <C> <C>
SIGNED by )
as attorney for NATIONAL AUSTRALIA BANK LIMITED )
under power of attorney dated )
)
in the presence of: )
)
............................................... )
Signature of witness )
)
............................................... )
Name of witness (block letters) )
)
............................................... ) ...............................................
Address of witness ) By executing this agreement the attorney states
) that the attorney has received no notice of
............................................... ) revocation of the power of attorney
Occupation of witness )
SIGNED by )
as attorney for PERPETUAL TRUSTEE COMPANY LIMITED )
under power of attorney dated )
)
in the presence of: )
)
............................................... )
Signature of witness )
)
............................................... )
Name of witness (block letters) )
)
............................................... ) ...............................................
Address of witness ) By executing this agreement the attorney states
) that the attorney has received no notice of
............................................... ) revocation of the power of attorney
Occupation of witness )
<PAGE>
SIGNED by )
as attorney for HOMESIDE GLOBAL MBS MANAGER, INC. )
under power of attorney dated )
)
in the presence of: )
)
............................................... )
Signature of witness )
)
............................................... )
Name of witness (block letters) )
)
............................................... ) ...............................................
Address of witness ) By executing this agreement the attorney states
) that the attorney has received no notice of
............................................... ) revocation of the power of attorney
Occupation of witness )
SIGNED by )
as attorney for DEUTSCHE BANK AG NEW YORK BRANCH )
under power of attorney dated )
)
in the presence of: )
)
............................................... )
Signature of witness )
)
............................................... )
Name of witness (block letters) )
)
............................................... ) ...............................................
Address of witness ) By executing this agreement the attorney states
) that the attorney has received no notice of
............................................... ) revocation of the power of attorney
Occupation of witness )
</TABLE>
