Document ID: chunk:federal_register_of_legislation:C2023A00076:clause:2_38a:p2
Version: federal_register_of_legislation:C2023A00076
Segment Type: clause
Provision Reference: sch 2 cl 38A (pt 2/4)
Character Range: 277403–280074

the property of the agent:
 (i) rules governing the operation of an approved body;
 (ii) a law of the Commonwealth, a State, a Territory or a foreign country (including a part of a foreign country) that applies to dealings in the derivative; and
 (c) the agent is:
 (i) obliged; or
 (ii) but for a netting‑off, would be obliged;
  to transfer property to another entity in relation to the derivative if particular circumstances arise; and
 (d) the charge is given for the purposes of securing the performance of an obligation in relation to the derivative.

Charges over financial property
 (4) The charge complies with this subsection in relation to a derivative if:
 (a) the asset over which the charge is given is financial property; and
 (b) the charge secures any of the following obligations:
 (i) an obligation of the life company that relates to the derivative;
 (ii) an obligation of the life company to pay interest on an obligation covered by subparagraph (i) of this paragraph;
 (iii) an obligation of the life company to pay costs and expenses incurred in connection with enforcing a charge given in respect of an obligation covered by subparagraph (i) or (ii) of this paragraph; and
 (c) the financial property is transferred or otherwise dealt with so as to be in the possession or under the control of:
 (i) the secured person; or
 (ii) another person (who is not the life company), on behalf of the secured person, under the terms of an arrangement evidenced in writing.
 (5) For the purposes of paragraph (4)(c), and subject to subsection (7), financial property is taken not to be in the possession or under the control of a person mentioned in that paragraph if, under the charge mentioned in paragraph (4)(a), the life company is free to deal with the financial property in the ordinary course of business until the person's interest in the financial property becomes fixed and enforceable.
 (6) For the purposes of paragraph (4)(c), and subject to subsection (5), financial property is taken to be in the possession or under the control of a person if:
 (a) both:
 (i) there is an issuer of the financial property; and
 (ii) the person is registered by, or on behalf of, the issuer as the registered owner of the financial property; or
 (b) both:
 (i) the financial property is intermediated financial property in relation to an account; and
 (ii) the person is the person in whose name the intermediary maintains the account.
Note: For the account referred to in paragraph (b) of this subsection, see the definition of intermediated financial property in Schedule 1 to this Act and paragraph (h) of the definition of financial property in section 5