SCHEDULE
TO THE
ISDA MASTER AGREEMENT
DATED AS OF 2003
Between
BARCLAYS BANK PLC ("PARTY A")
AND
PERPETUAL TRUSTEES VICTORIA LIMITED (ABN 47 004 027 258) IN ITS CAPACITY AS
TRUSTEE OF THE INTERSTAR MILLENNIUM SERIES 2003-1G TRUST ("PARTY B")
AND
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED (ACN 100 346 898) (THE
"TRUST MANAGER")
PART 1
TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" is not applicable in relation to Party A or Party B.
(b) "SPECIFIED TRANSACTION" is not applicable.
(c) (i) (A) Sections 5(a)(ii), (iii), (iv), (v), (vi), 5(b)(ii),
(iii) and (iv) will not apply to Party B.
(B) Sections 5(a)(ii), (iii), (iv), (v), (vi), 5(b)(ii),
(iii) and (iv) will not apply to Party A.
(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, except that:
(A) no Event of Default shall result from Party B's
failure to pay an amount due under this Agreement
where Party B has sufficient funds with its bankers
(as certified by the Trust Manager on behalf of Party
B in a written notice to Party A immediately upon the
Trust Manager becoming aware of Party B's inability
to pay such due amount) with which the bank accounts
of the Trust are held and has given instructions to
those bankers to make that payment, and that payment
would have been made but for temporary technical or
administrative difficulties outside the control of
Party B (as certified by the Trust Manager on behalf
of Party B in a
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written notice to Party A within 10 Local Business
Days after the due date or immediately thereafter);
and
(B) in the event that sub-paragraph (A) applies,
Party A has no obligation to make a corresponding
payment under this Agreement until such time as it
actually receives funds from Party B;".
(d) Section 5(a)(vii) "BANKRUPTCY" is replaced with the following:
"An Insolvency Event has occurred in respect of Party A or Party B."
However, the occurrence of an Insolvency Event in respect of Party B in
its personal capacity will not constitute an Event of Default provided
that within thirty Business Days of that occurrence, Party B and the
Trust Manager are able to procure the novation of this Agreement and
all Transactions to a third party (who is notified to Party A) in
respect of which the Designated Rating Agencies confirm that the
novation will not cause a reduction or withdrawal of the rating of any
Notes.
(e) 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 Event of
Default or Termination Event 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) to the extent permitted by law, delivery by Party B of
Australian dollar amounts required to be paid by it under any
relevant Confirmation to the bank account specified in that
Confirmation will constitute proper payment of those amounts
by Party B and Party A's obligations under this Agreement will
be unaffected by any such exchange controls."
(f) For the purpose of Section 5(b)(v), "ADDITIONAL TERMINATION EVENT"
means each of the following:
(i) Party B or a Paying Agent becomes obliged to make a
withholding or deduction for or on account of Tax in respect
of any Notes or any payment to Party A under any Transaction
or an Obligor becomes obliged to make a withholding or
deduction for or on account of Tax in respect of any payout
under a Purchased Loan and the Notes are redeemed as a result
in accordance with clause 6.6(d) of the Series Notice (in
which case Party A is the Affected Party only for the purpose
of termination) (but for the purposes of Section 6(e)(ii)(1),
Party A will be the Non-defaulting Party);
(ii) Party A fails to comply with the requirements of Section 18
(in which case Party A is the Affected Party); and
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(iii) an Event of Default (as defined in the Security Trust Deed)
occurs and the Security Trustee enforces the security under
the Security Trust Deed (in which case Party B is the Affected
Party (unless the Event of Default results from a failure by
Party A to fulfil its obligations under this Agreement, in
which case Party A is the Affected Party)).
(g) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a):
will not apply to Party A.
will not apply to Party B.
(h) Section 6(a) is amended by replacing "20 days" in line 3 with "10 Local
Business Days".
(i) Add a new Section 6(aa) after Section 6(a):
"(aa) RESTRICTED TERMINATION RIGHTS
(i) TERMINATION BY PARTY B: Subject to
Part 5(s) of this Schedule, Party B
must not designate an Early
Termination Date without the prior
written consent of the Note
Trustee.
(ii) NOTIFICATION: Each Party may only
designate an Early Termination Date
following written notification to
the other Party as to the timing of
the Early Termination Date (which
must be a date not earlier than 2
Local Business Days after the
delivery of such notification) and,
in the case of Party B, after
consultation with the Note Trustee.
(iii) TRANSFER WHERE PARTY B DOES NOT
GROSS-UP: If any payment by Party B
to Party A under this Agreement is,
or is likely to be, made subject to
any deduction or withholding on
account of Tax, Party B will
endeavor to procure the
substitution as principal obligor
under this Agreement in respect of
each affected Transaction of a
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 any Notes."
(j) In Section 6(b)(ii), add the words "or to any other person" after the
word "Affiliates" in the second last line of the first paragraph and
add the words "so long as the transfer in respect of that Transaction
would not lead to a
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downgrade or withdrawal of the rating of any Notes" after the words
"ceases to exist" at the end of the first paragraph.
(k) 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.
(l) In Section 6(e), delete the sentence at the end of the first paragraph:
"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."
(m) "TERMINATION CURRENCY" means United States Dollars.
(n) (i) Replace paragraph (a) of Section 7 with the following:
"(a) (i) (subject to sub-paragraph (ii)) Party A may make such
a transfer, without the prior consent of any Designated Rating
Agency or the other parties, pursuant to a consolidation,
amalgamation with, or merger with or into, or transfer of all
or substantially all of its assets to, or reorganisation,
incorporation, reincorporation or reconstitution into or as
another entity (but without prejudice to any other right or
remedy under this Agreement); and
(ii) the transfer referred to in sub-paragraph (i)
may only be made where the transferee of all of Party A's
interest or obligation in or under this Agreement has a long
term credit rating of at least AA - and a short term credit
rating of A-1+ from S&P and a long term credit rating of at
least A2 and a short term credit rating of P-1 from Moody's;
and"
(ii) Add a new paragraph to Section 7, immediately below paragraph
(b):
"(c) in the event that a trustee is appointed as a successor
to Party B under the Master Trust Deed and the Series Notices
(the "SUCCESSOR TRUSTEE"), Party A undertakes that it shall
(unless, at the time the Successor Trustee is so appointed,
Party A is entitled to terminate the Transaction under Section
6, in which case it may) execute a novation agreement novating
to the Successor Trustee the Transaction on the same terms or
on other terms to be agreed between Party A, Party B and the
Successor Trustee, and give written notice to each Designated
Rating Agency of such novation."
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PART 2
TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS
For the purpose of Section 3(e), each of Party A and Party B makes the
following representation:
It is not required by any current 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)) 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) and the accuracy and effectiveness of any
document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii); and
(ii) the satisfaction of the agreement of the other party contained
in Section 4(d),
provided that it shall not be a breach of this representation where
reliance is placed on paragraph (i) 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 REPRESENTATIONS
For the purpose of Section 3(f), Party B makes the following
representation:
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.
For the purpose of Section 3(f), Party A makes the following
representation/s:
[*BARCLAYS TO INSERT APPROPRIATE REPRESENTATIONS FOR EACH OFFICE (AS
PER MULTIBRANCH PARTY DESIGNATION)]
PART 3
DOCUMENTS TO BE DELIVERED
For the purposes of Section 4(a)(i) and (ii) each party agrees to deliver the
following documents as applicable:
(a) Tax forms, documents or certificates to be delivered are:
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- ------------------------ ------------------------------- -------------------------------------------
PARTY REQUIRED TO DOCUMENT DATE BY WHICH TO BE DELIVERED
DELIVER
- ------------------------ ------------------------------- -------------------------------------------
Party A and Any document or certificate (i) On the execution of this Agreement;
Party B. reasonably required or and
reasonably requested by a
party in connection with its (ii) subsequently, upon demand.
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
as would reduce the rate at
which deduction or
withholding for or on account
of Tax is applied to that
payment.
- ------------------------ ------------------------------- -------------------------------------------
(b) Other documents to be delivered are:
- ------------------------ ------------------------------- ------------------------ ------------------
PARTY REQUIRED TO DOCUMENT DATE BY WHICH TO BE COVERED BY
DELIVER DELIVERED SECTION 3(d)
REPRESENTATIONS
- ------------------------ ------------------------------- ------------------------ ------------------
Party A, Party B and A copy of the power of On execution and Yes.
the Trust Manager. attorney authorising delivery of this
execution by the attorney of Agreement.
this Agreement.
- ------------------------ ------------------------------- ------------------------ ------------------
Party A, Party B and A list of authorised On execution of any Yes.
the Trust Manager. signatories for the party and relevant Confirmation.
evidence satisfactory in form
and substance to the other
parties of the authority of
the authorised signatories of
the party to execute each
Confirmation on behalf of
that party.
- ------------------------ ------------------------------- ------------------------ ------------------
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- ------------------------ ------------------------------- ------------------------ ------------------
Trust Manager. A copy of the Master Trust On execution and No.
Deed, the Series Notice, the delivery of this
Security Trust Deed, the Note Agreement or in the
Trust Deed, the Notice of case of a document not
Creation of Trust and the executed as at the
Agency Agreement. date of this
Agreement, upon
execution of that
document.
- ------------------------ ------------------------------- ------------------------ ------------------
Trust Manager A copy of an Australian legal On or before the Note No.
opinion addressed to, among Issue Date.
others, Party A in form and
substance satisfactory to
Party A.
- ------------------------ ------------------------------- ------------------------ ------------------
Trust Manager A copy of an Australian tax On or before the Note No.
opinion addressed to, among Issue Date.
others, Party A in form and
substance satisfactory to
Party A.
- ------------------------ ------------------------------- ------------------------ ------------------
Trust Manager A copy of any notice provided At such time as the Yes.
by the Trust Manager to Class relevant notice is
A2 Noteholders. provided by the Trust
Manager to Class A2
Noteholders.
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PART 4
MISCELLANEOUS
(a) ADDRESS FOR NOTICES: For the purpose of Section 12(a) of this
Agreement:
ADDRESS FOR NOTICES TO PARTY A:
For notices regarding operation, payment and confirmation matters only,
notices should be sent to the branch set out in the relevant
Confirmation (as may be amended from time to time) with a copy, in the
case of notices or communications relating to Sections 5, 6, 7, 11 or
13, to:
Address: 5 The North Colonnade, Canary Wharf, London E14
Attention: Derivatives Director, Legal Division (marked urgent)
Facsimile: (+44) 207 773 4932
Telephone: (+44) 207 773 2224
ADDRESS FOR NOTICES TO PARTY B:
Level 7, 9 Castlereagh Street, Sydney, New South Wales, 2000
Attention: Manager Securitisation
Facsimile: 612 9221 7870
Telex: N/A
ADDRESS FOR NOTICES TO THE TRUST MANAGER:
Level 31, 367 Collins Street, Melbourne, Victoria, 3000, Australia
Attention: Managing Director
Facsimile: 613 9621 2368
Telex: N/A
(b) PROCESS AGENT: For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
OFFICES: The provisions of Section 10(a) will not apply to this
reement.
(c) MULTIBRANCH PARTY: For the purposes of Section 10(c) of this
Agreement:
Party A is a Multibranch Party and may act through its Offices in
London, New York, Tokyo, Hong Kong, Singapore and Sydney.
Party B is not a Multibranch Party.
(d) CALCULATION AGENT: The Calculation Agent is Party A unless:
(i) otherwise specified in a Confirmation in relation to the
relevant Transaction; or
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(ii) an Event of Default (where Party A is the Defaulting Party)
has occurred, in which case the Calculation Agent will be the
Trust Manager.
All calculations made by the Calculation Agent must be made in good
faith and through the exercise of the Calculation Agent's commercially
reasonable judgment. If any party objects in good faith to any
calculation made by the Calculation Agent, the parties must negotiate
in good faith to agree on an independent lead dealer to make such
calculation, and if they cannot so agree within three Business Days,
they will each promptly choose an independent leading dealer and
instruct such dealers to agree on another independent leading dealer to
make such calculation. The calculation of any such dealer so appointed
will be binding on the parties in the absence of manifest error and the
costs of such appointment will be shared equally between Party A and
Party B.
(e) CREDIT SUPPORT DOCUMENT: Details of any Credit Support Document:
(i) In relation to Party A: Nil.
(ii) In relation to Party B: Nil.
(f) CREDIT SUPPORT PROVIDER:
(i) In relation to Party A: Nil.
(ii) In relation to Party B: Nil.
(g) GOVERNING LAW: This Agreement will be governed by and construed in
accordance with the laws of England and Wales.
(h) NETTING OF PAYMENTS: Sub-paragraph (ii) of Section 2(c) will not apply.
(i) "AFFILIATE" will have the meaning specified in Section 14. For the
purposes of Section 3(c), 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 and, in the case of any payment
payable by Party A to Party B, will be discharged by Party A depositing
that payment on the due date into the US$ Account."
(b) In Section 2(a)(ii), after "freely transferable funds" add "free of any
set-off, counterclaim, deduction or withholding (except as expressly
provided in this Agreement)".
(c) Add the following new sentence to Section 2(b):
"Each new account so designed must be in the same tax
jurisdiction as the original account."
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(d) 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".
(e) 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).
(f) ADDITIONAL REPRESENTATIONS: In Section 3 add the following immediately
after paragraph (f):
"(g) NON ASSIGNMENT. It has not assigned (whether absolutely,
in equity or otherwise) or declared any trust over any of its
rights under this Agreement or any Transaction (other than, in
respect of Party B, the trust created pursuant to the Master
Trust Deed and the Series Notice) and has not given any charge
over its rights under this Agreement or any Transaction in the
case of Party A, or any charge over the assets of the Trust
(other than under the Security Trust Deed), in the case of
Party B."
(g) 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
Trust and not otherwise. Any reference to Party B in this
Agreement is in its capacity as trustee of the Trust."
(H) CONFIRMATIONS. With respect to each Transaction entered into pursuant
to this Agreement and for the purposes of Section 9(e)(ii), Party A
will, on or promptly after the relevant Trade Date, send Party B (with
a copy to the Trust Manager) a Confirmation confirming that Transaction
and both Party B and the Trust Manager must promptly then confirm the
accuracy of or request the correction of such Confirmation.
Notwithstanding the provisions of Section 9(e)(ii), where a Transaction
is confirmed by means of facsimile or an electronic messaging system,
such message will constitute a Confirmation even where not so specified
in that Confirmation.
(i) Section 12 is amended as follows:
(i) In Section 12(a), delete the words "(except that a notice or
other communication under Section 5 or 6 may not be given by
facsimile transmission or electronic messaging system)" in
lines 2 and 3.
(ii) Section 12(a)(iii) is replaced with:
"(iii) if sent by facsimile transmission, on the date a
transmission report is produced by the machine from which the
facsimile was sent which indicates that the facsimile was sent
in its entirety to the facsimile number of the recipient
notified for the purpose of this Section, unless the recipient
notifies the sender within one Local
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Business Day of the facsimile being sent that the facsimile
was not received in its entirety and in legible form."
(iii) In Section 12(a)(v), replace the words "electronic message is
received" with "the facsimile transmission confirming the
electronic message is sent and deemed effective in accordance
with sub-paragraph (iii)".
(j) Section 14 of the Agreement is modified as follows:
(i) New definitions are inserted as follows:
"ACCEPTABLE ARRANGEMENT" means an arrangement which each
relevant Designated Rating Agency has confirmed in writing
will result in the avoidance or reversal of any Note
Downgrade.
"APPROVED BANK" means a Bank which has a short term credit
rating of A-1+ from S&P and P-1 from Moody's.
"CASH COLLATERAL AMOUNT" means, at any time, an amount equal
to the CCR at that time.
"CCR" means the amount calculated as follows:
CCR = CR X 1.030
"CR" means MTM + VB.
"CREDIT SUPPORT ANNEX" means the Credit Support Annex set out
in the Annexure to this Agreement.
"DOWNGRADE" means the withdrawal or downgrade of Party A's
credit rating by a Designated Rating Agency resulting in Party
A not having the Required Rating.
"ELIGIBLE INVESTMENT" means Negotiable Debt Obligations as
described in the Credit Support Annex.
"MASTER TRUST DEED" means that the Master Trust Deed dated 2
December 1999 between Perpetual Trustees Victoria Limited and
Interstar Securities (Australia) Pty Limited.
"MAJOR DOWNGRADE" means a Downgrade resulting in Party A
having:
(a) a short term credit rating of less than A-1 by S&P;
or
(b) a long term credit rating of less than A3 by Moody's.
"MINOR DOWNGRADE" means any Downgrade which is not a Major
Downgrade.
"MORTGAGED PROPERTY" has the meaning given in the Security
Trust Deed.
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"MTM" means the mark-to-market value of the Transactions
outstanding under this Agreement. Party A will have to mark
the Transactions to market and post collateral on a weekly
basis, with a cure period of 3 days.
"NOTE DOWNGRADE" means any actual or proposed withdrawal or
downgrade of the rating assigned to any Class of Notes by a
Designated Rating Agency which results or would result in any
rating assigned to that Class of Notes being less than that
specified in clause 4.2(f) of the Series Notice.
"REPLACEMENT CURRENCY SWAP PROVIDER" means, at any time, a
person that has agreed to replace Party A at that time and has
a credit rating not less than the Required Rating.
"REQUIRED RATING" means a credit rating of not less than:
(a) [A-1+ (short term) by S&P;]
(b) AA- (long term) by S&P;
(c) A2 (long term) by Moody's; and
(d) [P-1 (short term) by Moody's.]
"SERIES NOTICE" means the Series Notice dated on or about the
date of this Agreement in relation to the Trust.
"SWAP COLLATERAL ACCOUNT" means a US$ account in the name of
Party B with an Approved Bank.
"TRUST" means the Interstar Millennium Series 2003-1G Trust.
"VB" means the value calculated by multiplying the outstanding
notional of the Transaction at the time of the calculation by
the relevant percentage calculated from the following table
(for the purposes of interpreting the table, "Counterparty
rating" is the credit rating assigned to Party A by S&P and
"Maturities" is the period from and including the date of
calculation to but excluding the scheduled maturity of the
last expiring Transaction outstanding under this Agreement):
VOLATILITY BUFFER (%)
- ---------------------- ---------------- ------------------ --------------------
COUNTERPARTY RATING MATURITIES UP MATURITIES UP TO MATURITIES MORE
TO 5 YEARS 10 YEARS THAN 10 YEARS
- ---------------------- ---------------- ------------------ --------------------
A+ 1.05 1.75 3.0
- ---------------------- ---------------- ------------------ --------------------
A 1.35 2.45 4.5
- ---------------------- ---------------- ------------------ --------------------
A-1* 1.5 3.15 6.0
- ---------------------- ---------------- ------------------ --------------------
* The A-1 rating will be taken to be the counterparty's short term
rating.
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(ii) The definition of Tax is replaced with:
"TAX" has the meaning given in the Master Trust Deed.
(iii) Insert the following additional paragraph at the end
of Section 14:
"Words and expressions which are defined or
incorporated by reference in the Series Notice have
the same meanings when used in this Agreement unless
the context otherwise requires or unless otherwise
defined in this Agreement."
(k) MASTER TRUST DEED, SERIES NOTICE AND SECURITY TRUST DEED: The parties
acknowledge and agree and for the purposes of the Master Trust Deed,
the Series Notice and the Security Trust Deed:
(a) all Transactions under this Agreement are "Hedge Agreements";
and
(b) Party A is a "Support Facility Provider".
(l) ISDA DEFINITIONS: This Agreement, each Confirmation and each
Transaction are subject to the 2000 ISDA Definitions (as published by
the International Swap & Derivatives Association, Inc.) as amended from
time to time (the "ISDA DEFINITIONS"), and will be governed in all
respects by any provisions set forth in the ISDA Definitions. The ISDA
Definitions are incorporated by reference in, and shall be deemed to be
part of, this Agreement and each Confirmation.
(m) INCONSISTENCY: In the event of any inconsistency between any two or
more of the following documents, they shall take precedence over each
other in the following descending order:
(i) any Confirmation;
(ii) the Schedule to the Master Agreement;
(iii) the other provisions of the Master Agreement; and
(iv) the ISDA Definitions.
(n) 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.
(o) Insert new Sections 15, 16 and 17 as follows:
"15. LIMITATION OF PARTY B'S LIABILITY
(a) Party B enters into this Agreement only in its capacity as
trustee of the Trust and in no other capacity. A liability
incurred by Party B acting in its capacity as trustee of the
Trust arising under or in
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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 Trust out of which Party B
is actually indemnified for the liability. This limitation of
the Party B's liability applies despite any other provision of
this Agreement 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 sue Party B in any
capacity other than as trustee of the Trust or seek the
appointment of a receiver (except in relation to the assets of
the Trust), liquidator, administrator or similar person to
Party B or prove in any liquidation, administration or
arrangements of or affecting Party B (except in relation to
the assets of the Trust).
(c) The provisions of this Section 15 do not apply to any
obligation or liability of Party B to the extent that it is
not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of Party
B's indemnification out of the assets of the Trust as a result
of the Party B's fraud, negligence or wilful default.
(d) It is acknowledged that the Relevant Parties are responsible
under the Transaction Documents for performing a variety of
obligations relating to the Trust. No act or omission of Party
B (including any related failure to satisfy its obligations or
breach of representation or warranty under the Transaction
Documents) will be considered fraud, negligence or wilful
default of Party B for the purpose of paragraph (c) of this
Section 15 to the extent to which the act or omission was
caused or contributed to by any failure by the Relevant
Parties (other than a person whose acts or omissions Party B
is liable for in accordance with the Transaction Documents) to
fulfil its obligations relating to the Trust or by any other
act or omission of the Relevant Parties (other than a person
whose acts or omissions Party B is liable for in accordance
with the Transaction Documents) regardless of whether or not
that act or omission is purported to be done on behalf of
Party B.
(e) No attorney, agent, receiver or receiver and manager appointed
in accordance with a Transaction Document has authority to act
on behalf of Party B in a way which exposes Party B to any
personal liability and no act or omission of any such person
will be considered fraud, negligence or wilful default of
Party B for the purpose of paragraph (c) of this Section 15,
provided (in the case of any person selected and appointed by
Party B) that Party B has exercised reasonable care in the
selection of such persons.
(f) In this Section 15, "Relevant Party" means each of the Trust
Manager, the Servicer, the Calculation Agent, each Paying
Agent,
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the Note Trustee and any Support Facility Provider (as those
terms are defined in the Master Trust Deed and the Series
Notice).
16. REPLACEMENT CURRENCY SWAP
(a) If this Agreement is terminated, Party B must, at the
direction of the Trust Manager, enter into one or more
Currency Swaps which replace the Transactions under this
Agreement (in a form reasonably satisfactory to Party
B)(collectively a "REPLACEMENT CURRENCY SWAP") but only on the
following conditions:
(i) the Settlement Amount payable (if any) by Party B to
Party A upon termination of this Agreement will be
paid in full when due in accordance with the Series
Notice and this Agreement;
(ii) the Designated Ratings Agencies confirm that the
Replacement Currency Swap will not cause a Note
Downgrade; and
(iii) the liability of Party B under the Replacement
Currency Swap 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, at the direction of the Trust Manager, enter into the
Replacement Currency Swap and if it does so it 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 Settlement Amount to Party A
as referred to in Section 16(a) and to the extent that such
premium is not greater than or equal to the Settlement Amount,
the balance must be satisfied by Party B as an Expense of the
Trust.
(c) If the conditions in Section 16(a) are satisfied and Party B
has entered into the Replacement Currency Swap, Party B must
direct Party A to pay any Settlement Amount payable by Party A
to Party B on termination of this Agreement directly to the
Replacement Currency Swap provider as payment and to the
extent of any premium payable by Party B to enter into the
Replacement Currency Swap, in satisfaction of and to the
extent of Party A's obligation to pay that part of the
Settlement Amount to Party B.
17. NOVATION
Party A may at any time novate its obligations under this Agreement to
any of its Affiliates (the "NEW COUNTERPARTY") provided that:
(a) the New Counterparty provides a legal opinion to Party B that
this Agreement, as novated, is valid, binding and enforceable
against it (subject to equitable doctrines and creditors'
rights generally); and
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(b) the Designated Ratings Agencies confirm that the novation to
the New Counterparty will not cause a Note Downgrade.
Party B and the Trust Manager will execute all such documents (each in
a form reasonably satisfactory to Party B) as are reasonably necessary
to give effect to that novation."
(p) TELEPHONE RECORDING: Each party consents to the recording of the
telephone conversations of trading and marketing personnel in
connection with this Agreement or any potential Transaction and
consents to such recording being used as evidence in court proceedings.
(q) 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:
(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 and
as to whether that Transaction is appropriate or proper for it
based upon its own judgment (in the case of Party B, also on
the judgment of the Trust 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) 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 financial and other risks of
that Transaction.
(iii) NON-FIDUCIARY. No other party is acting as a fiduciary for it
or as an advisor to it for the Transaction.
(r) Insert new Section 18 as follows:
RATING DOWNGRADE
(a) If, at any time, a Downgrade occurs and the downgrade
constitutes a Minor Downgrade, Party A shall, within 30 days
(or such greater period as agreed by the relevant Designated
Rating Agency), comply with Section 18(c)(i).
(b) If, at any time, a Downgrade occurs and the downgrade
constitutes a Major Downgrade, Party A shall:
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(i) within 30 Business Days (or such greater period as
agreed by the relevant Designated Rating Agency)
comply with Sections 18(c)(ii) or (c)(iii); and
(ii) until such time as a replacement Currency Swap has
been entered into in accordance with Section
18(c)(ii) or an Acceptable Arrangement has been
entered into in accordance with Section 18(c)(iii),
comply or continue to comply with Section 18(c)(i).
(c) Where Party A is required to comply with this Section 18(c) it
must, at its cost:
(i) either:
(A) deposit into a Swap Collateral Account and
maintain in that Swap Collateral Account
(whilst the relevant Downgrade subsists)
sufficient funds to ensure that the amount
standing to the credit of the Swap
Collateral Account is not less than the Cash
Collateral Amount; or
(B) acquire in the name of Party B or transfer
to Party B Eligible Investments that mature
on or prior to the next Quarterly Payment
Date with an aggregate face amount not less
than the Cash Collateral Amount;
(ii) procure a novation of its rights and obligations
under the Currency Swap to a Replacement Currency
Swap Provider; or
(iii) enter, or procure entry, into an Acceptable
Arrangement.
(d) If, at any time, Party A's obligations under the Currency Swap
are novated in accordance with Section 18(c)(ii) or any
Acceptable Arrangement is entered into in accordance with
Section 18(c)(iii) which results in Party A being replaced as
Currency Swap Provider (the "REPLACED CURRENCY SWAP
PROVIDER"), the Replaced Currency Swap Provider shall be
immediately entitled to any Cash Collateral Amount which it
has deposited in a Swap Collateral Account.
(e) Where Party B has not established a Swap Collateral Account
and Party A is required to deposit monies into a Swap
Collateral Account, the Trust Manager must direct Party B to,
and Party B must, establish, as soon as practicable, and
maintain, in the name of Party B a US$ account with an
Approved Bank, which account shall be, for the purposes of
this Section 18, the "SWAP COLLATERAL ACCOUNT".
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(f) Party B may only dispose of any Eligible Investment acquired
or transferred to it under Section 18(c)(i)(B) or make
withdrawals from the Swap Collateral Account if directed to do
so by the Trust Manager and then only for the purpose of:
(i) novating the Replaced Currency Swap Provider's
obligations under each Currency Swap in accordance
with Section 18(c)(ii) or entering into any other
Acceptable Arrangement in accordance with 18(c)(iii);
(ii) refunding to Party A the amount of any reduction in
the Cash Collateral Amount, from time to time, and
provided the Designated Rating Agencies have
confirmed in writing that such refund will not result
in a Note Downgrade;
(iii) withdrawing any amount which has been incorrectly
deposited into the Swap Collateral Account;
(iv) paying any bank accounts debit tax or other
equivalent Taxes payable in respect of the Swap
Collateral Account; or
(v) 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.
For the purposes of this Section 18 and the Series Notice, a
Downgrade will be deemed to "SUBSIST" until the earlier of the
following dates:
(i) the date on which the credit rating of Party A is
restored to the Required Rating;
(ii) the date on which a replacement Currency Swap has
been entered into in accordance with Section
18(c)(ii); and
(iii) the date on which an Acceptable Arrangement has been
entered into in accordance with Section 18(c)(iii).
(g) Party B, at the direction of the Trust Manager, may only
invest any amounts standing to the credit of a Swap Collateral
Account in Eligible Investments that mature on or prior to the
next Quarterly Payment Date.
(h) All interest accrued on and other income derived from the
acquisition or transfer to it of any Eligible Investments
under Section 18(c)(i)(B) or the investment of any amounts
credited to a Swap Collateral Account will be payable monthly
to the party that provided the relevant Eligible Investments
or Cash Collateral
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Amount, provided that any such interest or income will only be
payable to the extent that any payment will not reduce the
balance of the Swap Collateral Account to less than the amount
required to be maintained in accordance with this Section 18.
EXECUTED in [Sydney].
Each attorney executing this Agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.
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PARTY A
SIGNED on behalf of )
BARCLAYS BANK PLC ) -----------------------------------------
by its attorneys under power of attorney ) Signature
in the presence of: )
-----------------------------------------
Print name
- --------------------------------------------
Witness
-----------------------------------------
Signature
- --------------------------------------------
Print name
-----------------------------------------
Print name
PARTY B
SIGNED on behalf of )
PERPETUAL TRUSTEES VICTORIA LIMITED )
by its attorney under power of attorney )
in the presence of: )
- -------------------------------------------- ----------------------------------------
Witness Signature
- -------------------------------------------- -----------------------------------------
Print name Print name
TRUST MANAGER
SIGNED on behalf of )
INTERSTAR SECURITISATION MANAGEMENT )
PTY LIMITED
by its attorney under power of attorney )
in the presence of: )
- -------------------------------------------- ----------------------------------------
Witness Signature
- -------------------------------------------- -----------------------------------------
Print name Print name
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