(MULTICURRENCY--CROSS BORDER)
[ISDA LOGO OMITTED] (R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of 2003
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 2003-3G TRUST ("PARTY B") AND
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED (ACN 100 346 898) (THE "TRUST
MANAGER")
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:--
1. INTERPRETATION
(a) DEFINITIONS. The terms defined in Section 14 and in the Schedule will
have the meanings therein specified for the purpose of this Master Agreement.
(b) INCONSISTENCY. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) SINGLE AGREEMENT. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. OBLIGATIONS
(a) GENERAL CONDITIONS.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds and in the manner customary for payments in
the required currency. Where settlement is by delivery (that is, other
than by payment), such delivery will be made for receipt on the due
date in the manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or elsewhere in this
Agreement.
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(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event
of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination Date
in respect of the relevant Transaction has occurred or been effectively
designated and (3) each other applicable condition precedent specified
in this Agreement.
(b) CHANGE OF ACCOUNT. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) NETTING. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) DEDUCTION OR WITHHOLDING FOR TAX.
(i) GROSS-UP. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified
by the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of determining
that such deduction or withholding is required or receiving
notice that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
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(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to
the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure that
the net amount actually received by Y (free and clear of
Indemnifiable Taxes, whether assessed against X or Y) will equal
the full amount Y would have received had no such deduction or
withholding been required. However, X will not be required to pay
any additional amount to Y to the extent that it would not be
required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure
would not have occurred but for (I) any action taken by a
taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (II) a
Change in Tax Law.
(ii) LIABILITY. If:--
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to make
any deduction or withholding in respect of which X would not be
required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the amount
of such liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d)).
(e) DEFAULT INTEREST; OTHER AMOUNTS. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. REPRESENTATIONS
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) BASIC REPRESENTATIONS.
(i) STATUS. It is duly organized and validly existing under the laws of
the jurisdiction of its organization or incorporation and, if relevant
under such laws, in good standing;
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(ii) POWERS. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to
perform its obligations under this Agreement and any obligations it has
under any Credit Support Document to which it is a party and has taken
all necessary action to authorize such execution, delivery and
performance;
(iii) NO VIOLATION OR CONFLICT. Such execution, delivery and
performance do not violate or conflict with any law applicable to it,
any provision of its constitutional documents, any order or judgment of
any court or other agency of government applicable to it or any of its
assets or any contractual restriction binding on or affecting it or any
of its assets;
(iv) CONSENTS. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in
full force and effect and all conditions of any such consents have been
complied with; and
(v) OBLIGATIONS BINDING. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal,
valid and binding obligations, enforceable in accordance with their
respective terms (subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights
generally and subject, as to enforceability, to equitable principles of
general application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
(b) ABSENCE OF CERTAIN EVENTS. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) ABSENCE OF LITIGATION. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) ACCURACY OF SPECIFIED INFORMATION. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material aspect.
(e) PAYER TAX REPRESENTATION. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(e) is accurate and true.
(f) PAYEE TAX REPRESENTATIONS. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3(f) is accurate
and true.
4. AGREEMENTS
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) FURNISH SPECIFIED INFORMATION. It will deliver to the other party or,
in certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation
specified in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
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(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to
allow such other party or its Credit Support Provider to make a payment
under this Agreement or any applicable Credit Support Document without
any deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of
such demand), with any such form or document to be accurate and
completed in a manner reasonably satisfactory to such other party and
to be executed and to be delivered with any reasonably required
certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) MAINTAIN AUTHORIZATIONS. It will use all reasonable efforts to maintain
in full force and effect all consents of any governmental or other authority
that are required to be obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party and will use all reasonable
efforts to obtain any that may become necessary in the future.
(c) COMPLY WITH LAWS. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) TAX AGREEMENT. It will give notice of any failure of a representation
made by it under Section 3(f) to be accurate and true promptly upon learning of
such failure.
(e) PAYMENT OF STAMP TAX. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated, organized, managed and
controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located ("Stamp
Tax Jurisdiction") and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party's
execution or performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.
5. EVENTS OF DEFAULT AND TERMINATION EVENTS
(a) EVENTS OF DEFAULT. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any of the following events constitutes an event of
default (an "Event of Default") with respect to such party:--
(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or
2(e) required to be made by it if such failure is not remedied on or
before the third Local Business Day after notice of such failure is
given to the party;
(ii) BREACH OF AGREEMENT. Failure by the party to comply with or
perform any agreement or obligation (other than an obligation to make
any payment under this Agreement or delivery under Section 2(a)(i) or
2(e) or to give notice of a Termination Event or any agreement or
obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied
with or performed by the party in accordance with this Agreement if
such failure is not remedied on or before the thirtieth day after
notice of such failure is given to the party;
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(iii) CREDIT SUPPORT DEFAULT.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to
be complied with or performed by it in accordance with any
Credit Support Document if such failure is continuing after any
applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support
Document to be in full force and effect for the purpose of this
Agreement (in either case other than in accordance with its
terms) prior to the satisfaction of all obligations of such
party under each Transaction to which such Credit Support
Document relates without the written consent of the other party;
or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) MISREPRESENTATION. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made
or repeated by the party or any Credit Support Provider of such party
in this Agreement or any Credit Support Document proves to have been
incorrect or misleading in any material respect when made or repeated
or deemed to have been made or repeated;
(v) DEFAULT UNDER SPECIFIED TRANSACTION. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to
any applicable notice requirement or grace period, there occurs a
liquidation of, an acceleration of obligations under, or an early
termination of, that Specified Transaction, (2) defaults, after giving
effect to any applicable notice requirement or grace period, in making
any payment or delivery due on the last payment, delivery or exchange
date of, or any payment on early termination of, a Specified
Transaction (or such default continues for at least three Local
Business Days if there is no applicable notice requirement or grace
period) or (3) disaffirms, disclaims, repudiates or rejects, in whole
or in part, a Specified Transaction (or such action is taken by any
person or entity appointed or empowered to operate it or act on its
behalf);
(vi) CROSS DEFAULT. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default,
event of default or other similar condition or event (however
described) in respect of such party, any Credit Support Provider of
such party or any applicable Specified Entity of such party under one
or more agreements or instruments relating to Specified Indebtedness of
any of them (individually or collectively) in an aggregate amount of
not less than the applicable Threshold Amount (as specified in the
Schedule) which has resulted in such Specified Indebtedness becoming,
or becoming capable at such time of being declared, due and payable
under such agreements or instruments, before it would otherwise have
been due and payable or (2) a default by such party, such Credit
Support Provider or such Specified Entity (individually or
collectively) in making one or more payments on the due date thereof in
an aggregate amount of not less than the applicable Threshold Amount
under such agreements or instruments (after giving effect to any
applicable notice requirement or grace period);
(vii) BANKRUPTCY. The party, any Credit Support Provider of such party
or any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to
pay its debts or fails or admits in writing its inability
generally to pay its debts as they become due; (3) makes a
general assignment, arrangement or composition with or for the
benefit of its creditors; (4) institutes or has instituted
against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or
insolvency law or other similar law affecting creditors' rights,
or a petition is presented for its winding-up
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or liquidation, and, in the case of any such proceeding or
petition instituted or presented against it, such proceeding or
petition (A) results in a judgment of insolvency or bankruptcy
or the entry of an order for relief or the making of an order
for its winding-up or liquidation or (B) is not dismissed,
discharged, stayed or restrained in each case within 30 days of
the institution or presentation thereof; (5) has a resolution
passed for its winding-up, official management or liquidation
(other than pursuant to a consolidation, amalgamation or
merger); (6) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator, receiver,
trustee, custodian or other similar official for it or for all
or substantially all its assets; (7) has a secured party take
possession of all or substantially all its assets or has a
distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged,
stayed or restrained, in each case within 30 days thereafter;
(8) causes or is subject to any event with respect to it which,
under the applicable laws of any jurisdiction, has an analogous
effect to any of the events specified in clauses (1) to (7)
(inclusive); or (9) takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any
of the foregoing acts; or
(viii) MERGER WITHOUT ASSUMPTION. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or merges
with or into, or transfers all or substantially all its assets to,
another entity and, at the time of such consolidation, amalgamation,
merger or transfer:--
(1) the resulting, surviving or transferee entity fails to
assume all the obligations of such party or such Credit
Support Provider under this Agreement or any Credit Support
Document to which it or its predecessor was a party by
operation of law or pursuant to an agreement reasonably
satisfactory to the other party to this Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by
such resulting, surviving or transferee entity of its
obligations under this Agreement.
(b) TERMINATION EVENTS. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any event specified below constitutes an Illegality if
the event is specified in (i) below, a Tax Event if the event is specified in
(ii) below or a Tax Event Upon Merger if the event is specified in (iii) below,
and, if specified to be applicable, a Credit Event Upon Merger if the event is
specified pursuant to (iv) below or an Additional Termination Event if the event
is specified pursuant to (v) below:--
(i) ILLEGALITY. Due to the adoption of, or any change in, any
applicable law after the date on which a Transaction is entered into,
or due to the promulgation of, or any change in, the interpretation by
any court, tribunal or regulatory authority with competent jurisdiction
of any applicable law after such date, it becomes unlawful (other than
as a result of a breach by the party of Section 4(b)) for such party
(which will be the Affected Party):--
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other
material provision of this Agreement relating to such
Transaction; or
(2) to perform, or for any Credit Support Provider of such
party to perform, any contingent or other obligation which the
party (or such Credit Support Provider) has under any Credit
Support Document relating to such Transaction;
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(ii) TAX EVENT. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action
is taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will,
or there is a substantial likelihood that it will, on the next
succeeding Scheduled Payment Date (1) be required to pay to the other
party an additional amount in respect of an Indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) or (2) receive a payment from which an amount is
required to be deducted or withheld for or on account of a Tax (except
in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) and no
additional amount is required to be paid in respect of such Tax under
Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A) or
(B));
(iii) TAX EVENT UPON MERGER. The party (the "Burdened Party") on the
next succeeding Scheduled Payment Date will either (1) be required to
pay an additional amount in respect of an Indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) or (2) receive a payment from which an amount has
been deducted or withheld for or on account of any Indemnifiable Tax in
respect of which the other party is not required to pay an additional
amount (other than by reason of Section 2(d)(i)(4)(A) or (B)), in
either case as a result of a party consolidating or amalgamating with,
or merging with or into, or transferring all or substantially all its
assets to, another entity (which will be the Affected Party) where such
action does not constitute an event described in Section 5(a)(viii);
(iv) CREDIT EVENT UPON MERGER. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party ("X"),
any Credit Support Provider of X or any applicable Specified Entity of
X consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and
such action does not constitute an event described in Section
5(a)(viii) but the creditworthiness of the resulting, surviving or
transferee entity is materially weaker than that of X, such Credit
Support Provider or such Specified Entity, as the case may be,
immediately prior to such action (and, in such event, X or its
successor or transferee, as appropriate, will be the Affected Party);
or
(v) ADDITIONAL TERMINATION EVENT. If any "Additional Termination Event"
is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) EVENT OF DEFAULT AND ILLEGALITY. If an event or circumstance which
would otherwise constitute or give rise to an Event of Default also constitutes
an Illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
6. EARLY TERMINATION
(a) RIGHT TO TERMINATE FOLLOWING EVENT OF DEFAULT. If at any time an Event
of Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
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(b) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
(i) NOTICE. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying
the nature of that Termination Event and each Affected Transaction and
will also give such other information about that Termination Event as
the other party may reasonably require.
(ii) TRANSFER TO AVOID TERMINATION EVENT. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is
the Affected Party, the Affected Party will, as a condition to its
right to designate an Early Termination Date under Section 6(b)(iv),
use all reasonable efforts (which will not require such party to incur
a loss, excluding immaterial, incidental expenses) to transfer within
20 days after it gives notice under Section 6(b)(i) all its rights and
obligations under this Agreement in respect of the Affected
Transactions to another of its Offices or Affiliates so that such
Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days
after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be
subject to and conditional upon the prior written consent of the other
party, which consent will not be withheld if such other party's
policies in effect at such time would permit it to enter into
transactions with the transferee on the terms proposed.
(iii) TWO AFFECTED PARTIES. If an Illegality under Section 5(b)(i)(1)
or a Tax Event occurs and there are two Affected Parties, each party
will use all reasonable efforts to reach agreement within 30 days after
notice thereof is given under Section 6(b)(i) on action to avoid that
Termination Event.
(iv) RIGHT TO TERMINATE. If:--
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, has not been effected with
respect to all Affected Transactions within 30 days after an
Affected Party gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected
Party,
either party in the case of an Illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in the case of a
Tax Event or an Additional Termination Event if there is more than one
Affected Party, or the party which is not the Affected Party in the
case of a Credit Event Upon Merger or an Additional Termination Event
if there is only one Affected Party may, by not more than 20 days
notice to the other party and provided that the relevant Termination
Event is then continuing, designate a day not earlier than the day such
notice is effective as an Early Termination Date in respect of all
Affected Transactions.
(c) EFFECT OF DESIGNATION.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date
so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
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(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(e) in respect of the Terminated Transactions will be
required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) CALCULATIONS.
(i) STATEMENT. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and
specifying any amount payable under Section 6(e)) and (2) giving
details of the relevant account to which any amount payable to it is to
be paid. In the absence of written confirmation from the source of a
quotation obtained in determining a Market Quotation, the records of
the party obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) PAYMENT DATE. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event
of Default) and on the day which is two Local Business Days after the
day on which notice of the amount payable is effective (in the case of
an Early Termination Date which is designated as a result of a
Termination Event). Such amount will be paid together with (to the
extent permitted under applicable law) interest thereon (before as well
as after judgment) in the Termination Currency, from (and including)
the relevant Early Termination Date to (but excluding) the date such
amount is paid, at the Applicable Rate. Such interest will be
calculated on the basis of daily compounding and the actual number of
days elapsed.
(e) PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) EVENTS OF DEFAULT. If the Early Termination Date results from an
Event of Default:--
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to
the Non-defaulting Party over (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's Loss in respect of
this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A)
the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated Transactions
and the Termination Currency Equivalent of the Unpaid Amounts
owing to the Non-defaulting Party less (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive
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number, the Defaulting Party will pay it to the Non-defaulting
Party; if it is a negative number, the Non-defaulting Party will
pay the absolute value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply,
an amount will be payable equal to the Non-defaulting Party's
Loss in respect of this Agreement. If that amount is a positive
number, the Defaulting Party will pay it to the Non-defaulting
Party; if it is a negative number, the Non-defaulting Party will
pay the absolute value of that amount to the Defaulting Party.
(ii) TERMINATION EVENTS. If the Early Termination Date results from a
Termination Event:--
(1) One Affected Party. If there is one Affected Party, the
amount payable will be determined in accordance with Section
6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4),
if Loss applies, except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party will be deemed
to be references to the Affected Party and the party which is not
the Affected Party, respectively, and, if Loss applies and fewer
than all the Transactions are being terminated, Loss shall be
calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:--
(A) if Market Quotation applies, each party will determine
a Settlement Amount in respect of the Terminated
Transactions, and an amount will be payable equal to (I)
the sum of (a) one-half of the difference between the
Settlement Amount of the party with the higher Settlement
Amount ("X") and the Settlement Amount of the party with
the lower Settlement Amount ("Y") and (b) the Termination
Currency Equivalent of the Unpaid Amounts owing to X less
(II) the Termination Currency Equivalent of the Unpaid
Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable
equal to one-half of the difference between the Loss of the
party with the higher Loss ("X") and the Loss of the party
with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X;
if it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies
in respect of a party, the amount determined under this Section 6(e)
will be subject to such adjustments as are appropriate and permitted by
law to reflect any payments or deliveries made by one party to the
other under this Agreement (and retained by such other party) during
the period from the relevant Early Termination Date to the date for
payment determined under Section 6(d)(ii).
(iv) PRE-ESTIMATE. The parties agree that if Market Quotation applies
an amount recoverable under this Section 6(e) is a reasonable
pre-estimate of loss and not a penalty. Such amount is payable for the
loss of bargain and the loss of protection against future risks and
except as otherwise provided in this Agreement neither party will be
entitled to recover any additional damages as a consequence of such
losses.
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7. TRANSFER
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that:--
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in
any amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. CONTRACTUAL CURRENCY
(a) PAYMENT IN THE CONTRACTUAL CURRENCY. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable law,
any obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) JUDGMENTS. To the extent permitted by applicable law, if any judgment
or order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) SEPARATE INDEMNITIES. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) EVIDENCE OF LOSS. For the purpose of this Section 8, it will be
sufficient for a party to demonstrate that it would have suffered a loss had an
actual exchange or purchase been made.
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9. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) SURVIVAL OF OBLIGATIONS. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) REMEDIES CUMULATIVE. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) COUNTERPARTS AND CONFIRMATIONS.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including
by facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of
each Transaction from the moment they agree to those terms (whether
orally or otherwise). A Confirmation shall be entered into as soon as
practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of
telexes or by an exchange of electronic messages on an electronic
messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that
any such counterpart, telex or electronic message constitutes a
Confirmation.
(f) NO WAIVER OF RIGHTS. A failure or delay in exercising any right, power
or privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) HEADINGS. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. OFFICES; MULTIBRANCH PARTIES
(a) If Section 10(a) is specified in the Schedule as applying, each party
that enters into a Transaction through an Office other than its head or home
office represents to the other party that, notwithstanding the place of booking
office or jurisdiction of incorporation or organization of such party, the
obligations of such party are the same as if it had entered into the Transaction
through its head or home office. This representation will be deemed to be
repeated by such party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
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11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document to
which the Defaulting Party is a party or by reason of the early termination of
any Transaction, including, but not limited to, costs of collection.
12. NOTICES
(a) EFFECTIVENESS. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date
it is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that transmission
is received by a responsible employee of the recipient in legible form
(it being agreed that the burden of proving receipt will be on the
sender and will not be met by a transmission report generated by the
sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that
electronic message is received,
unless the date of delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) CHANGE OF ADDRESSES. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) JURISDICTION. With respect to any suit, action or proceedings relating
to this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this
Agreement is expressed to be governed by English law, or to the
non-exclusive jurisdiction of the courts of the State of New York and
the United States District Court located in the Borough of Manhattan in
New York City, if this Agreement is expressed to be governed by the
laws of the State of New York; and
(ii) waives any objection which it may have at any time to the laying
of venue of any Proceedings brought in any such court, waives any claim
that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceedings,
that such court does not have any jurisdiction over such party.
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Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) SERVICE OF PROCESS. Each party irrevocably appoints the Process Agent
(if any) specified opposite its name in the Schedule to receive, for it and on
its behalf, service of process in any Proceedings. If for any reason any party's
Process Agent is unable to act as such, such party will promptly notify the
other party and within 30 days appoint a substitute process agent acceptable to
the other party. The parties irrevocably consent to service of process given in
the manner provided for notices in Section 12. Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted
by law.
(d) WAIVER OF IMMUNITIES. Each party irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its revenues and
assets (irrespective of their use or intended use), all immunity on the grounds
of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. DEFINITIONS
As used in this Agreement:--
"ADDITIONAL TERMINATION EVENT" has the meaning specified in Section 5(b).
"AFFECTED PARTY" has the meaning specified in Section 5(b).
"AFFECTED TRANSACTIONS" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"AFFILIATE" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control"
of any entity or person means ownership of a majority of the voting power of
the entity or person.
"APPLICABLE RATE" means:--
(a) in respect of obligations payable or deliverable (or which would have
been but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of
either party from and after the date (determined in accordance with Section
6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which
would have been but for Section 2(a)(iii)) by a Non-defaulting Party, the
Non-default Rate; and
(d) in all other cases, the Termination Rate.
"BURDENED PARTY" has the meaning specified in Section 5(b).
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"CHANGE IN TAX LAW" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or after the
date on which the relevant Transaction is entered into.
"CONSENT" includes a consent, approval, action, authorization, exemption,
notice, filing, registration or exchange control consent.
"CREDIT EVENT UPON MERGER" has the meaning specified in Section 5(b).
"CREDIT SUPPORT DOCUMENT" means any agreement or instrument that is specified
as such in this Agreement.
"CREDIT SUPPORT PROVIDER" has the meaning specified in the Schedule.
"DEFAULT RATE" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"DEFAULTING PARTY" has the meaning specified in Section 6(a).
"EARLY TERMINATION DATE" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"EVENT OF DEFAULT" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"ILLEGALITY" has the meaning specified in Section 5(b).
"INDEMNIFIABLE TAX" means any Tax other than a Tax that would not be imposed
in respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to
such recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having
executed, delivered, performed its obligations or received a payment under, or
enforced, this Agreement or a Credit Support Document).
"LAW" includes any treaty, law, rule or regulation (as modified, in the case
of tax matters, by the practice of any relevant governmental revenue
authority) and "LAWFUL" and "UNLAWFUL" will be construed accordingly.
"LOCAL BUSINESS DAY" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and
foreign currency deposits) (a) in relation to any obligation under Section
2(a)(i), in the place(s) specified in the relevant Confirmation or, if not so
specified, as otherwise agreed by the parties in writing or determined
pursuant to provisions contained, or incorporated by reference, in this
Agreement, (b) in relation to any other payment, in the place where the
relevant account is located and, if different, in the principal financial
centre, if any, of the currency of such payment, (c) in relation to any notice
or other communication, including notice contemplated under Section 5(a)(i),
in the city specified in the address for notice provided by the recipient and,
in the case of a notice contemplated by Section 2(b), in the place where the
relevant new account is to be located and (d) in relation to Section
5(a)(v)(2), in the relevant locations for performance with respect to such
Specified Transaction.
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"LOSS" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be
its total losses and costs (or gain, in which case expressed as a negative
number) in connection with this Agreement or that Terminated Transaction or
group of Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party but without
duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or reestablishing any hedge or related trading position
(or any gain resulting from any of them). Loss includes losses and costs (or
gains) in respect of any payment or delivery required to have been made
(assuming satisfaction of each applicable condition precedent) on or before
the relevant Early Termination Date and not made, except, so as to avoid
duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does
not include a party's legal fees and out-of-pocket expenses referred to under
Section 11. A party will determine its Loss as of the relevant Early
Termination Date, or, if that is not reasonably practicable, as of the
earliest date thereafter as is reasonably practicable. A party may (but need
not) determine its Loss by reference to quotations of relevant rates or prices
from one or more leading dealers in the relevant markets.
"MARKET QUOTATION" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or
by such party (expressed as a positive number) in consideration of an
agreement between such party (taking into account any existing Credit Support
Document with respect to the obligations of such party) and the quoting
Reference Market-maker to enter into a transaction (the "Replacement
Transaction") that would have the effect of preserving for such party the
economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under Section 2(a)(i) in
respect of such Terminated Transaction or group of Terminated Transactions
that would, but for the occurrence of the relevant Early Termination Date,
have been required after that date. For this purpose, Unpaid Amounts in
respect of the Terminated Transaction or group of Terminated Transactions are
to be excluded but, without limitation, any payment or delivery that would,
but for the relevant Early Termination Date, have been required (assuming
satisfaction of each applicable condition precedent) after that Early
Termination Date is to be included. The Replacement Transaction would be
subject to such documentation as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination (or its agent)
will request each Reference Market-maker to provide its quotation to the
extent reasonably practicable as of the same day and time (without regard to
different time zones) on or as soon as reasonably practicable after the
relevant Early Termination Date. The day and time as of which those quotations
are to be obtained will be selected in good faith by the party obligated to
make a determination under Section 6(e), and, if each party is so obliged,
after consultation with the other. If more than three quotations are provided,
the Market Quotation will be the arithmetic mean of the quotations, without
regard to the quotations having the highest and lowest values. If exactly
three such quotations are provided, the Market Quotation will be the quotation
remaining after disregarding the highest and lowest quotations. For this
purpose, if more than one quotation has the same highest value or lowest
value, then one of such quotations shall be disregarded. If fewer than three
quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"NON-DEFAULT RATE" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting party (as certified by it) if
it were to fund the relevant amount.
"NON-DEFAULTING PARTY" has the meaning specified in Section 6(a).
"OFFICE" means a branch or office of a party, which may be such party's head or
home office.
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
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"REFERENCE MARKET-MAKERS" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"RELEVANT JURISDICTION" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organized, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"SCHEDULED PAYMENT DATE" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"SET-OFF" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"SETTLEMENT AMOUNT" means, with respect to a party and any Early Termination
Date, the sum of:--
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference
to any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"SPECIFIED ENTITY" has the meaning specified in the Schedule.
"SPECIFIED INDEBTEDNESS" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"SPECIFIED TRANSACTION" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"STAMP TAX" means any stamp, registration, documentation or similar tax.
"TAX" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"TAX EVENT" has the meaning specified in Section 5(b).
"TAX EVENT UPON MERGER" has the meaning specified in Section 5(b).
- --------------------------------------------------------------------------------
Page 18
"TERMINATED TRANSACTIONS" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"TERMINATION CURRENCY" has the meaning specified in the Schedule.
"TERMINATION CURRENCY EQUIVALENT" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"TERMINATION EVENT" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"TERMINATION RATE" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"UNPAID AMOUNTS" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market value of that which was (or would have been) required to be
- --------------------------------------------------------------------------------
Page 19
delivered as of the originally scheduled date for delivery, in each case
together with (to the extent permitted under applicable law) interest, in the
currency of such amounts, from (and including) the date such amounts or
obligations were or would have been required to have been paid or performed to
(but excluding) such Early Termination Date, at the Applicable Rate. Such
amounts of interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. The fair market value of any obligation referred
to in clause (b) above shall be reasonably determined by the party obliged to
make the determination under Section 6(e) or, if each party is so obliged, it
shall be the average of the Termination Currency Equivalents of the fair market
values reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
Perpetual Trustees Victoria Limited (ABN 47 004 027
Barclays Bank PLC 258) in its capacity as trustee of the Interstar
Millennium Series 2003-3G Trust
.................................................... ......................................................
(Party A) (Party B)
By:................................................ By:................................................
Name: Name:
Title: Title:
Date: Date:
Interstar Securitisation Management Pty Limited
(ACN 100 346 898)
....................................................
(Trust Manager)
By:................................................
Name:
Title:
Date:
- --------------------------------------------------------------------------------
nuas S0111112412v2 000000 27.5.2003 Page 20
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 2003-3G 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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Page 21
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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Page 22
(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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Page 23
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 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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Page 24
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
(i) For the purpose of Section 3(f), Party B makes the following
representations:
(A) 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 and;
(B) It is a non-United States branch of a foreign person for United States
Federal income tax purposes.
(ii) For the purpose of Section 3(f), Party A makes the following
representations:
(A) With respect to payments made to Party A which are not effectively
connected to the United States:
It is a non United States branch of a foreign person for United States
Federal income tax purposes; and
(B) With respect to payments made to Party A which are effectively
connected to the United States:
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Page 25
Each payment received or to be received by it in connection with this
Agreement will be effectively connected with its conduct of a trade or
business in the United States.
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:
- ------------------------ ------------------------------- -------------------------------------------
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.
- ------------------------ ------------------------------- ------------------------ ------------------
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Page 26
- ------------------------ ------------------------------- ------------------------ ------------------
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.
- ------------------------ ------------------------------- ------------------------ ------------------
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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Page 27
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:
Mallesons Stephen Jaques London
6th Floor
Alder Castle
10 Noble Street
London EC2V 7JX
OFFICES: The provisions of Section 10(a) will not apply to this Agreement.
(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.
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Page 28
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
(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."
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Page 29
(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."
(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.
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Page 30
(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
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.
"AGENCY SECURITIES" means negotiable debt obligations which are fully
guaranteed as to both principal and interest by the Federal National
Mortgage Association, the Government National Mortgage Association or
the Federal Home Loan Mortgage Corporation.
"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
lesser of:
(a) CCR; and
(b) an amount acceptable to Moody's and sufficient to maintain the
credit rating assigned to the Notes by Moody's immediately prior
to the relevant Downgrade.
"CCR" means the amount calculated as follows:
CCR = CR X 1.030
"CR" means MTM + VB.
"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:
(a) US$ Cash;
- --------------------------------------------------------------------------------
Page 31
(b) Negotiable debt obligations issued by the United States Treasury
Department having a remaining maturity of one year or less from the
Valuation Date;
(c) Negotiable debt obligations issued by the United States Treasury
Department having a remaining maturity of more than one year but less
than ten years from the Valuation Date;
(d) Negotiable debt obligations issued by the United States Treasury
Department having a remaining maturity of ten years or more from the
Valuation Date;
(e) Agency Securities having a remaining maturity of one year or less
from the Valuation Date;
(f) Agency Securities having a remaining maturity of more than one
year but less than ten years from the Valuation Date;
(g) Agency Securities having a remaining maturity of ten years or more
from the Valuation Date;
(h) any other form of collateral acceptable to the Designated Rating
Agencies,
each with a valuation percentage agreed by the Designated Rating
Agency in good faith using commercially reasonable procedures.
"EXPOSURE" means, with respect to a party on a Valuation Date, the
amount, if any, that would be payable to that party by the other party
(expressed as a positive number) or by that party to the other party
(expressed as a negative number) pursuant to Section 6(e)(ii)(1) of
this Agreement if all Transactions were being terminated as of the
relevant Valuation Time.
"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.
- --------------------------------------------------------------------------------
Page 32
"MORTGAGED PROPERTY" has the meaning given in the Security Trust Deed.
"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 daily basis, with a cure period of 3
days.
In determining the MTM, Party A will:
(a) rely upon the following assumptions:
(i) no amortisation on the swap for N months and then 100%
amortisation, which takes into consideration the current historical
prepayment rates as well as future prepayment volatility up to a 99%
confidence interval, assuming no clean up call; and
(ii) Party A is paying a spread of [0.27%] + X%,
or
(b) use any other method as agreed between Party A and each Designated
Rating Agency.
If, within 5 Business Days of the relevant downgrade, or as otherwise
agreed with each Designated Rating Agency, Party A and the Designated
Rating Agencies are unable to agree upon the collateral amount, the
Valuation Agent will recalculate the Exposure by:
calculating that part of the Exposure attributable to the
dispute by seeking four actual quotations at mid-market from
Reference Market-makers for purposes of calculating Market
Quotation, and taking the arithmetic average of those
obtained; provided that if four quotations are not
available, then fewer than four quotations may be used, and
if no quotations are available for a particular Transaction,
then the Valuation Agent's calculations will be used for the
Transaction, using commercially reasonable terms and
assumptions, as such are agreed with the Designated Rating
Agencies.
"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.
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Page 33
"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) A2 (long term) by Moody's; and
(c) 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 2003-3G Trust.
"VALUATION AGENT" means Party A.
"VALUATION DATE" means every day; provided that if such day is not a
Local Business Day then the Valuation Date shall be the following day
that is a Local Business Day.
"VALUATION TIME" means 5.00 p.m. New York time on the Local Business
Day immediately preceding the Valuation Date or date of calculation
(as applicable).
"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 greater of:
(a) 3% in relation to MTM calculated under paragraph (1) and (2) of
the definition of MTM, otherwise 4.6% or such lower amount as agreed
with Moody's; and
(b) 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
---------------------- ---------------- ------------------ --------------------
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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.
(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.
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(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
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
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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, 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.
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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
(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:
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18. 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:
(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) within 5 Business Days (or such greater period as agreed by
the relevant Designated Rating Agency) 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
Payment Date with an aggregate face amount not less than the
Cash Collateral Amount;
(ii) procure a novation of its rights and obligations under each
Transaction 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 a Transaction 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
- --------------------------------------------------------------------------------
Page 39
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".
(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 Transaction 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).
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(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 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 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.
This Agreement may be executed in counterparts, each of which will be deemed an
original.
EXECUTED in London and 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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