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MACQUARIE SECURITISATION LIMITED
ABN 16 003 297 336
Manager
[ ]
Party A
[PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000]
Party B
ISDA MASTER AGREEMENT
THE PUMA FUND
[XXXXXXX XXX LOGO OMITTED]
LAWYERS
Levels 23-35 No 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
XX Xxx X0 Xxxxxxxxx Xxxxxx Xxxxxx XXX 0000 DX 000 Xxxxxx
Tel + 00 0 0000 0000 Fax + 00 0 0000 0000
OUR REF - 801/1537356 CONTACT - NINIAN XXXXX
XXXXXX O MELBOURNE O BRISBANE O PERTH O CANBERRA O DARWIN
Liability limited by the Solicitors' Limitation of Liability Scheme approved
under the Professional Standards Xxx 0000 (NSW)
SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF [ ] BETWEEN
MACQUARIE SECURITISATION LIMITED
ABN 16 003 297 336
("MANAGER")
AND
[ ]
("PARTY A")
AND
PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
AS TRUSTEE OF THE VARIOUS SUB-FUNDS
FROM TIME TO TIME ESTABLISHED UNDER THE TRUST DEED
("PARTY B")
PART 1. TERMINATION PROVISIONS.
In this Agreement:
(a) "SPECIFIED ENTITY" does not apply in relation to Party A or Party B.
(b) The definition of "SPECIFIED TRANSACTION" is not applicable.
(c) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(b)(iv)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(b)(iv)
(iii) Section 5(b)(ii) will apply to Party A as the Affected Party but
is subject to Parts 5(4)(b) and 5(5)(d) of this Schedule. Section
5(b)(iii) will not apply to Party A as the Burdened Party.
(d) The "AUTOMATIC EARLY TERMINATION" provisions in Section 6(a) will not
apply to Party A or Party B.
(e) PAYMENTS ON EARLY TERMINATION. For the purposes of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(f) "TERMINATION CURRENCY" means, unless otherwise specified in the
Confirmation in relation
1
to the Transaction:
(i) in relation to a Transaction which is a Currency Swap, US$.
However, if an amount in respect of an Early Termination Date and
a Currency Swap is payable by Party B (the "Party B Termination
Amount"), Party B will pay that amount in Australian dollars. For
this purpose, the Party B Termination Amount will be converted
into Australian dollars by applying the definition of "Termination
Currency Equivalent" in the Agreement as if the amount payable by
Party B (in Australian dollars) is the "amount in the Termination
Currency", the "Termination Currency" is Australian dollars, the
"Other Currency" is US$ and the Party B Termination Amount is an
"amount denominated in a currency other than the Termination
Currency"; and
(ii) in relation to all other Transactions, Australian dollars.
(g) "ADDITIONAL TERMINATION EVENT" applies. The following is an Additional
Termination Event in respect of the Transactions of the relevant Sub-Fund
in relation to which both Party A and Party B are Affected Parties:
"An Event of Default, as defined in the Security Trust Deed in relation
to the relevant Sub-Fund, occurs and the Security Trustee shall have been
directed in accordance with and subject to the Security Trust Deed to
declare, or has declared, the Relevant Notes in relation to the
Transaction immediately due and payable in accordance with the Security
Trust Deed."
PART 2. TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant government revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from
any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of
this Agreement) to be made by it to any other party under this Agreement.
In making this representation, it may rely on:
(i) the accuracy of any representation made by the other party
pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of
any document provided by that other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of that other party contained in
Section 4(d) of this Agreement,
PROVIDED THAT it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice
to its legal or commercial position.
(b) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement:
Party A makes the following representation when acting through its [ ]
Office:
Each payment received or to be received by it under each Transaction will
be effectively connected with its conduct of a trade or business in the
United States.
Party B makes the following representation when transacting with Party A
acting through its New York Office:
It is a "foreign trust" for United States tax purposes.
2
PART 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver to each other party the following documents, as applicable:
(a) TAX FORMS, DOCUMENTS OR CERTIFICATES TO BE DELIVERED ARE:
PARTY REQUIRED TO DELIVER FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
DOCUMENT
Party A and Party B Any document or certificate reasonably As soon as reasonably
required or reasonably requested by a practicable following a
party in connection with its request by a party.
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 which would reduce
the rate at which deduction or
withholding for or on account of Tax
is applied to that payment (including
where Party A is acting through its [
] Office, and without limitation, any
United States Form W-8BEN or other
relevant United States tax form).
(b) OTHER DOCUMENTS TO BE DELIVERED ARE:
PARTY REQUIRED TO DELIVER FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
DOCUMENT
Party A, Party B and the Manager A certificate specifying the names, On the execution of this
title and specimen signatures of the Agreement and each
persons authorised to execute this Confirmation, unless that
Agreement and each Confirmation or certificate has already been
other communication in writing made supplied and remains true and
pursuant to this Agreement on its in effect, and when the
behalf. certificate is updated.
Manager A certified copy to Party A of the Not less than 5 Business Days
Trust Deed and a certified copy to (or such lesser period as
Party A of any document that amends in Party A agrees to) before the
any way the terms of the Trust Deed. Trade Date of the first
occurring Transaction entered
into by Party B as trustee of
the Sub-Fund and in the case
of any amending documents
entered into subsequent to
that date, promptly after each
amending document (if any) has
been entered into.
3
Manager A certified copy to Party A of each Not less than 5 Business Days
Sub-Fund Notice and Security Trust (or such lesser period as
Deed in relation to a Sub-Fund created Party A agrees to) before the
after the date of this Agreement and Trade Date of the first
each other Transaction Document in occurring Transaction entered
relation to such a Sub-Fund as is into by Party B as trustee of
reasonably requested by Party A and the Sub-Fund and in the case
(without limiting any obligation Party of any amending documents
B may have to notify Party A of entered into subsequent to
amendments thereto) a certified copy that date, promptly after each
to Party A of any document that amends amending document (if any) has
in any way the terms of that Sub-Fund been entered into.
Notice or Security Trust Deed or the
terms of any such Transaction Document.
Manager A certified copy to Party A of the Not less than 5 Business Days
terms and conditions of the Relevant (or such lesser period as
Notes in relation to each Transaction Party A agrees to) before the
(if any) and (without limiting any Trade Date of that Transaction
obligation Party B may have to notify and in the case of any
Party A of amendments thereto) a amending documents entered
certified copy to Party A of any into subsequent to that date,
document that amends in any way those promptly after each amending
terms and conditions. document (if any) has been
entered into.
Party A A certified copy to Party B and the Not less than 5 Business Days
Manager of each Credit Support (or such lesser period as
Document (if any) specified in respect Party B and the Manager agree
of Party A and (without limiting any to) before the Trade Date of
obligation Party A may have under the the first occurring
terms of that Credit Support Document Transaction and in the case of
to notify Party B or the Manager of any amending documents entered
amendments thereto) a certified copy into subsequent to that date,
to Party B and the Manager of any promptly after each amending
document that amends in any way the document (if any) has been
terms of that Credit Support Document. entered into.
All documents delivered under this Part 3(b) are covered by the Section 3(d)
representation. For the purposes of this Part 3(b), a copy of a document is
taken to be certified if a director or secretary of the party providing the
document, or a person authorised to execute this Agreement or a Confirmation on
behalf of that party or a solicitor acting for that party, has certified it to
be a true and complete copy of the document of which it purports to be a copy.
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
Address for notices or communications to PARTY A:
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All notices to Party A under Sections 5 or 6 of this Agreement (other
than Section 5(a)(i)) shall be sent to:
[ ]
Attention: [ ]
Telex No.: [ ]Answerback: [ ]
Unless otherwise specified in the Confirmation for the relevant
Transaction, all other notices to Party A shall be sent directly to:
Address: [ ]
Attention: [ ]
Facsimile No.: [ ]Address for notices or communications to PARTY B:
Address: [Perpetual Trustees Australia Limited
Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
XXXXXXXXX]
Attention: [Manager, Securitisation Services]
Facsimile No.: [+ 612 9221 7870]
Additionally, a copy of all notices as well as any changes to Party A's
address, telephone number or facsimile number must be sent to:
Address: Macquarie Securitisation Limited
Xxxxx 00
00 Xxxx Xxxxxx
Xxxxxx XXX 0000
XXXXXXXXX
Attention: The Manager: PUMA Programme
Facsimile No.: + 612 8232 4755
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: [ ]
Party B appoints as its Process Agent: not applicable.
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is a Multibranch Party and may act through the following offices:
[ ].
Party B is not a Multibranch Party.
(e) CALCULATION AGENT.
The Calculation Agent in relation to each Transaction is:
(i) in respect of all notices, determinations and calculations in
respect of amounts denominated in US$, Party A; and
5
(ii) in respect of all other notices, determinations and calculations,
the Manager,
unless otherwise specified in a Confirmation in relation to the relevant
Transaction.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
(i) In relation to Party A: Nil
(ii) In relation to Party B: in relation to the Transactions of a
Sub-Fund, the Security Trust Deed in relation to that Sub-Fund.
(g) CREDIT SUPPORT PROVIDER.
(i) In relation to Party A: Nil
(ii) In relation to Party B: Nil
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws in force in New South Wales and Section
[13(b)(i)] is deleted and replaced by the following:
"(i) submits to the non-exclusive jurisdiction of the courts of New
South Wales and courts of appeal from them; and".
(i) NETTING OF PAYMENTS. Subparagraph [(ii)] of Section [2(c)] of this
Agreement will not apply in respect of all Transactions (entered into by
Party B as trustee of the same Sub-Fund and by Party A through the same
Office).
(j) "AFFILIATE" will have the meaning specified in Section [14] of this
Agreement. However, for the purposes of Section [3(c)] each of Party A,
Party B and the Manager is deemed not to have any Affiliates.
PART 5. OTHER PROVISIONS
(1) PAYMENTS: In Section [2]:
(a) In Section [2(a)(i)] add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party (if any)".
(b) In Section [2(a)(ii)] insert immediately after the words "freely
transferable funds" the following words:
", free of any set-off, counterclaim, deduction or withholding
(except as expressly provided in this Agreement) and in the manner
customary for payment in the required currency".
(c) Insert a new paragraph [(iv)] in Section [2(a)] immediately after
Section [2(a)(iii)] as follows:
"(iv) The condition precedent in Section [2(a)(iii)(1)] does not
apply to a payment due to be made to a party if it has
satisfied all its payment and delivery obligations under
Section [2(a)(i)] and has no future payment or delivery
obligations, whether absolute or contingent under Section
[2(a)(i)]."
(d) Insert a new paragraph (v) in Section [2(a)] immediately after
Section [2(a)(iv)] as follows:
6
"(v) Where
(1) payments are due pursuant to Section [2(a)(i)] by
Party A to Party B (the "PARTY A PAYMENT") and by
Party B to Party A (the "PARTY B PAYMENT") on the
same day; and
(2) the Security Trust Deed in relation to the relevant
Sub-Fund has become, and remains at that time,
enforceable,
then Party A's obligation to make the Party A Payment will
be subject to the condition precedent (which will be an
"applicable condition precedent" for the purpose of Section
[2(a)(iii)(3)]) that Party A first receives either:
(3) the Party B Payment; or
(4) confirmation from Party B's bank that it holds
irrevocable instructions to effect payment of the
Party B Payment and that funds are available to make
that payment."
(e) Add the following new sentence to Section [2(b)]:
"Each new account so designated shall be in the same tax
jurisdiction as the original account."
(f) In Section [2(d)]:
(i) the words "in respect of which X would not be required to
pay an additional amount to Y under Section [2(d)(i)(4)]"
are deleted where they appear in Section [2(d)(ii)(1)]; and
(ii) section [2(d)(i)(4)] is deleted in its entirety,
provided that, notwithstanding the foregoing, Section [2(d)(i)(4)]
and Section [2(d)(ii)] will apply without any amendment with
respect to any payment by Party B to Party A of interest on any
amount calculated as being due by Party B in respect of any Early
Termination Date in respect of any Transaction under Section
[6(e)] to the extent that payment of such amount is delayed by the
operation of Part [5(5)(f)].
(2) REPRESENTATIONS: In Section 3:
(a) Section [3(a)(v)] is amended by inserting immediately after the
words "creditors' rights generally" the following:
"(including in the case of a party being an ADI (as that term is
defined in the Reserve Bank Act, 1959 (Cth)), section 13A(3) of
the Banking Act, 1959 (Cth) or any other analogous provision under
any law applicable to a party.";
(b) the second line of Section [3] is amended by inserting after the
words "is entered into" the words "or novated" and by inserting
"[3(g), 3(h), 3(i) and 3(j)]" after the words "Section [3(f)]";
(c) insert the following new paragraphs [(g), (h), (i) and (j)] in
Section [3 ] immediately after Section [3(f) ]:
"(g) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to
represent to the other parties on the date on which it
enters into a Transaction that (absent a written agreement
between the parties that expressly imposes affirmative
obligations to the contrary for that Transaction):-
7
(i) NON-RELIANCE. It is acting for its own account (or, in the
case of Party B, as trustee of the relevant Sub-Fund), and
it has made its own independent decisions to enter into
that Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
(and in the case of Party B, also on the judgment of the
Manager) and upon advice from such advisers as it has
deemed necessary. It is not relying on any communication
(written or oral) of any other party as investment advice
or as a recommendation to enter into that Transaction; it
being understood that information and explanations related
to the terms and conditions of a Transaction will not be
considered investment advice or a recommendation to enter
into that Transaction. No communication (written or oral)
received from any other party will be deemed to be an
assurance or guarantee as to the expected results of that
Transaction.
(ii) EVALUATION AND UNDERSTANDING. It is capable of evaluating
and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the
terms, conditions and risks of that Transaction. It is also
capable of assuming, and assumes, the risks of that
Transaction.
(iii) STATUS OF PARTIES. No other party is acting as a fiduciary
or an adviser to it in respect of that Transaction.
(h) SUB-FUND. By Party B, in respect of Party B only, in its
capacity as trustee of the relevant Sub-Fund in respect of
each Transaction:
(i) SUB-FUND VALIDLY CREATED. The Sub-Fund has been
validly created and is in existence at the date of
this Agreement.
(ii) SOLE TRUSTEE. It has been validly appointed as
trustee of the Sub-Fund and is presently the sole
trustee of the Sub-Fund.
(iii) NO PROCEEDINGS TO REMOVE. No notice has been given
to it and to its knowledge no resolution has been
passed, or direction or notice has been given,
removing it as trustee of the Sub-Fund.
(iv) POWER. It has power under the Trust Deed to enter
into this Agreement and the Security Trust Deed in
relation to the Sub-Fund in its capacity as trustee
of the Sub-Fund.
(v) GOOD TITLE. It is the lawful owner of the assets of
the Sub-Fund and has power under the Trust Deed to
mortgage or charge them in the manner provided in
the Security Trust Deed in relation to the Sub-Fund
and, subject only to that Security Trust Deed and
any Security Interest permitted under that Security
Trust Deed, those assets are free of all other
Security Interests (except for Party B's right of
indemnity out of the assets of the Sub-Fund).
(i) NON-ASSIGNMENT. It has not assigned (whether absolutely, in
equity, by way of security or otherwise), declared any
trust over or given any charge over any of its rights under
this Agreement or any Transaction except, in the case of
Party B, for the Security Interests created under a
Security Trust Deed.
8
(j) CONTRACTING AS PRINCIPAL. Each Transaction is entered into
by that party as principal and not otherwise."
(d) insert the following paragraph at the end of Section [3]:
"Party B may notify Party A, the Manager and each Current Rating
Authority in relation to a Sub-Fund of any circumstance which may
arise from time to time of which it becomes aware and which would
constitute a breach of any representation or warranty contained in
this Section [3]. In the event that Party B makes such
notification, the relevant representation or warranty to which the
notification relates will be deemed not to be repeated by Party B
on each date on which a Transaction is entered into or novated (or
in the case of the representations in Section [3(f),(g),(h), (i)
and (j)] at any time) after the date of such notification."
(3) EVENT OF DEFAULT: In Section [5(a)]:
(a) FAILURE TO PAY OR DELIVER: delete paragraph [(i)] and replace it
with the following:
"(i) FAILURE TO PAY OR DELIVER. Failure by the party to make,
when due, any payment under this Agreement or delivery
under Section [2(a)(i) or 2(e)] required to be made by it
if such failure is not remedied at or before 10.00am on the
tenth day after notice of such failure is given to the
party;"
(b) CONSEQUENTIAL AMENDMENTS:
(i) delete "or" at the end of Section [5(a)(vii)]; and
(ii) replace the full stop at the end of Section [5(a)(viii)]
with "; or"; and
(c) DOWNGRADE OBLIGATIONS: insert the following new paragraph [(ix)]:
"(ix) DOWNGRADE OBLIGATIONS. In respect of Party A only, Party A
fails to comply with Part 5(21) if such failure is not
remedied on or before the tenth Business Day (or such later
day as Party B and the Manager may agree and which the
Current Rating Authorities confirm in writing will not
result in a reduction, qualification or withdrawal of the
credit ratings then assigned by them to the Relevant Notes
in relation to the Transactions) after notice of such
failure is given to Party A.".
(4) TERMINATION EVENTS:
(a) ILLEGALITY: In respect of each Currency Swap, the parties agree
that the imposition by any Governmental Agency of an Australian
jurisdiction of any exchange controls, restrictions or
prohibitions which would otherwise constitute an Illegality for
the purposes of Sections [5(b)(i) or 5(c)] will not be an event
which constitutes an Illegality for the purposes of those Sections
so that following the occurrence of such event:
(i) neither Party A nor Party B will be entitled to designate
an Early Termination Date in respect of that Currency Swap
as a result of that event occurring;
(ii) payment by Party B in accordance with Part [5(1)] of the
Schedule or the Confirmation will continue to constitute
proper performance of its payment obligations in respect of
that Currency Swap; and
(iii) Party A's obligations in respect of that Currency Swap or
this Agreement
9
will, to the extent permitted by law, be unaffected by the
occurrence of that event,
but nothing in this Part [5(4)(a)] limits the rights of Party A or
Party B in relation to any other Termination Event or Event of
Default resulting from such event including any rights of Party A
or Party B arising as a result of a failure by Party A or Party B
to make any payment in accordance with this Agreement.
(b) PARTY A'S LIMITED RIGHTS IN RELATION TO TAX EVENT:
(i) Subject to Section [6(b)(ii)], Party A may designate an
Early Termination Date in respect of a Transaction if it is
an Affected Party following a Tax Event only if the Manager
or the Relevant Note Trustee (if any) in relation to the
Transaction has notified the parties in writing that it is
satisfied that all amounts owing to the Relevant
Noteholders in respect of the Transaction are capable of
being paid in full on the date on which the Relevant Notes
in respect of the Transaction are to be redeemed.
(ii) If a Tax Event in respect of a Transaction occurs where
Party A is the Affected Party and Party A is unable to
transfer all its rights and obligations under this
Agreement in respect of the Transaction to an Affiliate
pursuant to Section [6(b)(ii)], Party A may, at its cost,
transfer all its rights, powers and privileges and all its
unperformed and future obligations under this Agreement in
respect of the Transaction to any person approved by the
Manager (which approval must not be unreasonably withheld)
provided that each Current Rating Authority in relation to
the relevant Sub-Fund has confirmed in writing that the
transfer will not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them to
the Relevant Notes in relation to the Transactions of that
Sub-Fund.
(5) TERMINATION:
(a) TERMINATION BY PARTY B: Party B must not designate an Early
Termination Date in relation to a Transaction without the prior
written consent of the Relevant Note Trustee (if any) in relation
to that Transaction.
(b) TERMINATION BY THE RELEVANT NOTE TRUSTEE: If while an Event of
Default or Termination Event that gives Party B the right to
designate an Early Termination Date in relation to a Transaction
is subsisting, Party B does not exercise its right to terminate a
Transaction, then the Relevant Note Trustee (if any) in relation
to that Transaction may designate an Early Termination Date in
relation to that Transaction as if it were a party to this
Agreement.
(c) CONSULTATION ON EARLY TERMINATION DATE: Each party may only
designate an Early Termination Date after using its best
endeavours to have prior consultation with the other parties as to
the timing of the Early Termination Date.
(d) TRANSFERS TO AVOID TERMINATION:
Section [6(b)(ii)] is amended as follows:
(i) The following sentences are added at the end of the second
paragraph:
"However, if Party A is that other party it must, if so
requested by the Manager, use reasonable efforts to make
such a transfer to an Affiliate provided the Current Rating
Authorities have given prior written
10
confirmation to the Manager or the Relevant Note Trustee
(if any) that such a transfer will not result in a
reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Relevant Notes in
relation to the Affected Transactions. Party A will not be
required to incur a loss, excluding immaterial incidental
expenses, in connection with any such transfer."
(ii) The third paragraph is deleted and replaced with the
following:
"Any such transfer by a party under this Section [6(b)(ii)]
will be subject to and conditional upon the prior written
consent of the other party, which consent will not be
withheld:
(1) where the other party is Party A, if Party A's
policies in effect at such time would permit it to
enter into transactions with the transferee on the
terms proposed; or
(2) where the other party is Party B, if the Current
Rating Authorities have confirmed in writing that
such transfer will not result in a reduction,
qualification or withdrawal of the credit ratings
then assigned by them to the Relevant Notes in
relation to the Affected Transactions."
(e) DETERMINATION OF MARKET QUOTATION BY PARTY B: If Party B is
required to determine a Market Quotation in respect of a
Terminated Transaction pursuant to Section [6(e)], Party B must
consult with Party A in relation to such determination prior to
making the determination and must provide to each Reference
Market-maker in relation to the Market Quotation such information
in relation to the Terminated Transaction, provided by Party A to
Party B, as Party A may reasonably request.
(f) TERMINATION PAYMENTS BY PARTY B: Notwithstanding Section
[6(d)(ii)], any amount calculated as being due by Party B in
respect of any Early Termination Date in respect of a Currency
Swap under Section 6(e) will be payable (along with interest on
the outstanding amount from that Early Termination Date to the
date of payment in accordance with Section 6(e)) on the Payment
Date in relation to that Currency Swap (as specified in the
relevant Confirmation) immediately following the date that such
amount would otherwise be payable under Section [6(d)(ii)] (or
will be payable on that date if that date is a Payment Date)
except to the extent that such amount may be satisfied from a
distribution under the relevant Security Trust Deed or the payment
of an upfront premium in respect of a Replacement Currency Swap in
accordance with Part [5(16)(b)].
(6) CURRENCY SWAPS:
(a) Subject to paragraph (b), if an Early Termination Date is
designated in respect of a Currency Swap:
(i) an amount with respect to that Early Termination Date and
Currency Swap must be calculated in accordance with Section
[6(e)(i)(3)] or Section [6(e)(ii)], as applicable,
independently of any other Transactions (including any
other Currency Swap) and notwithstanding that there are
other Terminated Transactions in relation to that Early
Termination Date; and
(ii) that amount (and any interest on it) must be paid in
accordance with Section [6(d)(ii)] independently of amounts
due by or to the payer in respect of other Terminated
Transactions (and without set-off against
11
amounts due to the payer under this Agreement or
otherwise).
(b) Notwithstanding paragraph (a), any amount payable by or to a party
in respect of an Early Termination Date being designated in
relation to a Currency Swap may be set-off against any sum or
obligation owing to or by that party in accordance with Part
[5(25)].
Nothing in this Part [5(6)] affects the obligation of the parties under
Section 6 in respect of Transactions which are not Currency Swaps.
(7) NO SET-OFF: Section [6(e)] is amended by deleting the last sentence of
the first paragraph.
(8) TRANSFER: Section [7] is replaced with:
"7. ESSENTIAL TERM: TRANSFER
(a) Neither the interests nor the obligations of either party
in or under this Agreement (including any Transaction) are
capable of being assigned or transferred (whether at law,
in equity or otherwise), charged or the subject of any
trust (other than the relevant Sub-Fund or the trust and
charge created pursuant to the Credit Support Document in
relation to Party B) or other fiduciary obligation. Any
action by a party which purports to do any of these things
is void.
(b) Nothing in this Section 7:
(i) restricts a transfer by a party after the other
parties have agreed to the variation of this
Agreement to the extent necessary to permit such
transfer;
(ii) restricts a novation of the interests and
obligations of a party in or under this Agreement
(including any Transaction) including, but not
limited to, for the purposes of giving effect to a
transfer under Section [6(b)(ii)], Part
[5(4)(b)(ii)], Part [5(21)(b) or Part 5(27)];
(iii) restricts a transfer by a party of all or any part
of its interest in any amount payable to it from a
Defaulting Party under Section [6(e)];
(iv) restricts a transfer by Party B or the Manager to a
new Trustee or new Manager, respectively, in
accordance with the Trust Deed or Management Deed;
or
(v) restricts Party B from granting security over a
Transaction or this Agreement pursuant to the Credit
Support Document in relation to Party B.
(c) Each party acknowledges that the other party enters into
this Agreement and each Transaction on the basis that this
Section [7] must be strictly observed and is essential to
the terms of this Agreement (including each Transaction)."
(9) FACSIMILE TRANSMISSION: In Section [12]:
(a) delete the following words where they appear in lines 2 and 3 of
Section [12(a)]:
"(except that a notice or other communication under Section [5] or
Section [6] may not be given by facsimile transmission or
electronic messaging system)".
12
(b) replace Section [12(a)(iii)] with:
"(iii) if sent by facsimile transmission, on the date a
transmission report is produced by the machine from which
the facsimile was sent which indicates that the facsimile
was sent in its entirety to the facsimile number of the
recipient notified for the purpose of this Section unless
the recipient notifies the sender within one Business Day
of the facsimile being sent that the facsimile was not
received in its entirety in legible form;"; and
(c) insert a new paragraph [(vi)] in Section [12(a)] immediately after
Section [12(a)(v)] as follows:
"(vi) if sent by ordinary mail, on the third (or the seventh, if
posted by airmail) day after posting.".
(10) DEFINITIONS
In this Agreement, unless the contrary intention appears:
(a) TRUST DEED: subject to Part [5(10)(h)], unless defined in this
Agreement words and phrases defined in the Trust Deed have the
same meaning in this Agreement;
(b) TRUSTEE CAPACITY:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the relevant Sub-Fund only, and in
no other capacity;
(ii) a reference to the undertaking, assets, business or money
of Party B is a reference to the undertaking, assets,
business or money of Party B in the capacity referred to in
Part [5(10)(b)(i)] only; and
(iii) without limiting the foregoing, Section [5(a)(vii)] will
only apply to Party B in its capacity as trustee of the
relevant Sub-Fund and:
(A) reference in Section [5(a)(vii)(1)] to Party B being
dissolved is to the relevant Sub-Fund being
dissolved;
(B) Party B in its capacity as trustee of the relevant
Sub-Fund is not insolvent or unable to pay its debts
for the purposes of Section [5(a)(vii)(2)] to the
extent that its obligation to make any payment is
limited by the Transaction Documents in relation to
the Sub-Fund; and
(C) the appointment of a new Trustee in relation to the
Sub-Fund in accordance with the Trust Deed is not,
of itself, an event to which Section [5(a)(vii)]
applies in relation to Party B.
(c) DEFINITIONS: in Section [14]:
(i) replace the definition of "LOCAL BUSINESS DAY" with the
following:
""LOCAL BUSINESS DAY" has the same meaning as given to the
term "BUSINESS DAY" in the Confirmation for each
Transaction (including by way of incorporation by
reference)."
(ii) insert the following new definitions:
13
"CURRENCY SWAP" means a Transaction which, in the relevant
Confirmation, is expressed to be a Currency Swap for the
purposes of the Agreement.
"CURRENT RATING AUTHORITY" in relation to the Transactions
of a Sub-Fund has the meaning given to that term in
relation to the Sub-Fund in the Trust Deed.
"MASTER NOVATION ANNEX" means the Master Novation Annex
annexed to this Schedule.
"PRESCRIBED RATING PERIOD" in relation to a Transaction
means (unless otherwise specified in the Confirmation in
relation to the Transaction) in relation to any credit
ratings assigned to Party A by a Current Rating Authority:
(a) a period of 30 Business Days from the date of
assignment of that credit rating where the credit
ratings of Party A immediately after that assignment
are less than the Prescribed Rating but greater than
or equal to a short term credit rating of A-2 by S&P
and long term credit ratings of BBB+ by S&P, A3 by
Moody's and BBB+ by Fitch; and
(b) a period of 5 Business Days from the date of
assignment of that credit rating where the credit
ratings of Party A immediately after that assignment
are less than a short term credit rating of A-2 by
S&P and long term credit ratings of BBB+ by S&P, A3
by Moody's and BBB+ by Fitch,
or, in either case, such greater period as is agreed to in
writing by each relevant Current Rating Authority. If any
one or more of S&P, Moody's or Fitch is not a Current
Rating Authority in relation to the Transaction then the
ratings of such a credit rating agency will not be relevant
for the purposes of determining the Prescribed Rating
Period.
"PRESCRIBED RATING" means, unless otherwise specified in
the Confirmation in relation to the Transaction:
(a) in relation to a Transaction which is a Currency
Swap either a short term credit rating of A-1+ by
S&P or a long term credit rating of AA- by S&P (if
S&P is a Current Rating Authority in relation to the
Transaction), a short term credit rating of F1 by
Fitch or a long term credit rating of A by Fitch (if
Fitch is a Current Rating Authority in relation to
the Transaction) and a long term credit rating of A2
by Moody's (if Xxxxx'x is a Current Rating Authority
in relation to the Transaction); or
(b) in relation to all other Transactions, either a
short term credit rating of A-1 by S&P (if S&P is a
Current Rating Authority in relation to the
Transaction) and long term credit ratings of A by
Fitch (if Fitch is a Current Rating Authority in
relation to the Transaction) and of A2 by Moody's
(if Xxxxx'x is a Current Rating Authority in
relation to the Transaction).
"RELEVANT NOTE TRUSTEE" in relation to a Transaction has
the meaning (if any) given to that term in the Confirmation
for that Transaction.
"RELEVANT NOTES" in relation to a Transaction means
(subject to the
14
relevant Confirmation) all the Notes issued by the Trustee
as trustee of the relevant Sub-Fund in relation to the
Transaction, and all Specified Investor Securities in
relation to those Notes, in each case which remain
outstanding.
"RELEVANT NOTEHOLDERS" in relation to a Transaction means
the Noteholders in respect of the Relevant Notes in
relation to that Transaction.
"REPLACEMENT CURRENCY SWAP" has the meaning given to it in
Part [5(16)].
"TRUST DEED" means the Deed of Trust dated 13 July 1990 (as
amended in its application to the relevant Sub-Fund) made
between the party named as the Founder in the First
Schedule of that Deed and Party B, pursuant to which the
trust funds collectively known as the "PUMA Fund" are
constituted.
(d) INTERPRETATION:
(i) unless specified otherwise, references to time are
references to Sydney time;
(ii) a reference to "WILFUL DEFAULT" in relation to Party B
means, subject to Part [5(10)(d)(iii)] of this Schedule,
any wilful failure by Party B to comply with, or wilful
breach by Party B of, any of its obligations under any
Transaction Document in relation to the relevant Sub-Fund,
other than a failure or breach which:
A. (1) arises as a result of a breach of such a
Transaction Document by a person other than:
(a) Party B; or
(b) any other person referred to in Part
[5(10)(d)(iii)] of this Schedule; and
(2) the performance of the action (the non-
performance of which gave rise to such
breach) is a precondition to Party B
performing the said obligation;
B. is in accordance with a lawful court order or
direction or required by law; or
C. is in accordance with any proper instruction or
direction of:
(1) the Secured Creditors given at a meeting or
deemed meeting of Secured Creditors convened
pursuant to the Security Trust Deed in
relation to the relevant Sub-Fund; or
(2) Noteholders in relation to Notes of the
relevant Sub-Fund given at a meeting or
deemed meeting convened under the Trust Deed
or an Issuing Document;
15
(iii) a reference to the "FRAUD", "NEGLIGENCE" or "WILFUL
DEFAULT" of Party B means the fraud, negligence or wilful
default of Party B and of its officers, employees, agents
and any other person where Party B is liable for the acts
or omissions of such other person under the terms of any
Transaction Document in relation to the relevant Sub-Fund;
(iv) a reference to "neither party" will be construed as a
reference to "no party";
(v) a reference to "other party" will be construed as a
reference to "other parties"; and
(vi) where a relevant Sub-Fund was created prior to 7 September,
2001 a reference to "Notes" is to be construed as a
reference to "Registered Stock" and a reference to
"Noteholders" to be construed as a reference to
"Investors".
(e) ISDA DEFINITIONS: The 2000 ISDA Definitions and Annex to the 2000
ISDA Definitions (as published by the International Swaps and
Derivatives Association, Inc ("ISDA")) (the "2000 ISDA
DEFINITIONS") as at the date of this Agreement are incorporated
into this Agreement and each Confirmation.
(f) INCONSISTENCY: Subject to Part [5(10)(a)], unless specified
otherwise, in the event of any inconsistency between any two or
more of the following documents in respect of a Transaction they
will take precedence over each other in the following order in
respect of that Transaction:
(i) any Confirmation;
(ii) this Schedule;
(iii) the 2000 ISDA Definitions; and
(iv) the printed form of the 1992 ISDA Master Agreement which
forms part of this Agreement.
(g) SWAP TRANSACTION: Any reference to a:
(i) "SWAP TRANSACTION" in the 2000 ISDA Definitions is deemed
to be a reference to a "TRANSACTION" for the purpose of
interpreting this Agreement or any Confirmation; and
(ii) "TRANSACTION" in this Agreement or any Confirmation is
deemed to be a reference to a "SWAP TRANSACTION" for the
purpose of interpreting the 2000 ISDA Definitions.
(h) INCORPORATED DEFINITIONS AND OTHER TRANSACTION DOCUMENTS AND
PROVISIONS: Where in this Agreement a word or expression is
defined by reference to its meaning in another Transaction
Document or there is a reference to another Transaction Document
or to a provision of another Transaction Document, any amendment
to the meaning of that word or expression or to that other
Transaction Document or provision (as the case may be) will be of
no effect for the purposes of this Agreement unless and until the
amendment is consented to by the parties to this Agreement.
(11) LIMITATION OF LIABILITY: Insert the following Section [15], after Section
[14]:
"15. PARTY B'S LIMITATION OF LIABILITY
16
(a) (LIMITATION ON PARTY B'S LIABILITY): Party B enters into
this Agreement only in its capacity as trustee of the
relevant Sub-Fund (as defined below) and in no other
capacity. A liability incurred by Party B acting in its
capacity as trustee of the relevant Sub-Fund 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 relevant Sub-Fund
out of which Party B is actually indemnified for the
liability. This limitation of Party B liability applies
despite any other provision of this Agreement (other than
Section [15(c)]) and extends to all liabilities and
obligations of Party B in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this Agreement.
(b) (CLAIMS AGAINST PARTY B): The parties other than Party B
may not xxx Party B in respect of liabilities incurred by
Party B acting in its capacity as trustee of the relevant
Sub-Fund in any other capacity other than as trustee of
that Sub-Fund, including seek the appointment of a receiver
(except in relation to assets of that Sub-Fund), a
liquidator, an administrator, or any 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 that Sub-Fund).
(c) (BREACH OF TRUST): The provisions of this Section [15] will
not apply to any obligation or liability of Party B in
respect of the relevant Sub-Fund to the extent that it is
not satisfied because under the Trust Deed or any other
Transaction Document in relation to the relevant Sub-Fund
or by operation of law there is a reduction in the extent
of Party B's indemnification out of the assets of the
relevant Sub-Fund, as a result of Party B's fraud,
negligence or wilful default in respect of the relevant
Sub-Fund.
(d) (ACTS OR OMISSIONS): It is acknowledged that the Manager
and other parties to the Transaction Documents in relation
to the relevant Sub-Fund other than Party B (the "RELEVANT
PARTIES") are responsible under those Transaction Documents
for performing a variety of obligations relating to the
relevant Sub-Fund. No act or omission of Party B (including
any related failure to satisfy its obligations or any
breach of representation or warranty under this Agreement)
will be considered fraudulent, negligent or a wilful
default of Party B for the purpose of paragraph (c) of this
Section [15] in respect of the relevant Sub-Fund to the
extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or any
other person appointed by Party B under any such
Transaction Document (other than a person whose acts or
omissions Party B is liable for in accordance with such a
Transaction Document) to fulfil its obligations relating to
the relevant Sub-Fund or by any other act or omission of a
Relevant Party or any other such person.
(e) (NO OBLIGATION): Party B is not obliged to enter into any
further commitment or obligation under this Agreement or
any Transaction Document unless Party B's liability is
limited in a manner which is consistent with this Section
[15] or otherwise in a manner satisfactory to Party B in
its absolute discretion.
(f) (SEGREGATION): Party B will enter into each Transaction as
trustee of a Sub-Fund. Each Confirmation in relation to a
Transaction must specify the name of the Sub-Fund to which
the Transaction relates and each
17
novation of a Transaction pursuant to the Master Novation
Annex must specify the name of Sub-Fund to which the
relevant Transaction is being novated. Without limiting the
generality of this Section [15], the provisions of this
Agreement shall have effect severally in respect of each
Sub-Fund in respect of which the Trustee holds its rights
under a Transaction whether by originally being a party to
the Transaction in that capacity or as a result of a
novation (each a "RELEVANT SUB-FUND") and shall be
enforceable by or against Party B in its capacity as
trustee of each such Sub-Fund as though a separate
Agreement applied between Party A and Party B for each of
Party B's said several capacities, to the intent that
(inter alia):
(i) unless the context indicates a contrary intention,
each reference to "Party B" in this Agreement shall
be construed as a several reference to Party B in
its capacity as trustee of the relevant Sub-Fund;
(ii) this Agreement together with each Confirmation
relating to the relevant Sub-Fund will form a single
separate agreement between Party A and Party B in
its capacity as trustee of that Sub-Fund and
references to the respective obligations (including
references to payment obligations generally and in
the context of provisions for the netting of
payments and the calculation of amounts due on early
termination) of Party A and Party B shall be
construed accordingly as a several reference to each
mutual set of obligations arising under each such
separate agreement between Party A and Party B in
its several capacities as trustee of each relevant
Sub-Fund and, other than where the context requires
otherwise in this Section [15(f)], reference in this
Agreement to the "Sub-Fund" or the "relevant
Sub-Fund" is to that Sub-Fund only in the separate
agreement relating to that Sub-Fund;
(iii) representations made and agreements entered by the
parties under this Agreement are made and entered
severally by Party B in its capacity as trustee of
each Sub-Fund and may be enforced by Party B against
Party A severally in Party B's said several
capacities (and by Party A against Party B in Party
B's said several capacities);
(iv) rights of termination, and obligations and
entitlements consequent upon termination, only
accrue to Party A against Party B severally in Party
B's capacity as trustee of each Sub-Fund, and only
accrue to Party B against Party A severally in Party
B's said several capacities; and
(v) without limiting Section [15], the occurrence of an
Event of Default or Termination Event in respect of
one Sub-Fund shall not in itself constitute an Event
of Default or Termination Event in respect of any
other Sub-Fund."
(12) FURTHER ASSURANCES: Each party will, upon request by the other party (the
"REQUESTING PARTY") at the expense of the requesting party, perform all
such acts and execute all such agreements, assurances and other documents
and instruments as the requesting party reasonably requires (and, in the
case of Party B, are within the powers granted to Party B under the Trust
Deed) to assure and confirm the rights and powers afforded, created or
intended to be
18
afforded or created, under or in relation to this Agreement and each
Transaction or other dealing which occurs under or is contemplated by it.
(13) PROCEDURES FOR ENTERING INTO TRANSACTIONS
(a) With respect to each Transaction entered into pursuant to this
Agreement and for the purposes of Section [9(e)(ii)], Party A
will, by or promptly after the relevant Trade Date, send Party B
and the Manager a Confirmation in such form as may be agreed
between Party A, Party B and the Manager, and Party B and the
Manager must promptly then confirm the accuracy of and sign and
return, or request the correction of, such Confirmation.
(b) Party B will enter into each Transaction in its capacity as
trustee of a Sub-Fund as specified in the relevant Confirmation.
(14) AUTHORISED OFFICER: Each party will be entitled to assume, in the absence
of any knowledge to the contrary, that any person signing any
Confirmation, notice or other written communication issued in respect of
this Agreement on behalf of a party is authorised by that party to do so.
(15) RECORDED CONVERSATIONS: Each party:
(a) consents to the electronic recording of its telephone
conversations with another party (or any of its associated
persons) with or without the use of an automatic tone warning
device;
(b) will provide transcripts of such recordings (if any) upon
reasonable request by the other party (at the reasonable cost of
the party requesting);
(c) acknowledges that such recordings and transcripts can be used as
evidence by either party in any dispute between them; and
(d) acknowledges that no party is obligated to maintain copies of such
recordings and transcripts for the benefit of another party.
(16) REPLACEMENT CURRENCY SWAP:
(a) If any Transaction under this Agreement which is a Currency Swap
is terminated, Party B may, at the direction of the Manager, enter
into one or more currency swaps which replace that Transaction
(collectively a "REPLACEMENT CURRENCY SWAP") provided that:
(i) the Current Rating Authorities in relation to the
Transaction confirm in writing that the entry into the
Replacement Currency Swap by Party B will not result in a
reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Relevant Notes in
relation to the Transaction; and
(ii) the liability of Party B under the Replacement Currency
Swap is limited to at least the same extent that its
liability is limited under that Transaction.
(b) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount (or any interest on that
Settlement Amount in accordance with Section [6(d)(ii))] is
payable by Party B to Party A upon termination of the Transaction
referred to in Part [5(16)(a)], Party B must (unless otherwise
agreed between Party A, Party B and the Manager) direct the
Replacement Currency Swap provider to pay any upfront premium to
enter into the Replacement Currency Swap
19
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 (and
any interest on that Settlement Amount in accordance with Section
[6(d)(ii)]) to Party A, and to the extent such premium is not
greater than or equal to the Settlement Amount, the balance may be
satisfied by Party B as Fees and Expenses of the relevant
Sub-Fund.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount (or any interest on that
Settlement Amount in accordance with Section [6(d)(ii)]) is
payable by Party A to Party B upon termination of the Transaction
referred to in Part [5(16)(a)], Party B must (unless otherwise
agreed between Party A, Party B and the Manager) direct Party A to
pay that amount to the Replacement Currency Swap provider in
satisfaction of or towards and to the extent of Party B's
obligation (if any) to pay an upfront premium to the Replacement
Currency Swap provider to enter into the Replacement Currency
Swap.
(d) The rights and obligations of the parties under this Part [5(16)]
will survive the termination of this Agreement.
(17) KNOWLEDGE OR AWARENESS: Subject to Section [12(a)], each party will only
be considered to have knowledge or awareness of, or notice of, a thing or
grounds to believe anything by virtue of the officers of that party or
any Related Body Corporate of that party which have the day to day
responsibility for the administration or management of that party's (or a
Related Body Corporate of that party's) obligations in relation to the
relevant Sub-Fund or the Transactions entered into under this Agreement
having actual knowledge, actual awareness or actual notice of that thing,
or grounds or reason to believe that thing (and similar references will
be interpreted in this way).
(18) DISCLOSURE TO RELATED BODIES CORPORATE: In relation to information Party
B in its capacity as trustee of the Sub-Fund (the "RECIPIENT") receives
from the Manager or Party A (the "DISCLOSER") in relation to a Sub-Fund
or the trust established under the Security Trust Deed (the
"INFORMATION"), each Discloser hereby severally authorises and consents
to the Recipient making available such Information, except to the extent
that the making available of such Information is prohibited by law
(including, without limitation, the Privacy Act), to:
(a) (RELATED BODY CORPORATE): any Related Body Corporate of the
Recipient which acts as custodian or Security Trustee of the
assets of the Sub-Fund or which otherwise has responsibility for
the management or administration of the Sub-Fund, including its
assets; and
(b) (RECIPIENT): the Recipient acting in its capacity as Manager or
custodian (as applicable) of the Sub-Fund.
Notwithstanding any other provision of this Agreement, the Recipient will
not have any liability to the Discloser or any other person for the use,
non-use, communication or non-communication of the Information in the
above manner, except to the extent to which the Recipient has an express
contractual obligation to disclose or not to disclose or to use or not to
use certain information received by it and fails to do so. The Recipient
must ensure that each person referred to in paragraphs (a) and (b) above
is bound by the same duties of confidentiality in relation to any
Information received by that person pursuant to this Part [5(18)] as
apply to the Recipient.
(19) RESTRICTIONS ON PARTY B'S RIGHTS: Party B must at all times act in
accordance with the instructions of the Manager in relation to this
Agreement.
(20) APPOINTMENT OF MANAGER: Party B hereby exclusively appoints the Manager
as its attorney to act on Party B's behalf and exercise all rights and
powers of Party B with respect to this Agreement. Without limiting the
generality of the foregoing, the Manager may issue and receive on behalf
of Party B all notices, certificates and other communications to or by
Party A
20
under this Agreement until such time as Party B serves written notice on
Party A of the revocation of the Manager's authority to act on behalf of
Party B in accordance with this Part [5(20)]. The Manager hereby accepts
such appointment. Party A is not obliged to enquire into the authority of
the Manager to exercise or satisfy any of Part B's rights or obligations
on Party B's behalf.
(21) COLLATERALISATION OF PARTY A'S OBLIGATIONS UNDER THE TRANSACTIONS:
(a) (MAINTAINING RATINGS): If the unsecured and unsubordinated debt
obligations of Party A (or any applicable assignee or its
guarantor) shall cease to have a credit rating equal to or higher
than the Prescribed Rating in relation to any Transactions of a
Sub-Fund, then Party A shall immediately notify the Current Rating
Authorities in relation to the Transactions and Party B and within
the Prescribed Rating Period in relation to the Transactions
(unless during this period Party A and Party B receive written
confirmation from those Current Rating Authorities that the
downgrade would not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them to the
Relevant Notes in relation to the Transactions) at its cost
either:
(i) provided that Party A and Party B receive prior written
confirmation from such Current Rating Authorities that
there will not be a reduction, qualification or withdrawal
of the credit ratings then assigned by them to the Relevant
Notes in relation to the Transactions as a result of the
downgrade following collateral arrangements being put in
place, put in place an appropriate xxxx-to-market
collateral agreement (consisting of either cash or
securities) which may be based either on S&P's New Interest
Rate and Currency Swap Criteria published in January 1999
(as may be amended from time to time) or on any other
agreement reached between the parties, in support of its
obligations under the relevant Transactions;
(ii) enter into an agreement novating its rights and obligations
under this Agreement in respect of the relevant
Transactions to a replacement swap counterparty which the
Current Rating Authorities in relation to the Transactions
confirm in writing will not result in a reduction,
qualification or withdrawal of the credit ratings then
assigned by them to the Relevant Notes in relation to the
Transactions; or
(iii) enter into some other arrangements in respect of those
Transactions which the Current Rating Authorities in
relation to the Transactions confirm in writing will not
result in a reduction, qualification or withdrawal of the
credit ratings then assigned by them to the Relevant Notes
in relation to the Transactions.
(b) (AMENDING AGREEMENT): If collateral is lodged under Part
[5(21)(a)(i)] above, the parties must execute an amending
agreement incorporating into this Agreement an ISDA Credit Support
Annex (New York law or English law version as selected by Party
A), and until executed such an ISDA Credit Support Annex will be
taken to supplement and form part of this Agreement, and any
collateral lodged will be subject to its terms, as if the ISDA
Credit Support Annex were incorporated into this Agreement (but
without any Paragraph 13 other than as necessary to give effect to
the obligations described in this Part [5(21)]) prior to the
lodgement of any such collateral. Party B and the Manager
acknowledge that any collateral lodged under Part [5(21)(a)(i)]
will not be an asset of the Sub-Fund in relation to the
Transactions available for distribution in accordance with the
Security Trust Deed in relation to that Sub-Fund.
21
(c) (FURTHER ASSURANCE): Where Party A elects to novate its rights and
obligations under this Agreement in respect of the Transactions to
a replacement counterparty in accordance with Part [5(21)(a)(ii)]
above, Party B, at the direction of the Manager, and the Manager
must, at the cost of Party A, do all things requested by Party A
which are necessary to novate the relevant rights and obligations
to the replacement counterparty.
(d) (RETURN OF COLLATERAL): If, at any time, Party A's obligations
under this Agreement in respect of the Transactions are novated in
accordance with Part [5(21)(a)(ii)] above, Party A shall be
immediately entitled to any collateral which it has provided under
any collateral agreement contemplated by Part [5(21)(a)(i)] (less
any amount withdrawn in accordance with Part [5(21)(e)]).
(e) (WITHDRAWALS OF COLLATERAL): Party B may only make withdrawals
from any account into which collateral is provided by Party A (the
"COLLATERAL ACCOUNT") if directed to do so by the Manager and then
only for the purpose of:
(i) novating obligations under this Agreement in respect of the
Transactions in accordance with Part [5(21)(a)(ii)]
(including the costs of obtaining a replacement
counterparty);
(ii) refunding to Party A any excess in the amount of any
collateral deposited to the Collateral Account over the
amount Party A is required to maintain under any collateral
agreement contemplated by Part [5(21)(a)(i)];
(iii) withdrawing any amount which has been incorrectly deposited
into the Collateral Account;
(iv) paying bank accounts debit tax or other equivalent taxes
and any fees payable in respect of the 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.
The Manager must direct Party B to, and Party B must, refund or
pay to Party A the amount of any payment which may be made to
Party A under paragraphs (ii) or (iii) above as soon as such
refund or payment is possible.
(f) (INTEREST): All interest on the Collateral Account will accrue and
be payable monthly to Party A providing the amount deposited to
the Collateral Account is not less than the amount Party A is
required to maintain under the collateral agreement contemplated
by Part [5(21)(a)(i)].
(g) (VARIATION): Notwithstanding that Party A has elected to satisfy
its obligations pursuant to this Part [5(21)] in a particular
manner, it may subsequently and from time to time vary the manner
in which it satisfies its obligations pursuant to this Part
[5(21)] (but will not be entitled to any additional grace period
in relation to such a variation).
(22) AMENDMENT TO THIS AGREEMENT: None of Party A, Party B or the Manager may
amend this Agreement to the extent that it applies to any Transaction
unless the Current Rating Authorities in relation to the Transaction have
confirmed in writing that the proposed amendment will not result in a
reduction, qualification or withdrawal of the credit ratings then
assigned by them to the Relevant Notes in relation to the Transaction.
22
(23) HEDGE ARRANGEMENT: Party B and the Manager agree that each Transaction of
a relevant Sub-Fund is a "Hedge Arrangement" and (where applicable) a
"Support Facility" for the purposes of the Trust Deed and the Security
Trust Deed with respect to the Sub-Fund.
(24) NO AMENDMENT: Each of Party B and the Manager agrees that it will not
consent to any amendment to any provision in any Transaction Document in
relation to a Sub-Fund with respect to which there is a Transaction
dealing with the ranking, priority or entitlement of Party A in respect
of any security or moneys relating to that Sub-Fund without the prior
written consent of Party A.
(25) SET OFF: A new Section [6(f)] is inserted as follows:
"(f) (i) Upon the designation of any Early Termination Date in
respect of all Transactions, and subject to paragraph (ii)
below, the party that is not the Defaulting Party or
Affected Party ("X") may, subject to sub-paragraph (ii)
below, without prior notice to the Defaulting or Affected
Party ("Y"), set off any sum or obligation arising under
this Agreement or any other ISDA Master Agreement between
Party A (or any Affiliate of Party A) and Party B ("OTHER
ISDA") (whether matured or unmatured, whether or not
contingent and irrespective of the currency, place of
payment or booking office of the sum or obligation) owed by
Y to X or any Affiliate of X (the "X SET OFF AMOUNT")
against any sum or obligation arising under this Agreement
or any Other ISDA (whether matured or unmatured, whether or
not contingent and irrespective of the currency, place of
payment or booking office of the sum or obligation) owed by
X or any Affiliate of X to Y (the "Y SET OFF AMOUNT"). X
will give notice to the other party of any set off effected
under this Section [6(f)].
For this purpose, either the X Set Off Amount or the Y Set
Off Amount (or the relevant portion of such set off
amounts) may be converted by X into the currency in which
the other set off amount is denominated at the rate of
exchange at which X would be able, acting in a reasonable
manner and in good faith, to purchase the relevant amount
of such currency.
If a sum or obligation is unascertained, X may in good
faith estimate that obligation and set-off in respect of
the estimate, subject to the relevant party accounting to
the other when the obligation is ascertained.
(ii) Set-off rights may only be exercised under sub-paragraph
(i):
A. in respect of sums or obligations between the
parties which relate to the same Sub-Fund; and
B. to the extent that this will not cause Party A to
satisfy any sum or obligation owing to it which, but
for the operation of this clause, would not (or
would not until a later date) be satisfied in
accordance with the order of priority of payments to
be made under the Sub-Fund Notice or any special
terms and conditions of the Relevant Notes in
relation to the Sub-Fund or, if an Event of Default
has occurred and is subsisting, under the Security
Trust Deed in relation to the Sub-Fund in accordance
with the order of priority of payments to be made
under that Security Trust Deed.
23
(iii) Nothing in this Section [6(f)] shall be effective to
create a charge or other security interest. This
Section [6(f)] shall be without prejudice and in
addition to any right of set-off, combination of
accounts, lien or other rights to which any party is
at any time otherwise entitled (whether by operation
of law, contract or otherwise)."
(26) [EXISTING TRANSACTIONS:
(a) This Agreement replaces the ISDA Master Agreement dated [ ]
between [ ] and Perpetual Trustees Australia Limited (the
"ORIGINAL MASTER AGREEMENT").
(b) On and from the date of this Agreement, each Transaction under the
Original Master Agreement entered into before the date of this
Agreement (each an "EXISTING TRANSACTION") will cease to be
governed by the Original Master Agreement and will instead be
deemed to be governed at all times by this Agreement (and in this
respect each reference to the Original Master Agreement in a
Confirmation for an Existing Transaction will be deemed to be a
reference to this Agreement) except that each Existing Transaction
which is expressed to be subject to the 1991 ISDA Definitions (as
published by the International Swap Dealers Association, Inc.)
(the "1991 ISDA DEFINITIONS") will remain subject to them rather
than the 2000 ISDA Definitions (and Parts 5 (10)(e), (f) and (g)
of this Agreement will be interpreted as if reference to the 2000
ISDA Definitions were reference to the 1991 ISDA Definitions).
(c) In addition, on and from the date of this Agreement, each Existing
Transaction entered into with [ ] will be taken to be entered into
with [ ].
(d) [] represents to Party B and the Manager that each of the
representations in Section 3 is correct as at the date of this
Agreement with respect to [ ] on the basis that the Existing
Transactions are taken to be have been entered into with [ ] under
the terms of this Agreement.
(e) Subject to the above, the rights and obligations of the parties
under each Existing Transaction remain unaffected.]
(27) MASTER NOVATION ANNEX. From time to time Party A, the Manager and Party B
may agree to novate one or more Transactions from a Sub-Fund to another
Sub-Fund. Each such novation will be governed by the Master Novation
Annex annexed to this Agreement. The parties acknowledge that Section 15
applies to each such novation.
(28) ACCELERATED PAYMENTS CLAUSE. Where Party B is the Fixed Rate Payer under
a Transaction, Party B (acting at the direction of the Manager) may
reduce the Fixed Rate applicable to that Transaction in accordance with
the following procedure.
(a) At any time Party B may serve a notice on Party A in writing
requesting a reduction in the Fixed Rate and specifying:
(i) the Transaction in respect of which the reduction is
sought;
(ii) the amount which Party B proposes to pay to Party A in
consideration of the reduction (the "ACCELERATED AMOUNT");
(iii) the Payment Date from which the reduced Fixed Rate shall be
effective (the "RELEVANT PAYMENT DATE"); and
(iv) a day, being a Business Day no earlier than 1 clear
Business Day after the day on which service of the notice
is effective, on which payment of
24
the Accelerated Amount will be made and the reduction will
become binding (the "VARIATION DATE").
(b) Upon such a notice being served, the parties must negotiate in
good faith to agree not later than the Business Day immediately
preceding the nominated Variation Date, a reduced Fixed Rate which
would apply from the Relevant Payment Date in consideration of
payment of the Accelerated Amount.
(c) If agreement is reached in accordance with Part [5(28)(b)], then:
(i) on the Variation Date, Party B shall pay Party A the
Accelerated Amount; and
(ii) with effect from the Variation Date the Transaction
(including the Confirmation in respect thereof) shall be
varied so that, with effect from the Relevant Payment Date
(and in respect of each Payment Date thereafter), the Fixed
Rate shall be the rate agreed pursuant to Part [5(28)(b)].
(d) If agreement is not reached in accordance with Part [5(28)(b)],
then, at the option of Party B:
(i) Party B will not pay Party A the Accelerated Amount and the
Fixed Rate will not be altered; or
(ii) Party B may, notwithstanding the failure to reach an
agreement pursuant to Part [5(28)(b)], pay the Accelerated
Amount to Party A on the Variation Date and the reduced
Fixed Rate to apply from the Relevant Payment Date shall be
determined by Party B (or by the Manager on its behalf) in
accordance with Part [5(28)(e)] below.
(e) If Part [5(28)(d)(ii)] applies, the reduced Fixed Rate shall be
the then applicable Fixed Rate for the Transaction reduced by such
amount as, when applied from the Relevant Payment Date through to
the Maturity Date for the Transaction, results in reductions of
each of the remaining Fixed Amounts payable by Party B under the
Transaction, which reductions have an aggregate discounted present
value as at the Variation Date equal to the amount of the
Accelerated Payment. The rate to be applied in determining each of
the discounted present values required for that calculation shall
be, for each relevant maturity, the average of the rates quoted to
Party B (or the Manager on its behalf) by 3 leading dealers in the
Australian interest rate swap market as the fixed rate each such
dealer would be prepared to pay in an equivalent swap for that
maturity minus 20 basis points or, in the event that it is not
possible to obtain such quotes, the rate to be applied shall be
the rate reasonably determined by the parties having regard to
comparable indices then available.
(f) Neither the Floating Rate nor the Notional Amount is to vary as a
result of the operation of this clause.
(g) Party B shall not be entitled to require any reduction of the
Fixed Rate by application of this Part [5(28)] that would result
in the Fixed Rate being negative.
(h) Upon a Transaction being varied in accordance with this Part
[5(28)], that Transaction so varied shall be reconfirmed by the
parties in accordance with Part [5(13)(a)] of this Schedule as
though it were a new Transaction.
25
MASTER NOVATION ANNEX
This Master Novation Annex is annexed to and forms part of the ISDA Master
Agreement dated [ ] between [ ] as Party A, [Perpetual Trustees Australia
Limited] as Party B (in its capacity as trustee of various Sub-Funds) and
Macquarie Securitisation Limited as the Manager (the "AGREEMENT").
1. DEFINITIONS
In this Annex:
"NOVATION CONFIRMATION" means a confirmation in the form of novation
confirmation set out in the Schedule to this Annex or in such other form
as agreed between Party A, the Manager and Party B (itself or the Manager
on its behalf).
"NOVATION DATE" means, in relation to a Transaction, the date agreed by
Party A, the Manager and Party B (itself or the Manager on its behalf) as
the date the novation of that Transaction becomes effective.
"RELEVANT SELLING SUB-FUND" means, in relation to a Transaction, Party B
in its capacity as trustee of the Sub-Fund from which that Transaction is
to be novated.
"RELEVANT PURCHASING SUB-FUND" means in relation to a Transaction, Party
B in its capacity as trustee of the Sub-Fund to which that Transaction is
to be novated.
Terms defined in the Agreement (including by way of incorporation by
reference) have the same meaning in this Annex unless otherwise defined
in this Annex.
2. CONSIDERATION
Each novation of a Transaction under this Annex constitutes, without the
need for anything further, a binding agreement on the part of each of the
Relevant Selling Sub-Fund, the Relevant Purchasing Sub-Fund, the Manager
and Party A that the consideration constituted by the releases and
obligations given and undertaken respectively pursuant to this Annex,
together with such other consideration as may be provided under the
Transaction Documents in relation to those Sub-Funds or elsewhere, in
respect of the novation of that Transaction and any other dealing or
transaction that occurs in conjunction with that novation, comprises
adequate commercial consideration for their respective releases and
obligations under this Annex in relation to the novation of that
Transaction. The Manager represents on each Novation Date for a
Transaction that valuable consideration is being paid by the Relevant
Selling Sub-Fund to the Relevant Purchasing Sub-Fund (or vice versa) for,
amongst other things, the novation.
3. NOVATION FROM SELLING SUB-FUND TO PURCHASING SUB-FUND
3.1 RELEASE OF SELLING SUB-FUND
On and from the Novation Date for a Transaction, the Relevant Selling
Sub-Fund and Party A will have no further rights against, or obligations
to, each other in connection with that Transaction.
3.2 ASSUMPTION BY PURCHASING SUB-FUND
On the Novation Date for a Transaction, the Relevant Purchasing Sub-Fund
is deemed to undertake to Party A that it will duly observe and perform
and totally assume all the obligations of the Relevant Selling Sub-Fund
under that Transaction as if the Relevant Purchasing Sub-Fund had been
named as a party to that Transaction instead of the Relevant Selling
Sub-Fund.
3.3 ACKNOWLEDGEMENT BY PARTY A
On the Novation Date for a Transaction, Party A is deemed to undertake
and acknowledge to the
26
Relevant Purchasing Sub-Fund that the Relevant Purchasing Sub-Fund is on
and from the Novation Date entitled to all the rights and entitlements of
the Relevant Selling Sub-Fund under that Transaction.
3.4 REFERENCES TO PARTY B
On and from the Novation Date for a Transaction, every reference in the
Confirmation for that Transaction to "Party B" or the Relevant Selling
Sub-Fund is deemed to be a reference to the Trustee in its capacity as
trustee of the Relevant Purchasing Sub-Fund.
4. REPRESENTATIONS AND WARRANTIES
On the Novation Date for a Transaction, the Manager and Party A are
deemed to represent and warrant to the Relevant Purchasing Sub-Fund as at
that date, that:
(a) (DUE PERFORMANCE): each of the Relevant Selling Sub-Fund, in the
case of the Manager, and Party A, in the case of Party A, has duly
and punctually performed and observed all the terms and conditions
of that Transaction on its part to be performed and observed;
(b) (NO DEFAULT): to the best of its knowledge and belief there is no
default or any event which is, or with the lapse of time or expiry
of notice or at the election of any person could become, an Event
of Default or a Termination Event in relation to that Transaction;
(c) (NO AMENDMENT): other than as disclosed in writing prior to that
Novation Date, the terms of that Transaction are fully disclosed
in its Confirmation and have not been supplemented, amended or
varied; and
(d) (NO CROSS-CLAIMS): neither the Relevant Selling Sub-Fund, in the
case of the Manager, nor Party A, in the case of Party A, has made
any claim, cross-claim, cross-demand or exercised any right of
set-off against the other in respect of that Transaction other
than in accordance with the terms of that Transaction.
5. AGREEMENT AND CONFIRMATION
5.1 AGREEMENT TO NOVATE
An agreement to novate a Transaction under this Annex becomes binding
when Party A, the Manager and Party B (itself or the Manager on its
behalf) agree (whether orally or otherwise) the Novation Date for that
Transaction and the Sub-Fund to which it will be novated.
5.2 NOVATION CONFIRMATIONS
As soon as practicable after an agreement to novate has been entered into
in accordance with Section 5.1 of this Annex, Party B (itself or the
Manager on its behalf) and the Manager must issue to Party A a Novation
Confirmation. Upon receipt of a Novation Confirmation, Party A must
promptly either:
(a) confirm the accuracy of the Novation Confirmation by
counter-signing and returning that Novation Confirmation to the
Manager; or
(b) request the correction of that Novation Confirmation.
27
SCHEDULE TO THE MASTER NOVATION ANNEX
NOVATION CONFIRMATION
[Date]
TO: [ ] ("PARTY A")
FROM: [PERPETUAL TRUSTEES AUSTRALIA LIMITED, ABN 86 000 000 000] ("PARTY B")
AND MACQUARIE SECURITISATION LIMITED, ABN 16 003 297 336
NOVATION CONFIRMATION
The parties refer to the ISDA Master Agreement dated [ ] made between Party A,
the Manager and Party B (the "AGREEMENT"). Unless the context indicates a
contrary intention, terms defined in the Agreement have the same meaning where
used in this Novation Confirmation.
For the purposes of this Novation Confirmation:
(a) a reference to the Relevant Selling Sub-Fund is a reference to [Name of
Sub-Fund];
(b) a reference to the Relevant Purchasing Sub-Fund is a reference to [Name
of Sub-Fund]; and
(c) a reference to the Novation Date is a reference to [Insert Date].
The parties hereby confirm and agree that as of the Novation Date each of the
Transactions (the "NOVATED TRANSACTIONS") referred to in the Schedule to this
Novation Confirmation is novated from the Relevant Selling Sub-Fund to the
Relevant Purchasing Sub-Fund in accordance with the terms of the Master Novation
Annex.
SCHEDULE
NOVATED TRANSACTIONS
[SERIAL NO. TRADE DATE FACILITY NO. NOTIONAL AMOUNT FIXED SWAP RATE CURRENT FLOATING RATE]
[Aggregate Notional Amount:
Aggregate Fixed Swap Rate (being a weighted average calculated by reference to
the Notional Amount of each Novated Transaction): ]
This Novation Confirmation supplements and forms part of the Master Agreement.
28
Confirmed as of the date first above written.
FOR AND ON BEHALF OF THE MANAGER AS ATTORNEY FOR PARTY B:
...................................... ..................................
(Authorised Officer) (Authorised Officer)
FOR AND ON BEHALF OF THE MANAGER:
...................................... ...................................
(Authorised Officer) (Authorised Officer)
FOR AND ON BEHALF OF PARTY A:
...................................... ...................................
(Authorised Officer) (Authorised Officer)
29
[ ]
TO: [Perpetual Trustees Australia Limited Macquarie Securitisation Limited
(as trustee of the PUMA Global Trust No. [ ]) Xxxxx 00
Xxxxx 0 00 Xxxx Xxxxxx
0 Xxxxxxxxxxx Xxxxxx Xxxxxx XXX 0000
Xxxxxx XXX 0000 XXXXXXXXX
AUSTRALIA]
ATTENTION: Manager, Securitisation Services ATTENTION: The Manager: PUMA Programme
CONFIRMATION - PUMA GLOBAL TRUST NO. [ ] - [US$] CLASS [ ] NOTES
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the terms specified below (the
"TRANSACTION"). This letter constitutes a "CONFIRMATION" as referred to in the
Master Agreement specified below.
This Confirmation is entered into by [Perpetual Trustees Australia Limited, ABN
86 000 000 000] as trustee of the PUMA Global Trust No. [ ] (the "PUMA TRUST").
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or supplemented from time
to time (the "AGREEMENT"), between [ ] ("PARTY A"), [Perpetual Trustees
Australia Limited as trustee of, inter alia, the PUMA Trust] ("PARTY B") and
Macquarie Securitisation Limited, ABN 16 003 297 336 (the "MANAGER"). All
provisions contained in the Agreement govern this Confirmation except as
expressly modified below.
This Confirmation incorporates the attached Definitions Schedule which forms
part of, and is subject to, this Confirmation.
The Transaction is a Currency Swap for the purposes of the Agreement.
The terms of the particular Transaction to which this Confirmation relates are
specified below:
1. OUR REFERENCE: [ ]
2. TRADE DATE: [ ]
3. EFFECTIVE DATE: Closing Date (being [ ])
4. TERMINATION DATE: The earlier of:
(a) the date that the Relevant Notes have been
redeemed in full in accordance with the Note
Conditions; and
(b) the Final Maturity Date (being the
[Quarterly]Payment Date falling in [ ]).
1
5. FLOATING AMOUNTS
5.1 FLOATING AMOUNTS PAYABLE BY PARTY A:
(A) Floating Rate Payer: Party A
Calculation Amount: For each Floating Rate Payer Payment Date, the aggregate
Principal Balance of the Relevant Notes as at the end of
the first day of the Calculation Period ending on but
excluding that Floating Rate Payer Payment Date (after
taking into account any reductions in the Principal Balance
of the Relevant Notes on that day)
Floating Rate Payer Payment Dates: Each [Quarterly] Payment Date during the period commencing
on and including [ ] and ending on and including the
Termination Date, subject to adjustment in accordance with
the Following Business Day Convention
Floating Rate Option: [USD-LIBOR-BBA]
Designated Maturity: [Three months] provided that in relation to the first
Calculation Period Linear Interpolation will apply
Spread: In respect of:
(a) Floating Rate Payer Payment Dates on or prior to
[ ] (or if that day is not a Business Day, the
next following Business Day), [ ]%; and
(b) Floating Rate Payer Payment Dates after [ ] (or
if that day is not a Business Day, the next
following Business Day), [ ]%.
Floating Rate Day Count Fraction: [Actual/360]
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
(B) Floating Rate Payer: Party A
Calculation Amount: The Outstanding Class [ ] Interest Amount in relation to
that Floating Rate Payer Payment Date
Floating Rate Payer Payment Dates: Each [Quarterly] Payment Date during the period commencing
on and including [ ] and ending on and including the
Termination Date, subject to adjustment in accordance with
the Following Business Day Convention
Floating Rate Option: [USD-LIBOR-BBA]
Designated Maturity: [Three months]
Spread: In respect of:
2
(a) Floating Rate Payer Payment Dates on or prior to
[ ] (or if that day is not a Business Day, the
next following Business Day), []%; and
(b) Floating Rate Payer Payment Dates after [ ] (or
if that day is not a Business Day, the next
following Business Day), [ ]%.
Floating Rate Day Count Fraction: [Actual/360]
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
(C) Outstanding Class [ ] Interest Amount: On each Floating Rate Payer Payment Date, Party A must pay
to Party B the Outstanding Class [ ] Interest Amount in
relation to that Floating Rate Payer Payment Date
5.2 FLOATING AMOUNTS PAYABLE BY PARTY B:
(A) Floating Rate Payer: Party B
Calculation Amount: For each Floating Rate Payer Payment Date, the A$
Equivalent of the aggregate Principal Balances of the
Relevant Notes as at the end of the first day of the
Calculation Period ending on but excluding that Floating
Rate Payer Payment Date (after taking into account any
reductions in the Principal Balance of the Relevant Notes
on that day)
Floating Rate Payer Payment Dates: Each [Quarterly] Payment Date during the period commencing
on and including [ ] and ending on and including the
Termination Date, subject to adjustment in accordance with
the Following Business Day Convention
Floating Rate Option: [AUD-BBR-BBSW]
Designated Maturity: [Three months] provided that in relation to the first
Calculation Period Linear Interpolation will apply
Spread: In respect of:
(a) Floating Rate Payer Payment Dates on or prior to
[ ] (or if that day is not a Business Day, the
next following Business Day), [ ]%; and
(b) Floating Rate Payer Payment Dates after [ ] (or
if that day is not a Business Day, the next
following Business Day), [ ]%.
Floating Rate Day Count Fraction: [Actual/365 (Fixed)]
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
3
(B) Floating Rate Payer: Party B
Calculation Amount: The Outstanding A$ Class [ ] Interest Amount in relation to
that Floating Rate Payer Payment Date
Floating Rate Payer Payment Dates: Each [Quarterly] Payment Date during the period commencing
on and including [ ] and ending on and including the
Termination Date, subject to adjustment in accordance with
the Following Business Day Convention
Floating Rate Option: [AUD-BBR-BBSW]
Designated Maturity: [Three months]
Spread: In respect of:
(a) Floating Rate Payer Payment Dates on or prior to
[ ] (or if that day is not a Business Day, the
next following Business Day), [ ]%; and
(b) Floating Rate Payer Payment Dates after [ ] (or
if that day is not a Business Day, the next
following Business Day), [ ]%.
Floating Rate Day Count Fraction: [Actual/365 (Fixed)]
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
(C) Outstanding A$ Class [ ] Interest Amount: On each Floating Rate Payer Payment Date, Party B will pay
to Party A the Outstanding A$ Class [ ] Interest Amount in
relation to that Floating Rate Payer Payment Date
5.3 PROPORTIONATE ADJUSTMENT OF FLOATING If the A$ Class [ ] Interest Payment in relation to a
AMOUNTS [Quarterly] Payment Date will be less than the aggregate of
the Floating Amounts payable by Party B to Party A on that
[Quarterly] Payment Date (as notified by the Manager to Party A
pursuant to paragraph [9] and including any Unpaid A$ Class [ ]
Interest Amount), Party A may, in its discretion, elect, by
notice in writing to Party B and the Manager (such notice to be
received by both such parties prior to that [Quarterly] Payment
Date), to pay to Party B on that [Quarterly] Payment Date (in return
for payment by Party B of the A$ Class [ ] Interest Payment and in
lieu of the Floating Amounts that would otherwise be payable by
Party A to Party B on that [Quarterly] Payment Date) a
proportion of the Floating Amounts that would otherwise be
payable by Party A to Party B on that [Quarterly] Payment
Date (including any Unpaid Class [ ] Interest Amounts) being
the same proportion as the A$ Class [ ] Interest Payment bears
to the Floating Amounts payable by Party B to Party A on that
[Quarterly] Payment Date.
Notwithstanding any election by Party A pursuant to
4
this paragraph 5.3, a failure by Party B to pay to Party A the full
amount of the Floating Amounts payable by Party B on a
[Quarterly] Payment Date constitutes a failure to pay for the
purposes of Section [5(a)(i)] of the Agreement.
6. EXCHANGES
6.1 INITIAL EXCHANGE:
Initial Exchange Date: Effective Date
Party A Initial Exchange Amount: The A$ Equivalent of the Party B Initial Exchange Amount,
being A$[ ].
Party B Initial Exchange Amount: The aggregate Original Principal Balances of the Relevant
Notes on the Closing Date, being [ ].
6.2 INSTALMENT EXCHANGE:
Instalment Exchange Date: Each [Quarterly] Payment Date (other than the Final
Exchange Date)
Party A Instalment Exchange Amount: In respect of an Instalment Exchange Date means the [US$]
Equivalent of the A$ Class [ ] Principal Amount in relation
to the [Quarterly] Payment Date occurring on that
Instalment Exchange Date
Party B Instalment Exchange Amount: In respect of an Instalment Exchange Date means the
A$ Class [ ] Principal Amount in relation to the
[Quarterly] Payment Date occurring on that Instalment
Exchange Date
6.3 FINAL EXCHANGE:
Final Exchange Date: Termination Date
Party A Final Exchange Amount: The US$ Equivalent of the A$ Class [ ] Principal Amount in
relation to the [Quarterly] Payment Date which is the Final
Exchange Date
Party B Final Exchange Amount: The A$ Class [ ] Principal Amount in relation to the
[Quarterly] Payment Date which is the Final Exchange Date
7. EXCHANGE RATES:
For the purpose of the definitions of
"A$ EQUIVALENT" and ["US$]
EQUIVALENT":
[US$] Exchange Rate: [ ]
A$ Exchange Rate: [ ]
5
8. ACCOUNT DETAILS:
8.1 PAYMENTS TO PARTY A
Account for payments in [US$]: The account notified in writing by Party A to Party B from
time to time
Account for payments in A$: The account in Australia notified in writing by Party A to
Party B from time to time
8.2 PAYMENTS TO PARTY B
Account for payments in [US$]: Directly to the Relevant Principal Paying Agent to the
account outside of Australia notified in writing by the
Relevant Principal Paying Agent to Party A for that
purpose. On payment of any such amount by Party A to the
Relevant Principal Paying Agent, Party A's obligations will
be fully discharged in respect of that payment. Party A is
entitled to rely on any such notice and is not obliged to
enquire into the authority of the Relevant Principal Paying
Agent to give such notice.
Account for payments in A$: The account notified in writing by Party B to Party A for
that purpose
9. NOTIFICATIONS TO PARTY A On or before the Determination Time in respect of each
[Quarterly] Payment Date the Manager must notify Party A in
writing of:
(a) the A$ Class [ ] Principal Amount in relation to
that [Quarterly] Payment Date;
(b) the A$ Class [ ] Interest Amount in relation to that
[Quarterly] Payment Date;
(c) the Unpaid A$ Class [ ] Interest Amount (if any) in
relation to that [Quarterly] Payment Date;
(d) the A$ Class [ ] Interest Payment in relation to
that [Quarterly] Payment Date.
10. OFFICES: The Office of Party A for this Transaction is [ ].
The Office of Party B for this Transaction is [not
applicable].
11. PAYMENTS Except as provided below (and without limiting Section
[2(a)(ii)] of the Agreement), payments under this Agreement
by:
(i) Party A, will be made by [10.00am (New York time)]; and
(ii) Party B, will be made by [4.00pm (Sydney time)],
on the due date for value on that date in the place of the account
specified in accordance with paragraph [8] above.
6
Notwithstanding the foregoing, Party A must pay the Party A Initial
Exchange Amount to Party B by [2.00pm (Sydney time)] on the Initial
Exchange Date and Party B must pay Party A the Party B Initial
Exchange Amount by [12.00 noon (New York time)] on the Initial
Exchange Date.
Please confirm that the above correctly sets out the terms of our agreement in
respect of this Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
Yours sincerely
CONFIRMED AS AT THE DATE FIRST WRITTEN ABOVE:
SIGNED for and on behalf of
[ ]
By:
(Authorised Officer )
Name:
Title:
CONFIRMED AS AT THE DATE FIRST WRITTEN ABOVE: CONFIRMED AS AT THE DATE FIRST WRITTEN ABOVE:
SIGNED for and on behalf of SIGNED for and on behalf of
[PERPETUAL TRUSTEES AUSTRALIA MACQUARIE SECURITISATION LIMITED,
LIMITED, ABN 86 000 000 000] ABN 16 003 297 336
as trustee of the PUMA Global Trust No. [ ]
By: By:
(Authorised Officer) (Authorised Officer)
Name: Name:
Title: Title:
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DEFINITIONS SCHEDULE
In this Confirmation and in the Agreement to the extent that it relates to the
PUMA Global Trust No. [ ], unless the context otherwise requires:
"A$ CLASS [ ] INTEREST PAYMENT" in relation to a [Quarterly] Payment Date means
the amount paid or available to be paid (as the case may be) on that [Quarterly]
Payment Date under clause [5.1(d)(i)] of the Sub-Fund Notice in respect of the
A$ Class [ ] Interest Amount and Unpaid A$ Class [ ] Interest Amount on that
[Quarterly] Payment Date.
[insert similar definition for any other notes denominated in a currency other
than Australian dollars as applicable to each relevant currency swap]
"A$ CLASS [ ] PRINCIPAL AMOUNT" has the same meaning as in the Sub-Fund Notice.
[insert similar definition for any other notes denominated in a currency other
than Australian dollars as applicable to each relevant currency swap]
"A$ EQUIVALENT" has the same meaning as in the Sub-Fund Notice.
"AGENCY AGREEMENT" means the Agency Agreement dated on or about the date of this
Confirmation between Party B, the Manager, [The Bank of New York, New York
Branch] and [The Bank of New York, London Branch].
["AUD-BBR-BBSW" means that the rate for a Reset Date will be the rate expressed
as a percentage per annum appearing on the Reuters Screen Page "BBSW" at
approximately 10.10am Sydney time on that Reset Date for a xxxx of exchange
having a tenor equal to the Designated Maturity, as being the average of the
mean buying and selling rates appearing on that page for such a xxxx of exchange
rounded to four decimal places. If fewer than four banks quote on the Reuters
Screen page "BBSW", the rate for that date and specified term will be calculated
as above by taking the rates otherwise quoted by 4 banks on application by the
Calculation Agent for such a xxxx of the same tenor, eliminating the highest and
lowest mean rates and taking the average of the remaining mean rates rounded to
four decimal places. If a rate cannot be determined in accordance with the
foregoing procedures, then AUD-BBR-BBSW means such rate as is specified in good
faith by the Calculation Agent at or around that time on that date, having
regard, to the extent possible, to comparable indices then available as to the
rates otherwise bid and offered for such bills of that tenor around that time.]
"BUSINESS DAY" means any day on which banks are open for business in Sydney, New
York City and London other than a Saturday, a Sunday or a public holiday in
Sydney, New York City or London.
"CLASS [ ] INTEREST PAYMENT" means, on any [Quarterly] Payment Date, the
Floating Amounts payable by Party A under paragraph [5.1] of this Confirmation,
as adjusted (if appropriate) in accordance with paragraph [5.3] of this
Confirmation.
[insert similar definition for any other notes denominated in a currency other
than Australian dollars as applicable to each relevant currency swap]
"DETERMINATION TIME" in relation to a [Quarterly] Payment Date means on or about
[ ] Sydney time [5] Business Days prior to that [Quarterly] Payment Date.
"NOTE CONDITIONS" means the terms and conditions of the Relevant Notes annexed
to the Relevant Notes.
"NOTE TRUST DEED" means the Note Trust Deed dated on or about the date of this
Confirmation between Party B, the Manager and the Relevant Note Trustee.
"OUTSTANDING A$ CLASS [ ] INTEREST AMOUNT" in relation to a Floating Rate Payer
Payment Date means
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the aggregate amount of the Floating Amounts referred to in paragraph [5.2] with
respect to the immediately preceding Floating Rate Payer Payment Date which were
not paid by Party B on that Floating Rate Payer Payment Date as a result of the
operation of paragraph [5.3].
[insert similar definition for any other notes denominated in a currency other
than Australian dollars as applicable to each relevant currency swap]
"OUTSTANDING CLASS [ ] INTEREST AMOUNT" in relation to a Floating Rate Payer
Payment Date means the aggregate amount of the Floating Amounts referred to in
paragraph [5.1] with respect to the immediately preceding Floating Rate Payer
Payment Date which were not paid by Party A on that Floating Rate Payer Payment
Date as a result of the operation of paragraph [5.3].
[insert similar definition for any other notes denominated in a currency other
than Australian dollars as applicable to each relevant currency swap]
"RATE PAGE" means Telerate Page 3750 or, if Telerate Page 3750 ceases to quote
the relevant rate, such other page, section or part of Telerate as quotes the
relevant rate and is selected by the Calculation Agent or, if there is no such
page, section or part of such other page, section or part of a different screen
information service as quotes the relevant rate selected by the Calculation
Agent and approved by the Relevant Note Trustee.
"RELEVANT AGENT BANK" means [The Bank of New York, New York Branch] or, if [The
Bank of New York] is removed or retires as Agent Bank under the Agency
Agreement, any person appointed from time to time in its place in accordance
with the Agency Agreement.
"RELEVANT NOTEHOLDERS" means the Class [ ] Noteholders and [insert name of other
notes denominated in a currency other than Australian dollars as applicable to
each relevant currency swap] as that term is defined in the Note Trust Deed.
"RELEVANT NOTES" means the Class [ ] Notes and [insert name of other notes
denominated in a currency other than Australian dollars as applicable to each
relevant currency swap] issued by Party B under the Note Trust Deed.
"RELEVANT NOTE TRUSTEE" means [The Bank of New York, New York Branch] or, if
[The Bank of New York] is removed or retires as the trustee for the Relevant
Noteholders, any person appointed from time to time in its place in accordance
with the Note Trust Deed.
"RELEVANT PRINCIPAL PAYING AGENT" means [The Bank of New York, New York Branch]
or, if [The Bank of New York] is removed or retires as Principal Paying Agent
under the Agency Agreement, any person appointed from time to time in its place
in accordance with the Agency Agreement.
"SECURITY TRUST DEED" means the Security Trust Deed dated [ ] between Party B,
the Manager, the Relevant Note Trustee and [Perpetual Trustee Company Limited,
ABN 42 001 001 007].
"SUB-FUND NOTICE" means the Sub-Fund Notice dated [ ] between Party B and the
Manager.
"UNPAID A$ CLASS [ ] INTEREST AMOUNT" in relation to a Floating Rate Payer
Payment Date means the aggregate of the Floating Amounts referred to in
paragraphs [5.2(B)] and [(C)] with respect to that Floating Rate Payer Payment
Date.
"UNPAID CLASS [ ] INTEREST AMOUNT" in relation to a Floating Rate Payer Payment
Date means the aggregate of the Floating Amounts referred to in paragraphs
[5.1(B)] and [(C)] with respect to that Floating Rate Payer Payment Date.
["US$] EQUIVALENT" in relation to an amount which is calculated, determined or
expressed in A$, or which includes a component determined or expressed in A$,
means that A$ amount or A$ component (as
9
the case may be) multiplied by the [US$] Exchange Rate.
["USD-LIBOR-BBA" has the meaning ascribed to that term in the 2000 ISDA
Definitions except that:
(a) reference to "London Banking Days" in section 7.1(w)(xvii) of the Annex to
the 2000 ISDA Definitions is replaced with reference to "London/New York
Business Days" as that expression is defined in the Note Conditions;
(b) reference to "Telerate Page 3750" in section 7.1(w)(xvii) of the Annex to
the 2000 ISDA Definitions is replaced with reference to "Rate Page" (as
defined above); and
(c) the interest rate so determined will be rounded to four decimal places,
and that if USD-LIBOR-BBA cannot be determined in accordance with the 2000 ISDA
Definitions as varied above (including endeavouring to determine a rate under
the definition of "USD-LIBOR-Reference banks" in section 7.1(w)(xx)), it will
remain as the most recently determined rate obtained from a Rate Page for a
preceding Calculation Period.]
Terms defined in the Note Conditions (including by incorporation by reference)
have the same meaning in this Confirmation unless otherwise defined in this
Confirmation.
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