(MULTICURRENCY - CROSS BORDER)
ISDA
INTERNATIONAL SWAPS & DERIVATIVES ASSOCIATION, INC.
MASTER AGREEMENT
dated as of
Macquarie Securitisation Limited, Deutsche Bank AG New York Branch
ABN 16 003 297 336 ("Party A")
Perpetual Trustees Australia Limited, ABN 86 000 431
827 as trustee of the various Sub-Funds from time to
time established under the Trust Deed ("Party B")
have entered and/or anticipate entering into one or more transactions (each a
"TRANSACTION") that are or will be governed by this Master Agreement, which
includes the schedule (the "SCHEDULE"), and the documents and other confirming
evidence (each a "CONFIRMATION") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:-
1. INTERPRETATION
(a) DEFINITIONS. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) INCONSISTENCY. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the
Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purpose of the relevant
Transaction.
(c) SINGLE AGREEMENT. All Transactions are entered into in reliance on the fact
that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "AGREEMENT"), and the
parties would not otherwise enter into any Transactions.
2. OBLIGATIONS
(a) GENERAL CONDITIONS
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other
than by payment), such delivery will be made for receipt on the due
date in the manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or elsewhere in this
Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to (1)
the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination Date
in respect of the relevant Transaction has occurred or been
effectively designated and (3) each other applicable condition
precedent specified in this Agreement.
(b) CHANGE OF ACCOUNT. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to
which such change applies unless such other party gives timely notice of a
reasonable objection to such change.
(c) NETTING. If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party
by whom the larger aggregate amount would have been payable to pay to the
other party the excess of the larger aggregate amount over the smaller
aggregate amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same
date in the same currency in respect of such Transactions, regardless of
whether such amounts are payable in respect of the same Transaction. The
election may be made in the Schedule or a Confirmation by specifying that
subparagraph (ii) above will not apply to the Transactions identified as
being subject to the election, together with the starting date (in which
case subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for
different groups of Transactions and will apply separately to each pairing
of Offices through which the parties made and receive payments or
deliveries.
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(d) DEDUCTION OR WITHHOLDING FOR TAX
(i) GROSS-UP. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as
modified by the practice of any relevant governmental revenue
authority, then in effect. If a party is so required to deduct or
withhold, then that party ("X") will:-
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of determining
that such deduction or withholding is required or receiving
notice that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing
such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary to ensure that the net
amount actually received by Y (free and clear of Indemnifiable
Taxes, whether assessed against X or Y) will equal the full
amount Y would have received had no such deduction or withholding
been required. However, X will not be required to pay any
additional amount to Y to the extent that it would not be
required to be paid but for:
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4 (d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure
would not have occurred but for (1) any action taken by a
taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (II) a
Change in Tax Law.
(ii) LIABILITY. If:-
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be
required to pay an additional amount to Y under Section
2(d)(i)(4);
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(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the
amount of such liability (including any related liability for
interest, but including any related liability for penalties only
if Y has failed to comply with or perform any agreement contained
in Section 4(a)(i), 4(a)(iii) or 4(d).
(e) DEFAULT INTEREST, OTHER AMOUNTS. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment
obligation will, to the extent permitted by laws and subject to Section
6(c), be required to pay interest (before as well as after judgment) on the
overdue amount to the other party on demand in the same currency as such
overdue amount, for the period from (and including) the original due date
for payment to (but excluding) the date of actual payment, at the Default
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed. If, prior to the occurrence or
effective designation of an Early Termination Date in respect of the
relevant Transaction, a party defaults in the performance of any obligation
required to be settled by delivery, it will compensate the other party on
demand if and to the extent provided for in the relevant Confirmation or
elsewhere in this Agreement.
3. REPRESENTATIONS
Each party represents to the other party (which representations will be
deemed to be repeated by each party on each date on which a Transaction is
entered into and, in the case of the representations in Section 3(f), at
all times until the termination of this Agreement) that:-
(a) BASIC REPRESENTATIONS
(i) STATUS. it is duly organised and validly existing under the
laws of the jurisdiction of its organisation or incorporation
and, if relevant under such laws, in good standing;
(ii) POWERS. it has the power to execute this Agreement and any
other documentation relating to this Agreement to which it is a
party, to deliver this Agreement and any other documentation
relating to this Agreement that it is required by this
Agreement to deliver and to perform its obligations under this
Agreement and any obligations it has under any Credit Support
Document to which it is a party and has taken all necessary
action to authorize such execution, delivery and performance;
(iii) NO VIOLATION OR CONFLICT. Such execution, delivery and
performance do not violate or conflict with any law applicable
to it, any provision of
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its constitutional documents, any order or judgment of any
court or other agency of government applicable to it or any of
its assets or any contractual restriction binding on or
affecting it or any of its assets;
(iv) CONSENTS. All governmental and other consents that are required
to have been obtained by it with respect to this Agreement or
any Credit Support Document to which it is a party have been
obtained and are in full force and effect and all conditions of
any such consents have been complied with; and
(v) OBLIGATIONS BINDING. its obligations under this Agreement and
any Credit Support document to which it is a party constitute
its legal, valid and binding obligations, enforceable in
accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar
laws affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in
equity or at law)).
(b) ABSENCE OF CERTAIN EVENTS. No Event of Default or Potential Event Of
Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would
occur as a result of its entering into or performing its obligations
under this Agreement or any Credit Support Document to which it is
party.
(c) ABSENCE OF LITIGATION. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or
proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely
to affect the legality, validity or enforceability against it of this
Agreement or any Credit Support document to which it is a party or its
ability to perform its obligations under this Agreement or such Credit
Support document.
(d) ACCURACY OF SPECIFIED INFORMATION. All applicable information that is
furnished in writing by or on behalf of it to the other party and is
identified for the purpose of this Section 3(d) in the Schedule is, as
of the date of the information, true, accurate and complete in every
material respect.
(e) PAYER TAX REPRESENTATION. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3 (e) is
accurate and true.
(f) PAYEE TAX REPRESENTATION. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3(f) is
accurate and true.
4. AGREEMENTS
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Each party agrees with the other that, so long as either party has or
may have any obligation under this Agreement or under any Credit
Support Document to which it is a party:-
(a) FURNISH SPECIFIED INFORMATION. it will deliver to the other party
or, in certain cases under subparagraph (iii) below, to such
government or taxing authority as the other party reasonably
directs:-
(i) any forms, documents or certificates relating to taxation
specified in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any
Confirmation; and
(iii) upon reasonable demand by such other party, any form or
document that may be required or reasonably requested in
writing in order to allow such other party or its Credit
Support Provider to make a payment under this Agreement or
any applicable Credit Support document without any
deduction or withholding for or on account of any Tax or
with such deduction or withholding at a reduced rate (so
long as the completion, execution or submission of such
form or document would not materially prejudice the legal
or commercial position of the party in receipt of such
demand), with any such form or document to be accurate and
completed in a manner reasonably satisfactory to such
other party and to be executed and to be delivered with
any reasonably required certification,
in each case by the date specified in the Schedule or such
Confirmation or, if none is specified, as soon as reasonably
practicable.
(b) MAINTAIN AUTHORIZATIONS. it will use all reasonable efforts to
maintain in full force and effect all consents of any
governmental or other authority that are required to be obtained
by it with respect to this Agreement or any Credit Support
Document to which it is a party and will use all reasonable
efforts to obtain any that may become necessary in the future.
(c) COMPLY WITH LAWS. It will comply in all material respects will
all applicable laws and orders to which it may be subject if
failure so to comply would materially impair its ability to
perform its obligations under this Agreement or any Credit
Support Document to which it is a party.
(d) TAX AGREEMENT. It will give notice of any failure of a
representation made by it under Section 3(f) to be accurate and
true promptly upon learning of such failure.
(e) PAYMENT OF STAMP TAX. Subject to Section 11, it will pay any
Stamp Tax levied or imposed upon it or in respect of its
execution or performance of this Agreement by a jurisdiction in
which it is incorporated, organised, managed
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and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of
this Agreement is located ("Stamp Tax Jurisdiction") and will
indemnify the other party against any Stamp Tax levied or imposed
upon the other party or in respect of the other party's execution
or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with
respect to the other party.
5. EVENTS OF DEFAULT AND TERMINATION EVENTS
(a) EVENTS OF DEFAULT. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any of the following events constitutes an event of
default (an "EVENT OF DEFAULT") with respect to such party:-
(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before
the third Local Business Day after notice of such failure is given to
the party;
(ii) BREACH OF AGREEMENT. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
or to give notice of a Termination Event or any agreement or
obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied
with or performed by the party in accordance with this Agreement if
such failure is not remedied on or before the thirtieth day after
notice of such failure is given to the party;
(iii) CREDIT SUPPORT DEFAULT
(1) Failure by the party or any Credit Support Provider of such party
to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any
applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in
full force and effect for the purpose of this Agreement (in
either case other than in accordance with its terms) prior to the
satisfaction of all obligations of such party under each
Transaction to which such Credit Support Document relates without
the written consent of the other party; or
(3) the party or such credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of, such Credit Support Document;
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(iv) MISREPRESENTATION. A representation (other than a representation under
Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in
this Agreement or any Credit Support Document proves to have been
incorrect or misleading in any material respect when made or repeated
or deemed to have been made or repeated;
(v) DEFAULT UNDER SPECIFIED TRANSACTION. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such
party (1) defaults under a Specified Transaction and, after giving
effect to any applicable notice requirement or grace period, there
occurs a liquidation of, an acceleration of obligations under, or an
early termination of, that Specified Transaction, (2) defaults, after
giving effect to any applicable notice requirement or grace period, in
making any payment or delivery due on the last payment, delivery or
exchange date of, or any payment on early termination of, a Specified
Transaction (or such default continues for at least three Local
Business Days if there is no applicable notice requirement or grace
period) or (3) disaffirms, disclaims, repudiates or rejects, in whole
or in part, a Specified Transaction (or such action is taken by any
person or entity appointed or empowered to operate it or act on its
behalf);
(vi) CROSS DEFAULT. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of
(1) a default, event of default or other similar condition or
event (however described) in respect of such party, any
Credit Support Provider of such party or any applicable
Specified Entity of such party under one or more agreements
or instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount
of not less than the applicable Threshold Amount (as
specified in the Schedule) which has resulted in such
Specified Indebtedness becoming, or becoming capable at such
time of being declared, due and payable under such
agreements or instruments, before it would otherwise have
been due and payable; or
(2) a default by such party, such Credit Support Provider or
such Specified Entity (individually or collectively) in
making one or more payments on the due date thereof in an
aggregate amount of not less than the applicable Threshold
Amount under such agreements or instruments (after giving
effect to any applicable notice requirement or grace
period);
(vii) BANKRUPTCY. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger);
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(2) becomes insolvent or is unable to pay its debts or fails or
admits in writing its inability generally to pay its debts as
they become due;
(3) makes a general assignment, arrangement or composition with or
for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under
any bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up
or liquidation, and, in the case of any such proceeding or
petition instituted or presented against it, such proceeding or
petition:
(A) results in a judgment of insolvency or bankruptcy or the
entry of an order for relief or the making of an order for
its winding-up or liquidation; or
(B) is not dismissed, discharged, stayed or restrained in each
case within 30 days of the institution or presentation
thereof;
(5) has a resolution passed for its winding-up, official management
or liquidation (other than pursuant to a consolidation,
amalgamation or merger);
(6) seeks or becomes subject to the appointment of an administrator,
provisional liquidator, conservator, receiver, trustee, custodian
or other similar official for it or for all or substantially all
its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment,
sequestration or other legal process levied, enforced or sued on
or against all or substantially all its assets and such secured
party maintains possession, or any such process is not dismissed,
discharged, stayed or restrained, in each case within 30 days
thereafter;
(8) causes or is subject to any event with respect to it which, under
the applicable laws of any jurisdiction, has an analogous effect
to any of the events specified in clauses (1) to (7) (inclusive);
or
(9) takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) MERGER WITHOUT ASSUMPTION. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or
into, or transfers all or substantially all its assets to, another
entity and, at the time of such consolidation, amalgamation, merger
or transfer:-
(1) the resulting, surviving or transferee entity fails to assume all
the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it
or its
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predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by
such resulting, surviving or transferee entity of its obligations
under this Agreement.
(b) TERMINATION EVENTS. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any specified
Entity of such party of any event specified below constitutes an Illegality
if the event is specified in (i) below, a Tax Event if the event is
specified in (ii) below or a Tax Event Upon merger if the event is
specified in (iii) below, and, if specified to be applicable, a Credit
Event Upon Merger if the event is specified pursuant to (iv) below or an
Additional Termination Event if the event is specified pursuant to (v)
below:-
(i) ILLEGALITY. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to
the promulgation of, or any change in, the interpretation by any
court, tribunal or regulatory authority with competent jurisdiction of
any applicable law after such date, it becomes unlawful (other than as
a result of a breach by the party of Section 4(b)) for such party
(which will be the Affected Party):-
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other material
provision of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or
such Credit Support Provider) has under any Credit Support
Document relating to such Transaction;
(ii) TAX EVENT. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action
is taken or brought with respect to a party to this Agreement) or (y)
a Change in Tax Law, the party (which will be the Affected Party)
will, or there is a substantial likelihood that it will, on the next
succeeding Scheduled Payment Date:
(1) be required to pay to the other party an additional amount in
respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except
in respect of interest under Section 2(e), 6(d)(ii) or 6(e)); or
(2) receive a payment from which an amount is required to be deducted
or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6 (d)(ii) or 6(e)) and no additional
amount is required to be paid in respect of such Tax under
Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A)
or B));
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(iii) TAX EVENT UPON MERGER. The party (the "BURDENED PARTY") on the next
succeeding Scheduled Payment Date will either:
(1) be required to pay an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)); or
(2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of
which the other party is not required to pay an additional amount
(other than by reason of Section 2(d)(i)(4)(A) or B)), in either
case as a result of a party consolidating or amalgamating with,
or merging with or into, or transferring all or substantially all
its assets to, another entity (which will be the Affected Party)
where such action does not constitute an event described in
Section 5(a)(viii);
(iv) CREDIT EVENT UPON MERGER. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X
consolidates or amalgamates with, or merges with or into, or transfers
all or substantially all its assets to, another entity and such action
does not constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) ADDITIONAL TERMINATION EVENT. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event) the Affected Party or
Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) EVENT OF DEFAULT AND ILLEGALITY. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes
an Illegality, it will be treated as an Illegality and will not constitute
an Event of Default.
6. EARLY TERMINATION
(a) RIGHT TO TERMINATE FOLLOWING EVENT OF DEFAULT. If at any time an Event of
Default with respect to a party (the "DEFAULTING PARTY") has occurred and
is then continuing, the other party (the "NON-DEFAULTING PARTY") may, by
not more than 20 days notice to the Defaulting Party specifying the
relevant Event of Default, designate a day not earlier than the day such
notice is effective as an Early Termination Date in respect of all
outstanding Transactions. If, however, "Automatic Early Termination" is
specified in the Schedule as applying to a party, then an Early Termination
Date in respect of all outstanding Transactions will occur immediately upon
the occurrence with respect to such party of an Event of Default specified
in Section 5(a)(vii)(1), (3),
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(5), (6) or, to the extent analogous thereto, (8), and as of the time
immediately preceding the institution of the relevant proceeding or the
presentation of the relevant petition upon the occurrence with respect to
such party of an Event of Default specified in Section 5(a)(vii)(4) or, to
the extent analogous thereto, (8).
(b) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
(i) NOTICE. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying
the nature of that Termination Event and each Affected Transaction and
will also give such other information about that Termination Event as
the other party may reasonably require.
(ii) TRANSFER TO AVOID TERMINATION EVENT. If either an illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one
Affected Party, or if a Tax Event Upon Merger occurs and the Burdened
Party is the Affected Party, the Affected Party will, as a condition
to its right to designate an Early Termination Date under Section
6(b)(iv), use all reasonable efforts (which will not require such
party to incur a loss, excluding immaterial, incidental expenses) to
transfer within 20 days after it gives notice under Section 6(b)(i)
all its rights and obligations under this Agreement in respect of the
Affected Transactions to another of its Offices or Affiliates so that
such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days
after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be
subject to and conditional upon the prior written consent of the other
party, which consent will not be withheld if such other party's
policies in effect at such time would permit it to enter into
transactions with the transferee on the terms proposed.
(iii) TWO AFFECTED PARTIES. If an illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will
use all reasonable efforts to reach agreement within 30 days after
notice thereof is given under Section 6(b)(i) on action to avoid that
Termination Event.
(iv) RIGHT TO TERMINATE. If:-
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect
to all Affected Transactions within 30 days after an Affected
Party gives notice under Section 6(b)(i); or
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(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected
Party,
either party in the case of an Illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in the case of a
Tax Event or an Additional Termination Event if there is more than one
Affected Party, or the party which is not the Affected Party in the
case of a Credit Event Upon Merger or an Additional Termination Event
if there is only one Affected Party may, by not more than 20 days
notice to the other party and provided that the relevant Termination
Event is then continuing, designate a day not earlier than the day
such notice is effective as an Early Termination Date in respect of
all Affected Transactions.
(c) EFFECT OF DESIGNATION
(i) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e)
in respect of the Terminated Transactions will be required to be made,
but without prejudice to the other provisions of this Agreement. The
amount, if any, payable in respect of an Early Termination Date shall
be determined pursuant to Section 6(e).
(d) CALCULATIONS
(i) STATEMENT. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and
will provide to the other party a statement:
(1) showing, in reasonable detail, such calculations (including all
relevant quotations and specifying any amount payable under
Section 6(e)); and
(2) giving details of the relevant account to which any amount
payable to it is to be paid. In the absence of written
confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) PAYMENT DATE. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an
Early Termination Date which is designated or occurs as a result of an
Event of Default) and on the day which is two Local Business Days
after the day on which notice of the amount payable is effective (in
the case of an Early Termination Date which is designated as a result
of a Termination Event). Such amount will be paid
13
together with (to the extent permitted under applicable law) interest
thereon (before as well as after judgment) in the Termination
Currency, from (and including) the relevant Early Termination Date to
(but excluding) the date such amount is paid, at the Applicable Rate.
Such interest will be calculated on the basis of daily compounding and
the actual number of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss" , and a
payment method, either the "First Method" or the "Second Method". If the
parties fail to designate a payment measure or payment method in the
Schedule, it will be deemed that "Market Quotation" or the "Second Method",
as the case may be, shall apply. The amount, if any, payable in respect of
an Early Termination Date and determined pursuant to this Section will be
subject to any Set-off.
(i) EVENTS OF DEFAULT. If the Early Termination Date results from an Event
of Default:-
(1) FIRST METHOD AND MARKET QUOTATION. If the First Method and Market
Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of:
(A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party over
(B) the Termination Currency Equivalent of the Unpaid Amounts
owing to the Defaulting Party.
(2) FIRST METHOD AND LOSS. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's loss in respect of
this Agreement.
(3) SECOND METHOD AND MARKET QUOTATION. If the Second Method and
Market Quotation apply, an amount will be payable equal to:
(A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party less
(B) the Termination Currency Equivalent of the Unpaid Amounts
owing to the Defaulting Party. If that amount is a positive
number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that
amount to the Defaulting Party.
14
(4) SECOND METHOD AND LOSS. If the Second Method and Loss
apply, an amount will be payable equal to the
Non-defaulting Party's Loss in respect of this
Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting
Party; if it is a negative number, the Non defaulting
Party will pay the absolute value of that amount to
the Defaulting Party.
(ii) TERMINATION EVENTS. If the Early Termination Date results from a
Termination Event:-
(1) ONE AFFECTED PARTY. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3),
if Market Quotation applies, or Section 6(e)(i)(4), if Loss
applies, except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party will be deemed
to be references to the Affected Party and the party which is not
the Affected Party, respectively, and, if Loss applies and fewer
than all the Transactions are being terminated, Loss shall be
calculated in respect of all Terminated Transactions.
(2) TWO AFFECTED PARTIES. If there are two Affected Parties:-
(A) If Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to:
(I) the sum of (a) one-half of the difference between the
Settlement Amount of the party with the higher
Settlement Amount ("X") and the Settlement Amount of
the party with the lower Settlement Amount ("Y") and
(b) the Termination Currency Equivalent of the Unpaid
Amounts owing to X less
(II) the Termination Currency Equivalent of the Unpaid
Amounts owing to Y; and
(B) If Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the loss of the party with
the lower Loss ("Y")
If the amount payable is a positive number, Y will pay it to X; if it
is a negative number, X will pay the absolute value of that amount to
Y.
(iii) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies
in respect of a party, the amount determined under this Section 6(e)
will be subject to such adjustments as are appropriate and permitted
by law to reflect any payments or
15
deliveries made by one party to the other under this Agreement (and
retained by such other party) during the period from the relevant
Early Termination Date to the date for payment determined under
Section 6(d)(ii).
(iv) PRE-ESTIMATE. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable
pre-estimate of loss and not a penalty. Such amount is payable for the
loss of bargain and the loss of protection against future risks and
except as otherwise provided in this Agreement neither party will be
entitled to recover any additional damages as a consequence of such
losses.
7. TRANSFER
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of
the other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of
all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement);
(b) and a party may make such a transfer of all or any part of its interest in
any amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. CONTRACTUAL CURRENCY
(a) PAYMENT IN THE CONTRACTUAL CURRENCY. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that
payment (the "CONTRACTUAL CURRENCY"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the
Contractual Currency will not be discharged or satisfied by any tender in
any currency other than the Contractual Currency, except to the extent such
tender results in the actual receipt by the party to which payment is owed,
acting in a reasonable manner and in good faith in converting the currency
so tendered into the Contractual Currency, of the full amount in the
Contractual Currency of all amounts payable in respect of this Agreement.
If for any reason the amount in the Contractual Currency so received falls
short of the amount in the Contractual Currency payable in respect of this
Agreement, the party required to make the pavement will, to the extent
permitted by applicable law, immediately pay such additional amount in the
Contractual Currency as may be necessary to compensate for the shortfall.
If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount
of such excess.
16
(b) JUDGMENTS. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is
rendered:
(i) for the payment of any amount owing in respect of this Agreement;
(ii) for the payment of any amount relating to any early termination in
respect of this Agreement; or
(iii) in respect of a judgment or order of another court for the payment of
any amount described in (i) or (ii) above, the party seeking recovery,
after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to
receive immediately from the other party the amount of any shortfall
of the Contractual Currency received by such party as a consequence of
sums paid in such other currency and will refund promptly to the other
party any excess of the Contractual Currency received by such party as
a consequence of sums paid in such other currency if such shortfall or
such excess arises or results from any variation between the rate of
exchange at which the Contractual Currency is converted into the
currency of the judgment or order for the purposes of such judgment or
order and the rate of exchange at which such party is able, acting in
a reasonable manner and in good faith in converting the currency
received into the Contractual Currency, to purchase the Contractual
Currency with the amount of the currency of the judgment or order
actually received by such party. The term "rate of exchange" includes,
without limitation, any premiums and costs of exchange payable in
connection with the purchase of or conversion into the Contractual
Currency.
(c) SEPARATE INDEMNITIES. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and
independent causes of action, will apply notwithstanding any indulgence
granted by the party to which any payment is owed and will not be affected
by judgment being obtained or claim or proof being made for any other sums
payable in respect of this Agreement.
(d) EVIDENCE OF LOSS. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
9. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and
supersedes all oral communication and prior writings with respect thereto.
(b) AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing
evidenced by a facsimile transmission) and executed by each of the parties
or confirmed by an exchange of telexes or electronic messages on an
electronic messaging system.
17
(c) SURVIVAL OF OBLIGATIONS. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive
the termination of any Transaction.
(d) REMEDIES CUMULATIVE. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative
and are not exclusive of any rights, powers, remedies and privileges
provided by law.
(e) COUNTERPARTS AND CONFIRMATIONS.
(i) This Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally
or otherwise). A Confirmation shall be entered into as soon as
practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of
telexes or by an exchange of electronic messages on an electronic
messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that
any such counterpart, telex or electronic message constitutes a
Confirmation.
(f) NO WAIVER OF RIGHTS. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege
will not be presumed to preclude any subsequent or further exercise, of
that right, power or privilege or the exercise of any other right, power or
privilege.
(g) HEADINGS. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken
into consideration in interpreting this Agreement.
10. OFFICES; MULTIBRANCH PARTIES
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home
office represents to the other party that, notwithstanding the place of
booking office or jurisdiction of incorporation or organisation of such
party, the obligations of such party are the same as if it had entered into
the Transaction through its head or home office. This representation will
be deemed to be repeated by such party on each date on which a Transaction
is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
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(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office
through which it makes and receives payments or deliveries with respect to
a Transaction will be specified in the relevant Confirmation.
11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other
party from and against all reasonable out-of-pocket expenses, including
legal fees and Stamp Tax, incurred by such other party by reason of the
enforcement and protection of its rights under this Agreement or any Credit
Support Document to which the Defaulting Party is a party or by reason of
the early termination of any Transaction, including, but not limited to,
costs of collection.
12. NOTICES
(a) EFFECTIVENESS. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a
notice or other communication under Section 5 or 6 may not be given by
facsimile transmission or electronic messaging system) to the address
or number or in accordance with the electronic messaging system details
provided (see the Schedule) and will be deemed effective as indicated:-
(i) if in writing and delivered in person or by courier, on the date
it is delivered;
(ii) if sent by telex, on the date the recipient's answer back is
received;
(iii) if sent by facsimile transmission, on the date that transmission
is received by a responsible employee of the recipient in legible
form (it being agreed that the burden of proving receipt will be
on the sender and will not be met by a transmission report
generated by the sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail
is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that
electronic message is received,
unless the date of that delivery (or attempted delivery) or that
receipt, as applicable, is not a Local Business Day or that
communication is delivered (or attempted) or received, as applicable,
after the close of business on a Local Business Day, in which case
that communication shall be deemed given and effective on the first
following day that is a Local Business Day.
19
(b) CHANGE OF ADDRESSES. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details
at which notices or other communications are to be given to it.
13. GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) JURISDICTION. With respect to any suit, action or proceedings relating to
this Agreement ("PROCEEDINGS"), each party irrevocably:-
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State Of New York and the United
States District Court located in the Borough of Manhattan in New York
City if this agreement is expressed to be governed by the laws of the
State of New York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim
that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceedings,
that such court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings
in any other jurisdiction (outside , if this Agreement is expressed to be
governed by English law, the Contracting States, as defined in Section 1(3)
of the Civil Jurisdiction and Judgments Xxx 0000 or any modification,
extension or re-enactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more jurisdictions preclude the
bringing of Proceedings in any other jurisdiction.
(c) SERVICE OF PROCESS. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on
its behalf, service of process in any Proceedings. If for any reason any
party's Process Agent is unable to act as such, such party will promptly
notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to
service of process given in the manner provided for notices in Section 12.
Nothing in this Agreement will affect the right of either party to serve
process in any other manner permitted by law.
(d) WAIVER OF IMMUNITIES. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and
assets (irrespective of their use or intended use), all immunity on the
grounds of sovereignty or other similar grounds from:
(i) suit,
(ii) jurisdiction of any court,
20
(iii) relief by way of injunction, order for specific performance or for
recovery of property attachment of its assets (whether before or
after judgment), and
(iv) execution or enforcement of any judgment to which it or its revenues
or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any
Proceedings.
14. DEFINITIONS
As used in this Agreement:-
"ADDITIONAL TERMINATION EVENT" has the meaning specified in Section 5(b).
"AFFECTED PARTY" has the meaning specified in Section 5(b).
"AFFECTED TRANSACTIONS" means:
(a) with respect to any Termination Event consisting of an Illegality, Tax
Event or Tax Event Upon Merger, all Transactions affected by the
occurrence of such Termination Event; and
(b) with respect to any other Termination Event, all Transactions.
"AFFILIATE" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose,
"control" of any entity or person means ownership of a majority of the
voting power of the entity or person.
"APPLICABLE RATE" means:
(a) in respect of obligations payable or deliverable (or which would have
been but for Section 2(a)(iii)) by a Defaulting Party, the Default
Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of
either party from and after the date (determined in accordance with
Section 6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which
would have been but for Section 2(a)(iii)) by a Non-defaulting Party,
the Non-default Rate; and
(d) in all other cases, the Termination Rate.
"BURDENED PARTY" has the meaning specified in Section 5(b).
"CHANGE IN TAX LAW" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official
21
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"CONSENT" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"CREDIT EVENT UPON MERGER" has the meaning specified in Section 5(b).
"CREDIT SUPPORT DOCUMENT" means any agreement or instrument that is
specified as such in this Agreement.
"CREDIT SUPPORT PROVIDER" has the meaning specified in the Schedule.
"DEFAULT RATE" means a rate per annum equal to the costs (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if
it were to fund or of funding the relevant amount plus 1 % per annum.
"DEFAULTING PARTY" has the meaning specified in Section 6(a).
"EARLY TERMINATION DATE" means the date determined in accordance with
Section 6(a) or 6(b)(iv).
"EVENT OF DEFAULT" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"ILLEGALITY" has the meaning specified in Section 5(b).
"INDEMNIFIABLE TAX" means any Tax other than a Tax that would not be
imposed in respect of a payment under this Agreement but for a present or
former connection between the jurisdictions of the government or taxation
authority imposing such Tax and the recipient of such payment or a person
related to such recipient (including, without limitation, a connection
arising from such recipient or related person being or having been a
citizen or resident of such jurisdiction, or being or having been
organised, present or engaged in a trade or business in such jurisdiction,
or having had a permanent establishment or fixed place of business in such
jurisdiction, but excluding a connection arising solely from such recipient
or related person having executed, delivered, performed its obligations or
received a payment under, or enforced, this Agreement or a Credit Support
Document).
"LAW" includes any treaty, law, rule or regulation (as modified, in the
case of tax matters, by the practice of any relevant governmental revenue
authority) and "lawful" and "unlawful" will be construed accordingly.
"LOCAL BUSINESS DAY" means, subject to the Schedule, a day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits):
(a) in relation to any obligation under Section 2(a)(i), in the place(s)
specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the
22
parties in writing or determined pursuant to provisions contained, or
incorporated by reference, in this Agreement,
(b) in relation to any other payment, in the place where the relevant
account is located and, if different, in the principal financial
centre, if any, of the currency of such payment,
(c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the
address for notice provided by the recipient and, in the case of a
notice contemplated by Section 2(b), in the place where the relevant
new account is to be located and (d) in relation to section
5(a)(v)(2), in the relevant locations for performance with respect to
such Specified Transaction.
"LOSS" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to
be its total losses and costs (or gain, in which case expressed as a
negative number) in connection with this Agreement or that Terminated
Transaction or group of Terminated Transactions, as the case may be,
including any loss of bargain, cost of funding or, at the election of such
party but without duplication, loss or cost incurred as a result of its
terminating, liquidating, obtaining or re-establishing any hedge or related
trading position (or any gain resulting from any of them). Loss includes
losses and costs (or gains) in respect of any payment or delivery required
to have been made (assuming satisfaction of each applicable condition
precedent) on or before the relevant Early Termination Date and not made,
except, so as to avoid duplication, if Section 6(e)(i)(1) or (3) or
6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine
its Loss as of the relevant Early Termination Date, or, if that is not
reasonably practicable, as of the earliest date thereafter as is reasonably
practicable. A party may (but need not) determine its Loss by reference to
quotations of relevant rates or prices from one or more leading dealers in
the relevant markets.
"MARKET QUOTATION" means, with respect to one or more Terminated
Transactions and a party making the determination, an amount determined on
the basis of quotations from Reference Market-makers. Each quotation will
be for an amount, if any, that would be paid to such party (expressed as a
negative number) or by such party (expressed as a positive number) in
consideration of an agreement between such party (taking into account any
existing Credit Support Document with respect to the obligations of such
party) and the quoting Reference Market-maker to enter into a transaction
(the "Replacement Transaction") that would have the effect of preserving
for such party the economic equivalent of any payment or delivery (whether
the underlying obligation was absolute or contingent and assuming the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of
Terminated Transactions that would, but for the occurrence of the relevant
Early Termination Date, have been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group
of Terminated Transactions are to be excluded but, without limitation, any
payment or delivery that would, but for the relevant Early Termination
Date, have
23
been required (assuming satisfaction of each applicable condition
precedent) after that Early Termination Date is to be included. The
Replacement Transaction would be subject to such documentation as such
party and the Reference Market-maker may, in good faith, agree. The party
making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent as reasonably
practicable after the relevant Early Termination Date. The day and time as
of which those quotations are to be obtained will be selected in good faith
by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than
three quotations are provided, the Market Quotation will be the arithmetic
mean of the quotations, without regard to the quotations having the highest
and lowest values. If exactly three quotations are provided, the Market
Quotation will be the quotation remaining after disregarding the highest
and lowest quotations. For this purpose, if more than one quotation has the
same highest value or lowest value, then one of such quotations shall be
disregarded. if fewer than three quotations are provided, it will be deemed
that the Market Quotation in respect of such Terminated Transaction or
group of Terminated Transactions cannot be determined.
"NON-DEFAULT RATE" means a rate per annum equal to the cost (without proof
or evidence of any actual costs) to the Non-defaulting Party (as certified
by it) if it were to fund the relevant amount.
"NON-DEFAULTING PARTY" has the meaning specified in Section 6(a).
"OFFICE" means a branch or office of a party, which may be such party's
head or home office.
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving of
notice or the lapse of time or both, would constitute an Event Of Default.
"REFERENCE MARKET-MAKERS" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith:
(a) from among dealers of the highest credit standing which satisfy all
the criteria that such party applies generally at the time in deciding
whether to offer or to make an extension of credit; and
(b) to the extent practicable, from among such dealers having an office in
the same city.
"RELEVANT JURISDICTION" means, with respect to a party, the jurisdictions:
(a) in which the party is incorporated, organised, managed and controlled
or considered to have its seat,
(b) where an Office through which the party is acting for purposes of this
Agreement is located,
(c) in which the party executes this Agreement, and
24
(d) in relation to any payment, from or through which such payment is
made.
"SCHEDULED PAYMENT DATE" means a date on which a payment or delivery is to
be made under Section 2(a)(i) with respect to a Transaction.
"SET-OFF" means set-off, offset, combination of accounts, right of
retention or withholding or similar right or requirement to which the payer
of an amount under Section 6 is entitled or subject (whether arising under
this Agreement, another contract, applicable law or otherwise) that is
exercised by, or imposed on, such payer.
'SETTLEMENT AMOUNT' means, with respect to a party and any Early
Termination Date, the sum of:-
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation is determined;
and
(b) such party's Loss (whether positive or negative and without reference
to any Unpaid Amounts) for each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation cannot be
determined or would not (in the reasonable belief of the party making
the determination) produce a commercially reasonable result.
"SPECIFIED ENTITY" has the meaning specified in the Schedule.
"SPECIFIED INDEBTEDNESS" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety
or otherwise) in respect of borrowed money.
"SPECIFIED TRANSACTION" means, subject to the Schedule,
(a) any transaction (including an agreement with respect thereto) now
existing or hereafter entered into between one party to this Agreement
(or any Credit Support Provider of such party or any applicable
Specified Entity of such party) and the other party to this Agreement
(or any Credit Support Provider of such other party or any applicable
Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option
with respect to any of these transactions),
(b) any combination of these transactions, and
(c) any other transaction identified as a Specified Transaction in this
Agreement or the relevant confirmation.
"STAMP TAX"' means any stamp, registration, documentation or similar tax.
25
"TAX" means any present or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including interest, penalties and
additions thereto) that is imposed by any government or other taxing
authority in respect of any payment under this Agreement other than a
stamp, registration, documentation or similar tax.
"TAX EVENT" has the meaning specified in Section 5(b).
"TAX EVENT UPON MERGER" has the meaning specified in Section 5(b).
"TERMINATED TRANSACTIONS" means with respect to any Early Termination Date:
(a) if resulting from a Termination Event, all Affected Transactions; and
(b) if resulting from an Event of Default, all Transactions (in either
case) in effect immediately before the effectiveness of the notice
designating that Early Termination Date (or, if "Automatic Early
Termination" applies, immediately before that Early Termination Date).
"TERMINATION CURRENCY" has the meaning specified in the Schedule.
"TERMINATION CURRENCY EQUIVALENT" means, in respect of any amount
denominated in the Termination Currency, such Termination Currency amount
and, in respect of any amount denominated in a currency other that the
Termination Currency (the "OTHER CURRENCY"), the amount in the Termination
Currency determined by the party making the relevant determination as being
required to purchase such amount of such Other Currency as at the relevant
Early Termination Date, or, if the relevant Market Quotation or Loss (as
the case may be), is determined as of a later date, that later date, with
the Termination Currency at the rate equal to the spot exchange rate of the
foreign exchange agent (selected as provided below) for the purchase of
such Other Currency with the Termination Currency at or about 11:00 a.m.
(in the city in which such foreign exchange agent is located) on such date
as would be customary for the determination of such a rate for the purchase
of such Other Currency for value on the relevant Early Termination Date or
that later date. The foreign exchange agent will, if only one party is
obliged to make a determination under Section 6(e), be selected in good
faith by that party and otherwise will be agreed by the parties.
"TERMINATION EVENT" means an Illegality, a Tax Event or a Tax Event Upon
Merger or, if specified to be applicable, a Credit Event Upon Merger or an
Additional Termination Event.
"TERMINATION RATE" means a rate per annum equal to the arithmetic mean of
the cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"UNPAID AMOUNTS" owing to any party means, with respect to an Early
Termination Date, the aggregate of:
26
(a) in respect of all Terminated Transactions, the amounts that became
payable (or that would have become payable but for Section 2(a)(iii))
to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination
Date; and
(b) in respect of each Terminated Transaction, for each obligation under
Section 2(a)(i) which was (or would have been but for Section
2(a)(iii)) required to be settled by delivery to such party on or
prior to such Early Termination Date and which has not been so settled
as at such Early Termination Date, an amount equal to the fair market
value of that which was (or would have been) required to be delivered
as of the originally scheduled date for delivery, in each case
together with (to the extent permitted under applicable law) interest,
in the currency of such amounts, from (and including) the date such
amounts or obligations were or would have been required to have been
paid or performed to (but excluding) such Early Termination Date, at
the Applicable Rate. Such amounts of interest will be calculated on
the basis of daily compounding and the actual number of days elapsed.
The fair market value of any obligation referred to in clause (6)
above shall be reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it
shall be the average of the Termination Currency Equivalents of the
fair market values reasonably determined by both parties.
27
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
Macquarie Securitisation Limited, ABN 16 003 297 336 Deutsche Bank AG New York Branch
("Party A")
____________________________________________________ ___________________________________________
(Name of Party) (Name of Party)
By: By:
Name: Name:
Title: Title:
Date Date:
Perpetual Trustees Australia Limited, ABN 86 000 000 000
("Party B")
___________________________________________
(Name of Party)
By:
Name:
Title:
Date
28
DRAFT: 24 AUGUST 2001
--------------------------------------------------------------------------------
MACQUARIE SECURITISATION LIMITED
ABN 16 003 297 336
Manager
DEUTSCHE BANK AG, NEW YORK BRANCH
Party A
PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
Party B
ISDA MASTER AGREEMENT
CURRENCY SWAP AGREEMENT
THE PUMA FUND
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 XXX - 000/0000000 XXXXXXX - XXXXXX 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 2001 BETWEEN
MACQUARIE SECURITISATION LIMITED
ABN 16 003 297 336
("MANAGER")
AND
DEUTSCHE BANK AG, NEW YORK BRANCH
("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(b)(iv)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv)
(iii) Section 5(b)(ii) will apply to Party A as the Affected
Party but is subject to Parts 5(6)(b) and 5(7)(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.
1
(f) "TERMINATION CURRENCY" means US$ provided that if an amount due in
respect of an Early Termination Date will be payable by Party B to
Party A the Termination Currency for the purpose of calculating and
paying that amount is Australian Dollars.
(g) "ADDITIONAL TERMINATION EVENT" applies. The following is an Additional
Termination Event in respect of the Transactions of a 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 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:
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 representations:
It is an Australian resident and does not derive the payments under
this Agreement in part or whole in carrying on business in a country
outside Australia at or through a permanent establishment of itself in
a country outside Australia. Party B further represents that it is a
"foreign trust" for United States tax purposes.
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:
2
(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,
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.
Party A, Party B and the A legal opinion as to the validity On or prior to the Trade
Manager and enforceability of its obligations Date of the first occurring
under this Agreement in form and Transaction.
substance (and issued by legal
counsel) reasonably acceptable to
each other party.
Party B A certified copy to Party A of the Not less than 5 Business
Trust Deed and a certified copy to Days (or such lesser period
Party A of any document that as Party A agrees to) before
amends in any way the terms of the the Trade Date of the first
Trust Deed. occuring Transaction 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.
Party B A certified copy to Party A of each Not less than 5 Business
Sub-Fund Notice and Security Days (or such lesser period
Trust Deed in relation to a as Party A agrees to) before
A certified copy to Party A of each Not less than 5 Business Days
Sub-Fund Notice and Security Trust Deed (or such lesser period as
in relation to a Party A agrees to) before
3
Sub-Fund and each other Transaction the Trade Date of the first
Document in relation to a Sub-Fund as is occurring Transaction entered
reasonably requested by Party A and into by Party B as trustee of
(without limiting any obligation Party B the Sub-Fund and in the case
may have to notify Party A of amendments of any amending documents
thereto) a certified copy to Party A of entered into subsequent to
any document that amends in any way the that date, promptly after each
terms of that Sub-Fund Notice or Security amending document (if any) has
Trust Deed or the terms of any such been entered into.
Transaction Document.
Party B 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
and (without limiting any obligation Trade Date of that Transaction
Party B may have to notify Party A of and in the case of any
amendments thereto) a certified copy to amending documents entered
Party A of any document that amends in into subsequent to that date,
any way those terms and conditions. promptly after each amending
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 Document (or such lesser period as
(if any) specified in respect of Party Party B and the Manager agree
A and (without limiting any obligation to) before the Trade Date of
Party A may have under the terms of the first occurring
that Credit Support Document to notify Transaction and in the case of
Party B or the Manager of amendments any amending documents entered
thereto) a certified copy to Party B into subsequent to that date,
and the Manager of any document that promptly after each amending
amends in any way the terms of that document (if any) has been
Credit Support Document. entered into.
Other than the legal opinions referred to in this Part 3(b), 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:
Address: Level 17, 00 Xxxx 00xx Xxxxxx
Xxx Xxxx
XX 00000, XXX
Attention: Xxxx Xxxxxxxx
4
Facsimile No: x0 000 000 0000
with a copy to:
Address: Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Attention: Xxxxx Xxxxx
Facsimile No.: x000 0000 0000
Address for notices or communications to PARTY B:
Address: Perpetual Trustees Australia Limited
Xxxxx 0
00 Xxxxxx 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: Deutsche Bank AG,
Sydney Branch
Xxxxx 00, 000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000.
Party B appoints as its Process Agent: not applicable.
(c) OFFICES. The provisions of Section 10(a) will not apply to this
Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this
Agreement:
Party A is not a Multibranch Party.
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 A denominated in US$,Party A; and
(ii) in respect of all other notices, determinations and
calculations, the Manager.
5
(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 apply in respect of all Transactions.
(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) the first sentence is deleted and replaced
with the following sentence:
"Unless specified otherwise in this Agreement, payments under
this Agreement by:
(i) Party A, will be made by [12.00 noon] (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 the relevant Confirmation or otherwise
pursuant to this Agreement, in freely transferable funds, free
of any set-off, counterclaim, deduction or withholding (except
as expressly provided in this Agreement) and in the manner
customary for payment in the required currency."
(c) Insert 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)."
6
(d) Insert a new paragraph (v) in Section 2(a) immediately after
Section 2(a)(iv) as follows:
"(v) Where payments are due pursuant to Section 2(a)(i) by
Party A to Party B (the "PARTY A PAYMENT") and by
Party B to Party A (the "PARTY B PAYMENT") on the
same day, then Party A's obligation to make the Party
A Payment will be subject to the condition precedent
(which will be an "applicable condition precedent"
for the purpose of Section 2(a)(iii)(3)) that Party A
first receives either:
(1) the Party B Payment; or
(2) 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."
(2) PARTY B'S PAYMENT INSTRUCTIONS: Party B irrevocably authorises and
instructs Party A to make payment of:
(i) the Initial Exchange Amount in respect of each Transaction due
from Party A to Party B in respect of the Initial Exchange
Date of that Transaction by paying that amount direct to the
account notified in writing by Party B to Party A for that
purpose; and
(ii) any other amount due from Party A to Party B under that
Transaction by paying that amount direct to the Relevant
Principal Paying Agent in relation to that Transaction 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 obligation 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.
(3) PARTY A'S PAYMENT INSTRUCTIONS: Party A irrevocably authorises and
instructs Party B to make payment of:
(i) any amount denominated in A$ due from Party B to the account
in Australia notified in writing by Party A to Party B from
time to time; and
(ii) any amount denominated in US$ due from Party B to the account
notified in writing by Party A to Party B from time to time.
(4) 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) after "Section 3(f)" in line 2 of Section 3 insert "3(g),
3(h), 3(i) and 3(j)";
7
(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):-
(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
8
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.
(j) CONTRACTING AS PRINCIPAL. Each Transaction is entered
into by that party as principal and not otherwise."
(5) 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.".
(6) TERMINATION EVENTS:
(a) ILLEGALITY: In respect of each Transaction, 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 Transaction as a result of that event occurring;
(ii) payment by Party B in accordance with Part 5(3) of
the Schedule will continue to constitute proper
performance of its payment obligations in respect of
that Transaction; and
(iii) Party A's obligations in respect of that Transaction
or this Agreement will, to the extent permitted by
law, be unaffected by the occurrence of that event,
9
but nothing in this Part 5(6)(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 Relevant Note Trustee 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 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.
(7) 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 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 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 following 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 Relevant Note Trustee in relation
to the Affected Transactions, use reasonable efforts
to make such a transfer to an Affiliate provided the
Current Rating Authorities have given prior written
confirmation to the Relevant Note Trustee 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
10
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
Transaction 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 Transaction (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(17)(b).
(8) NO SET-OFF: Section 6(e) is amended by deleting the last sentence of
the first paragraph.
(9) 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;
11
(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(6)(b)(ii) or
Part 5(21)(b);
(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)."
(10) 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)";
(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.".
(11) DEFINITIONS
In this Agreement, unless the contrary intention appears:
(a) TRUST DEED: subject to Part 5(11)(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;
12
(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(11)(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
Section 15 or any similar provision in a
Transaction Document 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 definitions of "AFFECTED TRANSACTIONS",
"LOCAL BUSINESS DAY" with the following:
""AFFECTED TRANSACTIONS" means, with respect to a
Termination Event, all Transactions."
""LOCAL BUSINESS DAY" has the same meaning as 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:
"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.
"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-1 by S&P
and long term credit ratings of A- by S&P,
A3 by Moody's and A- 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-1 by S&P and long term
credit ratings of A- by S&P, A3 by Moody's
or A- 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
13
then the ratings of such a credit rating
agency will not be relevant for the purposes
of determining the Prescribed Rating Period.
"PRESCRIBED RATING" in relation to a
Transaction means (unless otherwise
specified in the Confirmation in relation to
the Transaction) 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) and long term credit ratings of
AA- by Fitch (if Fitch is a Current Rating
Authority in relation to the Transaction)
and 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 given to that
term in the Confirmation for that
Transaction.
"RELEVANT PRINCIPAL PAYING AGENT" in
relation to a Transaction has the meaning
given to that term in the Confirmation for
that Transaction.
"RELEVANT NOTES" in relation to a
Transaction has the meaning given to that
term in the Confirmation for that
Transaction.
"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(17).
"TRUST DEED" means the Deed of Trust dated
13 July 1990 (as amended) 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(11)(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(11)(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
14
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;
(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"; and
(v) a reference to "other party" will be construed as a
reference to "other parties".
(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(11)(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 form 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 1991 ISDA
Definitions.
(h) INCORPORATED DEFINITIONS AND OTHER TRANSACTION DOCUMENTS AND
PROVISIONS: Where in this Agreement a word or expression is
defined by reference to its meaning in another Transaction
Document or there is a reference to another Transaction
Document or to a provision of another Transaction Document,
any amendment to the meaning of that word or expression or to
that other Transaction Document or provision (as the case may
be) will be of no effect for the purposes of
15
this Agreement unless and until the amendment is consented to
by the parties to this Agreement.
(12) LIMITATION OF LIABILITY: Insert the following Section 15, after
Section 14:
"15. PARTY B'S LIMITATION OF LIABILITY
(a) (LIMITATION ON PARTY B'S LIABILITY): Party B enters
into this Agreement only in its capacity as trustee
of each Sub-Fund and in no other capacity. A
liability incurred by Party B acting in its capacity
as trustee of a 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
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 a 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 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
Sub-Fund, as a result of Party B's fraud, negligence
or wilful default.
(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 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 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
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.
16
(f) (SEGREGATION): Without limiting the generality of
this Section 15, the provisions of this Agreement
shall have effect severally in respect of each
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
respective capacities as trustee of each
Sub-Fund;
(ii) this Agreement together with each
Confirmation relating to a particular
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 Sub-Fund;
(iii) representations made and agreements entered
by the parties under this Agreement are made
and entered severally by Party B in its
respective capacities 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 respective capacities
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."
(13) FURTHER ASSURANCES: Each party will, upon request by the other party
(the "REQUESTING PARTY") at the expense of the requesting party,
perform all such acts and execute all such agreements, assurances and
other documents and instruments as the requesting party reasonably
requires (and, in the case of Party B, are within the powers granted to
Party B under the Trust Deed) to assure and confirm the rights and
powers afforded, created or intended to be afforded or created, under
or in relation to this Agreement and each Transaction or other dealing
which occurs under or is contemplated by it.
(14) 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;
17
(b) Party B will enter into each Transaction in its capacity as
trustee of a Sub-Fund as specified in the relevant
Confirmation.
(15) 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.
(16) 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.
(17) REPLACEMENT CURRENCY SWAP AGREEMENT:
(a) If any Transaction under this Agreement 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(17)(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 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(17)(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
18
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(17) will survive the termination of this Agreement.
(18) KNOWLEDGE OR AWARENESS: Subject to Section 12(a), each party will only
be considered to have knowledge or awareness of, or notice of, a thing
or grounds to believe anything by virtue of the officers of that party
or any Related 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).
(19) 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(19) as apply to the Recipient.
(20) 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.
(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 the
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) 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
19
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, 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 such collateral arrangements
being put in place;
(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 version), 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.
(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
20
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 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.
(23) 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 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(23) of the
Schedule. 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 Party B's rights or obligations on Party B's behalf.
(24) SUPPORT FACILITY: Party B and the Manager agree that this Agreement and
each Confirmation in relation to a Transaction of the relevant Sub-Fund
is a Support Facility with respect to the Sub-Fund.
(25) 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.
00
XXXXXXXX XXXX XX, XXX XXXX BRANCH
00 XXXX 00XX XXXXXX
XXX XXXX, XX 00000 XXX
[ ] 2002
TO: Perpetual Trustees Australia Limited Macquarie Securitisation Limited
(as trustee of the PUMA Global Trust No. 2) Xxxxx 00
Xxxxx 0 00 Xxxx Xxxxxx
0 Xxxxxxxxxxx Xxxxxx Xxxxxx XXX 0000
Xxxxxx XXX 0000 XXXXXXXXX
XXXXXXXXX
ATTENTION: Manager, Securitisation Services ATTENTION: The Manager: PUMA Programme
CONFIRMATION - PUMA GLOBAL TRUST NO. 2 - US$ CLASS A 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. 2 (the "PUMA TRUST").
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of 25 September 2001, as amended, novated or
supplemented from time to time (the "AGREEMENT"), between Deutsche Bank AG, New
York Branch ("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 terms of the particular Transaction to which this Confirmation relates are
specified below:
1. OUR REFERENCE:
2. TRADE DATE: [ ] June 2002
3. EFFECTIVE DATE: Closing Date (being [ ] June 2002)
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 [ ] June
2034).
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 25 September 2002 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 [ ] June 2009
(or if that day is not a Business Day, the next following
Business Day), [ ]%; and
(b) Floating Rate Payer Payment Dates after [ ] June 2009 (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 A 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 25 September 2002 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
2
Spread: In respect of:
(a) Floating Rate Payer Payment Dates on or prior to [ ] June 2009
(or if that day is not a Business Day, the next following
Business Day), [ ]%; and
(b) Floating Rate Payer Payment Dates after [ ] June 2009 (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 A Interest Amount: On each Floating Rate Payer Payment Date, Party A must pay to Party B
the Outstanding Class A 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 25 September 2002 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 [ ] June 2009
(or if that day is not a Business Day, the next following
Business Day), [ ]%; and
(b) Floating Rate Payer Payment Dates after [ ] June 2009 (or if that
day is not a Business Day, the next following Business Day),
[ ]%.
Floating Rate Day Count Fraction: Actual/365 (Fixed)
3
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
(B) Floating Rate Payer: Party B
Calculation Amount: The Outstanding A$ Class A 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 25 September 2002 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 [ ] June 2009
(or if that day is not a Business Day, the next following
Business Day), [ ]%; and
(b) Floating Rate Payer Payment Dates after [ ] June 2009 (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 A Interest Amount: On each Floating Rate Payer Payment Date, Party B will pay to Party A
the Outstanding A$ Class A Interest Amount in relation to that Floating
Rate Payer Payment Date
5.3 PROPORTIONATE ADJUSTMENT OF If the A$ Class A Interest Payment in relation to a Quarterly Payment
FLOATING AMOUNTS 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 A 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 A 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
4
Unpaid Class A Interest Amounts) being the same proportion as the A$
Class A 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 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$[ ]
Party B Initial Exchange Amount: The aggregate Original Principal Balances of the Relevant Notes on the
Closing Date, being US$[ ]
Notwithstanding Section 2(a)(ii) of the Agreement, Party A must pay the
Party A Initial Exchange Amount to Party B by 4.00pm (Sydney time) on
the Initial Exchange Date and Party B must pay Party A the Party B
Initial Exchange Amount by 4.00pm (New York time) on the Initial
Exchange Date. Section 2(a)(v) of the Agreement will not apply to the
payments of the Initial Exchange Amounts.
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 A 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 A
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 A Principal Amount in relation to
the Quarterly Payment Date which is the Final Exchange Date
5
Party B Final Exchange Amount: The A$ Class A 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: [ ]
8. ACCOUNT DETAILS:
8.1 PAYMENTS TO PARTY A
Account for payments in US$: The account notified in writing by Party A to Party B in accordance
with Part 5(3)(ii) of the Schedule to the Agreement
Account for payments in A$: The account notified in writing by Party A to Party B in accordance
with Part 5(3)(i) of the Schedule to the Agreement
8.2 PAYMENTS TO PARTY B
Account for payments in US$: The account notified in writing by the Principal Paying Agent to Party
A in accordance with Part 5(2)(ii) of the Schedule to the Agreement
Account for payments in A$: The account notified in writing by Party B to Party A in accordance
with Part 5(2)(i) of the Schedule to the Agreement
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 A Principal Amount in relation to that Quarterly
Payment Date;
(b) the A$ Class A Interest Amount in relation to that Quarterly
Payment Date;
(c) the Unpaid A$ Class A Interest Amount (if any) in relation to
that Quarterly Payment Date;
(d) the A$ Class A Interest Payment in relation to that Quarterly
Payment Date.
10. OFFICES: The Office of Party A for each Transaction is New York. The Office of
Party B for each Transaction is Sydney.
11. TAXES Section 2(d) of the Agreement is amended as it applies to the
Transaction as follows:
6
[(i) Section 2(d)(i)(4) is deleted in its entirety.
(ii) The following words are deleted where they appear in Section
2(d)(ii)(1):
"in respect of which X would not be required to pay an additional
amount to Y under Section 2(d)(i)(4)".]
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 the Transaction under Section 6(e) to the extent that
payment of such amount is delayed by the operation of Part 5(7)(f) of
the Agreement.
Please confirm that the above correctly sets out the terms of our agreement in
respect of each Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
CONFIRMED AS AT THE DATE FIRST WRITTEN ABOVE:
SIGNED for and on behalf of
DEUTSCHE BANK AG, NEW YORK BRANCH
By:
(Authorised Officer )
Name:
Title:
7
CONFIRMED AS AT THE DATE FIRST WRITTEN ABOVE:
SIGNED for and on behalf of
PERPETUAL TRUSTEES AUSTRALIA LIMITED, ABN 86 000 000 000
as trustee of the PUMA Global Trust No. 2
By:
(Authorised Officer)
Name:
Title:
CONFIRMED AS AT THE DATE FIRST WRITTEN ABOVE:
SIGNED for and on behalf of
MACQUARIE SECURITISATION LIMITED, ABN 16 003 297 336
By:
(Authorised Officer)
Name:
Title:
8
DEFINITIONS SCHEDULE
In this Confirmation and in the Agreement to the extent that it relates to the
PUMA Global Trust No. 2, unless the context otherwise requires: "A$ CLASS A
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 A
Interest Amount and Unpaid A$ Class A Interest Amount on that Quarterly Payment
Date.
"A$ CLASS A PRINCIPAL AMOUNT" has the same meaning as in the Sub-Fund Notice.
"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.
"CLASS A 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.
"DETERMINATION TIME" in relation to a Quarterly Payment Date means on or about
11.00am 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 A INTEREST AMOUNT" in relation to a Floating Rate Payer
Payment Date means 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.
"OUTSTANDING CLASS A 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.
"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
9
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 A Noteholders as that term is defined in
the Note Trust Deed.
"RELEVANT NOTES" means the Class A Notes 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 [ ] 2002 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 [ ] 2002 between Party B and
the Manager. "UNPAID A$ CLASS A 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 A 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 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.
10
