(MULTICURRENCY - CROSS BORDER)
ISDA
INTERNATIONAL SWAPS & DERIVATIVES ASSOCIATION, INC.
MASTER AGREEMENT
dated as of 28 February 1995
Deutsche Bank AG, SYDNEY BRANCH PERPETUAL TRUSTEES AUSTRALIA
ARBN 064 165 162 LIMITED ACN 000 000 000 in its capacity as
trustee of various Sub-Funds from time
to time established under the Trust Deed
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.
18
(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.
(Name of Party) (Name of Party)
By: By:
Name: Name:
Title: Title:
Date Date:
SIGNED SEALED and DELIVERED )
by and on behalf of DEUTSCHE )
BANK AG, SYDNEY BRANCH, )
ARBN 064 165 162 by its )
attorneys Chum Parvall ) /s/ Chum Parvall
and Xxxx Xxxxxxx ) (Signature of Attorney)
under a Power of Sub-Attorney )
dated 13/12/90 and registered )
Book 4081 No. 241 and ) /s/ Xxxx Xxxxxxx
he declares that he has not received any ) (Signature of Attorney)
notice of the revocation of such Power of )
Attorney in the presence of: )
/s/ Xxxx Xxxxx
Xxxx Xxxxx
(Signature of Witness in Full)
Signed in my presence for and on behalf of Perpetual
Trustees Australia Limited (A.C.N. 000 000 000) by its
attorneys Xxxx Xxxxxx XxXxxxxx and Xxxx Xxxxxx who are
personally known to me and each of whom declares that
he/she has been appointed by the Board of Directors of
that company by resolutions dated 24 MAY 1994 as
attorney of the company for the purposes of the Power
of Attorney dated 24 MAY 1994 (Registration No.
4059/243) and that he/she has no notice of the
revocation of his her powers.
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxx Xxxxxx XxXxxxxx
Signature of Witness Signature of Attorney
Xxxxxxx Xxxx Xxxxxxxxx /s/ Xxxx Xxxxxx
Full name of Witness Signature of Attorney
28
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of
between
--------------------------------------------------------------------------------
DEUTSCHE BANK AG, SYDNEY BRANCH, and PERPETUAL TRUSTEES AUSTRALIA LIMITED,
ARBN 064 165 162 ACN 000 000 000, IN ITS CAPACITY AS
TRUSTEE OF VARIOUS SUB-FUNDS FROM
TIME TO TIME ESTABLISHED UNDER THE
TRUST DEED
--------------------------------------------------------------------------------
("PARTY A") ("PARTY B")
--------------------------------------------------------------------------------
PART 1: TERMINATION PROVISION
In this Agreement:
(a) "SPECIFIED ENTITY" in relation to:
(i) Party A, is not applicable; and
(ii) Party B, is not applicable.
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14.
(c) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v) Section 5(b)(iii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iv)
Section 5(a)(iv)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iii)
Section 5(a)(iv) Section 5(a)(vii) Section 5(b)(iv)
(d) The "AUTOMATIC EARLY TERMINATION" provisions in Section 6(a) will not
apply to Party A nor to Party B.
(e) "PAYMENT ON EARLY TERMINATION". For the purposes of Section 6(e) of
this Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(f) "TERMINATION CURRENCY" means Australian dollars.
1
(g) "ADDITIONAL TERMINATION EVENT" will not apply.
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 the 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 the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement;
and
(iii) the satisfaction of the agreement of the 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:
It is a German resident with a permanent establishment in Australia and
derives the entirety of the payments under this Agreement in carrying
on business in Australia through its permanent establishment in
Australia and not in part or in whole in carrying on business in a
country outside Australia through a permanent establishment in that
country.
Party B makes the following representation:
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
that country.
PART 3: DOCUMENTS TO BE DELIVERED
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver the following documents as applicable:
(a) Tax forms, documents or certificates to be delivered are:
2
-----------------------------------------------------------------------------------------------------------------------------
PARTY REQUIRED TO DELIVER DOCUMENT Form/Document/ Date by which document to be delivered
Certificate
-----------------------------------------------------------------------------------------------------------------------------
Parties A & B Any document or certificate reasonably As soon as reasonably practicable
required or reasonably requested by a following a request by other party.
party in connection with its
obligations to make a payment under
this Agreement which would enable that
party to make the payment free from any
deduction or withholding for or on
account of Tax or as would reduce the
rate at which deduction or withholding
for or on account of Tax is applied to
that payment.
-----------------------------------------------------------------------------------------------------------------------------
(b) Other documents to be delivered are:
-----------------------------------------------------------------------------------------------------------------------------
PARTY REQUIRED TO DELIVER DOCUMENT Form/Document/ Date by which document to be delivered
Certificate
-----------------------------------------------------------------------------------------------------------------------------
Parties A & B A list of authorised signatories for At the execution of this Agreement and
the party and evidence satisfactory in thereafter promptly upon any change in
form and substance to the other party authorised persons or upon request.
of the authority of the authorised
signatories of the party to execute
this Agreement and each confirmation on
behalf of the party.
-----------------------------------------------------------------------------------------------------------------------------
Parties A & B A legal opinion as to the validity and The date of this Agreement.
enforceability of that party's
obligations under this Agreement in
form and substance and issued by legal
counsel reasonably acceptable to the
other party.
-----------------------------------------------------------------------------------------------------------------------------
Party A A copy of the most recent annual report Upon reasonable request by Party B.
of the party containing consolidated
financial statements, certified without
qualification by independent public
accountants and such other public
information respecting its condition or
operations, financial or otherwise, as
the other party may reasonably request
from time to time.
-----------------------------------------------------------------------------------------------------------------------------
Party B All information and other material When required under the Interest Risk
required to be delivered by it under Management Deed.
the Interest Risk Management Deed
-----------------------------------------------------------------------------------------------------------------------------
All documents delivered under this Part 3(b) are covered by Section 3(d)
representation.
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:
3
Address: Deutsche Bank AG, Sydney Branch
Xxxxx 00
Xxxxxxxxx Xxxxx
000 Xxxxxx Xxxxxx
XXXXXX XXX 0000
Attention: Swaps Administration
Telex No: AA122258 Answerback:
Facsimile No: 000 000 0000
Address for notices or communications to PARTY B CARE OF THE MANAGER:
Address: Xxxxx 00, 00 Xxxx Xxxxxx, Xxxxxx XXX 0000
Attention: The Manager: PUMA Programme
Telex No: 122246 Answerback: MACBNK
Facsimile No.: (00) 000 0000
(b) PROCESS AGENT: For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: not applicable.
Party B appoints as its Process Agent: not applicable.
(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:
Neither Party A nor Party B is a Multibranch Party.
(e) CALCULATION AGENT: The Calculation Agent is the Manager (acting on
behalf of Party B), unless otherwise specified in a Confirmation in
relation to the relevant Transaction.
(f) CREDIT SUPPORT DOCUMENT: Details of any Credit Support Document:
(i) In relation to PARTY A: nil.
(ii) In relation to PARTY B and each Sub-Fund: the Security Trust
Deed relating 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 the State of New South Wales and
each party submits to the non-exclusive jurisdiction of the courts of
that state without reference to choice of law doctrine. The provisions
of Section 13(b) will apply (mutatis mutandis) to this choice of
governing law and submission to jurisdiction.
(i) NETTING OF PAYMENTS: Subparagraph (ii) of Section 2(c) of this
Agreement will not apply to any Transaction.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
4
PART 5: OTHER PROVISIONS
(a) INTEREST RISK MANAGEMENT DEED: The parties acknowledge and agree that:
(i) this Agreement is the "Sub-Funds ISDA" referred to in the
Interest Risk Management Deed; and
(ii) unless the context indicates a contrary intention and unless
otherwise defined herein, terms defined in the Interest Risk
Management Deed (either expressly or by reference to another
document) shall have the same meaning where used in this
Agreement.
(b) 1991 ISDA DEFINITIONS: This Agreement, each Confirmation and each
Transaction are subject to the 1991 ISDA Definitions (as published by
the International Swap Dealers Association, Inc.) (the "1991
DEFINITIONS"), and will be governed in all respects by any provisions
set forth in the 1991 Definitions, without regard to any amendments to
the 1991 Definitions subsequent to the date thereof. The provisions of
the 1991 Definitions are incorporated by reference in, and shall be
deemed to be part of, this Agreement and each Confirmation. Any
reference to a:
(a) "SWAP TRANSACTION" in the 1991 Definitions is deemed to be a
reference to a "Transaction" for the purpose of interpreting
this Agreement or any Confirmation; and
(b) "TRANSACTION" in this Agreement or any Confirmation is deemed
to be a reference to a "Swap Transaction" for the purpose of
interpreting the 1991 Definitions.
(c) INCONSISTENCY: In the event of any inconsistency between any two or
more or the following documents, they shall take precedence over each
other in the following order:
(i) any Confirmation;
(ii) this Agreement; and
(iii) the 1991 Definitions.
(d) APPOINTMENT OF MANAGER: Party B hereby exclusively appoints the Manager
as its attorney to act on Party B's behalf with respect to this
Agreement. The Manager:
(i) may arrange, enter into, and monitor Transactions, execute
Confirmations, and exercise all other rights and powers of
Party B hereunder; and
(ii) without limiting the generality of the foregoing, the Manager,
and not Party B, shall issue, and receive, on behalf of Party
B all notices, Confirmations, certificates and other
communications to or by Party A hereunder,
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 paragraph (d).
(e) PROCEDURES FOR ENTERING INTO TRANSACTIONS:
(i) CONFIRMATION OF TRANSACTIONS: With respect to each Transaction
entered into pursuant to this Agreement and for the purposes
of Section 9(e)(ii), Party B (either itself or through the
Manager) will, on or promptly after the relevant Trade Date,
send Party A a Confirmation confirming that Transaction and
Party A must promptly then confirm the accuracy of or request
the correction of such Confirmation.
(ii) NOVATION OF MORTGAGE SWAPS: The novation of each Transaction
which is a Mortgage Swap to be novated to Party A pursuant to
the Master Novation Terms will occur automatically, and
thereafter be confirmed, in accordance with the provisions of
the Interest Risk Management Deed (including the Master
Novation Terms).
5
(iii) SPECIFICATION OF SUB-FUND: Party B will enter into each
Transaction in its capacity as trustee of a specific Sub-Fund.
Each Confirmation regarding a Transaction must specify the
name of the Sub-Fund to which the Transaction relates.
(f) SINGLE AGREEMENT: Section 1(c) is replaced with:
"All Transactions are entered into in reliance on the fact that this
Master Agreement and all Transactions (as evidenced by their
Confirmations) form a single contract (collectively referred to as this
"Agreement") and the parties would not otherwise enter into any
Transactions. The entering into of each Transaction takes effect as an
amendment to this Agreement (but no such amendment is effective to
defeat or prejudice the operation of Section 15)."
(g) CHANGE OF ACCOUNTS: For the purposes of Section 2(b) of the Agreement
both parties agree that such new account so designated shall be in the
same tax jurisdiction as the original account.
(h) PAYMENTS: In Section 2:
(i) 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.";
(ii) In Section 2(a)(ii) insert immediately after the words "freely
transferable funds" the following words:
", free of any set-off, counterclaim, deduction or withholding
(except as expressly provided in this Agreement)".
(iii) Insert new paragraphs (iv) and (v) 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).
(v) Where:
(1) payments are due pursuant to Section 2(a)(i)
by Party A to Party B (the "PARTY A
PAYMENT") and by Party B to Party A (the
"PARTY B PAYMENT") on the same day; and
(2) the Security Trust Deed has become, and
remains at that time, enforceable,
then Party A's obligation to make the Party
A payment to Party B shall be subject to the
condition precedent (which shall be an
"applicable condition precedent" for the
purpose of Section 2(a)(iii)(3)) that Party
A first receives either:
(3) the Party B payment; or
(4) confirmation from Party B's bank that it
holds irrevocable instructions to effect
payment of the Party B payment and that
funds are available to make that payment.";
(iv) Delete Section 2(d)(i)(4) in its entirety;
(v) In Section 2(d)(ii)(1) delete the following words where they
appear:
6
"in respect of which X would not be required to pay an
additional amount to Y under Section 2(d)(i)(4)".
(i) REPRESENTATION NOT APPLICABLE: The representation specified in Section
3(c), "Absence of Litigation", shall not be made by either party.
(j) ADDITIONAL REPRESENTATIONS: In Section 3 add the following immediately
after paragraph (f):
"(g) NON ASSIGNMENT: It has not assigned (whether absolutely, in
equity or otherwise) or declared any trust over or given any
charge over any of its rights under this Agreement or any
Transaction (other than, in respect of Party B, the Sub-Funds
created pursuant to the Trust Deed and the charge given
pursuant to a Security Trust Deed).
(h) CONTRACTING AS PRINCIPAL: Subject to Section 15, each existing
Transaction has been entered into by that party:
(i) in the case of Party A, as principal and not
otherwise; or
(ii) in the case of Party B, in its capacity as trustee of
a Sub-Fund constituted under the Trust Deed and not
otherwise."
(k) ADDITIONAL COVENANT: In Section 4 add a new paragraph as follows:
"(f) CONTRACTING AS PRINCIPAL. Subject to Section 15, Party A will
enter into all Transactions as principal and not otherwise and
Party B will enter into each Transaction in its capacity as
trustee of a Sub-Fund constituted under the Trust Deed and not
otherwise."
(l) EVENT OF DEFAULT: Delete Section 5(a)(i) and insert instead:
"(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 10.00 am on the tenth
Local Business Day after notice of such failure is given to
the party;"
(m) TAX EVENT: Section 5(b)(ii) is amended by:
(i) deleting the words ", or there is a substantial likelihood
that it will," where they appear in that Section; and
(ii) deleting the words "(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)" where they appear in
that section.
(n) TERMINATION: In Section 6:
(i) Add the following sentence at the end of the first paragraph
of Section 6(b)(ii):
"However, if Party B is the Affected Party, then Party B will
only be obliged to make such efforts to effect a transfer in
accordance with this Section 6(b)(ii) as it is able to make by
application of funds available for such application in
accordance with the provisions of the Trust Deed."
(ii) add the following sentence at the end of the second paragraph
of Section 6(b)(ii):
"However, if Party A is that other party it must, if so
requested by Party B, use reasonable efforts to make such a
transfer to an Affiliate (as that expression is defined in
Section 14) at the expense of Party B.";
(iii) Add the following sentence at the end of the last paragraph of
Section 6(b)(ii):
7
"However, consent may be withheld if the other party considers
that its credit exposure to the transferor would be adversely
affected by the transfer."
(iv) Delete the last sentence of the first paragraph in Section
6(e).
(o) TRANSFER: Section 7 is deleted and replaced with the following:
"7. TRANSFER
(a) Neither the interests nor 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
and whether by way of security or otherwise), charged
or the subject of any trust or other fiduciary
obligation (other than, in respect of Party B, the
trusts and fiduciary obligations created pursuant to
the Trust Deed and any charge created by a Security
Trust Deed). Any action by a party which purports to
do any of these things is void.
(b) Nothing in this Section 7:
(i) restricts the parties agreeing to 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);
(ii) 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);
(iii) restricts a transfer by a party after the
other party has agreed to the variation of
this Agreement to the extent necessary to
permit such transfer; or
(iv) restricts a transfer by a Security Trustee
pursuant to the exercise of its powers under
a Security Trust Deed.
(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
fundamental to the terms of this Agreement (including
each Transaction)."
(p) MISCELLANEOUS: In Section 9:
(i) In Section 9(a) the first word "This" is replaced with:
"Except to the extent that provisions of the Interest Risk
Management Deed are expressly or impliedly incorporated or
referred to herein (including in any Confirmation), this"; and
(ii) In Section 9(b) the first word "No" is replaced with:
"Except to the extent that the entering into of each
Transaction takes effect as an amendment to this Agreement (in
the manner and subject to the qualification referred to in
Section 1(c), as varied by Part 5(f) of the Schedule), no".
(q) NOTICES: In Section 12:
(i) delete the following words where they appear on lines 2 and 3
of Section 12(a):
"(except that a notice or other communication under Sections 5
or 6 may not be given by facsimile transmission or electronic
messaging system)"; and
(ii) delete paragraph (iii) of Section 12(a) and insert instead:
8
"(iii) if sent by facsimile, on production of a transmission
report 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 24 hours of the
facsimile being sent that the facsimile was not
received in its entirety in legible form;".
(r) DEFINITIONS: In Section 14:
(i) Section 14 is renumbered as Section 14(a).
(ii) delete the definition "Affected Transactions" and insert the
following:
"AFFECTED TRANSACTIONS" means:
(a) with respect to a Termination Event that is a Tax
Event where Party A is the Affected Party, all
Transactions affected by the occurrence of such
Termination Event; and
(b) with respect to any other Termination Event, all
Transactions."
(iii) delete the following words from the definition of "Default
Rate":
"plus 1% per annum".
(iv) the definition of "MARKET QUOTATION" is replaced with:
"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 take into account any
existing Credit Support Document with respect to the
obligations of such party.
Each quotation will be determined as either:
(1) the 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 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 the Future Obligations of both parties;
or
(2) the present value (calculated using commercially
reasonable discount rates) of the difference or the
differences on each Scheduled Payment Date that would
have occurred after the Early Termination Date
between:
(a) the Future Obligations of the other party to
the Terminated Transaction or Terminated
Transactions; and
(b) the obligations that a quoting Reference
Market-maker would have under a transaction
("REPLACEMENT TRANSACTION") that would
preserve for the party making the
determination that party's Future
Obligations, with such present value being
positive if (a) is greater than (b) and
negative if (a) is less than (b).
The Replacement Transaction would be subject to such
documentation as such party and the Reference
Market-maker may, in good faith, agree. The party
making the determination (or its agent) will request
each Reference Market-maker to provide its quotation
to the extent reasonably practicable as of the same
day and time (without regard to different time zones)
on or as soon as reasonably practicable after the
relevant Early Termination Date. The day and
9
time as of which the quotation or 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 3 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 3 such
quotations are provided, the Market Quotation will be
the quotation remaining after disregarding the
highest and lowest quotations. For this purpose, if
more than one quotation has the same highest value or
lowest value, then one of such quotations shall be
disregarded. If fewer than 3 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."
(v) insert the following new definitions:
"FUTURE OBLIGATIONS" means all payment or delivery obligations
(whether the underlying obligation was absolute or contingent
and assuming the satisfaction of each applicable condition
precedent) of a party under section 2(a)(i) in respect of a
Terminated Transaction or group of Terminated Transactions,
that would, but for the occurrence of the relevant Early
Termination Date, have been required after that date. (For
this purpose, Unpaid Amounts in respect of the Terminated
Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that
would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition
precedent) after that Early Termination Date is to be
included).
"INTEREST RISK MANAGEMENT DEED" means the Interest Risk
Management Deed made between Party A, Party B, the Manager and
Macquarie Bank Limited, ACN 000 000 000 on or about the date
of this Agreement.
"MANAGER" means the "Manager" from time to time under the
Trust Deed, which Manager is at the date of this Agreement
PUMA Management Limited, ACN 003 297 336 of Xxxxx 00, 00 Xxxx
Xxxxxx, Xxxxxx."
(xx) Insert the following new Section 14(b) after Section 14(a);
"(b) Unless the context indicates a contrary intention,
references in this Agreement to a "Confirmation"
include a reference to a Novation Confirmation and a
Swaption Confirmation."
(s) TRUSTEE PROVISIONS: Insert the following new Section 15 after Section
14:
"15. CAPACITY OF PARTY B AND SEGREGATION OF FUNDS
(a) All provisions of this Agreement shall have effect
and be applied subject to this Section 15.
(b) For the purposes of this Section 15:
(i) "ASSETS" includes all assets, property and
rights real or personal of any nature
whatsoever; and
"OBLIGATIONS" means all obligations and
liabilities of whatsoever kind undertaken or
incurred by or devolving upon Party B under
or in respect of this Agreement, or any
deed, agreement, confirmation or other
instrument collateral or supplemental
herewith or given or entered into pursuant
hereto; and
10
(ii) a reference to fraud, negligence, default or
breach by Party B includes a reference to
any fraud, negligence, default or breach by
any officer or employee of Party B.
(c) Party B enters this Agreement only as trustee of the
Fund and, notwithstanding anything herein contained,
the other parties hereto acknowledge and declare that
the Obligations are undertaken or incurred by Party B
severally in its capacity as trustee of each Sub-Fund
on behalf of which it enters Transactions hereunder
and, accordingly, except for Party B's liability
resulting from Party B's own fraud, negligence or
wilful default in performing its obligations under
this Agreement or its own breach of the Trust Deed,
the recourse of Party A hereto against Party B in
respect of any Obligation is limited severally to
Party A's right to recover under the Security Trust
Deed relating to the Sub-Fund in respect of which
that Obligation was undertaken or incurred.
(d) Without limiting the generality of Section 15(c), 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
Part 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;
(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(d)(iv), 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."
(t) ACCELERATED PAYMENTS CLAUSE: Where Party B is the Fixed Rate Payer
under a Transaction, Party B may reduce the Fixed Rate applicable to
that Transaction in accordance with the following procedure:
(i) At any time Party B may serve a notice on Party A in writing
requesting a reduction in the Fixed Rate and specifying:
11
(a) the Transaction in respect of which the reduction is
sought;
(b) the amount which Party B proposes to pay to Party A
in consideration of the reduction (the "ACCELERATED
AMOUNT");
(c) the Payment Date from which the reduced Fixed Rate
shall be effective (the "RELEVANT PAYMENT DATE"); and
(d) a day, being a Business Day no earlier than 1 clear
Business Day after the day on which service of the
notice is effective, on which payment of the
Accelerated Amount will be made and the reduction
will become binding (the "VARIATION DATE").
(ii) Upon such a notice being served, the parties must negotiate in
good faith to agree not later than the Business Day
immediately preceding the nominated Variation Date, a reduced
Fixed Rate which would apply from the Relevant Payment Date in
consideration of payment of the Accelerated Amount.
(iii) If agreement is reached in accordance with paragraph (t)(ii),
then:
(a) on the Variation Date, Party B shall pay Party A the
Accelerated Amount; and
(b) with effect from the Variation Date the Transaction
(including the Confirmation in respect thereof) shall
be varied so that, with effect from the Relevant
Payment Date (and in respect of each Payment Date
thereafter), the Fixed Rate shall be the rate agreed
pursuant to paragraph (t)(ii).
(iv) If agreement is not reached in accordance with paragraph
(t)(ii), then, at the option of Party B:
(a) Party B will not pay Party A the Accelerated Amount
and the Fixed Rate will not be altered; or
(b) Party B may, notwithstanding the failure to reach an
agreement pursuant to paragraph (t)(ii), pay the
Accelerated Amount to Party A on the Variation Date
and the reduced Fixed Rate to apply from the Relevant
Payment Date shall be determined by Party B (or by
the Manager on its behalf) in accordance with
paragraph (t)(v) below.
(v) If paragraph (t)(iv)(b) applies, the reduced Fixed Rate shall
be the then applicable Fixed Rate for the Transaction reduced
by such amount as, when applied from the Relevant Payment Date
through to the Maturity Date for the Transaction, results in
reductions of each of the remaining Fixed Amounts payable by
Party B under the Transaction, which reductions have an
aggregate discounted present value as at the Variation Date
equal to the amount of the Accelerated Payment. The rate to be
applied in determining each of the discounted present values
required for that calculation shall be, for each relevant
maturity, the average of the rates quoted to Party B (or the
Manager on its behalf) by 3 leading dealers in the Australian
interest rate swap market as the fixed rate each such dealer
would be prepared to pay in an equivalent swap for that
maturity minus 20 basis points or, in the event that it is not
possible to obtain such quotes, the rate to be applied shall
be the rate reasonably determined by the parties having regard
to comparable indices then available.
(vi) Neither the Floating Rate nor the Notional Amount is to vary
as a result of the operation of this clause.
(vii) Party B shall not be entitled to require any reduction of the
Fixed Rate by application of this paragraph (t) that would
result in the Fixed Rate being negative.
12
(viii) Upon a Transaction being varied in accordance with this
paragraph(t), that Transaction so varied shall be reconfirmed
by the parties in accordance with Part 5(e)(i) of this
Schedule as though it were a new Transaction.
(u) FURTHER ASSURANCES: Each party shall, 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 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.
(v) INTEREST RATE CAPS, COLLARS AND FLOORS: For purposes of the
determination of a Market Quotation for a Terminated Transaction in
respect of which a party ("X") had, immediately prior to the
designation or occurrence of the relevant Early Termination Date, no
future payment obligations, whether absolute or contingent, under
Section 2(a)(i) of this Agreement with respect of the Terminated
Transaction, (i) the quotations obtained from Reference Market makers
shall be such as to preserve the economic equivalent of the payment
obligations of the party ("Y") that had, immediately prior to the
designation or occurrence of the relevant Early Termination Date,
future payment obligations, whether absolute or contingent, under
Section 2(a)(i) of this Agreement with respect to the Terminated
Transaction and (ii) if X is making the determination such amounts
shall be expressed as positive amounts and if Y is making the
determination such amounts shall be expressed as negative amounts.
(w) OPTIONS: For the purposes of the determination of a Market Quotation
for a Terminated Transaction that is identified as an Option, the
quotations obtained from Reference Market-makers shall take into
account, as of the relevant Early Termination Date, the economic
equivalent of the right or rights granted pursuant to that Option which
are or may become exercisable.
(x) RECORDED CONVERSATIONS: Each party:
(i) consents to the recording of the telephone conversations of
trading and marketing personnel of that party and its
Affiliates in connection with this Agreement or any potential
Transaction; and
(ii) agrees to obtain any necessary consent of, and give notice of
such recording to, such personnel of it and its Affiliates.
13
THE PUMA FUND
MASTER AGREEMENT
(DEUTSCHE - PUMA)
DATE:
DEUTSCHE BANK AG, SYDNEY BRANCH
Party A
PERPETUAL TRUSTEES AUSTRALIA LIMITED
Party B
FIXED - FLOATING INTEREST RATE SWAP CONFIRMATION
------------------------------------------------
PRO-FORMA ONLY
--------------
Date [ ]
Perpetual Trustees Australia Limited as trustee for the PUMA Global Trust No. 1
c/- The Manager, Macquarie Securitisation Limited
Xxxxx 00
00 Xxxx Xxxxxx,
Xxxxxx XXX 0000
ATTENTION : SWAPS SETTLEMENTS - MANAGER, TREASURY OPERATIONS
FAX NO : 0000 0000
OUR REFERENCE: GLOBAL NO. /
RE: INTEREST RATE SWAP TRANSACTION
Ladies and Gentlemen:
The purpose of this letter is to confirm the terms and conditions of the Swap
Transaction entered into between us on the Trade Date specified below.
Terms defined in the ISDA Master Agreement dated 28 February 1995 between
Deutsche Bank AG, Sydney Branch and Perpetual Trustees Australia Limited as
amended from time to time ("MASTER AGREEMENT") have the same meaning where used
in this letter, unless the context indicates a contrary intention.
This letter is a Confirmation of a Swap Transaction for purposes of Part 5(e) of
the Master Agreement.
This Confirmation is signed by Macquarie Securitisation Limited (ABN 16 003 297
336) as attorney for and on behalf of Perpetual Trustees Australia Limited as
trustee of the PUMA Global Trust No. 1 pursuant to Part [ ] of the Schedule to
the Master Agreement.
The Swap Transaction is entered into by Perpetual Trustees Australia Limited in
its capacity as trustee of the PUMA Global Trust No. 1.
1. This Confirmation supplements, forms part of, and is subject to the Master
Agreement. All provisions contained in the Master Agreement govern this
Confirmation except as expressly modified below.
2. The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
(a) NOTIONAL AMOUNT : ******
TRADE DATE : ******
EFFECTIVE DATE : ******
TERMINATION DATE : ******
Subject to adjustment in accordance with the ****** Business Day
Convention.
(b) FIXED AMOUNTS
FIXED RATE PAYER : Perpetual Trustees Australia Limited or
Deutsche Bank AG, Sydney Branch (delete
as appropriate)
FIXED AMOUNT : N/A
FIXED RATE PAYER : The (date) day of each (Month/s) of each
PAYMENT DATES year, commencing *****, through to and
including the Termination Date.
Subject to adjustment in accordance with the ****** Business Day
Convention.
FIXED RATE : *******
FIXED RATE DAY : ******
COUNT FRACTION
BUSINESS DAYS : ******
(c) FLOATING AMOUNTS
FLOATING RATE PAYER : Deutsche Bank AG, Sydney Branch or
Perpetual Trustees Australia Limited
(delete as appropriate)
FLOATING RATE PAYER : The (date) day of each (Month/s) of each
PAYMENT DATES year, commencing *****, through to and
including the Termination Date.
Subject to adjustment in accordance with the ****** Business Day
Convention.
FLOATING RATE OPTION : ******
DESIGNATED MATURITY : ******
SPREAD : ******
FLOATING RATE FOR INITIAL : ******
CALCULATION PERIOD
FLOATING RATE DAY : ******
COUNT FRACTION
RESET DATES : The first day of the applicable
Calculation Period
BUSINESS DAYS : ******
CALCULATION AGENT : [ ]
(d) ACCOUNT DETAILS
Payments to Deutsche Bank : Austraclear [ ]
AG, Sydney Branch
Payments to Perpetual Trustees : Austraclear PTAL [ ]
Australia Limited as trustee for the
PUMA Global Trust No. 1
(e) OFFICES
The office of Deutsche Bank AG, Sydney Branch for the Transaction is
Sydney.
The office of Perpetual Trustees Australia Limited as trustee for the PUMA
Global Trust No. 1 for the Transaction is;
c/- Macquarie Securitisation Limited
Xxxxx 00, 00 Xxxx Xxxxxx
Xxxxxx XXX 0000.
(f) DOCUMENTATION AND OPERATIONS CONTACTS:
Please confirm that the foregoing correctly sets forth the terms of our
agreement by having an authorised officer sign this Confirmation and return it
by facsimile to:
[ ]
Documentation: Telephone: [ ]
Facsimile: [ ]
Settlements: Telephone: [ ]
Facsimile: [ ]
If you wish to exchange hard copy forms of this confirmation please contact us.
Yours faithfully, Confirmed as of the date first written
DEUTSCHE BANK AG, SYDNEY BRANCH PERPETUAL TRUSTEES AUSTRALIA LIMITED
AS TRUSTEE FOR THE PUMA GLOBAL TRUST NO. 1
By:........................ By:............................
Name: Name:
Title: Title:
By:........................ By:.............................
Name: Name:
Title: Title:
Reference : ******/
30 DAY - 90 DAY BASIS SWAP CONFIRMATION
PRO-FORMA ONLY
Date [X]
Perpetual Trustees Australia Limited as trustee for the PUMA Global Trust No. 1
c/- The Manager, Macquarie Securitisation Limited
Xxxxx 00
00 Xxxx Xxxxxx,
Xxxxxx XXX 0000
ATTENTION : SWAPS SETTLEMENTS - MANAGER, TREASURY OPERATIONS
FAX NO : 9237 4966
OUR REFERENCE: GLOBAL NO. /
RE: INTEREST RATE SWAP TRANSACTION
Ladies and Gentlemen:
The purpose of this letter is to confirm the terms and conditions of the Swap
Transaction entered into between us on the Trade Date specified below.
Terms defined in the ISDA Master Agreement dated 28 February 1995 between
Deutsche Bank AG, Sydney Branch and Perpetual Trustees Australia Limited as
amended from time to time ("MASTER AGREEMENT") have the same meaning where used
in this letter, unless the context indicates a contrary intention.
This letter is a Confirmation of a Swap Transaction for purposes of Part 5(e) of
the Master Agreement.
This Confirmation is signed by Macquarie Securitisation Limited (ABN 16 003 297
336) as attorney for and on behalf of Perpetual Trustees Australia Limited as
trustee of the PUMA Global Trust No. 1 pursuant to Part [ ] of the Schedule to
the Master Agreement.
The Swap Transaction is entered into by Perpetual Trustees Australia Limited in
its capacity as trustee of the PUMA Global Trust No. 1.
1. This Confirmation supplements, forms part of, and is subject to the Master
Agreement. All provisions contained in the Master Agreement govern this
Confirmation except as expressly modified below.
2. The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
(a) NOTIONAL AMOUNT : ******
TRADE DATE : ******
EFFECTIVE DATE : ******
TERMINATION DATE : ******
Subject to adjustment in accordance with the ****** Business Day
Convention.
CALCULATION AGENT : [ ]
(b) FLOATING AMOUNT 1
FLOATING RATE PAYER 1 : Perpetual Trustees Australia
Limited
FLOATING RATE PAYER 1 : The (date) day of each
PAYMENT DATES (Month/s) of each year,
commencing *****, through to
and including the
Termination Date.
Subject to adjustment in accordance with the ****** Business Day
Convention.
FLOATING RATE OPTION 1 : 30 DAY BBSW
COMPOUNDING : Applicable
SPREAD : ******
FLOATING RATE 1 FOR INITIAL : ******
CALCULATION PERIOD
FLOATING RATE 2 DAY : ******
COUNT FRACTION
RESET DATES : The first day of the
applicable Calculation Period
(c) FLOATING AMOUNT 2
FLOATING RATE PAYER 2 : Deutsche Bank AG, Sydney
Branch or
FLOATING RATE PAYER 2 : The (date) day of each
PAYMENT (Month/s) DATES of each
year, commencing *****,
through to and including the
Termination Date.
Subject to adjustment in accordance with the ****** Business Day
Convention.
FLOATING RATE OPTION 2 : 90 DAY BBSW
COMPOUNDING : Inapplicable
SPREAD : None
FLOATING RATE 2 FOR INITIAL : ******
CALCULATION PERIOD
FLOATING RATE 2 DAY : ******
COUNT FRACTION
RESET DATES : The first day of the
applicable Calculation
Period
(d) ACCOUNT DETAILS
Payments to Deutsche Bank : Austraclear [X]
AG, Sydney Branch
Payments to Perpetual Trustees : Austraclear PTAL [X]
Australia Limited as trustee for
the PUMA Global Trust No. 1
(e) OFFICES
The office of Deutsche Bank AG, Sydney Branch for the Transaction is
Sydney.
The office of Perpetual Trustees Australia Limited as trustee for the
PUMA Global Trust No. 1 for the Transaction is;
c/- Macquarie Securitisation Limited
Xxxxx 00, 00 Xxxx Xxxxxx
Xxxxxx XXX 0000.
(f) DOCUMENTATION AND OPERATIONS CONTACTS:
Please confirm that the foregoing correctly sets forth the terms of our
agreement by having an authorised officer sign this Confirmation and return it
by facsimile to:
[ ]
Documentation: Telephone: [ ]
Facsimile: [ ]
Settlements: Telephone: [ ]
Facsimile: [ ]
If you wish to exchange hard copy forms of this confirmation please contact us.
Yours faithfully, Confirmed as of the date first written
DEUTSCHE BANK AG, SYDNEY BRANCH PERPETUAL TRUSTEES AUSTRALIA LIMITED
AS TRUSTEE FOR THE PUMA GLOBAL TRUST NO. 1
By: .............................. By: ..............................
Name: Name:
Title: Title:
By: .............................. By: ..............................
Name: Name:
Title: Title:
Reference : ******/
