(MULTICURRENCY - CROSS BORDER)
ISDA
INTERNATIONAL SWAPS & DERIVATIVES ASSOCIATION, INC.
MASTER AGREEMENT
Commonwealth Bank of Australia Perpetual Trustees Australia Ltd.
ACN 123 123 124 (Party "A") ACN 000 000 000 in its capacity as
trustee of various Warehouse Funds and
Macquarie Securitisation Ltd Sub-Funds from time to time established
ACN 003 297 336 (the "Manager") under the Trust Deed (Party "B")
have entered and/or anticipate entering into one or more transactions (each a
"TRANSACTION") that are or will be governed by this Master Agreement, which
includes the schedule (the "SCHEDULE"), and the documents and other confirming
evidence (each a "CONFIRMATION") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:-
1. INTERPRETATION
(a) DEFINITIONS. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) INCONSISTENCY. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the
Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purpose of the relevant
Transaction.
(c) SINGLE AGREEMENT. All Transactions are entered into in reliance on the fact
that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "AGREEMENT"), and the
parties would not otherwise enter into any Transactions.
2. OBLIGATIONS
(a) GENERAL CONDITIONS
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of
this Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or
otherwise pursuant to this Agreement, in freely transferable funds
and in the manner customary for payments in the required currency.
Where settlement is by delivery (that is, other than by payment),
such delivery will be made for receipt on the due date in the manner
customary for the relevant obligation unless otherwise specified in
the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential
Event of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination
Date in respect of the relevant Transaction has occurred or been
effectively designated and (3) each other applicable condition
precedent specified in this Agreement.
(b) CHANGE OF ACCOUNT. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to
which such change applies unless such other party gives timely notice of a
reasonable objection to such change.
(c) NETTING. If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party
by whom the larger aggregate amount would have been payable to pay to the
other party the excess of the larger aggregate amount over the smaller
aggregate amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same
date in the same currency in respect of such Transactions, regardless of
whether such amounts are payable in respect of the same Transaction. The
election may be made in the Schedule or a Confirmation by specifying that
subparagraph (ii) above will not apply to the Transactions identified as
being subject to the election, together with the starting date (in which
case subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for
different groups of Transactions and will apply separately to each pairing
of Offices through which the parties made and receive payments or
deliveries.
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(d) DEDUCTION OR WITHHOLDING FOR TAX
(i) GROSS-UP. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as
modified by the practice of any relevant governmental revenue
authority, then in effect. If a party is so required to deduct or
withhold, then that party ("X") will:-
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required
to be deducted or withheld from any additional amount paid
by X to Y under this Section 2(d)) promptly upon the earlier
of determining that such deduction or withholding is
required or receiving notice that such amount has been
assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition
to the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure
that the net amount actually received by Y (free and clear
of Indemnifiable Taxes, whether assessed against X or Y)
will equal the full amount Y would have received had no such
deduction or withholding been required. However, X will not
be required to pay any additional amount to Y to the extent
that it would not be required to be paid but for:
(A) the failure by Y to comply with or perform any
agreement contained in Section 4(a)(i), 4(a)(iii) or 4
(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such
failure would not have occurred but for (1) any action
taken by a taxing authority, or brought in a court of
competent jurisdiction, on or after the date on which a
Transaction is entered into (regardless of whether such
action is taken or brought with respect to a party to
this Agreement) or (II) a Change in Tax Law.
(ii) LIABILITY. If:-
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to
make any deduction or withholding in respect of which X
would not be required to pay an additional amount to Y under
Section 2(d)(i)(4);
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(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the
amount of such liability (including any related liability for
interest, but including any related liability for penalties only if
Y has failed to comply with or perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d).
(e) DEFAULT INTEREST, OTHER AMOUNTS. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment
obligation will, to the extent permitted by laws and subject to Section
6(c), be required to pay interest (before as well as after judgment) on the
overdue amount to the other party on demand in the same currency as such
overdue amount, for the period from (and including) the original due date
for payment to (but excluding) the date of actual payment, at the Default
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed. If, prior to the occurrence or
effective designation of an Early Termination Date in respect of the
relevant Transaction, a party defaults in the performance of any obligation
required to be settled by delivery, it will compensate the other party on
demand if and to the extent provided for in the relevant Confirmation or
elsewhere in this Agreement.
3. REPRESENTATIONS
Each party represents to the other party (which representations will be
deemed to be repeated by each party on each date on which a Transaction is
entered into and, in the case of the representations in Section 3(f), at
all times until the termination of this Agreement) that:-
(a) BASIC REPRESENTATIONS
(i) STATUS. it is duly organised and validly existing under the
laws of the jurisdiction of its organisation or
incorporation and, if relevant under such laws, in good
standing;
(ii) POWERS. it has the power to execute this Agreement and any
other documentation relating to this Agreement to which it
is a party, to deliver this Agreement and any other
documentation relating to this Agreement that it is required
by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken
all necessary action to authorize such execution, delivery
and performance;
(iii) NO VIOLATION OR CONFLICT. Such execution, delivery and
performance do not violate or conflict with any law
applicable to it, any provision of
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its constitutional documents, any order or judgment of any
court or other agency of government applicable to it or any
of its assets or any contractual restriction binding on or
affecting it or any of its assets;
(iv) CONSENTS. All governmental and other consents that are
required to have been obtained by it with respect to this
Agreement or any Credit Support Document to which it is a
party have been obtained and are in full force and effect
and all conditions of any such consents have been complied
with; and
(v) OBLIGATIONS BINDING. its obligations under this Agreement
and any Credit Support document to which it is a party
constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms
(subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors'
rights generally and subject, as to enforceability, to
equitable principles of general application (regardless of
whether enforcement is sought in a proceeding in equity or
at law)).
(b) ABSENCE OF CERTAIN EVENTS. No Event of Default or Potential Event Of
Default or, to its knowledge, Termination Event with respect to it
has occurred and is continuing and no such event or circumstance
would occur as a result of its entering into or performing its
obligations under this Agreement or any Credit Support Document to
which it is party.
(c) ABSENCE OF LITIGATION. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or
proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is
likely to affect the legality, validity or enforceability against it
of this Agreement or any Credit Support document to which it is a
party or its ability to perform its obligations under this Agreement
or such Credit Support document.
(d) ACCURACY OF SPECIFIED INFORMATION. All applicable information that
is furnished in writing by or on behalf of it to the other party and
is identified for the purpose of this Section 3(d) in the Schedule
is, as of the date of the information, true, accurate and complete
in every material respect.
(e) PAYER TAX REPRESENTATION. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3 (e)
is accurate and true.
(f) PAYEE TAX REPRESENTATION. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3(f) is
accurate and true.
4. AGREEMENTS
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Each party agrees with the other that, so long as either party has or may
have any obligation under this Agreement or under any Credit Support
Document to which it is a party:-
(a) FURNISH SPECIFIED INFORMATION. it will deliver to the other party
or, in certain cases under subparagraph (iii) below, to such
government or taxing authority as the other party reasonably
directs:-
(i) any forms, documents or certificates relating to taxation
specified in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any
Confirmation; and
(iii) upon reasonable demand by such other party, any form or
document that may be required or reasonably requested in
writing in order to allow such other party or its Credit
Support Provider to make a payment under this Agreement or
any applicable Credit Support document without any deduction
or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the
completion, execution or submission of such form or document
would not materially prejudice the legal or commercial
position of the party in receipt of such demand), with any
such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be
executed and to be delivered with any reasonably required
certification,
in each case by the date specified in the Schedule or such
Confirmation or, if none is specified, as soon as reasonably
practicable.
(b) MAINTAIN AUTHORIZATIONS. it will use all reasonable efforts to
maintain in full force and effect all consents of any governmental
or other authority that are required to be obtained by it with
respect to this Agreement or any Credit Support Document to which it
is a party and will use all reasonable efforts to obtain any that
may become necessary in the future.
(c) COMPLY WITH LAWS. It will comply in all material respects will all
applicable laws and orders to which it may be subject if failure so
to comply would materially impair its ability to perform its
obligations under this Agreement or any Credit Support Document to
which it is a party.
(d) TAX AGREEMENT. It will give notice of any failure of a
representation made by it under Section 3(f) to be accurate and true
promptly upon learning of such failure.
(e) PAYMENT OF STAMP TAX. Subject to Section 11, it will pay any Stamp
Tax levied or imposed upon it or in respect of its execution or
performance of this Agreement by a jurisdiction in which it is
incorporated, organised, managed
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and controlled, or considered to have its seat, or in which a branch
or office through which it is acting for the purpose of this
Agreement is located ("Stamp Tax Jurisdiction") and will indemnify
the other party against any Stamp Tax levied or imposed upon the
other party or in respect of the other party's execution or
performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other
party.
5. EVENTS OF DEFAULT AND TERMINATION EVENTS
(a) EVENTS OF DEFAULT. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any of the following events constitutes an event of
default (an "EVENT OF DEFAULT") with respect to such party:-
(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i)
or 2(e) required to be made by it if such failure is not remedied on
or before the third Local Business Day after notice of such failure
is given to the party;
(ii) BREACH OF AGREEMENT. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any
payment under this Agreement or delivery under Section 2(a)(i) or
2(e) or to give notice of a Termination Event or any agreement or
obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied
with or performed by the party in accordance with this Agreement if
such failure is not remedied on or before the thirtieth day after
notice of such failure is given to the party;
(iii) CREDIT SUPPORT DEFAULT
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation
to be complied with or performed by it in accordance with
any Credit Support Document if such failure is continuing
after any applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support
Document to be in full force and effect for the purpose of
this Agreement (in either case other than in accordance with
its terms) prior to the satisfaction of all obligations of
such party under each Transaction to which such Credit
Support Document relates without the written consent of the
other party; or
(3) the party or such credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
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(iv) MISREPRESENTATION. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been
made or repeated by the party or any Credit Support Provider of such
party in this Agreement or any Credit Support Document proves to
have been incorrect or misleading in any material respect when made
or repeated or deemed to have been made or repeated;
(v) DEFAULT UNDER SPECIFIED TRANSACTION. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such
party (1) defaults under a Specified Transaction and, after giving
effect to any applicable notice requirement or grace period, there
occurs a liquidation of, an acceleration of obligations under, or an
early termination of, that Specified Transaction, (2) defaults,
after giving effect to any applicable notice requirement or grace
period, in making any payment or delivery due on the last payment,
delivery or exchange date of, or any payment on early termination
of, a Specified Transaction (or such default continues for at least
three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims,
repudiates or rejects, in whole or in part, a Specified Transaction
(or such action is taken by any person or entity appointed or
empowered to operate it or act on its behalf);
(vi) CROSS DEFAULT. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of
(1) a default, event of default or other similar condition or
event (however described) in respect of such party, any
Credit Support Provider of such party or any applicable
Specified Entity of such party under one or more agreements
or instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount
of not less than the applicable Threshold Amount (as
specified in the Schedule) which has resulted in such
Specified Indebtedness becoming, or becoming capable at such
time of being declared, due and payable under such
agreements or instruments, before it would otherwise have
been due and payable; or
(2) a default by such party, such Credit Support Provider or
such Specified Entity (individually or collectively) in
making one or more payments on the due date thereof in an
aggregate amount of not less than the applicable Threshold
Amount under such agreements or instruments (after giving
effect to any applicable notice requirement or grace
period);
(vii) BANKRUPTCY. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger);
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(2) becomes insolvent or is unable to pay its debts or fails or
admits in writing its inability generally to pay its debts
as they become due;
(3) makes a general assignment, arrangement or composition with
or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking
a judgment of insolvency or bankruptcy or any other relief
under any bankruptcy or insolvency law or other similar law
affecting creditors' rights, or a petition is presented for
its winding-up or liquidation, and, in the case of any such
proceeding or petition instituted or presented against it,
such proceeding or petition:
(A) results in a judgment of insolvency or bankruptcy or
the entry of an order for relief or the making of an
order for its winding-up or liquidation; or
(B) is not dismissed, discharged, stayed or restrained in
each case within 30 days of the institution or
presentation thereof;
(5) has a resolution passed for its winding-up, official
management or liquidation (other than pursuant to a
consolidation, amalgamation or merger);
(6) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator,
receiver, trustee, custodian or other similar official for
it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially
all its assets or has a distress, execution, attachment,
sequestration or other legal process levied, enforced or
sued on or against all or substantially all its assets and
such secured party maintains possession, or any such process
is not dismissed, discharged, stayed or restrained, in each
case within 30 days thereafter;
(8) causes or is subject to any event with respect to it which,
under the applicable laws of any jurisdiction, has an
analogous effect to any of the events specified in clauses
(1) to (7) (inclusive); or
(9) takes any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the
foregoing acts; or
(viii) MERGER WITHOUT ASSUMPTION. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or
into, or transfers all or substantially all its assets to, another
entity and, at the time of such consolidation, amalgamation, merger
or transfer:-
(1) the resulting, surviving or transferee entity fails to
assume all the obligations of such party or such Credit
Support Provider under this Agreement or any Credit Support
Document to which it or its
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predecessor was a party by operation of law or pursuant to
an agreement reasonably satisfactory to the other party to
this Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance
by such resulting, surviving or transferee entity of its
obligations under this Agreement.
(b) TERMINATION EVENTS. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any specified
Entity of such party of any event specified below constitutes an Illegality
if the event is specified in (i) below, a Tax Event if the event is
specified in (ii) below or a Tax Event Upon merger if the event is
specified in (iii) below, and, if specified to be applicable, a Credit
Event Upon Merger if the event is specified pursuant to (iv) below or an
Additional Termination Event if the event is specified pursuant to (v)
below:-
(i) ILLEGALITY. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to
the promulgation of, or any change in, the interpretation by any
court, tribunal or regulatory authority with competent jurisdiction
of any applicable law after such date, it becomes unlawful (other
than as a result of a breach by the party of Section 4(b)) for such
party (which will be the Affected Party):-
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other
material provision of this Agreement relating to such
Transaction; or
(2) to perform, or for any Credit Support Provider of such party
to perform, any contingent or other obligation which the
party (or such Credit Support Provider) has under any Credit
Support Document relating to such Transaction;
(ii) TAX EVENT. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date
on which a Transaction is entered into (regardless of whether such
action is taken or brought with respect to a party to this
Agreement) or (y) a Change in Tax Law, the party (which will be the
Affected Party) will, or there is a substantial likelihood that it
will, on the next succeeding Scheduled Payment Date:
(1) be required to pay to the other party an additional amount
in respect of an Indemnifiable Tax under Section 2(d)(i)(4)
(except in respect of interest under Section 2(e), 6(d)(ii)
or 6(e)); or
(2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in
respect of interest under Section 2(e), 6 (d)(ii) or 6(e))
and no additional amount is required to be paid in respect
of such Tax under Section 2(d)(i)(4) (other than by reason
of Section 2(d)(i)(4)(A) or B));
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(iii) TAX EVENT UPON MERGER. The party (the "BURDENED PARTY") on the next
succeeding Scheduled Payment Date will either:
(1) be required to pay an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e));
or
(2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in
respect of which the other party is not required to pay an
additional amount (other than by reason of Section
2(d)(i)(4)(A) or B)), in either case as a result of a party
consolidating or amalgamating with, or merging with or into,
or transferring all or substantially all its assets to,
another entity (which will be the Affected Party) where such
action does not constitute an event described in Section
5(a)(viii);
(iv) CREDIT EVENT UPON MERGER. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any
Credit Support Provider of X or any applicable Specified Entity of X
consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and
such action does not constitute an event described in Section
5(a)(viii) but the creditworthiness of the resulting, surviving or
transferee entity is materially weaker than that of X, such Credit
Support Provider or such Specified Entity, as the case may be,
immediately prior to such action (and, in such event, X or its
successor or transferee, as appropriate, will be the Affected
Party); or
(v) ADDITIONAL TERMINATION EVENT. If any "Additional Termination Event"
is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event) the Affected Party or
Affected Parties shall be as specified for such Additional
Termination Event in the Schedule or such Confirmation).
(c) EVENT OF DEFAULT AND ILLEGALITY. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes
an Illegality, it will be treated as an Illegality and will not constitute
an Event of Default.
6. EARLY TERMINATION
(a) RIGHT TO TERMINATE FOLLOWING EVENT OF DEFAULT. If at any time an Event of
Default with respect to a party (the "DEFAULTING PARTY") has occurred and
is then continuing, the other party (the "NON-DEFAULTING PARTY") may, by
not more than 20 days notice to the Defaulting Party specifying the
relevant Event of Default, designate a day not earlier than the day such
notice is effective as an Early Termination Date in respect of all
outstanding Transactions. If, however, "Automatic Early Termination" is
specified in the Schedule as applying to a party, then an Early Termination
Date in respect of all outstanding Transactions will occur immediately upon
the occurrence with respect to such party of an Event of Default specified
in Section 5(a)(vii)(1), (3),
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(5), (6) or, to the extent analogous thereto, (8), and as of the time
immediately preceding the institution of the relevant proceeding or the
presentation of the relevant petition upon the occurrence with respect to
such party of an Event of Default specified in Section 5(a)(vii)(4) or, to
the extent analogous thereto, (8).
(b) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
(i) NOTICE. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party,
specifying the nature of that Termination Event and each Affected
Transaction and will also give such other information about that
Termination Event as the other party may reasonably require.
(ii) TRANSFER TO AVOID TERMINATION EVENT. If either an illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one
Affected Party, or if a Tax Event Upon Merger occurs and the
Burdened Party is the Affected Party, the Affected Party will, as a
condition to its right to designate an Early Termination Date under
Section 6(b)(iv), use all reasonable efforts (which will not require
such party to incur a loss, excluding immaterial, incidental
expenses) to transfer within 20 days after it gives notice under
Section 6(b)(i) all its rights and obligations under this Agreement
in respect of the Affected Transactions to another of its Offices or
Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will
give notice to the other party to that effect within such 20 day
period, whereupon the other party may effect such a transfer within
30 days after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be
subject to and conditional upon the prior written consent of the
other party, which consent will not be withheld if such other
party's policies in effect at such time would permit it to enter
into transactions with the transferee on the terms proposed.
(iii) TWO AFFECTED PARTIES. If an illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will
use all reasonable efforts to reach agreement within 30 days after
notice thereof is given under Section 6(b)(i) on action to avoid
that Termination Event.
(iv) RIGHT TO TERMINATE. If:-
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, has not been effected
with respect to all Affected Transactions within 30 days
after an Affected Party gives notice under Section 6(b)(i);
or
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(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax
Event Upon Merger occurs and the Burdened Party is not the
Affected Party,
either party in the case of an Illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in the case of a
Tax Event or an Additional Termination Event if there is more than
one Affected Party, or the party which is not the Affected Party in
the case of a Credit Event Upon Merger or an Additional Termination
Event if there is only one Affected Party may, by not more than 20
days notice to the other party and provided that the relevant
Termination Event is then continuing, designate a day not earlier
than the day such notice is effective as an Early Termination Date
in respect of all Affected Transactions.
(c) EFFECT OF DESIGNATION
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the
date so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or
2(e) in respect of the Terminated Transactions will be required to
be made, but without prejudice to the other provisions of this
Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) CALCULATIONS
(i) STATEMENT. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and
will provide to the other party a statement:
(1) showing, in reasonable detail, such calculations (including
all relevant quotations and specifying any amount payable
under Section 6(e)); and
(2) giving details of the relevant account to which any amount
payable to it is to be paid. In the absence of written
confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) PAYMENT DATE. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an
Early Termination Date which is designated or occurs as a result of
an Event of Default) and on the day which is two Local Business Days
after the day on which notice of the amount payable is effective (in
the case of an Early Termination Date which is designated as a
result of a Termination Event). Such amount will be paid
13
together with (to the extent permitted under applicable law)
interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount is paid, at
the Applicable Rate. Such interest will be calculated on the basis
of daily compounding and the actual number of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss" , and a
payment method, either the "First Method" or the "Second Method". If the
parties fail to designate a payment measure or payment method in the
Schedule, it will be deemed that "Market Quotation" or the "Second Method",
as the case may be, shall apply. The amount, if any, payable in respect of
an Early Termination Date and determined pursuant to this Section will be
subject to any Set-off.
(i) EVENTS OF DEFAULT. If the Early Termination Date results from an
Event of Default:-
(1) FIRST METHOD AND MARKET QUOTATION. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of:
(A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of
the Unpaid Amounts owing to the Non-defaulting Party
over
(B) the Termination Currency Equivalent of the Unpaid
Amounts owing to the Defaulting Party.
(2) FIRST METHOD AND LOSS. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party,
if a positive number, the Non-defaulting Party's loss in
respect of this Agreement.
(3) SECOND METHOD AND MARKET QUOTATION. If the Second Method and
Market Quotation apply, an amount will be payable equal to:
(A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of
the Unpaid Amounts owing to the Non-defaulting Party
less
(B) the Termination Currency Equivalent of the Unpaid
Amounts owing to the Defaulting Party. If that amount
is a positive number, the Defaulting Party will pay it
to the Non-defaulting Party; if it is a negative
number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
14
(4) SECOND METHOD AND LOSS. If the Second Method and Loss apply,
an amount will be payable equal to the Non-defaulting
Party's Loss in respect of this Agreement. If that amount is
a positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the Non
defaulting Party will pay the absolute value of that amount
to the Defaulting Party.
(ii) TERMINATION EVENTS. If the Early Termination Date results from a
Termination Event:-
(1) ONE AFFECTED PARTY. If there is one Affected Party, the
amount payable will be determined in accordance with Section
6(e)(i)(3), if Market Quotation applies, or Section
6(e)(i)(4), if Loss applies, except that, in either case,
references to the Defaulting Party and to the Non-defaulting
Party will be deemed to be references to the Affected Party
and the party which is not the Affected Party, respectively,
and, if Loss applies and fewer than all the Transactions are
being terminated, Loss shall be calculated in respect of all
Terminated Transactions.
(2) TWO AFFECTED PARTIES. If there are two Affected Parties:-
(A) If Market Quotation applies, each party will determine
a Settlement Amount in respect of the Terminated
Transactions, and an amount will be payable equal to:
(I) the sum of (a) one-half of the difference between
the Settlement Amount of the party with the higher
Settlement Amount ("X") and the Settlement Amount
of the party with the lower Settlement Amount
("Y") and (b) the Termination Currency Equivalent
of the Unpaid Amounts owing to X less
(II) the Termination Currency Equivalent of the Unpaid
Amounts owing to Y; and
(B) If Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable
equal to one-half of the difference between the Loss of
the party with the higher Loss ("X") and the loss of
the party with the lower Loss ("Y")
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination"
applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are appropriate
and permitted by law to reflect any payments or
15
deliveries made by one party to the other under this Agreement (and
retained by such other party) during the period from the relevant
Early Termination Date to the date for payment determined under
Section 6(d)(ii).
(iv) PRE-ESTIMATE. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable
pre-estimate of loss and not a penalty. Such amount is payable for
the loss of bargain and the loss of protection against future risks
and except as otherwise provided in this Agreement neither party
will be entitled to recover any additional damages as a consequence
of such losses.
7. TRANSFER
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of
the other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of
all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement);
(b) and a party may make such a transfer of all or any part of its interest in
any amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. CONTRACTUAL CURRENCY
(a) PAYMENT IN THE CONTRACTUAL CURRENCY. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that
payment (the "CONTRACTUAL CURRENCY"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the
Contractual Currency will not be discharged or satisfied by any tender in
any currency other than the Contractual Currency, except to the extent such
tender results in the actual receipt by the party to which payment is owed,
acting in a reasonable manner and in good faith in converting the currency
so tendered into the Contractual Currency, of the full amount in the
Contractual Currency of all amounts payable in respect of this Agreement.
If for any reason the amount in the Contractual Currency so received falls
short of the amount in the Contractual Currency payable in respect of this
Agreement, the party required to make the pavement will, to the extent
permitted by applicable law, immediately pay such additional amount in the
Contractual Currency as may be necessary to compensate for the shortfall.
If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount
of such excess.
16
(b) JUDGMENTS. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is
rendered:
(i) for the payment of any amount owing in respect of this Agreement;
(ii) for the payment of any amount relating to any early termination in
respect of this Agreement; or
(iii) in respect of a judgment or order of another court for the payment
of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which
such party is entitled pursuant to the judgment or order, will be
entitled to receive immediately from the other party the amount of
any shortfall of the Contractual Currency received by such party as
a consequence of sums paid in such other currency and will refund
promptly to the other party any excess of the Contractual Currency
received by such party as a consequence of sums paid in such other
currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual
Currency is converted into the currency of the judgment or order for
the purposes of such judgment or order and the rate of exchange at
which such party is able, acting in a reasonable manner and in good
faith in converting the currency received into the Contractual
Currency, to purchase the Contractual Currency with the amount of
the currency of the judgment or order actually received by such
party. The term "rate of exchange" includes, without limitation, any
premiums and costs of exchange payable in connection with the
purchase of or conversion into the Contractual Currency.
(c) SEPARATE INDEMNITIES. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and
independent causes of action, will apply notwithstanding any indulgence
granted by the party to which any payment is owed and will not be affected
by judgment being obtained or claim or proof being made for any other sums
payable in respect of this Agreement.
(d) EVIDENCE OF LOSS. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
9. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and
supersedes all oral communication and prior writings with respect thereto.
(b) AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing
evidenced by a facsimile transmission) and executed by each of the parties
or confirmed by an exchange of telexes or electronic messages on an
electronic messaging system.
17
(c) SURVIVAL OF OBLIGATIONS. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive
the termination of any Transaction.
(d) REMEDIES CUMULATIVE. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative
and are not exclusive of any rights, powers, remedies and privileges
provided by law.
(e) COUNTERPARTS AND CONFIRMATIONS.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be deemed
an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether
orally or otherwise). A Confirmation shall be entered into as soon
as practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange
of telexes or by an exchange of electronic messages on an electronic
messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that
any such counterpart, telex or electronic message constitutes a
Confirmation.
(f) NO WAIVER OF RIGHTS. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege
will not be presumed to preclude any subsequent or further exercise, of
that right, power or privilege or the exercise of any other right, power or
privilege.
(g) HEADINGS. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken
into consideration in interpreting this Agreement.
10. OFFICES; MULTIBRANCH PARTIES
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home
office represents to the other party that, notwithstanding the place of
booking office or jurisdiction of incorporation or organisation of such
party, the obligations of such party are the same as if it had entered into
the Transaction through its head or home office. This representation will
be deemed to be repeated by such party on each date on which a Transaction
is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
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(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office
through which it makes and receives payments or deliveries with respect to
a Transaction will be specified in the relevant Confirmation.
11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other
party from and against all reasonable out-of-pocket expenses, including
legal fees and Stamp Tax, incurred by such other party by reason of the
enforcement and protection of its rights under this Agreement or any Credit
Support Document to which the Defaulting Party is a party or by reason of
the early termination of any Transaction, including, but not limited to,
costs of collection.
12. NOTICES
(a) EFFECTIVENESS. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice
or other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:-
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answer back is
received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form
(it being agreed that the burden of proving receipt will be on the
sender and will not be met by a transmission report generated by the
sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt,
as applicable, is not a Local Business Day or that communication is
delivered (or attempted) or received, as applicable, after the close of
business on a Local Business Day, in which case that communication shall be
deemed given and effective on the first following day that is a Local
Business Day.
19
(b) CHANGE OF ADDRESSES. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details
at which notices or other communications are to be given to it.
13. GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) JURISDICTION. With respect to any suit, action or proceedings relating to
this Agreement ("PROCEEDINGS"), each party irrevocably:-
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State Of New York and the United
States District Court located in the Borough of Manhattan in New
York City if this agreement is expressed to be governed by the laws
of the State of New York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim
that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such
Proceedings, that such court does not have any jurisdiction over
such party.
Nothing in this Agreement precludes either party from bringing Proceedings
in any other jurisdiction (outside , if this Agreement is expressed to be
governed by English law, the Contracting States, as defined in Section 1(3)
of the Civil Jurisdiction and Judgments Xxx 0000 or any modification,
extension or re-enactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more jurisdictions preclude the
bringing of Proceedings in any other jurisdiction.
(c) SERVICE OF PROCESS. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on
its behalf, service of process in any Proceedings. If for any reason any
party's Process Agent is unable to act as such, such party will promptly
notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to
service of process given in the manner provided for notices in Section 12.
Nothing in this Agreement will affect the right of either party to serve
process in any other manner permitted by law.
(d) WAIVER OF IMMUNITIES. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and
assets (irrespective of their use or intended use), all immunity on the
grounds of sovereignty or other similar grounds from:
(i) suit,
(ii) jurisdiction of any court,
20
(iii) relief by way of injunction, order for specific performance or for
recovery of property attachment of its assets (whether before or
after judgment), and
(iv) execution or enforcement of any judgment to which it or its revenues
or assets might otherwise be entitled in any Proceedings in the
courts of any jurisdiction and irrevocably agrees, to the extent
permitted by applicable law, that it will not claim any such
immunity in any Proceedings.
14. DEFINITIONS
As used in this Agreement:-
"ADDITIONAL TERMINATION EVENT" has the meaning specified in Section 5(b).
"AFFECTED PARTY" has the meaning specified in Section 5(b).
"AFFECTED TRANSACTIONS" means:
(a) with respect to any Termination Event consisting of an Illegality,
Tax Event or Tax Event Upon Merger, all Transactions affected by the
occurrence of such Termination Event; and
(b) with respect to any other Termination Event, all Transactions.
"AFFILIATE" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose,
"control" of any entity or person means ownership of a majority of the
voting power of the entity or person.
"APPLICABLE RATE" means:
(a) in respect of obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Defaulting Party, the
Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of
either party from and after the date (determined in accordance with
Section 6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which
would have been but for Section 2(a)(iii)) by a Non-defaulting
Party, the Non-default Rate; and
(d) in all other cases, the Termination Rate.
"BURDENED PARTY" has the meaning specified in Section 5(b).
"CHANGE IN TAX LAW" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official
21
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"CONSENT" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"CREDIT EVENT UPON MERGER" has the meaning specified in Section 5(b).
"CREDIT SUPPORT DOCUMENT" means any agreement or instrument that is
specified as such in this Agreement.
"CREDIT SUPPORT PROVIDER" has the meaning specified in the Schedule.
"DEFAULT RATE" means a rate per annum equal to the costs (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if
it were to fund or of funding the relevant amount plus 1 % per annum.
"DEFAULTING PARTY" has the meaning specified in Section 6(a).
"EARLY TERMINATION DATE" means the date determined in accordance with
Section 6(a) or 6(b)(iv).
"EVENT OF DEFAULT" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"ILLEGALITY" has the meaning specified in Section 5(b).
"INDEMNIFIABLE TAX" means any Tax other than a Tax that would not be
imposed in respect of a payment under this Agreement but for a present or
former connection between the jurisdictions of the government or taxation
authority imposing such Tax and the recipient of such payment or a person
related to such recipient (including, without limitation, a connection
arising from such recipient or related person being or having been a
citizen or resident of such jurisdiction, or being or having been
organised, present or engaged in a trade or business in such jurisdiction,
or having had a permanent establishment or fixed place of business in such
jurisdiction, but excluding a connection arising solely from such recipient
or related person having executed, delivered, performed its obligations or
received a payment under, or enforced, this Agreement or a Credit Support
Document).
"LAW" includes any treaty, law, rule or regulation (as modified, in the
case of tax matters, by the practice of any relevant governmental revenue
authority) and "lawful" and "unlawful" will be construed accordingly.
"LOCAL BUSINESS DAY" means, subject to the Schedule, a day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits):
(a) in relation to any obligation under Section 2(a)(i), in the place(s)
specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the
22
parties in writing or determined pursuant to provisions contained,
or incorporated by reference, in this Agreement,
(b) in relation to any other payment, in the place where the relevant
account is located and, if different, in the principal financial
centre, if any, of the currency of such payment,
(c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the
address for notice provided by the recipient and, in the case of a
notice contemplated by Section 2(b), in the place where the relevant
new account is to be located and (d) in relation to section
5(a)(v)(2), in the relevant locations for performance with respect
to such Specified Transaction.
"LOSS" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to
be its total losses and costs (or gain, in which case expressed as a
negative number) in connection with this Agreement or that Terminated
Transaction or group of Terminated Transactions, as the case may be,
including any loss of bargain, cost of funding or, at the election of such
party but without duplication, loss or cost incurred as a result of its
terminating, liquidating, obtaining or re-establishing any hedge or related
trading position (or any gain resulting from any of them). Loss includes
losses and costs (or gains) in respect of any payment or delivery required
to have been made (assuming satisfaction of each applicable condition
precedent) on or before the relevant Early Termination Date and not made,
except, so as to avoid duplication, if Section 6(e)(i)(1) or (3) or
6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine
its Loss as of the relevant Early Termination Date, or, if that is not
reasonably practicable, as of the earliest date thereafter as is reasonably
practicable. A party may (but need not) determine its Loss by reference to
quotations of relevant rates or prices from one or more leading dealers in
the relevant markets.
"MARKET QUOTATION" means, with respect to one or more Terminated
Transactions and a party making the determination, an amount determined on
the basis of quotations from Reference Market-makers. Each quotation will
be for an amount, if any, that would be paid to such party (expressed as a
negative number) or by such party (expressed as a positive number) in
consideration of an agreement between such party (taking into account any
existing Credit Support Document with respect to the obligations of such
party) and the quoting Reference Market-maker to enter into a transaction
(the "Replacement Transaction") that would have the effect of preserving
for such party the economic equivalent of any payment or delivery (whether
the underlying obligation was absolute or contingent and assuming the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of
Terminated Transactions that would, but for the occurrence of the relevant
Early Termination Date, have been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group
of Terminated Transactions are to be excluded but, without limitation, any
payment or delivery that would, but for the relevant Early Termination
Date, have
23
been required (assuming satisfaction of each applicable condition
precedent) after that Early Termination Date is to be included. The
Replacement Transaction would be subject to such documentation as such
party and the Reference Market-maker may, in good faith, agree. The party
making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent as reasonably
practicable after the relevant Early Termination Date. The day and time as
of which those quotations are to be obtained will be selected in good faith
by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than
three quotations are provided, the Market Quotation will be the arithmetic
mean of the quotations, without regard to the quotations having the highest
and lowest values. If exactly three quotations are provided, the Market
Quotation will be the quotation remaining after disregarding the highest
and lowest quotations. For this purpose, if more than one quotation has the
same highest value or lowest value, then one of such quotations shall be
disregarded. if fewer than three quotations are provided, it will be deemed
that the Market Quotation in respect of such Terminated Transaction or
group of Terminated Transactions cannot be determined.
"NON-DEFAULT RATE" means a rate per annum equal to the cost (without proof
or evidence of any actual costs) to the Non-defaulting Party (as certified
by it) if it were to fund the relevant amount.
"NON-DEFAULTING PARTY" has the meaning specified in Section 6(a).
"OFFICE" means a branch or office of a party, which may be such party's
head or home office.
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving of
notice or the lapse of time or both, would constitute an Event Of Default.
"REFERENCE MARKET-MAKERS" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith:
(a) from among dealers of the highest credit standing which satisfy all
the criteria that such party applies generally at the time in
deciding whether to offer or to make an extension of credit; and
(b) to the extent practicable, from among such dealers having an office
in the same city.
"RELEVANT JURISDICTION" means, with respect to a party, the jurisdictions:
(a) in which the party is incorporated, organised, managed and
controlled or considered to have its seat,
(b) where an Office through which the party is acting for purposes of
this Agreement is located,
(c) in which the party executes this Agreement, and
24
(d) in relation to any payment, from or through which such payment is
made.
"SCHEDULED PAYMENT DATE" means a date on which a payment or delivery is to
be made under Section 2(a)(i) with respect to a Transaction.
"SET-OFF" means set-off, offset, combination of accounts, right of
retention or withholding or similar right or requirement to which the payer
of an amount under Section 6 is entitled or subject (whether arising under
this Agreement, another contract, applicable law or otherwise) that is
exercised by, or imposed on, such payer.
'SETTLEMENT AMOUNT' means, with respect to a party and any Early
Termination Date, the sum of:-
(a) the Termination Currency Equivalent of the Market Quotations
(whether positive or negative) for each Terminated Transaction or
group of Terminated Transactions for which a Market Quotation is
determined; and
(b) such party's Loss (whether positive or negative and without
reference to any Unpaid Amounts) for each Terminated Transaction or
group of Terminated Transactions for which a Market Quotation cannot
be determined or would not (in the reasonable belief of the party
making the determination) produce a commercially reasonable result.
"SPECIFIED ENTITY" has the meaning specified in the Schedule.
"SPECIFIED INDEBTEDNESS" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety
or otherwise) in respect of borrowed money.
"SPECIFIED TRANSACTION" means, subject to the Schedule,
(a) any transaction (including an agreement with respect thereto) now
existing or hereafter entered into between one party to this
Agreement (or any Credit Support Provider of such party or any
applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party
or any applicable Specified Entity of such other party) which is a
rate swap transaction, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction,
collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction
(including any option with respect to any of these transactions),
(b) any combination of these transactions, and
(c) any other transaction identified as a Specified Transaction in this
Agreement or the relevant confirmation.
"STAMP TAX"' means any stamp, registration, documentation or similar tax.
25
"TAX" means any present or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including interest, penalties and
additions thereto) that is imposed by any government or other taxing
authority in respect of any payment under this Agreement other than a
stamp, registration, documentation or similar tax.
"TAX EVENT" has the meaning specified in Section 5(b).
"TAX EVENT UPON MERGER" has the meaning specified in Section 5(b).
"TERMINATED TRANSACTIONS" means with respect to any Early Termination Date:
(a) if resulting from a Termination Event, all Affected Transactions;
and
(b) if resulting from an Event of Default, all Transactions (in either
case) in effect immediately before the effectiveness of the notice
designating that Early Termination Date (or, if "Automatic Early
Termination" applies, immediately before that Early Termination
Date).
"TERMINATION CURRENCY" has the meaning specified in the Schedule.
"TERMINATION CURRENCY EQUIVALENT" means, in respect of any amount
denominated in the Termination Currency, such Termination Currency amount
and, in respect of any amount denominated in a currency other that the
Termination Currency (the "OTHER CURRENCY"), the amount in the Termination
Currency determined by the party making the relevant determination as being
required to purchase such amount of such Other Currency as at the relevant
Early Termination Date, or, if the relevant Market Quotation or Loss (as
the case may be), is determined as of a later date, that later date, with
the Termination Currency at the rate equal to the spot exchange rate of the
foreign exchange agent (selected as provided below) for the purchase of
such Other Currency with the Termination Currency at or about 11:00 a.m.
(in the city in which such foreign exchange agent is located) on such date
as would be customary for the determination of such a rate for the purchase
of such Other Currency for value on the relevant Early Termination Date or
that later date. The foreign exchange agent will, if only one party is
obliged to make a determination under Section 6(e), be selected in good
faith by that party and otherwise will be agreed by the parties.
"TERMINATION EVENT" means an Illegality, a Tax Event or a Tax Event Upon
Merger or, if specified to be applicable, a Credit Event Upon Merger or an
Additional Termination Event.
"TERMINATION RATE" means a rate per annum equal to the arithmetic mean of
the cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"UNPAID AMOUNTS" owing to any party means, with respect to an Early
Termination Date, the aggregate of:
26
(a) in respect of all Terminated Transactions, the amounts that became
payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such
Early Termination Date and which remain unpaid as at such Early
Termination Date; and
(b) in respect of each Terminated Transaction, for each obligation under
Section 2(a)(i) which was (or would have been but for Section
2(a)(iii)) required to be settled by delivery to such party on or
prior to such Early Termination Date and which has not been so
settled as at such Early Termination Date, an amount equal to the
fair market value of that which was (or would have been) required to
be delivered as of the originally scheduled date for delivery, in
each case together with (to the extent permitted under applicable
law) interest, in the currency of such amounts, from (and including)
the date such amounts or obligations were or would have been
required to have been paid or performed to (but excluding) such
Early Termination Date, at the Applicable Rate. Such amounts of
interest will be calculated on the basis of daily compounding and
the actual number of days elapsed. The fair market value of any
obligation referred to in clause (6) above shall be reasonably
determined by the party obliged to make the determination under
Section 6(e) or, if each party is so obliged, it shall be the
average of the Termination Currency Equivalents of the fair market
values reasonably determined by both parties.
27
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
COMMONWEALTH BANK OF AUSTRALIA PERPETUAL TRUSTEES AUSTRALIA LTD
ACN 123 123 124 ACN 000 000 000
By: /s/ Xxxxxx Xxxxxxx By:
Name: Xxxxxx Xxxxxxx Name:
Title: Risk Manager Title:
Date 9 October 2000 Date:
THE COMMON SEAL of MACQUARIE [THE COMPANY'S SEAL]
SECURITISATION LIMITED, ACN 003 297 336
was hereunto affixed in accordance with the Company's Constitution
/s/ Xxxx Xxxxxxxx /s/ Xxxxxxx Xxxx
----------------- ----------------
(Signature of Director) (Signature of Director)
Xxxxxxx Xxxx Xxxxxxxx Xxxxxxx Xxxxx Xxxx
(Name of Director in full) (Name of Director in full)
Signed in my presence for and on behalf of
Perpetual Trustees Australia Limited (A.C.N. 000
431 827) by its attorneys Xxxxxxx Xxxxxxx Xxxxxx
and Xxxxxx Xxxxxxxx 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 as attorney of the company for the
purposes of the Power of Attorney dated 3/12/99
(Registration No. 4257/420) and that he/she has no
notice of the revocation of his her powers.
/s/ Xxxxxx Xxxx /s/ Xxxxxxx Xxxxxx
Signature of Witness Signature of Attorney
Xxxxxx Xxxxxxxxx Xxxx /s/ Xxxxxx Xxxxxxxx
Full name of Witness Signature of Attorney
28
SCHEDULE
TO THE
ISDA MASTER AGREEMENT
Dated as of 2000
between
COMMONWEALTH BANK OF AUSTRALIA, and PERPETUAL TRUSTEES AUSTRALIA LIMITED,
ACN 123 123 124 ("PARTY A") ACN 000 000 000, IN ITS CAPACITY AS
TRUSTEE OF VARIOUS WAREHOUSE FUNDS
AND SUB-FUNDS FROM TIME TO TIME
ESTABLISHED UNDER THE TRUST DEED
("PARTY B")
and
MACQUARIE SECURITISATION
LIMITED, ACN 003 297 336
(THE "MANAGER")
PART 1: TERMINATION PROVISIONS
(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) Section 5(b)(ii)
(ii) The following provisions of Section 5 will not apply to Party B
(or any Credit Support Provider of Party B):
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) Section 5(b)(ii)
(d) The "AUTOMATIC EARLY TERMINATION" provisions in Section 6(a) will not
apply.
(E) PAYMENT ON EARLY TERMINATION. For the purposes of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
1.
(ii) the Second Method will apply.
(f) "TERMINATION CURRENCY" means Australian dollars.
(G) ADDITIONAL TERMINATION EVENT. Not Applicable.
2.
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 governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to any other party
under this Agreement. In making this representation, it may rely on:
(i) the accuracy of any representation made by the other party
pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i)
or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by 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 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.
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.
3.
PART 3: AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver to each other party the following documents, as applicable:
(A) TAX FORMS, DOCUMENTS OR CERTIFICATES TO BE DELIVERED ARE:
PARTY REQUIRED TO DELIVER DOCUMENT FORM/DOCUMENT/ CERTIFICATE DATE BY WHICH DOCUMENT TO BE
DELIVERED
Party A and Party B Any document or certificate On the earlier of (a) learning that
reasonably required or reasonably such document or certificate is
requested by a party in connection required and (b) as soon as
with its obligations to make a reasonably practicable following a
payment under this Agreement which request by a party.
would enable that party to make the
payment free from any deduction or
withholding for or on account of Tax
or which would reduce the rate at
which deduction or withholding for
or on account of Tax is applied to
that payment.
(B) OTHER DOCUMENTS TO BE DELIVERED ARE:
PARTY REQUIRED TO DELIVER DOCUMENT FORM/DOCUMENT/ CERTIFICATE DATE BY WHICH DOCUMENT TO BE
DELIVERED
Party A and Party B A list of authorised signatories for At the execution of this Agreement
the party and evidence satisfactory and thereafter promptly upon any
in form and substance to the other change in authorised persons or upon
party of the authority of the request.
authorised signatories of the party
to execute this Agreement and each
confirmation on behalf of the party.
Party A A legal opinion as to the validity The date of this Agreement.
and enforceability of that party's
obligations under this Agreement in
form and substance (and issued by
legal counsel) reasonably acceptable
to the other parties.
Party A A copy of the most recent annual Upon reasonable request by the
report of the party containing Manager.
consolidated financial statements,
certified without qualification by
independent public accountants and
such other public information
respecting its condition or
4.
operations, financial or otherwise,
as the other parties may reasonably
request from time to time.
Manager Copies of any reports or accounts Upon reasonable request by Party A
relating to any relevant Warehouse subject to not being obliged to
Fund or Sub-Fund as are produced for deliver any document if to do so
distribution to Investors or would breach or infringe any law or
presentation to the Board of legally binding obligation or
Directors of or the Manager and such restraint.
other information in Party B's or
the Manager's control regarding the
financial condition and business
operations of any relevant Warehouse
Fund or Sub-Fund as Party A may
reasonably require.
Manager A copy of the Trust Deed. The date of this Agreement.
Manager A copy of any document amending or Promptly upon any such document
varying the terms of the Trust Deed. becoming effective in accordance with
its terms.
Manager A copy of the Security Trust Deed 5 Local Business Days prior to the
relating to a Warehouse Fund or a date of the first Transaction made
Sub-Fund. under this Agreement relating to
that Warehouse Fund or Sub-Fund.
Other than the legal opinion referred to in this Part 3(b), all documents
delivered under this Part 3(b) are covered by Section 3(d) representation.
5.
PART 4: MISCELLANEOUS
(A) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
Address for notices or communications to PARTY A:
Address: Xxxxx 0
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Attention: Manager, Client Services Centre - Documentation
Facsimile No.: (00) 0000 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
Facsimile No.: (00) 0000 0000
Additionally, a copy of all notices pursuant to Sections 5, 6 and 7 as
well as any change of a party's address, telephone number of facsimile
number should be sent to:
Address: Perpetual Trustees Australia Limited
Xxxxx 0
00 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Attention: Manager - Mortgage Securitisation
Facsimile No.: (00) 0000-0000
(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:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(E) CALCULATION AGENT. The Calculation Agent is the Manager.
(F) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
6.
(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: Not Applicable.
(ii) In relation to PARTY B: In relation to each Sub-Fund, the
Security Trustee.
(H) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws in force in New South Wales and Section
13(b)(i) is deleted and replaced with the following:
"(i) submits to the non-exclusive jurisdiction of the courts of New
South Wales and courts of appeal from them; and"
NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this
Agreement will not apply in respect of all Transactions.
(i) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. However, for the purposes of Section 3(c), Party A and Party
B is deemed not to have any Affiliates.
7.
PART 5: OTHER PROVISIONS
5.1 AMENDMENTS TO THE STANDARD ISDA FORM
(A) 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)."
(B) 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 paragraph (iv) in Section 2(a) immediately after
Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(l) 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).
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 applicable to Party B's
obligations and entitlement referred to in Section
2(a)(v)(l) 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
8.
(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) Add the following new sentence to Section 2(b):
"Each new account so designated must be in the same tax
jurisdiction as the original account."
(v) Delete Section 2(d)(i)(4) in its entirety;
(vi) In Section 2(d)(ii)(l) delete the following words where they
appear:
"in respect of which X would not be required to pay an
additional amount to Y under Section 2(d)(i)(4)";
(vii) Add the following as Section 2(f):
"(f) If on any day an amount would otherwise be payable by
Party A pursuant to Section 2(a) or Section 2(c) in
respect of a Transaction, then such amount will,
unless otherwise agreed between Party A and Party B,
be satisfied in part, or whole, from the then
Prepayment Balance in relation to the Transaction."
(C) ADDITIONAL REPRESENTATIONS: In Section 3:
(i) the second line of Section 3 is amended by inserting after the
words "is entered into" the words "or novated";
(ii) Section 3(a)(v) is amended by inserting immediately after the
words "creditors' rights generally" the following:
"(including in the case of a party being an ADI (as that term
is defined in the Reserve Bank Act, 1959 (Cth) and Section
13A(3) of the Banking Act, 1959 (Cth))."
(iii) after "Section 3(f)" in line 2 insert "3(g), 3(h), 3(i) and
3(j)";
(iv) insert the following new paragraphs (g), (h), (i) and (j)
immediately after Section 3(f):
"(g) WAREHOUSE FUND AND SUB-FUND. By Party B, in respect
of Party B only in its capacity as trustee of a
Warehouse Fund or Sub-Fund (as applicable):
(i) VALIDLY CREATED. The Warehouse Fund or
Sub-Fund has been validly created and is in
existence at the date of this Agreement.
(ii) SOLE TRUSTEE. It has been validly appointed
as trustee of the Warehouse Fund or Sub-Fund
and is presently the sole trustee of the
Warehouse Fund or Sub-Fund.
(iii) NO PROCEEDINGS TO REMOVE. No notice has been
given to it and to its
9.
knowledge no resolution has been passed, or
direction or notice has been given, removing
it as trustee of the Warehouse Fund or Sub-
Fund.
(iv) POWER. It has power under the Trust Deed to:
A. enter into this Agreement and the
Credit Support Documents (if any)
in relation to the Warehouse Fund
or Sub-Fund in its capacity as
trustee of the Warehouse Fund or
Sub-Fund (as applicable); and
B. mortgage or charge the assets of
the Warehouse Fund or Sub- Fund in
the manner provided in the Credit
Support Documents (if any) in
relation to Party B and the
Warehouse Fund or Sub-Fund (as
applicable).
(v) GOOD TITLE. It is the lawful owner of the
assets of the Warehouse Fund or Sub-Fund
and, subject only to the Credit Support
Documents (if any) in relation to Party B
and the Warehouse Fund or Sub-Fund and any
security interest permitted under the Credit
Support Documents (if any) in relation to
Party B and the Warehouse Fund or Sub-Fund,
those assets are free of all other security
interests (except for Party B's right of
indemnity out of the assets of the Warehouse
Fund or Sub-Fund, as applicable).
(h) NON ASSIGNMENT. It has not assigned (whether
absolutely, in equity, by way of security or
otherwise), declared any trust over or given any
charge over any of its rights under this Agreement or
any Transaction (other than, in respect of Party B,
and the Warehouse Funds or Sub-Funds created pursuant
to the Trust Deed, the charge given pursuant to a
Security Trust Deed).
(i) 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 Warehouse Fund or Sub-Fund
constituted under the Trust Deed and not
otherwise.
(j) RELATIONSHIP BETWEEN PARTIES. Party A and Party B
will be deemed to represent to the other on the date
on which it enters into a Transaction that (absent a
written agreement between the parties that expressly
imposes affirmative obligations to the contrary for
that Transaction):
10.
(1) NON-RELIANCE. It is acting for its own
account (in the case of Party B as trustee
of the relevant Sub-Fund), and it has made
its own independent decisions to enter into
that Transaction and as to whether that
Transaction is appropriate or proper for it
based upon its own judgment (or in the case
of Party B, on the judgment of the Manager)
and upon advice from such advisers as it has
deemed necessary. It is not relying on any
communication (written or oral) of the other
as investment advice or as a recommendation
to enter into that Transaction; it being
understood that information and explanations
related to the terms and conditions of a
Transaction will not be considered
investment advice or a recommendation to
enter into that Transaction. No
communication (written or oral) received
from any other party will be deemed to be an
assurance or guarantee as to the expected
results of that Transaction.
(2) EVALUATION AND UNDERSTANDING. It is capable
of evaluating and understanding (on its own
behalf or through independent professional
advice and, in the case of Party B, advice
of the Manager), and understands and
accepts, the terms, conditions and risks of
that Transaction. It is also capable of
assuming, and assumes, the risks of that
Transaction.
(3) STATUS OF PARTIES. The other party is not
acting as a fiduciary or an adviser to it in
respect of that Transaction."
(v) insert the following paragraph at the end of Section 3:
"Party B (or the Manager on its behalf) must notify Party A,
the Manager and each Current Rating Authority in relation to a
Sub-Fund of any circumstance which may arise from time to time
of which it becomes aware and which would constitute a breach
of any representation or warranty contained in this Section 3.
In the event that Party B (or the Manager on its behalf) makes
such notification, the relevant representation or warranty to
which the notification relates will be deemed not to be
repeated by Party B on each date on which a Transaction is
entered into or novated (or in the case of the representation
in Section 3(f), at any time) after the date of such
notification.
(D) 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 Warehouse Fund or Sub-Fund constituted under the
Trust Deed and not otherwise."
(E) PAYMENT DEFAULT: In Section 5, delete Section 5(a)(i) and replace it
with the following:
"(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when
due, any payment under this Agreement or delivery under
Section 2(a)(i) or 2(e) required to be made by it if such
failure is not remedied at or before 10.00 am on the tenth
Local Business Day after
11.
notice of such failure is given to the party;"
(F) 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 (or
the Manager on its behalf) 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 the Manager, use reasonable efforts to make such
a transfer to an Affiliate (as that expression is defined in
Section 14 disregarding any modification made by this
Agreement) provided Party B has received written confirmation
from the Manager (with a copy to Party A) that the Manager has
received confirmation from each Current Rating Authority in
relation to the Sub-Fund that such a transfer will not result
in a reduction, qualification or withdrawal of the then rating
assigned to the Registered Stock in relation to the Sub-Fund
by any Current Rating Authority in relation to the Sub-Fund".
(iii) add the following sentence at the end of the last paragraph of
Section 6(b)(ii):
"However, consent may be withheld if the other party considers
that its credit exposure to the transferor would be adversely
affected by the transfer and, without limiting the foregoing,
consent may be withheld by Party B if the transfer cannot be
effected in accordance with the Transaction Documents in
relation to the Sub-Fund."
(iv) Delete the last sentence of the first paragraph in Section
6(e).
(G) TRANSFER: Section 7 is deleted and replaced with the following:
"TRANSFER
(a) Neither the interests nor the obligations of either party in
or under this Agreement (including any Transaction) are
capable of being assigned or transferred (whether at law, in
equity or otherwise), charged or the subject of any trust or
other fiduciary obligation (other than, in relation to Party
B, the trust 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 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) or Part 5.2 (q)(ii)(4);
12.
(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,
provided that Party B has received written confirmation from
the Manager (with a copy to Party A) that the Manager has
received confirmation from each Current Rating Authority in
relation to the Sub-Fund that such transfer, variation or
assignment by way of security (as the case may be) will not
result in a reduction, qualification or withdrawal of the
credit ratings then assigned to the Registered Stock in
relation to the Sub-Fund by any Current Rating Authority in
relation to the Sub-Fund.
(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)."
(H) MISCELLANEOUS: 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 5.1(a)
of the Schedule), no".
(I) FACSIMILE TRANSMISSION: In Section 12:
(i) delete the following words where they appear in 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) replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission, on the date a
transmission report is provided by the machine from
which the facsimile was sent which indicates that the
facsimile was sent in its entirety to the facsimile
number of the recipient notified for the purpose of
this Section unless the recipient notifies the sender
within one Business Day of the facsimile being sent
that the facsimile was not received in its entirety
in legible form;" and
(iii) insert a new paragraph (vi) in Section 12(a)
immediately after Section 12(a)(v) as follows:
"(vi) if sent by ordinary mail, on the third
(seventh, if posted to or from a place
outside Australia) day after posting."
(J) DEFINITIONS: In Section 14:
13.
(i) Section 14 is renumbered as Section 14(a).
(ii) replace the definition "Affected Transactions" with 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) replace the definition "Local Business Day" with the
following:
""LOCAL BUSINESS DAY" has the same meaning as "BUSINESS DAY""
(iv) delete the following words from the definition of "Default
Rate":
"plus 1 % per annum".
(v) 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).
14.
The Replacement Transaction would be subject to such
documentation as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination
(or its agent) will request each Reference Market-maker to
provide its quotation to the extent reasonably practicable as
of the same day and time (without regard to different time
zones) on or as soon as reasonably practicable after the
relevant Early Termination Date. The day and time as of which
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."
(vi) insert the following new definitions:
""CURRENT RATING AUTHORITY" in relation to a Transaction means
a Current Rating Authority (as defined in the Trust Deed) in
relation to the Sub-Fund, if any, specified pursuant to Part
5.2(d) in relation to that Transaction or, if applicable, in
relation to the Sub-Fund to which that Transaction has been
novated.
"ELIGIBLE ACCOUNT" in relation to a Transaction means an
account in the name of Party B as trustee of the Sub-Fund
specified pursuant to Part 5.2(d) in relation to that
Transaction, or, if applicable, as trustee of the Sub-Fund to
which that Transaction has been novated, held with a financial
institution (specified by Party A) with short term credit
ratings of P-1 by Moody's, F-1+ by Fitch and A-1+ S&P and
includes the account established pursuant to clause 12 of the
Trust Deed in relation to that Sub-Fund to the extent that the
holder of that account is rated in this manner.
"FITCH" means Fitch IBCA (Australia) Pty. Limited, ACN 081 339
184 and includes its successors and assigns.
"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).
"MANAGER" means the "Manager" from time to time under the
Trust Deed, which Manager is at the date of this Agreement
Macquarie Securitisation Limited, ACN 003 297 336 of Xxxxx 00,
00 Xxxx Xxxxxx, Xxxxxx.
00.
"PREPAYMENT AMOUNT" has the meaning given in Part 5.2(q)(iii).
"PREPAYMENT BALANCE" in relation to a Transaction means the
amount then standing to the credit of the Eligible Account in
respect of prepayments by Party A pursuant to Part 5.2
(q)(ii)(3), (v)(1) or (vii) in respect of that Transaction and
interest (net of any government or bank fees) on that amount
and which has not been utilised pursuant to Section 2(e) or
repaid to Party A pursuant to Part 5.2(q)(v)(2) or (viii).
"PRESCRIBED RATINGS" in relation to a Transaction means a long
term rating of A2 or higher by Moody's (if Xxxxx'x is a
Current Rating Authority in relation to the Transaction), a
short term rating of F-1 + by Fitch (if Fitch is a Current
Rating Authority in relation to the Transaction) and either a
long term rating of AA- or a short term rating of A-1+ by S&P
(if S&P is a Current Rating Authority in relation to the
Transaction).
"TRUST DEED" means a Deed of Trust dated 13 July 1990 (as
amended) made between the party named as the Founder in the
First Schedule of that Deed and Party B, pursuant to which the
trust funds, collectively known as the "PUMA Fund" are
constituted."
(vii) Insert the following new Sections 14(b), (c) and (d) 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" as
defined in the Master Novation Annex annexed to this
Agreement.
(c) Unless otherwise defined herein, terms defined in the
Trust Deed (either expressly or by incorporation by
reference) have the same meaning where used in this
Agreement."
(d) INTERPRETATION:
(i) references to time are references to Sydney
time;
(ii) a reference to "WILFUL DEFAULT" in relation
to Party B in respect of a Sub-Fund means,
subject to Section 14(d)(iii), any wilful
failure by Party B to comply with, or wilful
breach by Party B of, any of its obligations
under any Transaction Document relating to
the Sub-Fund, other than a failure or breach
which:
A. (1) arises as a result of a breach of a
Transaction Document relating to
the Sub-Fund by a person other
than:
(a) Party B; or
(b) any other person referred to
in Section 14(d)(iii); and
16.
(2) the performance of the action (the
non-performance of which gave rise
to such breach) is a precondition
to Party B performing the said
obligation;
B. is in accordance with a lawful court
order or direction or required by law;
or
C. is:
(A) in accordance with any proper
instruction or direction of the
secured creditors in relation to
the Sub-Fund given at a meeting of
the secured creditors in relation
to the Sub-Fund convened pursuant
to the Security Trust Deed;
(B) in accordance with any proper
instruction or direction of the
Investors in relation to the
Sub-Fund given at a meeting
convened under the Security Trust
Deed;
(iii) a reference to the "FRAUD", "NEGLIGENCE" or
"WILFUL DEFAULT" of Party B in relation to a
Sub-Fund means the fraud, negligence or
wilful default in relation to the Sub-Fund
of Party B and of its officers, employees,
agents and any other person where Party B is
liable for the acts or omissions of such
other person under the terms of any
Transaction Document in relation to the
Sub-Fund;
(iv) a reference to "NEITHER PARTY" will be
construed as a reference to "NO PARTY";
(v) a reference to "OTHER PARTY" will be
construed as a reference to "OTHER PARTIES";
(vi) a reference to Party B is a reference to
Party B in its capacity as trustee of the
relevant Warehouse Fund or Sub-Fund only,
and in no other capacity; and
(vii) a reference to the undertaking, assets,
business or money of Party B is a reference
to the undertaking, assets, business or
money of Party B in the capacity referred to
in Section 14(d)(vi) only.
(K) TRUSTEE PROVISIONS: Insert the following new Section 15, after Section
14:
PARTY B'S LIMITATION OF LIABILITY
17.
(a) (LIMITATION ON PARTY B'S LIABILITY): Party B enters into this
Agreement only in its capacity as trustee of the Fund and in
no other capacity. A liability incurred by Party B acting in
its capacity as trustee of a Warehouse Fund or Sub-Fund
arising under or in connection with this Agreement is limited
to and can be enforced against Party B only to the extent to
which it can be satisfied out of the assets of the Warehouse
Fund or Sub-Fund out of which Party B is actually indemnified
for the liability. This limitation of Party B liability
applies despite any other provision of this Agreement (other
than Section 15(c)) and extends to all liabilities and
obligations of Party B in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this Agreement.
(b) (CLAIMS AGAINST PARTY B): The parties other than Party B may
not xxx Party B in respect of liabilities incurred by Party B
acting in its capacity as trustee of a Warehouse Fund or
Sub-Fund in any other capacity other than as trustee of that
Warehouse Fund or Sub-Fund, including seek the appointment of
a receiver (except in relation to assets of that Warehouse
Fund or Sub-Fund), a liquidator, an administrator, or any
similar person to Party B or prove in any liquidation,
administration or arrangements of or affecting Party B (except
in relation to the assets of that Warehouse Fund or Sub-Fund).
(c) (BREACH OF TRUST): The provisions of this Section 15 will not
apply to any obligation or liability of Party B to the extent
that it is not satisfied because under the Trust Deed or any
other Transaction Document or by operation of law there is a
reduction in the extent of Party B's indemnification out of
the assets of the relevant Warehouse Fund or Sub-Fund or, as a
result of Party B's fraud, negligence or wilful default.
(d) (ACTS OR OMISSIONS): It is acknowledged that each of the
parties to a Transaction Document are responsible under that
Transaction Document for performing a variety of obligations
relating to each Warehouse Fund or each Sub-Fund. No act or
omission of Party B (including any related failure to satisfy
its obligations or any breach of representation or warranty
under this Agreement) will be considered fraudulent, negligent
or a wilful default of Party B for the purpose of paragraph
(c) of this Section 15 to the extent to which the act or
omission was caused or contributed to by any failure by any
party to a Transaction Document or any other person appointed
by Party B under any Transaction Document (other than a person
whose acts or omissions Party B is liable for in accordance
with any Transaction Document) to fulfil its obligations
relating to each Warehouse Fund or each Sub-Fund or by any
other act or omission of a party to a Transaction Document or
any other such person.
18.
(e) (NO OBLIGATION): Party B is not obliged to enter into any
further commitment or obligation under this Agreement or any
Transaction Document unless Party B's liability is limited in
a manner in which is consistent with this Section 15 or
otherwise in a manner satisfactory to Party B in its absolute
discretion.
(f) Without limiting the generality of this Section 15, the
provisions of this Agreement shall have effect severally in
respect of each Warehouse Fund and each Sub-Fund and shall be
enforceable by or against Party B in its capacity as trustee
of each such Warehouse Fund or 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 Warehouse
Fund and each Sub-Fund;
(ii) this Agreement together with each Confirmation
relating to a particular Warehouse Fund or Sub-Fund
will form a single separate agreement between Party A
and Party B in its capacity as trustee of that
Warehouse Fund or Sub-Fund and references to the
respective obligations (including references to
payment obligations generally and in the context of
provisions for the netting of payments and the
calculation of amounts due on early termination) of
Party A and Party B shall be construed accordingly as
a several reference to each mutual set of obligations
arising under each such separate agreement between
Party A and Party B in its several capacities as
trustee of each Warehouse Fund and 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 Warehouse Fund and each Sub-Fund and
may be enforced by Party B against Party A severally
in Party B's said several capacities (and by Party A
against Party B in Party B's said several
capacities);
(iv) rights of termination, and obligations and
entitlements consequent upon termination, only accrue
to Party A against Party B severally in Party B's
respective capacities as trustee of each Warehouse
Fund and each Sub-Fund, and only accrue to Party B
against Party A severally in Party B's said several
capacities; and
(v) without limiting Section 15, the occurrence of an
Event of Default or Termination Event in respect of
one Warehouse Fund or one Sub-Fund shall not in
itself constitute an Event of Default or Termination
Event in respect of any other Warehouse Fund or
Sub-Fund."
19.
5.2 ADDITIONAL PROVISIONS
(A) ISDA DEFINITIONS: The 1991 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc ("ISDA")), as
supplemented by the 1998 Supplement to the 1991 ISDA Definitions (as
published by ISDA) (the "1991 ISDA DEFINITIONS") as at the date of this
Agreement are incorporated into this Agreement and each Confirmation.
Any reference to a:
(i) "SWAP TRANSACTION" in the 1991 ISDA Definitions is deemed to
be a reference to a "TRANSACTION" for the purpose of
interpreting this Agreement or any Confirmation; and
(ii) "TRANSACTION" in this Agreement or any Confirmation is deemed
to be a reference to a "SWAP TRANSACTION" for the purpose of
interpreting the 1991 ISDA Definitions.
(B) INCONSISTENCY: Unless specified otherwise, in the event of any
inconsistency between any two or more of the following documents, they
shall take precedence over each other in the following order in respect
of that Transaction:
(i) any Confirmation;
(ii) this Agreement; and
(iii) the 1991 ISDA Definitions.
(C) APPOINTMENT OF MANAGER: Party B hereby exclusively appoints the Manager
as its attorney to act on Party B's behalf and exercise all rights and
powers of Party B with respect to this Agreement. Without limiting the
generality of the foregoing, the Manager may issue and receive on
behalf of Party B all notices, certificates and other communications to
or by Party A under this Agreement until such time as Party B serves
written notice on Party A of the revocation of the Manager's authority
to act on behalf of Party B in accordance with this Part 5.2(c) of the
Schedule. For the purposes of Section 15(d), each of the parties to
this Agreement acknowledge that the Manager acting as attorney of Party
B pursuant to this clause will not be a person whose acts or omissions
Party B is liable for.
(D) 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 A will, on or promptly after the
relevant Trade Date, send Party B a Confirmation confirming
that Transaction and the Manager on behalf of Party B must
promptly then confirm the accuracy of or request the
correction of such Confirmation.
(ii) NOVATION OF MORTGAGE SWAPS. Subject to Part 5.2(e), the
novation of each Transaction to be novated pursuant to the
Master Novation Annex will occur, and thereafter be confirmed,
in accordance with the provisions of the Master Novation
Annex. The parties acknowledge that Section 15 applies to each
such novation.
(iii) SPECIFICATION OF SUB-FUND. Party B will enter into each
Transaction in its capacity as trustee of a specific Warehouse
Fund or Sub-Fund. Each Confirmation regarding a
20.
Transaction must specify the name of the Warehouse Fund or
Sub-Fund to which the Transaction relates.
(e) MASTER NOVATION ANNEX. From time to time Party A and Party B (or the
Manager on its behalf) may agree to novate one or more Transactions
from a Selling Fund to a Warehouse Fund or a Sub-Fund. Each such
novation will be governed by the Master Novation Annex annexed to this
Agreement (unless otherwise agreed by Party A and Party B, or by the
Manager on behalf of Party B). The parties acknowledge that Section 15
applies to each such novation.
(f) 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 (or the Manager on its behalf) may serve a
notice on Party A in writing requesting a reduction in the
Fixed Rate and specifying:
(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 (f)(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 (f)(ii).
(iv) If agreement is not reached in accordance with paragraph
(f)(ii), then, at the option of Party B (or the Manager on its
behalf):
21.
(b) 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 (f)(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 (f)(v) below.
(v) If paragraph (f)(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 to
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 (f) that would
result in the Fixed Rate being negative.
(viii) Upon a Transaction being varied in accordance with this
paragraph (f), that Transaction so varied shall be reconfirmed
by the parties in accordance with Part 5.2(d)(i) of this
Schedule as though it were a new Transaction.
(g) FURTHER ASSURANCES: Each party will, upon request by the other party
(the "requesting party") at the expense of the requesting party,
perform all such acts and execute all such agreements, assurances and
other documents and instruments as the requesting party reasonably
requires (and, in the case of Party B, are within the powers granted to
Party B under the Trust Deed) to assure and confirm the rights and
powers afforded, created or intended to be afforded or created, under
or in relation to this Agreement and each Transaction or other dealing
which occurs under or is contemplated by it.
(h) 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
22.
such amounts shall be expressed as positive amounts and if Y is making
the determination such amounts shall be expressed as negative amounts.
(i) 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.
(j) ADDENDA INCORPORATED: The following addendum to the Schedule to Master
Agreement of International Swaps and Derivatives Association, Inc. in
the form of the copies attached to this Agreement are deemed to be
incorporated in this Agreement:
(a) September 1991 Australian Addendum No. 1 (as amended in
September 1992 and March 1997) - Interest Rate Caps, Collars
and Floors;
(b) September 1991 Australian Addendum No. 2 (as amended in
September 1992 and March 1994 and March 1997) - Swaptions;
(c) September 1991 Australian Addendum No. 3 (as amended in
September 1992 and March 1997) - Bond Options;
(d) September 1992 Australian Addendum No. 6 - A$ Forward Rate
Agreements;
(e) September 1992 Australian Addendum No. 7 - Forward Rate Xxxx
Agreements;
(f) September 1992 Australian Addendum No. 8 - Synthetic
Agreements for Forward Exchange;
(g) September 1992 Australian Addendum No. 9 - Reciprocal Purchase
Agreements; and
(h) March 1994 Australian Addendum No. 11 - Commodity
Transactions.
(k) AUTHORISED SIGNATORY: Each party will be entitled to assume, in the
absence of any knowledge to the contrary, that any person signing any
Confirmation, notice or other written communication issued in respect
of this Agreement on behalf of a party is an Authorised Signatory of
that party.
(l) RECORDED CONVERSATIONS: Each party:
(a) consents to the electronic recording of its telephone
conversations with the other party (or any of its associated
persons) with or without the use of an automatic tone warning
device;
(b) will provide transcripts of such recordings (if any) upon
reasonable request by the other party (at the reasonable cost
of the party requesting);
23.
(c) acknowledges that such recordings and transcripts can be used
as evidence by either party in any dispute between them; and
(d) acknowledges that neither is obligated to maintain copies of
such recordings and transcripts for the benefit of the other
party.
(m) KNOWLEDGE OR AWARENESS: Subject to Section 12(a), each party will only
be considered to have knowledge or awareness of, or notice of, a thing
or grounds to believe anything by virtue of the officers of that party
or any Related Body Corporate of that party which have the day to day
responsibility for the administration or management of that party's (or
a Related Body Corporate of that party's) obligations in relation to a
Warehouse Fund or a Sub-Fund or the Transactions entered into under
this Agreement having actual knowledge, actual awareness or actual
notice of that thing, or grounds or reason to believe that thing (and
similar references will be interpreted in this way).
(n) DISCLOSURE TO RELATED BODIES CORPORATE: In relation to information
which the Manager or Party B in its capacity as trustee of a Warehouse
Fund or a Sub-Fund (the "RECIPIENT") receives from any other party to
this Agreement (the "DISCLOSURE") in relation to the Warehouse Fund or
Sub-Fund, or the trust established under the Security Trust Deed in
relation to the Sub-Fund (the "INFORMATION"), each Discloser hereby
severally authorises and consents to the Recipient making available
such Information, except to the extent that the making available of
such Information is prohibited by law (including, without limitation,
the Privacy Act), to:
(i) any Related Body Corporate of the Recipient which acts as
custodian or Security Trustee of the assets of the Warehouse
Fund or Sub-Fund or which otherwise has responsibility for the
management or administration of the Warehouse Fund or
Sub-Fund, including their respective assets;
(ii) the Recipient acting in its capacity as Manager, custodian or
servicer (as applicable) of the Warehouse Fund or Sub-Fund;
and
(iii) each Current Rating Authority in relation to the Warehouse
Fund or Sub-Fund.
Notwithstanding any other provision of this Agreement, the Recipient
will not have any liability to the Discloser or any other person for
the use, non-use, communication or non-communication of the Information
in the above manner, except to the extent to which the Recipient has an
express contractual obligation to disclose or not to disclose or to use
or not to use certain information received by it and fails to do so.
(o) NOTICES: Party A must copy the Manager any notices given by it to Party
B in respect of this Agreement.
(p) AMENDMENTS TO THIS AGREEMENT: Any amendment to this Agreement will not
be effective unless (if any Registered Stock is outstanding) Party A
and Party B have received written confirmation from the Manager that
the Manager has received confirmation from each Current Rating
Authority in relation to the Sub-Fund that the purported amendment will
not result in a reduction, qualification or withdrawal of any credit
rating then assigned by any Current Rating Authority in relation to the
Sub-Fund to the Registered Stock in relation to the Sub-Fund.
(q) PARTY A RATING:
24.
(i) PARTY A ACKNOWLEDGEMENT: Party A acknowledges that Party B
enters into each Transaction in reliance upon Party A's credit
ratings (current at the date that Transaction is entered into)
by each Rating Authority.
(ii) RATINGS DOWNGRADE
If, as a result of the reduction or withdrawal of its credit
rating by any Current Rating Authority in relation to a
Transaction, Party A does not have the same credit ratings by
those Current Rating Authorities as it did when the
Transaction was entered into and has a credit rating by a
Current Rating Authority in relation to the Transaction less
than the relevant Prescribed Rating in relation to the
Transaction, Party A must:
(1) within 30 Business Days of Party A ceasing to have
that credit rating if and while Party A has a short
term credit rating of at least A-1 or a long term
credit rating of at least A- by S&P (if S&P is a
Current Rating Authority in relation to the
Transaction) or a long term credit rating of at least
A3 by Moody's (if Xxxxx'x is a Current Rating
Authority in relation to the Transaction) or a short
term credit rating of at least F1 by Fitch (if Fitch
is a Current Rating Authority in relation to the
Transaction); or
(2) otherwise, and if sooner, within 5 Business Days of
Party A ceasing to have a short term credit rating of
at least A-1 or a long term credit rating of at least
A- by S&P (if S&P is a Current Rating Authority in
relation to the Transaction) or ceasing to have a
long term credit rating of at least A3 by Moody's (if
Xxxxx'x is a Current Rating Authority in relation to
the Transaction) or a short term credit rating of at
least F1 by Fitch (if Fitch is a Current Rating
Authority in relation to the Transaction),
(or such greater period as is agreed to in writing by the
Current Rating Authority), at its cost alone and at its
election:
(3) provided that Party A then has assigned to it a short
term credit rating of at least A-1 or long term
credit rating of at least A- by S&P (if S&P is a
Current Rating Authority in relation to the
Transaction) and a short term credit rating of at
least F1 by Fitch (if Fitch is a Current Rating
Authority in relation to the Transaction), lodge in
an Eligible Account in relation to the Transaction,
as a prepayment of its obligations in respect of the
Transaction, an amount equal to the Prepayment
Amount; or
(4) enter into an agreement novating its rights and
obligations under this Agreement in respect of the
Transaction to a replacement counterparty acceptable
to the Manager and which the Current Rating
Authorities in relation to the Transaction confirm in
writing will not result in a reduction, qualification
or withdrawal of the credit ratings then assigned by
them to the corresponding Registered Stock or
Specified Investor Securities; or
(5) enter into such other arrangements in respect of the
Transaction which are satisfactory to the Manager and
which the Current Rating Authorities in relation to
the Transaction confirm in writing will not result in
a reduction, qualification or withdrawal of the
credit ratings then assigned by them to the
corresponding Registered Stock or Specified Investor
Securities.
25.
Notwithstanding that Party A has elected to satisfy its
obligations pursuant to this Part 5.2(q)(ii) in a particular
manner, it may subsequently and from time to time vary the
manner in which it satisfies its obligations pursuant to this
Part 5.2(q)(ii) (but will not be entitled to any additional
grace period in relation to such a variation).
(iii) PREPAYMENT AMOUNT
For the purpose of this Part 5.2(q) the Prepayment Amount will
be an amount equal to the greater of the following:
(1) zero;
(2) CR (where S&P is a Current Rating Authority in
relation to the Transaction); and
(3) an amount acceptable to Moody's (where Xxxxx'x is a
Current Rating Authority in relation to the
Transaction) and Fitch (where Fitch is a Current
Rating Authority in relation to the Transaction) and
sufficient to maintain the credit ratings assigned to
the corresponding Registered Stock or Specified
Investor Securities by Xxxxx'x and Fitch, as
applicable, immediately prior to the review of Party
A's credit rating.
Where:
CR = MM + V
MM means the aggregate of the xxxx-to-market value
(whether positive or negative) of the Transaction
determined in accordance with Part 5.2(q)(iv) no
earlier than 3 Banking Days prior to the date that
the Prepayment Amount is lodged.
V means the volatility buffer, being the value
calculated by multiplying the Notional Amount of the
Transaction (as defined in the Confirmation for the
Transaction) at the most recent Distribution Date by
the relevant percentage obtained from the following
table (or such other percentages as may be specified
by S&P from time to time):
----------------------------------------------------------------------------------------
PARTY A'S S&P WHERE THE PERIOD WHERE THE PERIOD WHERE THE PERIOD
LONG TERM BETWEEN THE DATE OF BETWEEN THE DATE OF BETWEEN THE DATE OF
CREDIT RATING RECALCULATION AND RECALCULATION AND THE RECALCULATION AND THE
THE WEIGHTED WEIGHTED AVERAGE OF WEIGHTED AVERAGE OF
AVERAGE OF THE THE MATURITY DATES OF THE MATURITY DATES OF
MATURITY DATES OF THE THEN FIXED RATE THE THEN FIXED RATE
THE THEN FIXED RATE PERIODS IN RESPECT OF PERIODS IN RESPECT
PERIODS IN RESPECT THE LOANS THE SUBJECT OF THE LOANS THE
OF LOANS THE OF THE TRANSACTION IS SUBJECT OF THE
SUBJECT OF THE GREATER THAN 5 YEARS TRANSACTION IS
TRANSACTION IS LESS AND LESS THAN OR EQUAL GREATER THAN 10 YEARS
THAN OR EQUAL TO 5 TO 10 YEARS
YEARS
----------------------------------------------------------------------------------------
A+ 1.05 1.75 3.0
----------------------------------------------------------------------------------------
A 1.35 2.45 4.5
----------------------------------------------------------------------------------------
A- 1.5 3.15 6
----------------------------------------------------------------------------------------
26.
(iv) XXXX TO MARKET VALUE
Party A must calculate the xxxx-to-market value of the
Transaction by obtaining 2 bids from counterparties, with at
least the Prescribed Ratings in relation to the Transaction,
willing to provide the Transaction in the absence of Party A.
The xxxx-to-market value may be a positive or a negative
amount. A bid has a negative value if the payment to be made
is from the counterparty to Party A and has a positive value
if the payment to be made is from Party A to the counterparty.
The xxxx-to-market value is the higher of the bids (on the
basis that any bid of a positive value is higher than any bid
of a negative value).
(v) WEEKLY RECALCULATION
Party A must recalculate the Prepayment Amount (including, if
applicable, the CR and the xxxx-to-market value) on a weekly
basis. If:
(1) the recalculated Prepayment Amount is greater than
then Prepayment Balance, Party A must make an
additional prepayment in accordance with Part
5.2(q)(ii)(3) within 3 Business Days of such
recalculation so that the Prepayment Balance equals
the recalculated Prepayment Amount; or
(2) the recalculated Prepayment Amount is less than the
then Prepayment Balance, Party B must upon the
direction of the Manager withdraw an amount from the
Eligible Account referred to in Part 5.2(q)(ii)(3)
and pay it to Party A within 3 Business Days of
receiving notice of such recalculation so that the
remaining Prepayment Balance after such withdrawal
equals the recalculated Prepayment Amount.
(vii) UTILISATION
If the Prepayment Balance is applied towards an amount payable
by Party A in accordance with Section 2(e), Party A must
within 3 Business Days make an additional prepayment in
accordance with Part 5.2(q)(ii)(3) equal to the amount so
applied. All interest on the Eligible Account will accrue and
be payable monthly to Party A.
(viii) REPAYMENT
If Party A regains the credit ratings from each Current Rating
Authority in relation to the Transaction it had when it
entered into the Transaction then Party B must, upon the
direction of the Manager, repay to Party A the then Prepayment
Balance.
27.
MASTER NOVATION ANNEX
This Master Novation Annex is annexed to and forms part of the Master Agreement
dated 2000 between Commonwealth Bank of Australia as Party A, Perpetual Trustees
Australia Limited as Party B and Macquarie Securitisation Limited as Manager.
1. DEFINITIONS
In this Annex:
"NOVATION CONFIRMATION" means a confirmation in the form of novation
confirmation set out in the Schedule to this Annex or in such other
form as agreed between Party A and Party B (or the Manager on its
behalf).
"NOVATION DATE" means, in relation to a Transaction, the date agreed
by Party A and Party B (or the Manager on its behalf) as the date the
novation of that Transaction becomes effective.
"RELEVANT SELLING FUND" means, in relation to a Transaction, Party B
in its capacity as trustee of the Selling Fund from which that
Transaction is to be novated.
"RELEVANT PURCHASING FUND" means in relation to a Transaction, Party
B in its capacity as trustee of the Warehouse Fund or Sub-Fund to
which that Transaction is to be novated.
2. CONSIDERATION
Each novation of a Transaction under this Annex constitutes, without
the need for anything further, a binding agreement on the part of
each of the Relevant Selling Fund, the Relevant Purchasing Fund and
Party A that the consideration constituted by the releases and
obligations given and undertaken respectively pursuant to this Annex,
together with such other consideration as may be provided under the
Trust Deed or elsewhere, in respect of the novation of that
Transaction and any other dealing or transaction that occurs in
conjunction with that novation, comprises adequate commercial
consideration for their respective releases and obligations under
this Annex in relation to the novation of that Transaction. The
Manager represents on each Novation Date for a Transaction that
valuable consideration is being paid by the Relevant Purchasing Fund
to the Relevant Selling Fund (or visa versa) for, amongst other
things, the novation.
3. NOVATION FROM SELLING FUND TO PURCHASING FUND
3.1 RELEASE OF SELLING FUND
On and from the Novation Date for a Transaction, the Relevant Selling
Fund and Party A will have no further rights against, or obligations
to, each other in connection with that Transaction.
3.2 ASSUMPTION BY PURCHASING FUND
On the Novation Date for a Transaction, the Relevant Purchasing Fund
is deemed to undertake to Party A that it will duly observe and
perform and totally assume all the obligations of the
28.
Relevant Selling Fund under that Transaction, as if the Relevant
Purchasing Fund had been named as a party to that Transaction instead
of the Relevant Selling Fund.
3.3 ACKNOWLEDGEMENT BY PARTY A
On the Novation Date for a Transaction, Party A is deemed to
undertake and acknowledge to the Relevant Purchasing Fund that the
Relevant Purchasing Fund is on and from the Novation Date entitled to
all the rights and entitlements of the Relevant Selling Fund under
that Transaction.
3.4 REFERENCES TO PARTY B
On and from the Novation Date for a Transaction, every reference in
the Confirmation for that Transaction to "Party B" or the Relevant
Selling Fund is deemed to be a reference to the Trustee in its
capacity as trustee of the Relevant Purchasing Fund.
4. REPRESENTATIONS AND WARRANTIES
On the Novation Date for a Transaction, the Manager and Party A are
deemed to represent and warrant to the Relevant Purchasing Fund as at
that date, that:
(a) (DUE PERFORMANCE): each of the Relevant Selling Fund, in
the case of the Manager, and Party A, in the case of Party
A, has duly and punctually performed and observed all the
terms and conditions of that Transaction on its part to be
performed and observed;
(b) (NO DEFAULT): to the best of its knowledge and belief
there is no default or any event which is, or with the
lapse of time or expiry of notice or at the election of
any person could become, an Event of Default or a
Termination Event in relation to that Transaction;
(c) (NO AMENDMENT): other than as disclosed in writing prior
to that Novation Date, the terms of that Transaction are
fully disclosed in its Confirmation and have not been
supplemented, amended or varied; and
(d) (NO CROSS-CLAIMS): neither the Relevant Selling Fund, in
the case of the Manager, nor Party A, in the case of Party
A, has made any claim, cross-claim, cross-demand or
exercised any right of set-off against the other in
respect of that Transaction other than in accordance with
the terms of that Transaction.
5. AGREEMENT AND CONFIRMATION
5.1 AGREEMENT TO NOVATE
An agreement to novate a Transaction under this Annex becomes binding
when Party A and Party B (or the Manager on its behalf) agree
(whether orally or otherwise) the Novation Date for that Transaction
and the Warehouse Fund or Sub-Fund to which it will be novated. Party
A must agree to novate a Transaction under this Annex if a Security
Trust Deed is in place for the Relevant Purchasing Fund, provided
always that the Relevant Purchasing Fund has issued Registered Stock
or Specified Investor Securities that are rated no lower at the
Novation Date than "A-1+" or "AAA" by S&P, or the equivalent ratings
thereof by Moodys or Fitch. Party A is under no obligation whatsoever
to agree to novate a Transaction under this Annex to a Warehouse
Fund.
29.
5.2 NOVATION CONFIRMATIONS
As soon as practicable after an agreement to novate has been entered
into in accordance with Section 5.1 of this Annex, Party B (or the
Manager on its behalf) must issue to Party A, a Novation
Confirmation. Upon receipt of a Novation Confirmation, Party A must
promptly either:
(a) confirm the accuracy of the Novation Confirmation by
counter-signing and returning that Novation Confirmation
to the Manager; or
(b) request the correction of that Novation Confirmation.
30.
SCHEDULE TO THE MASTER NOVATION ANNEX
NOVATION CONFIRMATION
[Date]
TO: Commonwealth Bank of Australia, ACN 123 123 124 ("PARTY A")
FROM: PERPETUAL TRUSTEES AUSTRALIA LIMITED, ACN 000 000 000 ("PARTY B")
NOVATION CONFIRMATION
The parties refer to the Master Agreement made between Party A, Party B and
Macquarie Securitisation Limited (the "MASTER AGREEMENT"). Unless the context
indicates a contrary intention, terms defined in the Master Agreement have the
same meaning where used in this Novation Confirmation.
For the purposes of this Novation Confirmation:
(a) a reference to the Relevant Selling Fund is a reference to [Name of
Selling Fund];
(b) a reference to the Relevant Purchasing Fund is a reference to [Name
of Warehouse Fund or Sub-Fund]; and
(c) a reference to the Novation Date is a reference to [Insert Date].
The parties hereby confirm and agree that as of the Novation Date each of the
Transactions (the "NOVATED TRANSACTIONS") referred to in the Schedule to this
Novation Confirmation is novated from the Relevant Selling Fund to the Relevant
Purchasing Fund in accordance with the terms of the Master Novation Annex.
SCHEDULE
NOVATED TRANSACTIONS
[SERIAL NO. TRADE DATE FACILITY NO. NOTIONAL FIXED SWAP CURRENT
AMOUNT RATE FLOATING RATE]
[Aggregate Notional Amount:
Aggregate Fixed Swap Rate (being a weighted average calculated by reference to
the Notional Amount of each Novated Transaction):]
This Novation Confirmation supplements and forms part of the Master Agreement.
Confirmed as of the date first above written.
31.
For and on behalf of the Manager as attorney for Party B
---------------------------------------- ----------------------------------
(Authorised Signatory) (Authorised Signatory)
For and on behalf of Party A
---------------------------------------- ----------------------------------
(Authorised Signatory) (Authorised Signatory)
32.
FIXED - FLOATING INTEREST RATE SWAP CONFIRMATION
------------------------------------------------
PRO-FORMA ONLY
--------------
Commonwealth Bank of Australia
ACN 123 123 124
COMMONWEALTH BANK OF AUSTRALIA
Confirmations Ph: (00) 0000 0000
Facsimile : (00) 0000 0000
Rate Set Enq Ph : (00) 0000 0000
Settlements Ph: (00) 0000 0000
[DATE]
Perpetual Trustees Australia Limited as trustee of the PUMA Global Trust No. [ ]
c/- Macquarie Securitisation Limited
Xxxxx 00, 00 Xxxx Xxxxxx
Xxxxxx XXX 0000
Fax Number:
Attn:
SWAP TRANSACTION
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
The definitions and provisions contained in the 1991 ISDA Definitions (as
supplemented by the 1998 Supplement), as published by the International Swaps
and Derivatives Association, Inc., are incorporated into this Confirmation. In
the event of any inconsistency between those definitions and provisions and this
Confirmation, this Confirmation will govern.
1. The Confirmation supplements, forms part of, and is subject to, the Master
Agreement dated as of 13 October 2000, as amended and supplemented from time to
time (the "Agreement"), between Commonwealth Bank of Australia, Perpetual
Trustees Australia Limited (as trustee of the PUMA Fund) ("PTAL") and Macquarie
Securitisation Limited ("MSL"). All provisions contained in the Agreement govern
this Confirmation except as expressly modified below.
2. This confirmation is signed by MSL as attorney for and on behalf of PTAL as
trustee of the PUMA Global Trust No. [ ] pursuant to Part 5.2 (c) of the Master
Agreement. The Transaction is entered into by PTAL in its capacity as trustee of
the PUMA Global Trust No. [ ].
3. The terms of the particular Transaction to which this Confirmation relates
are as follows:-
Transaction ID :
Notional Amount :
Trade Date :
Effective Date :
Termination Date :
-2-
FIXED AMOUNTS
Fixed Rate Payer : PTAL as trustee of the PUMA Global Trust No. [ ] OR
Commonwealth Bank of Australia (delete as appropriate)
Fixed Rate Payer
Payment Dates : the [ ] day of each of [ ], [ ] , [ ] and [ ]
Fixed Rate :
Fixed Rate Day
Count Fraction :
FLOATING AMOUNTS
Floating Rate Payer : PTAL as trustee of the PUMA Global Trust No. [ ] OR
Commonwealth Bank of Australia (delete as appropriate)
Floating Rate Payer
Payment Dates : the [ ] day of each of [ ], [ ] , [ ] and [ ]
Floating Rate Day
Count Fraction :
Floating Rate Option :
Designated Maturity :
Reset Dates :
Business Days
for AUD Currency :
Calculation Agent : PTAL as trustee of the PUMA Global Trust No. [ ] OR
Commonwealth Bank of Australia
-3-
ACCOUNT DETAILS
4. OFFICES
(a) The office of COMMONWEALTH BANK OF AUSTRALIA for the Transaction is Sydney
(b) The office of PTAL as trustee of the PUMA Global Trust No. [ ] for
the Transaction is c/ MSL, Xxxxx 00, 00 Xxxx Xxxxxx Xxxxxx XXX
0000:
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this confirmation enclosed for that
purpose and returning it to us.
Yours faithfully
COMMONWEALTH BANK OF AUSTRALIA
By:
Name :
Title : Assistant Manager, Derivatives
Confirmed as of the date first written:-
By : PTAL AS TRUSTEE OF THE PUMA GLOBAL TRUST NO. [ ]
Name :
Title :
