(MULTICURRENCY - CROSS BORDER)
ISDA
INTERNATIONAL SWAPS & DERIVATIVES ASSOCIATION, INC.
MASTER AGREEMENT
dated as of 13 June 1996
▇▇▇▇▇▇ GUARANTY TRUST PERPETUAL TRUSTEES AUSTRALIA
COMPANY OF NEW YORK, LONDON LIMITED ACN ▇▇▇ ▇▇▇ ▇▇▇ in its capacity as
OFFICE trustee of various Warehouse Funds and Sub-
Funds from time to time established under the
Trust Deed
have entered and/or anticipate entering into one or more transactions (each a
"TRANSACTION") that are or will be governed by this Master Agreement, which
includes the schedule (the "SCHEDULE"), and the documents and other confirming
evidence (each a "CONFIRMATION") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:-
1. INTERPRETATION
(a) DEFINITIONS. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) INCONSISTENCY. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the
Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purpose of the relevant
Transaction.
(c) SINGLE AGREEMENT. All Transactions are entered into in reliance on the fact
that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "AGREEMENT"), and the
parties would not otherwise enter into any Transactions.
2. OBLIGATIONS
(a) GENERAL CONDITIONS
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of
this Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other
than by payment), such delivery will be made for receipt on the due
date in the manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or elsewhere in
this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential
Event of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination
Date in respect of the relevant Transaction has occurred or been
effectively designated and (3) each other applicable condition
precedent specified in this Agreement.
(b) CHANGE OF ACCOUNT. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to
which such change applies unless such other party gives timely notice of a
reasonable objection to such change.
(c) NETTING. If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party
by whom the larger aggregate amount would have been payable to pay to the
other party the excess of the larger aggregate amount over the smaller
aggregate amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same
date in the same currency in respect of such Transactions, regardless of
whether such amounts are payable in respect of the same Transaction. The
election may be made in the Schedule or a Confirmation by specifying that
subparagraph (ii) above will not apply to the Transactions identified as
being subject to the election, together with the starting date (in which
case subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for
different groups of Transactions and will apply separately to each pairing
of Offices through which the parties made and receive payments or
deliveries.
2
(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);
3
(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
4
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
5
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
6
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;
7
(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);
8
(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
9
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));
10
(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),
11
(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
12
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax
Event Upon Merger occurs and the Burdened Party is not the
Affected Party,
either party in the case of an Illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in the case of a
Tax Event or an Additional Termination Event if there is more than
one Affected Party, or the party which is not the Affected Party in
the case of a Credit Event Upon Merger or an Additional Termination
Event if there is only one Affected Party may, by not more than 20
days notice to the other party and provided that the relevant
Termination Event is then continuing, designate a day not earlier
than the day such notice is effective as an Early Termination Date
in respect of all Affected Transactions.
(c) EFFECT OF DESIGNATION
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the
date so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or
2(e) in respect of the Terminated Transactions will be required to
be made, but without prejudice to the other provisions of this
Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) CALCULATIONS
(i) STATEMENT. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and
will provide to the other party a statement:
(1) showing, in reasonable detail, such calculations (including
all relevant quotations and specifying any amount payable
under Section 6(e)); and
(2) giving details of the relevant account to which any amount
payable to it is to be paid. In the absence of written
confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) PAYMENT DATE. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an
Early Termination Date which is designated or occurs as a result of
an Event of Default) and on the day which is two Local Business Days
after the day on which notice of the amount payable is effective (in
the case of an Early Termination Date which is designated as a
result of a Termination Event). Such amount will be paid
13
together with (to the extent permitted under applicable law)
interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount is paid, at
the Applicable Rate. Such interest will be calculated on the basis
of daily compounding and the actual number of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss" , and a
payment method, either the "First Method" or the "Second Method". If the
parties fail to designate a payment measure or payment method in the
Schedule, it will be deemed that "Market Quotation" or the "Second Method",
as the case may be, shall apply. The amount, if any, payable in respect of
an Early Termination Date and determined pursuant to this Section will be
subject to any Set-off.
(i) EVENTS OF DEFAULT. If the Early Termination Date results from an
Event of Default:-
(1) FIRST METHOD AND MARKET QUOTATION. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of:
(A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of
the Unpaid Amounts owing to the Non-defaulting Party
over
(B) the Termination Currency Equivalent of the Unpaid
Amounts owing to the Defaulting Party.
(2) FIRST METHOD AND LOSS. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party,
if a positive number, the Non-defaulting Party's loss in
respect of this Agreement.
(3) SECOND METHOD AND MARKET QUOTATION. If the Second Method and
Market Quotation apply, an amount will be payable equal to:
(A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of
the Unpaid Amounts owing to the Non-defaulting Party
less
(B) the Termination Currency Equivalent of the Unpaid
Amounts owing to the Defaulting Party. If that amount
is a positive number, the Defaulting Party will pay it
to the Non-defaulting Party; if it is a negative
number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
14
(4) SECOND METHOD AND LOSS. If the Second Method and Loss apply,
an amount will be payable equal to the Non-defaulting
Party's Loss in respect of this Agreement. If that amount is
a positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the Non
defaulting Party will pay the absolute value of that amount
to the Defaulting Party.
(ii) TERMINATION EVENTS. If the Early Termination Date results from a
Termination Event:-
(1) ONE AFFECTED PARTY. If there is one Affected Party, the
amount payable will be determined in accordance with Section
6(e)(i)(3), if Market Quotation applies, or Section
6(e)(i)(4), if Loss applies, except that, in either case,
references to the Defaulting Party and to the Non-defaulting
Party will be deemed to be references to the Affected Party
and the party which is not the Affected Party, respectively,
and, if Loss applies and fewer than all the Transactions are
being terminated, Loss shall be calculated in respect of all
Terminated Transactions.
(2) TWO AFFECTED PARTIES. If there are two Affected Parties:-
(A) If Market Quotation applies, each party will determine
a Settlement Amount in respect of the Terminated
Transactions, and an amount will be payable equal to:
(I) the sum of (a) one-half of the difference between
the Settlement Amount of the party with the higher
Settlement Amount ("X") and the Settlement Amount
of the party with the lower Settlement Amount
("Y") and (b) the Termination Currency Equivalent
of the Unpaid Amounts owing to X less
(II) the Termination Currency Equivalent of the Unpaid
Amounts owing to Y; and
(B) If Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable
equal to one-half of the difference between the Loss of
the party with the higher Loss ("X") and the loss of
the party with the lower Loss ("Y")
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination"
applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are appropriate
and permitted by law to reflect any payments or
15
deliveries made by one party to the other under this Agreement (and
retained by such other party) during the period from the relevant
Early Termination Date to the date for payment determined under
Section 6(d)(ii).
(iv) PRE-ESTIMATE. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable
pre-estimate of loss and not a penalty. Such amount is payable for
the loss of bargain and the loss of protection against future risks
and except as otherwise provided in this Agreement neither party
will be entitled to recover any additional damages as a consequence
of such losses.
7. TRANSFER
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of
the other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of
all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement);
(b) and a party may make such a transfer of all or any part of its interest in
any amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. CONTRACTUAL CURRENCY
(a) PAYMENT IN THE CONTRACTUAL CURRENCY. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that
payment (the "CONTRACTUAL CURRENCY"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the
Contractual Currency will not be discharged or satisfied by any tender in
any currency other than the Contractual Currency, except to the extent such
tender results in the actual receipt by the party to which payment is owed,
acting in a reasonable manner and in good faith in converting the currency
so tendered into the Contractual Currency, of the full amount in the
Contractual Currency of all amounts payable in respect of this Agreement.
If for any reason the amount in the Contractual Currency so received falls
short of the amount in the Contractual Currency payable in respect of this
Agreement, the party required to make the pavement will, to the extent
permitted by applicable law, immediately pay such additional amount in the
Contractual Currency as may be necessary to compensate for the shortfall.
If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount
of such excess.
16
(b) JUDGMENTS. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is
rendered:
(i) for the payment of any amount owing in respect of this Agreement;
(ii) for the payment of any amount relating to any early termination in
respect of this Agreement; or
(iii) in respect of a judgment or order of another court for the payment
of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which
such party is entitled pursuant to the judgment or order, will be
entitled to receive immediately from the other party the amount of
any shortfall of the Contractual Currency received by such party as
a consequence of sums paid in such other currency and will refund
promptly to the other party any excess of the Contractual Currency
received by such party as a consequence of sums paid in such other
currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual
Currency is converted into the currency of the judgment or order for
the purposes of such judgment or order and the rate of exchange at
which such party is able, acting in a reasonable manner and in good
faith in converting the currency received into the Contractual
Currency, to purchase the Contractual Currency with the amount of
the currency of the judgment or order actually received by such
party. The term "rate of exchange" includes, without limitation, any
premiums and costs of exchange payable in connection with the
purchase of or conversion into the Contractual Currency.
(c) SEPARATE INDEMNITIES. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and
independent causes of action, will apply notwithstanding any indulgence
granted by the party to which any payment is owed and will not be affected
by judgment being obtained or claim or proof being made for any other sums
payable in respect of this Agreement.
(d) EVIDENCE OF LOSS. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
9. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and
supersedes all oral communication and prior writings with respect thereto.
(b) AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing
evidenced by a facsimile transmission) and executed by each of the parties
or confirmed by an exchange of telexes or electronic messages on an
electronic messaging system.
17
(c) SURVIVAL OF OBLIGATIONS. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive
the termination of any Transaction.
(d) REMEDIES CUMULATIVE. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative
and are not exclusive of any rights, powers, remedies and privileges
provided by law.
(e) COUNTERPARTS AND CONFIRMATIONS.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be deemed
an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether
orally or otherwise). A Confirmation shall be entered into as soon
as practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange
of telexes or by an exchange of electronic messages on an electronic
messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that
any such counterpart, telex or electronic message constitutes a
Confirmation.
(f) NO WAIVER OF RIGHTS. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege
will not be presumed to preclude any subsequent or further exercise, of
that right, power or privilege or the exercise of any other right, power or
privilege.
(g) HEADINGS. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken
into consideration in interpreting this Agreement.
10. OFFICES; MULTIBRANCH PARTIES
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home
office represents to the other party that, notwithstanding the place of
booking office or jurisdiction of incorporation or organisation of such
party, the obligations of such party are the same as if it had entered into
the Transaction through its head or home office. This representation will
be deemed to be repeated by such party on each date on which a Transaction
is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
18
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office
through which it makes and receives payments or deliveries with respect to
a Transaction will be specified in the relevant Confirmation.
11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other
party from and against all reasonable out-of-pocket expenses, including
legal fees and Stamp Tax, incurred by such other party by reason of the
enforcement and protection of its rights under this Agreement or any Credit
Support Document to which the Defaulting Party is a party or by reason of
the early termination of any Transaction, including, but not limited to,
costs of collection.
12. NOTICES
(a) EFFECTIVENESS. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice
or other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:-
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answer back is
received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form
(it being agreed that the burden of proving receipt will be on the
sender and will not be met by a transmission report generated by the
sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt,
as applicable, is not a Local Business Day or that communication is
delivered (or attempted) or received, as applicable, after the close of
business on a Local Business Day, in which case that communication shall be
deemed given and effective on the first following day that is a Local
Business Day.
19
(b) CHANGE OF ADDRESSES. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details
at which notices or other communications are to be given to it.
13. GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) JURISDICTION. With respect to any suit, action or proceedings relating to
this Agreement ("PROCEEDINGS"), each party irrevocably:-
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State Of New York and the United
States District Court located in the Borough of Manhattan in New
York City if this agreement is expressed to be governed by the laws
of the State of New York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim
that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such
Proceedings, that such court does not have any jurisdiction over
such party.
Nothing in this Agreement precludes either party from bringing Proceedings
in any other jurisdiction (outside , if this Agreement is expressed to be
governed by English law, the Contracting States, as defined in Section 1(3)
of the Civil Jurisdiction and Judgments ▇▇▇ ▇▇▇▇ 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.
▇▇▇▇▇▇ Guaranty Trust Company of
New York, London Office (Name of Party)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇ Name:
Title: Vice President Title:
Date 7 June 1996 Date:
Signed in my presence for and on behalf of
Perpetual Trustees Australia Limited (A.C.N. 000
431 827) by its attorneys ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 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 19 October 1995
(Registration No. Book 4113. No. 1000) and that
he/she has no notice of the revocation of his her
powers.
/s/ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Signature of Witness Signature of Attorney
▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
Full name of Witness Signature of Attorney
28
THE PUMA FUND
Master Agreement
DATE:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, LONDON OFFICE
Party A
PERPETUAL TRUSTEES AUSTRALIA LIMITED
Party B
▇▇▇▇▇▇▇ ▇▇▇
Solicitors
Levels 27-35
▇▇.▇ ▇'▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Ref: 218
Schedule
to the
MASTER AGREEMENT
dated as of
between
▇▇▇▇▇▇ GUARANTY TRUST and PERPETUAL TRUSTEES AUSTRALIA
COMPANY OF NEW YORK, LONDON LIMITED, ACN ▇▇▇ ▇▇▇ ▇▇▇, IN ITS OFFICE CAPACITY AS
OFFICE TRUSTEE OF VARIOUS WAREHOUSE FUNDS AND
SUB-FUNDS FROM TIME TO TIME ESTABLISHED UNDER
THE TRUST DEED
("PARTY A") ("PARTY B")
PART 1: TERMINATION PROVISION
In this Agreement:
(a) "SPECIFIED ENTITY" in relation to:
(i) Party A, is not applicable; and
(ii) Party B, is not applicable.
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14.
(c) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v) Section 5(b)(iii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iv)
Section 5(a)(iv)
(ii) The following provisions of Section 5 will not apply to Party B:
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iii)
Section 5(a)(iv) Section 5(a)(vii) Section 5(b)(iv)
(d) The "AUTOMATIC EARLY TERMINATION" provisions in Section 6(a) will not apply
to Party A nor to Party B.
(e) "PAYMENT ON EARLY TERMINATION". For the purposes of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(f) "TERMINATION CURRENCY" means Australian dollars.
(g) ADDITIONAL TERMINATION EVENT" will not apply.
PART 2: TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant government revenue authority, of any Relevant Jurisdiction to
make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on:
(i) the accuracy of any representation made by the other party pursuant
to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of any
document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement,
PROVIDED THAT it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice to
its legal or commercial position.
(b) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement:
Party A makes the following representation:
The following representation will apply with respect to Transactions for
which Party A is acting through its London Office:
It is entering into the Transaction in the ordinary course of its trade as,
and is, either (1) a recognised UK bank or (2) a recognised UK swaps dealer
(in either case (1) or (2), for purposes of the United Kingdom Inland
Revenue extra statutory concession C17 on interest and currency swaps dated
March 14, 1989), and will bring into account payments made and received in
respect of the Transaction in computing its income for United Kingdom tax
purposes.
Party B makes the following representation:
It is an Australian resident and does not derive the payments under this
Agreement in part or whole in carrying on business in a country outside
Australia at or through a permanent establishment of itself in that
country.
PART 3: DOCUMENTS TO BE DELIVERED
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver the following documents as applicable:
(a) Tax forms, documents or certificates to be delivered are:
PARTY REQUIRED TO DELIVER Form/Document/ Date by which document to be
DOCUMENT Certificate delivered
Parties A & B Any document or certificate As soon as reasonably
reasonably required or practicable following a
reasonably requested by a request by other party.
party in connection with its
obligations to make a payment
under this Agreement which
would enable that party to
make the payment free from any
deduction or withholding for
or on account of Tax or as
would reduce the rate at which
deduction or withholding for
or on account of Tax is
applied to that payment.
(b) Other documents to be delivered are:
PARTY REQUIRED TO DELIVER Form/Document/ Date by which document to be
DOCUMENT Certificate delivered
Parties A & B A list of authorised At the execution of this
signatories for the party and Agreement and thereafter
evidence satisfactory in form promptly upon any change in
and substance to the other 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.
Parties A & B A legal opinion as to the The date of this Agreement.
validity and enforceability
of that party's obligations
under this Agreement in
form and substance (and
issued by legal counsel)
reasonably acceptable to
to other party.
Party A A copy of the most recent Upon reasonable request by
annual report of the party Party B.
containing consolidated
financial statements,
certified without
qualification by
independent public
accountants and such
other public information
respecting its condition or
operations, financial or
otherside, as the other
party may reasonably
request from time to time.
Party B Copies of any reports or Upon reasonable request by
accounts relating to any Party A subject to not
relevant Warehouse Fund being obliged to deliver
or Sub-Fund as are any document if to do so
produced for distribution would breach or infringe
to Investors or any law or legally binding
presentation to the Board obligation or restraint.
of Directors of Party B or
the Manager and such
other information in Party
B's possession and control
regarding the financial
condition and business
operations of any relevant
Warehouse Fund or Sub-
Fund as Party A may
reasonably require.
Party B A copy of the Trust Deed. The date of this Agreement.
Party B A copy of any document Promptly upon any such
amending or varying the terms document becoming effective in
of the Trust Deed. accordance with its terms.
Party B A copy of the Security Trust On or prior to the date of the
Deed relating to a Warehouse first Transaction made under
Fund or a Sub-Fund. this Agreement relating to
that Warehouse Fund or
Sub-Fund.
All documents delivered under this Part 3(b) are covered by Section 3(d)
representation.
PART 4: MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this Agreement:
Address for notices or communications to PARTY A:
Address: ▇▇▇▇▇▇ Guaranty Trust Company of New York
London Office
PO Box 161
60 Victoria Embankment
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: Global Swaps Group
Telex No: 896 631Answerback: MGT-G
Facsimile No: 0171 325 3862 or 0171 325 3863
Address for notices or communications to PARTY B CARE OF THE MANAGER:
Address: ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: The Manager: PUMA Programme
Telex No: 122246 Answerback: MACBNK
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇▇
With a copy to Party B itself at:
Address: ▇▇▇▇▇ ▇, ▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Manager - Mortgage Securitisation
Facsimile No: (▇▇) ▇▇▇ ▇▇▇▇
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: ▇▇▇▇▇▇ Guaranty Trust Company of
New York
Sydney Office
▇▇▇▇▇ ▇▇
▇▇. ▇ ▇'▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Party B appoints as its Process Agent: not applicable.
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is a Multibranch Party but will only act through its London Office.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is the Manager (acting on behalf
of Party B), unless otherwise specified in a Confirmation in relation to
the relevant Transaction.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
(i) In relation to PARTY A: nil.
(ii) In relation to PARTY B and each Warehouse Fund and each Sub-Fund: the
Security Trust Deed relating to that Warehouse Fund or Sub-Fund.
(g) CREDIT SUPPORT PROVIDER.
(i) In relation to PARTY A: nil.
(ii) In relation to PARTY B: nil.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws in force in the State of New South Wales and each
party submits to the non-exclusive jurisdiction of the courts of that state
without reference to choice of law doctrine. The provisions of Section
13(b) will apply (mutatis mutandis) to this choice of governing law and
submission to jurisdiction.
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this Agreement
will not apply to any Transaction.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement. However, for the purposes of section 3(c) each of Party A and
Party B are deemed not to have any Affiliates.
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 paragraphs (iv) and (v) in Section 2(a) immediately after
Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not apply
to a payment due to be made to a party if it has satisfied all
its payment and delivery obligations under Section 2(a)(i) and
has no future payment or delivery obligations, whether absolute
or contingent under Section 2(a)(i).
(v) Where:
(1) payments are due pursuant to Section 2(a)(i) by Party A to
Party B (the "PARTY A PAYMENT") and by Party B to Party A
(the "PARTY B PAYMENT") on the same day; and
(2) the Security Trust Deed applicable to Party B's
obligations and entitlement referred to in Section
2(a)(v)(1) has become, and remains at that time,
enforceable,
then Party A's obligation to make the Party A payment to Party
B shall be subject to the condition precedent (which shall be
an "applicable condition precedent" for the purpose of Section
2(a)(iii)(3)) that Party A first receives either:
(3) the Party B payment; or
(4) confirmation from Party B's bank that it holds irrevocable
instructions to effect payment of the Party B payment and
that funds are available to make that payment.";
(iv) 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)(1) 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)".
(c) ADDITIONAL REPRESENTATIONS: In Section 3 add the following immediately
after paragraph (f):
"(g) NON ASSIGNMENT. It has not assigned (whether absolutely, in equity or
otherwise) or declared any trust over or given any charge over any of
its rights under this Agreement or any Transaction (other than, in
respect of Party B, the Warehouse Funds or Sub-Funds created pursuant
to the Trust Deed and the charge given pursuant to a Security Trust
Deed).
(h) CONTRACTING AS PRINCIPAL. Subject to Section 15, each existing
Transaction has been entered into by that party:
(i) in the case of Party A, as principal and not otherwise; or
(ii) in the case of Party B, in its capacity as trustee of a Warehouse
Fund or Sub-Fund constituted under the Trust Deed and not
otherwise."
(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) EVENT OF DEFAULT: Delete Section 5(a)(i) and insert instead:
"(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied at or before
10.00 am on the tenth Local Business Day after notice of such failure
is given to the party;"
(f) TAX EVENT: Section 5(b)(ii) is amended by:
(i) deleting the words ", or there is a substantial likelihood that it
will," where they appear in that Section; and
(ii) deleting the words "(1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii)
or 6(e)) or (2)" where they appear in that section.
(g) TERMINATION: In Section 6:
(i) Add the following sentence at the end of the first paragraph of
Section 6(b)(ii):
"However, if Party B is the Affected Party, then Party B will only be
obliged to make such efforts to effect a transfer in accordance with
this Section 6(b)(ii) as it is able to make by application of funds
available for such application in accordance with the provisions of
the Trust Deed."
(ii) add the following sentence at the end of the second paragraph of
Section 6(b)(ii):
"However, if Party A is that other party it must, if so requested by
Party B, use reasonable efforts to make such a transfer to an
Affiliate (as that expression is defined in Section 14) at the expense
of Party B.";
(iii) Add the following sentence at the end of the last paragraph of
Section 6(b)(ii):
"However, consent may be withheld if the other party considers that
its credit exposure to the transferor would be adversely affected by
the transfer."
(iv) Delete the last sentence of the first paragraph in Section 6(e).
(h) TRANSFER: Section 7 is deleted and replaced with the following:
"7. TRANSFER
(a) Neither the interests nor obligations of either party in or under this
Agreement (including any Transaction) are capable of being assigned or
transferred (whether at law, in equity or otherwise and whether by way
of security or otherwise), charged or the subject of any trust or
other fiduciary obligation (other than, in respect of Party B, the
trusts and fiduciary obligations created pursuant to the Trust Deed
and any charge created by a Security Trust Deed). Any action by a
party which purports to do any of these things is void.
(b) Nothing in this Section 7:
(i) restricts the parties agreeing to a novation of the interests and
obligations of a party in or under this Agreement (including any
Transaction) including, but not limited to, for the purposes of
giving effect to a transfer under section 6(b)(ii);
(ii) restricts a transfer by a party of all or any part of its
interest in any amount payable to it from a Defaulting Party
under Section 6(e);
(iii) restricts a transfer by a party after the other party has agreed
to the variation of this Agreement to the extent necessary to
permit such transfer; or
(iv) restricts a transfer by a Security Trustee pursuant to the
exercise of its powers under a Security Trust Deed.
(c) Each party acknowledges that the other party enters into this
Agreement and each Transaction on the basis that this Section 7 must
be strictly observed and is fundamental to the terms of this Agreement
(including each Transaction)."
(i) 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(f)
of the Schedule), no".
(j) NOTICES: In Section 12:
(i) delete the following words where they appear on lines 2 and 3 of
Section 12(a):
"(except that a notice or other communication under Sections 5 or 6
may not be given by facsimile transmission or electronic messaging
system)"; and
(ii) delete paragraph (iii) of Section 12(a) and insert instead:
"(iii) if sent by facsimile, on production of a transmission report by
the machine from which the facsimile was sent which indicates
that the facsimile was sent in its entirety to the facsimile
number of the recipient notified for the purpose of this Section
unless the recipient notifies the sender within 24 hours of the
facsimile being sent that the facsimile was not received in its
entirety in legible form;".
(k) DEFINITIONS: In Section 14:
(i) Section 14 is renumbered as Section 14(a).
(ii) delete the definition "Affected Transactions" and insert the
following:
"AFFECTED TRANSACTIONS" means:
(a) with respect to a Termination Event that is a Tax Event where
Party A is the Affected Party, all Transactions affected by the
occurrence of such Termination Event; and
(b) with respect to any other Termination Event, all Transactions."
(iii) delete the following words from the definition of "Default Rate":
"plus 1% per annum".
(iv) the definition of "MARKET QUOTATION" is replaced with:
""MARKET QUOTATION" means, with respect to one or more Terminated
Transactions and a party making the determination, an amount
determined on the basis of quotations from Reference Market-makers.
Each quotation will take into account any existing Credit Support
Document with respect to the obligations of such party.
Each quotation will be determined as either:
(1) the amount, if any, that would be paid to such party (expressed
as a negative number) or by such party (expressed as a positive
number) in consideration of an agreement between such party and
the quoting Reference Market-maker to enter into a transaction
(the "REPLACEMENT TRANSACTION") that would have the effect of
preserving for such party the economic equivalent of the Future
Obligations of both parties; or
(2) the present value (calculated using commercially reasonable
discount rates) of the difference or the differences on each
Scheduled Payment Date that would have occurred after the Early
Termination Date between:
(a) the Future Obligations of the other party to the Terminated
Transaction or Terminated Transactions; and
(b) the obligations that a quoting Reference Market-maker would
have under a transaction ("REPLACEMENT TRANSACTION") that
would preserve for the party making the determination that
party's Future Obligations, with such present value being
positive if (a) is greater than (b) and negative if (a) is
less than (b).
The Replacement Transaction would be subject to such documentation as
such party and the Reference Market-maker may, in good faith, agree.
The party making the determination (or its agent) will request each
Reference Market-maker to provide its quotation to the extent
reasonably practicable as of the same day and time (without regard to
different time zones) on or as soon as reasonably practicable after
the relevant Early Termination Date. The day and time as of which the
quotation or quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e),
and, if each party is so obliged, after consultation with the other.
If more than 3 quotations are provided, the Market Quotation will be
the arithmetic mean of the quotations, without regard to the
quotations having the highest and lowest values. If exactly 3 such
quotations are provided, the Market Quotation will be the quotation
remaining after disregarding the highest and lowest quotations. For
this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If
fewer than 3 quotations are provided, it will be deemed that the
Market Quotation in respect of such Terminated Transaction or group of
Terminated Transactions cannot be determined."
(v) insert the following new definitions:
""FUTURE OBLIGATIONS" means all payment or delivery obligations
(whether the underlying obligation was absolute or contingent and
assuming the satisfaction of each applicable condition precedent) of a
party under section 2(a)(i) in respect of a Terminated Transaction or
group of Terminated Transactions, that would, but for the occurrence
of the relevant Early Termination Date, have been required after that
date. (For this purpose, Unpaid Amounts in respect of the Terminated
Transaction or group of Terminated Transactions are to be excluded
but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming
satisfaction of each applicable condition precedent) after that Early
Termination Date is to be included).
"MANAGER" means the "Manager" from time to time under the Trust Deed,
which Manager is at the date of this Agreement PUMA Management
Limited, ACN 003 297 336 of ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇.
"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."
(vi) Insert the following new Section 14(b) and (c) 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
have the same meaning where used in this Agreement."
(l) TRUSTEE PROVISIONS: Insert the following new Section 15 after Section 14:
"15. CAPACITY OF PARTY B AND SEGREGATION OF FUNDS
(a) All provisions of this Agreement shall have effect and be applied
subject to this Section 15.
(b) For the purposes of this Section 15:
(i) "ASSETS" includes all assets, property and rights real or
personal of any nature whatsoever; and
"OBLIGATIONS" means all obligations and liabilities of
whatsoever kind undertaken or incurred by or devolving upon
Party B under or in respect of this Agreement, or any deed,
agreement, confirmation or other instrument collateral or
supplemental herewith or given or entered into pursuant
hereto; and
(ii) a reference to fraud, negligence, default or breach by Party
B includes a reference to any fraud, negligence, default or
breach by any officer or employee of Party B.
(c) Party B enters this Agreement only as trustee of the Fund and,
notwithstanding anything herein contained, the other parties
hereto acknowledge and declare that the Obligations are
undertaken or incurred by Party B severally in its capacity as
trustee of each Warehouse Fund and each Sub-Fund on behalf of
which it enters Transactions hereunder and, accordingly, except
for Party B's liability resulting from Party B's own fraud,
negligence or wilful default in performing its obligations under
this Agreement or its own breach of the Trust Deed, the recourse
of Party A hereto against Party B in respect of any Obligation is
limited severally to Party A's right to recover under the
Security Trust Deed relating to the Warehouse Fund or Sub-Fund in
respect of which that Obligation was undertaken or incurred.
(d) Without limiting the generality of Section 15(c), the provisions
of this Agreement shall have effect severally in respect of each
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;
(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(d)(iv), 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."
5.2 ADDITIONAL PROVISIONS
(a) 1991 ISDA DEFINITIONS: This Agreement, each Confirmation and each
Transaction are subject to the 1991 ISDA Definitions (as published by the
International Swap Dealers Association, Inc.) (the "1991 DEFINITIONS"), and
will be governed in all respects by any provisions set forth in the 1991
Definitions, without regard to any amendments to the 1991 Definitions
subsequent to the date thereof. The provisions of the 1991 Definitions are
incorporated by reference in, and shall be deemed to be part of, this
Agreement and each Confirmation. Any reference to a:
(i) "SWAP TRANSACTION" in the 1991 Definitions is deemed to be a reference
to a "Transaction" for the purpose of interpreting this Agreement or
any Confirmation; and
(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 Definitions.
(b) INCONSISTENCY: In the event of any inconsistency between any two or more or
the following documents, they shall take precedence over each other in the
following order:
(i) any Confirmation;
(ii) this Agreement; and
(iii) the 1991 Definitions.
(c) APPOINTMENT OF MANAGER: Party B hereby exclusively appoints the Manager as
its attorney to act on Party B's behalf with respect to this Agreement. The
Manager:
(i) may arrange, enter into, and monitor Transactions and novations of
Transactions, execute Confirmations, and exercise all other rights and
powers of Party B hereunder; and
(ii) without limiting the generality of the foregoing, the Manager, and not
Party B, will issue, and receive, on behalf of Party B all notices,
Confirmations, certificates and other communications to or by Party A
hereunder,
until such time as Party B serves written notice on Party A of the
revocation of the Manager's
authority to act on behalf of Party B in accordance with this paragraph
(d).
(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 Party B
(either itself or through the Manager) must promptly then confirm the
accuracy of or request the correction of such Confirmation.
(ii) 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 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 may agree to
novate one or more Transactions from a Selling Fund to 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.
(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 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:
(a) Party B will not pay Party A the Accelerated Amount and the Fixed
Rate will not be altered; or
(b) Party B may, notwithstanding the failure to reach an agreement
pursuant to paragraph (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 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 50 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 shall, upon request by the other party (the
"REQUESTING PARTY") at the expense of the requesting party, perform all
such acts and execute all such agreements, assurances and other documents
and instruments as the requesting party reasonably requires to assure and
confirm the rights and powers afforded, created or intended to be afforded
or created, under or in relation to this Agreement and each Transaction or
other dealing which occurs under or is contemplated by it.
(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 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) FORWARD RATE AGREEMENTS: The September 1992 Australian Addendum No. 6 - A$
Forward Rate Agreements in the form of the copy attached to this Agreement
is deemed to be incorporated in this Agreement.
(k) RECORDED CONVERSATIONS: Each party:
(i) consents to the recording of the telephone conversations of trading
and marketing personnel of that party and its Affiliates in connection
with this Agreement or any potential Transaction; and
(ii) agrees to obtain any necessary consent of, and give notice of such
recording to, such personnel of it and its Affiliates.
MASTER NOVATION ANNEX
This Master Novation Annex is annexed to and forms part of the Master Agreement
dated between ▇▇▇▇▇▇ Guaranty Trust Company of New York, London Office as Party
A and Perpetual Trustees Australia Limited as Party B.
--------------------------------------------------------------------------------
1. DEFINITIONS
In this Annex:
"NOVATION CONFIRMATION" means the form of novation confirmation set
out in the Schedule to this Annex.
"NOVATION DATE" means, in relation to a Transaction, the date the
novation of that Transaction becomes effective.
"RELEVANT SELLINGFUND" means, in relation to a Transaction, Party B
in its capacity as trustee of the Selling Fund which is a party to
that Transaction.
"RELEVANT SUB-FUND" means in relation to a Transaction, Party B in
its capacity as trustee of the Sub-Fund to which that Transaction is
to be novated.
--------------------------------------------------------------------------------
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 Sub-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.
--------------------------------------------------------------------------------
3. NOVATION FROM WAREHOUSE FUND TO SUB-FUND
3.1 RELEASE OF WAREHOUSE 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 SUB-FUND
On the Novation Date for a Transaction, the Relevant Sub-Fund is
deemed to undertake to Party A that it will duly observe and perform
and totally assume all the obligations of the Relevant Selling Fund
under that Transaction, the time for performance of which is on or
after the Novation Date as if the Relevant Sub-Fund had been named
as a party to that Transaction instead of the Relevant Selling Fund.
3.3 ACKNOWLEDGMENT BY ▇▇▇▇▇▇ GUARANTY
On the Novation Date for a Transaction, Party A is deemed to
undertake and acknowledge to the Relevant Sub-Fund that the Relevant
Sub-Fund is on and from the Novation Date entitled to all the rights
and entitlements of the Relevant Selling Fund under that Transaction
to the extent that such rights and entitlements arise or accrue on
or after the Novation Date.
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 Sub-Fund.
--------------------------------------------------------------------------------
4. REPRESENTATIONS AND WARRANTIES
On the Novation Date for a Transaction, the Relevant Selling Fund
and Party A are deemed to represent and warrant to the Relevant
Sub-Fund as at that date, that:
(a) (DUE PERFORMANCE): each of the Relevant Selling Fund and
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 nor
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 Sub-Fund to which it will be novated.
5.2 NOVATION CONFIRMATIONS
As soon as practicable after an agreement to novate has been entered
into in accordance with Section 5.1 of this Annex, Party B (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.
SCHEDULE TO THE MASTER NOVATION ANNEX
NOVATION CONFIRMATION
[Date]
TO: ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, LONDON OFFICE ("PARTY A")
FROM: PERPETUAL TRUSTEES AUSTRALIA LIMITED, ACN ▇▇▇ ▇▇▇ ▇▇▇, ("PARTY B")
NOVATION CONFIRMATION
The parties refer to the Master Agreement made between Party A and Party B (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 Sub-Fund is a reference to [Name of Sub-Fund];
and
(c) a reference to the Novation Date is a reference to [Insert Date].
The parties hereby confirm and agree that as of the Novation Date each of the
Transactions (the "NOVATED TRANSACTIONS") referred to in the Schedule to this
Novation Confirmation is novated from the Relevant Selling Fund to the Relevant
Sub-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.
For and on behalf of the Manager as attorney
for Party B
..................................... .....................................
(Authorised Officer) (Authorised Officer)
For and on behalf of Party A
..................................... .....................................
(Authorised Officer) (Authorised Officer)
[▇▇ ▇▇▇▇▇▇ LOGO]
30 DAY - 90 DAY BASIS SWAP CONFIRMATION
PRO-FORMA ONLY
--------------------------------------------------------------------------------
ATTN: [ ]
PUMA Global Trust No. [ ]
FAX NO: [ ]
FROM: ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
RE: SWAP TRANSACTION CONFIRMATION
TRADE DATE: [ ]
EFFECTIVE DATE: [ ]
YOUR REF: [ ]
OUR REF: [ ]
DATE SENT: [ ]
NO OF PAGES: [ ]
--------------------------------------------------------------------------------
[▇▇ ▇▇▇▇▇▇ LOGO]
[DATE]
Perpetual Trustees Australia Limited
(in its capacity as trustee of PUMA Global Trust No. [ ])
c/o The Manager: PUMA Programme
▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Dear Sir,
Swap Transactions - PUMA Global Trust No. [ ]
The purpose of this letter agreement is to confirm the terms and conditions of
the Swap Transaction entered into between us on the Trade Date specified below
(the "Transactions"). This letter constitutes a "Confirmation" as referred to in
the Master Agreement specified below.
1. This Confirmation supplements, forms part of, and is subject to the Master
Agreement dated 13 June 1996, as amended and supplemented from time to time (the
"Agreement") between you and us. All provisions contained in the Agreement
govern this Confirmation except as expressly modified below.
2. Terms defined in the 1992 ISDA Master Agreement for PUMA Global Trust No. [ ]
dated [ ], as further specified in the Supplemental Terms and Conditions for
Issue [ ], have the same meanings when used in this Confirmation.
3. The terms of the particular Transaction to which this Confirmation relate are
as specified in the Annexure to this Confirmation.
4. For the purposes of this Confirmation, ▇▇▇▇▇▇ Guaranty Trust Company of New
York, London Office, is known as "▇▇▇▇▇▇", and Perpetual Trustees Australia
Limited in its capacity as trustee of PUMA Global Trust No. [ ] is known is
"Trustee".
5. Account Details
PAYMENTS TO ▇▇▇▇▇▇:
Account for payments in AUD: Westpac Banking Corporation Sydney,
Australia
Favour: ▇▇▇▇▇▇ Guaranty Trust Co of New York -
London Office
ABA/Bank No.: [ ]
Account No.: MGN0010979
PAYMENTS TO COUNTERPARTY:
Account for payments in AUD: To be advised
Favour: PUMA Global Trust No. [ ]
ABA/Bank No.: [ ]
Account No.: To be advised
--------------------------------------------------------------------------------
Page 1 of 5
[▇▇ ▇▇▇▇▇▇ LOGO]
6. Offices
(a) The Office of ▇▇▇▇▇▇ for the Swap Transaction is LONDON; and
(b) The Office of Trustee for the Swap Transaction is SYDNEY.
Yours sincerely,
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By:
----------------------
Name:
Title:
Confirmed as of the
Date above first written
PERPETUAL TRUSTEED AUSTRALIA LIMITED (ABN 86 ▇▇▇ ▇▇▇ ▇▇▇) in its capacity as
trustee of PUMA Global Trust No. [ ]
By:
-------------------------
Name:
Title:
cc: Perpetual Trustees Australia Limited
(In its capacity as trustee of PUMA Global Trust No. [ ])
▇▇▇▇▇ ▇, ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Manager - Mortgage Securitisation
--------------------------------------------------------------------------------
Page 2 of 5
[▇▇ ▇▇▇▇▇▇ LOGO]
ANNEXURE
▇▇▇▇▇▇ Deal Number: [ ]
Trade Date: [Trade Date]
Effective Date: [Effective Date]
Termination Date: [Termination Date], (adjusted in
accordance with the Modified
Following Business Day Convention)
Business Day Locations for Trustee: Sydney
Business Day Locations for ▇▇▇▇▇▇: Sydney
Payments will be: Net
FLOATING AMOUNTS 1:
Floating Amounts Payable by Trustee:
Floating Rate Payer 1: Perpetual Trustees Australia
Limited in its capacity as trustee
of PUMA Global Trust No. [ ]
Notional Amount: [ ] AUD
Floating Rate Payer 1 Payment Dates: Each [ ] starting with [ ] up to,
and including, the Termination
Date, subject to adjustment in
accordance with the Modified
Following Business Day Convention
and there will be an adjustment to
the Calculation Period
Floating Rate Option 1: 30 DAY BBSW
Floating Rate 1 Day Count Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Calculation
Period
Compounding: Applicable
Spread: [ ]
FLOATING AMOUNTS 2:
Floating Amounts payable by ▇▇▇▇▇▇:
Floating Rate Payer 2: ▇▇▇▇▇▇ Guaranty Trust Company of
New York, London Office
Notional Amount: [ ] AUD
--------------------------------------------------------------------------------
Page 3 of 5
[▇▇ ▇▇▇▇▇▇ LOGO]
Floating Rate Payer 2 Payment Dates: Each [ ] starting with [ ] up to,
and including, the Termination
Date, subject to adjustment in
accordance with the Modified
Following Business Day Convention
and there will be an adjustment to
the Calculation Period
Floating Rate Option 2: 90 DAY BBSW
Spread: None
Floating Rate 2 Day Count Fraction: Actual/365 (Fixed)
Reset Dates: The first day of each Calculation
Period
Compounding: Inapplicable
GLOSSARY
Terms defined in the 1992 ISDA Master Agreement for PUMA Global Trust No. [ ]
dated [ ], as further specified in the Supplemental Terms and Conditions for
Issue [ ]:
Issue [ ] Senior Global Certificate
Quarterly Payment Date
Quarterly Period
Terms defined in the 1991 ISDA Definitions are:
Compounding calculations in Article 6 of the Definitions
Modified Following Business Day Convention
ALL ENQUIRIES REGARDING PAYMENTS AND/OR RATE RESETTINGS SHOULD BE SENT TO:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ EL-▇▇▇▇▇▇
SWAP OPERATIONS
TELEPHONE: LONDON : 44 207 325 9861
FACSIMILE: LONDON : 44 207 325 7400
PLEASE QUOTE THE ▇▇▇▇▇▇ DEAL NUMBER INDICATED ABOVE.
ALL ENQUIRIES REGARDING CONFIRMATIONS SHOULD BE SENT TO:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
AKASAKA PARK BUILDING,
2-20, ▇▇▇▇▇▇▇ ▇-▇▇▇▇▇,
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇,
▇▇▇▇▇
--------------------------------------------------------------------------------
Page 4 of 5
[▇▇ ▇▇▇▇▇▇ LOGO]
ATTENTION: M KURE, A SATAKE, ▇. ▇▇▇▇▇▇▇▇, M KITAJIMA, H KAGEYAMA,
M GYODA, M ISA
TELEPHONE: ▇▇-▇-▇▇▇▇-▇▇▇▇ / 1296 / 1974 / 1301, ▇▇-▇-▇▇▇▇-▇▇▇▇ /
9341 / 9372
FACSIMILE: ▇▇-▇-▇▇▇▇-▇▇▇▇
EMAIL ADDRESS: ▇▇▇▇▇_▇▇_▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
PLEASE QUOTE THE ▇▇▇▇▇▇ DEAL NUMBER INDICATED ABOVE.
--------------------------------------------------------------------------------
Page 5 of 5
