8.1
Close Out of CFD by Agreement An Open CFD will be Closed Out:
(a) on acceptance by Macquarie of an Investor’s Stop-Loss Order;
(b) pursuant to a Guaranteed Stop-Loss at the time during the GSL Period that the Reference Security Price fi rst trades at or beyond the GSL Level;
(c) on acceptance of an Investor’s Order requesting Close Out of the Investor’s CFD (including where the Order is deemed to be a Close Out under Condition 3.3(g)(i)); or
(d) by Macquarie under Condition 8.4.
8.2
Partial Close Out of CFD Position by Agreement If Macquarie accepts an Order requesting Close Out of a CFD and such Order relates to a CFD Quantity that is less than the CFD Quantity of the Investor’s Open CFD position:
(a) the Investor’s Open CFD will be deemed to have been split into two separate CFDs immediately prior to acceptance of the Order;
(b) of the two resulting CFDs:
(i) the CFD Quantity of the fi rst resulting CFD will equal the CFD Quantity of the Close Out Order; and
(ii) the CFD Quantity of the second resulting CFD will equal the CFD Quantity of the original CFD less the CFD Quantity of the Close Out Order; and
(c) these Terms and Conditions will apply equally to the two resulting CFDs as if they had been entered into separately from the time of acceptance of the original CFD.
8.3
Closure of CFD Trading Account by Investor If:
(a) all an Investor’s CFDs have been Closed Out;
and
(b) the Investor has paid in full all amounts due to Macquarie under these Terms and Conditions, the Investor may close the CFD Trading Account by giving notice in a form acceptable to Macquarie.
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8.4
Close Out of CFD by Macquarie
For the purposes of securing the Investor’s
obligations to Macquarie in relation to the Investor’s open CFD positions, Macquarie may, in its sole discretion:
(a) Close Out any or all CFDs to which the Investor is a party; and
(b) cancel any or all of the Investor’s Orders, immediately without prior notice to the Investor:
(c) if an Event of Default subsists; or
(d) if the Investor’s CFD Trading Account is closed for any reason,
and any Close Out pursuant to this Condition will be deemed to take effect as if the Investor had placed, and Macquarie had accepted, a Close Out Order.
8.5
Closure of CFD Trading Account by Macquarie
In addition to Macquarie’s rights under Condition 8.4, Macquarie may, in its sole discretion:
(a) close the Investor’s CFD Trading Account;
(b) terminate the Investor’s use of the Macquarie CFD Website; and
(c) satisfy any obligation the Investor may have to Macquarie out of, without limitation, funds in the Cash Account or funds available pursuant to Macquarie’s set-off rights at Condition 6.1, either:
(d) upon giving not less than ten (10) Business Days written notice to the Investor; or
(e) immediately without prior notice to the Investor if an Event of Default occurs.
8.6
Position on closure of CFD Trading Account With effect from the closure of an Investor’s CFD Trading Account in accordance with this Condition 8:
(a) the amount of any accrued interest and all other sums which have accrued under the Terms and Conditions (whether or not presently payable) will become immediately due and payable without further demand, notice or legal formality of any kind; and
(b) the Investor will cease to have any rights to use the Macquarie Trading Platform.
In addition to the rights set out at Condition 8.8:
(c) any indemnity granted by the Investor;
(d) all the Investor’s confi dentiality obligations;
(e) the Investor’s obligations in relation to the Macquarie CFD Website in Condition 23;
(f) the representations and warranties given by the Investor; and
(g) any exclusion of Macquarie’s liability,
under the Transaction Documents, and any other rights or obligations of the Investor which arose before the Investor’s CFD Trading Account was closed and the use of the Macquarie CFD Website was terminated, will continue to have full force and effect.
8.7
Action on Event of Default
Conditions 8.4, 8.5 and 8.6 operate in addition to any other rights of Macquarie or remedies conferred on Macquarie by the Transaction Documents or by law.
8.8
Settlement following Close Out or Closure of CFD Trading Account
(a) If a CFD is Closed Out under Conditions 8.1 or 8.4, or the CFD Trading Account is closed under Conditions 8.3 or 8.5, any amount payable must be paid in accordance with Condition 4.2. For the avoidance of doubt, Macquarie’s obligation to pay the Surplus and the Investor’s obligation to pay the Shortfall under Condition 3.1 will be satisfi ed in full by making the Mark-to-Market Payments and by application of the unrefunded prepayments of those amounts made under Condition 4.2 so that no additional payment needs to be made by Macquarie or the Investor on account of the Surplus or Shortfall.
(b) Without prejudice to any other rights or remedies to which a party may be entitled to at law, upon closure of a CFD Trading Account, any amounts, due and payable in accordance with these Terms and Conditions, by one party to another up to and including the closure of a CFD Trading Account, must be paid in accordance with these Terms and Conditions.
Section 10
Terms and
Conditions
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9.
Representations
The Investor and each Guarantor (as applicable) represent and warrant for the benefi t of Macquarie that on the Effective Date and on each day that the CFD Trading Account is open:
(a) if a body corporate:
(i) it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation;
(ii) it has the power to execute and deliver the Application Form and to perform all its obligations under the Transaction Documents and has taken all action necessary to authorise execution and delivery of the Application Form and performance of those obligations;
(b) if the Investor completed the Application in the name of a trustee of a trust (the “Trust”):
(i) it enters into these Terms and Conditions and any CFD, establishes the CFD Trading Account and places any Order in the same capacity and all information in the
Application regarding the trustee and the Trust is true and correct;
(ii) it is the sole trustee of the Trust, it does not propose to retire as trustee of the Trust and to its knowledge no action has been taken or proposed to remove it as sole trustee or appoint another trustee;
(iii) the Trust has been validly created and continues to exist, no event has occurred which means the assets of the Trust are to be vested in one or more benefi ciaries (other than in accordance with the trust deed which constitutes the Trust) and no property of the Trust has been re-settled;
(iv) it has power under the Trust Deed to perform its obligations under these Terms and Conditions and any CFD or Order;
(v) it is not materially in breach of trust and its performance of obligations under these Terms and Conditions and any CFD or Order are for the benefi t of the benefi ciaries of the Trust and do not constitute or involve a breach of trust; and
(vi) it is entitled to be fully indemnifi ed out of the assets of the Trust for all its loss or liabilities under these Terms and Conditions and any CFD or Order, with the Trust having suffi cient net assets to satisfy this right of indemnity;
(vii) all information provided to Macquarie as set out in the Application Form relating to the Trust and its role as trustee of the Trust is true, accurate and correct;
(c) in every case:
(i) unless stated in the Application Form, the Investor is not acting as trustee of a trust;
(ii) all funds deposited in the Cash Account are not subject to any Security Interest;
(iii) no Event of Default subsists or continues unremedied;
(iv) no breach of any law or obligation exists which is likely to lead to a Material Adverse Change;
(v) the performance of each these Terms and Conditions and the obligations under any CFD or Order does not violate any existing law or regulation or any document or agreement to which it is a party or which is binding on it or any of its assets;
(vi) all authorisations, rights, licences and consents, required in order for it to conduct its business and relevant to the performance, validity or enforceability of these Terms and Conditions and any CFD or Order have been obtained or effected and are in full force and effect and the Investor will not dispute any claim by Macquarie in the basis that the Investor was not authorised to open the CFD Trading Account, place any Order or enter into any CFD;
(vii) there are no actions or claims pending the adverse determination of which might have a material adverse affect on the ability of the Investor or Guarantor to perform its obligations under these Terms and
Conditions and any CFD or Order, or on the rights granted to Macquarie;
(viii) it is not entitled to claim for itself or any of its assets or revenues any right of general immunity or exemption on the grounds of sovereignty or otherwise from suit, execution, attachment or other legal process in respect of its obligations under these Terms and Conditions and any CFD or Order; and
47 (ix) unless otherwise agreed by Macquarie, it is
acting on its own behalf; and
(x) its funds and assets are not, and if it is acting as agent for another party, it has made reasonable enquiries to satisfy itself that the principal’s funds and assets are not,
“proceeds of crime” within the meaning of the Proceeds of Crime Act 2002 (Cth); and (xi) all information contained in the Application
Form is complete and accurate.
10.