General Terms and Conditions
61 (ii) an application or order is sought or made in
any court for:
(A) removal of the Investor as trustee of the trust; or
(B) property of the trust to be brought into court; or administered by the court or under its control; or
(C) a notice is given or meeting summoned for the removal of the Investor as trustee of the trust or for the appointment of another person as trustee jointly with the Investor.
(k) any government, governmental agency, department, commission, or other instrumentality seizes, confi scates, or
compulsorily acquires (whether permanently or temporarily and whether with payment of compensation or not) any property of the Investor;
(l) any litigation, administrative proceedings or other procedure for the resolution of disputes is commenced in which the title of the Investor to any of the CFDs entered into by or on behalf of that Investor, will be or is reasonably likely to be impeached or the Investor’s enjoyment, or Macquarie’s rights under the Terms and Conditions will be or are reasonably likely to be restrained or otherwise hindered;
(m) Macquarie receives any notice from a credit reporting agency or any other credit provider to the Investor which indicates that the Investor is in default under any other fi nancial payment or performance obligation with any other party or that any of the events specifi ed in the foregoing paragraphs of this defi nition have occurred;
(n) there occurs an event which is or may be a Material Adverse Change;
(o) a Market Disruption Event occurs in relation to the Reference Securities underlying a CFD held by that Investor;
(p) at any time, the Collateral of an Investor is less than the Aggregate Required Collateral; or (q) the Investor’s Cash Account is closed for any
reason,
or any event or circumstance occurs which, with the passing of time, the giving of any notice or the making of any order, would constitute an Event of Default within the meaning of paragraphs (a) to (g) above.
“Exchange Disruption” has the meaning as described in Section 2.9.
“Fees and Charges” means the fees and charges specifi ed in Section 4 as varied in accordance with Condition 4.8 from time to time.
“geared” or “gearing” in relation to an investment in a CFD, has the meaning given in Section 1.1.
“GSL Expiry” means the time 30 minutes prior to the Closing Time on the last Business Day in the relevant GSL Period.
“GSL Expiry Date” in respect of any GSL, means the date on which GSL Expiry occurs.
“GSL Level” means where the applicable Guaranteed Stop-Loss Order is:
(a) in respect of a Market, Market-to-Limit or Limit Order that had not been accepted at the time the Guaranteed Stop-Loss Order was accepted:
[ Initial Reference
Security Price ] x [ 1 + GSL Percentage ] (b) in respect of an Open CFD at the time the
Guaranteed Stop-Loss Order was accepted:
[ Share Price at time of
acceptance of GSL Order ] x [ 1 + GSL Percentage ]
“GSL Percentage” means:
(a) where the Guaranteed Stop-Loss Order is in respect of a Long CFD or an Order to Open a Long CFD the percentage specifi ed by the Investor in the relevant Order, which must be less than zero (ie. negative); or
(b) where the Guaranteed Stop-Loss Order is in respect of a Short CFD or an Order to Open a Short CFD, the percentage specifi ed by the Investor in the relevant Order, which must be greater than zero (ie. positive).
“GSL Period” means the period agreed by the parties for which the Guaranteed Stop-Loss protection under Condition 3.14 of the Terms and Conditions will apply, commencing when the relevant GSL Premium is received by Macquarie.
“GSL Premium” means the price of the Guaranteed Stop-Loss Order, as calculated by Macquarie and paid by the Investor to Macquarie in accordance with Condition 3.14 of the Terms and Conditions.
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Glossary
62
“GST” means any goods and services tax, consumption tax, value added tax or similar tax, impost or duty imposed under any GST Law.
“GST Law” means the tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
“Guaranteed Amounts” means amounts payable by the Investor at any time under these Terms and Conditions.
“Guaranteed Stop-Loss” or “GSL” means a binding commitment between Macquarie and the Investor to Close Out a CFD at the GSL Level in accordance with Condition 3.14 of the Terms and Conditions.
“Guaranteed Stop-Loss Order” or “GSL Order”
means an offer by an Investor to enter into a Guaranteed Stop-Loss arrangement in respect of a CFD or Order.
“Guarantor” means any person(s) identifi ed as such in the Application.
“Information” means information which is
commercially sensitive or proprietary to either party, its affi liated companies, or third parties to whom either party has a duty of confi dentiality, including any and all non-public information of any form obtained by a party or its employees while performing the Terms and Conditions, such as information pertaining to the Macquarie CFD Website, trade secrets, processes, CFDs entered by the party, clients, employees and any data or documentation related thereto.
“Initial CFD Value” means the amount calculated by Macquarie in accordance with the following formula:
[Initial Reference
Security Price] x [CFD Quantity]
“Initial Deposit Amount” has the meaning given to that term in the Cash Account PDS.
“Initial Reference Security Price” means in respect of a CFD, the price of the Reference Security as agreed between Macquarie and the Investor by, and applicable to, the Opening of the CFD.
“Insolvency Event” means in respect of a person, any one of the following:
(a) a petition is presented (and not struck out or dismissed within seven Business Days of it being presented) or an effective resolution is passed under the Corporations Act for the winding up of the party or any similar process in relation to the entity;
(b) a receiver, receiver and manager, offi cial manager, trustee, administrator or similar offi cial is appointed over all or any substantial part of the assets or undertaking of the person;
(c) a liquidator or trustee in bankruptcy is appointed to the person;
(d) the person resolving to wind itself up, or otherwise dissolve itself, or gives notice of intention to do so, except to reconstruct or amalgamate while solvent, or is otherwise wound up or dissolved;
(e) the person committing an act of bankruptcy;
(f) the person stating that it is insolvent or is presumed to be insolvent under any applicable law;
(g) as a result of the operation of the Corporations Act the person is taken to have failed to comply with a statutory demand;
(h) the entry by the person into a scheme of arrangement or composition with, or
assignment for the benefi t of, all or any class of its creditors, or a moratorium involving any of them;
(i) the person being or stating that it is unable to pay its debts when they fall due;
(j) the person dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs for any reason;
(k) anything analogous to or of a similar effect to anything described above.
“Intellectual Property Rights” means all present and future rights in or in relation to copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions, and other results in the industrial, commercial, scientifi c, literary or artistic fi elds.
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“Investor” means in relation to a CFD Trading Account and any CFD, the person or entity specifi ed in the Application Form as the applicant.
“Limit Order” is an Order to Open or Close Out a Position at a Reference Security Price equal or better than a Limit Price in accordance with Condition 3.10.
“Limit Order Period” means the period specifi ed by the Investor as the period for which the Limit Order will remain open for acceptance by Macquarie.
“Limit Price” means, in relation to a Limit Order, the Reference Security Price specifi ed by the Investor at which the Investor has offered to Open or Close Out the CFD.
“Listed Entity” means in relation to a Reference Security, the company, trust or combination thereof, in respect of which that security is issued.
“Long CFD” means a CFD where the Investor is the Long Party.
“Long Party” means in respect of any CFD the party identifi ed in the Confi rmation as having notionally bought the Reference Security.
“Long Position Funding Rate” means the interest rate set by Macquarie and applicable to the Long CFD position held by the Investor being the
Benchmark Interest Rate plus a maximum of 2.50%.
“Loss Limiter Account” means a CFD Trading Account:
(a) which does not have a Risk Limit; and (b) under which every CFD position must have
corresponding GSL protection.
“Macquarie” means Macquarie Bank Limited (ABN 46 008 583 542).
“Macquarie CFD Website” or “our website” means the website maintained by the Macquarie Group in respect of the CFD product family at the URL, www.macquarie.com.au/cfd, and any related or linked pages. For the avoidance of doubt this includes the services known as “eMG Online” and the “Macquarie Trading Platform”.
“Macquarie Trading Platform” means the electronic services provided by Macquarie as set out in Section 10 of this PDS, Terms and Conditions.
“Market Disruption Event” has the meaning given to that term in Section 2.9 of this PDS.
“Macquarie Group” means Macquarie and its related bodies corporate, and “Macquarie Group entity” means any member of the Macquarie Group.
“Market Order” means an Order to Open or Close Out a CFD at the Reference Security Price in accordance with Condition 3.8 of the Terms and Conditions.
“Market-to-Limit Order” means an Order to enter into or Close Out a CFD at the Reference Security Price in accordance with Condition 3.9 of the Terms and Conditions.
“Mark-to-Market Payment” means a payment made pursuant to Condition 4.2 of the Terms and Conditions.
“Material Adverse Change” means in relation to an Investor, a change which, in Macquarie’s opinion, has a material adverse effect on the Investor’s assets, revenue or fi nancial condition, or its ability to perform its respective obligations under the
applicable Transaction Documents.
“News Service” has the meaning given to it in Section 4.7.
“Open” means either:
(a) a CFD that has not yet been Closed Out; or (b) the act of entering into a new CFD,
as the context requires.
“Opposite Position” means in respect of a CFD or Order:
(a) where the Investor is the Long Party in respect of a CFD, an equivalent CFD or Order under which the Investor is or would be the Short Party; or
(b) where the Investor is the Short Party in respect of a CFD, an equivalent CFD or Order under which the Investor is or would be the Long Party.
“Order” means an offer made by an Investor to Macquarie pursuant to Condition 3 of the Terms and Conditions which may or may not be accepted by Macquarie at its sole discretion.
“Password” means a series of characters which are issued by Macquarie to the Investor or the Investor’s Users or selected by the Investor or the Investor’s Users to secure access to the Macquarie CFD Website.
“PDS” means this Product Disclosure Statement.
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Glossary
64
“Previous CFD Value” means, in respect of any time at which a CFD Value is calculated for the purposes of Condition 4.1 of the Terms and Conditions, the amount calculated as follows:
(a) where the CFD Value is being determined for the fi rst time for a given CFD, the Previous CFD Value is equal to the CFD Value on Opening the CFD; or
(b) in all cases other than that specifi ed in (a) above, the Previous CFD Value is the CFD Value at the most recent Valuation Time.
“Prime Facility” means the facility issued by Macquarie under the Prime Facility PDS.
“Prime Facility PDS” means the Product Disclosure Statement for the Macquarie Prime Facility dated on or around 18 May 2007 as amended, supplemented or replaced from time to time.
“Prime Order” has the meaning given to “Order” as defi ned in the Macquarie Prime Facility PDS.
“Prime Position” means an investment by the Investor via a Prime Facility, as described in the Prime Facility PDS.
“Reference Security” means the Approved Security which Macquarie has nominated as being available to underlie an Order or CFD.
“Reference Security Price” means the price for a Reference Security at a specifi c point in time, as determined in accordance with Condition 3.2.
“Required Collateral Amount” means:
a) in respect of a given CFD or Order on any date where the Investor is using a Loss Limiter Account:
(i) for an Open Long CFD, or an Order to Open a Long CFD:
(Reference Security Price
or Limit Price as applicable)
or Limit Price as applicable)
x [CFD Quantity]
(b) in respect of a given CFD or Order on any date where the Investor is not using a Loss Limiter Facility, and where the Position is, or the Order will be, protected by a Guaranteed Stop-Loss the lesser of the amount calculated in paragraph (c) below and:
(i) for a Long CFD, or an Order for a Long CFD:
(Reference Security Price
or Limit Price as applicable)
or Limit Price as applicable)
x [CFD Quantity]
(c) and for all cases other than those covered by (a) or (b) above an amount calculated as:
(i) in the case of a Limit Order:
[CFD
Quantity] x [Limit
Price] x [Collateral Rate] ; or
(ii) for CFDs and any other type of Order, an amount calculated as:
[CFD
Value] x [Collateral Rate]
“Risk Limit” means, in relation to an Investor’s Standard Account, a limit placed by Macquarie on the Risk Limit Usage of the Investor.
“Risk Limit Usage” means an amount calculated as follows:
(a) the sum of the Share Parcel Values for all long positions and orders for long positions in the Investor’s Prime Facility, if any (expressed as a positive number); plus
(b) the sum of the Share Parcel Values for all short positions and orders for short positions in the Investor’s Prime Facility, if any (expressed as a positive number); plus
(c) the sum of the CFD Values of CFD Orders and CFDs held within the Investor’s CFD Trading Account; less
(d) any Available Funds and Collateral held in the Investor’s Cash Account.
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