Attached files
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S-1/A - S-1/A - GAIN Capital Holdings, Inc. | y75376a4sv1za.htm |
EX-23.1 - EX-23.1 - GAIN Capital Holdings, Inc. | y75376a4exv23w1.htm |
EX-10.29 - EX-10.29 - GAIN Capital Holdings, Inc. | y75376a4exv10w29.htm |
Exhibit 10.49
International Swaps and Derivatives Association, Inc.
2002 MASTER AGREEMENT
dated as of
and
have entered and/or anticipate entering into one or more transactions (each a Transaction) that
are or will be governed by this 2002 Master Agreement, which includes the schedule (the
Schedule), and the documents and other confirming evidence (each a Confirmation) exchanged
between the parties or otherwise effective for the purpose of confirming or evidencing those
Transactions. This 2002 Master Agreement and the Schedule are together referred to as this Master
Agreement.
Accordingly, the parties agree as follows:
1. Interpretation |
(a) Definitions. The terms defined in Section 14 and elsewhere in this Master Agreement 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, 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.
Copyright © 2002 by International Swaps and Derivatives Association, Inc.
(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 condition specified in this Agreement to be a condition precedent for the
purpose of this Section 2(a)(iii).
(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 Settlement
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 of Payments. 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 partys 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 which 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 and payment
obligation will be determined in respect of all amounts payable on the same date in the same
currency in respect of those Transactions, regardless of whether such amounts are payable in
respect of the same Transaction. The election may be made in the Schedule or any Confirmation by
specifying that Multiple Transaction Payment Netting applies to the Transactions identified as
being subject to the election (in which case clause (ii) above will not apply to such
Transactions). If Multiple Transaction Payment Netting is applicable to Transactions, it will apply
to those Transactions with effect from the starting date specified in the Schedule or such
Confirmation, or, if a starting date is not specified in the Schedule or such Confirmation, the
starting date otherwise agreed by the parties in writing. This election may be made separately for
different groups of Transactions and will apply separately to each pairing of Offices through which
the parties make and receive payments or deliveries.
(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
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(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 (I) any
action taken by a taxing authority, or brought in a court of competent
jurisdiction, after 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);
(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)).
3. Representations |
Each party makes the representations contained in Sections 3(a), 3(b), 3(c), 3(d), 3(e) and 3(f)
and, if specified in the Schedule as applying,
3(g) 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). If any Additional Representation is specified in the Schedule or any Confirmation as applying, the party or parties specified for such Additional Representation will make and, if applicable, be deemed to repeat such Additional Representation at the time or times specified for such Additional Representation.
3(g) 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). If any Additional Representation is specified in the Schedule or any Confirmation as applying, the party or parties specified for such Additional Representation will make and, if applicable, be deemed to repeat such Additional Representation at the time or times specified for such Additional Representation.
(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
authorise such execution, delivery and performance;
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(iii) No Violation or Conflict. Such execution, delivery and performance do not violate or
conflict with any law applicable to it, any provision of 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,
reorganisation, 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 a party.
(c) Absence of Litigation. There is not pending or, to its knowledge, threatened against it, any of
its Credit Support Providers or any of its applicable Specified Entities 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 Representations. Each representation specified in the Schedule as being made by it
for the purpose of this Section 3(f) is accurate and true.
(g) No Agency. It is entering into this Agreement, including each Transaction, as principal and not
as agent of any person or entity.
4. Agreements |
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 clause (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
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(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 Authorisations. 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 with 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 and controlled or considered to have its seat, or where an
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 partys 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 (subject to Sections 5(c) and 6(e)(iv)) 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 9(h)(i)(2) or (4) required to be made by it
if such failure is not remedied on or before the first Local Business Day in the case of
any such payment or the first Local Delivery Day in the case of any such delivery after, in
each case, notice of such failure is given to the party;
(ii) Breach of Agreement; Repudiation of Agreement.
(1) 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 9(h)(i)(2) or (4) 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 within 30 days after notice of such failure is given to the party; or
(2) the party disaffirms, disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, this Master Agreement, any Confirmation executed and
delivered by that party or any
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Transaction evidenced by such a Confirmation (or such action is taken by any person or
entity appointed or empowered to operate it or act on its behalf);
(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, or any security interest granted by such party or such
Credit Support Provider to the other party pursuant to any such Credit Support Document, to
be in full force and effect for the purpose of this Agreement (in each 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 (or such
action is taken by any person or entity appointed or empowered to operate it or act on its
behalf);
(iv) Misrepresentation. A representation (other than a representation under Section 3(e) or 3(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 (other than by failing to make a delivery) under a Specified Transaction or
any credit support arrangement relating to a Specified Transaction and, after giving effect
to any applicable notice requirement or grace period, such default results in 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 due on the last payment or exchange date of, or any payment on early
termination of, a Specified Transaction (or, if there is no applicable notice requirement
or grace period, such default continues for at least one Local Business Day);
(3) defaults in making any delivery due under (including any delivery due on the last
delivery or exchange date of) a Specified Transaction or any credit support arrangement
relating to a Specified Transaction and, after giving effect to any applicable notice
requirement or grace period, such default results in a liquidation of, an acceleration of
obligations under, or an early termination of, all transactions outstanding under the
documentation applicable to that Specified Transaction; or
(4) disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the
validity of, a Specified Transaction or any credit support arrangement relating to a
Specified Transaction that is, in either case, confirmed or evidenced by a document or
other confirming evidence executed and delivered by that party, Credit Support Provider or
Specified Entity (or such action is taken by any person or entity appointed or empowered to
operate it or act on its behalf);
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(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) where the aggregate
principal amount of such agreements or instruments, either alone or together with the
amount, if any, referred to in clause (2) below, is 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 under such agreements
or instruments on the due date for payment (after giving effect to any applicable notice
requirement or grace period) in an aggregate amount, either alone or together with the
amount, if any, referred to in clause (1) above, of not less than the applicable Threshold
Amount;
(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); (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)(A) institutes or has instituted
against it, by a regulator, supervisor or any similar official with primary insolvency,
rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation
or organisation or the jurisdiction of its head or home office, 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 by it or such regulator, supervisor or similar official, or (B)
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 such
proceeding or petition is instituted or presented by a person or entity not described in
clause (A) above and either (I) 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
(II) is not dismissed, discharged, stayed or restrained in each case within 15 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 15 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)
above (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
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(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, or reorganises, reincorporates or reconstitutes into or as, another
entity and, at the time of such consolidation, amalgamation, merger, transfer,
reorganisation, reincorporation or reconstitution:
(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 predecessor was a party; 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 (subject to Section 5(c)) an Illegality if the event is specified in clause (i)
below, a Force Majeure Event if the event is specified in clause (ii) below, a Tax Event if the
event is specified in clause (iii) below, a Tax Event Upon Merger if the event is specified in
clause (iv) below, and, if specified to be applicable, a Credit Event Upon Merger if the event is
specified pursuant to clause (v) below or an Additional Termination Event if the event is specified
pursuant to clause (vi) below:
(i) Illegality. After giving effect to any applicable provision, disruption fallback or
remedy specified in, or pursuant to, the relevant Confirmation or elsewhere in this Agreement, due to an
event or circumstance (other than any action taken by a party or, if applicable, any Credit
Support Provider of such party) occurring after a Transaction is entered into, it becomes
unlawful under any applicable law (including without limitation the laws of any country in
which payment, delivery or compliance is required by either party or any Credit Support
Provider, as the case may be), on any day, or it would be unlawful if the relevant payment,
delivery or compliance were required on that day (in each case, other than as a result of a
breach by the party of Section 4(b)):
(1) for the Office through which such party (which will be the Affected Party) makes
and receives payments or deliveries with respect to such Transaction to perform any
absolute or contingent obligation to make a payment or delivery in respect of such
Transaction, 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) for such party or any Credit Support Provider of such party (which will be the
Affected Party) to perform any absolute or contingent obligation to make a payment
or delivery which such party or Credit Support Provider has under any Credit Support
Document relating to such Transaction, to receive a payment or delivery under such
Credit Support Document or to comply with any other material provision of such
Credit Support Document;
(ii) Force Majeure Event. After giving effect to any applicable provision, disruption
fallback or remedy specified in, or pursuant to, the relevant Confirmation or elsewhere in
this Agreement, by reason of force majeure or act of state occurring after a Transaction is
entered into, on any day:
(1) the Office through which such party (which will be the Affected Party) makes
and receives payments or deliveries with respect to such Transaction is prevented
from performing any absolute or contingent obligation to make a payment or delivery
in respect of such Transaction, from receiving a payment or delivery in respect of
such Transaction or from complying with any other material provision of this
Agreement relating to such Transaction (or would be so prevented if such payment,
delivery or compliance were required on that day), or it becomes impossible or
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impracticable for such Office so to perform, receive or comply (or it would be impossible
or impracticable for such Office so to perform, receive or comply if such payment,
delivery or compliance were required on that day); or
(2) such party or any Credit Support Provider of such party (which will be the Affected
Party) is prevented from performing any absolute or contingent obligation to make a
payment or delivery which such party or Credit Support Provider has under any Credit
Support Document relating to such Transaction, from receiving a payment or delivery under
such Credit Support Document or from complying with any other material provision of such
Credit Support Document (or would be so prevented if such payment, delivery or compliance
were required on that day), or it becomes impossible or impracticable for such party or
Credit Support Provider so to perform, receive or comply (or it would be impossible or
impracticable for such party or Credit Support Provider so to perform, receive or comply
if such payment, delivery or compliance were required on that day),
so long as the force majeure or act of state is beyond the control of such Office, such party or
such Credit Support Provider, as appropriate, and such Office, party or Credit Support Provider
could not, after using all reasonable efforts (which will not require such party or Credit Support
Provider to incur a loss, other than immaterial, incidental expenses), overcome such prevention,
impossibility or impracticability;
(iii) Tax Event. Due to (1) any action taken by a taxing authority, or brought in a court of
competent jurisdiction, after a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (2) 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 Settlement Date (A) 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 9(h)) or (B) 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 9(h)) 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));
(iv) Tax Event Upon Merger. The party (the Burdened Party) on the next succeeding Scheduled
Settlement 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 9(h)) or
(2) receive a payment from which an amount has been deducted or withheld for or on account of any
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
(or any substantial part of the assets comprising the business conducted by it as of the date of
this Master Agreement) to, or reorganising, reincorporating or reconstituting into or as, another
entity (which will be the Affected Party) where such action does not constitute a Merger Without
Assumption;
(v) Credit Event Upon Merger. If Credit Event Upon Merger is specified in the Schedule as
applying to the party, a Designated Event (as defined below) occurs with respect to such party, any
Credit Support Provider of such party or any applicable Specified Entity of such party (in each
case, X) and such Designated Event does not constitute a Merger Without Assumption, and the
creditworthiness of X or, if applicable, the successor, surviving or transferee entity of X, after
taking into account any applicable Credit Support Document, is materially weaker immediately after
the occurrence of such Designated Event than that of X immediately prior to the occurrence of such
Designated Event (and, in any such event, such party or its successor, surviving or transferee
entity, as appropriate, will be the Affected Party). A Designated Event with respect to X means
that:
(1) X consolidates or amalgamates with, or merges with or into, or transfers all or
substantially all its assets (or any substantial part of the assets comprising the
business conducted by X as of the
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date of this Master Agreement) to, or reorganises, reincorporates or reconstitutes
into or as, another entity;
(2) any person, related group of persons or entity acquires directly or indirectly
the beneficial ownership of (A) equity securities having the power to elect a
majority of the board of directors (or its equivalent) of X or (B) any other
ownership interest enabling it to exercise control of X; or
(3) X effects any substantial change in its capital structure by means of the
issuance, incurrence or guarantee of debt or the issuance of (A) preferred stock or
other securities convertible into or exchangeable for debt or preferred stock or (B)
in the case of entities other than corporations, any other form of ownership
interest; or
(vi) 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 will be as specified for such Additional
Termination Event in the Schedule or such Confirmation).
(c) Hierarchy of Events. |
(i) An event or circumstance that constitutes or gives rise to an Illegality or a Force
Majeure Event will not, for so long as that is the case, also constitute or give rise to an Event of Default
under Section 5(a)(i), 5(a)(ii)(1) or 5(a)(iii)(1) insofar as such event or circumstance
relates to the failure to make any payment or delivery or a failure to comply with any
other material provision of this Agreement or a Credit Support Document, as the case may
be.
(ii) Except in circumstances contemplated by clause (i) above, if an event or circumstance
which would otherwise constitute or give rise to an Illegality or a Force Majeure Event also
constitutes an Event of Default or any other Termination Event, it will be treated as an
Event of Default or such other Termination Event, as the case may be, and will not
constitute or give rise to an Illegality or a Force Majeure Event.
(iii) If an event or circumstance which would otherwise constitute or give rise to a Force
Majeure Event also constitutes an Illegality, it will be treated as an Illegality, except
as described in clause (ii) above, and not a Force Majeure Event.
(d) Deferral of Payments and Deliveries During Waiting Period. If an Illegality or a Force Majeure
Event has occurred and is continuing with respect to a Transaction, each payment or delivery which
would otherwise be required to be made under that Transaction will be deferred to, and will not be
due until:
(i) the first Local Business Day or, in the case of a delivery, the first Local Delivery Day
(or the first day that would have been a Local Business Day or Local Delivery Day, as appropriate, but
for the occurrence of the event or circumstance constituting or giving rise to that
Illegality or Force Majeure Event) following the end of any applicable Waiting Period in
respect of that Illegality or Force Majeure Event, as the case may be; or
(ii) if earlier, the date on which the event or circumstance constituting or giving rise to
that Illegality or Force Majeure Event ceases to exist or, if such date is not a Local
Business Day or, in the case of a delivery, a Local Delivery Day, the first following day
that is a Local Business Day or Local Delivery Day, as appropriate.
(e) Inability of Head or Home Office to Perform Obligations of Branch. If (i) an Illegality or a
Force Majeure Event occurs under Section 5(b)(i)(1) or 5(b)(ii)(1) and the relevant Office is not
the Affected Partys head or home office, (ii) Section 10(a) applies, (iii) the other party seeks
performance of the relevant obligation or
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compliance with the relevant provision by the Affected Partys head or home office and (iv) the
Affected Partys head or home office fails so to perform or comply due to the occurrence of an
event or circumstance which would, if that head or home office were the Office through which the
Affected Party makes and receives payments and deliveries with respect to the relevant Transaction,
constitute or give rise to an Illegality or a Force Majeure Event, and such failure would otherwise
constitute an Event of Default under Section 5(a)(i) or
5(a)(iii)(1) with respect to such party,
then, for so long as the relevant event or circumstance continues to exist with respect to both the
Office referred to in Section 5(b)(i)(1) or 5(b)(ii)(1), as the case may be, and the Affected
Partys head or home office, such failure will not constitute an Event of Default under Section
5(a)(i) or 5(a)(iii)(1).
6. Early Termination; Close-Out Netting |
(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), (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 other than a Force Majeure 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 the other party such
other information about that Termination Event as the other party may reasonably require. If
a Force Majeure Event occurs, each party will, promptly upon becoming aware of it, use all
reasonable efforts to notify the other party, specifying the nature of that Force Majeure
Event, and will also give the other party such other information about that Force Majeure
Event as the other party may reasonably require.
(ii) Transfer to Avoid Termination Event. If 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, other than 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 partys 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 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 of such
occurrence is given under Section 6(b)(i) to avoid that Termination Event.
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(iv) Right to Terminate. |
(1) | If: |
(A) 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
(B) 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,
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 are two Affected
Parties, or the Non-affected Party in the case of a Credit Event Upon Merger or an
Additional Termination Event if there is only one Affected Party may, if the relevant
Termination Event is then continuing, by not more than 20 days notice to the other
party, designate a day not earlier than the day such notice is effective as an Early
Termination Date in respect of all Affected Transactions.
(2) If at any time an Illegality or a Force Majeure Event has occurred and is then
continuing and any applicable Waiting Period has expired:
(A) Subject to clause (B) below, either party may, by not more than 20 days
notice to the other party, designate (I) a day not earlier than the day on
which such notice becomes effective as an Early Termination Date in respect
of all Affected Transactions or (II) by specifying in that notice the
Affected Transactions in respect of which it is designating the relevant day
as an Early Termination Date, a day not earlier than two Local Business Days
following the day on which such notice becomes effective as an Early
Termination Date in respect of less than all Affected Transactions. Upon
receipt of a notice designating an Early Termination Date in respect of less
than all Affected Transactions, the other party may, by notice to the
designating party, if such notice is effective on or before the day so
designated, designate that same day as an Early Termination Date in respect
of any or all other Affected Transactions.
(B) An Affected Party (if the Illegality or Force Majeure Event relates to
performance by such party or any Credit Support Provider of such party of an
obligation to make any payment or delivery under, or to compliance with any
other material provision of, the relevant Credit Support Document) will only
have the right to designate an Early Termination Date under Section
6(b)(iv)(2)(A) as a result of an Illegality under Section 5(b)(i)(2) or a
Force Majeure Event under Section 5(b)(ii)(2) following the prior designation
by the other party of an Early Termination Date, pursuant
to Section 6(b)(iv)(2)(A), in respect of less than all Affected
Transactions.
(c) Effect of Designation. |
(i) If notice designating an Early Termination Date is given under Section 6(a) or 6(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 9(h)(i) 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 will be
determined pursuant to Sections 6(e) and 9(h)(ii).
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(d) Calculations; Payment Date.
(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 any quotations, market data or information from
internal sources used in making such calculations), (2) specifying (except where there
are two Affected Parties) any Early Termination Amount payable and
(3) 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 or market data obtained in determining a
Close-out Amount, the records of the party obtaining such quotation or market data will be
conclusive evidence of the existence and accuracy of such quotation or market data.
(ii) Payment Date. An Early Termination Amount due in respect of any Early Termination Date
will, together with any amount of interest payable pursuant to Section 9(h)(ii)(2), be
payable (1) on the day on which 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
(2) on the day which is two Local Business Days after the day on which notice of the amount
payable is effective (or, if there are two Affected Parties, after the day on which the
statement provided pursuant to clause (i) above by the second party to provide such a
statement is effective) in the case of an Early Termination Date which is designated as a
result of a Termination Event.
(e) Payments on Early Termination. If an Early Termination Date occurs, the amount, if any, payable
in respect of that Early Termination Date (the Early Termination Amount) will be determined
pursuant to this Section 6(e) and will be subject to Section 6(f).
(i) Events of Default. If the Early Termination Date results from an Event of Default, the
Early Termination Amount will be an amount equal to (1) the sum of (A) the Termination
Currency Equivalent of the Close-out Amount or Close-out Amounts (whether positive or
negative) determined by the Non-defaulting Party for each Terminated Transaction or group
of Terminated Transactions, as the case may be, and (B) the Termination Currency Equivalent
of the Unpaid Amounts owing to the Non-defaulting Party less (2) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party. If the Early Termination
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 the
Early Termination Amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a Termination
Event:
(1) One Affected Party. Subject to clause (3) below, if there is one Affected Party,
the Early Termination Amount will be determined in accordance with Section 6(e)(i),
except that references to the Defaulting Party and to the Non-defaulting Party will
be deemed to be references to the Affected Party and to the Non-affected Party,
respectively.
(2) Two Affected Parties. Subject to clause (3) below, if there are two Affected
Parties, each party will determine an amount equal to the Termination Currency
Equivalent of the sum of the Close-out Amount or Close-out Amounts (whether positive
or negative) for each Terminated Transaction or group of Terminated Transactions, as
the case may be, and the Early Termination Amount will be an amount equal to (A) the
sum of (I) one-half of the difference between the higher
amount so determined (by party X) and the lower amount so determined (by party
Y) and (II) the Termination Currency Equivalent of the Unpaid Amounts owing to X
less (B) the Termination Currency Equivalent of the Unpaid Amounts owing to Y. If
the Early Termination Amount is a positive number, Y will pay it to X; if it is a
negative number, X will pay the absolute value of the Early Termination Amount to Y.
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(3) Mid-Market Events. If that Termination Event is an Illegality or a Force
Majeure Event, then the Early Termination Amount will be determined in accordance
with clause (1) or (2) above, as appropriate, except that, for the purpose of
determining a Close-out Amount or Close-out Amounts, the Determining Party will:
(A) if obtaining quotations from one or more third parties (or from any of
the Determining Partys Affiliates), ask each third party or Affiliate (I)
not to take account of the current creditworthiness of the Determining Party
or any existing Credit Support Document and (II) to provide mid-market
quotations; and
(B) in any other case, use mid-market values without regard to the
creditworthiness of the Determining Party.
(iii) Adjustment for Bankruptcy. In circumstances where an Early Termination Date occurs
because Automatic Early Termination applies in respect of a party, the Early Termination
Amount will be subject to such adjustments as are appropriate and permitted by applicable
law to reflect any payments or 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) Adjustment for Illegality or Force Majeure Event. The failure by a party or any Credit
Support Provider of such party to pay, when due, any Early Termination Amount will not
constitute an Event of Default under Section 5(a)(i) or
5(a)(iii)(1) if such failure is due
to the occurrence of an event or circumstance which would, if it occurred with respect to
payment, delivery or compliance related to a Transaction, constitute or give rise to an
Illegality or a Force Majeure Event. Such amount will (1) accrue interest and otherwise be
treated as an Unpaid Amount owing to the other party if subsequently an Early Termination
Date results from an Event of Default, a Credit Event Upon Merger or an Additional
Termination Event in respect of which all outstanding Transactions are Affected
Transactions and (2) otherwise accrue interest in accordance with Section 9(h)(ii)(2).
(v) Pre-Estimate. The parties agree that 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 the termination of the Terminated Transactions.
(f) Set-Off. Any Early Termination Amount payable to one party (the Payee) by the other party
(the Payer), in circumstances where there is a Defaulting Party or where there is one Affected
Party in the case where either a Credit Event Upon Merger has occurred or any other Termination
Event in respect of which all outstanding Transactions are Affected Transactions has occurred,
will, at the option of the Non-defaulting Party or the Non-affected Party, as the case may be
(X) (and without prior notice to the Defaulting Party or the Affected Party, as the case may
be), be reduced by its set-off against any other amounts (Other Amounts) payable by the Payee to
the Payer (whether or not arising under this Agreement, matured or contingent and irrespective of
the currency, place of payment or place of booking of the obligation). To the extent that any
Other Amounts are so set off, those Other Amounts will be discharged promptly and in all respects.
X will give notice to the other party of any set-off effected under this Section 6(f).
For this purpose, either the Early Termination Amount or the Other Amounts (or the relevant
portion of such
amounts) may be converted by X into the currency in which the other is denominated at the rate of
exchange at which such party would be able, in good faith and using commercially reasonable
procedures, to purchase the relevant amount of such currency.
ISDA® 2002
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If an obligation is unascertained, X may in good faith estimate that obligation and set off in
respect of the estimate, subject to the relevant party accounting to the other when the obligation
is ascertained.
Nothing in this Section 6(f) will be effective to create a charge or other security interest. This
Section 6(f) will be without prejudice and in addition to any right of set-off, offset,
combination of accounts, lien, right of retention or withholding or similar right or requirement
to which any party is at any time otherwise entitled or subject (whether by operation of law,
contract or otherwise).
7. Transfer
Subject to Section 6(b)(ii) and to the extent permitted by applicable law, 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); and
(b) a party may make such a transfer of all or any part of its interest in any Early Termination
Amount payable to it by a Defaulting Party, together with any amounts payable on or with respect to
that interest and any other rights associated with that interest pursuant to
Sections 8, 9(h) and 11.
Sections 8, 9(h) and 11.
Any purported transfer that is not in compliance with this Section 7 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 good faith and using commercially reasonable procedures
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 payment 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.
(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 clause (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 purpose of such judgment or order and
the rate of exchange at which such party is able, acting in good faith and using
ISDA® 2002
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commercially reasonable procedures 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.
(c) Separate Indemnities. To the extent permitted by applicable law, the indemnities in this
Section 8 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. Each of the parties acknowledges that in entering into
this Agreement it has not relied on any oral or written representation, warranty or other assurance
(except as provided for or referred to in this Agreement) and waives all rights and remedies which
might otherwise be available to it in respect thereof, except that nothing in this Agreement will
limit or exclude any liability of a party for fraud.
(b) Amendments. An amendment, modification or waiver in respect of this Agreement will only be
effective if 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 by an exchange of electronic messages
on an electronic messaging system.
(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 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 and by
electronic messaging system), 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 will 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, by an
exchange of electronic messages on an electronic messaging system or by an
exchange of e-mails, 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, electronic message or
e-mail constitutes a Confirmation.
e-mail 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.
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(h) Interest and Compensation.
(i) Prior to Early Termination. Prior to the occurrence or effective designation of an
Early Termination Date in respect of the relevant Transaction:
(1) Interest on Defaulted Payments. If a party defaults in the performance of any
payment obligation, it will, to the extent permitted by applicable law and subject to
Section 6(c), pay interest (before as well as after judgment) on the overdue amount
to the other party on demand in the same currency as the overdue amount, for the
period from (and including) the original due date for payment to (but excluding) the
date of actual payment (and excluding any period in respect of which interest or
compensation in respect of the overdue amount is due pursuant to clause (3)(B) or (C)
below), at the Default Rate.
(2) Compensation for Defaulted Deliveries. If a party defaults in the performance of
any obligation required to be settled by delivery, it will on demand (A) compensate
the other party to the extent provided for in the relevant Confirmation or elsewhere
in this Agreement and (B) unless otherwise provided in the relevant Confirmation or
elsewhere in this Agreement, to the extent permitted by applicable law and subject to
Section 6(c), pay to the other party interest (before as well as after judgment) on
an amount equal to the fair market value of that which was required to be delivered
in the same currency as that amount, for the period from (and including) the
originally scheduled date for delivery to (but excluding) the date of actual delivery
(and excluding any period in respect of which interest or compensation in respect of
that amount is due pursuant to clause (4) below), at the Default Rate. The fair
market value of any obligation referred to above will be determined as of the
originally scheduled date for delivery, in good faith and using commercially
reasonable procedures, by the party that was entitled to take delivery.
(3) Interest on Deferred Payments. If:
(A) a party does not pay any amount that, but for Section 2(a)(iii), would
have been payable, it will, to the extent permitted by applicable law and
subject to Section 6(c) and clauses (B) and (C) below, pay interest (before
as well as after judgment) on that amount to the other party on demand (after
such amount becomes payable) in the same currency as that amount, for the
period from (and including) the date the amount would, but for Section
2(a)(iii), have been payable to (but excluding) the date the amount actually
becomes payable, at the Applicable Deferral Rate;
(B) a payment is deferred pursuant to Section 5(d), the party which would
otherwise have been required to make that payment will, to the extent
permitted by applicable law, subject to Section 6(c) and for so long as no
Event of Default or Potential Event of Default with respect to that party has
occurred and is continuing, pay interest (before as well as after judgment)
on the amount of the deferred payment to the other party on demand (after
such amount becomes payable) in the same currency as the deferred payment,
for the period from (and including) the date the amount would, but for
Section 5(d), have been payable to (but excluding) the earlier of the date
the payment is no longer deferred pursuant to Section 5(d) and the date
during the deferral period upon which an Event of Default or Potential Event
of Default with respect to that party occurs, at the Applicable Deferral
Rate; or
(C) a party fails to make any payment due to the occurrence of an Illegality
or a Force Majeure Event (after giving effect to any deferral period
contemplated by clause (B) above), it will, to the extent permitted by
applicable law, subject to Section 6(c) and for so long as the event or
circumstance giving rise to that Illegality or Force Majeure Event
ISDA® 2002
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continues and no Event of Default or Potential Event of Default with respect to
that party has occurred and is continuing, pay interest (before as well as after
judgment) on the overdue amount to the other party on demand in the same currency
as the overdue amount, for the period from (and including) the date the party
fails to make the payment due to the occurrence of the relevant Illegality or
Force Majeure Event (or, if later, the date the payment is no longer deferred
pursuant to Section 5(d)) to (but excluding) the earlier of the date the event or
circumstance giving rise to that Illegality or Force Majeure Event ceases to exist
and the date during the period upon which an Event of Default or Potential Event
of Default with respect to that party occurs (and excluding any period in respect
of which interest or compensation in respect of the overdue amount is due pursuant
to clause (B) above), at the Applicable Deferral Rate.
(4) Compensation for Deferred Deliveries. If:
(A) a party does not perform any obligation that, but for Section 2(a)(iii), would
have been required to be settled by delivery;
(B) a delivery is deferred pursuant to Section 5(d); or
(C) a party fails to make a delivery due to the occurrence of an Illegality or a
Force Majeure Event at a time when any applicable Waiting Period has expired,
the party required (or that would otherwise have been required) to make the delivery will,
to the extent permitted by applicable law and subject to Section 6(c), compensate and pay
interest to the other party on demand (after, in the case of clauses (A) and (B) above,
such delivery is required) if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
(ii) Early Termination. Upon the occurrence or effective designation of an Early
Termination Date in respect of a Transaction:
(1) Unpaid Amounts. For the purpose of determining an Unpaid Amount in respect of the
relevant Transaction, and to the extent permitted by applicable law, interest will accrue
on the amount of any payment obligation or the amount equal to the fair market value of any
obligation required to be settled by delivery included in such determination in the same
currency as that amount, for the period from (and including) the date the relevant
obligation was (or would have been but for Section 2(a)(iii) or 5(d)) required to have been
performed to (but excluding) the relevant Early Termination Date, at the Applicable
Close-out Rate.
(2) Interest on Early Termination Amounts. If an Early Termination Amount is due in respect
of such Early Termination Date, that amount will, to the extent permitted by applicable
law, be paid together with interest (before as well as after judgment) on that amount in
the Termination Currency, for the period from (and including) such Early Termination Date
to (but excluding) the date the amount is paid, at the Applicable Close-out Rate.
(iii) Interest Calculation. Any interest pursuant to this Section 9(h) will be calculated on
the basis of daily compounding and the actual number of days elapsed.
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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 and agrees with the
other party that, notwithstanding the place of booking or its jurisdiction of incorporation or
organisation, its obligations are the same in terms of recourse against it as if it had entered
into the Transaction through its head or home office, except that a party will not have recourse to
the head or home office of the other party in respect of any payment or delivery deferred pursuant
to Section 5(d) for so long as the payment or delivery is so deferred. This representation and
agreement will be deemed to be repeated by each party on each date on which the parties enter into
a Transaction.
(b) If a party is specified as a Multibranch Party in the Schedule, such party may, subject to
clause (c) below, enter into a Transaction through, book a Transaction in and make and receive
payments and deliveries with respect to a Transaction through any Office listed in respect of that
party in the Schedule (but not any other Office unless otherwise agreed by the parties in writing).
(c) The Office through which a party enters into a Transaction will be the Office specified for
that party in the relevant Confirmation or as otherwise agreed by the parties in writing, and, if
an Office for that party is not specified in the Confirmation or otherwise agreed by the parties in
writing, its head or home office. Unless the parties otherwise agree in writing, the Office
through which a party enters into a Transaction will also be the Office in which it books the
Transaction and the Office through which it makes and receives payments and deliveries with respect
to the Transaction. Subject to Section 6(b)(ii), neither party may change the Office in which it
books the Transaction or the Office through which it makes and receives payments or deliveries with
respect to a Transaction without the prior written consent of the other party.
11. Expenses
A Defaulting Party will on demand indemnify and hold harmless the other party for and against all
reasonable out-of-pocket expenses, including legal fees, execution 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 described below (except that a notice or other communication under Section 5 or 6 may
not be given by electronic messaging system or e-mail) to the address or number or in accordance
with the electronic messaging system or e-mail 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 recipients answerback is received;
(iii) if sent by facsimile transmission, on the date it 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
senders facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent
(return receipt requested), on the date it is delivered or its delivery is attempted;
(v) if sent by electronic messaging system, on the date it is received; or
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(vi) if sent by e-mail, on the date it is delivered,
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 will be
deemed given and effective on the first following day that is a Local Business Day.
(b) Change of Details. Either party may by notice to the other change the address, telex or
facsimile number or electronic messaging system or e-mail 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 any dispute arising
out of or in connection with this Agreement (Proceedings), each party irrevocably:
(i) submits:
(1) if this Agreement is expressed to be governed by English law, to (A) the
non-exclusive jurisdiction of the English courts if the Proceedings do not involve a
Convention Court and (B) the exclusive jurisdiction of the English courts if the
Proceedings do involve a Convention Court; or
(2) if this Agreement is expressed to be governed by the laws of the State of New
York, 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;
(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; and
(iii) agrees, to the extent permitted by applicable law, that the bringing of Proceedings
in any one or more jurisdictions will not 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 partys 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(a)(i), 12(a)(iii) or 12(a)(iv).
Nothing in this Agreement will affect the right of either party to serve process in any other
manner permitted by applicable law.
(d) Waiver of Immunities. Each party irrevocably waives, to the 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, (iii) relief by way of injunction or order for specific performance or recovery of
property, (iv) attachment of its assets (whether before or after judgment) and (v) 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.
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14. Definitions
As used in this Agreement:
Additional Representation has the meaning specified in Section
3.
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, Force Majeure Event, Tax Event or Tax Event Upon Merger, all Transactions affected by
the occurrence of such Termination Event (which, in the case of an Illegality under
Section 5(b)(i)(2) or a Force Majeure Event under Section 5(b)(ii)(2), means all Transactions unless the relevant Credit Support Document references only certain Transactions, in which case those Transactions and, if the relevant Credit Support Document constitutes a Confirmation for a Transaction, that Transaction) and (b) with respect to any other Termination Event, all Transactions.
Section 5(b)(i)(2) or a Force Majeure Event under Section 5(b)(ii)(2), means all Transactions unless the relevant Credit Support Document references only certain Transactions, in which case those Transactions and, if the relevant Credit Support Document constitutes a Confirmation for a Transaction, that Transaction) 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.
Agreement has the meaning specified in
Section 1(c).
Applicable Close-out Rate
means:
(a) in respect of the determination of an Unpaid Amount:
(i) 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;
(ii) in respect of obligations payable or deliverable (or which would have been but
for Section 2(a)(iii)) by a
Non-defaulting Party, the Non-default Rate;
(iii) in respect of obligations deferred pursuant to Section 5(d), if there is no
Defaulting Party and for so long as the deferral period continues, the Applicable Deferral
Rate; and
(iv) in all other cases following the occurrence of a Termination Event (except where
interest accrues
pursuant to clause (iii) above), the Applicable Deferral Rate; and
(b) in respect of an Early Termination Amount:
(i) for the period from (and including) the relevant Early Termination Date to (but
excluding) the date
(determined in accordance with Section 6(d)(ii)) on which that amount is payable:
(1) if the Early Termination Amount is payable by a Defaulting Party, the Default
Rate;
(2) if the Early Termination Amount is payable by a Non-defaulting Party, the
Non-default Rate; and
(3) in all other cases, the Applicable Deferral Rate; and
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(ii) for the period from (and including) the date (determined in accordance with
Section 6(d)(ii)) on which that amount is payable to (but excluding) the date of actual
payment:
(1) if a party fails to pay the Early Termination Amount due to the occurrence of an
event or circumstance which would, if it occurred with respect to a payment or
delivery under a Transaction, constitute or give rise to an Illegality or a Force
Majeure Event, and for so long as the Early Termination Amount remains unpaid due to
the continuing existence of such event or circumstance, the Applicable Deferral
Rate;
(2) if the Early Termination Amount is payable by a Defaulting Party (but excluding
any period in respect of which clause (1) above applies), the Default Rate;
(3) if the Early Termination Amount is payable by a Non-defaulting Party (but
excluding any period in respect of which clause (1) above applies), the Non-default
Rate; and
(4) in all other cases, the Termination Rate.
Applicable Deferral Rate means:
(a) for the purpose of Section 9(h)(i)(3)(A), the rate certified by the relevant payer to be a rate
offered to the payer by a major bank in a relevant interbank market for overnight deposits in the
applicable currency, such bank to be selected in good faith by the payer for the purpose of
obtaining a representative rate that will reasonably reflect conditions prevailing at the time in
that relevant market;
(b) for purposes of Section 9(h)(i)(3)(B) and clause (a)(iii) of the definition of Applicable
Close-out Rate, the rate certified by the relevant payer to be a rate offered to prime banks by a
major bank in a relevant interbank market for overnight deposits in the applicable currency, such
bank to be selected in good faith by the payer after consultation with the other party, if
practicable, for the purpose of obtaining a representative rate that will reasonably reflect
conditions prevailing at the time in that relevant market; and
(c) for
purposes of Section 9(h)(i)(3)(C) and clauses (a)(iv), (b)(i)(3) and (b)(ii)(1) of the
definition of Applicable Close-out Rate, a rate equal to the arithmetic mean of the rate determined
pursuant to clause (a) above and a rate per annum equal to the cost (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.
Automatic Early Termination has the meaning specified in Section
6(a).
Burdened Party has the meaning specified in Section
5(b)(iv).
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 interpretation of any law) that
occurs after the parties enter into the relevant Transaction.
Close-out Amount means, with respect to each Terminated Transaction or each group of Terminated
Transactions and a Determining Party, the amount of the losses or costs of the Determining Party
that are or would be incurred under then prevailing circumstances (expressed as a positive number)
or gains of the Determining Party that are or would be realised under then prevailing circumstances
(expressed as a negative number) in replacing, or in providing for the Determining Party the
economic equivalent of, (a) the material terms of that Terminated Transaction or group of
Terminated Transactions, including the payments and deliveries by the parties under Section 2(a)(i)
in respect of that 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 (assuming
satisfaction of the conditions precedent in
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Section 2(a)(iii)) and (b) the option rights of the parties in respect of that Terminated
Transaction or group of Terminated Transactions.
Any Close-out Amount will be determined by the Determining Party (or its agent), which will act in
good faith and use commercially reasonable procedures in order to produce a commercially
reasonable result. The Determining Party may determine a Close-out Amount for any group of
Terminated Transactions or any individual Terminated Transaction but, in the aggregate, for not
less than all Terminated Transactions. Each Close-out Amount will be determined as of the Early
Termination Date or, if that would not be commercially reasonable, as of the date or dates
following the Early Termination Date as would be commercially reasonable.
Unpaid Amounts in respect of a Terminated Transaction or group of Terminated Transactions and
legal fees and out-of-pocket expenses referred to in Section 11 are to be excluded in all
determinations of Close-out Amounts.
In determining a Close-out Amount, the Determining Party may consider any relevant information,
including, without limitation, one or more of the following types of information:
(i) quotations (either firm or indicative) for replacement transactions supplied by one or more
third parties that may take into account the creditworthiness of the Determining Party at the time
the quotation is provided and the terms of any relevant documentation, including credit support
documentation, between the Determining Party and the third party providing the quotation;
(ii) information consisting of relevant market data in the relevant market supplied by one or more
third parties including, without limitation, relevant rates, prices, yields, yield curves,
volatilities, spreads, correlations or other relevant market data in the relevant market; or
(iii) information of the types described in clause (i) or (ii) above from internal sources
(including any of the Determining Partys Affiliates) if that information is of the same type used
by the Determining Party in the regular course of its business for the valuation of similar
transactions.
The Determining Party will consider, taking into account the standards and procedures described in
this definition, quotations pursuant to clause (i) above or relevant market data pursuant to
clause (ii) above unless the Determining Party reasonably believes in good faith that such
quotations or relevant market data are not readily available or would produce a result that would
not satisfy those standards. When considering information described in clause (i), (ii) or (iii)
above, the Determining Party may include costs of funding, to the extent costs of funding are not
and would not be a component of the other information being utilised. Third parties supplying
quotations pursuant to clause (i) above or market data pursuant to clause (ii) above may include,
without limitation, dealers in the relevant markets, end-users of the relevant product,
information vendors, brokers and other sources of market information.
Without duplication of amounts calculated based on information described in clause (i), (ii) or
(iii) above, or other relevant information, and when it is commercially reasonable to do so, the
Determining Party may in addition consider in calculating a Close-out Amount any loss or cost
incurred in connection with its terminating, liquidating or re-establishing any hedge related to a
Terminated Transaction or group of Terminated Transactions (or any gain resulting from any of
them).
Commercially reasonable procedures used in determining a Close-out Amount may include the
following:
(1) application to relevant market data from third parties pursuant to clause (ii) above or
information from internal sources pursuant to clause (iii) above of pricing or other valuation
models that are, at the time of the determination of the Close-out Amount, used by the Determining
Party in the regular course of its business in pricing or valuing transactions between the
Determining Party and unrelated third parties that are similar to the Terminated Transaction or
group of Terminated Transactions; and
ISDA® 2002
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(2) application of different valuation methods to Terminated Transactions or groups of Terminated
Transactions depending on the type, complexity, size or number of the Terminated Transactions or
group of Terminated Transactions.
Confirmation has the meaning specified in the preamble.
consent includes a consent, approval, action, authorisation, exemption, notice, filing,
registration or exchange control consent.
Contractual Currency has the meaning specified in Section 8(a).
Convention Court means any court which is bound to apply to the Proceedings either Article 17 of
the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters or Article 17 of the 1988 Lugano Convention on Jurisdiction and the Enforcement
of Judgments in Civil and Commercial Matters.
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.
Cross-Default means the event specified in Section 5(a)(vi).
Default Rate means a rate per annum equal to the cost (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).
Designated Event has the meaning specified in Section 5(b)(v).
Determining Party means the party determining a Close-out Amount.
Early Termination Amount has the meaning specified in Section 6(e).
Early Termination Date means the date determined in accordance with Section 6(a) or 6(b)(iv).
electronic messages does not include e-mails but does include documents expressed in markup
languages, and electronic messaging system will be construed accordingly.
English law means the law of England and Wales, and English will be construed
accordingly.
Event of Default has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
Force Majeure Event has the meaning specified in
Section 5(b).
General Business Day means a day on which commercial banks are open for general business
(including dealings in foreign exchange and foreign currency deposits).
Illegality has the meaning specified in Section 5(b).
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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 jurisdiction 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 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 unlawful will be construed
accordingly.
Local Business Day means (a) in relation to any obligation under Section 2(a)(i), a General
Business Day in the place or places specified in the relevant Confirmation and a day on which a
relevant settlement system is open or operating as specified in the relevant Confirmation or, if a
place or a settlement system is not so specified, as otherwise agreed by the parties in writing or
determined pursuant to provisions contained, or incorporated by reference, in this Agreement, (b)
for the purpose of determining when a Waiting Period expires, a General Business Day in the place
where the event or circumstance that constitutes or gives rise to the Illegality or Force Majeure
Event, as the case may be, occurs, (c) in relation to any other payment, a General Business Day 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 and, if that currency does not have a single
recognised principal financial centre, a day on which the settlement system necessary to
accomplish such payment is open, (d) in relation to any notice or other communication, including
notice contemplated under Section 5(a)(i), a General Business Day (or a day that would have been a
General Business Day but for the occurrence of an event or circumstance which would, if it
occurred with respect to payment, delivery or compliance related to a Transaction, constitute or
give rise to an Illegality or a Force Majeure Event) in the place 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 (e) in relation to
Section 5(a)(v)(2), a General Business Day in the relevant locations for performance with respect to such Specified Transaction.
Section 5(a)(v)(2), a General Business Day in the relevant locations for performance with respect to such Specified Transaction.
Local Delivery Day means, for purposes of Sections 5(a)(i) and 5(d), a day on which settlement
systems necessary to accomplish the relevant delivery are generally open for business so that the
delivery is capable of being accomplished in accordance with customary market practice, in the
place specified in the relevant Confirmation or, if not so specified, in a location as determined
in accordance with customary market practice for the relevant delivery.
Master Agreement has the meaning specified in the preamble.
Merger Without Assumption means the event specified in Section 5(a)(viii).
Multiple Transaction Payment Netting has the meaning specified in Section 2(c).
Non-affected Party means, so long as there is only one Affected Party, the other party.
Non-default Rate means the rate certified by the Non-defaulting Party to be a rate offered to
the Non-defaulting Party by a major bank in a relevant interbank market for overnight deposits in
the applicable currency, such bank to be selected in good faith by the Non-defaulting Party for
the purpose of obtaining a representative rate that will reasonably reflect conditions prevailing
at the time in that relevant market.
Non-defaulting Party has the meaning specified in Section 6(a).
Office means a branch or office of a party, which may be such partys head or home office.
Other Amounts has the meaning specified in Section 6(f).
ISDA® 2002
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Payee has the meaning specified in Section 6(f).
Payer has the meaning specified in Section 6(f).
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.
Proceedings has the meaning specified in Section 13(b). Process Agent has the meaning specified in the Schedule.
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.
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 (d) in relation to any payment, from or through which such
payment is made.
Schedule has the meaning specified in the preamble.
Scheduled Settlement Date means a date on which a payment or delivery is to be made under
Section 2(a)(i) with respect to a Transaction.
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 to any such transaction) 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 not a Transaction under this
Agreement but (i) which is a rate swap transaction, swap option, 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, credit protection transaction, credit swap, credit default swap, credit default
option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase
transaction, buy/sell-back transaction, securities lending transaction, weather index transaction
or forward purchase or sale of a security, commodity or other financial instrument or interest
(including any option with respect to any of these transactions) or (ii) which is a type of
transaction that is similar to any transaction referred to in clause (i) above that is currently,
or in the future becomes, recurrently entered into in the financial markets (including terms and
conditions incorporated by reference in such agreement) and which is a forward, swap, future,
option or other derivative on one or more rates, currencies, commodities, equity securities or
other equity instruments, debt securities or other debt instruments, economic indices or measures
of economic risk or value, or other benchmarks against which payments or deliveries are to be made,
(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. Stamp Tax Jurisdiction has the meaning specified in Section 4(e).
ISDA® 2002
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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
an Illegality or a Force Majeure Event, all Affected Transactions specified in the notice given
pursuant to Section 6(b)(iv), (b) if resulting from any other Termination Event, all Affected
Transactions and (c) if resulting from an Event of Default, all Transactions in effect either
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 means (a) if a Termination Currency is specified in the Schedule and that
currency is freely available, that currency, and (b) otherwise, euro if this Agreement is
expressed to be governed by English law or United States Dollars if this Agreement is expressed to
be governed by the laws of the State of New York.
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 than 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 Close-out
Amount 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 Force Majeure Event, a Tax Event, 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.
Threshold Amount means the amount, if any, specified as such in the Schedule. Transaction has the meaning specified in the preamble.
Unpaid Amounts owing to any party means, with respect to an Early Termination Date, the
aggregate of (a) in respect of all Terminated Transactions, the amounts that became payable (or
that would have become payable but for Section 2(a)(iii) or due but for Section 5(d)) to such
party under Section 2(a)(i) or 2(d)(i)(4) on or prior to such Early Termination Date and which
remain unpaid as at such Early Termination Date, (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)
or 5(d)) 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 and (c) if the
Early Termination Date results from an Event of Default, a Credit Event Upon Merger or an
Additional Termination Event in respect of which all outstanding Transactions are Affected
Transactions, any Early Termination Amount due prior to such Early Termination Date and which
remains unpaid as of such Early Termination Date, in each case together with any amount of
interest accrued or other
ISDA® 2002
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compensation in respect of that obligation or deferred obligation, as the case may be, pursuant to
Section 9(h)(ii)(1) or (2), as appropriate. The fair market value of any obligation referred to in
clause (b) above will be determined as of the originally scheduled date for delivery, in good faith
and using commercially reasonable procedures, by the party obliged to make the determination under
Section 6(e) or, if each party is so obliged, it will be the average of the Termination Currency
Equivalents of the fair market values so determined by both parties.
Waiting Period means:
(a) in respect of an event or circumstance under Section 5(b)(i), other than in the case of Section
5(b)(i)(2) where the relevant payment, delivery or compliance is actually required on the relevant day (in
which case no Waiting Period will apply), a period of three Local Business Days (or days that would have been
Local Business Days but for the occurrence of that event or circumstance) following the occurrence of that event
or circumstance; and
(b) in respect of an event or circumstance under Section 5(b)(ii), other than in the case of
Section 5(b)(ii)(2)where the relevant payment, delivery or compliance is actually required on the relevant day (in
which case no Waiting Period will apply), a period of eight Local Business Days (or days that would have been
Local Business Days but for the occurrence of that event or circumstance) following the occurrence of that event
or circumstance.
IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below
with effect from the date specified on the first page of this document.
(Name of Party) | (Name of Party) |
By:
|
By: | |||||||
Name: | Name: | |||||||
Title: | Title: | |||||||
Date: | Date: |
ISDA® 2002
28
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
2002 Master Agreement
to the
2002 Master Agreement
dated as of
between
|
and | |||||
(Party A) | (Party B) | |||||
[established as a [COUNTERPARTY TYPE]] | [established as a [COUNTERPARTY TYPE]] | |||||
[with company number [NUMBER]] | [with company number [NUMBER]] | |||||
[under the laws of [JURISDICTION]] | [under the laws of [JURISDICTION]] | |||||
[acting through its [BRANCH]]* | [acting through its [BRANCH]]* |
Part 1. Termination Provisions.
(a) | Specified Entity means in relation to Party A for the purpose of: | |
Section 5(a)(v), |
||
Section 5(a)(vi), |
||
Section 5(a)(vii), |
||
Section 5(b)(v), |
and in relation to Party B for the purpose of:
Section 5(a)(v), |
||
Section 5(a)(vi), |
||
Section 5(a)(vii), |
||
Section 5(b)(v), |
* | Include if applicable. |
ISDA® 2002
29
(b) | Specified Transaction [will have the meaning specified in Section 14 of this Agreement.][means ______________________________ | |
]* |
(c) | The Cross-Default provisions of Section 5(a)(vi) [will][will not]* apply to Party A |
[will][will not]* apply to Party B
[Specified Indebtedness [will have the meaning specified in Section 14 of this Agreement.][means ____________________________ | ||
]* | ||
Threshold Amount means __________________________________________________________________________________ | ||
]** | ||
(d) | The Credit Event Upon Merger provisions of Section 5(b)(v) [will][will not]* apply to Party A |
[will][will not]* apply to Party B
(e) | The Automatic Early Termination provision of Section 6(a) [will][will not]* apply to Party A |
[will][will not]* apply to Party B
(f) | Termination Currency [will have the meaning specified in Section 14 of this Agreement.][means ______________________________ | |
]* |
(g) | Additional Termination Event [will][will not]* apply. [The following will constitute an Additional Termination Event: _____________ | |
For the purpose of the foregoing Termination Event, the Affected Party or Affected Parties will be: _________________________ | ||
]*** |
Part 2. Tax Representations.****
(a) | Payer Representations. For the purpose of Section 3(e) of this Agreement[, Party A and Party B do not make any representations.][: |
[[(i)] | [Party A] [and] [Party B] [each] make[s] the following representation: | ||
It is not required by any applicable law, as modified by the practice of any
relevant governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other than
interest under Section 9(h) of this Agreement) to |
* | Delete as applicable. | |
** | Include if Cross-Default will apply to either Party A or Party B. | |
*** | Include if Additional Termination Event will apply. | |
**** | N.B.: the following representations may need modification if either party is a Multibranch Party. |
ISDA® 2002
30
be made by it to the other party under this Agreement. In making this representation, it may rely on (i) the accuracy of any representations 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, except that it will not be a breach of this representation where reliance is placed on clause (ii) above 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.]* |
[[(ii)] | [Party A] [and] [Party B] [each] make[s] the following representation[s]: ___________________________________________ | ||
]]* |
(b) Payee Representations. For the purpose of Section 3(f) of this Agreement[, Party A and Party B
do not make any representations.][:
[[(i)] | [Party A] [and] [Party B] [each] make[s] the following representation: |
It is fully eligible for the benefits of the Business Profits or Industrial and
Commercial Profits provision, as the case may be, the interest provision or the Other
Income provision, if any, of the Specified Treaty with respect to any payment described in
such provisions and received or to be received by it in connection with this Agreement and
no such payment is attributable to a trade or business carried on by it through a permanent
establishment in the Specified Jurisdiction.
Specified Treaty means with respect to Party A
Specified Jurisdiction means with respect to Party A
Specified Treaty means with respect to Party B
Specified Jurisdiction means with respect to Party B
]*
[[(ii)] | [Party A] [and] [Party B] [each] make[s] the following representation: |
Each payment received or to be received by it in connection with this Agreement will be
effectively connected with its conduct of a trade or business in the Specified Jurisdiction.
Specified Jurisdiction means with respect to Party A
Specified Jurisdiction means with respect to Party B ]*
[[(iii)] | [Party A] [and] [Party B] [each] make[s] the following representation: |
It is a U.S. person (as that term is used in section 1.1441-4(a)(3)(ii) of United States
Treasury Regulations) for United States federal income tax purposes.]*
* | Delete as applicable. |
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[[(iv)] | [Party A] [and] [Party B] [each] make[s] the following representation: |
It is a non-U.S. branch of a foreign person (as that term is used in section
1.1441-4(a)(3)(ii) of United States Treasury Regulations) for United States federal income
tax purposes.]*
[[(v)] | [Party A] [and] [Party B] [each] make[s] the following representation: |
With respect to payments made to an address outside the United States or made by a transfer
of funds to an account outside the United States, it is a non-U.S. branch of a foreign
person (as that term is used in section 1.1441-4(a)(3)(ii) of United States Treasury
Regulations) for United States federal income tax purposes.]*
[[(vi)] | [Party A] [and] [Party B] [each] make[s] the following representation: |
It is a foreign person (as that term is used in section 1.6041-4(a)(4) of United States
Treasury Regulations) for United States federal income tax purposes.]*
[[(vii)] | [Party A] [and] [Party B] [each] make[s] the following representation[s]: | ||
]]* | |||
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and 4(a)(ii) of this Agreement, each party agrees to deliver
the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are[: none][:
Party required to | Form/Document/ | Date by which | ||
deliver document | Certificate | to be delivered | ||
]* | ||||
|
* | Delete as applicable. |
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(b) Other documents to be delivered are[: none][:
Covered by | ||||||
Party required to | Form/Document/ | Date by which | Section 3(d) | |||
deliver document | Certificate | to be delivered | Representation | |||
[Yes] [No] | ||||||
[Yes] [No] | ||||||
[Yes] [No] | ||||||
[Yes] [No] | ||||||
[Yes][No]]* | ||||||
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: | ||||
Attention: | ||||
Telex No.:
|
Answerback: | |||||
Facsimile No.:
|
Telephone No.: | |||||
E-mail: |
||
Electronic Messaging System Details: |
||
Specific Instructions: |
||
Address for notices or communications to Party B: |
Address: |
||
Attention: |
||
Telex No.:
|
Answerback: | |||||
Facsimile No.:
|
Telephone No.: | |||||
E-mail: |
||
Electronic Messaging System Details: |
||
Specific Instructions: |
||
* | Delete as applicable. |
ISDA® 2002
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(b) | Process Agent. For the purpose of Section 13(c) of this Agreement: |
Party A appoints as its Process Agent: [not applicable][
|
]* | |||
Party B appoints as its Process Agent: [not applicable][
|
]* | |||
(c) | Offices. The provisions of Section 10(a) [will][will not]* apply to this Agreement. | |||
(d) | Multibranch Party. For the purpose of Section 10(b) of this Agreement: | |||
Party A [is not a Multibranch Party.][is a Multibranch Party and may enter into a Transaction through any of the following Offices: |
]* | ||||||
Party B [is not a Multibranch Party.][is a Multibranch Party and may enter into a Transaction through any of the following Offices: |
]* | ||||||
[(e) | Calculation Agent. The Calculation Agent is , unless otherwise specified in a Confirmation in relation to the relevant Transaction.]** |
[(f)]
|
Credit Support Document. Details of any Credit Support Document: [none][ | ||||
]* |
||
[(g)]
|
Credit Support Provider. Credit Support Provider means in relation to Party A, [none][ | |||
]* |
||
Credit Support Provider means in relation to Party B, [none][ |
||
]* |
||
[(h)] | Governing Law. This Agreement will be governed by and construed in accordance with [English law][the laws of the State of New York (without reference to choice of law doctrine)]*. |
* | Delete as applicable. | |
** | Include if applicable. |
ISDA® 2002
34
[(i)] | Netting of Payments. Multiple Transaction Payment Netting [will not apply for the purpose of Section 2(c) of this Agreement.][will apply for the purpose of Section 2(c) of this Agreement to [all Transactions][the following Transactions or groups of Transactions: | |||||||
] | ||||||||
(in each case starting from [the date of this Agreement][ | ])]* |
[(j)] | Affiliate [will have the meaning specified in Section 14 of this Agreement.][means |
]* | ||||||||
[(k)] | Absence of Litigation. For the purpose of Section 3(c): | |||||||
Specified Entity means in relation to Party A, | ||||||||
Specified Entity means in relation to Party B, | ||||||||
[(l)] | No Agency. The provisions of Section 3(g) [will][will not]* apply to this Agreement. | |||||||
[(m)] | Additional Representation [will][will not]* apply. [For the purpose of Section 3 of this Agreement, the following will constitute an Additional Representation: | |||||||
[[(i)] Relationship Between Parties. Each party will be deemed to represent to the other party on the date on which it enters into a Transaction that (absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that Transaction): |
[(1)] | Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into that Transaction and as to whether that Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into that Transaction, it being understood that information and explanations related to the terms and conditions of a Transaction will not be considered investment advice or a recommendation to enter into that Transaction. No communication (written or oral) received from the other party will be deemed to be an assurance or guarantee as to the expected results of that Transaction. | ||
[(2)] | Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of that Transaction. It is also capable of assuming, and assumes, the risks of that Transaction. | ||
[(3)] | Status of Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of that Transaction.]]* |
[[(n)] Recording of Conversations. Each party (i) consents to the recording of telephone
conversations between the trading, marketing and other relevant personnel of the parties in
connection with this Agreement or any potential Transaction, (ii) agrees to obtain any necessary
consent of, and give any necessary notice of such recording to, its relevant personnel and (iii)
agrees, to the extent permitted by applicable law, that recordings may be submitted in evidence in
any Proceedings.]**
* | Delete as applicable. | |
** | Include if applicable. |
ISDA® 2002
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Part 5. Other Provisions.
(Name of Party) | (Name of Party) | |||||||
By:
|
By: | |||||||
Name: | Name: | |||||||
Title: | Title: | |||||||
Date: | Date: |
ISDA® 2002
36