Exhibit 10.2
ISDA(R)
International Swaps and Derivatives Association, Inc.
2002 MASTER AGREEMENT
dated as of November 15, 2004
Cogent Capital Corp. and Aegis Assessment, Inc.
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.
(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 party's obligation to
make payment of any such amount will be automatically satisfied and discharged
and, if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by 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
2 ISDA(R) 2002
(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 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) 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.
(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;
3 ISDA(R) 2002
(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 tax in
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
4 ISDA(R) 2002
(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 party's execution or
performance of this Agreement by any such Stamp Tax Jurisdiction which is not
also a Stamp Tax Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any of the following events constitutes (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
5 ISDA(R) 2002
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
8 ISDA(R) 2002
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 Party's head or home
office, (ii) Section 10(a) applies, (iii) the other party seeks performance of
the relevant obligation or
10 ISDA(R) 2002
compliance with the relevant provision by the Affected Party's head or home
office and (iv) the Affected Party's 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
Party's 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 party's policies in
effect at such time would permit it to enter into
transactions with the transferee on the terms proposed.
(iii) Two Affected Parties. If 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.
11 ISDA(R) 2002
(iv) Right to Terminate.
(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 Nonaffected 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).
12 ISDA(R) 2002
(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 (I) the sum of (A) the Termination
Currency Equivalent of the Close-out Amount or Close-out
Amounts (whether positive or negative) determined by the
Nondefaulting 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.
13 ISDA(R) 2002
(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 Party's 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 Nonaffected 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.
14 ISDA(R) 2002
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.
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
15 ISDA(R) 2002
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.
(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.
16 ISDA(R) 2002
(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.
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
(3) (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
17 ISDA(R) 2002
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.
18 ISDA(R) 2002
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-ofpocket 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:
(ii) if sent by telex, on the date the recipient's 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 sender's facsimile
machine);
(i) if in writing and delivered in person or by courier, on the
date it is delivered;
(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;
(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.
(v) if sent by electronic messaging system, on the date it is
received; or
19 ISDA(R) 2002
(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:
0) 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 party's
Process Agent is unable to act as such, such party will promptly notify the
other party and within 30 days appoint a substitute process agent acceptable to
the other party. The parties irrevocably consent to service of process given in
the manner provided for notices in Section 12(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.
20 ISDA(R) 2002
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.
"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:
21 ISDA(R) 2002
(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
(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).
(3) in all other cases, the Applicable Deferral Rate; and
22 ISDA(R) 2002
"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
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 outof-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:
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 Party's 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.
23 ISDA(R) 2002
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
(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 ▇▇▇▇ ▇▇▇▇▇▇▇▇ 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).
24 ISDA(R) 2002
"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).
"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.
25 ISDA(R) 2002
"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.
"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 party's head or
home office.
"Other Amounts" has the meaning specified in Section 6(f).
26 ISDA(R) 2002
"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.
27 ISDA(R) 2002
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Stamp Tax Jurisdiction" has the meaning specified in Section 4(e).
"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.
28 ISDA(R) 2002
"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 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.
29 ISDA(R) 2002
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.
Cogent Capital Corp. Aegis Assessment, Inc.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------- ------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President Title: CEO
Date: November 15, 2004 Date: November 15, 2004
30 ISDA(R) 2002