EFTA01282547.pdf

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Swap [kale'', Assocuthon, Inc
2002 MASTER AGREEMENT
dated as of October 28, 2013
among
Deutsche Bank AG and Southern Financial, LLC
have entered and/or anticipate entering into one or more transactions (each a "Transaction") that are or will be
governed by this Master Agreement, which includes the schedule (the "Schedule"), and the documents and
other confirming evidence (each a "Confirmation") exchanged between the parties 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: —
I. Interpretation
(a) Definitions. The terms defined in Section 14 and elsewhere in this Master Agreement will have the
meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of the Schedule and the other
provisions of this Master Agreement, the Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement, such Confirmation will prevail for the purpose of
the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the fact that this Master Agreement
and all Confirmations form a single agreement between the parties (collectively referred to as this
"Agreement"), and the parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each Confirmation to be made by it,
subject to the other provisions of this Agreement.
(ii) Payments under this Agreement will be made on the due date for value on that date in the place
of the account specified in the relevant Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the required currency. Where
settlement is by delivery (that is, other than by payment), such delivery will be made for receipt on the
due date in the manner customary for the relevant obligation unless otherwise specified in the relevant
Confirmation or elsewhere in this Agreement.
Copyright C 2002 by International Snap Dealers Association, Inc.
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(iii) Each obligation of each party under Section 2(a)(i) is subject to (I) 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 pasty 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.
fe) Netting of Payments. If on any date amounts would otherwise be payable:—
(i) in the same currency; and
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 am 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 Withholdingf or Tax.
Gross-Up. All payments under this Agreement will be made without any deduction or withholding
for or on account of any Tax unless such deduction or withholding is required by any applicable law. as
modified by the practice of any relevant governmental revenue authority, then in effect. If a party is so
required to deduct or withhold, then that party ("X") will:—
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be deducted or withheld
(including the full amount required to be deducted or withheld from any additional amount paid by
X to Y under this Section 2(d)) promptly upon the earlier of determining that such deduction or
withholding is required or receiving notice that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy), or other documentation
reasonably acceptable to Y, evidencing such payment to such authorities; and
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(4) if such Tax is an Indemnifiable Tax, pay to Y. in addition to the payment to which Y is
otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the
net amount actually received by Y (free and clear of indemnifiable Taxes, whether assessed against
X or Y) will equal the full amount Y would have received had no such deduction or withholding
been required. However, X will not be required to pay any additional amount to Y to the extent that
it would not be required to be paid but for:—
(A) the failure by Y to comply with or perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d); or
(8) the failure of a representation made by Y pursuant to Section 3(I) 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:—
(I) 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)(1X4);
(2) X does not so deduct or withhold: and
(3) a liability resulting from such Tax is assessed directly against X,
then, except to the extent Y has satisfied or then satisfies the liability resulting from such Tax. Y will
promptly pay to X the amount of such liability (including any related liability for interest. but including any
related liability for penalties only if Y has failed to comply with or perform any agreement contained in
Section 4(aXi), 4(aXiii) 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 he deemed to be repeated by each party on
each date on which a Transaction is entered into and, in the case of the representations in Section 3(f), at all times
until the termination of this Agreement). If any "Additional Representation" is specified in the Schedule or any
Confirmation as applying, the party or parties specified for such Additional Representation will make and, if
applicable, be deemed to repeat such Additional Representation at the time or times specified for such Additional
Representation.
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of the jurisdiction of its organisation
or incorporation and, if relevant under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other documentation relating to this
Agreement to which it is a party, to deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform its obligations under this
Agreement and any obligations it has under any Credit Support Document to which it is a party and has
taken all necessary action to authorise such execution. delivery and performance;
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(iii) Nu 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 am 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 arc
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 obligation 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.
(I) Payee Tar 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 parry has or may have any obligation under this Agreement or
under any Credit Support Document to which it is a party:—
(a) Furnish Specified Information. It will deliver to the other party or. in certain cases under clause (iii)
below, to such government or taxing authority as the other party reasonably directs:—
(i) any forms, documents or certificates relating to taxation specified in the Schedule or any
Confirmation;
any other documents specified in the Schedule or any Confirmation; and
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(iii) upon reasonable demand by such other party, any form or document that may be required or
reasonably requested in writing in order to allow such other party or its Credit Support Provider to make a
payment under this Agreement or any applicable Credit Support Document without any deduction or
withholding for or on account of any Tax or with such deduction or withholding at a reduced rate (so long as
the completion, execution or submission of such form or document would not materially prejudice the legal
or commercial position of the party in receipt of such demand), with any such form or document to be
accurate and completed in a manner reasonably satisfactory to such other party and to be executed and to be
delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if none is specified, as soon as reasonably
practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in full force and effect all consents of
any governmental or other authority that are required to be obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party and will use all reasonable efforts to obtain any that may become
necessary in the future.
Comply With Laws. It will comply in all material respects with all applicable laws and orders to which it
(c)
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 I I. 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 Defauk. 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(eXiv)) an event of default (an "Event of Default") with respect to such party.--
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(hXiX2) 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.
(I) 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)(iX2)
or (4) or to give notice of a Termination Event or any agreement or obligation under Section 4(a)(i),
4(a)(iii) or 4(d)) to be complied with or performed by the party in accordance with this Agreement
if such failure is not remedied within 30 days after notice of such failure is given to the party: or
(2) the party disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the
validity of. this Master Agreement, any Confirmation executed and delivered by that party or any
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Transaction evidenced by such a Confirmation (or such action is taken by any person or entity
appointed or empowered to operate it or act on its behalf);
(iil) Credit Support Default.
(I) 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 Qedit 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 MI
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 repealed:
(v) Default Under Spec feed Transaction. The party, any Credit Support Provider of such party or any
applicable Specified Entity of such party:-
0) defaults (other than by failing to make a delivCry) 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;
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) disaffums. 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) Cron-Default. If "Cross-Default" is specified in the Schedule as applying to the party, the
occurrence or existence of.
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 cast 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 (I) 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 patty 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:—
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)):—
(I) for the Office through which such party (which will be the Affected Patty) 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:—
the Office through which such party (which will be the Affected Party) makes and receives
payments or deliveries with resi.7n,t 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 for would be so prevented if such
payment, delivery or compliance were required on that day), or it becomes impossible or
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impracticable for such Office so to perform, receive or comply (or it would be impossible or
impracticable for such Office so to perform, receive or comply if such payment, delivery or
compliance were required on that day); or
(2) such party or any Credit Support Provider of such party (which will be the Affected Party)
is prevented from performing any absolute or contingent obligation to make a payment or delivery
which such party or Credit Support Provider has under any Credit Support Document relating to
such Transaction, from receiving a payment or delivery under such Credit Support Document or
from complying with any other material provision of such Credit Support Document (or would be
so prevented if such payment, delivery or compliance were required on that day), or it becomes
impossible or impracticable for such party or Credit Support Provider so to perform, receive or
comply (or it would be impossible or impracticable for such party or Credit Support Provider so to
perform, receive or comply if such payment. delivery or compliance were required on that day),
so long as the force majeure or act of state is beyond the control of such Office, such party or such Credit
Support Provider, as appropriate, and such Office, party or Credit Support Provider could not, after using all
reasonable efforts (which will not require such party or Credit Support Provider to incur a loss, other than
immaterial, incidental expenses), overcome such prevention, impossibility or impracticability;
(iii) Tar Event. Due to (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 (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)(iX4) (except in respect of interest under Section 9(h)) or (8) receive a payment from which an
amount is requited 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)(iX4)
(other than by reason of Section 2(dXiX4XA) 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(dXiX4) (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(dXi)(4XA) 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 Merge?' 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
apptzable, 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:
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 ofE vents.
(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)(iiX1) 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.
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 lust 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(bXiXI) or S(bXii)(I) 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
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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(aXi) or 5(a)(iii)(I) 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(bXi)(I) or 5(bXii)(I), 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(aXi) or 54 I).
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(aXvii)(I), (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(aXviiX4) 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 requite. 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(bXi).
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 tenns proposed.
(iii) Two Affected Parties. If a Tax Event occurs and there are two Affected Panics, each party will use
all reasonable efforts to reach agreement within 30 days after notice of such occurrence is given under
Section 6(bXi) to avoid that Termination Event.
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(iv) Right to Terminate.
(I) If:—
(A) a transfer under Section 6(bXii) or an agreement under Section 6(bXiii), 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 Patties, or the Non-
affected Party in the case of a Credit Event Upon Merger or an Additional Termination Event if
there is only one Affected Party may, if the relevant Termination Event is then continuing, by not
more than 20 days notice to the other party, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected Transactions.
(2) If at any time an Illegality or a Force Majeure Event has occurred and is then continuing
and any applicable Waiting Period has expired:—
(A) Subject to clause (B) below, either party may, by not more than 20 days notice to
the other party, designate (I) a day not earlier than the day on which such notice becomes
effective as an Early Termination Date in respect of all Affected Transactions or (II) by
specifying in that notice the Affected Transactions in respect of which it is designating the
relevant day as an Early Termination Date, a day not earlier than two Local Business Days
following the day on which such notice becomes effective as an Early Termination Date in
respect of less than all Affected Transactions. Upon receipt of a notice designating an
Early Termination Date in respect of less than all Affected Transactions, the other party
may, by notice to the designating party. if such notice is effective on or before the day so
designated, designate that same day as an Early Termination Date in respect of any or all
other Affected Transactions.
(B) An Affected Party (if the Illegality or Force Majeure Event relates to performance
by such party or any Credit Support Provider of such party of an obligation to make any
payment or delivery under, or to compliance with any other material provision of, the
relevant Credit Support Document) will only have the right to designate an Early
Termination Date under Section 6(bXivX2)(A) as a result of an Illegality under
Section 5(bXi)(2) or a Force Majeure Event under Section 5(bXiiX2) following the prior
designation by the other patty of an Early Termination Date, pursuant to
Section 6(bXivX2XA), 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(aXi) or 9(1)(1) 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(hXii).
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(d) Cakulations; Payment Date.
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 (I) 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.
(li) Payment Dale. An Early Termination Amount due in respect of any Early Termination Date will.
together with any amount of interest payable pursuant to Section 9(hXiiX2), 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 Panics, 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 Non-
defaulting Party for each Terminated Transaction or group of Terminated Transactions, as the case may be,
and (B) the Termination Currency Equivalent of the Unpaid Amounts owing to the Non-defaulting Party less
(2) the Termination Currency Equivalent of the Unpaid Amounts owing to the Defaulting Party. If the Early
Termination Amount is a positive number, the Defaulting Party will pay it to the Non-defaulting Patty: 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(eXi), 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 Patty, respectively.
(2) Thu Affected Panics. 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 "xi and the lower amount so determined (by party "Y") and
(II) the Termination Currency Equivalent of the Unpaid Amounts owing to X less (II) the
Termination Currency Equivalent of the Unpaid Amounts owing to Y. If the Early Termination
Amount is a positive number. Y will pay it to X: if it is a negative number, X will pay the absolute
value of the Early Termination Amount to Y.
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(3) Mid-Market Events. If that Termination Event is an Illegality or a Force Majeure Evart.
then the Early Termination Amount will be determined in accordance with clause (I) 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(dXii).
(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(aXi) or 5(a)(iii)(l) 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(hXii)(2).
(v) he-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.
(0 SrfrOff. 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 them 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 am Affected Transactions has occurred, will, at the option of the Non-defaulting Party or the Non-
affected Party, as the case may be ("X") (and without prior notice to the Defaulting Party or the Affected Party, as the
case may be), be reduced by its set-off against any other amounts ("Other Amounts") payable by the Payee to the
Payer (whether or not arising under this Agreement. matured or contingent and irrespective of the currency, place of
payment or place of booking of the obligation). To the extent that any Other Amounts are so set off, those Other
Amounts will be discharged promptly and in all respects. X will give notice to the other party of any set-off effected
under this Section 6(f).
For this purpose, either the Early Termination Amount or the Other Amounts (or the relevant portion of such
amounts) may be converted by X into the currency in which the other is denominated at the rate of exchange at which
such party would be able, in good faith and using commercially reasonable procedures, to purchase the relevant
amount of such currency.
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If an obligation is unaseertained. 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(0 will be
without prejudice and in addition to any right of set-oft 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(bXii) 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 fails 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 nan-ssary 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
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commercially reasonable procedures in converting the currency received into the Contractual Currency, to purchase
the Contractual Currency with the amount of the currency of the judgment or order actually received by such party.
(c) Separate Indemnities. To the extent permitted by applicable law, the indemnities in this Section 8
constitute separate and independent obligations from the other obligations in this Agreement, will he 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.
(h) 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
confined 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(aXiii) and 6(cXii), the obligations of the parties
under this Agreement will survive the termination of any Transaction.
(d) Remedies Ctunulative. 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.
(c) 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 fmm 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 c-mails, which in each case will be sufficient for all purposes to evidence a binding
supplement to this Agreement. The parties will spccify therein or through another effective means that any
such counterpart, telex, electronic message or e-mail constitutes a Confirmation.
(1) 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) Readings. The headings used in this Agreement are for convenience of reference only and are not to affect
the construction of or to be taken into consideration in interpreting this Agreement,
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(h) Interest and Compensation.
(i) Prior to Early Termination. Prior to the occurrence or effective designation of an Early
Termination Date in respect of the relevant Transaction:—
(I) 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 (3XB) or
(C) below), at the Default Rate.
(2) Compensation for Defaulted Deliveries. If a party defaults in the performance of any
obligation required to be settled by delivery, it will on demand (A) compensate the other party to
the extent provided for in the relevant Confirmation or elsewhere in this Agreement and (B) unless
otherwise provided in the relevant Confirmation or elsewhere in this Agreement. to the extent
permitted by applicable law and subject to Section 6(c), pay to the other party interest (before as
well as after judgment) on an amount equal to the fair market value of that which was required to be
delivered in the same currency as that amount, for the period from (and including) the originally
scheduled date for delivery to (but excluding) the date of actual delivery (and excluding any period
in respect of which interest or compensation in respect of that amount is due pursuant to clause (4)
below), at the Default Rate. The fair market value of any obligation referred to above will be
determined as of the originally scheduled date for delivery. in good faith and using commercially
reasonable procedures. by the party that was entitled to take delivery.
(3) Interest on Deferred Payments. If:—
(A) a party does not pay any amount that, but for Section 2(a)(iii), would have been
payable, it will, to the extent permitted by applicable law and subject to Section 6(c) and
clauses (B) and (C) below, pay interest (before as well as after judgment) on that amount
to the other party on demand (alter 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 Fume Majeure Event
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continues and no Event of Default or Potential Event of Default with respect to that pasty
has occurred and is continuing, pay interest (before as well as tiller 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:—
(I) Unpaid Amounts. For the purpose of determining an Unpaid Amount in respect of the
relevant Transaction, and to the extent permitted by applicable law, interest will accrue on the
amount of any payment obligation or the amount equal to the fair market value of any obligation
required to be settled by delivery included in such determination in the same currency as that
amount, for the period from (and including) the date the relevant obligation was (or would have
been but for Section 2(a)(iii) or 5(d)) required to have been performed to (but excluding) the
relevant Early Termination Date, at the Applicable Close-out Rate.
(2) Interest on Early Termination Amounts. If an Early Termination Amount is due in respect
of such Early Termination Date, that amount will, to the extent permitted by applicable law, be paid
together with interest (before as well as after judgment) on that amount in the Termination
Currency, for the period from (and including) such Early Termination Date to (but excluding) the
date the amount is paid, at the Applicable Close-out Rate.
(iii) Interest Calculation. Any interest pursuant to this Section 9(h) will be calculated on the basis of
daily compounding and the actual number of days elapsed.
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10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that enters into a Transaction through an
Office other than its bead or home office represents to arid 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(bXii), neither party may change the Office in which it books the Transaction or
the Office through which it makes and receives payments or deliveries with respect to a Transaction without the prior
written consent of the other party.
11. Expenses
A Defaulting Party will on demand indemnify and hold harmless the other party for and against all reasonable out-of-
pocket expenses, including legal fees, execution fees and Stamp Tax, incurred by such other party by reason of the
enforcement and protection of its rights under this Agreement or any Credit Support Document to which the
Defaulting Party is a party or by reason of the early termination of any Transaction, including, but not limited to.
costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this Agreement may be given in any manner
described below (except that a notice or other communication under Section 5 or 6 may not be given by electronic
messaging system or e-mail) to the address or number or in accordance with the electronic messaging system or
e-mail details provided (see the Schedule) and will be deemed effective as indicated:—
(i) if in writing and delivered in person or by courier, on the date it is delivered;
(ii) if sent by telex, on the date the 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);
(iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt
requested), on the date it is delivered or its delivery is attempted;
(v) if sent by electronic messaging system, on the date it is received; or
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(vi) if sent by e-mail, on the date it is delivered,
unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a Local Business Day or
that communication is delivered (or attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication will be deemed given and effective on the first following day that is
a Local Business Day.
(b) Change of Details. Either party may by notice to the other change the address, telex or facsimile number or
electronic messaging system or e-mail details at which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in accordance with the law specified in
the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to any dispute arising out of or in
connection with this Agreement ("Proceedings"). each party irrevocably:—
(i) submits:—
(I) if this Agreement is expressed to be governed by English taw, 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, fur 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(aXi), 12(a)(iii) or 12(aXiv). 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. Bach party irrevocably waives, to the extent permitted by applicable law, with
respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit. (ii) jurisdiction of any court, (iii) relief by way of injunction or
order for specific performance or recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise be
entitled in any Proceedings in the courts of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
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14. Definitions
As used in this Agreement:—
"Additional Representation" has the meaning specified in Section 3.
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party"has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event consisting of an Illegality, Force Majeure
Event, Tax Event or Tax Event Upon Merger. all Transactions affected by the occurrence of such Termination Event
(which, in the case of an Illegality under Section 5(bXi)(2) or a Force Majeure Event under Section 5(bXiiX2), 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 Confinnation 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 conunon
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(aXiii))
by a Defaulting Party, the Default Rate;
(ii) in respect of obligations payable or deliverable (or which would have been but for Section 2(aXiii))
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:—
(I ) if the Early Termination Amount is payable by a Defaulting Party. the Default Rate;
(2) if the Early Termination Amount is payable by a Non-defaulting Party, the Non-default
Rate; and
(3) in all other cases, the Applicable Deferral Rate; and
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(ii) for the period from (and including) the date (determined in accordance with Section 6(d)(ii)) on
which that amount is payable to (but excluding) the date of actual payment:—
(I) 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 (I) 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 (I) 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 PfhX0(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;
(h) for purposes of Section 9(hXiX3)(E) 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 hank 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)(3XC) and clauses (a)(iv), (bXi)(3) and (b)(ii)(I) 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 Pan)" has the meaning specified in Section 5(b)(iv).
"Change in Tar Law" means the enacunent, 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 arc 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 laminated Transactions that would, but for the occurrence of the relevant
Early Termination Date, have been required after that date (assuming satisfaction of the conditions precedent in
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Section 2(aXiii)) 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 agcnt), 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.
Uopaid Amounts in respect of a Terminated Transaction or group of Terminated Transactions and legal fees and out-
of-pocket expenses referred to in Section II 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 mare of the following types of information:—
(I) quotations (either firth 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 Patty'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.
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
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(2) application of different valuation methods to Terminated Transactions or groups of Tenninated Transactions
depending on the type, complexity, sift or number of the Terminated Transactions or group of Terminated
Transactions.
"Confirmation" has the meaning specified in the preamble.
"consent" includes a consent, approval, action, authorisation, exemption, notice, filing, registration or exchange
control consent.
"Contractual Currency" has the meaning specified in Section 8(a).
"Convention Court" means any court which is bound to apply to the Proceedings either Article 17 of the 1968
Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters or
Article 17 of the (988 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(aXvi).
"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(bXv).
"Determining Party" means the party determining a Close-out Amount.
"Early Termination Amount" has the meaning specified in Section 6(c).
"Early Termination Date" means the date determined in accordance with Section 6(a) or 6(bXiv).
"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 ofD efault" 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 arc open for general business (including dealings
in foreign exchange and foreign currency deposits).
"Illegality" has the meaning specified in Section 5(h).
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"fadeouts:B.2We Tax" means any Tax other than a Tax that would not be imposed in respect of a payment under this
Agreement but for a present or former connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to such recipient (including, without
limitation, a connection arising from such recipient or related person being or having been a citizen or resident of
such jurisdiction, or being or having been organised, present or engaged in a trade or business in such jurisdiction, or
having or having had a permanent establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having executed, delivered, performed its obligations
or received a payment under, or enforced, this Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of tax matters, by the practice of any
relevant governmental revenue authority), and "unlawful" will be construed accordingly.
"Local Business Day" means (a) in relation to any obligation under Section 2(a)(i), a General Business Day in the
place or places specified in the relevant Confirmation and a day on which a relevant settlement system is open or
operating as specified in the relevant Confirmation or, if a place or a settlement system is not so specified, as
otherwise agreed by the pasties 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(aXi), a General Business Day (or a day that would have been a General
Business Day but for die ot.turrence 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 TICW 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(aXi) 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-qffemed 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
Patty 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).
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"Payee" has the meaning specified in Section 6(f).
"Payer" has the meaning specified in Section 6(f).
"Potential Event of Default" means any event which, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.
"Proceedings" has the meaning specified in Section 13(b).
"Fracas 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(aXi) 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 pasty) 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 confumation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Stamp Tax Jurisdiction"has the meaning specified in Section 4(e).
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"Tax" means any present or future tax, levy. impost. duty, charge, assessment or fee of any nature (including interest,
penalties and additions thereto) that is imposed by any government or other taxing authority in respect of any
payment under this Agreement other than a stamp, registration, documentation or similar tax.
'Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means. with respect to any Early Termination Date, (a) if resulting front an Illegality or
a Force Majcure Event, all Affected Transactions specified in the notice given pursuant to Section 6(bXiv). (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 wider 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 Nlajeure Event, a Tax Event, a Tax Event Upon Merger or. if
specified to be applicable, a Credit Event Upon Merger or an Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the cost (without proof or evidence of
any actual cost) to each party (as certified by such pony) 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(aXiii) or due but for Section 5(d)) to such party under Section 2(aXi) or 2(dXiX4) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date, (b) in respect of each Tenninated
Transaction, for each obligation under Section 2(3)(i) which was (or would have been but for Section 2(aXiii) 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
27 ISDA® 2002
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compensation in respect of that obligation or deferred obligation, as the case may be, pursuant to Section
9(hXiiXI) or (2), as appropriate. The fair market value of any obligation referred to in clause (b) above
will be determined as of the originally schedule 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(bXi), other than in the case of Section
5(bXi)(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
(b) occurrence of that event or circumstance; and
(c) in respect of any event or circumstance under Section 5(b)(ii), other than in the case of Section
5(b)(iiX2) 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 of circumstance.
IN WITNESS WHEREOF the parties have executed this document on the respective dates specified
below with effect from the date specified on the first page of this doc
DEUTSCHE BANK AG
By: By:
G
Name: Name: tjecr„..
A ynttli ^;
(y\
Title: Title: Da;
By: By:
Name: Name:
KATHLEEN YOHE
Title: r Title:
DIRECTOR
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compensation in respect of that obligation or deferred obligation, as the case may be, pursuant to Section
9(hXiiX I) or (2), as appropriate. The fair market value of any obligation referred to in clause (b) above
will be determined as of the originally schedule 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(bXi)(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
(b) occurrence of that event or circumstance; and
(c) in respect of any event or circumstance under Section 5(bXii), other than in the case of Section
5(bXiiX2) 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 of circumstance.
IN WITNESS WHEREOF the parties have executed this document on the respective dates specified
below with effect from the date specified on the first page of this document.
DEUTSCHE BANK AG SOUTHERN FINANCIAL, LW
By: By:
Name: Name:
.;ynthin Cuomo
Title: Title:
By: By:
Name: Name:
Title: Title:
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SCHEDULE
to the
2002 ISDA Master Agreement
dated as of October 28, 2013
among
Deutsche Bank AG ("Party A"),
and
Southern Financial, LLC, a limited liability
company incorporated under the laws of United States Virgin Islands ("Party B")
Part 1. Termination Provisions.
(a) "Specified Entity" means:
in relation to Party A: Not Applicable
and in relation to Party B for the purpose of:
Section 5(a)(v): Not Applicable
Section 5(a)(vi): Not Applicable
Section 5(aXvii): Not Applicable
Section 5(bXv): Not Applicable
(b) The definition of "Specyled Transaction"s in Section 14 of this Agreement is hereby amended by:
(i) deleting in the second through the fourth lines thereof the words
"between one party to this Agreement (or any Credit Support Provider of such party or
any applicable Specified Entity of such party) and the other party to this Agreement (or
any Credit Support Provider of such other party or any applicable Specified Entity of
such other party) which is a"
and replacing them with the words
"(i) in the case of Party A, between Party A (or any Credit Support Provider of such party
or any applicable Specified Entity of such party) and Party B (or any Credit Support
Provider of such party or any applicable Specified Entity of such party), and
(ii) in the cast of Party B, between Party B (or any Credit Support Provider of such party
or any applicable Specified Entity of such party) and any other person or entity, including
without limitation Party A (or any Credit Support Provider of such party or any
applicable Specified Entity of such party), including without limitation any"; and
(ii) adding the text "prime brokerage or margin lending transaction" after the words "weather
index transaction" in the tenth line thereof.
(c) The "Cross Default" provisions of Section 5(aXvi) will apply to both parties subject to
amendment by adding at the end thereof the following words:
"provided, however, that, notwithstanding the foregoing, an Event of Default shall not occur
under either (1) or (2) above if (A) (I) the default, or other similar event or condition referred to in
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(I) or the failure to pay referred to in (2) is a failure to pay or deliver caused by an error or
omission of an administrative or operational nature, and (II) funds or the asset to be delivered
were available to such party to enable it to make the relevant payment or delivery when due and
(III) such payment or delivery is made within three (3) Local Business Days following receipt of
written notice from an interested party of such failure to pay, or (B) such party was precluded
from paying, or was unable to pay, using reasonable means, through the office of the party
through which it was acting for purposes of the relevant Specified Indebtedness, by reason of
force majeure, act of State, illegality or impossibility."
If such provisions apply:
"Specified Indebtedness" shall mean any obligation (whether present or future, contingent or
otherwise, as principal or surety or otherwise) in respect of borrowed money other than
indebtedness in respect of bank deposits received in the ordinary course of business.
With regard to Party A, "Threshold Amount" means three percent (3%) of its shareholders'
equity (as calculated in accordance with generally accepted accountancy principles applicable to
Party A).
With regard to Party B, any applicable Specified Entity of Party B or any Credit Support Provider
of Party B "Threshold Amount" means the lesser of (i) USE) 1,000,000 or (ii) three percent (3%)
of the shareholders' equity of Party B (as calculated in accordance with generally accepted
accountancy principles applicable to Party B.
(d) The "Credit Event Upon Merger" provision in Section 5(bXv) will apply Party A and Party B.
(e) The "Bankruptcy" provisions of Section 5(aXvii) shall apply to Party A and Party B.
(t) The "Automatic Early Termination" provisions of Section 6(a) will not apply to Party A or Party
B.
(g) "Termination Currency" means United States Dollars.
(h) Additional Termination Events. The occurrence of any of the following events shall constitute a
Termination Event:
(i) Maintenance Of Ownership. Jeffrey Epstein at any time ceases to own, whether directly
or indirectly 51% of the paid-up share capital of Party B or if at any time the number of
persons holding paid up capital in Party B exceeds 10.
(ii) An Adverse Regulatory Change occurs and is continuing. "Adverse Regulatory Change"
means the adoption of, or any change in, any applicable law after the date on which a
Transaction is entered into, or issuance of any directive or the promulgation of, or any
change in, the interpretation, whether formal or informal, of any law or directive (or any
requests, whether or not having the force of law) made by any court, tribunal or
regulatory authority with competent jurisdiction after such date which, in respect of a
Transaction or any assets or hedge incidental thereto, in Party A's good faith
determination, has the effect with regard to either party of: (A) imposing or adversely
modifying, in any material respect, any reserve, special deposit, or similar requirement;
or (B) materially affecting the amount of regulatory capital to be maintained by such
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party or (C) subjecting such party to any material loss due to the re-characterization of any
payments or deliveries to be made under such Transaction; or
(iii) In the reasonable opinion of Party A, there is a material adverse change in the financial
condition or credit standing of Party B or the Credit Support Provider of Party B from
either the date of this Agreement or the date of the most recent financial statements of
Party B or the Credit Support Provider of Party B delivered to Party A.
(iv) Party B's net worth at any time is less than USD 67,500,000; net worth of Party B equals
the assets of Party B minus the liabilities of Party B as reflected in the most recent
financial statements of Party B delivered to Party A; or
(v) If at any time Party B's Liquidity as defined herein as the aggregate sum of all cash plus
cash equivalents in accordance with generally accepted accounting principles, held by
Party B, falls below USD 45,000,000.
For the purpose of the foregoing Termination Events specified in clauses (i) through (v) above,
Party B shall be deemed to be the Affected Party and Party A shall not be an Affected Party.
Part 2. Tax Representations.
(a) Payer Tax Representations. For the purposes of Section 3(e) of this Agreement, Party A and
Part• B will each make the following representations to the other:
It is not required by any applicable law, as modified by the practice of any relevant governmental
revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on
account of any Tax from any payment (other than interest under Section 9(h) of this Agreement)
to be made by it to the other party under this Agreement. In making this representation, each
party may rely on:
(i) the accuracy of any representations made by the other party pursuant to Section 3(t) of
this Agreement;
(ii) the satisfaction of the agreement of the other party contained in Section 4(aXi) or 4(aXiii)
of this Agreement and the accuracy and effectiveness of any document provided by the
other party pursuant to Section 4(aXi) or 4(aXiii) of this Agreement, and
(iii) the satisfaction of the agreement of the other party contained in Section 4(d) of this
Agreement,
except that it will not be a breach of this representation where reliance is placed on clause (ii) and
the other party does not deliver a form or document under Section 4(aXiii) by reason of material
prejudice to its legal or commercial position.
(b) Payee Tax Representations.
(i) For purposes of Section 3(0 of this Agreement, Party A makes the following
representations:
(1) Each Transaction entered into by (i) Deutsche Bank AG, New York branch and (ii)
Deutsche Bank AG, London branch acting through Deutsche Bank Securities Inc. or
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Party required to deliver Form/Doeument/ Date by which to be Covered by Section
document Certificate delivered 3(d) Representation
Operating Agreement. material change in such
documents.
Party A and Party B A copy of the most recent annual Promptly after request by the Yes
report containing consolidated other party.
financial statements of each party
and such other public information
respecting the condition or
operations, financial or otherwise
of such party, as the other party
may reasonably request from time
to time.
Party B A legal opinion in a form Upon execution of this No
satisfactory to Party A with respect Agreement and any Credit
to Party D. Support Document
Party A and Party Fl A duly executed and delivered As of execution of this Yes
copy of the Credit Support Agreement
Document.
Part 4. Miscellaneous.
(a) Address for Notices. For the purpose of Section I2(a) of this Agreement, the addresses for
notices and communications to Party A and Party B shall be as follows:
(i) TO PARTY A:
All notices to Party A under Sections 5 or 6 of the Agreement (other than notices under
Section 5(a)(i)) shall be sent to:
Deutsche Bank AG, I lead Office
Taunusanlage 12
60325 Frankfurt
GERMANY
Attention: Legal Department
Fax: 0049 69 910 36097
All notices to Party A shall be sent directly to the office through which Party A is acting
for the relevant Transaction, using the address and contact particulars specified in the
Confirmation of that Transaction or otherwise notified.
TO PARTY B:
Southern Financial, LLC
6100 Red I look Quarter, B3
St. Thomas 00802
Virgin Islands (U.S)
Attention: Harry Beller; Jeffrey Epstein
Fax No.: 6463500249
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
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Party A appoints as its Process Agent: Deutsche Bank AG — New York branch
60 Wall Street
Ncw York, NY 10005
Party B appoints as Process Agent: Darren K. Indyke
Darren K. Indyke, PLLC
575 Lexington Avenue, 4th Floor
New York, New York 10022
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(b) of this Agreement:
Party A is a Multibranch Party and may act through the following Offices: Its New York,
London, Tokyo, Paris, Singapore. Brussels, Sydney, Amsterdam, Vienna, Canada (Toronto),
New Zealand (Auckland), and Zurich Branches, and its Frankfurt Head Office.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent shall be Party A.
(f) Credit Support Document. Details of any Credit Support Document:
The 1SDA Credit Support Annex and supplementary "Paragraph 13 - Elections & Variables"
in the form appended hereto shall constitute a "Credit Support Document" in relation to each
party, respectively, with respect to all of the obligations of the parties and for all purposes of
this Agreement.
(g) Credit Support Provider. Not applicable.
(h) Governing Law. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York (without reference to its choice of law
doctrine).
(i) Multiple Transaction Payment Netting. Multiple Transaction Payment Netting will apply
separately as agreed in writing from time to time.
0) Absence of Litigation. For the purpose of Section 3(c):
"Specified Entity" means in relation to Party A, None.
"Spectlkd Entity" means in relation to Party B, None.
(k) No Agency. The provisions of Section 3(g) will apply to this Agreement.
(I) Additional Representation will apply. For the purpose of Section 3 of this Agreement each of
the following will constitute an Additional Representation:
(i) Representations of All Parties. Each party will be deemed to represent and warrant to
the other party on and as of the date that it enters into a Transaction (which
representations and warranties shall be deemed repeated on and as of each date that any
35
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Transaction remains outstanding) that (absent a written agreement between the parties
that expressly imposes affirmative obligations to the contrary for that Transaction):
(A) Non-Reliance. It is acting for its own account, and it has made its own
independent decisions to enter into that Transaction and as to whether that
Transaction is appropriate or proper for it based upon its own judgment and upon
advice from such advisers as it has deemed necessary. It is not relying on any
communication (written or oral) of the other party as investment advice or as a
recommendation to enter into that Transaction: it being understood that
information and explanations related to the terms and conditions of a Transaction
shall not be considered to be investment advice or a recommendation to enter
into that Transaction. No communication (written or oral) received from the other
party shall be deemed to be an assurance or guarantee as to the expected results
of that Transaction.
(B) Assessment and Understanding. It is capable of assessing the merits of and
understanding (on its own behalf or through independent professional advice),
and understands and accepts the terms and conditions and risks of that
Transaction. It is also capable of assuming, and assumes, the risks of that
Transaction.
(C) Status of Parties. The other party is not acting as a fiduciary for or adviser to it
in respect of that Transaction.
(ii) Securities Act Representations. Each party represents to the other party (which
representations will be deemed to be repeated by each party on each date on which a
Transaction is entered into) that:
(A) it acknowledges that certain Transactions under the Agreement may involve the
purchase or sale of "securities" as defined under the U.S. Securities Act of 1933,
as amended (the "Securities Act") and understands that any such purchase or sale
of securities will not be registered under the Securities Act and that any such
securities may not be reoffered, resold, pledged or otherwise transferred except
(1) pursuant to an effective registration statement under the Securities Act or
pursuant to an exemption from the registration requirements of the Securities Act
and (2) in accordance with any applicable securities laws of any state of the
United States of America.
(3) it is a "Institutional Account" as defined by FINRA Rule 21[1 , or an "accredited
investor" as defined under the Securities Act; and
(C) unless otherwise expressly provided in a Confirmation for a Transaction, any
securities it is required to deliver under this Agreement and any Transaction will
not at the time of such delivery constitute "restricted securities" or be subject to
restrictions on transfer (including so-called "control securities") under the
Securities Act (as defined above) or otherwise. This representation will be
deemed repeated at the time of such delivery.
(iii) Additional Representations of Pony B. Party B on and as of the date hereof and at all
times until the termination of this Agreement and the Transactions, that (A) the assets of
Party B do not and, prior to termination of this Agreement and the Transactions, will not
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constitute "plan assets" under Section 3(42) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and, together with the Agreement and the
Transactions, are not and will not be subject to Part 4, Subtitle B, Title I of ERISA or
Section 4975 of the Internal Revenue Code of 1986, as amended ("Code"); (B) either (x)
the assets of Party B do not and will not constitute the assets of any "governmental plan"
within the meaning of Section 3(32) of ERISA and, together with the Agreement and the
Transactions, will not be subject to any law, rule or other restriction applicable to the
assets of any such governmental plan ("Governmental Plan Law") or (y) the execution,
delivery and performance of this Agreement and the Transactions do not and will not
violate any Governmental Plan Law; and (C) Party B is not and, prior to termination of
this Agreement and the Transactions, will not be, a "Special Entity" as defined under
Title VII, Sections 731 or 764 of the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010 ("Reform Act") (or the amendments affected thereby). Party B
will not take or permit any action (including, without limitation, permitting or effecting
withdrawals from Party 13 or transfers of interests in Party B) during the term of this
Agreement that may render any of the foregoing representations and/or warranties untrue,
incorrect or incomplete, and Party B shall promptly notify Party A in writing if it
becomes aware that any event, condition or circumstance has occurred or will occur that
may render (or has rendered) any of the foregoing representations and/or warranties
untrue, incorrect or incomplete.
Part 5. Other Provisions.
(a) Elective Termination. Unless a confirmation of a Transaction otherwise provides, either party
(the "Electing Parry", the other party being the "Non-electing Party") may elect to terminate any
Transaction (which shall be deemed to be the only Affected Transaction) on the second (21s)
anniversary of the Trade Date of such Transaction and annually thereafter (which date shall be
the Early Termination Date with respect to such Transaction) by at least five (5) days' prior
notice, provided that no other Event of Default, Potential Event of Default, or Termination Event
shall have occurred and then be continuing under this Agreement on such Early Termination Date
(any such termination, an "Elective Termination").
For purposes of calculating amounts due under this Part 5(a), the Electing Party shall be treated as
if it were the Affected Party and the Non-electing Party shall be treated as if it were the Non-
affected Party.
For the purposes of calculating amounts due under an Elective Termination, all references to
Additional Termination Event under Sections 6(b), (c), (d), and (e) should be read as references to
an Elective Termination and should apply mutatis mutandi.
(b) Consent to Recording. Each party (i) consents to the recording of the telephone conversations of
trading and marketing and/or other personnel of the parties and their Affiliates in connection with
this Agreement or any potential Transaction (ii) agrees to obtain any necessary consent of and
give notice of such recording to such personnel of it and its Affiliates; and (iii) agrees that
recordings may be submitted in evidence in any Proceedings relating to this Agreement.
(c) Tax Provisions.
(I) ISDA 2010 Short Form HIRE Act Protocol. The parties agree that solely as between Party
A and Party B, the definitions and provisions contained in the ISDA 2010 Short Form HIRE
Act Protocol published by the International Swaps and Derivatives Association, Inc. on
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November 30, 2010, including the Attachment thereto ("Short Form Protocol"), will be
deemed to be incorporated herein, mutatis mutandis, as though such definitions and
provisions were set out in full herein, with any such conforming changes as are necessary to
deal with what would otherwise be inappropriate or incorrect cross references. The parties
further agree that the Implementation Date (as such term is defined in the Short Form
Protocol) shall be the date of execution of this Agreement.
(2) Withholding Tax imposed on payments to non-US counterparties under the United
States Foreign Account Tax Compliance Act. "Tax" as used in Part 2(a) of this Schedule
(Payer Tax Representation) and "Indemnifiable Tax" as defined in Section 14 of this
Agreement shall not include any U.S. federal withholding tax imposed or collected pursuant
to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the
"Code"), any current or future regulations or official interpretations thereof, any agreement
entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation,
rules or practices adopted pursuant to any intergovernmental agreement entered into in
connection with the implementation of such Sections of the Code (a "FATCA Withholding
Tax"). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or
withholding of which is required by applicable law for the purposes of Section 2(d) of this
Agreement.
(d) Party B Representations and Acknowledgements, Non-Reliance, Etc. Party B hereby
represents, warrants and acknowledges to Party A as of the date of this Agreement and will be
deemed to represent to Party A on the date that Party B enters into a Transaction that (absent a
written agreement between the parties that expressly imposes affirmative obligations to the
contrary for that Transaction) that:
(i) Party B understands that (x) that Transactions may at times be volatile and are subject to
complex and substantial risks that may arise without warning and (y) losses in value for
Party B's position in that Transactions may occur quickly and in unanticipated magnitude.
(ii) Party A has made no representations, guarantees, or assurances whatsoever as to the
expected or projected profitability, return, success, performance result, effect, consequence
or benefit (whether legal, regulatory, tax, financial, accounting or otherwise) of that
Transaction. Party B will be relying upon its own judgment and its own advisors with
respect to that Transaction and Party B has not sought and is not relying on any views of
Party A with respect to that Transaction. All terms of, and the documentation evidencing,
this Agreement and that Transaction have been the result of arm's-length negotiations
between the parties.
(iii)Party A shall not be liable to Party B for any losses, costs, expenses, fees, charges,
amounts, liabilities, claims, damages, penalties, interest, taxes, or fines associated with that
Transaction, including the failure of that Transaction to achieve Party B's legal, regulatory,
tax, business, investment, financial, or accounting objectives, other thanaParty A's own
gross negligence and/or willful misconduct. coe
(iv) Party B entered into this Agreement and is entering into that Transaction for Party B's own
account as principal (and not as agent or in any other capacity, fiduciary or otherwise).
(v) Party B has, as of such date, (x) total assets at least equal to USD 67,500,000; (y) net worth
(as defined in Part 1 of this Schedule) at least equal to USD 67,500,000; and (z) liquid
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assets at least equal to USD 45,000,000. Party B is prepared to bear, and will be capable of
bearing (financially and otherwise) all risks associated with that Transaction and all other
Transactions and has sufficient financial wherewithal to incur any loss associated with
entering into and performing its obligations under that Transaction and all other
Transactions.
(vi) Party B's entrance into this Agreement and that Transaction complied and will comply in
all respects with all applicable laws, rules, regulations, interpretations, guidelines, and
governmental and regulatory authorities affecting Party B.
(vii) The financial information of Party B heretofore furnished to Party A fairly presents the
financial condition of Party B on the dates and for the periods covered thereby. As of the
date of this Agreement, Party B does not have any material liability or contingent
obligation not shown on such statements. Since the date of such financial information there
has been no material adverse change in the financial condition, operations, assets, and
prospects of Party B.
(e) Set Off Section 6(f) of this Agreement is deleted in its entirety and replaced with the following:
"(I) Upon the designation of any Early Termination Date, the party that is not the Defaulting
Party or Affected Party ("r) may, without prior notice to the Defaulting or Affected Party
("I"), set off any sum or obligation (whether or not arising under this Agreement, whether
matured or unmatured, whether or not contingent and irrespective of the currency, place of
payment or booking office of the sum or obligation) owed by Y to X or any Affiliate of X (the "A'
Set Off Amount") against any sum or obligation (whether or not arising under this Agreement,
whether matured or unmatured, whether or not contingent and irrespective of the currency, place
of payment or booking office of the sum or obligation) owed by X or any Affiliate of X to Y (the
"I' Set Off Amount"). X will give notice to the other party of any set off effected under this
Section 6(f).
For this purpose, either the X Set Off Amount or the Y Set Off Amount (or the relevant portion of
such set off amounts) may be converted by X into the currency in which the other set off amount
is denominated at the rate of exchange at which X would be able, acting in a reasonable manner
and in good faith, to purchase the relevant amount of such currency.
If a sum or 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) shall be effective to create a charge or other security interest. This
Section 6(1) shall be without prejudice and in addition to any right of set-off, combination of
accounts, lien or other rights to which any party is at any time otherwise entitled (whether by
operation of law, contract or otherwise)."
(0 Escrow. On any date on which both parties are required to make payments hereunder, either
party may at its option and in its sole discretion notify the other party that payments on that date
are to be made in escrow. In this case deposit of the payment due earlier on that date shalt be
made by 2:00 p.m. (local time at the place for the earlier payment if there is a time difference
between the cities in which payments are to be made) on that date with an escrow agent selected
by the party giving the notice and reasonably acceptable to the other party, accompanied by
irrevocable payment instructions (i) to release the deposited payment to the intended recipient
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upon receipt by the escrow agent of the required deposit of the corresponding payment from the
other party on the same date accompanied by irrevocable payment instructions to the same effect
or (ii) if the required deposit of the corresponding payment is not made on that same date, to
return the payment deposited to the party that paid it into escrow at such party's request. The
party that elects to have payments made in escrow shall pay the costs of the escrow arrangements
and shall cause those arrangements to provide that the intended recipient of the payment due to be
deposited first shall be entitled to interest on that deposited payment for each day in the period of
its deposit at the rate offered by the escrow agent for that day for overnight deposits in the
relevant currency in the office where it holds that deposited payment (at 11:00 a.m. local time on
that day) if that payment is not released by 5:00 p.m. local time on the date it is deposited for any
reason other than the intended recipient's failure to make the escrow deposit it is required to make
hereunder in a timely fashion.
(g) Additional Acknowledgments and Agreements of the Parties. Section 4 is hereby amended by
adding the following new agreements:
(i) Waiver ofR ight to Trial by Jury. Each of the parties hereby irrevocably waives any and
all right to a trial by jury with respect to any legal proceeding arising out of or relating to
this Agreement or any Transaction.
(ii) Deutsche Bank Securities Inc. Each party acknowledges and agrees that (A) Deutsche
Bank Securities Inc. or another designated Affiliate of Party A (the "Designated Agent')
will act as agent for Party A in connection with certain Transactions when so specified in
the Transaction Confirmation; and (B) the Designated Agent is acting solely as agent and
shall have no liability for the performance of either party's obligations under this
Agreement or any Transaction, or for costs, expenses, damages or claims arising out of
the failure of either party to perform any such obligation.
(iii) Bankruptcy Code. Without limiting the applicability if any, of any other provision of the
U.S. Bankruptcy Code as amended (the "Bankruptcy Code, (including without
limitation Sections 362, 546, 556, and 560 thereof and the applicable definitions in
Section 101 thereof), the parties acknowledge and agree that all Transactions entered into
hereunder will constitute "forward contracts" or "swap agreements" as defined in Section
101 of the Bankruptcy Cods or "commodity contracts" as defined in Section 761 of the
Bankruptcy Code, that this Agreement is a "master netting agreement" as defined in
Section 101 of the Bankruptcy Code, that the rights of the parties under Section 6 of this
Agreement will constitute contractual rights to liquidate Transactions, that any margin or
collateral provided under any margin, collateral, security, pledge, or similar agreement
related hereto will constitute a "margin payment" as defined in Section 101 of the
Bankruptcy Code, and that the parties are entities entitled to the rights under, and
protections afforded by, Sections 362, 546, 556, and 560 of the Bankruptcy Code.
(h) Amendments. Section 9(b) is modified by the deletion of the words "or confirmed by an
exchange of telexes or by an exchange of electronic messages on an electronic messaging
system".
(i) Counterparts and Confirmations. Section 9(eXi) is modified by the deletion of the words "and
by electronic messaging system".
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(i) Foreign Exchange, Currency Option, Commodity and Bullion Transactions
(i) The parties agree that any transaction that is entered into between them through an Office
specified in Part 4 of the Schedule to this Agreement which is (a) outstanding between
them at the date this Agreement comes into effect or (b) entered into by them on or after
the date this Agreement comes into effect, and is
(I) an FX 'transaction or a Currency Option Transaction (as those terms are defined
in the 1998 EX and Currency Option Definitions, including Annex A, published
by the International Swaps and Derivatives Association, Inc. ("ISDA"), the
Emerging Markets Traders Association and the Foreign Exchange Committee
(the `17( Definitions")) will be deemed to incorporate the FX Definitions into
the Confirmation thereof; or
(II) a Transaction (as that term is defined in the 2005 ISDA Commodity Definitions
(published by ISDA) (the "2005 Commodity Definitions")) will be deemed to
incorporate the 2005 Commodity Definitions into the Confirmation thereof
and each transaction of a type described in (1) and (II) will be a Transaction for the
purpose of this Agreement whether or not a Confirmation of such a Transaction refers to
this Agreement and irrespective of any reference in a Confirmation to the "International
Bullion Master Agreement", the "LBMA", or the "113MA", provided however, if a
confirmation of any such transaction expressly states that another master agreement
governs, such transaction will not be a Transaction for the purpose of this Agreement.
For the avoidance of doubt, FX Transaction(s) include foreign exchange swags) but not
cross currency interest rate swap(s).
(ii) Section 1(b) of this Agreement is amended by adding the following proviso at the end
thereof: "provided however, that with respect to (i) an FX Transaction (other than one
that is identified as non-deliverable in the relevant Confirmation) and (ii) a Transaction
(which is confirmed using an electronic messaging system) (as each such transaction type
is defined in this provision of the Schedule to this Agreement) this Agreement will
prevail unless the relevant Confirmation specifically references this Agreement."
(k) Disclosure. Each party hereby consents to the communication or disclosure by the other party
of information in respect of or relating to this Agreement and any Transactions hereunder to such
other party's branches, subsidiaries and Affiliates and, to the extent required by law or regulation,
any government or regulatory authority.
2002 Master Agreement Protocol
The parties agree that the provisions of the 2002 Master Agreement Protocol including Annexes I
- 18 inclusive published by the International Swaps and Derivatives Association, Inc on 15th July
2003 (the "Protocol") are incorporated into and apply to this Agreement with the same effect as
if the parties had complied with the provisions of Section 2 of the Protocol. In this respect,
references in the Protocol to an "1SDA 2002 Master Agreement" will be deemed to be references
to this Agreement and the term "the parties", as used in the Protocol shall be construed as
referring to Party A and Party B.
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(m) Master Representations. The representations set forth in Section 3(aXii)-(iv) are hereby
amended by adding to the end of each such sub-section the following: ", provided that, solely to
the extent made by Party A, this representation does not apply with respect to section 406 of
ERISA, section 4975 of the Code, Governmental Plan Law, or Sections 731 or 764 of the Reform
Act (or the statutory amendments enacted thereunder)."
(n) (A) Eligible Contract Participant Representation. (i) Party A represents to Party B on and as
of the date hereof and on each date on which a Transaction is entered into between them that (a) it
is a "swap dealer" as defined in Section 1a(49) of the Commodity Exchange Act, as amended
("CEA") and Commodity Futures Trading Commission ("CFTC") Regulation 1.3(ggg) and (b) it
is an "eligible contract participant" within the meaning of Section la(18XAXv)(1) of the CEA and
CFTC Regulation I .3(m). (ii) Party B represents to Party A on and as of the date hereof and on
each date on which a Transaction is entered into between them it is an "eligible contract
participant" within the meaning of Section 1 a(18XA)5(i)of the CFA and CFTC Regulation
1.3(m). (iii) Each party agrees to promptly notify the other party in writing of any material
changes to its representation(s) in this provision.
(B) US Person ClusIfication. Party B is a U.S. person as such term is defined by the CFTC in
any law, order, interpretation rulemaking or release that may be promulgated by the CFTC.
(C) In order to comply with certain obligations pursuant to the Dodd-Frank Wall Street Reform
and Consumer Protection Act ("Dodd-Frank") and the rules, regulations, orders and
interpretations that are published or issued by the CFTC to implement Dodd-Frank, Party A and
Party B agree that, prior to entering into a Transaction governed by this Agreement, they (1) have
or will (a) adhere to the ISDA August 2012 DF Protocol Agreement, published by International
Swaps and Derivatives Association, Inc. ("ISDA") on August 13, 2012 and (b) submit the related
Questionnaire (the "August 2012 DF Protocol Questionnaire") to Patty A by email to
dinrotocokadb.com together with the related Answer Sheet in excel format and in such
Questionnaire have or will agree that DF Schedule 3/4/5/6, if applicable, is incorporated in the
Agreement and (2) have or will (a) adhere to the ISDA March 2013 DF Protocol Agreement,
published by ISDA on March 22, 2013 and (b) submit the related Questionnaire (the "March
2013 DF Protocol Questionnaire"; and together with the August 2012 DF Protocol Questionnaire,
the "Questionnaires") to Party A by email to dforotocoledb.com together with the related
Answer Sheet in excel format and has elected that DF Schedules 3 and 4, if applicable, are
incorporated in the Agreement. In addition, if one or more Designated Evaluation Agents,
Designated QIRs or Designated Fiduciaries is identified in the August 2012 DF Protocol
Questionnaire, each such Designated Evaluation Agent, Designated QIR or Designated Fiduciary,
as the case may be, must countersign the August 2012 DF Protocol Questionnaire where required
and submit it to Party A using ISDA Amend or send the August 2012 DF Protocol Questionnaire
via email to df,prolocoleib.cont.
The parties agree that if the Questionnaires are exchanged prior to the date of this Agreement, this
Agreement shall be a Protocol Covered Agreement notwithstanding the terms of the respective
Protocol.
(signature page follows)
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DEUTSCHE BANK AG SOUTHE
By: By:
Name: Nam •Te nr.
Title: Title:
CynntriathCinueomi mom°
• .,„ ,
By:
Name: KATHLEEN YOHE
Title:
DIRECTOR
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