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Exhibit 10.1
(MULTICURRENCY -- CROSS BORDER)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of -
- and Public Credit and Repackaged Securities (SM)(PCARS)(SM) Trust
Series - 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
confirming those Transactions.
Accordingly, the parties agree as follows: --
1. INTERPRETATION
(a) DEFINITIONS. The terms defined in Section 14 and in the Schedule
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 (including the
Schedule), such Confirmation will prevail for the purpose of the relevant
Transaction.
(c) SINGLE AGREEMENT. All Transactions are entered into in reliance on
the fact that this Master Agreement and all Confirmations form a single
agreement between the parties (collectively referred to as this "Agreement"),
and the parties would not otherwise enter into any Transactions.
2. OBLIGATIONS
(a) GENERAL CONDITIONS.
(i) Each party will make each payment or delivery
specified in each Confirmation to be made by it,
subject to the other provisions of this Agreement.
(ii) Payments under this Agreement will be made on the due
date for value on that date in the place of the
account specified in the relevant Confirmation or
otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for
payments in the required currency. Where settlement
is by delivery (that is, other than by payment), such
delivery will be made for receipt on the due date in
the manner customary for the relevant obligation
unless otherwise specified in the relevant
Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i)
is subject to (1) the condition precedent that no
Event of Default or Potential Event of Default with
respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early
Termination Date in respect of the relevant
Transaction has occurred or been effectively
designated and (3) each other applicable condition
precedent specified in this Agreement.
(b) CHANGE OF ACCOUNT. Either party may change its account for
receiving a payment or delivery by giving notice to the other party at least
five Local Business Days prior to the scheduled date for the payment or
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delivery to which such change applies unless such other party gives timely
notice of a reasonable objection to such change.
(c) NETTING. If on any date amounts would otherwise be payable: --
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom 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
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) DEDUCTION OR WITHHOLDING FOR TAX.
(i) GROSS-UP. All payments under this Agreement will be
made without any deduction or withholding for or on
account of any Tax unless such deduction or
withholding is required by any applicable law, as
modified by the practice of any relevant governmental
revenue authority, then in effect. If a party is so
required to deduct or withhold, then that party ("X")
will: --
(1) promptly notify the other party ("Y") of
such requirement;
(2) pay to the relevant authorities the full
amount required to be deducted or withheld
(including the full amount required to be
deducted or withheld from any additional
amount paid by X to Y under this Section
2(d)) promptly upon the earlier of
determining that such deduction or
withholding is required or receiving notice
that such amount has been assessed against
Y;
(3) promptly forward to Y an official receipt
(or a certified copy), or other
documentation reasonably acceptable to Y,
evidencing such payment to such authorities;
and
(4) if such Tax is an Indemnifiable Tax, pay to
Y, in addition to the payment to which Y is
otherwise entitled under this Agreement,
such additional amount as is necessary to
ensure that the net amount actually received
by Y (free and clear of Indemnifiable Taxes,
whether assessed against X or Y) will equal
the full amount Y would have received had no
such deduction or withholding been required.
However, X will not be required to pay any
additional amount to Y to the extent that it
would not be required to be paid but for: --
(A) the failure by Y to comply with or
perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d);
or
(B) the failure of a representation
made by Y pursuant to Section 3(f)
to be accurate and true unless such
failure would not have occurred but
for (I) any action taken by a
taxing authority, or brought in a
court of
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competent jurisdiction, on or
after the date on which a
Transaction is entered
into (regardless of whether such
action is taken or brought with
respect to a party to this
Agreement) or (II) a Change in Tax
Law.
(ii) LIABILITY. If: --
(1) X is required by any applicable law, as
modified by the practice of any relevant
governmental revenue authority, to make any
deduction or withholding in respect of which
X would not be required to pay an additional
amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is
assessed directly against X,
then, except to the extent Y has satisfied or then satisfies
the liability resulting from such Tax, Y will promptly pay to
X the amount of such liability (including any related
liability for interest, but including any related liability
for penalties only if Y has failed to comply with or perform
any agreement contained in Section 4(a)(i), 4(a)(iii) or
4(d)).
(e) DEFAULT INTEREST; OTHER AMOUNTS. Prior to the occurrence or
effective designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment obligation
will, to the extent permitted by law and subject to Section 6(c), be required to
pay interest (before as well as after judgment) on the overdue amount to the
other party on demand in the same currency as such overdue amount, for the
period from (and including) the original due date for payment to (but excluding)
the date of actual payment, at the Default Rate. Such interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. If, prior to the occurrence or effective designation of an Early
Termination Date in respect of the relevant Transaction, a party defaults in the
performance of any obligation required to be settled by delivery, it will
compensate the other party on demand if and to the extent provided for in the
relevant Confirmation or elsewhere in this Agreement.
3. 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 and, in the case of the representations in Section 3(f), at all
times until the termination of this Agreement) that: --
(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;
(iii) NO VIOLATION OR CONFLICT. Such execution, delivery
and performance do not violate or conflict with any
law applicable to it, any provision of its
constitutional documents, any order or judgment of
any court or other agency of government applicable to
it or any of its assets or any contractual
restriction binding on or affecting it or any of its
assets;
(iv) CONSENTS. All governmental and other consents that
are required to have been obtained by it with respect
to this Agreement or any Credit Support Document to
which it is a party have been obtained and are in
full force and effect and all conditions of any such
consents have been complied with; and
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(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 or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) ACCURACY OF SPECIFIED INFORMATION. All applicable information that
is furnished in writing by or on behalf of it to the other party and is
identified for the purpose of this Section 3(d) in the Schedule is, as of the
date of the information, true, accurate and complete in every material respect.
(e) PAYER TAX REPRESENTATION. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3(e) is accurate
and true.
(f) PAYEE TAX REPRESENTATIONS. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3(f) is accurate
and true.
4. AGREEMENTS
Each party agrees with the other that, so long as either party has or
may have any obligation under this Agreement or under any Credit Support
Document to which it is a party: --
(a) FURNISH SPECIFIED INFORMATION. It will deliver to the other party
or, in certain cases under subparagraph (iii) below, to such government or
taxing authority as the other party reasonably directs: --
(i) any forms, documents or certificates relating to
taxation specified in the Schedule or any
Confirmation;
(ii) any other documents specified in the Schedule or any
Confirmation; and
(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.
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(c) COMPLY WITH LAWS. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) TAX AGREEMENT. It will give notice of any failure of a
representation made by it under Section 3(f) to be accurate and true promptly
upon learning of such failure.
(e) PAYMENT OF STAMP TAX. Subject to Section 11, it will pay any Stamp
Tax levied or imposed upon it or in respect of its execution or performance of
this Agreement by a jurisdiction in which it is incorporated, organised, managed
and controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located ("Stamp
Tax Jurisdiction") and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party's
execution or performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.
5. EVENTS OF DEFAULT AND TERMINATION EVENTS
(a) EVENTS OF DEFAULT. The occurrence at any time with respect to a
party or, if applicable, any Credit Support Provider of such party or any
Specified Entity of such party of any of the following events constitutes an
event of default (an "Event of Default") with respect to such party: --
(i) FAILURE TO PAY OR DELIVER. Failure by the party to
make, when due, any payment under this Agreement or
delivery under Section 2(a)(i) or 2(e) required to be
made by it if such failure is not remedied on or
before the third Local Business Day after notice of
such failure is given to the party;
(ii) BREACH OF AGREEMENT. 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 2(e)
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 on or before the
thirtieth day after notice of such failure is given
to the party;
(iii) CREDIT SUPPORT DEFAULT.
(1) Failure by the party or any Credit Support
Provider of such party to comply with or
perform any agreement or obligation to be
complied with or performed by it in
accordance with any Credit Support Document
if such failure is continuing after any
applicable grace period has elapsed;
(2) the expiration or termination of such Credit
Support Document or the failing or ceasing
of such Credit Support Document to be in
full force and effect for the purpose of
this Agreement (in either 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;
(iv) MISREPRESENTATION. A representation (other than a
representation under Section 3(e) or (f)) made or
repeated or deemed to have been made or repeated by
the party or any Credit Support Provider of such
party in this Agreement or any Credit Support
Document proves to have been incorrect or misleading
in any material respect when made or repeated or
deemed to have been made or repeated;
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(v) DEFAULT UNDER SPECIFIED TRANSACTION. The party, any
Credit Support Provider of such party or any
applicable Specified Entity of such party (1)
defaults under a Specified Transaction and, after
giving effect to any applicable notice requirement or
grace period, there occurs a liquidation of, an
acceleration of obligations under, or an early
termination of, that Specified Transaction, (2)
defaults, after giving effect to any applicable
notice requirement or grace period, in making any
payment or delivery due on the last payment, delivery
or exchange date of, or any payment on early
termination of, a Specified Transaction (or such
default continues for at least three Local Business
Days if there is no applicable notice requirement or
grace period) or (3) disaffirms, disclaims,
repudiates or rejects, in whole or in part, a
Specified Transaction (or such action is taken by any
person or entity appointed or empowered to operate it
or act on its behalf);
(vi) CROSS DEFAULT. If "Cross Default" is specified in the
Schedule as applying to the party, the occurrence or
existence of (1) a default, event of default or other
similar condition or event (however described) in
respect of such party, any Credit Support Provider of
such party or any applicable Specified Entity of such
party under one or more agreements or instruments
relating to Specified Indebtedness of any of them
(individually or collectively) in an aggregate amount
of 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 on the due date thereof
in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or
instruments (after giving effect to any applicable
notice requirement or grace period);
(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) institutes or 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, in
the case of any such proceeding or petition
instituted or presented against it, such proceeding
or petition (A) 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 (B) is not dismissed, discharged,
stayed or restrained in each case within 30 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 30 days thereafter;
(8) causes or is subject to any event with respect to
it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the
events specified in clauses (1) to (7) (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
(viii) MERGER WITHOUT ASSUMPTION. The party or any Credit
Support Provider of such party consolidates or
amalgamates with, or merges with or into, or
transfers all or substantially all its assets to,
another entity and, at the time of such
consolidation, amalgamation, merger or transfer: --
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(1) the resulting, surviving or transferee
entity fails to assume all the obligations
of such party or such Credit Support
Provider under this Agreement or any Credit
Support Document to which it or its
predecessor was a party by operation of law
or pursuant to an agreement reasonably
satisfactory to the other party to this
Agreement; 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 an
Illegality if the event is specified in (i) below, a Tax Event if the event is
specified in (ii) below or a Tax Event Upon Merger if the event is specified in
(iii) below, and, if specified to be applicable, a Credit Event Upon Merger if
the event is specified pursuant to (iv) below or an Additional Termination Event
if the event is specified pursuant to (v) below: --
(i) ILLEGALITY. Due to the adoption of, or any change in,
any applicable law after the date on which a
Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation
by any court, tribunal or regulatory authority with
competent jurisdiction of any applicable law after
such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for
such party (which will be the Affected Party): --
(1) to perform any absolute or contingent
obligation to make a payment or delivery or
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) to perform, or for any Credit Support
Provider of such party to perform, any
contingent or other obligation which the
party (or such Credit Support Provider) has
under any Credit Support Document relating
to such Transaction;
(ii) TAX EVENT. Due to (x) any action taken by a taxing
authority, or brought in a court of competent
jurisdiction, on or after the date on which a
Transaction is entered into (regardless of whether
such action is taken or brought with respect to a
party to this Agreement) or (y) 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 Payment Date (1) be
required to pay to the other party an additional
amount in respect of an Indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest
under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive
a payment from which an amount is required to be
deducted or withheld for or on account of a Tax
(except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) and no additional amount is
required to be paid in respect of such Tax under
Section 2(d)(i)(4) (other than by reason of Section
2(d)(i)(4)(A) or (B));
(iii) TAX EVENT UPON MERGER. The party (the "Burdened
Party") on the next succeeding Scheduled Payment Date
will either (1) be required to pay an additional
amount in respect of an Indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest
under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive
a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax
in respect of which the other party is not required
to pay an additional amount (other than by reason of
Section 2(d)(i)(4)(A) or (B)), in either case as a
result of a party consolidating or amalgamating with,
or merging with or into, or transferring all or
substantially all its assets to, another entity
(which will be the Affected Party) where such action
does not constitute an event described in Section
5(a)(viii);
(iv) CREDIT EVENT UPON MERGER. If "Credit Event Upon
Merger" is specified in the Schedule as applying to
the party, such party ("X"), any Credit Support
Provider of X or any applicable Specified Entity of X
consolidates or amalgamates with, or merges with or
into, or transfers all or substantially all its
assets to, another entity and such action does
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not constitute an event described in Section
5(a)(viii) but the creditworthiness of the resulting,
surviving or transferee entity is materially weaker
than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately
prior to such action (and, in such event, X or its
successor or transferee, as appropriate, will be the
Affected Party); or
(v) 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 shall be as specified for such
Additional Termination Event in the Schedule or such
Confirmation).
(c) EVENT OF DEFAULT AND ILLEGALITY. If an event or circumstance which
would otherwise constitute or give rise to an Event of Default also constitutes
an Illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
6. EARLY TERMINATION
(a) RIGHT TO TERMINATE FOLLOWING EVENT OF DEFAULT. If at any time an
Event of Default with respect to a party (the "Defaulting Party") has occurred
and is then continuing, the other party (the "Non-defaulting Party") may, by not
more than 20 days notice to the Defaulting Party specifying the relevant Event
of Default, designate a day not earlier than the day such notice is effective as
an Early Termination Date in respect of all outstanding Transactions. If,
however, "Automatic Early Termination" is specified in the Schedule as applying
to a party, then an Early Termination Date in respect of all outstanding
Transactions will occur immediately upon the occurrence with respect to such
party of an Event of Default specified in Section 5(a)(vii)(l), (3), (5), (6)
or, to the extent analogous thereto, (8), and as of the time immediately
preceding the institution of the relevant proceeding or the presentation of the
relevant petition upon the occurrence with respect to such party of an Event of
Default specified in Section 5(a)(vii)(4) or, to the extent analogous thereto,
(8).
(b) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
(i) NOTICE. If a Termination Event 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 such other information about that
Termination Event as the other party may reasonably
require.
(ii) TRANSFER TO AVOID TERMINATION EVENT. If either an
Illegality under Section 5(b)(i)(l) or 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, excluding immaterial, incidental
expenses) to transfer within 20 days after it gives
notice under Section 6(b)(i) all its rights and
obligations under this Agreement in respect of the
Affected Transactions to another of its Offices or
Affiliates so that such Termination Event ceases to
exist.
If the Affected Party is not able to make
such a transfer it will give notice to the other
party to that effect within such 20 day period,
whereupon the other party may effect such a transfer
within 30 days after the notice is given under
Section 6(b)(i).
Any such transfer by a party under this
Section 6(b)(ii) will be subject to and conditional
upon the prior written consent of the other party,
which consent will not be withheld if such other
party's policies in effect at such time would permit
it to enter into transactions with the transferee on
the terms proposed.
(iii) TWO AFFECTED PARTIES. If an Illegality under Section
5(b)(i)(1) or a Tax Event occurs and there are two
Affected Parties, each party will use all reasonable
efforts to reach agreement within 30 days after
notice thereof is given under Section 6(b)(i) on
action to avoid that Termination Event.
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(iv) RIGHT TO TERMINATE. If: --
(1) a transfer under Section 6(b)(ii) or an
agreement under Section 6(b)(iii), as the
case may be, has not been effected with
respect to all Affected Transactions within
30 days after an Affected Party gives notice
under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), 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,
either party in the case of an Illegality, 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 is more
than one Affected Party, or the party which is not
the Affected Party in the case of a Credit Event Upon
Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days
notice to the other party and provided that the
relevant Termination Event is then continuing,
designate a day not earlier than the day such notice
is effective as an Early Termination Date in respect
of all Affected Transactions.
(c) EFFECT OF DESIGNATION.
(i) If notice designating an Early Termination Date is
given under Section 6(a) or (b), the Early
Termination Date will occur on the date so
designated, whether or not the relevant Event of
Default or Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an
Early Termination Date, no further payments or
deliveries under Section 2(a)(i) or 2(e) 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 shall be
determined pursuant to Section 6(e).
(d) CALCULATIONS.
(i) STATEMENT. On or as soon as reasonably practicable
following the occurrence of an Early Termination
Date, each party will make the calculations on its
part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing,
in reasonable detail, such calculations (including
all relevant quotations and specifying any amount
payable under Section 6(e)) and (2) 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 obtained
in determining a Market Quotation, the records of the
party obtaining such quotation will be conclusive
evidence of the existence and accuracy of such
quotation.
(ii) PAYMENT DATE. An amount calculated as being due in
respect of any Early Termination Date under Section
6(e) will be payable on the day that 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 on the day which
is two Local Business Days after the day on which
notice of the amount payable is effective (in the
case of an Early Termination Date which is designated
as a result of a Termination Event). Such amount will
be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as
after judgment) in the Termination Currency, from
(and including) the relevant Early Termination Date
to (but excluding) the date such amount is paid, at
the Applicable Rate. Such interest will be calculated
on the basis of daily compounding and the actual
number of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs,
the following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the parties
fail to designate a payment measure or payment method in the Schedule, it will
be deemed that "Market Quotation" or the "Second
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Method", as the case may be, shall apply. The amount, if any, payable in respect
of an Early Termination Date and determined pursuant to this Section will be
subject to any Set-off.
(i) EVENTS OF DEFAULT. If the Early Termination Date
results from an Event of Default: --
(1) First Method and Market Quotation. If the
First Method and Market Quotation apply, the
Defaulting Party will pay to the
Non-defaulting Party the excess, if a
positive number, of (A) the sum of the
Settlement Amount (determined by the
Non-defaulting Party) in respect of the
Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts
owing to the Non-defaulting Party over (B)
the Termination Currency Equivalent of the
Unpaid Amounts owing to the Defaulting
Party.
(2) First Method and Loss. If the First Method
and Loss apply, the Defaulting Party will
pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's
Loss in respect of this Agreement.
(3) Second Method and Market Quotation. If the
Second Method and Market Quotation apply, an
amount will be payable equal to (A) the sum
of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the
Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts
owing to the Non-defaulting Party less (B)
the Termination Currency Equivalent of the
Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number,
the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative
number, the Non-defaulting Party will pay
the absolute value of that amount to the
Defaulting Party.
(4) Second Method and Loss. If the Second Method
and Loss apply, an amount will be payable
equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is
a positive number, the Defaulting Party will
pay it to the Non-defaulting Party; if it is
a negative number, the Non-defaulting Party
will pay the absolute value of that amount
to the Defaulting Party.
(ii) TERMINATION EVENTS. If the Early Termination Date
results from a Termination Event: --
(1) One Affected Party. If there is one Affected
Party, the amount payable will be determined
in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section
6(e)(i)(4), if Loss applies, except that, in
either case, references to the Defaulting
Party and to the Non-defaulting Party will
be deemed to be references to the Affected
Party and the party which is not the
Affected Party, respectively, and, if Loss
applies and fewer than all the Transactions
are being terminated, Loss shall be
calculated in respect of all Terminated
Transactions.
(2) Two Affected Parties. If there are two
Affected Parties: --
(A) if Market Quotation applies, each
party will determine a Settlement
Amount in respect of the Terminated
Transactions, and an amount will be
payable equal to (I) the sum of (a)
one-half of the difference between
the Settlement Amount of the party
with the higher Settlement Amount
("X") and the Settlement Amount of
the party with the lower Settlement
Amount ("Y") and (b) the
Termination Currency Equivalent of
the Unpaid Amounts owing to X less
(II) the Termination Currency
Equivalent of the Unpaid Amounts
owing to Y; and
(B) if Loss applies, each party will
determine its Loss in respect of
this Agreement (or, if fewer than
all the Transactions are being
terminated, in respect of all
Terminated Transactions) and an
amount will be payable equal to
one-half of the difference between
the Loss of the
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party with the higher Loss
("X") and the Loss of the party
with the lower Loss ("Y").
If the amount payable is a positive number,
Y will pay it to X; if it is a negative
number, X will pay the absolute value of
that amount to Y.
(iii) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an
Early Termination Date occurs because "Automatic
Early Termination" applies in respect of a party, the
amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and
permitted by law to reflect any payments or
deliveries made by one party to the other under this
Agreement (and retained by such other party) during
the period from the relevant Early Termination Date
to the date for payment determined under Section
6(d)(ii).
(iv) PRE-ESTIMATE. The parties agree that if Market
Quotation applies 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 such
losses.
7. TRANSFER
Subject to Section 6(b)(ii), 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 amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section 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 a reasonable
manner and in good faith in converting the currency so tendered into the
Contractual Currency, of the full amount in the Contractual Currency of all
amounts payable in respect of this Agreement. If for any reason the amount in
the Contractual Currency so received falls short of the amount in the
Contractual Currency payable in respect of this Agreement, the party required to
make the payment will, to the extent permitted by applicable law, immediately
pay such additional amount in the Contractual Currency as may be necessary to
compensate for the shortfall. If for any reason the amount in the Contractual
Currency so received exceeds the amount in the Contractual Currency payable in
respect of this Agreement, the party receiving the payment will refund promptly
the amount of such excess.
(b) JUDGMENTS. To the extent permitted by applicable law, if any
judgment or order expressed in a currency other than the Contractual Currency is
rendered (i) for the payment of any amount owing in respect of this Agreement,
(ii) for the payment of any amount relating to any early termination in respect
of this Agreement or (iii) in respect of a judgment or order of another court
for the payment of any amount described in (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
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exchange at which the Contractual Currency is converted into the currency of the
judgment or order for the purposes of such judgment or order and the rate of
exchange at which such party is able, acting in a reasonable manner and in good
faith 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. The term "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.
(c) SEPARATE INDEMNITIES. To the extent permitted by applicable law,
these indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) EVIDENCE OF LOSS. For the purpose of this Section 8, it will be
sufficient for a party to demonstrate that it would have suffered a loss had an
actual exchange or purchase been made.
9. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding of the parties with respect to its subject matter and
supersedes all oral communication and prior writings with respect thereto.
(b) AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) SURVIVAL OF OBLIGATIONS. Without prejudice to Sections 2(a)(iii)
and 6(c)(ii), the obligations of the parties under this Agreement will survive
the termination of any Transaction.
(d) REMEDIES CUMULATIVE. Except as provided in this Agreement, the
rights, powers, remedies and privileges provided in this Agreement are
cumulative and not exclusive of any rights, powers, remedies and privileges
provided by law.
(e) COUNTERPARTS AND CONFIRMATIONS.
(i) This Agreement (and each amendment, modification and
waiver in respect of it) may be executed and
delivered in counterparts (including by facsimile
transmission), each of which will be deemed an
original.
(ii) The parties intend that they are legally bound by the
terms of each Transaction from the moment they agree
to those terms (whether orally or otherwise). A
Confirmation shall 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 or by an
exchange of electronic messages on an electronic
messaging system, which in each case will be
sufficient for all purposes to evidence a binding
supplement to this Agreement. The parties will
specify therein or through another effective means
that any such counterpart, telex or electronic
message constitutes a Confirmation.
(f) NO WAIVER OF RIGHTS. A failure or delay in exercising any right,
power or privilege in respect of this Agreement will not be presumed to operate
as a waiver, and a single or partial exercise of any right, power or privilege
will not be presumed to preclude any subsequent or further exercise, of that
right, power or privilege or the exercise of any other right, power or
privilege.
(g) HEADINGS. The headings used in this Agreement are for convenience
of reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
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10. OFFICES; MULTIBRANCH PARTIES
(a) If Section 10(a) is specified in the Schedule as applying, each
party that enters into a Transaction through an Office other than its head or
home office represents to the other party that, notwithstanding the place of
booking office or jurisdiction of incorporation or organisation of such party,
the obligations of such party are the same as if it had entered into the
Transaction through its head or home office. This representation will be deemed
to be repeated by such party on each date on which a Transaction is entered
into.
(b) Neither party may change the Office through which it makes and
receives payments or deliveries for the purpose of a Transaction without the
prior written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule,
such Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
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 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 set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system 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 that
transmission 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 that mail is delivered or its
delivery is attempted; or
(v) if sent by electronic messaging system, on the date
that electronic message is received,
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 shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) CHANGE OF ADDRESSES. Either party may by notice to the other change
the address, telex or facsimile number or electronic messaging system 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.
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(b) JURISDICTION. With respect to any suit, action or proceedings
relating to this Agreement ("Proceedings"), each party irrevocably: --
(i) submits to the jurisdiction of the English courts, if
this Agreement is expressed to be governed by English
law, or 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, if this Agreement is expressed to be
governed by the laws of the State of New York; and
(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.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Xxx 0000 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) SERVICE OF PROCESS. Each party irrevocably appoints the Process
Agent (if any) specified opposite its name in the Schedule to receive, for it
and on its behalf, service of process in any Proceedings. If for any reason any
party's Process Agent is unable to act as such, such party will promptly notify
the other party and within 30 days appoint a substitute process agent acceptable
to the other party. The parties irrevocably consent to service of process given
in the manner provided for notices in Section 12. Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted
by law.
(d) WAIVER OF IMMUNITIES. Each party irrevocably waives, to the fullest
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, order for specific performance or for
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.
14. DEFINITIONS
As used in this Agreement: --
"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, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"AFFILIATE" means, subject to the Schedule, in relation to any person,
any entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"APPLICABLE RATE" means: --
(a) in respect of obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
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(b) in respect of an obligation to pay an amount under Section 6(e) of
either party from and after the date (determined in accordance with Section
6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or
which would have been but for Section 2(a)(iii)) by a Non-defaulting Party, the
Non-default Rate; and
(d) in all other cases, the Termination Rate.
"BURDENED PARTY" has the meaning specified in Section 5(b).
"CHANGE IN TAX LAW" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or after the
date on which the relevant Transaction is entered into.
"CONSENT" includes a consent, approval, action, authorisation,
exemption, notice, filing, registration or exchange control consent.
"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.
"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).
"EARLY TERMINATION DATE" means the date determined in accordance with
Section 6(a) or 6(b)(iv).
"EVENT OF DEFAULT" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"ILLEGALITY" has the meaning specified in Section 5(b).
"INDEMNIFIABLE TAX" means any Tax other than a Tax that would not be
imposed in respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to such
recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having executed,
delivered, performed its obligations or received a payment under, or enforced,
this Agreement or a Credit Support Document).
"LAW" includes any treaty, law, rule or regulation (as modified, in the
case of tax matters, by the practice of any relevant governmental revenue
authority) and "lawful" and "unlawful" will be construed accordingly.
"LOCAL BUSINESS DAY" means, subject to the Schedule, a day on which
commercial banks are open for business (including dealings in foreign exchange
and foreign currency deposits) (a) in relation to any obligation under Section
2(a)(i), in the place(s) specified in the relevant Confirmation or, if not so
specified, as otherwise agreed by the parties in writing or determined pursuant
to provisions contained, or incorporated by reference, in this Agreement, (b) in
relation to any other payment, 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, (c) in relation to any notice or other communication,
including notice contemplated under Section 5(a)(i), in the city specified in
the address for notice provided by the recipient and, in the case of a notice
contemplated by Section 2(b), in the place where the relevant new account is to
be located and (d) in relation to Section 5(a)(v)(2), in the relevant locations
for performance with respect to such Specified Transaction.
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"LOSS" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"MARKET QUOTATION" means, with respect to one or more Terminated
Transactions and a party making the determination, an amount determined on the
basis of quotations from Reference Market-makers. Each quotation will be for an
amount, if any, that would be paid to such party (expressed as a negative
number) or by such party (expressed as a positive number) in consideration of an
agreement between such party (taking into account any existing Credit Support
Document with respect to the obligations of such party) and the quoting
Reference Market-maker to enter into a transaction (the "Replacement
Transaction") that would have the effect of preserving for such party the
economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under Section 2(a)(i) in respect
of such Terminated Transaction or group of Terminated Transactions that would,
but for the occurrence of the relevant Early Termination Date, have been
required after that date. For this purpose, Unpaid Amounts in respect of the
Terminated Transaction or group of Terminated Transactions are to be excluded
but, without limitation, any payment or delivery that would, but for the
relevant Early Termination Date, have been required (assuming satisfaction of
each applicable condition precedent) after that Early Termination Date is to be
included. The Replacement Transaction would be subject to such documentation as
such party and the Reference Market-maker may, in good faith, agree. The party
making the determination (or its agent) will request each Reference Market-maker
to provide its quotation to the extent reasonably practicable as of the same day
and time (without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of
which those quotations are to be obtained will be selected in good faith by the
party obliged to make a determination under Section 6(e), and, if each party is
so obliged, after consultation with the other. If more than three quotations are
provided, the Market Quotation will be the arithmetic mean of the quotations,
without regard to the quotations having the highest and lowest values. If
exactly three such quotations are provided, the Market Quotation will be the
quotation remaining after disregarding the highest and lowest quotations. For
this purpose, if more than one quotation has the same highest value or lowest
value, then one of such quotations shall be disregarded. If fewer than three
quotations are provided, it will be deemed that the Market Quotation in respect
of such Terminated Transaction or group of Terminated Transactions cannot be
determined.
"NON-DEFAULT RATE" means a rate per annum equal to the cost (without
proof or evidence of any actual cost) to the Non-defaulting Party (as certified
by it) if it were to fund the relevant amount.
"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.
"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.
"REFERENCE MARKET-MAKERS" means four leading dealers in the relevant
market selected by the party determining a Market Quotation in good faith (a)
from among dealers of the highest credit standing which satisfy all the criteria
that such party applies generally at the time in deciding whether to offer or to
make an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"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.
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"SCHEDULED PAYMENT DATE" means a date on which a payment or delivery is
to be made under Section 2(a)(i) with respect to a Transaction.
"SET-OFF" means set-off, offset, combination of accounts, right of
retention or withholding or similar right or requirement to which the payer of
an amount under Section 6 is entitled or subject (whether arising under this
Agreement, another contract, applicable law or otherwise) that is exercised by,
or imposed on, such payer.
"SETTLEMENT AMOUNT" means, with respect to a party and any Early
Termination Date, the sum of: --
(a) the Termination Currency Equivalent of the Market Quotations
(whether positive or negative) for each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without
reference to any Unpaid Amounts) for each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation cannot be determined or
would not (in the reasonable belief of the party making the determination)
produce a commercially reasonable result.
"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 thereto) now existing or
hereafter entered into between one party to this Agreement (or any Credit
Support Provider of such party or any applicable Specified Entity of such party)
and the other party to this Agreement (or any Credit Support Provider of such
other party or any applicable Specified Entity of such other party) which is a
rate swap transaction, 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 or any other similar
transaction (including any option with respect to any of these transactions),
(b) any combination of these transactions and (c) any other transaction
identified as a Specified Transaction in this Agreement or the relevant
confirmation.
"STAMP TAX" means any stamp, registration, documentation or similar
tax.
"TAX" means any present or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including interest, penalties and additions
thereto) that is imposed by any government or other taxing authority in respect
of any payment under this Agreement other than a stamp, registration,
documentation or similar tax.
"TAX EVENT" has the meaning specified in Section 5(b).
"TAX EVENT UPON MERGER" has the meaning specified in Section 5(b).
"TERMINATED TRANSACTIONS" means with respect to any Early Termination
Date (a) if resulting from a Termination Event, all Affected Transactions and
(b) if resulting from an Event of Default, all Transactions (in either case) in
effect 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" has the meaning specified in the Schedule.
"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 Market Quotation or Loss (as the case may be), 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
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be customary for the determination of such a rate for the purchase of such Other
Currency for value on the relevant Early Termination Date or that later date.
The foreign exchange agent will, if only one party is obliged to make a
determination under Section 6(e), be selected in good faith by that party and
otherwise will be agreed by the parties.
"TERMINATION EVENT" means an Illegality, a Tax Event or a Tax Event
Upon Merger or, if specified to be applicable, a Credit Event Upon Merger or an
Additional Termination Event.
"TERMINATION RATE" means a rate per annum equal to the arithmetic mean
of the cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"UNPAID AMOUNTS" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have become payable
but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or prior to
such Early Termination Date and which remain unpaid as at such Early Termination
Date and (b) in respect of each Terminated Transaction, for each obligation
under Section 2(a)(i) which was (or would have been but for Section 2(a)(iii))
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 as of the originally scheduled date for delivery,
in each case together with (to the extent permitted under applicable law)
interest, in the currency of such amounts, from (and including) the date such
amounts or obligations were or would have been required to have been paid or
performed to (but excluding) such Early Termination Date, at the Applicable
Rate. Such amounts of interest will be calculated on the basis of daily
compounding and the actual number of days elapsed. The fair market value of any
obligation referred to in clause (b) above shall be reasonably determined by the
party obliged to make the determination under Section 6(e) or, if each party is
so obliged, it shall be the average of the Termination Currency Equivalents of
the fair market values reasonably determined by both parties.
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.
- Public Credit and
Repackaged (Name of
Party) Securities
(SM)(PCARS)(SM) Trust
Series -
By: By:
------------------------------- --------------------
Name: Name:
Title: Title:
Date: Date:
-18-
19
ISDA(R)
International Swap Dealers Association, Inc.
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of -
between
-
("Party A")
and
PUBLIC CREDIT AND REPACKAGED SECURITIES(SM) (PCARS)(SM) TRUST SERIES -
("Party B" or the "Trust")
PART 1. TERMINATION PROVISIONS.
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of: --
Section 5(a)(v), none specified
Section 5(a)(vi), none specified
Section 5(a)(vii), none specified
Section 5(b)(iv), none specified
and in relation to Party B for the purpose of: --
Section 5(a)(v), none specified
Section 5(a)(vi), none specified
Section 5(a)(vii), none specified
Section 5(b)(iv), none specified
(b) "SPECIFIED TRANSACTION" means, in lieu of the meaning specified in
Section 14, any contract or transaction (whether or not documented
under or effected pursuant to a master agreement) now existing or
hereafter entered into between Party A, any Credit Support Provider of
Party A or any Affiliate of Party A, on the one hand, and Party B, any
Credit Support Provider of Party B or any Affiliate of Party B, on the
other hand; provided, however, that "Specified Transaction" shall
exclude any contract or transaction for Specified Indebtedness and any
securities repurchase or reverse repurchase agreement or similar
transaction.
(c) "FAILURE TO PAY OR DELIVER", "BREACH OF AGREEMENT", "CREDIT SUPPORT
DEFAULT" "MISREPRESENTATION", "DEFAULT UNDER SPECIFIED TRANSACTION" and
"CROSS-DEFAULT": Section 5(a)(i) is amended by deleting the words "if
such failure is not remedied on or before the third Local Business Day
after notice of such failure is given to the party." Section 5(a)(ii),
(iv), (v) and (vi) shall not apply to Party A or Party B (provided that
a default by Party B under a Specified Transaction may independently
give rise to a Trust Wind Up Event under the terms of the Trust
Agreement dated - between Credit and Repackaging Vehicle Corporation,
as depositor, and Xxxxx Fargo Bank Minnesota, National Association, as
trustee, with respect to the Trust (the "Trust Agreement")). Section
5(a)(iii) shall not apply to Party B.
(d) EVENTS OF DEFAULT WITH RESPECT TO PARTY B. With respect to Party B
only, Section 5(a)(vii) shall apply with the following amendments:
(i) Section 5(a)(vii)(2) shall not apply;
(ii) Section 5(a)(vii)(3) shall apply with the words "the
Certificateholders" substituted for "its
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creditors"; and
(iii) Sections 5(a)(vii)(6) and (7) shall apply with the words
"assets comprising the property of the Trust, otherwise than in
accordance with the Trust Agreement" substituted for "all or
substantially all its assets".
(e) "TAX EVENT UPON MERGER"; "CREDIT EVENT UPON MERGER": Sections 5(b)(iii)
and 5(b)(iv) shall not apply to Party A or Party B.
(f) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) shall not
apply to Party A or Party B; provided, however, that in the case of any
Event of Default of a type specified in Section 5(a)(vii)(1), (3), (4),
(5), (6) or, to the extent analogous thereto, (8) that is governed by a
system of laws that does not permit termination of all outstanding
Transactions to take place upon or after the occurrence of such Event
of Default in accordance with the terms of this Agreement, then the
Automatic Early Termination provisions of Section 6(a) shall apply to
Party A and Party B.
(g) PAYMENTS ON EARLY TERMINATION. "Second Method and Market Quotation"
shall apply for purposes of Section 6(e); provided, however, that
notwithstanding any other provision of this Agreement, the claim of
Party A for any Settlement Amount arising other than as a result of a
Security Default (as defined in the Trust Agreement) shall be limited
in accordance with the provisions of the Trust Agreement (if the Trust
Agreement provides for such a limitation) to a claim pro rata with that
of the Certificateholders under the Trust Agreement for their
Certificate Principal Balance (as defined in the Trust Agreement), plus
accrued interest.
(h) "TERMINATION CURRENCY" means USD.
(i) ADDITIONAL TERMINATION EVENT shall apply. Each of the following shall
constitute an Additional Termination Event, with Party B as the
Affected Party:
(i) TRUST WIND-UP EVENT. A "Trust Wind-Up Event" shall occur in respect of
Party B pursuant to Section 9.01 of the Trust Agreement. In this case,
all Transactions shall be Affected Transactions.
(ii) SECURITY DEFAULT. A "Security Default" (as defined in the Trust
Agreement) shall occur. In this case, unless otherwise provided in the
related Confirmation, only the Transaction or Transactions related to
the Security (as defined in the Trust Agreement) to which such Security
Default relates shall be an Affected Transaction or Affected
Transactions.
(iii) DISQUALIFIED SECURITY. A Security related to a Transaction shall become
a "Disqualified Security" (as defined in the Trust Agreement). In this
case, unless otherwise provided in the related Confirmation, only the
Transaction or Transactions related to such Disqualified Security shall
be an Affected Transaction or Affected Transactions.
(iv) DISQUALIFIED TRANSACTION. Any Transaction shall become a "Disqualified
Transaction" (as defined in the Trust Agreement). In this case, unless
otherwise provided in the related Confirmation, only such Disqualified
Transaction shall be an Affected Transaction.
PART 2 TAX REPRESENTATIONS.
(a) PAYER TAX REPRESENTATIONS. For purposes of Section 3(e), each of Party
A and Party B makes the following representation: --
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of
any Relevant Jurisdiction to make any deduction or withholding
for or on account of any Tax from any payment (other than
interest under Section 2(a)(iii), 2(e), 6(d)(ii) or 6(e)) to
be made by it to the other party under this Agreement. In
making this representation, it may rely on: --
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21
(i) the accuracy of any representation made by the other party
pursuant to Section 3(f);
(ii) the satisfaction of the agreement of the other party contained
in Section 4(a)(i) or 4(a)(iii) and the accuracy and
effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii); and
(iii) the satisfaction of the agreement of the other party contained
in Section 4(d);
provided that it shall not be a breach of this representation by either
party if reliance is placed on clause (ii) above and the other party
does not deliver a form or document under Section 4(a)(iii) by reason
of material prejudice to its legal or commercial position.
(b) PAYEE TAX REPRESENTATIONS. None.
PART 3. AGREEMENT TO DELIVER DOCUMENTS.
For purposes of this Agreement, each party shall deliver the following
documents, as applicable:
PARTY REQUIRED TO DELIVER DATE BY WHICH TO BE COVERED BY SECTION 3(d)
DOCUMENT FORM/DOCUMENT/CERTIFICATE DELIVERED REPRESENTATION
Party A and Party B Either (1) a signature The earlier of the fifth Yes
booklet containing a Business Day after the
secretary's certificate and Trade Date of the first
resolutions ("authorizing Transaction or upon
resolutions") authorizing execution of this Agreement
the party to enter into and as deemed necessary for
derivatives transactions of any further documentation.
the type contemplated by
the parties or (2) a
secretary's certificate,
authorizing resolutions and
incumbency certificate for
such party and any Credit
Support Provider of such
party reasonably
satisfactory in form and
substance to the other
party.
Party B Certified copies of As soon as practicable Yes
documents evidencing Party after the execution of
B's capacity to execute this Agreement.
this Agreement, each
Confirmation and any
Credit Support Document
(if applicable) and to
perform its obligations
hereunder and thereunder.
Party B A written opinion of legal Upon execution of this No
counsel to Party B, Agreement and as deemed
reasonably satisfactory in necessary for any further
form and substance to Party documentation.
A.
Party A and Party B Such other documents as the Upon request. No
other party may reasonably
request.
PART 4. MISCELLANEOUS.
(a) ADDRESSES FOR NOTICES. For purposes of Section 12(a): --
(i) Address for notices or communications to Party A: --
-
Attention: -
Facsimile No.: - Telephone No.: -
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22
(ii) Address for notices or communications to Party B: -- Public
Credit and Repackaged Securities(SM) (PCARS)(SM) Trust Series
- c/x Xxxxx Fargo Bank Minnesota, National Association, as
trustee -
Attention: -
Facsimile No.: - Telephone No.: -
(b) NOTICES. Section 12(a) is amended by adding in the third line thereof
after the phrase "messaging system" and before the ")" the words, ";
provided, however, that any such notice or other communication may be
given by facsimile transmission if telex is unavailable, no telex
number is supplied to the party providing notice, or if an answer back
confirmation is not received from the party to whom the telex is sent."
(c) PROCESS AGENT. For purposes of Section 13(c) of this Agreement, Party B
irrevocably appoints as its Process Agent the person specified in
subparagraph (a)(ii) above.
(d) OFFICES. The provisions of Section 10(a) shall apply to Party A and
Party B.
(e) MULTIBRANCH PARTY. For purposes of Section 10(c) of this Agreement,
neither Party A nor Party B is a Multibranch Party.
(f) "CALCULATION AGENT" means Party A.
(g) "CREDIT SUPPORT DOCUMENT" means any credit support annex, any
Confirmation and any other document, in each case that by its terms
secures, guarantees or otherwise supports the obligations of Party A
under this Agreement[, including, but not limited to, the guarantee of
- set forth in a letter to the Trust.]
(h) CREDIT SUPPORT PROVIDER means, in relation to Party A: -
(i) GOVERNING LAW; JURISDICTION. This Agreement, any Credit Support
Document and each Confirmation shall be governed by, and constructed in
accordance with, the laws of the State of New York. Section 13(b) is
amended by deleting (A) "non-" from the second line of clause (i) and
(B) the final paragraph.
(j) WAIVER OF JURY TRIAL. Each party waives, to the full extent permitted
by applicable law, any right it may have to a trial by jury in respect
of any Proceedings relating to this Agreement or any Credit Support
Document.
[(k) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) shall not apply
to any amounts payable with respect to any Transactions.]
(l) "AFFILIATE" has the meaning specified in Section 14, but excludes -.
PART 5. OTHER PROVISIONS.
(a) TRUSTEE CAPACITY. With respect to the execution of this Agreement on
behalf of the Trust, it is expressly understood and agreed by the
parties hereto that, (i) this Agreement is executed and delivered by
Xxxxx Fargo Bank Minnesota, National Association, not in its individual
capacity but solely as trustee under the Trust Agreement in the
exercise of the powers and authority conferred and vested in it, (ii)
each of the representations, undertakings and agreements herein made on
the part of the Trust is made and intended not as a representation,
undertaking or agreement, as the case may be, by Xxxxx Fargo Bank
Minnesota, National Association in its individual capacity but is made
and intended for purposes of binding only the Trust and (iii) under no
circumstances shall Xxxxx Fargo Bank Minnesota, National Association in
its individual capacity be liable for the payment of any indebtedness
or expenses of the Trust or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by
the Trust under this Agreement.
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(b) ADDITIONAL REPRESENTATIONS. Section 3 is hereby amended by adding at
the end thereof the following subparagraphs:
"(g) ELIGIBLE CONTRACT PARTICIPANT. It is an "eligible contract
participant" within the meaning of Section 1a(12) of the U.S. Commodity
Exchange Act.
(h) NO AGENCY. It is entering into this Agreement and each Transaction
as principal (and not as agent or in any other capacity, fiduciary or
otherwise.
(j) NO RELIANCE. In connection with the negotiation of, the entering
into, and the confirming of the execution of, this Agreement, any
Credit Support Document to which it is a party and each Transaction:
(i) the other party is not acting as a fiduciary or financial or
investment advisor for it; (ii) it is not relying upon any
representations (whether written or oral) of the other party other than
the representations expressly set forth in this Agreement or such
Credit Support Document; and (iii) it has consulted with its own legal,
regulatory, tax, business, investment, financial and accounting
advisors to the extent it has deemed necessary, and it has made its own
investment, hedging and trading decisions based upon its own judgment
and upon any advice from such advisors as it has deemed necessary and
not upon any view expressed by the other party.
(c) SETOFF AND RELATED MATTERS.
(i) The occurrence or designation of an Early Termination Date on
account of an Event of Default with respect to a party hereto ("Y")
shall constitute a material breach and event of default (however
described) under all Specified Transactions to which Y is a party,
whereupon the Nondefaulting Party ("X") or any Affiliate of X shall
have the right to terminate, liquidate and otherwise close out any or
all such Specified Transactions (and Y shall be liable for any damages
suffered by X and any Affiliate of X as a result thereof). For purposes
of Section 6(a) of this Agreement, each Transaction shall be deemed to
be outstanding until all obligations (including payment, delivery and
exchange obligations) in respect of such Transaction have been fully
discharged and satisfied.
(ii) Upon the occurrence or designation of any Early Termination Date
on account of an Event of Default, any amount payable by X or any
Affiliate of X under this Agreement, any Specified Transaction with Y,
or in respect of any other matured, liquidated or terminated obligation
to Y shall, at the option of X or any Affiliate of X (and without prior
notice to Y), be reduced by its setoff and recoupment against any and
all amounts payable by Y to X or any Affiliate of X under this
Agreement, any Specified Transaction with Y or in respect of any other
matured, liquidated or terminated obligation of Y (and any and all such
amounts payable by Y shall be discharged promptly and in all respects
to the extent that it is so offset). X or an Affiliate of X, as
appropriate, shall give notice to Y after any setoff and recoupment is
effected under this paragraph (ii). For purposes of the foregoing, X
and any Affiliate of X shall be entitled to convert any obligations
denominated in one currency into another at such rates of exchange as
it deems appropriate in good faith and in a commercially reasonable
manner, and amounts may be set off and recouped irrespective of the
currency, place of payment or booking office of any obligation to or
from Y. If an obligation is unascertained, X or any Affiliate of X, as
appropriate, may in good faith estimate that obligation and offset and
recoup in respect of that estimate, subject to the relevant party's
accounting to the other when the obligation is ascertained. All
obligations of X and any Affiliate of X under this Agreement, any
Specified Transaction with Y or in respect of any other matured,
liquidated or terminated obligation to Y are subject to the condition
precedent that Y shall have performed all of its obligations to X and
any Affiliate of X under this Agreement, any Specified Transaction with
X and in respect of any other matured, liquidated or terminated
obligation of Y. Party A and Party B and their Affiliates intend that
all Transactions and Specified Transactions be treated as mutual and
part of a single, indivisible contractual and business relationship.
S-5
24
(iii) If either party ("C"), its Credit Support Provider or any
Affiliate of C has reasonable grounds for insecurity regarding a
potential default under this Agreement or any Specified Transaction by
the other party ("D"), any Credit Support Provider or any Affiliate of
D, then C or any Affiliate of C may transfer its rights and obligations
under this Agreement or any agreement for a Specified Transaction to
any Affiliate of C or to C, and each of the parties hereto agrees to
such transfer and to use its best efforts to obtain any required
consents from its relevant Affiliate to any such transfer.
(iv) Nothing in this Part 5(c) shall be effective to create a charge or
other security interest. This Part 5(c) shall be without prejudice and
in addition to any right of setoff, recoupment, combination of
accounts, lien or other right to which any party or any of its
Affiliates is at any time otherwise entitled (whether by operation of
law, contract or otherwise).
(d) CONFIRMATIONS. On or promptly following the Trade Date or other
transaction date of each Transaction, Party A will send to Party B a
Confirmation. Party B will promptly thereafter confirm the accuracy of
(in the manner required by Section 9(e)), or request the correct of,
such Confirmation (in the latter case, indicating how it believes the
terms of such Confirmation should be correctly stated and such other
terms which should be added to or deleted from such Confirmation to
make it correct).
(e) TELEPHONE CONVERSATIONS. Some or all of the telephone conversations
between Party A and Party B may, in accordance with market practice, be
taped without the use of a warning tone and retained by either party.
Each party consents to such recording.
(f) SECURITY. As collateral security for the prompt and complete payment
and performance when due of the obligations of Party B hereunder, Party
B hereby grants to Party A a continuing security interest in all of
Party B's right, title and interest in the Trust Property (as defined
in the Trust Agreement). Such security interest shall remain in full
force and effect until Party A has received amounts due to it
hereunder.
(g) FURTHER ACKNOWLEDGMENTS. Each party agrees and acknowledges that:
(i) Each transfer of funds, securities or other property under
this Agreement or any Transaction hereunder constitutes a
transfer that may not be avoided under Sections 544, 545, 547,
548(a)(2) or 548(b) of Title 11 of the United States Code (the
"Bankruptcy Code").
(ii) The rights given to each party hereunder upon an Event of
Default by the other to cause the liquidation and termination
of this Agreement and each Transaction hereunder, and to
offset mutual debts and claims in connection therewith, may
not be stayed, limited or avoided under the Bankruptcy Code,
including, without limitation, Section 362, 365(c) or 105(a)
thereof.
(h) NON-PETITION. Prior to the date that is one year and one day after all
distributions in respect of the Certificates issued by the Trust have
been made, Party A shall not take any action or institute any
proceeding against the Trust under the Bankruptcy Code or any other
liquidation, insolvency, bankruptcy, moratorium, reorganization or
similar law ("Insolvency Law") applicable to the Trust, now or
hereafter in effect, or which would be reasonably likely to cause the
Trust to be subject to, or seek the protection of, any such Insolvency
Law.
(i) RATING AGENCY CONFIRMATION. No amendment to this Agreement shall take
effect unless and until the "Rating Agencies Condition" specified in
the Trust Agreement has been satisfied with respect to such amendment.
S-6
25
(j) SEVERABILITY. If any term, provision, covenant or condition of this
Agreement, or the application thereof to any party or circumstance, is
held invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants and conditions hereof shall
continue in full force and effect as if this Agreement had been
executed with the invalid or unenforceable portion eliminated, so long
as this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter
of this Agreement and the deletion of such portion of this Agreement
will not substantially impair the respective benefits or expectations
of the parties to this Agreement; provided, however, that this
severability provision shall not be applicable if any provision of
Section 2, 5, 6 or 13 (or any definition or provision Section 14 to the
extent that it relates to, or is used in or in connection with any such
Section) shall be so held to be invalid or unenforceable.
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26
IN WITNESS WHEREOF, the parties have caused this Schedule to be
executed by their duly authorized officers as of the date hereof.
-
By:
-------------------------------
Name:
Title:
Date:
PUBLIC CREDIT AND REPACKAGED
SECURITIES (SM)(PCARS)(SM) SERIES -
By: XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as
Trustee
By:
-------------------------------
Name:
Title:
Date:
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