(Multicurrency--Cross Border)
ISDA(R)
International Swaps and Derivatives Association, Inc.
MASTER AGREEMENT
dated as of November 28, 2000
FIRST UNION NATIONAL BANK and FIRST NORTH AMERICAN NATIONAL BANK, 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.
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(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 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
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(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition
to the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure that
the net amount actually received by Y (free and clear of
Indemnifiable Taxes, whether assessed against X or Y) will equal
the full amount Y would have received had no such deduction or
withholding been required. However, X will not be required to pay
any additional amount to Y to the extent that it would not be
required to be paid but for:--
(A) the failure by Y to comply with or perform any
agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d);
or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure
would not have occurred but for (I) any action taken by a
taxing authority, or brought in a court of competent
jurisdiction, 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.
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(i) Status. It is duly organized and validly existing under the laws
of the jurisdiction of its organization 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
authorize 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
(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, reorganization, 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:--
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(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 Authorizations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated, organized, 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;
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(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;
(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
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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:--
(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:--
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(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 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.
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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)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event 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)(1) 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.
(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
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(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 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.
10
(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
11
of the difference between the Loss of the 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
12
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 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
13
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.
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 organization 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
14
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.
(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
15
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;
(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) is 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, authorization, 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.
16
"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 organized, 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.
"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
17
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 organized, 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.
"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.
18
"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
19
rate equal to the spot exchange rate of the foreign exchange agent (selected as
provided below) for the purchase of such Other Currency with the Termination
Currency at or about 11:00 a.m. (in the city in which such foreign exchange
agent is located) on such date as would be customary for the determination of
such a rate for the purchase of such Other Currency for value on the relevant
Early Termination Date or that later date. The foreign exchange agent will, if
only one party is obliged to make a determination under Section 6(e), be
selected in good faith by that party and otherwise will be agreed by the
parties.
"Termination Event" means an Illegality, a 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.
FIRST UNION NATIONAL BANK FIRST NORTH AMERICAN NATIONAL BANK
By: /s/ Xxxxxx X. Xxxx
-------------------
By: /s/ Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxx
----------------------- Title: Vice President
Name Xxxxxx X. Xxxxxxxx: Date: November 29, 2000
Title: Vice President
Date: November 29, 2000
20
(Multicurrency--Cross Border)
ISDA (R)
International Swap Dealers Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of November 28, 2000
between FIRST UNION NATIONAL and FIRST NORTH AMERICAN
BANK NATIONAL BANK
("Party A") ("Party B")
PART 1: Termination Provisions
----------------------
(a) "Specified Entity" means in relation to Party A for the purpose of:-
Section 5(a)(v) (Default under Specified Transaction), none;
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none;
in relation to Party B for the purpose of:-
Section 5(a)(v) (Default under Specified Transaction) none;
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none.
(b) "Specified Transaction" will have the meaning specified in Section 14.
(c) The "Cross-Default" provisions of Section 5(a)(vi)
will not apply to Party A
will not apply to Party B.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv)
will apply to Party A
will not apply to Party B.
(e) The "Automatic Early Termination" provision of Section 6(a)
will not apply to Party A
will not apply to Party B.
1
(f) Payments on Early Termination. For the purpose of Section 6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "Termination Currency" means United States Dollars.
(h) "Additional Termination Event." The occurrence of the following event
shall be an Additional Termination Event (and Party A shall be the
Affected Party): the Trustee declares an Additional Termination Event
and designates an Early Termination Date by notice given to Party A in
order to realize upon the Swap Collateral as described in Part 5 of
this Schedule.
(i) The "Breach of Agreement" provisions of Section 5(a)(ii)
will apply to Party A
will not apply to Party B
(j) The "Credit Support Default" provisions of Section 5(a)(iii)
will apply to Party A
will not apply to Party B
(k) The "Misrepresentation" provisions of Section 5(a)(iv)
will apply to Party A
will not apply to Party B
(l) The "Default under Specified Transaction" provisions of Section 5(a)(v)
will apply to Party A
will not apply to Party B
(m) The "Bankruptcy" provisions of Section 5(a)(vii)
will apply to Party A
will not apply to Party B
(n) The "Merger Without Assumption" provisions of Section 5(a)(viii)
will apply to Party A
will not apply to Party B
(o) The "Additional Termination Event" provisions of Section 5(b)(v) will
not apply to Party A and will not apply to Party B; provided that the
Trustee shall have the right to declare an Additional Termination Event
pursuant to Paragraph (h)(ii) of Part 5 of this Agreement.
PART 2: Tax Representations
-------------------
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B will make 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(e),
6(d)(ii) or 6(e) of
2
this Agreement) to be made by it to the other party under this
Agreement. In making this representation, it may rely on (x) the
accuracy of any representations made by the other party pursuant to
Section 3(f) of this Agreement, (y) the satisfaction of the agreement
contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement and (z) the
satisfaction of the agreement of the other party contained in Section
4(d) of this Agreement, provided that it shall not be a breach of this
representation where reliance is placed on clause (y) 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. For the purpose of Section 3(f) of this
Agreement, Party A and Party B will make the following representations
specified below, if any:-
(i) The following representations will apply to Party
A:
Party A is a national banking association created or organized
under the laws of the United States of America and the federal
taxpayer identification number is 00-0000000.
(ii) The following representations will apply to Party
B:
Party B is a national banking association created or organized
under the laws of the United States of America and the federal
taxpayer identification number is 00-0000000.
PART 3: Agreement to Deliver Documents
------------------------------
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver the following documents:
(a) Tax forms, documents or certificates to be delivered are:
Party required to Form/Document/Certificate Date by which to be delivered
deliver document
-------------------- ---------------------------------- ---------------------------------------
Party B Internal Revenue Service Upon execution and delivery of
Form W-9 this Agreement
Party A and Any form, document or Upon request
Party B certificate as may be
requested pursuant to Section
4(a)(iii) of this Agreement.
3
(b) Other documents to be delivered are:-
Party required to Form/Document/Certificate Date by Covered by Section
deliver document which to be 3(d) Representation
delivered
------------------- --------------------------------------- -------------------- ---------------------
Party A and Certified copies of all corporate Upon execution and Yes
Party B authorizations and any other delivery of this
documents with respect to the Agreement
execution, delivery and
performance of this Agreement
and any Credit Support Document
Party A and Certificate of authority and Upon execution and Yes
Party B specimen signatures of individuals delivery of this
executing this Agreement any Agreement and
Credit Support Document and thereafter upon
Confirmations request of the
other party
PART 4: Miscellaneous
-------------
(a) Address for Notices. For the purpose of Section 12(a) of this
Agreement:-
Address for notice or communications to Party A:
First Union National Bank
000 X. Xxxxxxx Xx.
XX0000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx, Senior Vice President
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Address for notice or communications to Party B:
First North American National Bank
000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
4
with copy to:
Circuit City Stores, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10 of this Agreement:-
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A.
(f) Credit Support Document. Details of any Credit Support Document:-
Credit Support Document means in relation to Party A: the Credit
Support Annex between Party A and Party B dated as of November 28,
2000.
Credit Support Document means in relation to Party B: Not applicable.
(g) Credit Support Provider.
Not applicable.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
its conflict of laws doctrine).
(i) Netting of Payments. All amounts payable on the same date, in the same
currency and in respect of the same Transaction shall be netted in
accordance with Section 2(c) of this Agreement. The election contained
in the last paragraph of Section 2(c) of this Agreement shall not apply
for the purposes of this Agreement.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
5
(k) Required Ratings.
"Required Rating" means, for so long as the Certificates are
---------------
outstanding, a short-term debt rating of "A-1" from Standard and Poor's
(for so long as Standard and Poor's rates the Certificates) and a
short-term debt rating of "P-1" from Moody's (for so long as Moody's
rates the Certificates).
"Standard & Poor's" means Standard & Poor's, a division of the McGraw-
-----------------
Hill Companies, Inc.
"Moody's" means Xxxxx'x Investors Services, Inc.
-------
"Certificates" means the Circuit City Credit Card Master Trust Class A
------------
Floating Rate Asset Backed Certificates, Series 2000-2, and the Circuit
City Credit Card Master Trust Class B Floating Rate Asset Backed
Certificates, Series 2000-2, issued pursuant to the Pooling and
Servicing Agreement.
"Pooling and Servicing Agreement" means that certain Master Pooling and
-------------------------------
Servicing Agreement dated as of October 4, 1994, as amended to the date
hereof and as supplemented by the Series 2000-2 Supplement thereto,
each between First North American National Bank, as Transferor and
Servicer, and Bankers Trust Company, as Trustee (the "Trustee").
If the short-term ratings of the unsecured and unsubordinated debt,
deposit or letter of credit obligations of Party A are withdrawn by
Standard & Poor's or Moody's or are reduced below the Required Rating
by Standard & Poor's or Moody's, Party A shall provide written notice
of such withdrawal or reduction to Party B, the Trustee, Standard &
Poor's and Moody's as soon as practicable but in any event within three
Business Days of such withdrawal or reduction.
PART 5: Other Provisions
----------------
(a) Delivery of Confirmations. For each Transaction entered into
hereunder, Party A shall promptly send to Party B a Confirmation via
facsimile transmission. Party B agrees to respond to such Confirmation
within two (2) Business Days, either confirming agreement thereto or
requesting a correction of any error(s) contained therein. Failure by
Party A to send a Confirmation or of Party B to respond within such
period shall not affect the validity or enforceability of such
Transaction. Absent manifest error, there shall be a presumption that
the terms contained in such Confirmation are the terms of the
Transaction.
(b) Recording of Conversations. Each party to this Agreement acknowledges
and agrees to the tape recording of conversations between the parties
to this Agreement whether by one or other or both of the parties or
their agents, and that any such tape recordings may be submitted in
evidence in any Proceedings relating to the Agreement.
(c) Section 3(a) of this Agreement is amended by (i) deleting the word
"and" at the end of clause (iv); (ii) deleting the period at the end of
clause (v) and inserting therein "; and " ; and (iii) by inserting the
following additional representation:
"(vi) Eligible Swap Participant. It is an 'eligible swap
participant' as defined under the regulations of the Commodity
Futures Trading Commission, currently at 17 CFR Section
35.1(b)(2)."
6
(d) Section 3 is revised so as to add the following Section (g) at the end
thereof:
"(g) Relationship Between Parties. Each party represents to the
other party and will be deemed to represent to the other party
on the date on which it enters into a Transaction that (absent
a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that
Transaction):-
(i) 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
advisors 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 investment advice or a
recommendation to enter into that Transaction.
Further, such party has not received from the other
party any assurance or guarantee as to the expected
results of that Transaction.
(ii) Evaluation and Understanding. It is capable of
evaluating and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and
risks of that Transaction. It is also capable of
assuming, and assumes, the financial and other risks
of that Transaction.
(iii) Status of Parties. The other party is not acting as
an agent, fiduciary or advisor for it in respect of
that Transaction."
(e) Waiver of Right to Trial by Jury. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
(f) Required Transfers. Notwithstanding Section 7 of this Agreement, if
the short-term ratings of the unsecured and unsubordinated debt,
deposit or letter of credit obligations of Party A are withdrawn by
Standard & Poor's or Moody's or are reduced below the Required Rating
by Standard & Poor's or Moody's, Party A shall make a Required Transfer
within 30 days of such withdrawal or reduction.
"Required Transfer" means a transfer, in whole but not in part, of all
-----------------
of Party A's rights and obligations under this Agreement and which
meets all of the following requirements:
(i) the transferee is a recognized dealer in interest rate swaps
reasonably acceptable to Party B, the Trustee, Standard &
Poor's (for so long as Standard & Poor's rates the
Certificates and as confirmed in writing) and Moody's (for so
long as Moody's rates the Certificates and as confirmed in
writing) organized under the laws of the United States of
America or a jurisdiction located in the United States of
America (or another jurisdiction reasonably acceptable to
Party B and the Trustee) and, at the time of the transfer, it
(or its proposed guarantor) maintains at least (A) the
Required Rating, and
7
(B) a long-term rating of A+ from Standard & Poor's on its
unsecured and unsubordinated debt, deposit or letter of credit
obligations, and (C) a long-term rating of "A1" from Moody's
on its unsecured and unsubordinated debt, deposit or letter of
credit obligations;
(ii) neither an Event of Default with respect to the transferee nor
a Termination Event would exist immediately after that
transfer; and
(iii) the transferee executes and delivers a written agreement
reasonably satisfactory to Party B in which the transferee,
among other things, legally and effectively accepts all the
rights and assumes all the obligations of Party A under this
Agreement.
(g) Permitted Security Interest. For purposes of Section 7 of this Agreement,
Party A hereby consents to the Permitted Security Interest, subject to the
provisions of paragraph (h) below.
"Permitted Security Interest" means the collateral assignment by Party B
---------------------------
of the Swap Collateral to the Trustee pursuant to the Pooling and
Servicing Agreement, and the granting to the Trustee of a security
interest in the Swap Collateral pursuant to the Pooling and Servicing
Agreement.
"Swap Collateral" means all right, title and interest of Party B in this
---------------
Agreement, each Transaction hereunder, and all present and future amounts
payable by Party A to Party B under or in connection with this Agreement
or any Transaction governed by this Agreement, whether or not evidenced by
a Confirmation, including, without limitation, any transfer or termination
of any such Transaction.
(h) Effect of Permitted Security Interest.
(i) Notwithstanding the Permitted Security Interest, Party B shall not
be released from any of its obligations under this Agreement or any
Transaction, and Party A may exercise its rights and remedies under this
Agreement without notice to, or the consent of the Trustee, except as
otherwise expressly provided in this Agreement.
(ii) Party A's consent to the Permitted Security Interest is expressly
limited to the Trustee for the benefit of the holders of the Certificates
under the Pooling and Servicing Agreement, and Party A does not consent to
the sale or transfer by the Trustee of the Swap Collateral to or for the
benefit of any other person or entity (other than a successor to the
Trustee under the Pooling and Servicing Agreement acting in that
capacity). The Trustee may realize upon the Swap Collateral by declaring
an Additional Termination Event and designating an Early Termination Date
by notice given to Party A pursuant to the Additional Termination Event
provisions of this Schedule; provided, that the Trustee shall only declare
an Additional Termination Event and designate an Early Termination Date if
(A) such action is taken in connection with the obtaining of a Replacement
Interest Rate Cap or a Qualified Substitute Arrangement (in each case as
defined in the Pooling and Servicing Agreement) or a liquidation of the
Trust Property (as defined in the Pooling and Servicing Agreement) and (B)
the Rating Agency Condition (as defined in the Pooling and Servicing
Agreement) shall have been satisfied.
(iii) Party B hereby acknowledges that, as a result of the Permitted
Security Interest, all of its rights under this Agreement, including any
Transaction, have been assigned to the Trustee pursuant to the Pooling and
Servicing Agreement, and notwithstanding any other provision in this
Agreement, Party B may not take any action hereunder to exercise any of
such rights without the prior written
8
consent of the Trustee, including, without limitation, providing any
notice under this Agreement the effect of which would be to cause an Early
Termination Date to occur or be deemed to occur. If Party B gives any
notice to Party A for the purposes of exercising any of Party B's rights
under this Agreement, Party A shall have the option of treating that
notice as void unless that notice is signed by the Trustee acknowledging
its consent to the provisions of that notice. Nothing herein shall be
construed as requiring the consent of the Trustee for the performance by
Party B of any of its obligations hereunder.
(i) Scope of Agreement. The parties hereby agree that Transactions hereunder
shall be limited to interest rate cap transactions sold by Party A to
Party B.
(j) No Bankruptcy Petition. Notwithstanding any prior termination of the
Pooling and Servicing Agreement or this Agreement, Party A hereby
covenants and agrees that it shall not, prior to the date which is one
year and one day (or, if longer, the applicable preference period then in
effect) after the final payment of the Certificates, petition or otherwise
invoke the process of any governmental authority for the purpose of
commencing or sustaining a case against the Circuit City Credit Card
Master Trust (the "Trust") under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestor or other similar official of the Trust or
any substantial part of its property or ordering the winding up or
liquidation of the affairs of the Trust.
9
Accepted and agreed:
FIRST UNION NATIONAL BANK FIRST NORTH AMERICAN NATIONAL
BANK
By: /s/ Xxxxxx X. Xxxx
By:. /s/ Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxxxxxx Title: Vice President
Title: Vice President
10
(Bilateral Form) (ISDA Agreements Subject to New York Law Only)
ISDA(R)
International Swaps and Derivatives Association, Inc.
CREDIT SUPPORT ANNEX
to the Schedule to the
MASTER AGREEMENT
dated as of November 28, 2000
between
FIRST UNION NATIONAL BANK ("Party A")
and
FIRST NORTH AMERICAN NATIONAL BANK ("Party B")
This Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
Accordingly, the parties agree as follows:
Paragraphs 1 - 12. Incorporation
Paragraphs 1 through 12 inclusive of the ISDA Credit Support Annex (Bilateral
Form) (ISDA Agreements Subject to New York Law Only) published in 1994 by the
International Swaps and Derivatives Association, Inc. are incorporated herein by
reference and made a part hereof.
Paragraph 13. Elections and Variables
(a) Security Interest for "Obligations". The term "Obligations" as used in this
Annex includes the following additional obligations: Not applicable.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a).
(B) "Return Amount" has the meaning specified in Paragraph 3(b).
11
(C) "Credit Support Amount" has the meaning specified in Paragraph 3.
(ii) Eligible Collateral. The following items will qualify as "Eligible
Collateral" for the party specified:
Party A Valuation
Percentage
(A) Cash [ X ] 100%
(B) negotiable debt obligations [ X ] 99%
issued by the U.S. Treasury
Department having an original
maturity at issuance of not
more than one year ("Treasury
Bills")
(C) negotiable debt obligations [ X ] 99%
issued by the U.S. Treasury
Department having an original
maturity at issuance of more
than one year but not more than
5 years ("Treasury Notes")
(D) negotiable debt obligations [ X ] 98%
issued by the U.S. Treasury
Department having an original
maturity at issuance of more
than 5 years but not more than
10 years ("Treasury Notes")
(E) negotiable debt obligations [ X ] 97%
issued by the U.S. Treasury
Department having an original
maturity at issuance of more
than 10 years ("Treasury Bonds")
(F) other: Not applicable.
(iii) Other Eligible Support. Not applicable.
(iv) Thresholds.
(A) "Independent Amount" means for Party A: $0
(B) "Threshold" means for Party A on any date of determination: $0 if the
short-term ratings of the unsecured and unsubordinated debt, deposit
or letter of credit obligations of Party A are withdrawn or are
reduced below the Required Rating by Standard & Poor's or Xxxxx'x and
Party A fails to make a Required Transfer within 30 days of such
withdrawal or reduction; otherwise, the Threshold for Party A shall
be infinite.
12
(C) "Minimum Transfer Amount" means for Party A on any date of
determination: $100,000 if the short-term ratings of the unsecured
and unsubordinated debt, deposit or letter of credit obligations of
Party A are withdrawn or are reduced below the Required Rating by
Standard & Poor's or Xxxxx'x and Party A fails to make a Required
Transfer within 30 days of such withdrawal or reduction; otherwise,
the Minimum Transfer Amount for Party A shall be infinite.
(D) Rounding: The Delivery Amount and the Return Amount will be rounded
down to the nearest integral multiple of $10,000.
(c) Valuation and Timing.
(i) "Valuation Agent" means, for purposes of Paragraphs 3 and 5, the party
making the demand under Paragraph 3, and, for purposes of Paragraphs 4(d) and
6(d), the Secured Party.
(ii) "Valuation Date" means any Local Business Day, provided that there shall
be one Valuation Date per month on a date selected by the Valuation Agent, to
the extent practicable, on a reasonably consistent basis. If the Exposure
fluctuates by more than one percent of the aggregate Notional Amount of the
Transactions hereunder, there shall be one Valuation Date per week on a date
selected by the Valuation Agent, to the extent practicable, on a reasonably
consistent basis.
(iii) "Valuation Time" means the close of business in New York City on the
Local Business Day before the Valuation Date or date of calculation, as
applicable; provided that the calculations of Value and Exposure will be made
as of approximately the same time on the same date.
(iv) "Notification Time" means 11:00 a.m., New York time, on a Local Business
Day.
(d) Conditions Precedent and Secured Party's Rights and Remedies. The following
Termination Event(s) will be a "Specified Condition" for the party specified
(that party being the Affected Party if the Termination Event occurs with
respect to that party):
Party B
Illegality [ X ]
provided that if the Affected Party would be entitled to receive Eligible Credit
Support or Posted Credit Support but for that Specified Condition, then
notwithstanding Sections 6(b)(ii) and (iii) of the Agreement, the Affected Party
may designate an Early Termination Date in respect of all Affected Transactions
pursuant to Section 6(b)(iv) as the result of any such Termination Event(s)
regardless of whether the condition set forth in Section 6(b)(iv)(1) has been
satisfied.
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. The Pledgor (choose one) [_] must obtain [X] is not required
to obtain the Secured Party's consent for any substitution pursuant to Paragraph
4(d).
(f) Dispute Resolution.
13
(i) "Resolution Time" means 1:00 p.m., New York time, on the Local Business
Day following the date on which the notice is given that gives rise to a
dispute under Paragraph 5.
(ii) Value. For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value of
Posted Credit Support other than Cash will be calculated based on the mid-
point between the bid and offered purchase rates or prices for that Posted
Credit Support as reported on the Bloomberg electronic service as of the
Resolution Time, of if unavailable, as quoted to the Valuation Agent as of
the Resolution Time by a dealer in that Posted Credit Support of recognized
standing selected in good faith by the Valuation Agent, which calculation
shall include any unpaid interest on that Posted Credit Support.
(iii) Alternative. The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians. The Custodian for
Party B will be entitled to hold Posted Collateral pursuant to Paragraph
6(b); provided that the following conditions applicable to it are
satisfied:
(A) Posted Collateral may be held only in the following jurisdictions:
United States of America.
(B) The Custodian maintains a Credit Rating of at least BBB+ from S&P and
Baa1 from Xxxxx'x.
(C) The Custodian is a bank or trust company having total assets in excess
of $10 billion.
The Custodian for Party B is: the Trustee.
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c) will not
apply to Party B.
(h) Interest Amount.
(i) Interest Rate. The "Interest Rate" for any day will be the Federal Funds
(Effective) rate published in N.Y. Federal Reserve Statistical Release
H.15(519) for that day (or if that day is not a New York Business Day, then
for the next preceding New York Business Day).
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount will
be made on the last local Business Day of each calendar month and on any
Local Business Day that Posted Collateral in the form of Cash is Transferred
to the Pledgor pursuant to Paragraph 3(b).
(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
(i) Additional Representation(s). Not applicable.
(j) Other Eligible Support and Other Posted Support. Not applicable.
(k) Demands and Notices. All demands, specifications and notices under this
Annex will be made pursuant to the Notices Section of this Agreement.
14
(l) Addresses for Transfers.
Party A: For each Transfer to Party A, instructions will be provided by
Party A for that specific Transfer.
Party B: For each Transfer to Party B, instructions will be provided by
Party B for that specific Transfer.
(m) Other Provisions.
(i) For purposes of this Annex, all references to "Secured Party" will be
to Party B and all references to "Pledgor" will be to Party A.
(ii) "Exposure" means for any Valuation Date or or other date for which
Exposure is calculated and subject to Paragraph 5 in the case of a dispute, the
greater of (x) the amount, if any, that would be payable to a party that is the
Secured Party by the other party (expressed as a positive number) or by a party
that is the Secured Party to the other party (expressed as a negative number)
pursuant to Section 6(e)(ii)(2)(A) of this Agreement as if all Transactions (or
Swap Transactions) were being terminated as of the relevant Valuation Time; (y)
the aggregate of the next succeeding amounts payable by the Pledgor in its
capacity as a party to each Transaction under the Agreement and (z) one percent
of the aggregate of the outstanding principal amount of the Certificates
(determined on such Valuation Date).
15
IN WITNESS WHEREOF the parties have executed this Credit Support Annex as of the
date hereof.
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
FIRST NORTH AMERICAN NATIONAL BANK
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
16
[FIRST UNION NATIONAL BANK LETTERHEAD]
Rate Cap
Transaction Confirmation
Date:
November 29, 2000
To:
Attn: Xxxxx Xxxxxxx
FIRST NORTH AMERICAN NATIONAL BANK ("Counterparty")
000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
From:
FIRST UNION NATIONAL BANK ("First Union")
Subject:
Rate Cap
Ref. No.
150497/222808
Dear Xx. Xxxxxxx:
The purpose of this letter agreement is to set forth the terms and
conditions of the Rate Cap Transaction entered into between Counterparty and
First Union on the Trade Date specified below (the "Transaction"). This letter
agreement constitutes a "Confirmation" as referred to in the Master Agreement
specified below.
1. The definitions and provisions contained in the 1991 ISDA Definitions,
as amended and supplemented by the 1998 Supplement to the 1991 ISDA Definitions,
published by the International Swaps and Derivatives Association, Inc.
(together, the "ISDA Definitions") which are incorporated into this
Confirmation. In the event of any inconsistency between those definitions and
provisions and this Confirmation, this Confirmation will govern.
If you and we are parties to a Master Agreement that sets forth the general
terms and conditions applicable to Swap Transactions between us (a "Swap
Agreement"), this Confirmation supplements, forms a part of, and is subject to,
such Swap Agreement. If you and we are not yet parties to a Swap Agreement, this
Confirmation will supplement, form a part of, and be subject to, a Swap
Agreement upon its execution by you and us. All provisions contained or
incorporated by reference in such Swap Agreement shall govern this Confirmation
except as expressly modified below. In addition, if a Swap Agreement has not
been executed, this Confirmation will itself evidence a complete binding
agreement between you and us as to the terms and conditions of the Rate Cap
Transaction to which this Confirmation relates.
Each party is hereby advised, and each such party acknowledges, that the
other party has engaged in ( or refrained from engaging in) substantial
financial transactions and has taken other material actions in reliance upon the
parties' entry into the Rate Cap Transaction to which this Confirmation relates
on the terms and conditions set forth below.
Each party will make each payment specified in this Confirmation as being
payable by it, not later than the due date for value on that date in the place
of the account specified below, in freely transferable funds and in the manner
customary for payments in the required currency. If on any date amounts would
otherwise be payable in the same currency 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.
This Confirmation will be governed by and construed in accordance with the
laws of the State of New York, without reference to choice of law doctrine,
provided that this provision will be superseded by any choice of law provisions
contained in the Swap Agreement.
2. The terms of the particular Rate Cap Transaction to which this Confirmation
relates are as follows:
Transaction Type: Rate Cap
Currency for Payments:
U.S. Dollars
Notional Amount: See Attachment I
Trade Date: November 29, 2000
Effective Date: November 29, 2000
Termination Date: May 15, 2007, subject to adjustment in accordance with the
Modified Following Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Counterparty
Fixed Rate Payer
Payment Date:
November 29, 2000
Fixed Amount: $2,710,000.00
Floating Amounts:
Floating Rate Payer: First Union
Cap Rate: 7.50%
Floating Rate Payer
Payment Dates:
Monthly on the 15th day of each month, starting January 15, 2001, through and
including the Termination Date, subject to the Modified Following Business Day
Convention.
Floating Rate for Initial
Calculation Period:
To be determined two London Business Days prior to the Effective Date
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 Month
Floating Rate Day
Count Fraction:
Actual/360
Reset Dates:
The first day of each Calculation Period
Compounding: Inapplicable
Relevant Rate:
For any day, a per annum rate, expressed as a decimal, equal to the rate
determined with respect to that day for the specified Floating Rate Option as
provided in Article 7 of the ISDA Definitions plus 0.23%
Calculation Agent: First Union
Business Days: New York and London
Business Day Convention: Modified Following
Governing Law: State of New York
Payments to First Union:
First Union Charlotte
Capital Markets
Attention: Derivatives Desk
Fed. ABA No. 000000000
Acct.: 04659360000127
Ref. No.:150497/222808
Payments to Counterparty: Bankers Trust, New York
ABA No.: 000000000
Circuit City Credit Card Master Trust
Account No.: 00000000
Attn: Corporate Trust, Xxx Xxxxx
First Union Contacts: Settlements and/or Rate Resets:
Tel: (000) 000-0000
Fax: (000) 000-0000
Documentation and/or Collateral:
Tel: (000) 000-0000
Fax: (000) 000-0000
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing a copy of this Confirmation enclosed for that purpose and
returning it to us.
Very truly yours,
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Assistant Vice President
By: /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Accepted and confirmed as of the date first above written:
FIRST NORTH AMERICAN NATIONAL BANK
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
Attachment I - Amortization Schedule for 150497/222808
Date Notional Outstanding Notional Reduction
---- -------------------- ------------------
29 Nov 00 200,750,000.00 0.00
16 Jan 01 200,750,000.00 0.00
15 Feb 01 200,750,000.00 0.00
15 Mar 01 200,750,000.00 0.00
17 Apr 01 200,750,000.00 0.00
15 May 01 200,750,000.00 0.00
15 Jun 01 200,750,000.00 0.00
16 Jul 01 200,750,000.00 0.00
15 Aug 01 200,750,000.00 0.00
17 Sep 01 200,750,000.00 0.00
15 Oct 01 200,750,000.00 0.00
15 Nov 01 200,750,000.00 0.00
17 Dec 01 200,750,000.00 0.00
15 Jan 02 200,750,000.00 0.00
15 Feb 02 200,750,000.00 0.00
15 Mar 02 200,750,000.00 0.00
15 Apr 02 200,750,000.00 0.00
15 May 02 200,750,000.00 0.00
17 Jun 02 200,750,000.00 0.00
15 Jul 02 200,750,000.00 0.00
15 Aug 02 200,750,000.00 0.00
16 Sep 02 200,750,000.00 0.00
15 Oct 02 200,750,000.00 0.00
15 Nov 02 200,750,000.00 0.00
16 Dec 02 200,750,000.00 0.00
15 Jan 03 200,750,000.00 0.00
19 Feb 03 200,750,000.00 0.00
17 Mar 03 200,750,000.00 0.00
15 Apr 03 200,750,000.00 0.00
15 May 03 200,750,000.00 0.00
16 Jun 03 200,750,000.00 0.00
15 Jul 03 200,750,000.00 0.00
15 Aug 03 200,750,000.00 0.00
15 Sep 03 200,750,000.00 0.00
15 Oct 03 200,750,000.00 0.00
17 Nov 03 196,081,395.35 4,668,604.65
15 Dec 03 191,412,790.70 4,668,604.65
15 Jan 04 186,744,186.05 4,668,604.65
17 Feb 04 182,075,581.40 4,668,604.65
15 Mar 04 177,406,976.74 4,668,604.66
15 Apr 04 172,738,372.09 4,668,604.65
17 May 04 168,069,767.44 4,668,604.65
15 Jun 04 163,401,162.79 4,668,604.65
15 Jul 04 158,732,558.14 4,668,604.65
16 Aug 04 154,063,953.49 4,668,604.65
15 Sep 04 149,395,348.84 4,668,604.65
15 Oct 04 144,726,744.19 4,668,604.65
15 Nov 04 140,058,139.53 4,668,604.66
15 Dec 04 135,389,534.88 4,668,604.65
18 Jan 05 130,720,930.23 4,668,604.65
15 Feb 05 126,052,325.58 4,668,604.65
15 Mar 05 121,383,720.93 4,668,604.65
15 Apr 05 116,715,116.28 4,668,604.65
16 May 05 112,046,511.63 4,668,604.65
15 Jun 05 107,377,906.98 4,668,604.65
15 Jul 05 102,709,302.33 4,668,604.65
15 Aug 05 98,040,697.67 4,668,604.65
15 Sep 05 93,372,093.02 4,668,604.65
17 Oct 05 88,703,488.37 4,668,604.65
15 Nov 05 84,034,883.72 4,668,604.65
15 Dec 05 79,366,279.07 4,668,604.65
17 Jan 06 74,697,674.42 4,668,604.65
15 Feb 06 70,029,069.77 4,668,604.65
15 Mar 06 65,360,465.12 4,668,604.65
18 Apr 06 60,691,860.47 4,668,604.65
15 May 06 56,023,255.81 4,668,604.66
15 Jun 06 51,354,651.16 4,668,604.65
17 Jul 06 46,686,046.51 4,668,604.65
15 Aug 06 42,017,441.86 4,668,604.65
15 Sep 06 37,348,837.21 4,668,604.65
16 Oct 06 32,680,232.56 4,668,604.65
15 Nov 06 28,011,627.91 4,668,604.65
15 Dec 06 23,343,023.26 4,668,604.65
16 Jan 07 18,674,418.60 4,668,604.66
15 Feb 07 14,005,813.95 4,668,604.65
15 Mar 07 9,337,209.30 4,668,604.65
16 Apr 07 4,668,604.65 4,668,604.65
15 May 07 0.00 4,668,604.65
[FIRST UNION NATIONAL BANK LETTERHEAD]
Rate Cap
Transaction Confirmation
Date:
November 29, 2000
To:
Attn: Xxxxx Xxxxxxx
FIRST NORTH AMERICAN NATIONAL BANK ("Counterparty")
000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
From:
FIRST UNION NATIONAL BANK ("First Union")
Subject:
Rate Cap
Ref. No.
150497/222809
Dear Xx. Xxxxxxx:
The purpose of this letter agreement is to set forth the terms and
conditions of the Rate Cap Transaction entered into between Counterparty and
First Union on the Trade Date specified below (the "Transaction"). This letter
agreement constitutes a "Confirmation" as referred to in the Master Agreement
specified below.
1. The definitions and provisions contained in the 1991 ISDA
Definitions, as amended and supplemented by the 1998 Supplement to the 1991 ISDA
Definitions, published by the International Swaps and Derivatives Association,
Inc. (together, the "ISDA Definitions") which are incorporated into this
Confirmation. In the event of any inconsistency between those definitions and
provisions and this Confirmation, this Confirmation will govern.
If you and we are parties to a Master Agreement that sets forth the
general terms and conditions applicable to Swap Transactions between us (a "Swap
Agreement"), this Confirmation supplements, forms a part of, and is subject to,
such Swap Agreement. If you and we are not yet parties to a Swap Agreement, this
Confirmation will supplement, form a part of, and be subject to, a Swap
Agreement upon its execution by you and us. All provisions contained or
incorporated by reference in such Swap Agreement shall govern this Confirmation
except as expressly modified below. In addition, if a Swap Agreement has not
been executed, this Confirmation will itself evidence a complete binding
agreement between you and us as to the terms and conditions of the Rate Cap
Transaction to which this Confirmation relates.
Each party is hereby advised, and each such party acknowledges, that
the other party has engaged in ( or refrained from engaging in) substantial
financial transactions and has taken other material actions in reliance upon the
parties' entry into the Rate Cap Transaction to which this Confirmation relates
on the terms and conditions set forth below.
Each party will make each payment specified in this Confirmation as
being payable by it, not later than the due date for value on that date in the
place of the account specified below, in freely transferable funds and in the
manner customary for payments in the required currency. If on any date amounts
would otherwise be payable in the same currency 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.
This Confirmation will be governed by and construed in accordance with
the laws of the State of New York, without reference to choice of law doctrine,
provided that this provision will be superseded by any choice of law provisions
contained in the Swap Agreement.
2. The terms of the particular Rate Cap Transaction to which this
Confirmation relates are as follows:
Transaction Type: Rate Cap
Currency for Payments:
U.S. Dollars
Notional Amount: See Attachment I
Trade Date: November 29, 2000
Effective Date: November 29, 2000
Termination Date: November 15, 2007, subject to adjustment in accordance with
the Modified Following Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Counterparty
Fixed Rate Payer
Payment Date:
November 29, 2000
Fixed Amount: $1,100,000.00
Floating Amounts:
Floating Rate Payer: First Union
Cap Rate: 7.50%
Floating Rate Payer
Payment Dates:
Monthly on the 15th day of each month, starting January 15, 2001, through and
including the Termination Date, subject to the Modified Following Business Day
Convention.
Floating Rate for Initial
Calculation Period:
To be determined two London Business Days prior to the Effective Date
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 Month
Floating Rate Day
Count Fraction:
Actual/360
Reset Dates:
The first day of each Calculation Period
Compounding: Inapplicable
Relevant Rate:
For any day, a per annum rate, expressed as a decimal, equal to the rate
determined with respect to that day for the specified Floating Rate Option as
provided in Article 7 of the ISDA Definitions plus 0.85%
Calculation Agent: First Union
Business Days: New York and London
Business Day Convention: Modified Following
Governing Law: State of New York
Payments to First Union:
First Union Charlotte
Capital Markets
Attention: Derivatives Desk
Fed. ABA No. 000000000
Acct.: 04659360000127
Ref. No.:150497/222809
Payments to Counterparty: Bankers Trust, New York
ABA No.: 000000000
Circuit City Credit Card Master Trust
Account No.: 00000000
Attn: Corporate Trust, Xxx Xxxxx
First Union Contacts: Settlements and/or Rate Resets:
Tel: (000) 000-0000
Fax: (000) 000-0000
Documentation and/or Collateral:
Tel: (000) 000-0000
Fax: (000) 000-0000
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing a copy of this Confirmation enclosed for that purpose and
returning it to us.
Very truly yours,
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Assistant Vice President
By: /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Accepted and confirmed as of
the date first above written:
FIRST NORTH AMERICAN NATIONAL BANK
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
Attachment I - Amortization Schedule for 150497/222809
(Dates subject to Modified Following Business Day Convention)
Date Notional Outstanding Notional Reduction
---- -------------------- ------------------
29 Nov 00 31,625,000.00 0.00
16 Jan 01 31,625,000.00 0.00
15 Feb 01 31,625,000.00 0.00
15 Mar 01 31,625,000.00 0.00
17 Apr 01 31,625,000.00 0.00
15 May 01 31,625,000.00 0.00
15 Jun 01 31,625,000.00 0.00
16 Jul 01 31,625,000.00 0.00
15 Aug 01 31,625,000.00 0.00
17 Sep 01 31,625,000.00 0.00
15 Oct 01 31,625,000.00 0.00
15 Nov 01 31,625,000.00 0.00
17 Dec 01 31,625,000.00 0.00
15 Jan 02 31,625,000.00 0.00
15 Feb 02 31,625,000.00 0.00
15 Mar 02 31,625,000.00 0.00
15 Apr 02 31,625,000.00 0.00
15 May 02 31,625,000.00 0.00
17 Jun 02 31,625,000.00 0.00
15 Jul 02 31,625,000.00 0.00
15 Aug 02 31,625,000.00 0.00
16 Sep 02 31,625,000.00 0.00
15 Oct 02 31,625,000.00 0.00
15 Nov 02 31,625,000.00 0.00
16 Dec 02 31,625,000.00 0.00
15 Jan 03 31,625,000.00 0.00
18 Feb 03 31,625,000.00 0.00
17 Mar 03 31,625,000.00 0.00
15 Apr 03 31,625,000.00 0.00
15 May 03 31,625,000.00 0.00
16 Jun 03 31,625,000.00 0.00
15 Jul 03 31,625,000.00 0.00
15 Aug 03 31,625,000.00 0.00
15 Sep 03 31,625,000.00 0.00
15 Oct 03 31,625,000.00 0.00
17 Nov 03 31,625,000.00 0.00
15 Dec 03 31,625,000.00 0.00
15 Jan 04 31,625,000.00 0.00
17 Feb 04 31,625,000.00 0.00
15 Mar 04 31,625,000.00 0.00
15 Apr 04 31,625,000.00 0.00
17 May 04 31,625,000.00 0.00
15 Jun 04 31,625,000.00 0.00
15 Jul 04 31,625,000.00 0.00
16 Aug 04 31,625,000.00 0.00
15 Sep 04 31,625,000.00 0.00
15 Oct 04 31,625,000.00 0.00
15 Nov 04 31,625,000.00 0.00
15 Dec 04 31,625,000.00 0.00
18 Jan 05 31,625,000.00 0.00
15 Feb 05 31,625,000.00 0.00
15 Mar 05 31,625,000.00 0.00
15 Apr 05 31,625,000.00 0.00
16 May 05 31,625,000.00 0.00
15 Jun 05 31,625,000.00 0.00
15 Jul 05 31,625,000.00 0.00
15 Aug 05 31,625,000.00 0.00
15 Sep 05 31,625,000.00 0.00
17 Oct 05 31,625,000.00 0.00
15 Nov 05 31,625,000.00 0.00
15 Dec 05 31,625,000.00 0.00
17 Jan 06 31,625,000.00 0.00
15 Feb 06 31,625,000.00 0.00
15 Mar 06 31,625,000.00 0.00
18 Apr 06 31,625,000.00 0.00
15 May 06 31,625,000.00 0.00
15 Jun 06 31,625,000.00 0.00
17 Jul 06 31,625,000.00 0.00
15 Aug 06 31,625,000.00 0.00
15 Sep 06 31,625,000.00 0.00
16 Oct 06 31,625,000.00 0.00
15 Nov 06 31,625,000.00 0.00
15 Dec 06 31,625,000.00 0.00
16 Jan 07 31,625,000.00 0.00
15 Feb 07 31,625,000.00 0.00
15 Mar 07 31,625,000.00 0.00
16 Apr 07 31,625,000.00 0.00
15 May 07 27,107,142.86 4,517,857.14
15 Jun 07 22,589,285.71 4,517,857.15
16 Jul 07 18,071,428.57 4,517,857.14
15 Aug 07 13,553,571.43 4,517,857.14
17 Sep 07 9,035,714.29 4,517,857.14
15 Oct 07 4,517,857.14 4,517,857.15
15 Nov 07 0.00 4,517,857.14
