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Exhibit 4.6
(Multicurrency--Cross Border)
LOGO
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of June 20, 1997
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Xxxxxx Guaranty Trust Company of New York and PNC Student Loan Trust I
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have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:--
1. INTERPRETATION
(a) DEFINITIONS. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) INCONSISTENCY. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) SINGLE AGREEMENT. All Transactions are entered into in reliance on the fact
that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. OBLIGATIONS
(a) GENERAL CONDITIONS.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the required
currency. Where settlement is by delivery (that is, other than by payment),
such delivery will be made for receipt on the due date in the manner
customary for the relevant obligation unless otherwise specified in the
relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to (1)
the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing, (2)
the condition precedent that no Early Termination Date in respect of the
relevant Transaction has occurred or been effectively designated and (3)
each other applicable condition precedent specified in this Agreement.
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(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 or Y under this Section
2(d)) promptly upon the earlier of determining that such deduction or
withholding is required or receiving notice that such amount has been
assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy), or
other documentation reasonably acceptable to Y, evidencing such payment
to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount actually
received by Y (free and clear of Indemnifiable Taxes, whether assessed
against X or Y) will equal the full amount Y would have received had no
such deduction or withholding been required. However, X will not be
required to pay any additional amount to Y to the extent that it would
not be required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement contained
in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to Section 3(f)
to be accurate and true unless such failure would not have occurred
but for (I) any action taken by a taxing authority, or brought in a
court of 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.
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(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, as the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. REPRESENTATIONS
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered
into and, in the case of the representations in Section 3(f), at all times
until the termination of this Agreement) that:--
(a) BASIC REPRESENTATIONS.
(i) STATUS. It is duly organized and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) POWERS. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to deliver
this Agreement and any other documentation relating to this Agreement that
it is required by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any Credit Support
Document to which it is a party and has taken all necessary action to
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, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding in
equity or at law)).
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(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.
4. AGREEMENTS
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) FURNISH SPECIFIED INFORMATION. It will deliver to the other party or,
in certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation
specified in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any
Confirmation; and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to
allow such other party or its Credit Support Provider to make a payment
under this Agreement or any applicable Credit Support Document without
any deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of
such demand), with any such form or document to be accurate and
completed in a manner reasonably satisfactory to such other party and to
be executed and to be delivered with any reasonably required
certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) MAINTAIN AUTHORISATIONS. It will use all reasonable efforts to maintain
in full force and effect all consents of any governmental or other authority
that are required to be obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party and will use all reasonable
efforts to obtain any that may become necessary in the future.
(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,
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organised, managed and controlled, or considered to have its seat, or in which
a branch or office through which it is acting for the purpose of this Agreement
is located ("Stamp Tax Jurisdiction") and will indemnify the other party
against any Stamp Tax levied or imposed upon the other party or in respect of
the other party's execution or performance of this Agreement by any such Stamp
Tax Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the
other party.
5. EVENTS OF DEFAULT AND TERMINATION EVENTS
(a) EVENTS OF DEFAULT. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any of the following events constitutes an event of
default (an "Event of Default") with respect to such party:--
(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or
2(e) required to be made by it if such failure is not remedied on or
before the third Local Business Day after notice of such failure is
given to the party;
(ii) BREACH OF AGREEMENT. Failure by the party to comply with or
perform any agreement or obligation (other than an obligation to make
any payment under this Agreement or delivery under Section 2(a)(i) or
2(e) or to give notice of a Termination Event or any agreement or
obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with
or performed by the party in accordance with this Agreement if such
failure is not remedied on or before the thirtieth day after notice of
such failure is given to the party;
(iii) CREDIT SUPPORT DEFAULT.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any
applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support Document
or the failing or ceasing of such Credit Support Document to be in
full force and effect for the purpose of this Agreement (in either
case other than in accordance with its terms) prior to the
satisfaction of all obligations of such party under each
Transaction to which such Credit Support Document relates without
the written consent of the other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) MISREPRESENTATION. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made
or repeated by the party or any Credit Support Provider of such party in
this Agreement or any Credit Support Document proves to have been
incorrect or misleading in any material respect when made or repeated or
deemed to have been made or repeated;
(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
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described) in respect of such party, any Credit Support Provider of such
party or any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount of not less
than the applicable Threshold Amount (as specified in the Schedule)
which has resulted in such Specified Indebtedness becoming, or becoming
capable at such time of being declared, due and payable under such
agreements or instruments, before it would otherwise have been due and
payable or (2) a default by such party, such Credit Support Provider or
such Specified Entity (individually or collectively) in making one or
more payments on the due date thereof in an aggregate amount of not less
than the applicable Threshold Amount under such agreements or
instruments (after giving effect to any applicable notice requirement or
grace period);
(vii) BANKRUPTCY. The party, any Credit Support Provider of such party
or any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2)becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its
creditors; (4) institutes or has instituted against it a
proceeding seeking a judgment of insolvency or bankruptcy or any
other relief under any bankruptcy or insolvency law or other
similar law affecting creditors' rights, or a petition is
presented for its winding-up or liquidation, and, in the case of
any such proceeding or petition instituted or presented against
it, such proceeding or petition (A) results in a judgment of
insolvency or bankruptcy or the entry of an order for relief or
the making of an order for its winding-up or liquidation or (B) is
not dismissed, discharged, stayed or restrained in each case
within 30 days of the institution or presentation thereof; (5) has
a resolution passed for its winding-up, official management or
liquidation (other than pursuant to a consolidation, amalgamation
or merger); (6) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator, receiver,
trustee, custodian or other similar official for it or for all or
substantially all its assets; (7) has a secured party take
possession of all or substantially all its assets or has a
distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged,
stayed or restrained, in each case within 30 days thereafter; (8)
causes or is subject to any event with respect to it which, under
the applicable laws of any jurisdiction, has an analogous effect
to any of the events specified in clauses (1) to (7) (inclusive);
or (9) takes any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the foregoing
acts; or
(viii) MERGER WITHOUT ASSUMPTION. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or merges with
or into, or transfers all or substantially all its assets to, another
entity and, at the time of such consolidation, amalgamation, merger or
transfer:--
(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
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Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below:--
(i) ILLEGALITY. Due to the adoption of, or any change in, any
applicable law after the date on which a Transaction is entered into, or
due to the promulgation of, or any change in, the interpretation by any
court, tribunal or regulatory authority with competent jurisdiction of
any applicable law after such date, it become 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)(I), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(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 right 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
(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
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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, form (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 "Section Method", as the case may be,
shall apply. The amount, if any, payable in respect of an Early Termination
Date and determined pursuant to this Section will be subject to any Set-off.
(i) EVENTS OF DEFAULT. If the Early Termination Date results from an
Event of Default:--
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent
of the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's Loss in respect of
this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the
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Non-defaulting Party) in respect of the Terminated Transactions
and the Termination Currency Equivalent of the Unpaid Amounts
owing to the Non-defaulting Party less (B) the termination
Currency Equivalent of the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the Defaulting Party
will pay it to the Non-defaulting Party; if it is a negative
number, the Non-defaulting Party will pay the absolute value of
that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply,
an amount will be payable equal to the Non-defaulting Party's Loss
in respect of this Agreement. If that amount is a positive number,
the Defaulting Party will pay it to the Non-defaulting Party; if
it is a negative number, the Non-defaulting Party will pay the
absolute value of that amount to the Defaulting Party.
(ii) TERMINATION EVENTS. If the Early Termination Date results from a
Termination Event:--
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3),
if Market Quotation applies, or Section 6(e)(i)(4), if Loss
applies, except that, in either case, references to the Defaulting
Party and to the Non-defaulting Party will be deemed to be
references to the Affected Party and the party which is not the
Affected Party, respectively, and, if Loss applies and fewer than
all the Transactions are being terminated, Loss shall be
calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:--
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the 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.
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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 of 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 converting the currency so tendered into the Contractual Currency,
of the full amount in the Contractual Currency of all amounts payable in respect
of this Agreement. If for any reason the amount in the Contractual Currency so
received falls short of the amount in the Contractual Currency payable in
respect of this Agreement, the party required to make the payment will, to the
extent permitted by applicable law, immediately pay such additional amount in
the Contractual Currency as may be necessary to compensate for the shortfall. If
for any reason the amount in the Contractual Currency so received exceeds the
amount in the Contractual Currency payable in respect of this Agreement, the
party receiving the payment will refund promptly the amount of such excess.
(b) JUDGMENTS. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results form 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.
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9. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by
an exchange of telexes or electronic messages on an electronic messaging system.
(c) SURVIVAL OF OBLIGATIONS. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) REMEDIES CUMULATIVE. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) COUNTERPARTS AND CONFIRMATIONS.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including
by facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of
each Transaction from the moment they agree to those terms (whether
orally or otherwise). A Confirmation shall be entered into as soon as
practicable and may be executed and delivered in counterparts (including
by facsimile transmission) or be created by an exchange of telexes or by
an exchange of electronic messages on an electronic messaging system,
which in each case will be sufficient for all purposes to evidence a
binding supplement to this Agreement. The parties will specify therein
or through another effective means that any such counterpart, telex or
electronic message constitutes a Confirmation.
(f) NO WAIVER OF RIGHTS. A failure or delay in exercising any right, power
or privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) HEADINGS. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. OFFICES; MULTIBRANCH PARTIES
(a) If Section 10(a) is specified in the Schedule as applying, each party
that enters into a Transaction through an Office other than its head or home
office represents to the other party that, notwithstanding the place of booking
office or jurisdiction of incorporation or organisation of such party, the
obligations of such party are the same as if it had entered into the Transaction
through its head or home office. This representation will be deemed to be
repeated by such party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
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to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. NOTICES
(a) EFFECTIVENESS. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date
it is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that transmission
is received by a responsible employee of the recipient in legible form
(it being agreed that the burden of proving receipt will be on the
sender and will not be met by a transmission report generated by the
sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that
electronic message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) CHANGE OF ADDRESSES. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(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
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reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to service
of process given in the manner provided for notices in Section 12. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) WAIVER OF IMMUNITIES. Each party irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its revenues and
assets (irrespective of their use or intended use), all immunity on the grounds
of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. DEFINITIONS
As used in this Agreement:--
"ADDITIONAL TERMINATION EVENT" has the meaning specified in Section 5(b).
"AFFECTED PARTY" has the meaning specified in Section 5(b).
"AFFECTED TRANSACTIONS" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"AFFILIATE" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"APPLICABLE RATE" means:--
(a) in respect of obligations payable or deliverable (or which would have
been but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of
either party from and after the date (determined in accordance with Section
6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which
would have been but for Section 2(a)(iii)) by a Non-defaulting Party, the
Non-default Rate; and
(d) in all other cases, the Termination Rate.
"BURDENED PARTY" has the meaning specified in Section 5(b).
"CHANGE INN 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, actin, authorisation, exemption,
notice, filing, registration or exchange control consent.
"CREDIT EVENT UPON MERGER" has the meaning specified in Section 5(b).
"CREDIT SUPPORT DOCUMENT" means any agreement or instrument that is specified
as such in this Agreement.
"CREDIT SUPPORT PROVIDER" has the meaning specified in the Schedule.
"DEFAULT RATE" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
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"DEFAULTING PARTY" has the meaning specified in Section 6(a).
"EARLY TERMINATION DATE" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"EVENT OF DEFAULT" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"ILLEGALITY" has the meaning specified in Section 5(b).
"INDEMNIFIABLE TAX" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to such
recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having
executed, delivered, performed its obligations or received a payment under, or
enforced, this Agreement or a Credit Support Document).
"LAW" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority)
and "LAWFUL" and "UNLAWFUL" will be construed accordingly.
"LOCAL BUSINESS DAY" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for
performance with respect to such Specified Transaction.
"LOSS" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be
its total losses and costs (or gain, in which case expressed as a negative
number) in connection with this Agreement or that Terminated Transaction or
group of Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party but without
duplication, loss or cost incurred as a result of its terminating, liquidating,
obtaining or reestablishing any hedge or related trading position (or any gain
resulting from any of them). Loss includes losses and costs (or gains) in
respect of any payment or delivery required to have been made (assuming
satisfaction of each applicable condition precedent) on or before the relevant
Early Termination Date and not made, except, so as to avoid duplication, if
Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does not include a
party's legal fees and out-of-pocket expenses referred to under Section 11. A
party will determine its Loss as of the relevant Early Termination Date, or, if
that is not reasonably practicable, as of the earliest date thereafter as is
reasonably practicable. A party may (but need not) determine its Loss by
reference to quotations of relevant rates or prices from one or more leading
dealers in the relevant markets.
"MARKET QUOTATION" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition
precedent) by the parties under Section 2(a)(i) in respect of such Terminated
Transaction or group of Terminated Transactions that would, but for the
occurrence of the relevant Early Termination Date, have
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been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of
the same day and time (without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than three
quotations are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation will
be the quotation remaining after disregarding the highest and lowest quotations.
For this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If fewer than
three quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"NON-DEFAULT RATE" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it)
if it were to fund the relevant amount.
"NON-DEFAULTING PARTY" has the meaning specified in Section 6(a).
"OFFICE" means a branch or office of a party, which may be such party's head or
home office.
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving of notice
or the lapse of time or both, would constitute an Event of Default.
"REFERENCE MARKET-MAKERS" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"RELEVANT JURISDICTION" means, with respect to a party, the jurisdictions (a)
in which the party is incorporated, organised, managed and controlled or
considered to have its seat, (b) where an Office through which the party is
acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) in relation to any payment, from or through
which such payment is made.
"SCHEDULED PAYMENT DATE" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"SET-OFF" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"SETTLEMENT AMOUNT" means, with respect to a party and any Early Termination
Date, the sum of:--
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference
to any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"SPECIFIED ENTITY" has the meaning specified in the Schedule.
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"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 to any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the sport 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
17
18
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.
XXXXXX GUARANTY TRUST PNC STUDENT LOAN TRUST I
COMPANY OF NEW YORK
By: /s/ Xxxxx Xxxxx By: The First National Bank of
------------------ Chicago not in its individual
Name: Xxxxx Xxxxx capacity, but solely in its
Title: Vice President capacity as Eligible Lender
Date: June 24,1997 Trustee for PNC Student Loan
Trust I
By: /s/ Xxxxx X. Xxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
Date: June 24, 1997
18
19
EXECUTION COPY
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of June 20, 1997
between
Xxxxxx Guaranty Trust and PNC Student Loan Trust I
Company of New York (the "Counterparty")
("Xxxxxx")
PART 1
TERMINATION PROVISIONS
In this Agreement:-
(1) "Specified Entity" shall not apply.
(2) "Specified Transaction" will have the meaning specified in Section 14.
(3) The "Cross Default" provisions of Section 5(a)(vi) will not apply to
Xxxxxx or the Counterparty.
(4) The "Automatic Early Termination" provisions of Section 6(a) will not
apply to Xxxxxx or the Counterparty.
(5) For purposes of computing amounts payable on early termination:
(a) Market Quotation will apply to this Agreement; and
(b) The Second Method will apply to this Agreement;
provided, however, that in the case of an Event of Default with
respect to Xxxxxx as the Defaulting Party or a Termination Event with
respect to Xxxxxx as the Affected Party,
20
-2-
the related Settlement Amount, if negative, will be deemed to be zero
if the Market Quotation cannot be determined.
(6) MARKET QUOTATION. Notwithstanding anything to the contrary in the
definition of Market Quotation in Section 14, in the case of an Event
of Default with respect to Xxxxxx as the Defaulting Party or a
Termination Event with Xxxxxx as the Affected Party, the Market
Quotation, if Negative, will be deemed to be the negative quotation,
if any, with the highest absolute value received from any Reference
Market-maker, even if only one quotation is provided, with which the
Counterparty is able, using its best efforts, to enter into a
Replacement Transaction even if the Counterparty reasonably believes
such Market Quotation would not produce a commercially reasonable
result.
(7) REFERENCE MARKET-MAKER. Will not have the meaning specified in Section
14, but will instead mean the following:
"Reference Market-maker" means five leading dealers in the
relevant market selected by the party determining the Market
Quotation in good faith (a) from among dealers which are
rated not lower than investment grade by Standard & Poor's
Rating Group ("S&P") and Xxxxx'x Investors Service, Inc.
("Xxxxx'x") which satisfy the criteria that such party
applies generally at that time in deciding whether to offer
or make an extension of credit and (b) to the extent
practicable, from among dealers having an office in the same
city."
(8) "Termination Currency" means United States Dollars.
(9) Section 5(a)(iii), Section 5(a)(iv), Section 5(a)(v), Section
5(b)(ii), Section 5(b)(iii) Section 5(b)(iv) of the Agreement are
hereby deleted.
(10) Section 5(a)(ii) and Section 5(a)(viii) shall not apply with respect
to the Counterparty.
PART 2
TAX REPRESENTATIONS
REPRESENTATIONS OF XXXXXX
(1) Payer Tax Representation. For the purpose of Section 3(e) of this
Agreement, Xxxxxx hereby makes the following representation:
(i) 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
21
-3-
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)) to be made by it to the Counterparty under
this Agreement. In making this representation, it may rely
on:
(a) the accuracy of any representations made by the
Counterparty pursuant to Section 3(f);
(b) the satisfaction of the agreement of the
Counterparty contained in Section 4(a)(i) or
4(a)(iii) and the accuracy and effectiveness of any
document provided by the Counterparty pursuant to
Section 4(a)(i) or 4(a)(iii); and
(c) the satisfaction of the agreement of the
Counterparty contained in Section 4(d), provided
that it shall not be a breach of this representation
where reliance is placed on clause (b) and the
Counterparty does not deliver a form or document
under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(2) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement, Xxxxxx represents that it is a banking corporation
organized under the laws of the State of New York and is not a foreign
corporation within the meaning of Section 7701(a)(5) of the United
States Internal Revenue Code.
REPRESENTATIONS OF THE COUNTERPARTY
(1) Payer Tax Representation. For the purpose of Section 3(e) of this
Agreement, the Counterparty hereby makes the following representation:
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e)) to be made by it to Xxxxxx under this Agreement. In
making this representation, it may rely on:
(a) the accuracy of any representation made by Xxxxxx
pursuant to Section 3(f);
(b) the satisfaction of the agreement of Xxxxxx
contained in Section 4(a)(i) or 4(a)(iii) and the
accuracy and effectiveness of any document provided
by Xxxxxx pursuant to Section 4(a)(i) or 4(a)(iii);
and
(c) the satisfaction of the agreement of Xxxxxx
contained in Section 4(d),
22
-4-
provided that it shall not be a breach of this representation where
reliance is placed on clause (b) and Xxxxxx does not deliver a form or
document under Section 4(a)(iii) by reason of material prejudice to
its legal or commercial position.
(2) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement, the Counterparty represents that it is a business trust
organized under the laws of the State of Delaware.
PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii), each party agrees to deliver the
following documents, as applicable:
(1) Xxxxxx will, on upon execution of this Agreement, deliver a
certificate (or, if available, the current authorized signature book
of Xxxxxx) specifying the names, title and specimen signatures of the
persons authorized to execute this Agreement and each Confirmation on
its behalf.
(2) Xxxxxx will, upon execution of this Agreement, deliver an opinion of
counsel to Xxxxxx substantially in the form of Exhibit A hereto.
(3) The Counterparty will, on demand, deliver a certificate (or, if
available, the current authorized signature book of the Counterparty)
specifying the names, title and specimen signatures of the persons
authorized to execute this Agreement and each Confirmation on its
behalf.
(4) The Counterparty will upon execution of this Agreement deliver a fully
executed Trust Agreement dated as of March 27, 1997 among PNC Bank,
National Association, The First National Bank of Chicago and First
Chicago Delaware, Inc., as Delaware trustee (the "Trust Agreement").
(5) The Counterparty will upon execution of this Agreement deliver a legal
opinion of counsel in form and substance satisfactory to Xxxxxx
regarding this agreement and any other matters as Xxxxxx may
reasonably request.
Each of the foregoing documents, with the exception of the opinions delivered
pursuant to paragraphs (2) and (5) above, is covered by the representation
contained in Section 3(d) of this Agreement.
23
-5-
PART 4
MISCELLANEOUS
(1) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York without reference to
choice of law doctrine.
(2) NOTICES.
(a) In connection with Section 12(a), all notices to Xxxxxx
shall, with respect to any particular Transaction, be sent to
the address, telex number or facsimile number specified in
the relevant Confirmation and any notice for purposes of
Sections 5 or 6 of the Agreement shall be sent to the address
or telex number specified below:
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Swaps Facsimile
No.: (000) 000-0000
(b) In connection with Section 12(a), all notices to the
Counterparty shall, with respect to any particular
Transaction, be sent to the address, telex number or
facsimile number specified in the relevant Confirmation and
any notice for purposes of Sections 5 or 6 of the Agreement
shall be sent to the address or telex number specified below:
PNC Student Loan Trust I
c/o The First National Bank of Chicago,
as Eligible Lender Trustee
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
(3) NETTING OF PAYMENTS. Section 2(c)(ii) of this Agreement will not apply
with respect to all Transactions under this Agreement, with the result
that a net payment amount will be determined in respect of all amounts
payable on the same date in the same currency in respect of two or
more transactions.
(4) OFFICES; MULTIBRANCH PARTY. For purposes of Section 10:
24
-6-
(a) Section 10(a) will apply; and
(b) For the purpose of Section 10(c):
(i) Xxxxxx is a Multibranch Party and may act through its
London and New York Offices.
(ii) The Counterparty is not a Multibranch Party.
(5) CREDIT SUPPORT DOCUMENTS.
Not applicable.
(6) CREDIT SUPPORT PROVIDER.
Not applicable.
PART 5
OTHER PROVISIONS
(1) ISDA DEFINITIONS. Reference is hereby made to the 1991 ISDA
Definitions (the "1991 Definitions") and the 1992 ISDA FX and Currency
Option Definitions (the "FX Definitions"), each as published by the
International Swap Dealers Association, Inc., which are hereby
incorporated by reference herein. Any terms used and not otherwise
defined herein which are contained in the 1991 Definitions or the FX
Definitions shall have the meaning set forth therein.
(2) SCOPE OF AGREEMENT. Notwithstanding anything contained in the
Agreement to the contrary, if the parties enter into any Specified
Transaction, such Specified Transaction shall be subject to, governed
by and construed in accordance with the terms of this Agreement unless
the Confirmation relating thereto shall specifically state to the
contrary. Each such Specified Transaction shall be a Transaction for
the purposes of this Agreement.
(3) INCONSISTENCY. In the event of any inconsistency between any of the
following documents, the relevant document first listed below shall
govern: (i) a Confirmation; (ii) the Schedule; (iii) the 1991
Definitions or the FX Definitions; and (iv) the printed form of ISDA
Master Agreement.
25
-7-
(4) NON-PETITION. Xxxxxx hereby agrees that it will not being any action
(whether in bankruptcy or otherwise) against the Counterparty in any
court prior to the date which is one year and one day after all
Noteholders (as defined in the Trust Agreement) have been paid in
full.
(5) CALCULATION AGENT. The Calculation Agent will be Xxxxxx.
(6) WAIVER OF JURY TRIAL. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury
in respect of any suit, action or proceeding relating to this
Agreement or any Credit Support Document. Each party (i) certifies
that no representative, agent or attorney of the other party or any
Credit Support Provider has represented, expressly or otherwise, that
such other party would not, in the event of such a suit, action or
proceeding, seek to enforce the foregoing waiver and (ii) acknowledges
that it and the other party have been induced to enter into this
Agreement and provide for any Credit Support Document, as applicable,
by, among other things, the mutual waivers and certifications in this
Section.
(7) SEVERABILITY. In the event any one or more of the provisions contained
in this Agreement should be held invalid, illegal, or unenforceable in
any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected
or impaired thereby. The parties shall endeavor, in good faith
negotiations, to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable
provisions.
(8) NO GROSS-UP FOR COUNTERPARTY. Section 2(d) of the Agreement shall not
apply with respect to the Counterparty so that the Counterparty shall
not be obligated to gross up pursuant thereto.
(9) ASSIGNMENT. In the event the long-term, senior, unsecured debt
obligations of Xxxxxx are lowered below the category of "AAA" by S&P
or Fitch, or "Aa1" by Moody's or such rating agencies' then equivalent
rating, or such ratings are withdrawn by S&P, Moody's, or Fitch and
the Master Servicer shall have determined in consultation with any of
the rating agencies that after giving effect to Xxxxxx'x then current
ratings, the continuation of Xxxxxx as a swap provider will result in
the reduction or withdrawal of the then current rating of any class of
Class A Notes by such rating agency, Xxxxxx shall assign and delegate
its rights and obligations under any Transaction to a replacement swap
provider, subject to the prior written direction of the Counterparty;
provided, however, that such assignment will not be required if within
10 Business Days of receipt of such prior written direction of the
Counterparty, the Counterparty and the Master Servicer receive written
confirmation from such rating agency that after giving effect to
Xxxxxx'x then current ratings and any other arrangement satisfactory
to the rating agencies, the
26
-8-
continuation of Xxxxxx as a swap counterparty hereunder shall not
cause the withdrawal or reduction of the rating of any class of Class
A Notes below their then current rating by such rating agency. If such
assignment is required, the assignment shall be deemed to be a
Termination Event with Xxxxxx as the Affected Party.
(10) SCOPE OF TRUSTEE'S OBLIGATIONS. The Trustee shall not be required to
expend or risk its own funds or otherwise incur any liability in
connection with this Agreement, and Xxxxxx shall not bring any claim
against the Trustee in its individual capacity or against the assets
of the Trustee hereunder (other than assets of the Trust) except for
such claims arising as a result of the negligence or wilful misconduct
of the Trustee.
(11) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to represent
to the other party on the date on which it enters into a Transaction
that (absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary for that Transaction):
(a) NON-RELIANCE. It is acting for its own account, and it has
made its own independent decisions to enter into that
Transaction and as to whether that Transaction is appropriate
or proper for it based upon its own judgment and upon advice
from such 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. No
communication (written or oral) received from the other party
shall be deemed to be an assurance or guarantee as to the
expected results of that Transaction.
(b) EVALUATION AND UNDERSTANDING. It is capable of assessing the
merits of and 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.
(c) STATUS OF PARTIES. The other party is not acting as a
fiduciary for or an advisor to it in respect of that
Transaction.
27
-9-
Please confirm your agreement to the terms of the foregoing Schedule
by signing below.
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Xxxxx Xxxxx
--------------------
Name: Xxxxx Xxxxx
Title: Vice President
PNC STUDENT LOAN TRUST I
By: The First National Bank of Chicago, not
in its individual capacity, but solely in
its capacity as Eligible Lender Trustee for
PNC Student Loan Trust I
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
28
CLASS A-2
PNC Student Loan Trust I
c/o The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the terms and
conditions of the Transaction entered into between us on the trade date
specified below (the "Transaction"). This Confirmation constitutes a
"Confirmation" as referred to in the Agreement specified below. This
Confirmation supplements, forms a part of and is subject to the 1992 ISDA
Master Agreement (the "Agreement") among Xxxxxx Guaranty Trust Company of New
York ("MGTNY") and The First National Bank of Chicago (the "Trustee"), not
individually, but solely in its capacity as Eligible Lender Trustee for the PNC
Student Loan Trust I dated as of June 20, 1997.
1. DEFINITIONS. This Confirmation and the Schedule to the Agreement
(the "Schedule") each incorporate the definitions and provisions contained in
(i) the 1991 ISDA Definitions (as published by the International Swaps and
Derivatives Association, Inc.) (the "Definitions") and (ii) the prospectus
which forms a part of the registration statement (together with all amendments
and exhibits thereto, the Registration Statement") filed by PNC Bank, National
Association in its capacity as depositor of the PNC Student Loan Trust I (the
"Prospectus"). In the event of any inconsistency between the definitions in the
Prospectus and any of the Definitions, the Schedule or this Confirmation, the
definitions in the Prospectus will govern; in the event of any inconsistency
between this Confirmation and either the Schedule or the Definitions, this
Confirmation will govern; and in the event of any inconsistency between the
Schedule and the Definitions, the Schedule will govern. In this Confirmation,
"Party A" means MGTNY and "Party B" means the Trustee.
2. SUMMARY OF TRANSACTION TERMS. The terms of the particular
Transaction to which this Confirmation relates are as follows:
Trade Date: June 20, 1997
Effective Date: The Closing Date for the Senior Fixed Rate Class A-2
Notes
Termination Date: July 25, 1999, subject to adjustment in accordance with
the Following Business Day Convention
Notional Amount: For each Calculation Period, the Notional Amount shall
be the amount set forth in the Schedule of Notional
Amounts attached hereto as Exhibit A with respect to the
Class A-2 Notes
-1-
29
Fixed Amounts
Fixed Rate Payer: Party A
Fixed Rate: 5.645 %
Fixed Rate Payer
Period End Dates: The first Period End Date will be July 25,
1997. Thereafter, the Period End Dates shall
be the 25th of October, January, April and
July up to and including the Termination Date,
with No Adjustment
Fixed Rate Payer The first Payment Date will be July 25, 1997.
Payment Dates: Thereafter, the Payment Dates shall be the
25th of October, January, April and July up
to and including the Termination Date,
subject to adjustment in accordance with the
Following Business Day Convention.
Fixed Rate Day
Count Fraction: 30/360
Floating Amounts:
Floating Rate Payer: Party B
Floating Rate Payer
Payment Dates: The first Payment Date will be July 25,
1997. Thereafter, the Payment Dates shall be
the 25th of October, January, April and July
up to and including the Termination Date,
subject to adjustment in accordance with the
Following Business Day Convention.
Floating Rate for initial
Calculation Period: To be determined
Floating Rate Option: The Rate determined by the Master Servicer on
each Reset Date at which United States
Treasury Bills with a maturity of 13 weeks
("91-day Treasury Bills") are auctioned as set
forth in H.15 (519) for the day opposite such
maturity under the caption "U.S. Government
Securities/Treasury Bills/Auction Average
(Investment)" (the "T-Xxxx Rate"). If on any
Reset Date 91-day Treasury Bills have been
auctioned on a Reset Date but such rate for
such Reset Date is not yet published in H.15
(519), the rate for such Reset Date will be
the bond equivalent yield of the auction
average rate for those Treasury Bills as
announced by the
-2-
30
United States Department of the Treasury. If
91-day Treasury Bills are not auctioned during
any period of seven consecutive calendar days
ending on and including any Friday and a Reset
Date would have occurred if such 91-day
Treasury Bills had been auctioned during that
seven day period, then the rate for the Reset
Date will be the T-Xxxx Rate in effect as a
result of the last such auction and will
remain in effect until such time, if any, as
the results of the 91-day Treasury Bills shall
again be so published or such auction is held.
Spread: None
Floating Rate Day
Count Fraction: Actual/Actual
Reset Dates: Each weekly auction date of 91-day United
States Treasury Bills during each Calculation
Period
Method of Averaging: Unweighted
Business Day: Any day other than a Saturday, a Sunday
or a day on which national banking
associations or banking institutions or trust
companies in New York, New York are authorized
or obligated by law to be closed.
Calculation Agent: MGTNY
3. ACCOUNT DETAILS.
Payments to Party A
Account for payments in USD: Please provide
Payments to Party B:
Account for payments in USD: Please provide
4. OFFICES.
The offices of Party A for this Transaction are New York and London.
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing the copy of this confirmation enclosed for that
purpose and returning it to us.
-3-
31
Very truly yours,
Xxxxxx Guaranty Trust Company of New York
By: /s/ Xxxxxxxx X. Carlo
-------------------------------------
Name: Xxxxxxxx X. Carlo
Title: Associate
Accepted and Agreed as of the date first written above:
PNC STUDENT LOAN TRUST I
By: The First National Bank of Chicago, not in its
individual capacity, but solely in its capacity
as Eligible Lender Trustee for PNC Student Loan Trust I
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
-4-
32
EXHIBIT A
SCHEDULE OF NOTIONAL AMOUNTS
For the Period
Commencing on, To, but Class Class Class Class Class Class
and Including Excluding X-0 X-0 X-0 X-0 X-0 X-0
--------------------------------------------------------------------------------------------------------------------------------
06/25/1997 07/25/1997 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
07/25/1997 10/25/1997 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
10/25/1997 01/25/1998 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
01/25/1998 04/25/1998 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
04/25/1998 07/25/1998 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
07/25/1998 10/25/1998 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
10/25/1998 01/25/1999 79,130,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
01/25/1999 04/25/1999 50,740,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
04/25/1999 07/25/1999 25,565,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
07/25/1999 10/25/1999 0.00 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
10/25/1999 01/25/2000 0.00 78,000,000 102,000,000 94,000,000 72,500,000 121,000,000
01/25/2000 04/25/2000 0.00 52,000,000 102,000,000 94,000,000 72,500,000 121,000,000
04/25/2000 07/25/2000 0.00 26,000,000 102,000,000 94,000,000 72,500,000 121,000,000
07/25/2000 10/25/2000 0.00 0.00 102,000,000 94,000,000 72,500,000 121,000,000
10/25/2000 01/25/2001 0.00 0.00 76,500,000 94,000,000 72,500,000 121,000,000
01/25/2001 04/25/2001 0.00 0.00 51,000,000 94,000,000 72,500,000 121,000,000
04/25/2001 07/25/2001 0.00 0.00 25,500,000 94,000,000 72,500,000 121,000,000
07/25/2001 10/25/2001 0.00 0.00 0.00 94,000,000 72,500,000 121,000,000
10/25/2001 01/25/2002 0.00 0.00 0.00 69,000,000 72,500,000 121,000,000
01/25/2002 04/25/2002 0.00 0.00 0.00 44,500,000 72,500,000 121,000,000
04/25/2002 07/25/2002 0.00 0.00 0.00 21,500,000 72,500,000 121,000,000
07/25/2002 10/25/2002 0.00 0.00 0.00 0.00 72,500,000 121,000,000
10/25/2002 01/25/2003 0.00 0.00 0.00 0.00 52,500,000 121,000,000
33
For the Period
Commencing on, To, but Class Class Class Class Class Class
and Including Excluding X-0 X-0 X-0 X-0 X-0 X-0
----------------------------------------------------------------------------------------------------------------------------------
01/25/2003 04/25/2003 0.00 0.00 0.00 0.0 33,500,000 121,000,000
04/25/2003 07/25/2003 0.00 0.00 0.00 0.0 16,000,000 121,000,000
07/25/2003 10/25/2003 0.00 0.00 0.00 0.0 0.00 121,000,000
10/25/2003 01/25/2004 0.00 0.00 0.00 0.0 0.00 106,000,000
01/25/2004 04/25/2004 0.00 0.00 0.00 0.0 0.00 92,000,000
04/25/2004 07/25/2004 0.00 0.00 0.00 0.0 0.00 79,000,000
07/25/2004 10/25/2004 0.00 0.00 0.00 0.0 0.00 67,000,000
10/25/2004 01/25/2005 0.00 0.00 0.00 0.0 0.00 56,000,000
01/25/2005 04/25/2005 0.00 0.00 0.00 0.0 0.00 46,000,000
04/25/2005 07/25/2005 0.00 0.00 0.00 0.0 0.00 36,500,000
07/25/2005 10/25/2005 0.00 0.00 0.00 0.0 0.00 28,000,000
10/25/2005 01/25/2006 0.00 0.00 0.00 0.0 0.00 20,000,000
01/25/2006 04/25/2006 0.00 0.00 0.00 0.0 0.00 12,500,000
04/25/2006 07/25/2006 0.00 0.00 0.00 0.0 0.00 6,000,000
07/25/2006 10/25/2006 0.00 0.00 0.00 0.0 0.00 0.00
All amounts are in U.S. Dollars. All dates herein are subject to adjustment in
accordance with the Following Business Day Convention.
34
CLASS A-5
PNC Student Loan Trust I
c/o The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the terms and
conditions of the Transaction entered into between us on the trade date
specified below (the "Transaction"). This Confirmation constitutes a
"Confirmation" as referred to in the Agreement specified below. This
Confirmation supplements, forms a part of and is subject to the 1992 ISDA
Master Agreement (the "Agreement") among Xxxxxx Guaranty Trust Company of New
York ("MGTNY") and The First National Bank of Chicago (the "Trustee"), not
individually, but solely in its capacity as Eligible Lender Trustee for the PNC
Student Loan Trust I dated as of June 20, 1997.
1. DEFINITIONS. This Confirmation and the Schedule to the Agreement
(the "Schedule") each incorporate the definitions and provisions contained in
(i) the 1991 ISDA Definitions (as published by the International Swaps and
Derivatives Association, Inc.) (the "Definitions") and (ii) the prospectus
which forms a part of the registration statement (together with all amendments
and exhibits thereto, the Registration Statement") filed by PNC Bank, National
Association in its capacity as depositor of the PNC Student Loan Trust I (the
"Prospectus"). In the event of any inconsistency between the definitions in the
Prospectus and any of the Definitions, the Schedule or this Confirmation, the
definitions in the Prospectus will govern; in the event of any inconsistency
between this Confirmation and either the Schedule or the Definitions, this
Confirmation will govern; and in the event of any inconsistency between the
Schedule and the Definitions, the Schedule will govern. In this Confirmation,
"Party A" means MGTNY and "Party B" means the Trustee.
2. SUMMARY OF TRANSACTION TERMS. The terms of the particular
Transaction to which this Confirmation relates are as follows:
Trade Date: June 20, 1997
Effective Date: The Closing Date for the Senior Fixed Rate
Class A-5 Notes
Termination Date: July 25, 2002, subject to adjustment in
accordance with the Following Business Day
Convention
Notional Amount: For each Calculation Period, the Notional
Amount shall be the amount set forth in the
Schedule of Notional Amounts attached hereto as
Exhibit A with respect to the Class A-5 Notes
35
Fixed Amounts
Fixed Rate Payer: Party A
Fixed Rate: 5.967 %
Fixed Rate Payer: The first Period End Date will be July 25,
Period End Dates: 1997. Thereafter, the Period End Dates shall
be the 25th of October, January, April and
July up to and including the Termination Date,
with No Adjustment.
Fixed Rate Payer
Payment Dates: The first Payment Date will be July 25, 1997.
Thereafter, the Payment Dates shall be the
25th of October, January, April and July up to
and including the Termination Date, subject to
adjustment in accordance with the Following
Business Day Convention.
Fixed Rate Day
Count Fraction: 30/360
Floating Amounts:
Floating Rate Payer: Party B
Floating Rate Payer
Payment Dates: The first Payment Date will be July 25, 1997.
Thereafter, the Payment Dates shall be the
25th of October, January, April and July up to
and including the Termination Date, subject to
adjustment in accordance with the Following
Business Day Convention.
Floating Rate for initial
Calculation Period: To be determined
Floating Rate Option: The Rate determined by the Master Servicer on
each Reset Date at which United States
Treasury Bills with a maturity of 13 weeks
("91-day Treasury Bills") are auctioned as set
forth in H.15 (519) for the day opposite such
maturity under the caption "U.S. Government
Securities/Treasury Bills/Auction Average
(Investment)" (the "T-Xxxx Rate"). If on any
Reset Date 91-day Treasury Bills have been
auctioned on a Reset Date but such rate for
such Reset Date is not yet published in H.15
(519), the rate for such Reset Date will be
the bond equivalent yield of the auction
average rate for those Treasury Bills as
announced by the United States Department of
the Treasury. If 91-day Treasury
36
Bills are not auctioned during any period of
seven consecutive calendar days ending on and
including any Friday and a Reset Date would
have occurred if such 91-day Treasury Bills
had been auctioned during that seven day
period, then the rate for the Reset Date will
be the T-Xxxx Rate in effect as a result of
the last such auction and will remain in
effect until such time, if any, as the results
of the 91-day Treasury Bills shall again be so
published or such auction is held.
Spread: None
Floating Rate Day
Count Fraction: Actual/Actual
Reset Dates: Each weekly auction date of 91-day United
States Treasury Bills during each Calculation
Period
Method of Averaging: Unweighted
Business Day: Any day other than a Saturday, a Sunday or a
day on which national banking associations or
banking institutions or trust companies in New
York, New York are authorized or obligated by
law to be closed.
Calculation Agent: MGTNY
3. ACCOUNT DETAILS.
Payments to Party A
Account for payments in USD: Please provide
Payments to Party B:
Account for payments in USD: Please provide
4. OFFICES.
The offices of Party A for this Transaction are New York and London.
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing the copy of this confirmation enclosed for that
purpose and returning it to us.
37
Very truly yours,
Xxxxxx Guaranty Trust Company of New York
By: /s/ Xxxxxxxx X. Carlo
------------------------
Name: Xxxxxxxx X. Carlo
Title: Associate
Accepted and Agreed as of the date first written above:
PNC STUDENT LOAN TRUST I
By: The First National Bank of Chicago, not in its
individual capacity, but solely in its capacity
as Eligible Lender Trustee for PNC Student Loan Trust I
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
38
EXHIBIT A
SCHEDULE OF NOTIONAL AMOUNTS
For the Period
Commencing on, To, but Class Class Class Class Class Class
and Including Excluding X-0 X-0 X-0 X-0 X-0 X-0
----------------------------------------------------------------------------------------------------------------------------------
06/25/1997 07/25/1997 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
07/25/1997 10/25/1997 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
10/25/1997 01/25/1998 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
01/25/1998 04/25/1998 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
04/25/1998 07/25/1998 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
07/25/1998 10/25/1998 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
10/25/1998 01/25/1999 79,130,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
01/25/1999 04/25/1999 50,740,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
04/25/1999 07/25/1999 25,565,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
07/25/1999 10/25/1999 0.00 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
10/25/1999 01/25/2000 0.00 78,000,000 102,000,000 94,000,000 72,500,000 121,000,000
01/25/2000 04/25/2000 0.00 52,000,000 102,000,000 94,000,000 72,500,000 121,000,000
04/25/2000 07/25/2000 0.00 26,000,000 102,000,000 94,000,000 72,500,000 121,000,000
07/25/2000 10/25/2000 0.00 0.00 102,000,000 94,000,000 72,500,000 121,000,000
10/25/2000 01/25/2001 0.00 0.00 76,500,000 94,000,000 72,500,000 121,000,000
01/25/2001 04/25/2001 0.00 0.00 51,000,000 94,000,000 72,500,000 121,000,000
04/25/2001 07/25/2001 0.00 0.00 25,500,000 94,000,000 72,500,000 121,000,000
07/25/2001 10/25/2001 0.00 0.00 0.00 94,000,000 72,500,000 121,000,000
10/25/2001 01/25/2002 0.00 0.00 0.00 69,000,000 72,500,000 121,000,000
01/25/2002 04/25/2002 0.00 0.00 0.00 44,500,000 72,500,000 121,000,000
04/25/2002 07/25/2002 0.00 0.00 0.00 21,500,000 72,500,000 121,000,000
07/25/2002 10/25/2002 0.00 0.00 0.00 0.00 72,500,000 121,000,000
10/25/2002 01/25/2003 0.00 0.00 0.00 0.00 52,500,000 121,000,000
39
For the Period
Commencing on, To, but Class Class Class Class Class Class
and Including Excluding X-0 X-0 X-0 X-0 X-0 X-0
----------------------------------------------------------------------------------------------------------------------------------
01/25/2003 04/25/2003 0.00 0.00 0.00 0.00 33,500,000 121,000,000
04/25/2003 07/25/2003 0.00 0.00 0.00 0.00 16,000,000 121,000,000
07/25/2003 10/25/2003 0.00 0.00 0.00 0.00 0.00 121,000,000
10/25/2003 01/25/2004 0.00 0.00 0.00 0.00 0.00 106,000,000
01/25/2004 04/25/2004 0.00 0.00 0.00 0.00 0.00 92,000,000
04/25/2004 07/25/2004 0.00 0.00 0.00 0.00 0.00 79,000,000
07/25/2004 10/25/2004 0.00 0.00 0.00 0.00 0.00 67,000,000
10/25/2004 01/25/2005 0.00 0.00 0.00 0.00 0.00 56,000,000
01/25/2005 04/25/2005 0.00 0.00 0.00 0.00 0.00 46,000,000
04/25/2005 07/25/2005 0.00 0.00 0.00 0.00 0.00 36,500,000
07/25/2005 10/25/2005 0.00 0.00 0.00 0.00 0.00 28,000,000
10/25/2005 01/25/2006 0.00 0.00 0.00 0.00 0.00 20,000,000
01/25/2006 04/25/2006 0.00 0.00 0.00 0.00 0.00 12,500,000
04/25/2006 07/25/2006 0.00 0.00 0.00 0.00 0.00 6,000,000
07/25/2006 10/25/2006 0.00 0.00 0.00 0.00 0.00 0.00
All amounts are in U.S. Dollars. All dates herein are subject to adjustment in
accordance with the Following Business Day Convention.
40
CLASS A-7
PNC Student Loan Trust I
c/o The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The purpose of this letter agreement is to confirm the terms and
conditions of the Transaction entered into between us on the trade date
specified below (the "Transaction"). This Confirmation constitutes a
"Confirmation" as referred to in the Agreement specified below. This
Confirmation supplements, forms a part of and is subject to the 1992 ISDA
Master Agreement (the "Agreement") among Xxxxxx Guaranty Trust Company of New
York ("MGTNY") and The First National Bank of Chicago (the "Trustee"), not
individually, but solely in its capacity as Eligible Lender Trustee for the PNC
Student Loan Trust I dated as of June 20, 1997.
1. DEFINITIONS. This Confirmation and the Schedule to the Agreement
(the "Schedule") each incorporate the definitions and provisions contained in
(i) the 1991 ISDA Definitions (as published by the International Swaps and
Derivatives Association, Inc.) (the "Definitions") and (ii) the prospectus
which forms a part of the registration statement (together with all amendments
and exhibits thereto, the Registration Statement") filed by PNC Bank, National
Association in its capacity as depositor of the PNC Student Loan Trust I (the
"Prospectus"). In the event of any inconsistency between the definitions in the
Prospectus and any of the Definitions, the Schedule or this Confirmation, the
definitions in the Prospectus will govern; in the event of any inconsistency
between this Confirmation and either the Schedule or the Definitions, this
Confirmation will govern; and in the event of any inconsistency between the
Schedule and the Definitions, the Schedule will govern. In this Confirmation,
"Party A" means MGTNY and "Party B" means the Trustee.
2. SUMMARY OF TRANSACTION TERMS. The terms of the particular
Transaction to which this Confirmation relates are as follows:
Trade Date: June 20, 1997
Effective Date: The Closing Date for the Senior Fixed Rate
Class A-7 Notes
Termination Date: July 25, 2006, subject to adjustment in
accordance with the Following Business Day
Convention
Notional Amount: For each Calculation Period, the Notional
Amount shall be the amount set forth in the
Schedule of Notional Amounts attached hereto
as Exhibit A with respect to the Class A-7
Notes
41
Fixed Amounts
Fixed Rate Payer: Party A
Fixed Rate: 6.110 %
Fixed Rate Payer
Period End Dates: The first Period End Date will be July 25,
1997. Thereafter, the Period End Dates shall
be the 25th of October, January, April and
July up to and including the Termination Date,
with No Adjustment.
Fixed Rate Payer
Payment Dates: The first Payment Date will be July 25, 1997.
Thereafter, the Payment Dates shall be the
25th of October, January, April and July up to
and including the Termination Date, subject to
adjustment in accordance with the Following
Business Day Convention.
Fixed Rate Day
Count Fraction: 30/360
Floating Amounts:
Floating Rate Payer: Party B
Floating Rate Payer
Payment Dates: The first Payment Date will be July 25, 1997.
Thereafter, the Payment Dates shall be the
25th of October, January, April and July up to
and including the Termination Date, subject to
adjustment in accordance with the Following
Business Day Convention.
Floating Rate for initial
Calculation Period To be determined
Floating Rate Option: The Rate determined by the Master Servicer on
each Reset Date at which United States
Treasury Bills with a maturity of 13 weeks
("91-day Treasury Bills") are auctioned as set
forth in H.15 (519) for the day opposite such
maturity under the caption "U.S. Government
Securities/Treasury Bills/Auction Average
(Investment)" (the "T-Xxxx Rate"). If on any
Reset Date 91-day Treasury Bills have been
auctioned on a Reset Date but such rate for
such Reset Date is not yet published in H.15
(519), the rate for such Reset Date will be
the bond equivalent yield of the auction
average rate for those Treasury Bills as
announced by the
42
United States Department of the Treasury. If
91-day Treasury Bills are not auctioned during
any period of seven consecutive calendar days
ending on and including any Friday and a Reset
Date would have occurred if such 91-day
Treasury Bills had been auctioned during that
seven day period, then the rate for the Reset
Date will be the T-Xxxx Rate in effect as a
result of the last such auction and will
remain in effect until such time, if any, as
the results of the 91-day Treasury Bills shall
again be so published or such auction is held.
Spread: None
Floating Rate Day
Count Fraction: Actual/Actual
Reset Dates: Each weekly auction date of 91-day United
States Treasury Bills during each Calculation
Period
Method of Averaging: Unweighted
Business Day: Any day other than a Saturday, a Sunday or a
day on which national banking associations or
banking institutions or trust companies in New
York, New York are authorized or obligated by
law to be closed.
Calculation Agent: MGTNY
3. ACCOUNT DETAILS.
Payments to Party A
Account for payments in USD: Please provide
Payments to Party B:
Account for payments in USD: Please provide
4. OFFICES.
The offices of Party A for this Transaction are New York and London.
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing the copy of this confirmation enclosed for that
purpose and returning it to us.
43
Very truly yours,
Xxxxxx Guaranty Trust Company of New York
By: /s/ Xxxxxxxx X. Carlo
------------------------
Name: Xxxxxxxx X. Carlo
Title: Associate
Accepted and Agreed as of the date first written above:
PNC STUDENT LOAN TRUST I
By: The First National Bank of Chicago, not in its
individual capacity, but solely in its capacity
as Eligible Lender Trustee for PNC Student Loan Trust I
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
44
EXHIBIT A
SCHEDULE OF NOTIONAL AMOUNTS
For the Period
Commencing on, To, but Class Class Class Class Class Class
and Including Excluding X-0 X-0 X-0 X-0 X-0 X-0
-----------------------------------------------------------------------------------------------------------------------------------
06/25/1997 07/25/1997 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
07/25/1997 10/25/1997 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
10/25/1997 01/25/1998 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
01/25/1998 04/25/1998 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
04/25/1998 07/25/1998 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
07/25/1998 10/25/1998 107,000,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
10/25/1998 01/25/1999 79,130,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
01/25/1999 04/25/1999 50,740,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
04/25/1999 07/25/1999 25,565,000 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
07/25/1999 10/25/1999 0.00 107,000,000 102,000,000 94,000,000 72,500,000 121,000,000
10/25/1999 01/25/2000 0.00 78,000,000 102,000,000 94,000,000 72,500,000 121,000,000
01/25/2000 04/25/2000 0.00 52,000,000 102,000,000 94,000,000 72,500,000 121,000,000
04/25/2000 07/25/2000 0.00 26,000,000 102,000,000 94,000,000 72,500,000 121,000,000
07/25/2000 10/25/2000 0.00 0.00 102,000,000 94,000,000 72,500,000 121,000,000
10/25/2000 01/25/2001 0.00 0.00 76,500,000 94,000,000 72,500,000 121,000,000
01/25/2001 04/25/2001 0.00 0.00 51,000,000 94,000,000 72,500,000 121,000,000
04/25/2001 07/25/2001 0.00 0.00 25,500,000 94,000,000 72,500,000 121,000,000
07/25/2001 10/25/2001 0.00 0.00 0.00 94,000,000 72,500,000 121,000,000
10/25/2001 01/25/2002 0.00 0.00 0.00 69,000,000 72,500,000 121,000,000
01/25/2002 04/25/2002 0.00 0.00 0.00 44,500,000 72,500,000 121,000,000
04/25/2002 07/25/2002 0.00 0.00 0.00 21,500,000 72,500,000 121,000,000
07/25/2002 10/25/2002 0.00 0.00 0.00 0.00 72,500,000 121,000,000
10/25/2002 01/25/2003 0.00 0.00 0.00 0.00 52,500,000 121,000,000
45
For the Period
Commencing on, To, but Class Class Class Class Class Class
and Including Excluding X-0 X-0 X-0 X-0 X-0 X-0
-----------------------------------------------------------------------------------------------------------------------------------
01/25/2003 04/25/2003 0.00 0.00 0.00 0.00 33,500,000 121,000,000
04/25/2003 07/25/2003 0.00 0.00 0.00 0.00 16,000,000 121,000,000
07/25/2003 10/25/2003 0.00 0.00 0.00 0.00 0.00 121,000,000
10/25/2003 01/25/2004 0.00 0.00 0.00 0.00 0.00 106,000,000
01/25/2004 04/25/2004 0.00 0.00 0.00 0.00 0.00 92,000,000
04/25/2004 07/25/2004 0.00 0.00 0.00 0.00 0.00 79,000,000
07/25/2004 10/25/2004 0.00 0.00 0.00 0.00 0.00 67,000,000
10/25/2004 01/25/2005 0.00 0.00 0.00 0.00 0.00 56,000,000
01/25/2005 04/25/2005 0.00 0.00 0.00 0.00 0.00 46,000,000
04/25/2005 07/25/2005 0.00 0.00 0.00 0.00 0.00 36,500,000
07/25/2005 10/25/2005 0.00 0.00 0.00 0.00 0.00 28,000,000
10/25/2005 01/25/2006 0.00 0.00 0.00 0.00 0.00 20,000,000
01/25/2006 04/25/2006 0.00 0.00 0.00 0.00 0.00 12,500,000
04/25/2006 07/25/2006 0.00 0.00 0.00 0.00 0.00 6,000,000
07/25/2006 10/25/2006 0.00 0.00 0.00 0.00 0.00 0.00
All amounts are in U.S. Dollars. All dates herein are subject to adjustment in
accordance with the Following Business Day Convention.
