(Euro Currency Swap)
(Multicurrency - Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of September 2002
[____________] ("Party A") and The Bank of New York (the "Note Trustee") and
Granite Mortgages 02-2 plc ("Party B).
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.
Copyright (C) 1992 by International Swap Dealers Association, Inc.
(b) CHANGE OF ACCOUNT. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) NETTING. IF on any date amounts would otherwise be payable:
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) DEDUCTION OR WITHHOLDING FOR TAX.
(i) GROSS-UP. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will: --
(1) promptly notify the other party ("Y") OF such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that
such deduction or withholding is required or receiving notice that
such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(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.
2 ISDA(R) 1992
(ii) LIABILITY. If: --
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) DEFAULT INTEREST; OTHER AMOUNTS. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. REPRESENTATIONS
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that: --
(a) BASIC REPRESENTATIONS.
(i) STATUS. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) POWERS. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform
its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary
action to authorise such execution, delivery and performance;
(iii) NO VIOLATION OR CONFLICT. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision of
its constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) CONSENTS. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been
complied with; and
(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)).
3 ISDA(R) 1992
(b) ABSENCE OF CERTAIN EVENTS. No Event of Default or Potential Event of Default
or, to its knowledge, Termination Event with respect to it has occurred and is
continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement or any Credit
Support Document to which it is a party.
(c) ABSENCE OF LITIGATION. There is not pending or, to its knowledge, threatened
against it or any of its Affiliates any action, suit or proceeding at law or in
equity or before any court, tribunal, governmental body, agency or official or
any arbitrator that is likely to affect the legality, validity or enforceability
against it of this Agreement or any Credit Support Document to which it is a
party or its ability to perform its obligations under this Agreement or such
Credit Support Document.
(d) ACCURACY OF SPECIFIED INFORMATION. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) PAYER TAX REPRESENTATION. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) PAYEE TAX REPRESENTATIONS. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party: --
(a) FURNISH SPECIFIED INFORMATION. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs: --
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of such
demand), with any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be executed and
to be delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) MAINTAIN AUTHORISATIONS. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(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,
4 ISDA(R) 1992
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(c) 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
5 ISDA(R) 1992
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
6 ISDA(R) 1992
Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below:
(i) ILLEGALITY. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for such party (which
will be the Affected Party): --
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect
of such Transaction or to comply with any other material provision
of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) TAX EVENT. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is
required to be paid in respect of such Tax under Section 2(d)(i)(4) (other
than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) TAX EVENT UPON MERGER. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which
the other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) CREDIT EVENT UPON MERGER. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does 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.
7 ISDA(R) 1992
6. EARLY TERMINATION
(a) RIGHT TO TERMINATE FOLLOWING EVENT OF DEFAULT. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
(i) NOTICE. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) TRANSFER TO AVOID TERMINATION EVENT. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and obligations
under this Agreement in respect of the Affected Transactions to another of
its Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) TWO AFFECTED PARTIES. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) RIGHT TO TERMINATE. If: --
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(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
8 ISDA(R) 1992
continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) EFFECT OF DESIGNATION.
(i) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).
(d) CALCULATIONS.
(i) STATEMENT. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such quotation.
(ii) PAYMENT DATE. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early Termination
Date to (but excluding) the date such amount is paid, at the Applicable
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(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
9 ISDA(R) 1992
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.
10 ISDA(R) 1992
7. TRANSFER
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. CONTRACTUAL CURRENCY
(a) PAYMENT IN THE CONTRACTUAL CURRENCY. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the contractual currency payable in respect of this
agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) JUDGMENTS. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of 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.
11 ISDA(R) 1992
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 he entered into as soon as practicable
and may he 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
12 ISDA(R) 1992
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 Act 1982 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
13 ISDA(R) 1992
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 IN TAX LAW" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"CONSENT" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"CREDIT EVENT UPON MERGER" has the meaning specified in Section 5(b).
"CREDIT SUPPORT DOCUMENT" means any agreement or instrument that is specified as
such in this Agreement.
"CREDIT SUPPORT PROVIDER" has the meaning specified in the Schedule.
"DEFAULT RATE" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
14 ISDA(R) 1992
"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
15 ISDA(R) 1992
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 meanings specified in the Schedule.
16 ISDA(R) 1992
"SPECIFIED INDEBTEDNESS" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"SPECIFIED TRANSACTION" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"STAMP TAX" means any stamp, registration, documentation or similar tax.
"TAX" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"TAX EVENT" has the meaning specified in Section 5(b).
"TAX EVENT UPON MERGER" has the meaning specified in Section 5(b).
"TERMINATED TRANSACTIONS" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"TERMINATION CURRENCY" has the meaning specified in the Schedule.
"TERMINATION CURRENCY EQUIVALENT" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would 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 Tenninated 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 ISDA(R) 1992
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.
Granite Mortgages 02-2 plc,
[_________], being Party A being Party B
- --------------------------------------- ---------------------------------
(Name of Party) (Name of Party)
By: ................................... By: .............................
Name: Name:
Title: Title:
Date: Date:
The Bank of New York,
being the Note Trustee
........................................
(Name of Party)
By:....................................
Name:
Title:
Date:
18 ISDA(R) 1992
SABW DRAFT 1- 22 JULY 2002
(SERIES 2 CLASS A NOTES)
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of [______] September, 2002
between
(1) [______________________________] ("PARTY A");
(2) GRANITE MORTGAGES 02-2 plc ("PARTY B"); and
(3) THE BANK OF NEW YORK (the "NOTE TRUSTEE", which expression shall include
its successors and assigns and which has agreed to become a party to
this Agreement solely for the purpose of taking the benefit of Parts
5(c) and (h) of the Schedule to this Agreement).
Part 1. TERMINATION PROVISIONS.
(a) "Specified Entity" means in relation to Party A for the purpose of:-
Section 5(a)(v), none
Section 5(a)(vi), none
Section 5(a)(vii), none
Section 5(b)(iv), none
and in relation to Party B for the purpose of:-
Section 5(a)(v), none
Section 5(a)(vi), none
Section 5(a)(vii), none
Section 5(b)(iv), none
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14.
(c) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will not apply to
Party A and will not apply to Party B.
1
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) will not
apply to Party A and will not apply to Party B.
(e) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not
apply to Party A and will not apply to Party B.
(f) PAYMENTS ON EARLY TERMINATION. For the purposes of Section 6(e) of this
Agreement:-
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means Sterling.
Part 2. TAX REPRESENTATIONS
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B will each make the following
representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, it may rely on (i)
the accuracy of any representations made by the other party pursuant to
Section 3(f) of this Agreement, (ii) the satisfaction of the agreement
of the other party contained in Section 4(a)(i) or 4(a)(iii) of this
Agreement and the accuracy and effectiveness of any document provided by
the other party pursuant to Section 4(a)(i) or 4(a)(iii) of this
Agreement and (iii) the satisfaction of the agreement of the other party
contained in Section 4(d) of this Agreement, provided that it shall not
be a breach of this representation where reliance is placed on clause
(ii) and the other party does not deliver a form or document under
Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
(b) PAYEE REPRESENTATIONS. For the purposes of Section 3(f) of the
Agreement, Party A makes the representation specified below (the
"ADDITIONAL TAX REPRESENTATION"):-
(i) it is a party to each Transaction solely for the purposes of a
trade (or part of a trade) carried on by it in the United
Kingdom through a branch or agency; or
(ii) it is resident in the United Kingdom or in a jurisdiction with
which the United Kingdom has a double tax treaty which makes
provision, whether for relief or otherwise, in relation to
interest.
(c) ADDITIONAL TERMINATION EVENT. The Additional Tax Representation proves
to have been incorrect or misleading in any material respect with
respect to one or more Transactions (each an "Affected Transaction" for
the purposes of this Additional Termination Event) when made or repeated
or deemed to have been made or repeated. The Affected Party shall be
Party A only.
2
Part 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each
party agrees to deliver the following documents, as applicable:-
(a) Tax forms, documents or certificates to be delivered are:-
PARTY REQUIRED TO DELIVER FORM/DOCUMENT/ DATE BY WHICH TO BE
DOCUMENT CERTIFICATE DELIVERED
None
(b) Other documents to be delivered are:-
PARTY REQUIRED COVERED BY
TO DELIVER FORM/DOCUMENT/ DATE BY WHICH SECTION 3(D)
DOCUMENT CERTIFICATE TO BE DELIVERED REPRESENTATION
Party A and Appropriate On signing of Yes
Party B evidence of this Agreement
its signatory's
authority
Party B Certified copy of On signing of this Yes
board resolution Agreement
Party A Legal opinion of the On signing of No
counsel to Party A this Agreement
in form and substance
satisfactory to Party B
Party B Legal opinion of the On signing of No
counsel to Party B this Agreement
in form and substance
satisfactory to Party A
3
Part 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:-
Address for notices or communications to Party A:-
Address: [__________]
Attention: [__________]
Facsimile No.: [__________]
Address for notices or communications to Party B:-
Address: Granite Mortgages 02-2 plc
Fifth Floor
100 Wood Street
London
EC2V 7EX
With a copy to: Northern Rock plc
Northern Rock House
Gosforth
Newcastle upon Tyne
NE3 4PL
Attention: Keith M. Currie
Facsimile No.: 0191 279 4694
With a copy to the Note Trustee:-
Address: The Bank of New York
One Canada Square
48th Floor
London
E14 5AL
Attention: Corporate Trust (Global Structured Finance)
Facsimile No.: 020 7964 6061
(b) PROCESS AGENT. For this purpose of Section 13(c) of this Agreement:-
Party A appoints as its Process Agent: none.
Party B appoints as its Process Agent: none.
4
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:-
Party A [is/is not] a Multibranch Party [and may act through the
following offices: London].
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent shall be as specified in each
Confirmation.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:-
In respect of Party A: None.
In respect of Party B: The Current Issuer Deed of Charge.
(g) CREDIT SUPPORT PROVIDER.
Credit Support Provider means, in relation to Party A, none.
Credit Support Provider means, in relation to Party B, none.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with English law.
(i) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
Part 5. OTHER PROVISIONS
(a) DEFINITIONS AND INTERPRETATION
(i) The definitions and provisions contained in the 2000 ISDA
Definitions as published by the International Swaps and
Derivatives Association, Inc. (the "DEFINITIONS") are
incorporated by reference herein. Any terms used and not
otherwise defined herein which are contained in the Definitions
shall have the meaning set forth therein.
(ii) Capitalised terms used in this Agreement shall, except where the
context otherwise requires and save where otherwise defined in
this Agreement, the Confirmation, the Schedule or the
Definitions, bear the meanings given to them in the Master
Definitions Schedule as amended and restated by (and appearing
in Appendix 1 to) the Master Definitions Schedule Third
Amendment Deed executed by, among others, the Note Trustee on
[_____] September 2002 and the Issuer Master Definitions
Schedule signed for the purposes of identification by Sidley
Austin Brown & Wood and Allen and Overy on [____] September,
2002 (as the same have been and may be amended, varied or
supplemented from time to time with the consent of the parties
hereto). The Issuer Master Definitions
5
Schedule specified above shall prevail to the extent that it
conflicts with the Master Definitions Schedule.
(b) NO SET-OFF
(i) All payments under this Agreement shall be made without set-off
or counterclaim, except as expressly provided for in Section 6.
(ii) Section 6(e) shall be amended by the deletion of the following
sentence: "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."
(c) SECURITY INTEREST
Notwithstanding Section 7, Party A hereby agrees and consents to the
assignment by way of security by Party B of its interests under this
Agreement (without prejudice to, and after giving effect to, any
contractual netting provision contained in this Agreement) to the Note
Trustee (or any successor thereto) pursuant to and in accordance with
the Current Issuer Deed of Charge and acknowledges notice of such
assignment. Each of the parties hereby confirms and agrees that the Note
Trustee shall not be liable for any of the obligations of Party B
hereunder.
(d) DISAPPLICATION OF CERTAIN EVENTS OF DEFAULT
Section 5(a)(ii), Section 5(a)(iii), Section 5(a)(iv), Section 5(a)(v)
and Section 5(a)(vii)(2) will not apply in respect of Party B.
Section 5(a)(viii) will not apply to Party B in respect of a transfer to
the Note Trustee or in respect of a transfer to any entity which has
succeeded the Note Trustee in that capacity.
Section 5(a)(ii) shall not apply in respect of Party A with respect to
any failure to perform its obligations as Calculation Agent as a result
of the Cash Manager failing to provide any information or calculations
to Party A pursuant to this Agreement or the Cash Management Agreement.
(e) DISAPPLICATION OF CERTAIN TERMINATION EVENTS
The "Tax Event" and "Tax Event Upon Merger" provisions of Section
5(b)(ii) and 5(b)(iii) will not apply to Party A or to Party B.
(f) ADDITIONAL EVENT OF DEFAULT
The following shall constitute an additional Event of Default with
respect to Party B:
"NOTE ENFORCEMENT NOTICE. The Note Trustee serves a Note Enforcement
Notice on Party B (in which case Party B shall be the Defaulting
Party)."
6
(g) NORTHERN ROCK PLC AS PARTY B'S AGENT
Party B hereby declares that pursuant to the Current Issuer Cash
Management Agreement it has appointed Northern Rock plc to act as its
agent for the purpose, inter alia, of the operation of this Agreement
and dealing with payments hereunder. Accordingly, unless and until
written notice is received by Party A from the Note Trustee that such
appointment has been terminated, Party A shall be entitled to treat all
communications and acts relating to this Agreement received from or
carried out by Northern Rock plc as being those of Party B and Party B
hereby agrees to ratify and confirm the same.
(h) SECURITY, ENFORCEMENT AND LIMITED RECOURSE
(i) Party A agrees with Party B and the Note Trustee to be bound by
the terms of the Current Issuer Deed of Charge and the Current
Issuer Cash Management Agreement and, in particular, confirms
that: (i) no sum shall be payable by or on behalf of Party B to
it except in accordance with the Issuer Priority of Payments of
Party B as set out in the Current Issuer Cash Management
Agreement or, as applicable, the Current Issuer Deed of Charge
(as the same may be amended from time to time); and (ii) it will
not take any steps for the winding up, dissolution or
reorganisation or for the appointment of a receiver,
administrator, administrative receiver, trustee, liquidator,
sequestrator or similar officer of Party B or of any or all of
its revenues and assets nor participate in any ex parte
proceedings nor seek to enforce any judgment against Party B
except as provided in the Current Issuer Deed of Charge.
(ii) In relation to all sums due and payable by Party B to Party A,
Party A agrees that it shall have recourse only to sums
available to Party B for the purpose of making payments to Party
A in accordance with the relevant Issuer Priority of Payments,
the Current Issuer Cash Management Agreement and/or, as
applicable the Current Issuer Deed of Charge.
(iii) If, on any date, Party B does not pay the full amount it would
otherwise owe under any Transaction (including, for the
avoidance of doubt, any related Conditional Transactions, and
after the application of Section 2(c) to such Transaction)
because of the limitation contained in clause (i) of this
paragraph (h), then (i) payment by Party B of the shortfall will
not then fall due but will instead be deferred until the first
Payment Date thereafter on which sufficient funds are available
(subject to the limitation in clause (i) of this paragraph (h)),
(ii) failure by Party B to make the full payment under such
Transaction (including, for the avoidance of doubt, any related
Conditional Transactions, and after the application of Section
2(c) to such Transaction) shall not constitute an Event of
Default for the purpose of Section 5(a)(i), and (iii) the
obligation of Party A to make payment to Party B, in respect of
the same Transaction, on such date, will be reduced so that
Party A will be obligated to pay the Equivalent Percentage of
the amount it would otherwise owe under that Transaction.
"EQUIVALENT PERCENTAGE" means the percentage obtained by
dividing the amount paid by Party B by the amount it would have
paid absent such limitation.
7
(iv) For the avoidance of doubt, if an Early Termination Date results
from an Event of Default, the Unpaid Amounts owing to Party A
will include any amount payable by Party B, the payment of which
was deferred under clause (iii) of this paragraph (h).
(i) SCOPE OF AGREEMENT
It is hereby understood and agreed that the provisions of this Agreement
shall only apply to the swap transactions entered into between Party A
and Party B on the date as of which this Agreement is made as evidenced
by the Confirmation substantially in the form attached hereto as
Appendix B, and that no other swap transaction may be entered into
pursuant hereto except where the Rating Agencies have confirmed in
writing that the then current ratings of the Current Issuer Notes would
not be adversely affected by such other swap transaction.
(j) AUTHORISED PERSON
For the purposes of Section 3 of this Agreement, Party A represents to
Party B (which representation will be deemed to be repeated by Party A
on each date on which a Transaction is entered into and throughout the
course of any Transaction) that it is an authorised person for the
purposes of the Financial Services and Markets Act 2000.
(k) RATINGS DOWNGRADE OF PARTY A
(i) In the event that the long-term, unsecured and unsubordinated
debt obligations of Party A (or its successor), or any guarantor
of Party A, cease to be rated at least as high as AA- by
Standard & Poor's Rating Services, a division of The McGraw-Hill
Companies Inc. ("S&P") and as a result of such downgrade the
then current rating of the Notes may in the reasonable opinion
of S&P be downgraded or placed under review for possible
downgrade, then Party A shall, within 30 days of the occurrence
of such downgrade at its own cost either:-
(A) put in place an appropriate mark-to-market collateral
agreement, (which may be based on the credit support
documentation published by ISDA, or otherwise, and
relates to collateral in the form of cash or securities
or both) in support of its obligations under this
Agreement provided that (x) Party A shall be deemed to
have satisfied the requirements of S&P if the amount of
collateral agreed to be provided in the form of cash
and/or securities (the "COLLATERAL AMOUNT") is
determined on a basis which is no more onerous than the
criteria of S&P as at 31st September, 1999 (or any
subsequent criteria published by S&P) which enable
entities rated lower than a specified level to
participate in structured finance transactions which,
through collateralisation, are rated at a higher level
(as referred to, in part, in the article entitled New
Interest Rate Currency Swap Criteria Broadens Allowable
Counterparties in the January 1999 issue of S&P's
Structured Finance publication) (the "S&P CRITERIA") and
(y) the Collateral Amount shall not be required to
exceed such amount as would
8
be required (in accordance with the S&P Criteria) to
restore the rating of the Notes to the level they would
have been at immediately prior to such downgrading; or
(B) transfer all of its rights and obligations with respect
to this Agreement to a replacement third party whose
long-term, unsecured and unsubordinated debt obligations
are rated at least as high as AA- (or its equivalent) by
S&P or such other rating as is commensurate with the
rating assigned to the Notes by S&P from time to time;
or
(C) procure another person to become co-obligor in respect
of the obligations of Party A under this Agreement or
take such other action as Party A may agree with S&P as
will result in the rating of the Notes then outstanding
following the taking of such action being rated no lower
than the rating of the Notes immediately prior to such
downgrade.
(ii) In the event that the long-term, unsecured and unsubordinated
debt obligations of Party A (or its successor), or any guarantor
of Party A cease to be rated at least as high as Aa3 by Moody's
Investors Service Limited ("MOODY'S") and as a result of such
downgrade the then current rating of the Notes may in the
reasonable opinion of Moody's be downgraded or placed under
review for possible downgrade, then Party A will, on a
reasonable efforts basis, within 30 days, and at its own costs:-
(A) attempt to transfer all of its rights and obligations
with respect to this Agreement to a replacement third
party whose long-term, unsecured and unsubordinated debt
obligations are rated at least as high as Aa3 (or its
equivalent) by Moody's or such other rating as is
commensurate with the rating assigned to the Notes by
Moody's from time to time; or
(B) put in place an appropriate mark-to-market collateral
agreement, (which may be based on the credit support
documentation published by ISDA, or otherwise, and
relates to collateral in the form of cash or securities
or both) in support of its obligations under this
Agreement provided that (x) Party A shall be deemed to
have satisfied the requirements of Moody's if the
Collateral Amount is determined on a basis which is no
more onerous than the Moody's Criteria and (y) the
Collateral Amount shall not be required to exceed such
amount as would be required (in accordance with the
Moody's Criteria) to restore the rating of the Notes to
the level they would have been at immediately prior to
such downgrading; or
(C) procure another person to become co-obligor in respect
of the obligations of Party A under this Agreement or
take such other action as Party A may agree with Moody's
as will result in the rating of the Notes then
outstanding following the taking of such action being
rated no lower than the rating of the Notes immediately
prior to such downgrade.
9
"MOODY'S CRITERIA" means that the Collateral Amount
shall not exceed 100 per cent. of the mark-to-market
value of the outstanding Transactions as determined by
Party A in good faith from time to time provided that if
the short-term, unsecured and unsubordinated debt
obligations of Party A (or its successor or assignee)
cease to be rated as high as P-1 by Moody's then the
applicable Collateral Amount shall not exceed the sum of
(i) 102 per cent. of the mark-to-market value of the
outstanding Transactions determined by Party A in good
faith from time to time and (ii) in aggregate of the
amounts determined in respect of each class of Notes,
equal to the principal outstanding of that class of
Notes and multiplied by the number of days remaining
from the date of the determination to the Expected
Repayment Date of that class of Notes, divided by 365
(such aggregate the "Buffer Notional") multiplied by the
product of 0.15 per cent. and the Fixed Rate Ratio (as
defined in the Basis Rate Swap Agreement). "EXPECTED
REPAYMENT DATE" means the Payment Date falling in
[-------].
(iii) In the event that the long-term, unsecured and
unsubordinated debt obligations of Party A (or its
successor), or any guarantor of Party A, cease to be
rated at least as high as AA- (or its equivalent) by
Fitch Ratings Ltd ("FITCH") and as a result the then
current rating of the Notes may in the reasonable
opinion of Fitch be downgraded or placed on credit watch
for possible downgrade, then Party A will, on a
reasonable efforts basis, within 30 days, at its own
cost, either:-
(A) attempt to transfer all of its rights and
obligations with respect to this Agreement to a
replacement third party whose long-term,
unsecured and unsubordinated debt ratings are
rated at least as high as AA- (or its
equivalent) by Fitch or such other rating as is
commensurate with the rating assigned to the
Notes by Fitch from time to time; or
(B) procure another person to become co-obligor or
guarantor in respect of the obligations of Party
A under this Agreement whose long-term,
unsecured and unsubordinated debt ratings are
rated at least as high as AA- (or its
equivalent) by Fitch or such other rating as is
commensurate with the rating assigned to the
Notes by Fitch from time to time; or
(C) take such other action as Party A may agree with
Fitch as will result in the rating of the Notes
then outstanding being maintained.
(iv) If Party A does not take the measures described in
either (i), (ii) or (iii) above such failure shall not
be or give rise to an Event of Default but shall
constitute an Additional Termination Event with respect
to Party A and shall be deemed to have occurred on the
thirtieth day following such downgrade with Party A as
the sole Affected Party.
Each of Party B and the Note Trustee shall use their
reasonable endeavours to co-operate with Party A in
putting in place such credit support documentation,
including agreeing to such arrangements in such
documentation as may satisfy S&P, Moody's and Fitch with
respect to the operation and management of the
10
collateral (subject always to proviso (x) and (y) in
(i)(A) and (ii)(B) above) and entering into such
documents as may reasonably be requested by Party A in
connection with the provision of such collateral.
(l) ADDITIONAL REPRESENTATION
Section 3 is amended by the addition at the end thereof of the following
additional representations:-
(i) "(g) NO AGENCY. It is entering into this Agreement and each
Transaction as principal and not as agent of any person."
(ii) The following additional representation shall be given by Party
A only:
"(h) PARI PASSU. Its obligations under this Agreement rank pari
passu with all of its other unsecured, unsubordinated
obligations except those obligations preferred by operation of
law."
(m) RECORDING OF CONVERSATIONS
Each party to this Agreement acknowledges and agrees to the tape
recording of conversations between the parties to this Agreement whether
by one or other or both of the parties.
(n) RELATIONSHIP BETWEEN THE PARTIES
The Agreement is amended by the insertion after Section 14 of an additional
Section 15, reading in its entirety as follows:
"15. RELATIONSHIP BETWEEN THE 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):-
(i) NON RELIANCE. It is acting for its own account, and it has made
its own decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based
upon its own judgment and advice from such advisers as it has
deemed necessary. It is not relying on any communication
(written or oral) of the other party as investment advice or as
a recommendation to enter into that Transaction; it being
understood that information and explanations related to the
terms and conditions of a Transaction shall not be considered
investment advice or a recommendation to enter into that
Transaction. It has not received from the other party any
assurance or guarantee as to the expected results of that
Transaction.
(ii) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the
merits of and understanding (through independent professional
advice), and understands and
11
accepts, the terms, conditions and risks of that Transaction. It
is also capable of assuming, and assumes, the financial and
other risks of that Transaction.
(iii) STATUS OF PARTIES. The other party is not acting as a fiduciary
or an adviser for it in respect of that Transaction."
(o) TAX
The Agreement is amended by deleting Section 2(d) in its entirety and
replacing it with the following:
"(d) DEDUCTION OR WITHHOLDING FOR TAX
(i) Requirement to Withhold
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 (including, for the
avoidance of doubt, if such deduction or withholding is required
in order for the payer to obtain relief from Tax) by any
applicable law, as modified by the practice of any relevant
governmental revenue authority, then in effect. If a party ("X")
is so required to deduct or withhold, then that party (the
"DEDUCTING PARTY"):-
(A) will promptly notify the other party ("Y") of such
requirement;
(B) will 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
Gross Up Amount (as defined below) paid by the Deducting
Party to Y under this Section 2(d)) promptly upon the
earlier of determining that such deduction or
withholding is required or receiving notice that such
amount has been assessed against Y;
(C) will 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
(D) if X is Party A, X will promptly pay in addition to the
payment to which Party B is otherwise entitled under
this Agreement, such additional amount (the "GROSS UP
AMOUNT") as is necessary to ensure that the net amount
actually received by Party B will equal the full amount
which Party B would have received had no such deduction
or withholding been required.
12
(ii) Liability
If:
(A) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority,
to make any deduction or withholding for or on account
of any Tax in respect of payments under this Agreement;
and
(B) X does not so deduct or withhold; and
(C) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent that Y has satisfied or then
satisfies the liability resulting from such Tax, (A) where X is
Party B, Party A will promptly pay to Party B the amount of such
liability (the "LIABILITY AMOUNT") (including any related
liability for interest and together with an amount equal to the
Tax payable by Party B on receipt of such amount but including
any related liability for penalties only if Party A has failed
to comply with or perform any agreement contained in Section
4(a)(i), 4(a)(iii) or 4(d)) and Party B will promptly pay to the
relevant government revenue authority the amount of such
liability (including any related liability for interest and
penalties) and (B) where X is Party A and Party A would have
been required to pay a Gross Up Amount to Party B, Party A will
promptly pay to the relevant government revenue authority the
amount of such liability (including any related liability for
interest and penalties).
(iii) Tax Credit etc.
(a) Where Party A pays an amount in accordance with Section
2(d)(i)(4) or 2(d)(ii)(B) above, Party B undertakes as
follows:-
(1) To the extent that Party B obtains any Tax
credit, allowance, set-off or repayment from the
tax authorities of any jurisdiction relating to
any deduction or withholding giving rise to such
payment or in the case of Section 2(d)(ii)(B)
the amount to be assessed, it shall pay to Party
A on the next Interest Payment Date after
receipt of the same so much of the cash benefit
(as calculated below) relating thereto which it
has received as will leave Party B in
substantially the same (but in any event no
worse) position as Party B would have been in if
no such deduction or withholding had been
required or the amount had not been so assessed;
(2) The "cash benefit" shall, in the case of credit,
allowance or set-off, be the additional amount
of Tax which would have been payable by Party B
in the jurisdiction referred to in (1) above but
for the obtaining by it of the said Tax credit,
allowance or set-off and, in the case of a
repayment, shall be the amount of the repayment
together, in either case, with any related
interest or similar payment obtained by Party B;
and
(3) It will use all reasonable endeavours to obtain
any Tax credit, allowance, set-off or repayment
as soon as is reasonably
13
practicable provided that it shall be the sole
judge of the amount of any such Tax credit,
allowance, set-off or repayment and of the date
on which the same is received and shall not be
obliged to disclose to Party A any information
regarding its tax affairs or tax computations
save that Party B shall, upon request by Party
A, supply Party A with a reasonably detailed
explanation of its calculation of the amount of
any such Tax credit, allowance, set-off or
repayment and of the date on which the same is
received.
The definition of "Indemnifiable Tax" in Section
14 shall be deleted and the following shall be
substituted therefor:
"Indemnifiable Tax" means any Tax."
(p) CHANGE OF ACCOUNT
Section 2(b) of this Agreement is hereby amended by the addition of the
following at the end thereof:
"; provided that such new account shall be in the same tax jurisdiction
as the original account and such new account, in the case of Party B, is
held with a financial institution with a short term unsecured,
unsubordinated and unguaranteed debt obligation rating of at least P-1
(in the case of Moody's) and A-1 (in the case of S&P)."
(q) CONDITION PRECEDENT
Section 2(a)(iii) shall be amended by the deletion of the words "a
Potential Event of Default" in respect of conditions precedent to the
obligations of Party A only.
(r) REPRESENTATIONS
(i) Section 3(b) shall be amended by the deletion of the words "or
Potential Event of Default" in respect of the representation
given by Party B only.
(ii) Section 5(a)(iv) is hereby amended by the insertion of the words
"specified in Section 3" after the words "A representation".
(s) TRANSFERS
Section 7 of this Agreement shall be deleted in its entirety and
replaced by the following:
"(i) Without prejudice to Section 6(b)(ii) as amended in the
Schedule, Party A may transfer all its interest and obligations
in and under this Agreement to any other entity whose long-term,
unguaranteed, unsecured and unsubordinated debt obligations are
then rated not less than AA- by Standard & Poor's, Aa3 by
Moody's and AA- by Fitch (or its equivalent by any substitute
rating agency) or to an entity whose obligations under this
Agreement are guaranteed by an entity whose long-term,
unguaranteed, unsecured and unsubordinated debt obligations
14
are then rated not less than AA- by Standard & Poor's, Aa3 by
Moody's and AA- by Fitch (or its equivalent by any substitute
rating agency) subject to the prior written confirmation from
Standard & Poor's, Moody's and Fitch that the then current
ratings of the Notes will not be adversely affected and to
providing prior written notification to the Note Trustee.
(ii) Neither this Agreement nor any interest or obligation in or
under this Agreement may be transferred by Party B to any other
entity other than the Note Trustee. For the avoidance of doubt,
the prohibition of transfer by Party B contained in this
sub-paragraph includes prohibition of transfer pursuant to
Sections 6(b)(ii) and 6(b)(iii) of the Agreement."
(t) CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement shall have no right under
the Contracts (Rights of Third Parties) Act 1999 to enforce any of its
terms but this shall not affect any right or remedy of a third party
which exists or is available apart from that Act.
15
SABW DRAFT 1-27 AUGUST 2002
(SERIES 2 CLASS A NOTES)
From: [______________]
To: Granite Mortgages 02-2 plc
Fifth Floor
100 Wood Street
London
EC2V 7EX
Attention: Securitisation Team, Risk Operations
To: The Bank of New York
One Canada Square
48th Floor
London
E14 5AL
Attention: Corporate Trust (Global Structured Finance)
[____] September, 2002
Dear Sirs,
RE: CROSS CURRENCY SWAP TRANSACTIONS RELATING TO GRANITE MORTGAGES 02-2 PLC
U.S. $1,100,000,000 SERIES 2 CLASS A NOTES DUE JANUARY 2043
The purpose of this letter is to confirm the terms and conditions of the swap
transactions entered into between us on the Trade Date specified below (the
"SWAP TRANSACTIONS"). This letter constitutes a "CONFIRMATION" as referred to in
the 1992 ISDA Master Agreement (Multicurrency-Cross Border) entered into between
us and both of you on the date hereof as amended and supplemented from time to
time (the "Agreement").
The definitions and provisions contained in the 2000 ISDA Definitions as
published by the International Swaps & Derivatives Association, Inc. (the
"DEFINITIONS") are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
shall prevail. Any terms not otherwise defined herein or in the Definitions
shall have the meanings given to them in the Master Definitions Schedule as
amended and restated by (and appearing in Appendix 1 to) the Master Definitions
Schedule Third Amendment Deed executed by, among others, the Note Trustee on
[_____] September 2002 and the Issuer Master Definitions Schedule signed for the
purposes of identification by Sidley Austin Brown & Wood and Allen & Overy on
[___] September, 2002 (as the same have been and may be amended, varied or
supplemented from time to time with the consent of the parties hereto). The
Issuer Master Definitions Schedule specified above shall prevail to the extent
that it conflicts with the Master Definitions Schedule.
1 This Confirmation supplements, forms part of, and is subject to, the
Agreement. All provisions contained in, incorporated in, or incorporated
by reference to, the Agreement shall govern this Confirmation except as
expressly modified below.
2 The terms of the particular Swap Transactions to which this Confirmation
relates are as follows:
Party A: [_________]
Party B: Granite Mortgages 02-2 plc
Trade Date: [_________] September, 2002
Effective Date: [_________] September, 2002
Termination Date: The earlier of (i) the Payment Date
falling in January 2008 and (ii) the
date on which the Series 2 Class A Notes
are redeemed or repaid in full
Payment Date: Each Payment Date in respect of the
Series 2 Class A Notes
EUR Amortisation Amount: in respect of a Payment Date, the
amount (in EUR) to be applied in
repayment of the principal amount of
the Series 2 Class A Notes on such
Payment Date as notified to the
Calculation Agent by the Cash
Manager
Exchange Rate: GBP 1.00:EUR [_________]
A. FLOATING PAYMENTS
FLOATING AMOUNTS FOR PARTY A:
Floating Rate Payer: Party A
Party A Currency Amount: EUR 1,100,000,000
Party A Payment Dates: each Payment Date
Floating Rate Option: EUR-EURIBOR - Telerate
Designated Maturity: 3 months; except for the initial
Calculation Period which shall be
the linear interpolation of 3 and 4
months
Spread A for the Calculation [_________]% per annum
Periods up to and per annum
including the Calculation Period
ending immediately prior to the
Payment Date in January 2008:
2
Spread A for the Calculation [_________]% per annum
Periods from and per annum
including the Calculation Period
beginning on (and including) the
Payment Date in January 2008:
Party A Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The first day of each Calculation
Period
FLOATING AMOUNTS FOR PARTY B:
Floating Rate Payer: Party B
Party B Currency Amount: GBP [_________]
Party B Payment Dates: Each Payment Date
Floating Rate Option: GBP-LIBOR-BBA
Designated Maturity: 3 months except for the initial
Calculation Period which shall be
the linear interpolation of 3 and 4
months
Spread B for the Calculation [_________]% per annum
Periods up to and per annum
including the Calculation Period
ending immediately prior to the
Payment Date in [_________]:
Spread B for the Calculation [_________]% per annum
Periods from and per annum
including the Calculation Period
beginning on (and including) the
Payment Date in [_________] up
to and including the Calculation
Period ending immediately prior
to the Termination Date:
Party B Floating Rate Day Count Actual/365 (Fixed)
Fraction:
Reset Dates: the first day of each Calculation
Period
Calculation Agent: Party A
3
B. EXCHANGE:
Initial Exchange Date: Effective Date
Party A Initial Exchange Amount: Party B Currency Amount
Party B Initial Exchange Amount: Party A Currency Amount
Final Exchange Date: Termination Date
Party A Final Exchange Amount: Party A Currency Amount
Party B Final Exchange Amount: Party B Currency Amount
The Transactions referred to above are hereinafter referred to as the "PRINCIPAL
TRANSACTION"
C. CONDITIONAL INTEREST RATE AND CURRENCY TRANSACTIONS
The terms set out below are applicable to each of the additional interest rate
and currency Transactions (comprising the Additional Initial Exchanges Amounts
and Additional Final Exchange Amounts, Party A Additional Floating Amounts and
Party B Additional Floating Amounts set out below). The following terms reflect
such additional 60,000 Transactions each on the terms set out below and each
such Transaction shall be referred to in numerical sequence beginning with
"Transaction 1" through "Transaction 60,000" (together, the "CONDITIONAL
TRANSACTIONS") and such Transactions are to become effective on a sequential
basis, starting on the first Additional Initial Exchange Date on which the
conditions referred to below are satisfied for that Transaction.
The first Transaction shall be conditional upon the EUR Amortisation Amount for
any Payment Date being greater than or equal to the Party B Additional Currency
Amount (as defined below) (each a "FIRST CONDITION") and each subsequent
Transaction shall be conditional upon, (i) the First Condition having occurred,
(ii) the immediately preceding Transactions having become effective, and (iii)
the then relevant EUR Amortisation Amount less the aggregate of the Party A
Additional Initial Exchange Amounts of the preceding Transactions which have
become effective on (but not prior to) the relevant Additional Initial Exchange
Date equalling or exceeding the Party A Additional Initial Exchange Amount on
such Transaction.
On each Calculation Date, Party B shall notify Party A as to the EUR
Amortisation Amount and the Conditional Transactions in numerical order that are
then currently effective and are to become effective on the next Party A Payment
Date.
4
(1) ADDITIONAL INITIAL EXCHANGE AMOUNTS
AND ADDITIONAL FINAL EXCHANGE AMOUNTS
Additional Initial Exchange Date and the the Payment Date on which the
Effective Date: conditions referred to above for the
relevant Transaction comprising one
of the Conditional Transactions are
satisfied (being the "RELEVANT
PAYMENT DATE" for that Transaction)
Party A Additional Initial Exchange Amount: Party B Additional Currency Amount
Party B Additional Initial Exchange Amount: Party A Additional Currency Amount
Party A Additional Final Exchange Amount: Party A Additional Currency Amount
Party B Additional Final Exchange Amount: Party B Additional Currency Amount
Additional Final Exchange Date: Termination Date
(2) ADDITIONAL FLOATING AMOUNTS
PARTY A ADDITIONAL FLOATING AMOUNTS
Party A Additional Currency Amount: GBP [_________]
Party A Additional Floating Amount Payer: Party A
Party A Additional Floating Amount Payer each Payment Date following the
Payment Dates: Relevant Payment Date
Party A Additional Floating Rate Option: GBP - LIBOR - BBA
Designated Maturity: 3 months
Spread A for the Calculation Periods up [_________]% per annum
to and per annum including the
Calculation Period ending immediately
prior to the Payment Date in January
2008:
Spread A for the Calculation Periods [_________]% per annum
from and per annum including the
Calculation Period beginning on (and
including) the Payment Date in January
2008:
Party A Additional Floating Rate Day Count Actual/365 (Fixed)
Fraction:
Reset Dates: The first day of each Calculation
Period
5
PARTY B ADDITIONAL FLOATING AMOUNTS
Party B Additional Currency Amount: EUR 10,000
Party B Additional Floating Amount Payer: Party B
Party B Additional Floating Amount Payer each Party A Payment Date following
Payment Date: the Relevant Payment Date
Party B Additional Floating Rate Option: EUR - EURIBOR - Telerate
Designated Maturity: 3 months
Spread B For the Calculation Period up [_________]% per annum
to and per annum including the
Calculation Period ending immediately
prior to the Payment Date in January
2008:
Spread B for the Calculation Period from [_________]% per annum
and per annum including the Calculation
Period beginning on (and including) the
Payment Date in January 2008:
Party B Additional Floating Rate Day Count Actual/360
Fraction:
Reset Dates: the first day of each Calculation
Period
(3) ACCOUNT DETAILS:
PAYMENTS TO PARTY A:
Account for Payments in EUR: [_________]
Account for Payments in GBP: [_________]
PAYMENTS TO PARTY B:
Account for Payments in EUR: Citibank, N.A., London
Agency and Trust
S.W.I.F.T. CITIGB2L
for further credit to
A/C Granite Mortgages 02-2 plc
A/C 10456853.
6
Account for Payments in GBP: Citibank N.A., London
8378088
Agency and Trust
Sort Code 18-50-08
for further credit to
A/C Granite Mortgages 02-2 plc
A/C 10456845.
(4) NOTICE DETAILS:
Party A: [_________]
Address: [_________]
Facsimile Number: [_________]
Attention: [_________]
Party B: Granite Mortgages 02-2 plc
Address: Fifth Floor
100 Wood Street
London
EC2V 7EX
With a copy to: Northern Rock plc
Northern Rock House
Gosforth
Newcastle upon Tyne
NE3 4PL
Facsimile Number: 44-191-279-4694
Attention: Keith M. Currie
With a copy to the The Bank of New York
Note Trustee:
Address: One Canada Square
48th Floor
London
E14 5AL
Facsimile Number: 020 7964 6061
(5) OFFICES: The Office of Party A for each of
the Transactions evidenced by this
Confirmation is London.
7
(6) MISCELLANEOUS:
(a) Section 2(c)(ii) of the Agreement will not apply to the Transactions
evidenced by this Confirmation.
8
Yours faithfully,
[PARTY A]
By:
Name:
Title:
Confirmed as of the date first written:
GRANITE MORTGAGES 02-2 PLC
By:
Name:
Title:
THE BANK OF NEW YORK
as Note Trustee
By:
Name:
Title: