EXHIBIT 10.49
(MULTICURRENCY -- CROSS BORDER)
[ISDA LOGO]
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of 3 DECEMBER 2003
BNP Paribas ABN 23 000 000 117 ("Party A") Australian Railroad Group Pty Ltd
____________________________________ and ABN 68 080 579 308 ("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 to 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, in 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(e) or (f)) made or repeated or
deemed to have been made or repeated by the party or any
Credit Support Provider of such party in this Agreement or any
Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or
deemed to have been made or repeated;
(v) DEFAULT UNDER SPECIFIED TRANSACTION. The party, any
Credit Support Provider of such party or any applicable
Specified Entity of such party (1) defaults under a Specified
Transaction and, after giving effect to any applicable notice
requirement or grace period, there occurs a liquidation of, an
acceleration of obligations under, or an early termination of,
that Specified Transaction, (2) defaults, after giving effect
to any applicable notice requirement or grace period, in
making any payment or delivery due on the last payment,
delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default
continues for at least three Local Business Days if there is
no applicable notice requirement or grace period) or (3)
disaffirms, disclaims, repudiates or rejects, in whole or in
part, a Specified Transaction (or such action is taken by any
person or entity appointed or empowered to operate it or act
on its behalf);
(vi) CROSS DEFAULT. If "Cross Default" is specified in the
Schedule as applying to the party, the occurrence or existence
of (1) a default, event of default or other similar condition
or event (however
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 end 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)(l), (3), (5), (6) or, to the extent analogous thereto, (8),
and as of the time immediately preceding the institution of the
relevant proceeding or the presentation of the relevant petition upon
the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto,
(8).
(b) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
(i) NOTICE. If a Termination Event occurs, an Affected
Party will, promptly upon becoming aware of it, notify the
other party, specifying the nature of that Termination Event
and each Affected Transaction and will also give such other
information about that Termination Event as the other party
may reasonably require.
(ii) TRANSFER TO AVOID TERMINATION EVENT. If either an
Illegality under Section 5(b)(i)(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.
(e) 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 farther 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 me
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.
ISDA(R) 1992
10
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 to converting the currency so tendered into the Contractual
Currency, of the full amount 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.
ISDA(R) 1992
11
9. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) SURVIVAL OF OBLIGATIONS. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) REMEDIES CUMULATIVE. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) COUNTERPARTS AND CONFIRMATIONS.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including
by facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of
each Transaction from the moment they agree to those terms (whether
orally or otherwise). A Confirmation shall be entered into as soon as
practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of
telexes or by an exchange of electronic messages on an electronic
messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that
any such counterpart, telex or electronic message constitutes a
Confirmation.
(f) NO WAIVER OF RIGHTS. A failure or delay in exercising any right, power
or privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any tight, 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 bold 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
ISDA(R) 1992
12
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
ISDA(R) 1992
13
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.
ISDA(R) 1992
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"DEFAULTING PARTY" has the meaning specified in Section 6(a).
"EARLY TERMINATION DATE" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"EVENT OF DEFAULT" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"ILLEGALITY" has the meaning specified in Section 5(b).
"INDEMNIFIABLE TAX" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"LAW" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"LAWFUL" and "UNLAWFUL" will be construed accordingly.
"LOCAL BUSINESS DAY" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"LOSS" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"MARKET QUOTATION" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have
ISDA(R) 1992
15
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.
ISDA(R) 1992
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"SPECIFIED INDEBTEDNESS" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"SPECIFIED TRANSACTION" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"STAMP TAX" means any stamp, registration, documentation or similar tax.
"TAX" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"TAX EVENT" has the meaning specified in Section 5(b).
"TAX EVENT UPON MERGER" has the meaning specified in Section 5(b).
"TERMINATED TRANSACTIONS" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (of, 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 Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market
ISDA(R) 1992
17
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.
BNP Paribas Australian Railroad Group Pty Ltd
- --------------------------- ---------------------------------
(Name of Party) (Name of Party)
By: /s/ Prema Balakrishnan /s/ Angela Flannery
---------------------------- -----------------------------
Name: Prema Balakrishnan Name: Angela Flannery
Title: Head Project Finance & Utilities Title: Attorney
Date: Date: 3 December 2003
By: /s/ Kevin Jamieson
----------------------------
Kevin Jamieson
Director Project Finance & Utilities
ISDA(R) 1992
18
SCHEDULE
to the
ISDA Master Agreement
dated as of 3 December 2003
between
BNP PARIBAS, ABN 23 000 000 117 ("PARTY A")
and
AUSTRALIAN RAILROAD GROUP PTY LTD, ABN 68 080 579 308 ("PARTY B")
PART 1: TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" will not apply to Party A or to Party B.
(b) "SPECIFIED TRANSACTION" will have the meaning specified in
Section 14 of this Agreement.
(c) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply
to Party A and to Party B.
"SPECIFIED INDEBTEDNESS" means any obligation (whether present
or future, contingent or otherwise, as principal or surety or
otherwise) in respect of money borrowed or raised (other than
deposits received in the ordinary course of a party's banking
business) or under any finance lease, redeemable preference
share, letter of credit, Specified Transaction, guarantee or
indemnity.
"THRESHOLD AMOUNT" means, in the case of Party A, A$50,000,000
or its equivalent in any other currency or currencies and, in
the case of Party B, A$25,000,000 or its equivalent in any
other currency or currencies.
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv)
will apply to Party A and to Party B.
(e) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a)
will not apply to Party A or Party B.
(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e)
of this Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(g) "TERMINATION CURRENCY" means Australian dollars.
(h) ADDITIONAL TERMINATION EVENT will not apply.
PART 2: TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS
For the purpose of Section 3(e) of this Agreement, each of
Party A and Party B represent that 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
1
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 under Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in
Section 4(a)(i) or 4(a)(iii) of this Agreement and
the accuracy and effectiveness of any document
provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party
contained in Section 4(d) of this Agreement.
Provided it will not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not
deliver a form or document under Section 4(a)(iii) of this
Agreement because of material prejudice to its legal or
commercial position.
(b) PAYEE TAX REPRESENTATIONS
For the purposes of Section 3(f) of this Agreement:
(i) Party A makes the following representation:
Though it is not a resident of Australia for the
purposes of the Australian income tax legislation, it
does derive payments and pay taxes in Australia as a
business with a permanent establishment of itself in
that country and it does not derive payments under
this Agreement in part or in whole in carrying on a
business in a country outside Australia at or through
a permanent establishment of itself in such other
countries.
(ii) Party B makes the following representation:
It is an Australian resident and does not derive the
payments under this Agreement in part or in whole in
carrying on a business in a country outside Australia
at or through a permanent establishment of itself in
such other countries.
PART 3: AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and 4(a)(ii) of this Agreement, each party
will deliver the following documents, as applicable, to the other party or as
directed:
(a) TAX FORMS, DOCUMENTS OR CERTIFICATES TO BE DELIVERED ARE: Any form,
document or certificate requested pursuant to Section 4(a)(iii) of this
Agreement.
PARTY REQUIRED TO DELIVER: Party A and Party B
DATE BY WHICH TO BE DELIVERED: On the earlier of (i) learning that such
form, document or certificate is required and (ii) promptly following a
reasonable demand by the other party.
(b) OTHER DOCUMENTS TO BE DELIVERED ARE: A list of authorised signatories,
including specimen signatures, for the party and evidence reasonably
satisfactory to the other party of the due authorisation of the
signatories to this Agreement and each Confirmation and any other
notice or communication in relation to this Agreement on behalf of the
party.
PARTY REQUIRED TO DELIVER: Party A and Party B.
DATE BY WHICH TO BE DELIVERED: On execution of this Agreement, when the
list of signatories is updated and at any other time on the reasonable
request of the other party.
2
Each of the foregoing documents is covered by the representation contained in
Section 3(d) of this Agreement.
PART 4: MISCELLANEOUS
(a) (ADDRESS FOR NOTICES) For the purpose of Section 12(a) the notice
details of the parties are as follows:
PARTY A
Notices or communications to Party A with respect to each Transaction
shall be sent to the address of the relevant Office set forth below or
as specified in the relevant Confirmation or as otherwise notified by
Party A to Party B. In addition, copies of each notice or communication
given to Party A pursuant to Section 5 or 6 of this Agreement shall be
sent to BNP Paribas, London Branch, 10 Harewood Avenue, London NW1 6AA,
and BNP Paribas, Hong Kong Branch, 10/F, Central Tower, 28 Queen's Road
Central Hong Kong, Attn: Legal and Transaction Management Group.
Address: BNP Paribas Sydney Branch
60 Castlereagh Street
GPO Box 269
Sydney NSW 2000
Attention: Head of Legal and Transaction
Management Group - Hong Kong
Facsimile: (852) 2108 5810
Telephone: (852) 2108 5110
Telex: 65388
Answerback: BNPID HX
PARTY B
Address: 2-10 Adams Drive
WELSHPOOL WA 6106
Attention: John Cleland
Facsimile: +61 8 9212 2730
Electronic Messaging System: JCleland@arg.net.au
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: BNP Paribas Sydney Branch, 60
Castlereagh Street, Sydney NSW 2000.
Party B appoints as its Process Agent: Not applicable.
(c) OFFICES. The provisions of Section 10(a) will not apply to this
Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
(i) Party A is not a Multibranch Party.
(ii) Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
The failure by Party A to perform its
3
obligations as Calculation Agent hereunder shall not be construed as an
Event of Default or Termination Event.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document.
Party A: Not applicable.
Party B: The Common Terms Deed.
(g) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A: Not applicable.
Credit Support Provider means in relation to Party B:
(i) ARG Financing Pty Ltd, ACN 094 806 078, Australia Southern
Railroad Pty Limited, ACN 079 444 296, AWR Holdings WA Pty
Ltd, ACN 094 693 562, Australia Western Railroad Pty Ltd, ACN
094 792 275, WestNet Rail Pty Ltd, ACN 094 721 301, Australian
Railroad Group Employment Pty Ltd, ACN 087 891 601, WestNet
NarrowGauge Pty Ltd, ACN 094 736, 900 and WestNet
StandardGauge Pty Ltd, ACN 094 819 360, in each case during
the period that person is a "Guarantor" under the Common Terms
Deed; and
(ii) any other entity agreed in writing by the parties to be a
Credit Support Provider for the purposes of this Agreement.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of New South Wales. Section 13(b)(i) is
deleted and replaced with:
"submits to the non-exclusive jurisdiction of the courts of
New South Wales."
(i) NETTING OF PAYMENTS. Section 2(c)(ii) of this Agreement will apply in
respect of all Transactions.
(j) "AFFILIATE" has the meaning given in Section 14 of this Agreement.
Party A will be deemed to have no Affiliates for the purposes of
Section 3(c).
Party B's Affiliates for the purposes of Section 3(c) are deemed to be
ARG Financing Pty Ltd, ACN 094 806 078, Australia Southern Railroad Pty
Limited, ACN 079 444 296, AWR Holdings WA Pty Ltd, ACN 094 693 562,
Australia Western Railroad Pty Ltd, ACN 094 792 275, WestNet Rail Pty
Ltd, ACN 094 721 301, Australian Railroad Group Employment Pty Ltd, ACN
087 891 601, WestNet NarrowGauge Pty Ltd, ACN 094 736, 900 and WestNet
StandardGauge Pty Ltd, ACN 094 819 360, in each case during the period
that person is a "Guarantor" under the Common Terms Deed, together with
any other entity agreed in writing by the parties to be an Affiliate
for the purposes of this Agreement.
(k) TRANSACTION DOCUMENTS. Party A and Party B irrevocably agree that this
Agreement and each Confirmation is a "Hedging Agreement" for the
purposes of the Common Terms Deed.
4
PART 5: OTHER PROVISIONS
5.1 DEFINITIONS AND INTERPRETATION:
(a) (DEFINITIONS)
(i) Insert the following definition in Section 14:
"COMMON TERMS DEED" means the deed so entitled dated
on or about 1 December 2003 between Party B, Party A
and others."
(ii) Unless otherwise defined in this Agreement, or the
context otherwise requires, expressions defined in
the Common Terms Deed have the same meaning when used
in this Agreement and will continue to apply
notwithstanding any termination or avoidance of the
Common Terms Deed.
(iii) ISDA DEFINITIONS. The definitions and provisions
contained in the respective ISDA Definitions
specified below are incorporated into each
Confirmation of a Transaction between the parties
which is, or is described in its Confirmation as
being, of the type specified below. If there is an
inconsistency between those definitions and
provisions and any such Confirmation, the
Confirmation prevails.
TYPES OF TRANSACTIONS ISDA DEFINITIONS
- --------------------- ----------------
Currency option transaction or FX 1998 FX and Currency Option Definitions
transaction as published by International Swaps and
Derivatives Association, Inc., the
Emerging Markets Traders Association and
the Foreign Exchange Committee.
Forward rate agreement 2000 ISDA Definitions and Annex to the
2000 ISDA Definitions as published by
International Swaps and Derivatives
Association Inc. (the "2000 ISDA
DEFINITIONS").
In the event of any inconsistency between the
provisions of this Agreement and any of the above
definitions, this Agreement will prevail.
(b) (INTERPRETATION)
Any reference to a:
(i) "SWAP TRANSACTION" in the 2000 ISDA Definitions is
deemed to be a reference to a "Transaction" for the
purpose of interpreting this Agreement or any
Confirmation; and
(ii) "TRANSACTION" in this Agreement or any Confirmation
will be taken to be a reference to a "Swap
Transaction" for the purpose of interpreting the 2000
ISDA Definitions.
5.2 PAYMENTS
(a) In Section 2(a)(i), add the following sentence:
5
"Each payment will be by way of exchange for the
corresponding payment or payments payable by the
other party."
(b) In Section 2(a)(ii), the first sentence is deleted and
replaced with the following sentence:
"Unless specified otherwise in this Agreement,
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, free of any set-off,
counterclaim, deduction or withholding (except as
expressly provided in this Agreement) and in the
manner customary for payment in the required
currency."
5.3 GENERAL CONDITIONS
A new Section 2(a)(iv) is inserted as follows:
"(iv) The condition precedent in section 2(a)(iii)(1) does
not apply to a payment or delivery due to be made to
a party if it has satisfied all its payment and
delivery obligations under section 2(a)(i) of this
Agreement and has no future payment or delivery
obligations, whether absolute or contingent, under
Section 2(a)(i)."
Add the following new sentence to Section 2(b):
"Each new account so designated must be in the same tax
jurisdiction as the original account."
5.4 REPRESENTATIONS
(a) Section 3(a)(v) is amended by inserting immediately after the
words "creditors' rights generally" the following:
"(including in the case of a party being a bank
authorised to carry on banking business in the
Commonwealth of Australia, Section 16 or (as
applicable) Section 13A(3) of the Banking Act 1959
(Commonwealth) and Section 86 of the Reserve Bank Act
1959 (Commonwealth)".
(b) Section 3 is amended by adding the following paragraph (g) at
the end of it:
"(g) RELATIONSHIP BETWEEN PARTIES:
(i) NON-RELIANCE. It is acting as principal and
not as agent or in any other capacity,
fiduciary or otherwise, and it has made its
own independent decisions to enter into that
Transaction and as to whether that
Transaction is appropriate or proper for it
based upon its own judgment and upon advice
from such advisors as it has deemed
necessary. It is not relying on any
communication (written or oral) of the other
party as investment advice or as a
recommendation to enter into that
Transaction. 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 written or
oral assurance or guarantee as to the
expected results of that Transaction, and no
communication (written or
6
oral) received from the other party shall be
deemed to be an 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
(on its own behalf or through independent
professional advice), and understands and
accepts the terms, conditions and risks of
that Transaction. It is also capable of
assuming, and assumes, the financial and
other risks of that Transaction.
(iii) STATUS OF PARTIES. The other party is not
acting as a fiduciary or an advisor for it
in respect of that Transaction."
5.5 SET-OFF
A new Section 6(f) is inserted as follows:
"Any amount (the "EARLY TERMINATION AMOUNT") payable to one
party (the "PAYEE") by the other party (the "PAYER") under
Section 6(e), in circumstances where there is a Defaulting
Party or an Affected Party, will, at the option of the party
("X") other than the Defaulting Party or the Affected Party
(and without prior notice to the Defaulting Party or the
Affected Party), be reduced by its set-off against any
amount(s) (the "OTHER AGREEMENT AMOUNT") payable (whether at
such time or in the future or upon the occurrence of the
contingency) by the Payee to the Payer (irrespective of the
currency, place of payment or booking office of the
obligation) under any other agreement(s) (the "OTHER
AGREEMENT") between the Payee and the Payer (and the Other
Agreement Amount will be discharged pro tanto). X will give
notice to the other party of any set-off so effected.
For this purpose, either the Early Termination Amount or the
Other Agreement Amount (or the relevant part of such amounts)
may be converted at the applicable prevailing exchange rate
into the currency in which the other is denominated.
If an obligation is unascertained, X may in good faith
estimate that obligation and set-off in respect of the
estimate, subject to the relevant party accounting to the
other when the obligation is ascertained.
Nothing in this paragraph shall be effective to create a
charge or other security interest. This Section shall be
without prejudice and in addition to any right of set-off
combination of account, lien or other right to which any party
is at any time otherwise entitled (whether by operation of
law, contract or otherwise)."
5.6 NOTICES
(a) Section 12(a)(iii) is replaced with:
"(iii) if sent by facsimile transmission, at the local time
(in the place of receipt of that facsimile) which
then equates to the time at which that facsimile was
sent as shown on the transmission report which is
produced by the machine from which that facsimile is
sent and which confirms transmission of that
facsimile in its entirety;"
(b) Insert an additional Section 12(a)(vi) as follows:
"(vi) if sent by prepaid post, on the second day after
posting."
7
5.7 RECORDED CONVERSATIONS
Each party:
(a) consents to the electronic recording of the telephone
conversations of trading and marketing personnel of that party
in connection with this Agreement or any potential
Transaction;
(b) agrees to obtain any necessary consent of, and give notice of
such recording to, such personnel of it; and
(c) consents to such recording being used as evidence in court
proceedings or arbitration.
5.8 POTENTIAL EVENT OF DEFAULT
The references to "Potential Event of Default" in Sections 2(a)(iii)
and 3(b) of this Agreement shall be disregarded.
5.9 FRA BASIS
Unless expressly agreed otherwise in respect of a particular
Transaction, the following provisions apply to any Transaction which
is, or is described in its Confirmation to be, an AUD or NZD forward
rate agreement ("FRA"), or an AUD or NZD rate cap transaction, rate
collar transaction or rate floor transaction.
For the purpose of the following provisions, the rate cap part of a
rate collar transaction is to be treated as a rate cap transaction and
the rate floor part of a rate collar transaction is to be treated as a
rate floor transaction.
Despite sections 6 and 8.4(b) of the 2000 ISDA Definitions, on each
Payment Date:
(a) in the case of an FRA:
(i) if the Floating Rate exceeds the Fixed Rate, then the
Floating Rate Payer must pay the absolute value of
the FRA Amount to the Fixed Rate Payer; and
(ii) if the Fixed Rate exceeds the Floating Rate, then the
Fixed Rate Payer must pay the FRA Amount to the
Floating Rate Payer;
(b) in the case of a rate cap transaction, if the Floating Rate
exceeds the Fixed Rate, then the Floating Rate Payer (Seller)
must pay the absolute value of the FRA Amount to the Fixed
Rate Payer (Buyer). (No corresponding payment is due from the
Fixed Rate Payer to the Floating Rate Payer);
(c) in the case of a rate floor transaction, if the Fixed Rate
exceeds the Floating Rate, then the Floating Rate Payer
(Seller) must pay the FRA Amount to the Fixed Rate Payer
(Buyer). (No corresponding payment is due from the Fixed Rate
Payer to the Floating Rate Payer).
The "FRA AMOUNT" is calculated in accordance with the following
formula:
CA X 36500 X [1/36500+(R(1)X ND) - 1/36500 + (R(2) X ND)]
where:
8
CA = Calculation Amount
R(1) = in the case of an FRA, the Floating Rate on the
Payment Date (expressed as a number and not a
percentage, eg 8.1875 not 8.1875%), or in the case of
a rate cap transaction or a rate floor transaction,
the Floating Rate (plus or minus the Spread, if any)
calculated disregarding section 6.2(a)(i) and section
6.2(a)(ii) of the 2000 ISDA Definitions.
R(2) = in the case of an FRA, the Fixed Rate (expressed as a
number and not a percentage), or in the case of a
rate cap transaction or a rate floor transaction, the
cap rate or the floor rate respectively.
ND = the actual number of days in the Calculation Period.
Unless otherwise agreed, the Relevant Rate:
(a) in the case of A$ FRAs is "AUD-BBR-BBSW"; and
(b) in the case of NZD FRAs is "NZD-BBR-FRA".
5.10 SPOT RATE
The time for determining a Spot Rate for the purpose of exercising an
FX option as per Section 1.16(e) of the 1998 FX and Currency Option
Definitions published by International Swaps and Derivatives
Association Inc is to be determined, for a European option, as at the
Expiration Time, and for an American option or a Bermuda option, as at
the time when the Notice of Exercise is given.
5.11 TAX EVENT
Section 5(b)(ii) is amended by deleting the words ", or there is a
substantial likelihood that it will," from line four thereof.
5.12 FORCE MAJEURE
Section 5(b) is amended by including the following:
"(vi) FORCE MAJEURE EVENT. After giving effect to any applicable
provision, disruption, fallback or remedy specified in, or
pursuant to, the relevant Confirmation or elsewhere in this
Agreement, by reason of force majeure or act of state
occurring after a Transaction is entered into, on any day:-
(1) the Office through which such party (which will be the
Affected Party) makes and receives payments or deliveries with
respect to such Transaction is prevented from performing any
absolute or contingent obligation to make a payment or
delivery in respect of such Transaction, from receiving a
payment or delivery in respect of such Transaction or from
complying with any other material provision of this Agreement
relating to such Transaction (or would be so prevented if such
payment, delivery or compliance were required on that day), or
it becomes impossible or impracticable for such Office so to
perform, receive or comply (or it would be impossible or
impracticable for such Office so to perform, receive or comply
if such payment, delivery or compliance were required on that
day); or
(2) such party or any Credit Support Provider of such party
(which will be the Affected Party) is prevented from
performing any absolute or contingent obligation to make a
payment or delivery which such party or Credit Support
Provider has under any Credit Support Document relating to
such Transaction, from receiving a payment or delivery
9
under such Credit Support Document or from complying with any
other material provision of such Credit Support Document (or
would be so prevented if such payment, delivery or compliance
were required on that day), or it becomes impossible or
impracticable for such party or Credit Support Provider so to
perform, receive or comply if such payment, delivery or
compliance were required on that day),
so long as the force majeure or act of state is beyond the
control of such Office, such party or such Credit Support
Provider, as appropriate, and such Office, party or Credit
Support Provider could not, after using all reasonable efforts
(which will not require such party or Credit Support Provider
to incur a loss, other than immaterial, incidental expenses),
overcome such prevention, impossibility or impracticability;"
The following consequential amendments will also be made:
(i) Section 5(b) will be amended by adding "or a Force Majeure
Event if the event is specified in (vi) below" after
"specified in (iii) below" in the fourth line;
(ii) Section 5(c) will be amended by adding the following sentence
at the end, "If an event or circumstance which would otherwise
constitute or give rise to an Event of Default also
constitutes a Force Majeure Event, it will be treated as a
Force Majeure Event and will not constitute an Event of
Default.";
(iii) Section 6(b)(ii) will be amended by adding the words ", a
Force Majeure Event under Section 5(b)(vi)" immediately after
the words "If either an Illegality under Section 5(b)(i)(1)"
in the first sentence;
(iv) Section 6(b)(iii) will be amended by adding the words ", a
Force Majeure Event under Section 5(b)(vi)" immediately after
the words "If an Illegality under Section 5(b)(i)(1)" at the
start of the sentence;
(v) Section 6(b)(iv)(2) will be amended by adding the words ", a
Force Majeure Event under Section 5(b)(vi)" immediately after
the words "An Illegality under Section 5(b)(i)(2)," at the
start of the sentence;
(vi) Section 6(b)(iv) will be amended by adding the words "or a
Force Majeure Event," immediately after the words "either
party in the case of an Illegality";
(vii) The definition of "Affected Transactions" in Section 14 will
be amended by adding the words "a Force Majeure Event,"
immediately after the words "consisting of an Illegality,";
(viii) Section 14 will be amended by the inclusion of a new
definition as follows:
""Force Majeure Event" has the meaning specified in Section
5(b)(vi)"; and
(ix) The definition of "Termination Event" is amended to include
the words "a Force Majeure Event" after the word "Illegality"
in the first line.
5.13 DEFAULT INTEREST
Section 2(e) of this Agreement is hereby amended by the deletion of the
final sentence and the substitution of the following therefor:
"If, prior to the occurrence or effective designation of an Early
Termination Date, a party defaults in the performance of any obligation
required to be settled by delivery, it will indemnify the other party
on demand for any costs, losses or expenses (including the costs of
borrowing the shares or other equity securities, bonds or other debt
securities or other
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instrument or commodity as the case may be, if applicable) resulting
from such default. A certificate signed by the deliveree setting out
such costs, losses or expenses in reasonable detail will be sufficient
evidence that they have been incurred unless the contrary is proved."
5.14 DEFAULT CAUSED BY ILLEGALITY
An Event of Default pursuant to Section 5(a)(vi) shall not be deemed to
have occurred if it is caused by an event that would constitute an
Illegality if it occurred in connection with this Agreement and there
has been no acceleration of the Specified Indebtedness affected by any
such event.
5.15 EVENTS OF DEFAULT
Section 5 (a) of the Agreement is amended by inserting the following at
the end of subsection (vii) (3) thereof:
"or a notice is sent convening a meeting to propose a voluntary
arrangement of its creditors"
5.16 ESCROW
If, by reason of the time difference between the cities in which
payments are to be made, it is not possible for simultaneous payments
to be made on any date on which both parties are requested to make
payments hereunder, either party (the "Appointing Party") may at its
option and in its sole discretion notify the other party that payments
on that date shall be made in escrow. In this case deposit of the
payment due earlier on that date shall be made by 2.00 pm (local time
at the place for earlier payment) on that date with an escrow agent
(the "Escrow Agent") selected by the Appointing Party, accompanied by
irrevocable payment instructions (i) to release the deposited payment
to the intended recipient upon receipt by the Escrow Agent of the
required deposit of the corresponding payment from the other party on
the same date accompanied by irrevocable payment instructions to the
same effect or (ii) if the required deposit of the corresponding
payment is not made on the same date, to return the payment deposited
to the party that paid it into escrow. The Appointing Party shall pay
the costs of the escrow arrangements and shall cause those arrangements
to provide that the intended recipient of the payment due to be
deposited first shall be entitled to interest on that deposited payment
for each day in the period of its deposit at the rate offered by the
Escrow Agent for that day for overnight deposits (at 11:00 am local
time on that day) if that payment is not released by 5:00pm local time
on the date it is deposited for any reason other than the intended
recipient's failure to make the escrow deposit it is required to make
hereunder in a timely fashion. Furthermore, the Appointing Party shall
bear the risk of any failure of the Escrow Agent fully and promptly to
perform its obligations as contemplated in this provision. Any amounts
payable under this Agreement by the Appointing Party which are not
received by the other party on the due date shall remain due and
payable by the Appointing Party as of such date. Any amounts due from
the other party which have been paid to the Escrow Agent in accordance
with this provision (and any instructions in connection therewith given
by the Appointing Party) shall be treated as having been paid by such
other party and received by the Appointing Party as of the date on
which they were paid to the Escrow Agent."
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BNP PARIBAS, ABN 23 000 000 117 AUSTRALIAN RAILROAD GROUP PTY LTD,
ABN 68 080 579 308
By: /s/ Prema Balakrishnan By: /s/ Angela Flannery
--------------------------------- ------------------------------
Name: Prema Balakrishnan Name: Angela Flannery
Title: Head Project Finance & Utilities Title: Attorney
By: /s/ Kevin Jamieson
---------------------------------
Name: Kevin Jamieson
Title: Director Project Finance & Utilities
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