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Exhibit 4g
NATIONAL CITY
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TO: The Standard Products Co.
FAX NO: (216) 281-8122
ATTN: Charles F. Nagy, Treasurer
DATE: November 10, 1993
CONFIRMATION
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This confirmation sets out the terms and conditions of the swap entered into
between us on the Trade Date specified below. This constitutes a confirmation
as referred to in the Interest Rate & Currency Exchange Agreement specified
below.
The definitions and provisions contained in the 1991 ISDA Definitions (as
published by the International Swap Dealers Association Inc.) are incorporated
into this confirmation. In the event of any inconsistency between those
definitions and provisions and this confirmation, this confirmation will
govern.
This confirmation supplements, forms part of, and is subject to, the Interest
Rate and Currency Exchange Agreement to be negotiated (the Agreement) between
you and us. All provisions contained in the Agreement govern this confirmation
except as expressly modified below.
SCHEDULE
A) CURRENCY EXCHANGE TRANSACTION
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Fixed Rate Payer 1
Principal Amount: USD 25,350,256 (Amortizing per attached schedule)
Fixed Rate Payer 2
Principal Amount: FRF 150,000,000 (Amortizing per attached schedule)
Initial Exchange on
Effective Date: National City to pay Standard Products FRF 150,000,000
and Standard Products to pay National City USD
25,350,256
Exchange on Amortization
Dates and Maturity Date: See Attached Schedules
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Trade Date: November 12, 1993
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Effective Date: November 22, 1993
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Termination Date: November 22, 2000
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Fixed Rate Payer 1: National City Bank
Fixed Rate Payer 1
Principal Amount: USD 25,350,256 (Amortizing as per attached schedule)
Fixed Rate Payer 1
Payment Dates: The 22nd of May and November of each year from (and including) May 22, 1994 to
(and including) November 22, 2000. Subject to Business Day Convention.
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Fixed Rate 1: 5.80%
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Fixed Rate Payer 1
Day Count Fraction: 30/360 (No adjustment to period end dates)
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Compounding: Inapplicable
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Fixed Rate Payer 2: Standard Products
Fixed Rate payer 2
Principal Amount: FRF 150,000,000 (Amortizing as per attached schedule)
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Fixed Rate Payer 2
Payment Dates: The 22nd of May and November of each year from (and including) May 22, 1994
to (and including) November 22, 2003. Subject to Business Day Convention.
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Fixed Rate 2: 6,500
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Fixed Rate Payer 2
Day Count Fraction: 30/360 (No adjustment to period end dates)
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Compounding: Inapplicable
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Business Days: New York and Paris
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Governing Law: Laws of New York
________________________________________________________________________________
Initial Exchange Settlement Instructions:
National City Bank will wire transfer FRF 150,000,000 to:
Credit Lyonnais
Main Office, International Division
Boulevard des Italiens
75002
Paris, France
Account #0910000815
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Standard Products Co. will wire transfer USD 25,350,256 to
National City Bank
Natl City/Cleve/Inv.
ABA #041000124
Attention: Cindy Bracy
Inv. Ops./Swap Admins.
AMORTISATION SETTLEMENT INSTRUCTIONS:
Payments due National City Bank will be wire
transferred by Standard Products Co. to
Credit Lyonnais
Main Office, International Division
Boulevard des Italiens
75002
Paris, France
Account #0910000815
for the benefit of National City Bank, Cleveland
Payments due Standard Products will be wire transferred by National City Bank
to:
National City Bank
Cleveland, Ohio
Account No. 2000215
for the benefit of Standard Products Co.
Kindly confirm the above terms by signing this letter and returning it by
facsimile to National City Bank (216) 575-3355 BEFORE close of business today,
November 12, 1993.
Regards,
NATIONAL CITY BANK
By: /s/ William Mahnic
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William Mahnic, Vice President
THE STANDARD PRODUCTS, CO.
By: /s/ Charles F. Nagy
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Charles F. Nagy, Corporate Treasurer
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AMORTISATION SCHEDULE FOR USD25,350,256
(1)
Payment Principal Interest Total
Date Payments Payments Payments
------- --------- -------- --------
11/22/93 Effective Date And Exchange of Currencies
05/22/94 $0 $735,157 $735,157
11/22/94 $0 $735,157 $735,157
05/22/95 $0 $735,157 $735,157
11/22/95 $0 $735,157 $735,157
05/22/96 $0 $735,157 $735,157
11/22/96 $5,070,051 $735,157 $5,805,209
05/22/97 $0 $588,126 $588,126
11/22/97 $5,070,051 $588,126 $5,658,177
05/22/98 $0 $441,094 $441,094
11/22/98 $5,070,051 $441,094 $5,511,148
05/22/99 $0 $294,063 $294,063
11/22/99 $5,070,051 $294,063 $5,364,114
05/22/00 $0 $147,031 $147,031
11/22/00 $5,070,051 $147,031 $5,217,083
TOTALS $25,350,256 $7,351,574 $32,701,830
Payments
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AMORTISATION SCHEDULE FOR FRF150,000,000
(1)
Payment Principal Interest Total
Date Payments Payments Payments
------- --------- -------- --------
11/22/93 Effective Date And Exchange of Currencies
05/22/94 0 4,875,000 4,875,000
11/22/94 0 4,875,000 4,875,000
05/22/95 0 4,875,000 4,875,000
11/22/95 0 4,875,000 4,875,000
05/22/96 0 4,875,000 4,875,000
11/22/96 30,000,000 4,875,000 34,875,000
05/22/97 0 3,900,000 3,900,000
11/22/97 30,000,000 3,900,000 33,900,000
05/22/98 0 2,925,000 2,925,000
11/22/98 30,000,000 2,925,000 32,925,000
05/22/99 0 1,950,000 1,950,000
11/22/99 30,000,000 1,950,000 31,950,000
05/22/00 0 975,000 975,000
11/22/00 30,000,000 975,000 30,975,000
TOTALS 150,000,000 48,750,000 198,750,000
Payments
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Exhibit 4g (continued)
SCHEDULE
TO THE
INTEREST RATE AND CURRENCY EXCHANGE AGREEMENT
DATED AS OF NOVEMBER 12, 1993
Between National City Bank, Cleveland ("Party A") and The Standard Products Co.
("Party B").
PART I
TERMINATION PROVISIONS
In this Agreement:
1) "SPECIFIED ENTITY" means in relation to Part A for the purpose of:
Section 5(a)(iii) and (iv) and Section 5(b)(i), Inapplicable
Section 5(a)(v), Inapplicable
Section 5(a)(vi), Inapplicable
Section 5(a)(vii), Inapplicable
in relation to Party B for the purpose of:
Section 5(a)(iii) and (iv) and Section 5(b)(i), Inapplicable
Section 5(a)(v), Inapplicable
Section 5(a)(vi), Inapplicable
Section 5(a)(vii), Inapplicable
2) "SPECIFIED SWAP" means, in lieu of the meaning specified in Section
14, any currency and/or rate swap, cap, floor, or collar, currency
forward, currency exchange, forward rate, future rate, asset swap, or
commodity or securities-linked transaction or agreement, other
exchange or rate protection transaction or agreement or other similar
transaction or agreement (however designated), any combination of such
transactions or agreements, or any option with respect to any such
transaction or agreement, now existing or hereafter entered into
between Party A (or any applicable Specified Entity) and Party B (or
any applicable Specified Entity).
3) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply to Party
B.
If such provisions apply:
"SPECIFIED INDEBTEDNESS" will have the meaning set forth in Section 14.
"THRESHOLD AMOUNT" means aggregating more than $10,000,000 or its
equivalent in any other currency.
4) "TERMINATION CURRENCY" means United States Dollars for Party A and
French Francs for Party B.
5) The "CREDIT EVENT UPON MERGER" provisions of Section (b)(iv) will
apply to Party A and Party B.
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PART 2
TAX REPRESENTATIONS
1) PAYER TAX REPRESENTATION. For the purpose of Section 3(e), each party
required to make any payment pursuant to this Agreement represents to
the other 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)) to be made by it to the other party under this Agreement. In
making this representation, it may rely on:
a) the accuracy of any representation made by the other party
pursuant to Section 3(f);
b) the satisfaction of the agreement of
the other party contained in Section 4(a)(i) and the accuracy
and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i); and
c) the satisfaction of the agreement of the other party contained
in Section 4(d).
2) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f):
a) Each party represents to the other that each payment received
or to be received by it in connection with this Agreement
relates to the regular business operations of the party (and
not to an investment of the party).
b) Party A represents to Party B that it is a national banking
association organized under the laws of the United States of
America.
c) Party B represents to Party A that is a corporation organized
under the laws of the United States of America.
PART 3
DOCUMENTS TO BE DELIVERED
For the purpose of Section 4(a):
1) Tax forms, documents or certificates to be delivered are:
Each party agrees to complete, accurately and in a manner reasonable
satisfactory to the other party, and to execute, arrange for any
required certification of, and deliver to the other party (or to such
government or taxing authority as the other party reasonably directs),
any form or document that may be required or reasonably requested in
order to allow the other party to make a payment under this Agreement
without any deduction or withholding for or on account of any Tax or
with such deduction or withholding at a reduced rate, promptly upon
reasonable demand by the other party.
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2) Other documents to be delivered are:
a) Each party shall promptly deliver to the other party,
certified evidence of the authority, incumbency and specimen
signature of each authorized person executing any document on
its behalf in connection with this Agreement upon execution of
each document by any person.
b) Each party upon request shall promptly deliver to the other
party, a copy of its most recent Annual Report containing
consolidated financial statements, prepared in accordance with
accounting principles that are generally accepted for
institutions of its type in the jurisdiction of its
organization and certified by independent public accounts.
c) Each party upon request shall promptly deliver to the other
party, a copy of its most recent unaudited interim
consolidated financial statements prepared in accordance with
accounting principles that are generally accepted for
institutions of its type in the jurisdiction of its
organization in each case consistently applied.
d) Party B shall promptly deliver to Party A an opinion of
counsel substantially in the form of Annex A and such other
public information respecting to its condition, or operations,
financial or otherwise, as Party A may reasonably request from
time to time.
PART 4
MISCELLANEOUS
1) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York without reference to
choice of law doctrine.
2) "AFFILIATE" will have the meaning specified in Section 14.
3) MULTIBRANCH PARTY. For the purpose of Section 10:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
4) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):
Address for notices or communications to Party A:
Address: 1900 East Ninth Street,
Cleveland, Ohio 44114
Attention: Swap Desk #1402
Facsimile Transmission No.: (216) 566-1887
For all purposes.
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Address for notices or communications to Party B:
Address: Mr. Charles F. Nagy
Attention: 2130 West 110th St.
Facsimile Transmission No: Cleveland, Ohio 44102
(216) 281-8122
For all purposes.
5) CREDIT SUPPORT DOCUMENT. Details of the Credit Support Document
entered into with Party A, dated January 19, 1993.
6) NETTING OF PAYMENTS. "Net Payments - Corresponding Payment Dates"
will apply for the purpose of Section 2(c) with effect from the date
of this Agreement.
7) NOTICES. Section 12(a) is hereby amended by: (a) adding in the
fourth line thereof (i) after the word "received" the words "or by
facsimile or similar telecommunications device" and (ii) after the
word "telex" the words "or facsimile"; and (b) adding in the first
line of Clause (i) thereof after the word "courier" and before the
comma the words "or by facsimile or similar telecommunications
device".
PART 5
OTHER PROVISIONS
1) ISDA DEFINITIONS. This Agreement and each Swap Transaction are
subject to the 1991 ISDA Definitions (as published by the
International Swap Dealers Association, Inc.) (the "Definitions"), and
will be governed in all relevant respects by the provisions set forth
in the Definitions, without regard to any amendments thereto
subsequent to the date hereof. The provisions of the Definitions are
incorporated by reference herein, and shall be deemed a part of, this
schedule and each Confirmation, as if set forth in full in this
schedule or that Confirmation. The Calculation Agent for purposes of
the Definitions will be Party A.
2) INTERPRETATION. In the event of any inconsistency between the
provisions of this Schedule and the Definitions, this Schedule will
prevail. In the event of any inconsistency between the provisions of
this Schedule and the printed Agreement of which it forms a part, this
Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Schedule, such Confirmation
will prevail for the purpose of the relevant Swap Transaction.
3) CONFIRMATION. a Confirmation may be substantially in the form of the
letter or telex attached hereto as Exhibit I (or in such other form as
the parties may agree).
4) ADDITIONAL REPRESENTATIONS. Party B represents and warrants to Party
A that there has been no material adverse change in its financial
condition since the last day of the one year period covered by its
most recently prepared year end financial statement.
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5) AFFECTED PARTIES. For the purpose of Section 6(e) (Payments on Early
Termination), (a) both parties shall be deemed to be Affected Parties
in connection with the Termination Events described in Section 5(b)(i)
and (ii), so that payments on early termination shall be calculated as
provided in Section 6(e)(ii).
6) RECORD KEEPING. Each party represents and warrants to the other that
it shall maintain this Agreement, this Schedule and all Confirmations
issued pursuant hereto with its records of binding business
transactions.
7) BANKRUPTCY PAYMENTS. For purposes of calculating payments due in
respect of an Early Termination Date (including any payments under
Section 6(d) and any Unpaid Amounts), an Event of Default specified in
Section 5(a)(vii) of this Agreement (Bankruptcy) shall be treated as
if it were a Termination Event with the Defaulting Party as the
Affected Party and for such purposes the proviso to the definition of
"Settlement Amount" shall be deemed to be of no force and effect.
Such Event of Default treated as a Termination Event shall take
precedence over any other Event of Default which is existing at the
time of the designation or deemed occurrence of such Early Termination
Date.
NATIONAL CITY BANK
By: /s/ William Mahnic
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Title: Vice President
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Date: December 15, 1993
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The Standard Products Co.
By: /s/ Charles F. Nagy
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Title: Corporate Treasurer
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Date: February 18, 1994
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Annex A to Schedule
(Form of Opinion of Counsel for Party B)
(DATE)
National City Bank:
We have acted as counsel to_________________________________________________,
a_______________________corporation ("Party B") in connection with the
execution and delivery of the International Swap Dealers Association, Inc.
Interest Rate and Currency Exchange Agreement ("the Master Agreement") dated as
of ____________________, 19___ between National City Bank ("Party A") and Party
B. The Master Agreement is to be supplemented by confirmations of rate swap
transactions to be entered into by Party A and Party B from time to time (each
a "Confirmation") and the Master Agreement together with all such Confirmations
shall constitute one agreement.
In connection with this opinion, we have examined an executed copy of the Master
Agreement and the form of Confirmation attached thereto and such corporate
documents and records of Party B, certificates of public officials and officers
of Party B and such other documents as we have deemed necessary or appropriate
for the purposes of this opinion. In such opinion, we have assumed the
genuineness of all the signatures, the authenticity of all documents submitted
to us as originals and the conformity to authentic original documents of all
documents submitted to us as certified, confirmed or photostatic copies. I
have also assumed that each Confirmation will be in substantially the form of
Exhibit 1 to the Master Agreement and will not contain provisions not usual in
transactions of this type.
Based upon the foregoing, we are of the opinion that:
1. Party B is a corporation duly organized, validly existing and in good
standing under the laws of ______________________________________ .*
______________________________________________________________
* Jurisdiction of incorporation of Party B.
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2. The execution, delivery and performance of the Master Agreement and
each Confirmation by Party B are within Party B's corporate power,
have been duly authorized by all necessary corporate action and do
not, or, in the case of each Confirmation, will not, conflict with any
provisions of Party B's articles of incorporation or by-laws.
3. The Master Agreement has been duly executed and delivered by Party B
and constitutes, and each Confirmation, upon due execution and
delivery by Party B, will constitute, a legally valid and binding
obligation of Party B enforceable against Party B in accordance with
its terms (subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights
generally and subject, as to enforceability, to equitable principles
of general application (regardless of whether enforcement is sought in
a proceeding in equity or at law)).
4). To the best of our knowledge, no consent, authorization, license or
approval of, or registration or declaration with, any United States of
America federal or ___________________________________________________
governmental authority is required in connection with the execution,
delivery and performance of the Master Agreement and each Confirmation
by Party B.
The opinions expressed herein are limited to matters concerning the federal
laws of the United States of America and the laws of the State of
______________________________.
Very truly yours,
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Exhibit 4g (continued)
ISDA (R)
International Swap Dealers Association, Inc.
INTEREST RATE
AND
CURRENCY EXCHANGE AGREEMENT
Dated as of November 12, 1993
--------------------------------
National City Bank, Cleveland and The Standard Products Co.
------------------------------------ -------------------------------
have entered and/or anticipate entering into one or more transactions (each a
"Swap Transaction"). The parties agree that each Swap Transaction will be
governed by the terms and conditions set forth in this document (which includes
the schedule (the "Schedule")) and in the documents (each a "Confirmation")
exchanged between the parties confirming such Swap Transactions. Each
Confirmation constitutes a supplement to and forms part of this document and
will be read and construed as one with this document, so that this document and
all the Confirmations constitute a single agreement between the parties
(collectively referred to as this "Agreement"). The parties acknowledge that
all Swap Transactions are entered into in reliance on the fact that this
document and all Confirmations will form a single agreement between the
parties, it being understood that the parties would not otherwise enter into
any Swap 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 Agreement.
(b) Inconsistency. In the event of any inconsistency between the
provisions of any Confirmation and this document, such Confirmation will
prevail for the purpose of the relevant Swap Transaction.
2. PAYMENTS
(a) Obligations and Conditions.
(i) Each party will make each payment specified in each
Confirmation as being payable by it.
(ii) Payments under this Agreement will be made not later than
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.
(iii) Each obligation of each party to pay any amount due 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 and (2) each other
applicable condition precedent specified in this Agreement.
(b) Change of Account. Either party may change its account by giving
notice to the other party at least five days prior to the due date for payment
for which such change applies.
Copyright (C) 1987 by International Swap Dealers Association, Inc.
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(c) Netting. If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Swap 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.
If the parties specify "Net Payments--Corresponding Payment Dates" in a
Confirmation or otherwise in this Agreement, sub-paragraph (ii) above will
cease to apply to all Swap Transactions with effect from the date so specified
(so that a net amount will be determined in respect of all amounts due on the
same date in the same currency, regardless of whether such amounts are payable
in respect of the same Swap Transaction); provided that, in such case, this
Section 2(c) will apply separately to each Office through which a party makes
and receives payments as set forth in Section 10.
(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) 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 a Change in Tax Law.
(ii) Liability. If:-
(1)X is required by any applicable law, as modified by
the practice of any relevant governmental revenue
authority, to make any deduction or withholding in
respect of which X would not be required to pay an
additional amount to Y under Section 2(d)(i)(4);
(2)X does not so deduct or withhold; and
(3)a liability resulting from such Tax is assessed
directly against X.
then, except to the extent Y has satisfied or then satisfies
the liability resulting from such Tax, Y will promptly pay to
X the amount of such liability (including any related liability
for interest, but including any related liability for penalties
only if Y has failed to comply with or perform any agreement
contained in Section 4(a)(i) or (d)).
(e) Default Interest. A party that defaults in the payment of any
amount due will, to the extent permitted by law, be required to pay interest
(before as well as after judgment) on such amount to the other party on demand
in the same currency as the overdue amount, for the period from (and including)
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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.
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 Swap 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 and 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)).
(b) Absence of Certain Events. No Event of Default or Potential
Event of Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would occur as a
result of its entering into or performing its obligations under this Agreement
or any Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its
knowledge, threatened against it or any of its Affiliates any action, suit or
proceeding at law or in equity or before any court, tribunal, governmental
body, agency or official or any arbitrator that purports to draw into question,
or 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 of 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 paragraph 2 of Part 3 of 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 Part
2 of the Schedule as being made by it for the purpose of this Section 3(e) is
accurate and true.
(f) Payer Tax Representations. Each representation specified in Part
2 of 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 it has or may have any
obligation under this Agreement or under any Credit Support Document to which
it is a party:-
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(a) Furnish Specified Information. It will deliver to the other
party:-
(i) any forms, documents or certificates relating to taxation
specified in Part 3 of the Schedule or any Confirmation; and
(ii) any other documents specified in Part 3 of the Schedule
or any Confirmation, by the date specified in Part 3 of the Schedule or such
Confirmation or, if none is specified, as soon as 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. It will pay any Stamp Tax levied or
imposed upon it or in respect of its execution or performance of this Agreement
by a jurisdiction in which it is incorporated, organised, managed and
controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located ("Stamp
Tax Jurisdiction") and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party's
execution or performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.
5. EVENTS OF DEFAULT AND TERMINATION EVENTS
(a) Events of Default. The occurrence at any time with respect to a
party or, if applicable, any 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. Failure by the party to pay, when due,
any amount required to be paid by it under this Agreement if such
failure is not remedied on or before the third Business Day after
notice of such failure to pay 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 pay any amount required to be paid by it under this Agreement
or to give notice of a Termination Event or any agreement or
obligation under Section 4(a)(i) 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 applicable Specified
Entity to comply with or perform any agreement or
obligation to be complied with or performed by the party
or such Specified Entity 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 ceasing of such Credit Support Document
to be in full force and effect, prior to the final
Scheduled Payment Date of each Swap Transaction to which
such Credit Support Document relates without the written
consent of the other party; or
(3) the party or such Specified Entity repudiates, 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
applicable Specified Entity in this Agreement or any Credit
Support Document relating to this Agreement 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 Swaps. The occurrence of an
event of default in respect of the party or any applicable
Specified Entity under a Specified Swap which, following the
giving of any
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applicable notice or the lapse of any applicable grace period,
has resulted in the designation or occurrence of an early
termination date in respect of such Specified Swap;
(vi) Cross Default. If "Cross Default" is specified in Part 1
of the Schedule as applying to the party, (1) the occurrence or
existence of an event or condition in respect of such party or
any applicable Specified Entity under one or more agreements or
instruments relating to Specified Indebtedness of such party or
any such Specified Entity in an aggregate amount of not less than
the Threshold Amount (as specified in Part 1 of 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) the failure by such party or any
such Specified Entity to make one or more payments at maturity in
an aggregate amount of not less than the Threshold Amount under
such agreements or instruments (after giving effect to any
applicable grace period);
(vii) Bankruptcy. The party or any applicable Specified
Entity:-
(1) is dissolved; (2) becomes insolvent or fails or is
unable to 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 the winding-up or liquidation of the party or any
such Specified Entity, 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 the winding-up or
liquidation of the party or such Specified Entity 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 or liquidation; (6) seeks or becomes subject
to the appointment of an administrator, receiver,
trustee, custodian or other similar official for it or
for all or substantially all its assets (regardless of
how brief such appointment may be, or whether any
obligations are promptly assumed by another entity or
whether any other event described in this clause (6) has
occurred and is continuing); (7) any event occurs with
respect to the party or any such Specified Entity which,
under the applicable laws of any jurisdiction, has an
analogous effect to any of the events specified in
clauses (1) to (6) (inclusive); or (8) takes any action
in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the foregoing acts;
other than in the case of clause (1) or (5) or, to the extent it
relates to those clauses, clause (8), for the purpose of a
consolidation, amalgamation or merger which would not constitute
an event described in (viii) below; or
(viii) Merger Without Assumption. The party consolidates or
amalgamates with, or merges into, or transfer 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 under this
Agreement 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 relating
to this Agreement 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 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, a Tax Event Upon
Merger if the event is specified in (iii) below or a Credit Event Upon Merger
if the event is specified in (iv) below:-
(i) Illegality. Due to the adoption of, or any change in,
any applicable law after the date on which such Swap 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):-
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(1) to perform any absolute or contingent obligation to
make a payment or to receive a payment in respect of such
Swap Transaction or to comply with any other material
provision of this Agreement relating to such Swap
Transaction; or
(2) to perform, or for any applicable Specified Entity to
perform, any contingent or other obligation which the
party (or such Specified Entity) has under any Credit
Support Document relating to such Swap Transaction;
(ii) Tax Event.
(1) The party (which will be the Affected Party) will be
required on the next succeeding Schedule Payment Date 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)) as a result of a
Change in Tax Law; or
(2) there is a substantial likelihood that the party
(which will be the Affected Party) will be required on
the next succeeding Schedule Payment Date 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)) and such
substantial likelihood results from an action taken by a
taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which such Swap
Transaction was entered into (regardless of whether such
action was taken or brought with respect to a party to
this Agreement);
(iii) Tax Event Upon Merger. The party (the "Burdened Party")
on the next succeeding Schedule 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)) 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, in either case as a result
of a party consolidating or amalgamating with, or merging 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); or
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger"
is specified in Part 1 of the Schedule as applying to the party,
such party ("X") consolidates or amalgamates with, or merges
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 (which will be the
Affected Party) is materially weaker than that of X immediately
prior to such action.
(c) Event of Default and Illegality. If an event or circumstance
which would otherwise constitute or give rise to an Event of Default also
constitutes an Illegality, it will be treated as an Illegality and will not
constitute an Event of Default.
6. EARLY TERMINATION
(a) Right to Terminate Following Event of Default. If at any time an
Event of Default with respect to a party (the "Defaulting Party") has occurred
and is then continuing, the other party 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 Swap Transactions. However, an Early Termination
Date will be deemed to have occurred in respect of all Swap Transactions
immediately upon the occurrence of any Event of Default specified in Section
5(a)(vii)(1), (2), (3), (5), (6), (7) or (8) and as of the time immediately
preceding the institution of the relevant proceeding or the presentation of the
relevant petition upon the occurrence of any Event of Default specified in
Section 5(a)(vii)(4).
(b) Right to Terminate Following Termination Event.
(i) Notice. Upon the occurrence of a Termination Event, an
Affected Party will, promptly upon becoming aware of the same,
notify the other party thereof, specifying the nature of such
Termination Event and the Affected Transactions relating thereto.
The Affected Party will also give such other information to the
other party with regard to such 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 on 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
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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, branches 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
swap 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 that would cause such Termination Event
to cease to exist.
(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) or a Credit
Event Upon Merger 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 the party which is not the Affected Party
in the case of a Credit Event Upon Merger, may, by not more than
20 days notice to the other party and provided that the relevant
Termination Event is then continuing, designate a day not earlier
than the day such notice is effective as an Early Termination
Date in respect of all Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given
under Section 6(a) or (b), the Early Termination Date will occur
on the date so designated, whether or not the relevant Event of
Default or Termination Event is continuing on the relevant early
Termination Date.
(ii) Upon the effectiveness of notice designating an Early
Termination Date (or the deemed occurrence of an Early
Termination Date), the obligations of the parties to make any
further payments under Section 2(a)(i) in respect of the
Terminated Transactions will terminate, but without prejudice to
the other provisions of this Agreement.
(d) Calculations.
(i) Statement. Following the occurrence of an Early
Termination Date, each party will make the calculations
(including calculation of applicable interest rates) on its part
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 (2) giving details of the
relevant account to which any payment due to it under Section
6(e) is to be made In the absence of written confirmation of a
quotation obtained in determining a Market Quotation from the
source providing such quotation, the records of the party
obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) Due Date. The amount calculated as being payable under
Section 6(e) will be due on the day that notice of the amount
payable is effective (in the case of an Early Termination Date
which is designated or deemed to occur as a result of an Event of
Default) and not later than the day which is two 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 in the Termination Currency from (and including)
the relevant Early Termination Date to (but excluding) the
relevant due date, calculated as follows:-
(1) if notice is given designating an Early Termination
Date or if an Early Termination Date is deemed to occur,
in either case as a result of an Event of Default, at the
Default Rate; or
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(2) if notice is given designating an Early Termination
Date as a result of a Termination Event, at the Default
Rate minus 1% per annum.
Such interest will be calculated on the basis of daily
compounding and the actual number of days elapsed.
(e) Payments on Early Termination.
(i) Defaulting Party or One Affected Party. If notice is
given designating an Early Termination Date or if an Early
Termination Date is deemed to occur and there is a Defaulting
Party or only one Affected Party, the other party will determine
the Settlement Amount in respect of the Terminated Transactions
and:-
(1) if there is a Defaulting Party, the Defaulting Party
will pay to the other party the excess, if a positive
number, of (A) the sum of such Settlement Amount and the
Termination Currency Equivalent of the Unpaid Amounts
owing to the other party over (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Defaulting Party; and
(2) if there is an Affected Party, the payment to be made
will be equal to (A) the sum of such Settlement Amount
and the Termination Currency Equivalent of the Unpaid
Amounts owing to the party determining the Settlement
Amount ("X") less (B) the Termination Currency Equivalent
of the unpaid Amounts owing to the party not determining
the Settlement Amount ("Y").
(ii) Two Affected Parties. If notice is given of an Early
Termination Date and there are two Affected Parties, each party
will determine a Settlement Amount in respect of the Terminated
Transactions and the payment to be made will be equal to (1) 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 (2) the Termination Currency
Equivalent of the Unpaid Amounts owing to Y.
(iii) Party Owing. If the amount calculated under Section
6(e)(i)(2) or (ii) is a positive number, Y will pay such amount
to X; if such amount is a negative number, X will pay the
absolute value of such amount to Y. (iv) Adjustment for
Bankruptcy. In circumstances where an Early Termination Date is
deemed to occur, the amount determined under Section 6(3)(i) will
be subject to such adjustments as are appropriate and permitted
by law to reflect any payments 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).
(v) Pre-Estimate of Loss. The parties agree that the amounts
recoverable under this Section 6(e) are a reasonable pre-
estimate of loss and not a penalty. Such amounts are payable for
the loss of bargain and the loss of protection against future
risks and except as otherwise provided in this Agreement neither
party will be entitled to recover any additional damages as a
consequence of such losses.
7. TRANSFER
Subject to Section 6(b) and to any exception provided in the Schedule, neither
this Agreement nor any interest or obligation in or under this Agreement may be
transferred by either party without the prior written consent of the other
party (other than pursuant to a consolidation or amalgamation with, or merger
into, or transfer of all or substantially all its assets to, another entity)
and any purported transfer without such consent will be void.
8. CONTRACTUAL CURRENCY
(a) Payment in the Contractual Currency. Each payment under this
Agreement will be made in the relevant currency specified in this Agreement for
that payment (the "Contractual Currency"). To the extent permitted by
applicable law, any obligation to make payments under this Agreement in the
Contractual Currency will not be discharged or satisfied by any tender in any
currency other than the Contractual Currency, except to the extent such tender
results in the actual receipt by the party to which payment is owed, acting in
a reasonable manner and in good faith in converting the currency so tendered
into the Contractual Currency, of the full amount in the Contractual Currency
of all amounts due in respect of this Agreement. If for any reason the amount
in the Contractual Currency so received falls short of the amount
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in the Contractual Currency due 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
due in respect of this Agreement, the party receiving the payment will refund
promptly the amount of such excess.
(b) Judgements. 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 grated
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 due in respect
of this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be
sufficient for a party to demonstrate that it would have suffered a loss had an
actual exchange or purchase been made.
9. MISCELLANEOUS
(a) Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to its subject matter
and supersedes all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of
this Agreement will be effective unless in writing and executed by each of the
parties or confirmed by an exchange of telexes.
(c) Survival of Obligations. Except as provided in Section 6(c)(ii),
the obligations of the parties under this Agreement will survive the
termination of any Swap 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 may be executed in counterparts, each of
which will be deemed an original.
(ii) A Confirmation may be executed in counterparts or be
created by an exchange of telexes, which in either case will be
sufficient for all purposes to evidence a binding supplement to
this Agreement. Any such counterpart or telex will specify that
it constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right,
power or privilege in respect of this Agreement will not be presumed to operate
as a waiver, and a single or partial exercise of any right, power or privilege
will not be presumed to preclude any subsequent or further exercise of that
right, power or privilege or the exercise of any other right, power or
privilege.
(g) Headings. The headings used in this Agreement are for
convenience of reference only and are not to affect the construction of or to
be taken into consideration in interpreting this Agreement.
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10. MULTIBRANCH PARTIES
If a party is specified as a Multibranch Party in Part 4 of the Schedule, such
Multibranch Party may make and receive payments under any Swap Transaction
through any of its branches or offices listed in the Schedule (each an
"Office"). The Office through which it so makes and receives payments for the
purpose of any Swap Transaction will be specified in the relevant Confirmation
and any change of Office for such purpose requires the prior written consent of
the other party. Each Multibranch Party represents to the other party that,
notwithstanding the place of payment, the obligations of each Office are for
all purposes under this Agreement the obligations of such Multibranch Party.
This representation will be deemed to be repeated by such Multibranch Party on
each date on which a Swap Transaction is entered into.
11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or by reason of the early
termination of any Swap Transaction, including, but not limited to, costs of
collection.
12. NOTICES
(a) Effectiveness. Any notice or communication in respect of this
Agreement will be sufficiently given to a party if in writing and delivered in
person, sent by certified or registered mail (airmail, if overseas) or the
equivalent (with return receipt requested) or by overnight courier or given by
telex (with answerback received) at the address or telex number specified in
Part 4 of the Schedule. A notice or communication will be effective:-
(i) if delivered by hand or sent by overnight courier, on the
day it is delivered (or if that day is not a day on which
commercial banks are open for business in the city specified in
the address for notice provided by the recipient (a "Local
Banking Day"), or if delivered after the close of business on a
Local Banking Day, on the first following day that is a Local
Banking Day);
(ii) if sent by telex, on the day the recipient's answerback
is received (or if that day is not a Local Banking Day, or if
after the close of business on a Local Banking Day, on the first
following day that is a Local Banking Day); or
(iii) if sent by certified or registered mail (airmail, if
overseas) or the equivalent (return receipt requested), three
Local Banking Days after despatch if the recipient's address for
notice is in the same country as the place of despatch and
otherwise seven Local Banking Days after despatch.
(b) Change of Addresses. Either party may by notice to the other
change the address or telex number at which notices or 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 Part 4 of 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
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 I(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 Part 4 of the Schedule to
receive, for it and on its behalf, service of process in any Proceedings. If
for any reason any party's Process Agent is unable to act as such, such party
will
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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:-
"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 Swap
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Swap Transactions.
"AFFILIATE" means, subject to Part 4 of 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 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.
"BURDENED PARTY" has the meaning specified in Section 5(b).
"BUSINESS DAY" means (a) in relation to any payment due under Section 2(a)(i),
a day on which commercial banks and foreign exchange markets are open for
business in the place(s) specified in the relevant Confirmation and (b) in
relation to any other payment, a day on which commercial banks and foreign
exchange markets are open for business in the place where the relevant account
is located and, if different, in the principal financial centre of the currency
of such payment.
"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 Swap 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 which is specified
as such in this Agreement.
"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) of
funding the relevant amount plus 1% per annum.
"DEFAULTING PARTY" has the meaning specified in Section 6(a).
"EARLY TERMINATION DATE" means the date specified as such in a notice given
under Section 6(a) or 6(b)(iv).
"EVENT OF DEFAULT" has the meaning specified in Section 5(a).
"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
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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.
"LOSS" means, with respect to a Terminated Transaction and a party, an amount
equal to the total amount (expressed as a positive amount) required, as
determined as of the relevant Early Termination Date (or, if an Early
Termination Date is deemed to occur, as of a time as soon thereafter as
practicable) by the party in good faith, to compensate if for any losses and
costs (including loss of bargain and costs of funding but excluding legal fees
and other out-of-pocket expenses) that it may incur as a result of the early
termination of the obligations of the parties in respect of such Terminated
Transaction. If a party determines that it would gain or benefit from such
early termination, such party's Loss will be an amount (expressed as a negative
amount) equal to the amount of the gain or benefit as determined by such party.
"MARKET QUOTATION" means, with respect to a Terminated Transaction and a party
to such Terminated Transaction making the determination, an amount (which may
be negative) determined on the basis of quotations from Reference Market-makers
for the amount that would be or would have been payable on the relevant Early
Termination Date, either by the party to the Terminated Transaction making the
determination (to be expressed as a positive amount) or to such party (to be
expressed as a negative amount), in consideration of an agreement between such
party and the quoting Reference Market-maker and subject to such documentation
as they may in good faith agree, with the relevant Early Termination Date as
the date of commencement of such agreement (or, if later, the date specified as
the effective date of such Terminated Transaction in the relevant
Confirmation), that would have the effect of preserving for such party the
economic equivalent of the payment obligations of the parties under Section
2(a)(i) in respect of such Terminated Transaction that would, but for the
occurrence of the relevant Early Termination Date, fall due after such Early
Termination Date (excluding any Unpaid Amounts in respect of such Terminated
Transaction but including, without limitation, any amounts that would, but for
the occurrence of the relevant Early Termination Date, have been payable
(assuming each applicable condition precedent had been satisfied) after such
Early Termination Date by reference to any period in which such Early
Termination Date occurs). The party making the determination (or its agent)
will request each Reference Market-maker to provide its quotation to the extent
practicable as of the same time (without regard to different time zones) on the
relevant Early Termination Date (or, if an Early Termination Date is deemed to
occur, as of a time as soon thereafter as practicable). The time as of which
such quotations are to obtained 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. If more than three such quotations
are provided, the Market Quotation will be the arithmetic mean of the
Termination Currency Equivalent 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 quotations having the highest and lowest values. If
fewer than three quotations are provided, it will be deemed that the Market
Quotation in respect of such Terminated Transaction cannot be determined.
"OFFICE" has the meaning specified in Section 10.
"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 swap
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
amount 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 a branch or 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 is due under Section
2(a)(i) with respect to a Swap Transaction.
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"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 for which a Market
Quotation is determine; and
(b) for each Terminated Transaction for which a Market Quotation is not,
or cannot be, determined, the Termination Currency Equivalent of such party's
Loss (whether positive or negative);
provided that if the parties agree that an amount may be payable under Section
6(e) to a Defaulting Party by the other party, no account shall be taken of a
Settlement Amount expressed as a negative number.
"SPECIFIED ENTITY" has the meaning specified in Part 1 of the Schedule.
"SPECIFIED INDEBTEDNESS" means, subject to Part 1 of the Schedule, any
obligation (whether present or future, contingent or otherwise, as principal or
surety or otherwise) in respect of borrowed money.
"SPECIFIED SWAP" means, subject to Part 1 of the Schedule, any rate swap or
currency exchange transaction now existing or hereafter entered into between
one party to this Agreement (or any applicable Specified Entity) and the other
party to this Agreement (or any applicable Specified Entity).
"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 (a) with respect to any Early Termination Date
occurring as a result of a Termination Event, all Affected Transactions and (b)
with respect to any Early Termination Date occurring as a result of an Event of
Default, all Swap Transactions, which in either case are in effect as of the
time immediately preceding the effectiveness of the notice designating such
Early Termination Date (or, in the case of an Event of Default specified in
Section 5(a)(vii), in effect as of the time immediately preceding such Early
Termination Date).
"TERMINATION CURRENCY" has the meaning specified in Part 1 of 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 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 the relevant Early Termination Date. The foreign exchange
agent will, of 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, a Tax Event Upon Merger
or a Credit Event Upon Merger.
"UNPAID AMOUNTS" owing to any party means, with respect to any Early
Termination Date, the aggregate of the amounts that became due and payable (or
that would have become due and payable but for Section 2(a)(iii) or the
designation or occurrence of such Early Termination Date) to such party under
Section 2(a)(i) in respect of all Terminated Transactions by reference to all
periods ended on or prior to such Early Termination Date and which remain
unpaid as at such Early Termination Date, together with (to the extent
permitted under applicable law and in lieu of any interest calculated under
Section 2(e)) interest thereon, in the currency of such amounts, from (and
including) the date such amounts became due and payable or would have become
due and payable to (but excluding) such Early Termination Date, calculated as
follows:-
(a) in the case of notice of an Early Termination Date given as a result
of an Event of Default:-
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(i) interest on such amounts due and payable by a Defaulting Party
will be calculated at the Default Rate; and
(ii) interest on such amounts due and payable by the other party
will be calculated at a rate per annum equal to the cost to such other
party (as certified by it) if it were to fund such amounts (without
proof or evidence of any actual cost); and
(b) in the case of notice of an Early Termination Date given as a result
of a Termination Event, interest on such amounts due and payable by either
party will be calculated at 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 and regardless of whether due and payable by such
party) if it were to fund or of funding such amounts.
Such amounts of interest will be calculated on the basis of daily compounding
and the actual number of days elapsed.
IN WITNESS WHEREOF the parties have executed this document as of the date
specified on the first page of this document.
National City Bank, Cleveland The Standard Products Co.
----------------------------- -------------------------------
(Name of party) (Name of party)
By: /s/ William Mahnic By: /s/ Charles F. Nagy
--------------------- ------------------------
Name: William Mahnic Name: Charles F. Nagy
Title: Vice President Title: Corporate Treasurer
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