SPH Notice – Goldman Sachs Group, Inc. (“GSGI”)
Disclosure of beginning to have substantial holding
Section 276, Financial Markets Conduct Act 2013
To NZX Limited
and
To The A2 Milk Company Limited (ATM)
Date this disclosure made: 13 August 2018
Date on which substantial holding began: 2 August 2018
Substantial product holder(s) giving disclosure
Full name(s): The Goldman Sachs Group, Inc. (“GSGI”) on behalf of itself and its subsidiaries
(“Goldman Sachs Group”) including its significant subsidiaries listed in Annexure A.
Summary of substantial holding
Class of quoted voting products: Ordinary shares
Summary for GSGI on behalf of itself and the Goldman Sachs Group.
For this disclosure,
(a) total number held in class: 37,082,791
(b) total in class: 730,039,067
(c) total percentage held in class: 5.0796%
Details of relevant interests
Details for Goldman Sachs Asset Management L.P. (GSAMLP)
Nature of relevant interest(s): GSAMLP has a relevant interest in ordinary fully paid shares in its
capacity as investment manager for a range of client portfolios. GSAMLP’s relevant interest arises
under investment management contract(s) and only from the powers of investment contained in those
contract(s), including the power to exercise, or to control the exercise of, a right to vote attached to
ATM shares, or to acquire or dispose of, or to control the acquisition or disposal of, the ATM shares.
For that relevant interest,
(a) number held in class: 1,777,275
(b) percentage held in class: 0.2434%
(c) current registered holder(s) of securities: Bank of New York Mellon
(d) registered holder(s) once transfers registered: NA
For a derivative relevant interest, also—
(a) type of derivative: N/A
(b) details of derivative: N/A
(c) parties to the derivative: N/A
(d) if the substantial product holder is not a party to the derivative, the nature of the relevant interest
in the derivative: N/A
Details for Goldman Sachs Asset Management International (GSAMI)
Nature of relevant interest(s): GSAMI has a relevant interest in ordinary fully paid shares in its
capacity as investment manager for a range of client portfolios. GSAMI’s relevant interest arises
under investment management contract(s) and only from the powers of investment contained in those
contract(s), including the power to exercise, or to control the exercise of, a right to vote attached to
ATM shares, or to acquire or dispose of, or to control the acquisition or disposal of, the ATM shares.
For that relevant interest,
(a) number held in class: 312,782
(b) percentage held in class: 0.0428%
(c) current registered holder(s) of securities: Bank of New York Mellon
(d) registered holder(s) once transfers registered: NA
For a derivative relevant interest, also—
(a) type of derivative: N/A
(b) details of derivative: N/A
(c) parties to the derivative: N/A
(d) if the substantial product holder is not a party to the derivative, the nature of the relevant interest
in the derivative: N/A
Details for Goldman Sachs International (GSI)
Nature of relevant interest(s): Derivative relevant interest over quoted underlying. Relevant agreement
documents (1992 and 2002 ISDA Master Agreements) are attached in Part B of Annexure C (46 pages).
For that relevant interest, -
(a) number held in class: 4,071,965
(b) percentage held in class: 0.5578%
(c) current registered holder(s) of securities: HSBC Custody Nominees (New Zealand) Limited, HSBC
Custody Nominees Australia Limited, Bank of New York Mellon
(d) registered holder(s) once transfers are registered: NA
For a derivative relevant interest, also—
(a) type of derivative: Equity Swap
(b) details of derivative:
(1) Long 11,377 cash-settled Equity Swap (0.0016% long held in class) maturing on 29 August 2019
(2) Long 51,780 cash-settled Equity Swap (0.0071% long held in class) maturing on 03 September 2019
(3) Long 27,138 cash-settled Equity Swap (0.0037% long held in class) maturing on 04 September 2019
(4) Long 35,683 cash-settled Equity Swap (0.0049% long held in class) maturing on 04 September 2019
(5) Long 14,064 cash-settled Equity Swap (0.0019% long held in class) maturing on 04 September 2019
(6) Long 2,155 cash-settled Equity Swap (0.0003% long held in class) maturing on 29 August 2019
(7) Long 9,808 cash-settled Equity Swap (0.0013% long held in class) maturing on 03 September 2019
(8) Long 5,140 cash-settled Equity Swap (0.0007% long held in class) maturing on 04 September 2019
(9) Long 5,711 cash-settled Equity Swap (0.0008% long held in class) maturing on 04 September 2019
(10) Long 2,251 cash-settled Equity Swap (0.0003% long held in class) maturing on 04 September 2019
(11) Long 10,300 cash-settled Equity Swap (0.0014% long held in class) maturing on 28 July 2020
(12) Long 5,499 cash-settled Equity Swap (0.0008% long held in class) maturing on 26 November 2019
(13) Long 4,460,348 cash-settled Equity Swap (0.611% long held in class) maturing on 20 May 2020
(14) Long 2,438,673 cash-settled Equity Swap (0.334% long held in class) maturing on 07 January 2019
(15) Long 107,831 cash-settled Equity Swap (0.0148% long held in class) maturing on 13 May 2020
(16) Long 60 cash-settled Equity Swap (0.0000% long held in class) maturing on 07 April 2020
(17) Long 55 cash-settled Equity Swap (0.0000% long held in class) maturing on 27 November 2019
(18) Long 86 cash-settled Equity Swap (0.0000% long held in class) maturing on 18 September 2019
(19) Long 97,000 cash-settled Equity Swap (0.0133% long held in class) maturing on 02 July 2019
(c) parties to the derivative:
(1) to (5) ATLAS ENHND MSTR FD LTD - QUAN
(6) to (10) ATLAS MASTER FUND LTD - QUAN
(11) to (18) GAUS
(19) MACQUARIE BANK LIMITED
(d) if the substantial product holder is not a party to the derivative, the nature of the relevant
interest in the derivative: N/A
For a derivative relevant interest, also—
(a) type of derivative: CFD
(b) details of derivative:
(1) Long 280,405 cash-settled CFD (0.0384% long held in class) maturing on 02 August 2028
(2) Long 593,339 cash-settled CFD (0.0813% long held in class) maturing on 02 August 2028
(3) Long 3,575,609 cash-settled CFD (0.4898% long held in class) maturing on 30 June 2023
(4) Long 567,700 cash-settled CFD (0.0778% long held in class) maturing on 30 June 2023
(5) Long 129,272 cash-settled CFD (0.0177% long held in class) maturing on 19 May 2028
(6) Long 952,026 cash-settled CFD (0.1304% long held in class) maturing on 04 May 2028
(7) Long 357,714 cash-settled CFD (0.049% long held in class) maturing on 31 July 2028
(8) Long 200,000 cash-settled CFD (0.0274% long held in class) maturing on 31 July 2028
(9) Long 11,225 cash-settled CFD (0.0015% long held in class) maturing on 24 May 2028
(10) Long 24,679 cash-settled CFD (0.0034% long held in class) maturing on 24 May 2028
(11) Long 20,836 cash-settled CFD (0.0029% long held in class) maturing on 27 July 2028
(c) parties to the derivative:
(1) to (2) COMPOSITE CAPITAL
(3) ELEPHAS GLOBAL MASTER FUND
(4) ELEPHAS GLOBAL OPPORTUNITY
(5) Goldman Sachs & CO. LLC
(6) to (8) PLEIAD ASIA MASTER FUND
(9) to (10) SHINHAN INVESTMENT CORP
(11) SIGNITION EXPONENTIAL
(d) if the substantial product holder is not a party to the derivative, the nature of the relevant
interest in the derivative: N/A
For a derivative relevant interest, also—
(a) type of derivative: Equity Option
(b) details of derivative:
(1) Long 750,000 physically-settled Equity Option (0.1027% long held in class) maturing on 10 August
2018
(2) Long 750,000 physically-settled Equity Option (0.1027% long held in class) maturing on 10 August
2018
(3) Long 755,000 physically-settled Equity Option (0.1034% long held in class) maturing on 17 August
2018
(4) Long 755,000 physically-settled Equity Option (0.1034% long held in class) maturing on 17 August
2018
(c) parties to the derivative:
(1) to (4) NATIONAL AUSTRALIA BANK
(d) if the substantial product holder is not a party to the derivative, the nature of the relevant
interest in the derivative: N/A
Details for Goldman Sachs International (GSI)
Nature of relevant interest(s): Beneficial holder subject to a qualification to its ability to exercise voting
rights as set out in Overseas Securities Lender’s Agreements. Forms of Overseas Securities Lender’s
Agreements are in Part A of Annexure C (72 pages).
For that relevant interest, -
(a) number held in class: 2,688,750
(b) percentage held in class: 0.3683%
(c) current registered holder(s) of securities: HSBC Custody Nominees (New Zealand) Limited, HSBC
Custody Nominees Australia Limited, Bank of New York Mellon
(d) registered holder(s) once transfers are registered: NA
Details for Goldman Sachs Financial Markets Pty Ltd (GAUS)
Nature of relevant interest(s): Derivative relevant interest over quoted underlying. Relevant agreement
documents (1992 and 2002 ISDA Master Agreements) are attached in Part B of Annexure C (46 pages).
For that relevant interest, -
(a) number held in class: 38,281
(b) percentage held in class: 0.0052%
(c) current registered holder(s) of securities: : HSBC Custody Nominees (New Zealand) Limited, HSBC
Custody Nominees Australia Limited, Bank of New York Mellon
(d) registered holder(s) once transfers are registered: NA
For a derivative relevant interest, also—
(a) type of derivative: Equity Swap
(b) details of derivative:
(1) Long 1,509,740 cash-settled Equity Swap (0.2068% long held in class) maturing on 06 May 2020
(2) Long 129,272 cash-settled Equity Swap (0.0177% long held in class) maturing on 20 May 2020
(3) Long 35,904 cash-settled Equity Swap (0.0049% long held in class) maturing on 25 May 2020
(4) Long 4,143,309 cash-settled Equity Swap (0.5675% long held in class) maturing on 01 July 2020
(5) Long 20,836 cash-settled Equity Swap (0.0029% long held in class) maturing on 29 July 2020
(6) Long 165,107 cash-settled Equity Swap (0.0226% long held in class) maturing on 29 July 2020
(7) Long 593,339 cash-settled Equity Swap (0.0813% long held in class) maturing on 05 August 2020
(8) Long 5 cash-settled Equity Swap (0.0000% long held in class) maturing on 27 December 2019
(9) Long 62 cash-settled Equity Swap (0.0000% long held in class) maturing on 24 September 2019
(10) Long 3,394,000 cash-settled Equity Swap (0.4649% long held in class) maturing on 23 December
2019
(c) parties to the derivative:
(1) to (10) GSI
(d) if the substantial product holder is not a party to the derivative, the nature of the relevant
interest in the derivative: N/A
Details for Goldman Sachs & Co. LLC (GSCO)
Nature of relevant interest(s): Beneficial holder with the relevant interest arising under Master Securities
Loan Agreements. Such relevant agreements need not be disclosed under regulation 139.
For that relevant interest, -
(a) number held in class: 1,194,400
(b) percentage held in class: 0.1636%
(c) current registered holder(s) of securities: HSBC Custody Nominees (New Zealand) Limited, HSBC
Custody Nominees Australia Limited, Bank of New York Mellon
(d) registered holder(s) once transfers are registered: NA
Details of transactions and events giving rise to relevant event
Details of the transactions or other events requiring disclosure: Please see Annexure B.
Additional information
Address(es) of substantial product holder(s):
The Goldman Sachs Group, Inc. - Corporation Trust Center, 1209 Orange Street, Wilmington DE
19801, U.S.A.
Goldman Sachs International - Peterborough Court, 133 Fleet Street, London EC4A 2BB, United
Kingdom
Goldman Sachs Asset Management L.P. - Corporation Trust Center, 1209 Orange Street,
Wilmington DE 19801, USA
Goldman Sachs Financial Markets Pty Ltd - Level 17, 101 Collins Street, Melbourne, Victoria 3000,
Australia
Goldman Sachs & Co. LLC - 200 West Street, New York, NY 10282, USA
Goldman Sachs Asset Management International- Peterborough Court, 133 Fleet Street, London
EC4A 2BB, United Kingdom
Contact details:
Contact person – Haruka Araki
Contact number - 852 2978 7696
Email - gs-reg-ops-hk-posn@gs.com
Nature of connection between substantial product holders:
The Goldman Sachs Group, Inc. owns, directly or indirectly, at least 99% of the voting securities of
each of:
Goldman Sachs International;
Goldman Sachs Financial Markets Pty Ltd;
Goldman Sachs & Co. LLC.
Goldman Sachs Asset Management L.P. and
Goldman Sachs Asset Management International
Declaration
I, Haruka Araki, declare that, to the best of my knowledge and belief, the information contained in
this disclosure is correct and that I am duly authorised to make this disclosure by all persons for
whom it is made.
Signature
Print name:
Haruka Araki
(signing under power of
attorney)
Capacity:
Attorney
Sign here:
Date:
13 August 2018
Annexure A
Significant Subsidiaries of The Goldman Sachs Group, Inc.
The following are significant subsidiaries of The Goldman Sachs Group, Inc. as of December 31,
2017 and the states or jurisdictions in which they are organized. Each subsidiary is indented beneath
its principal parent. The Goldman Sachs Group, Inc. owns, directly or indirectly, at least 99% of the
voting securities of substantially all of the subsidiaries included below. The names of particular
subsidiaries have been omitted because, considered in the aggregate as a single subsidiary, they
would not constitute, as of the end of the year covered by this report, a “significant subsidiary” as
that term is defined in Rule 1-02(w) of Regulation S-X under the Securities Exchange Act of 1934.
THE GOLDMAN SACHS GROUP, INC AND ITS SUBSIDIARIES
Signature
Print name:
Haruka Araki
(signing under power of
attorney)
Capacity:
Attorney
Sign here:
Date:
13 August 2018
Annexure B
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
04/03/18 GSI Buy
1,462
119 Ordinary
04/03/18 GSI Sell
12
1 Ordinary
04/03/18 GSI Sell
351,903
28,220 Ordinary
04/03/18 GSI Buy
613,475
49,942 Ordinary
04/03/18 GSI Sell
346,965
28,141 Ordinary
04/03/18 GSI Buy
12
1 Ordinary
04/03/18 GAUS Sell
290,921
23,685 Ordinary
04/04/18 GSAMLP Sell
221,896
17,236 Ordinary
04/04/18 GSI Sell
723
59 Ordinary
04/04/18 GSI Sell
248,671
20,301 Ordinary
04/04/18 GSI Sell
414,452
33,835 Ordinary
04/04/18 GSI Sell
414,452
33,835 Ordinary
04/04/18 GSI Buy
46,439
3,660 Ordinary
04/04/18 GSI Sell
302,376
23,698 Ordinary
04/05/18 GSI Buy
13
1 Ordinary
04/05/18 GSI Sell
435,206
33,824 Ordinary
04/05/18 GSI Sell
609,294
47,354 Ordinary
04/05/18 GSI Sell
435,206
33,824 Ordinary
04/05/18 GSI Sell
241,242
18,672 Ordinary
04/05/18 GSI Sell
233,378
18,129 Ordinary
04/05/18 GSI Sell
13
1 Ordinary
04/05/18 GSI Buy
157,710
12,271 Ordinary
04/06/18 GSI Sell
31,314
2,447 Ordinary
04/06/18 GSI Sell
863,546
67,648 Ordinary
04/06/18 GSI Sell
431,773
33,824 Ordinary
04/06/18 GSI Buy
13
1 Ordinary
04/06/18 GSI Sell
234,452
18,290 Ordinary
04/06/18 GSI Buy
157,056
12,260 Ordinary
04/09/18 GSAMLP Sell
128,442
10,032 Ordinary
04/09/18 GSI Sell
345,470
27,059 Ordinary
04/09/18 GSI Sell
4,876
380 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
04/09/18 GSI Buy
26,225
2,022 Ordinary
04/09/18 GSI Buy
63,468
4,958 Ordinary
04/09/18 GSI Sell
21,317
1,656 Ordinary
04/10/18 GSI Buy
13
1 Ordinary
04/10/18 GSI Sell
13
1 Ordinary
04/10/18 GSI Sell
13,413
1,038 Ordinary
04/10/18 GSI Sell
13
1 Ordinary
04/11/18 GSI Sell
13
1 Ordinary
04/11/18 GSI Sell
264,769
20,294 Ordinary
04/11/18 GSI Buy
13
1 Ordinary
04/11/18 GSI Buy
15,710
1,212 Ordinary
04/11/18 GSI Sell
19,073
1,475 Ordinary
04/12/18 GSI Sell
258,045
20,292 Ordinary
04/12/18 GSI Sell
344,047
27,055 Ordinary
04/12/18 GSI Buy
18,957
1,517 Ordinary
04/12/18 GSI Sell
478
38 Ordinary
04/13/18 GSI Buy
13
1 Ordinary
04/13/18 GSI Sell
13
1 Ordinary
04/13/18 GSI Sell
43,642
3,477 Ordinary
04/16/18 GSAMLP Sell
13,100
1,077 Ordinary
04/16/18 GSI Sell
12
1 Ordinary
04/16/18 GSI Sell
33,617
2,710 Ordinary
04/16/18 GSI Buy
12
1 Ordinary
04/16/18 GSI Buy
63,948
5,325 Ordinary
04/17/18 GSAMLP Sell
27,558
2,236 Ordinary
04/17/18 GSI Borrow of securities N/A
12,000 Ordinary
04/17/18 GSI Buy
116,071
9,537 Ordinary
04/18/18 GSI Buy
12
1 Ordinary
04/18/18 GSI Sell
12
1 Ordinary
04/18/18 GSI Buy
8,073
657 Ordinary
04/18/18 GSI Sell
37,073
3,010 Ordinary
04/19/18 GSI Sell
12
1 Ordinary
04/19/18 GSI Buy
416,538
33,819 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
04/19/18 GSI Buy
12
1 Ordinary
04/19/18 GSI Sell
10,877
852 Ordinary
04/20/18 GSAMI Buy
6,080
475 Ordinary
04/20/18 GSAMLP Sell
14,756
1,153 Ordinary
04/23/18 GSI Buy
13
1 Ordinary
04/23/18 GSI Buy
171,827
13,526 Ordinary
04/23/18 GSI Sell
87,240
6,837 Ordinary
04/23/18 GSI Sell
13
1 Ordinary
04/24/18 GSI Sell
12
1 Ordinary
04/24/18 GSI Buy
12
1 Ordinary
04/26/18 GSAMLP Sell
15,931
1,328 Ordinary
04/26/18 GSI Buy
404,973
33,808 Ordinary
04/26/18 GSI Buy
244,288
20,285 Ordinary
04/27/18 GSI Buy
12
1 Ordinary
04/27/18 GSI Sell
3,030
254 Ordinary
04/27/18 GSI Sell
12
1 Ordinary
04/30/18 GSI Buy
409,024
33,796 Ordinary
04/30/18 GSI Sell
12
1 Ordinary
04/30/18 GAUS Sell
234,769
19,398 Ordinary
04/30/18 GSI Buy
12
1 Ordinary
05/01/18 GSI Buy
261,586
21,630 Ordinary
05/01/18 GSI Buy
411,958
33,846 Ordinary
05/01/18 GSI Buy
29,401
2,416 Ordinary
05/01/18 GSI Sell
8,864
730 Ordinary
05/02/18 GAUS Buy
11,848,432
952,026 Ordinary
05/02/18 GSI Buy
14,684
1,186 Ordinary
05/02/18 GSI Buy
12
1 Ordinary
05/02/18 GSI Buy
407,883
33,796 Ordinary
05/02/18 GSI Buy
407,883
33,796 Ordinary
05/02/18 GSI Buy
1,270,348
101,389 Ordinary
05/02/18 GSI Buy
11,824,724
952,026 Ordinary
05/02/18 GSI Buy
43,695
3,515 Ordinary
05/02/18 GSI Buy
611,718
49,215 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
05/02/18 GSI Sell
12
1 Ordinary
05/02/18 GSI Sell
10,878
874 Ordinary
05/03/18 GSAMI Buy
11,322
904 Ordinary
05/03/18 GSI Buy
1,057,267
84,491 Ordinary
05/03/18 GSI Buy
845,816
67,593 Ordinary
05/03/18 GSI Buy
40,786
3,221 Ordinary
05/03/18 GSI Buy
571,354
45,116 Ordinary
05/03/18 GSI Sell
88,920
7,106 Ordinary
05/03/18 GAUS Sell
13,188
1,053 Ordinary
05/03/18 GSI Buy
13
1 Ordinary
05/03/18 GSI Buy
174
14 Ordinary
05/04/18 GSI Buy
339,668
27,037 Ordinary
05/04/18 GSI Sell
13
1 Ordinary
05/04/18 GSI Sell
111,565
8,644 Ordinary
05/04/18 GSI Buy
633,389
48,813 Ordinary
05/04/18 GSI Buy
59,280
4,564 Ordinary
05/07/18 GSI Buy
13
1 Ordinary
05/07/18 GSI Buy
884,185
67,592 Ordinary
05/07/18 GSI Sell
31,187
2,369 Ordinary
05/07/18 GSI Buy
41,645
3,158 Ordinary
05/07/18 GSI Sell
13
1 Ordinary
05/08/18 GSI Sell
13
1 Ordinary
05/08/18 GSI Buy
41,353
3,231 Ordinary
05/08/18 GAUS Sell
298,178
23,657 Ordinary
05/08/18 GSI Buy
13
1 Ordinary
05/09/18 GSI Buy
864,843
67,592 Ordinary
05/09/18 GSI Borrow of securities N/A
1,043,013 Ordinary
05/09/18 GSI Buy
37,830
2,940 Ordinary
05/10/18 GSAMLP Sell
14,637
1,117 Ordinary
05/10/18 GSI Buy
13
1 Ordinary
05/10/18 GSI Buy
821,411
62,283 Ordinary
05/10/18 GSI Buy
41,778
3,215 Ordinary
05/10/18 GAUS Buy
230,411
17,777 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
05/10/18 GSI Sell
13
1 Ordinary
05/11/18 GSI Sell
13
1 Ordinary
05/11/18 GSI Buy
26,943
2,081 Ordinary
05/11/18 GSI Buy
13
1 Ordinary
05/14/18 GSI Buy
26,802
2,022 Ordinary
05/15/18 GSAMI Buy
9,411
703 Ordinary
05/15/18 GSI Buy
13
1 Ordinary
05/15/18 GSI Buy
113,333
8,520 Ordinary
05/15/18 GSI Sell
13
1 Ordinary
05/15/18 GAUS Sell
312,320
23,657 Ordinary
05/16/18 GSAMLP Buy
995,221
88,567 Ordinary
05/16/18 GSAMI Buy
282,789
25,166 Ordinary
05/16/18 GSAMLP Buy
126,089
11,217 Ordinary
05/16/18 GSAMI Buy
37,646
3,349 Ordinary
05/16/18 GSAMI Buy
8,566
800 Ordinary
05/16/18 GSI Buy
1,008,878
87,870 Ordinary
05/16/18 GSI Sell
13
1 Ordinary
05/16/18 GSI Buy
446,564
33,796 Ordinary
05/16/18 GSI Buy
178,620
13,518 Ordinary
05/16/18 GSI Buy
116,731
10,357 Ordinary
05/16/18 GSI Buy
13
1 Ordinary
05/16/18 GAUS Sell
220,100
19,170 Ordinary
05/17/18 GAUS Buy
243,366
20,622 Ordinary
05/17/18 GSI Buy
388,918
33,796 Ordinary
05/17/18 GSI Buy
252,697
21,078 Ordinary
05/17/18 GSI Buy
2,990,310
250,000 Ordinary
05/17/18 GSI Buy
2,392,248
200,000 Ordinary
05/17/18 GSI Buy
243,934
20,622 Ordinary
05/18/18 GSAMI Buy
10,778
918 Ordinary
05/18/18 GAUS Buy
277,988
24,621 Ordinary
05/18/18 GSI Buy
12
1 Ordinary
05/18/18 GSI Buy
394,213
33,796 Ordinary
05/18/18 GSI Buy
2,918,652
260,000 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
05/18/18 GSI Buy
278,398
24,621 Ordinary
05/18/18 GSI Sell
12
1 Ordinary
05/18/18 GSI Buy
181,654
16,317 Ordinary
05/21/18 GAUS Buy
13,969
1,269 Ordinary
05/21/18 GAUS Buy
94,624
8,597 Ordinary
05/21/18 GSI Sell
11
1 Ordinary
05/21/18 GSI Buy
13,955
1,269 Ordinary
05/21/18 GSI Buy
94,529
8,597 Ordinary
05/21/18 GSI Buy
11
1 Ordinary
05/22/18 GSI Sell
4,265
392 Ordinary
05/23/18 GAUS Buy
30,883
2,975 Ordinary
05/23/18 GAUS Buy
27,600
2,660 Ordinary
05/23/18 GAUS Buy
231,386
22,174 Ordinary
05/23/18 GSI Buy
11
1 Ordinary
05/23/18 GSI Buy
230,782
22,174 Ordinary
05/23/18 GSI Buy
27,573
2,660 Ordinary
05/23/18 GSI Buy
30,852
2,975 Ordinary
05/23/18 GSI Sell
11
1 Ordinary
05/24/18 GSAMLP Sell
15,134
1,479 Ordinary
05/24/18 GAUS Buy
32,363
3,010 Ordinary
05/24/18 GAUS Buy
28,867
2,685 Ordinary
05/24/18 GAUS Buy
155,068
14,536 Ordinary
05/24/18 GSI Sell
10
1 Ordinary
05/24/18 GSI Buy
3,866,842
360,000 Ordinary
05/24/18 GSI Buy
154,853
14,536 Ordinary
05/24/18 GSI Buy
28,839
2,685 Ordinary
05/24/18 GSI Buy
32,331
3,010 Ordinary
05/24/18 GSI Buy
10
1 Ordinary
05/25/18 GSI Sell
52,559
4,816 Ordinary
05/25/18 GSI Sell
61,144
5,589 Ordinary
05/25/18 GSI Sell
2,826
256 Ordinary
05/28/18 GAUS Buy
15,580
1,451 Ordinary
05/28/18 GAUS Buy Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
104,707 9,750
05/28/18 GSI Buy
11
1 Ordinary
05/28/18 GSI Buy
15,564
1,451 Ordinary
05/28/18 GSI Buy
104,602
9,750 Ordinary
05/28/18 GSI Sell
11
1 Ordinary
05/29/18 GSI Sell
11
1 Ordinary
05/29/18 GSI Buy
179,018
17,125 Ordinary
05/29/18 GSI Sell
1,928
183 Ordinary
05/29/18 GSI Buy
11
1 Ordinary
05/30/18 GSAMLP Buy
374,152
34,389 Ordinary
05/30/18 GSAMLP Sell
204
19 Ordinary
05/30/18 GSAMLP Sell
890,402
82,765 Ordinary
05/30/18 GSAMLP Sell
1,070,473
99,503 Ordinary
05/30/18 GAUS Buy
207,755
19,647 Ordinary
05/30/18 GSI Buy
205,661
19,647 Ordinary
05/30/18 GAUS Buy
254,838
23,643 Ordinary
05/31/18 GSAMLP Buy
845,338
77,768 Ordinary
05/31/18 GSAMI Buy
125,549
11,550 Ordinary
05/31/18 GSAMI Buy
54,437
5,008 Ordinary
05/31/18 GAUS Buy
44,967
4,125 Ordinary
05/31/18 GAUS Buy
5,617
515 Ordinary
05/31/18 GAUS Sell
7,499
698 Ordinary
05/31/18 GAUS Buy
302,337
27,672 Ordinary
05/31/18 GSI Buy
11
1 Ordinary
05/31/18 GSI Buy
302,831
27,672 Ordinary
05/31/18 GSI Buy
5,611
515 Ordinary
05/31/18 GSI Sell
7,715
698 Ordinary
05/31/18 GSI Buy
44,922
4,125 Ordinary
05/31/18 GSI Sell
11
1 Ordinary
05/31/18 GAUS Sell
253,756
23,643 Ordinary
05/31/18 GSI Buy
685,344
63,855 Ordinary
06/01/18 GSAMLP Buy
113,780
10,888 Ordinary
06/01/18 GSAMI Buy
110,394
10,564 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
06/01/18 GSAMLP Buy
23,042
2,205 Ordinary
06/01/18 GSI Sell
11
1 Ordinary
06/01/18 GSI Buy
4,842,257
465,096 Ordinary
06/01/18 GSI Buy
794,807
76,340 Ordinary
06/01/18 GSI Buy
34,396
3,309 Ordinary
06/01/18 GSI Sell
46,230
4,450 Ordinary
06/01/18 GSI Buy
33,064
3,180 Ordinary
06/01/18 GSI Sell
2,569
247 Ordinary
06/01/18 GSI Buy
11
1 Ordinary
06/04/18 GSAMI Buy
5,248
501 Ordinary
06/04/18 GSAMLP Buy
5,121
490 Ordinary
06/04/18 GSAMLP Buy
5,121
490 Ordinary
06/04/18 GAUS Sell
6,021
576 Ordinary
06/04/18 GSI Buy
6,979,136
675,000 Ordinary
06/04/18 GSI Buy
1,052,408
101,070 Ordinary
06/04/18 GSI Buy
729,998
70,000 Ordinary
06/04/18 GSI Sell
5,916
576 Ordinary
06/05/18 GSAMLP Buy
12,306
1,168 Ordinary
06/05/18 GSAMLP Buy
6,079
577 Ordinary
06/05/18 GSAMLP Buy
4,572
434 Ordinary
06/05/18 GSAMLP Buy
1,559
148 Ordinary
06/05/18 GSAMLP Buy
1,306
124 Ordinary
06/05/18 GAUS Sell
13,256
1,298 Ordinary
06/05/18 GSI Buy
10
1 Ordinary
06/05/18 GSI Buy
49,482
4,588 Ordinary
06/05/18 GSI Buy
2,151,214
200,000 Ordinary
06/05/18 GSI Buy
610,687
56,684 Ordinary
06/05/18 GSI Sell
13,934
1,298 Ordinary
06/05/18 GSI Sell
10
1 Ordinary
06/05/18 GSI Sell
186
17 Ordinary
06/06/18 GSAMLP Buy
4,548
422 Ordinary
06/06/18 GSAMLP Buy
3,632
337 Ordinary
06/06/18 GSI Sell
11
1 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
06/06/18 GSI Buy
3,988,574
367,580 Ordinary
06/06/18 GSI Buy
1,521,033
140,000 Ordinary
06/06/18 GSI Buy
69,011
6,346 Ordinary
06/06/18 GSI Sell N/A
12,692 Ordinary
06/06/18 GSI Buy
11
1 Ordinary
06/07/18 GSAMLP Buy
2,130
194 Ordinary
06/07/18 GSAMLP Buy
1,741
153 Ordinary
06/07/18 GAUS Sell
7,189
667 Ordinary
06/07/18 GSI Buy
506,678
45,548 Ordinary
06/07/18 GSI Buy
5,807,964
520,000 Ordinary
06/07/18 GSI Buy
4,326,322
386,000 Ordinary
06/07/18 GSI Sell
7,432
667 Ordinary
06/07/18 GSI Buy
88,419
7,933 Ordinary
06/07/18 GSI Buy
16,977
1,520 Ordinary
06/07/18 GSI Sell
18,049
1,586 Ordinary
06/08/18 GSAMLP Buy
1,737
151 Ordinary
06/08/18 GSAMLP Sell
15,745
1,389 Ordinary
06/08/18 GAUS Sell
7,444
663 Ordinary
06/08/18 GSI Buy
11
1 Ordinary
06/08/18 GSI Buy
1,444,962
126,500 Ordinary
06/08/18 GSI Sell
7,560
663 Ordinary
06/08/18 GSI Sell
11
1 Ordinary
06/11/18 GSAMLP Buy
4,212
365 Ordinary
06/11/18 GSAMLP Buy
1,408
122 Ordinary
06/12/18 GSAMLP Buy
19,109
1,649 Ordinary
06/12/18 GSAMLP Buy
13,883
1,198 Ordinary
06/12/18 GSAMLP Buy
7,625
658 Ordinary
06/12/18 GSAMLP Buy
5,806
501 Ordinary
06/12/18 GSAMLP Buy
2,897
250 Ordinary
06/12/18 GSI Sell
11
1 Ordinary
06/12/18 GSI Buy
1,196,318
101,764 Ordinary
06/12/18 GSI Buy
2,123,252
185,000 Ordinary
06/12/18 GSI Buy Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
11 1
06/12/18 GAUS Buy
387,040
33,921 Ordinary
06/12/18 GSI Sell
2,413
212 Ordinary
06/13/18 GSAMLP Buy
11,224
976 Ordinary
06/13/18 GSI Buy
697,797
60,678 Ordinary
06/13/18 GSI Sell
411,132
36,197 Ordinary
06/13/18 GSI Buy
3,741
327 Ordinary
06/14/18 GSAMLP Buy
7,118
631 Ordinary
06/14/18 GSI Buy
11
1 Ordinary
06/14/18 GSI Buy
168,049
14,722 Ordinary
06/14/18 GSI Buy
193,606
16,961 Ordinary
06/14/18 GSI Sell
11
1 Ordinary
06/14/18 GSI Sell
2,285
200 Ordinary
06/15/18 GSI Sell
11,733
1,028 Ordinary
06/15/18 GSI Buy
1,198,346
104,204 Ordinary
06/15/18 GSI Buy
11
1 Ordinary
06/18/18 GSI Buy
787,577
67,778 Ordinary
06/18/18 GSI Buy
1,591,108
135,556 Ordinary
06/19/18 GSAMLP Buy
17,449
1,516 Ordinary
06/19/18 GSAMLP Buy
11,315
976 Ordinary
06/19/18 GSAMLP Buy
1,808
156 Ordinary
06/19/18 GSAMLP Buy
1,009
87 Ordinary
06/19/18 GSAMLP Buy
927
80 Ordinary
06/19/18 GSI Buy
12
1 Ordinary
06/19/18 GSI Buy
155,869
13,556 Ordinary
06/19/18 GSI Buy
779,324
67,778 Ordinary
06/19/18 GSI Sell
12
1 Ordinary
06/20/18 GSAMLP Buy
1,843
157 Ordinary
06/20/18 GSAMLP Sell
110,947
9,482 Ordinary
06/20/18 GAUS Buy
31,060
2,645 Ordinary
06/20/18 GAUS Buy
34,397
2,930 Ordinary
06/20/18 GSI Buy
17,526
1,489 Ordinary
06/20/18 GSI Sell
12
1 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
06/20/18 GSI Buy
31,029
2,645 Ordinary
06/20/18 GSI Buy
34,362
2,930 Ordinary
06/20/18 GSI Buy
731,954
62,347 Ordinary
06/20/18 GSI Buy
1,734
148 Ordinary
06/20/18 GSI Sell
2,298
196 Ordinary
06/20/18 GSI Buy
12
1 Ordinary
06/21/18 GSAMLP Buy
17,581
1,447 Ordinary
06/21/18 GSAMLP Buy
11,907
980 Ordinary
06/21/18 GSAMLP Buy
4,284
353 Ordinary
06/21/18 GSAMLP Buy
1,735
143 Ordinary
06/21/18 GSI Buy
4,448,767
376,951 Ordinary
06/21/18 GSI Buy
775,816
64,274 Ordinary
06/21/18 GAUS Sell
1,092,520
90,512 Ordinary
06/21/18 GSI Sell
4,448,767
376,951 Ordinary
06/21/18 GAUS Buy
674,571
56,591 Ordinary
06/21/18 GSI Buy
4,493,295
376,951 Ordinary
06/21/18 GSI Sell
357,913
30,026 Ordinary
06/22/18 GSAMLP Buy
1,374
115 Ordinary
06/22/18 GSI Buy
12
1 Ordinary
06/22/18 GSI Buy
149,028
12,471 Ordinary
06/22/18 GSI Buy
569,131
47,626 Ordinary
06/22/18 GAUS Buy
159,189
13,555 Ordinary
06/22/18 GAUS Buy
318,366
27,109 Ordinary
06/22/18 GSI Sell
12
1 Ordinary
06/25/18 GSAMLP Buy
7,176
616 Ordinary
06/25/18 GSI Buy
105,177
9,029 Ordinary
06/25/18 GSI Sell
12
1 Ordinary
06/25/18 GSI Buy
555,763
47,705 Ordinary
06/25/18 GSI Buy
12
1 Ordinary
06/25/18 GAUS Sell
186,440
15,927 Ordinary
06/26/18 GSAMLP Buy
4,463
386 Ordinary
06/26/18 GSAMLP Buy
2,983
258 Ordinary
06/26/18 GSAMLP Buy
2,208
191 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
06/26/18 GSAMLP Buy
1,942
168 Ordinary
06/26/18 GSI Sell
61,280
5,217 Ordinary
06/26/18 GSI Buy
61,280
5,217 Ordinary
06/26/18 GSI Buy
61,477
5,217 Ordinary
06/26/18 GSI Sell
61,280
5,217 Ordinary
06/27/18 GSAMLP Sell
1,236,916
104,923 Ordinary
06/27/18 GSI Sell
4,337
370 Ordinary
06/27/18 GSI Buy
14,939
1,271 Ordinary
06/28/18 GSI Buy
1,133,946
97,000 Ordinary
06/28/18 GAUS Buy
839,413
72,756 Ordinary
06/28/18 GSI Buy
624,506
54,156 Ordinary
06/28/18 GSI Buy
214,488
18,600 Ordinary
06/28/18 GSI Borrow of securities N/A
100,000 Ordinary
06/28/18 GSI Buy
1,138,537
97,062 Ordinary
06/28/18 GAUS Buy
35,197
3,049 Ordinary
06/28/18 GSI Buy
3,081
264 Ordinary
06/28/18 GAUS Buy
238,578
20,667 Ordinary
06/29/18 GSAMLP Buy
2,070
176 Ordinary
06/29/18 GSI Buy
848,912
73,836 Ordinary
06/29/18 GAUS Buy
5,779,556
501,888 Ordinary
06/29/18 GSI Buy
4,301,088
373,688 Ordinary
06/29/18 GSI Buy
1,475,561
128,200 Ordinary
06/29/18 GSI Buy
52,765
4,592 Ordinary
07/02/18 GSAMLP Buy
11,156
976 Ordinary
07/02/18 GSAMLP Buy
10,939
957 Ordinary
07/02/18 GSAMLP Sell
6,652
577 Ordinary
07/02/18 GSI Buy
767,874
67,761 Ordinary
07/02/18 GSI Buy
155,794
13,552 Ordinary
07/02/18 GAUS Buy
3,607,666
316,785 Ordinary
07/02/18 GSI Buy
2,685,006
235,885 Ordinary
07/02/18 GSI Buy
920,860
80,900 Ordinary
07/02/18 GAUS Sell
76,786
6,776 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
07/02/18 GAUS Sell
307,156
27,105 Ordinary
07/03/18 GSAMLP Buy
34,236
2,882 Ordinary
07/03/18 GSAMLP Buy
12,984
1,093 Ordinary
07/03/18 GSAMLP Buy
7,793
656 Ordinary
07/03/18 GSAMLP Buy
2,495
210 Ordinary
07/03/18 GSAMLP Buy
1,675
141 Ordinary
07/03/18 GSAMLP Buy
1,604
135 Ordinary
07/03/18 GSAMLP Buy
1,509
127 Ordinary
07/03/18 GSAMLP Buy
1,497
126 Ordinary
07/03/18 GSAMLP Buy
1,224
103 Ordinary
07/04/18 GAUS Buy
310,954
27,105 Ordinary
07/05/18 GSI Buy
18,058
1,594 Ordinary
07/05/18 GSI Buy
774,938
67,761 Ordinary
07/05/18 GSI Buy
475,941
41,207 Ordinary
07/05/18 GSI Buy
694,178
60,102 Ordinary
07/06/18 GSAMLP Buy
3,304
285 Ordinary
07/06/18 GSAMLP Buy
1,867
161 Ordinary
07/06/18 GSAMLP Buy
1,507
130 Ordinary
07/06/18 GSI Buy
1,546,858
135,523 Ordinary
07/06/18 GSI Buy
386,717
33,881 Ordinary
07/06/18 GSI Buy
232,024
20,328 Ordinary
07/06/18 GSI Buy
375,406
32,644 Ordinary
07/06/18 GAUS Sell
270,706
23,717 Ordinary
07/09/18 GSI Buy
233,214
20,328 Ordinary
07/09/18 GSI Buy
19,495
1,710 Ordinary
07/09/18 GSI Buy
648,408
56,679 Ordinary
07/10/18 GSI Sell
112,764
9,671 Ordinary
07/10/18 GSI Sell
156,092
13,387 Ordinary
07/11/18 GSAMLP Buy
3,766
320 Ordinary
07/11/18 GAUS Buy
8,667,356
750,000 Ordinary
07/11/18 GSI Buy
8,838,906
750,000 Ordinary
07/11/18 GSI Buy
8,838,906
750,000 Ordinary
07/11/18 GSI Sell
52,141
4,430 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
07/11/18 GSI Buy
296,757
25,213 Ordinary
07/11/18 GSI Sell
6,809
580 Ordinary
07/12/18 GSAMLP Buy
2,276
194 Ordinary
07/12/18 GSAMLP Buy
2,011
177 Ordinary
07/12/18 GSI Buy
656,881
57,255 Ordinary
07/12/18 GSI Buy
278
2,779,429 Ordinary
07/12/18 GSI Sell
54,380
4,787 Ordinary
07/13/18 GSAMI Buy
13,306
1,160 Ordinary
07/13/18 GSAMLP Buy
4,772
419 Ordinary
07/13/18 GSAMLP Buy
1,526
134 Ordinary
07/13/18 GSAMLP Sell
15,669
1,366 Ordinary
07/13/18 GSI Sell
5,845
513 Ordinary
07/13/18 GAUS Buy
1,947,901
171,888 Ordinary
07/13/18 GAUS Buy
1,699,973
150,000 Ordinary
07/13/18 GSI Buy
1,946,939
171,888 Ordinary
07/13/18 GSI Buy
1,699,117
150,000 Ordinary
07/16/18 GSAMI Buy
1,511,053
133,000 Ordinary
07/16/18 GSAMLP Buy
17,826
1,572 Ordinary
07/16/18 GSAMLP Buy
397
35 Ordinary
07/16/18 GSAMLP Sell
1,179
104 Ordinary
07/16/18 GSAMLP Sell
5,681
501 Ordinary
07/17/18 GSAMLP Buy
2,599
228 Ordinary
07/17/18 GSAMLP Buy
1,733
152 Ordinary
07/17/18 GSI Buy
758,195
67,736 Ordinary
07/17/18 GSI Buy
227,461
20,321 Ordinary
07/17/18 GAUS Buy
3,350,578
305,742 Ordinary
07/17/18 GAUS Buy
548,514
50,000 Ordinary
07/17/18 GSI Buy
2,472,642
225,742 Ordinary
07/17/18 GSI Buy
548,236
50,000 Ordinary
07/17/18 GSI Buy
876,272
80,000 Ordinary
07/18/18 GSAMLP Buy
10,746
976 Ordinary
07/18/18 GSAMLP Buy
9,876
897 Ordinary
07/18/18 GAUS Sell
8,624
785 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
07/18/18 GSI Buy
734,527
67,459 Ordinary
07/18/18 GSI Buy
103,256
9,483 Ordinary
07/18/18 GAUS Buy
4,550,198
415,435 Ordinary
07/18/18 GSI Buy
3,343,722
305,435 Ordinary
07/18/18 GSI Sell
8,605
785 Ordinary
07/18/18 GSI Buy
1,204,215
110,000 Ordinary
07/19/18 GAUS Sell
7,694
706 Ordinary
07/19/18 GAUS Buy
8,227,986
755,000 Ordinary
07/19/18 GSI Buy
8,071,654
755,000 Ordinary
07/19/18 GSI Buy
8,071,654
755,000 Ordinary
07/19/18 GAUS Buy
190,628
17,788 Ordinary
07/19/18 GSI Buy
190,531
17,788 Ordinary
07/19/18 GSI Sell
7,567
706 Ordinary
07/20/18 GAUS Sell
14,042
1,315 Ordinary
07/20/18 GSI Sell
4,105
387 Ordinary
07/20/18 GAUS Buy
149,476
14,116 Ordinary
07/20/18 GSI Buy
149,400
14,116 Ordinary
07/20/18 GSI Sell
13,934
1,315 Ordinary
07/23/18 GSAMLP Buy
2,509
234 Ordinary
07/23/18 GSAMLP Buy
1,484
142 Ordinary
07/23/18 GAUS Buy
7,976,336
755,000 Ordinary
07/23/18 GAUS Buy
3,541,795
339,479 Ordinary
07/23/18 GSI Buy
3,540,022
339,479 Ordinary
07/24/18 GSAMLP Buy
4,389
420 Ordinary
07/24/18 GSAMLP Buy
2,029
194 Ordinary
07/24/18 GSAMLP Buy
1,972
186 Ordinary
07/24/18 GSAMLP Buy
1,433
137 Ordinary
07/24/18 GSAMLP Buy
952
91 Ordinary
07/24/18 GSAMLP Buy
481
46 Ordinary
07/24/18 GAUS Buy
7,069,455
673,614 Ordinary
07/24/18 GSI Buy
7,065,926
673,614 Ordinary
07/24/18 GSI Buy
243,687
23,200 Ordinary
07/24/18 GSI Borrow of securities N/A
300,000 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
07/24/18 GSI Borrow of securities N/A
200,000 Ordinary
07/25/18 GSAMLP Buy
5,045
465 Ordinary
07/25/18 GSAMLP Buy
2,550
235 Ordinary
07/25/18 GAUS Buy
230,163
21,238 Ordinary
07/25/18 GAUS Buy
5,536,316
513,818 Ordinary
07/25/18 GSI Buy
5,533,571
513,818 Ordinary
07/25/18 GSI Buy
60,017
5,600 Ordinary
07/25/18 GSI Buy
230,144
21,238 Ordinary
07/25/18 GSI Borrow of securities N/A
600,000 Ordinary
07/26/18 GAUS Buy
13,953
1,283 Ordinary
07/26/18 GAUS Sell
15,967
1,478 Ordinary
07/26/18 GSI Buy
8,111
750 Ordinary
07/26/18 GAUS Buy
2,157,222
200,000 Ordinary
07/26/18 GSI Buy
2,156,135
200,000 Ordinary
07/26/18 GSI Sell
15,926
1,478 Ordinary
07/26/18 GSI Buy
13,951
1,283 Ordinary
07/26/18 GSCO Borrow of securities N/A
400,000 Ordinary
07/26/18 GSI Buy
375,143
34,897 Ordinary
07/26/18 GSI Buy
2,223
207 Ordinary
07/26/18 GAUS Buy
218,648
20,321 Ordinary
07/27/18 GSAMI Buy
6,439
594 Ordinary
07/27/18 GSAMLP Sell
13,122
1,213 Ordinary
07/27/18 GAUS Buy
3,852,948
357,714 Ordinary
07/27/18 GAUS Buy
2,144,586
200,000 Ordinary
07/27/18 GAUS Sell
2,230
207 Ordinary
07/27/18 GAUS Buy
2,153,118
200,000 Ordinary
07/27/18 GSI Buy
2,152,051
200,000 Ordinary
07/27/18 GAUS Buy
145,431
13,532 Ordinary
07/27/18 GSI Sell
79,751
7,400 Ordinary
07/27/18 GSI Sell
2,224
207 Ordinary
07/27/18 GSI Buy
23,160
2,155 Ordinary
07/27/18 GSI Buy
122,271
11,377 Ordinary
07/27/18 GSI Buy
3,850,257
357,714 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
07/27/18 GSI Buy
2,144,586
200,000 Ordinary
07/27/18 GSCO Borrow of securities N/A
364,000 Ordinary
07/27/18 GSI Borrow of securities N/A
350,000 Ordinary
07/30/18 GSAMLP Sell
571
53 Ordinary
07/30/18 GAUS Buy
652,902
61,588 Ordinary
07/30/18 GSI Sell
117,793
11,100 Ordinary
07/30/18 GSI Buy
103,976
9,808 Ordinary
07/30/18 GSI Buy
548,926
51,780 Ordinary
07/30/18 GSI
Return of borrowed
securities N/A
47,438 Ordinary
07/31/18 GAUS Buy
2,101,830
200,000 Ordinary
07/31/18 GSI Buy
2,100,784
200,000 Ordinary
07/31/18 GAUS Buy
338,135
32,278 Ordinary
07/31/18 GAUS Buy
4,190,982
400,000 Ordinary
07/31/18 GSI Buy
629,540
60,055 Ordinary
07/31/18 GSI Buy
4,184,696
400,000 Ordinary
07/31/18 GSI Buy
53,845
5,140 Ordinary
07/31/18 GSI Buy
284,290
27,138 Ordinary
07/31/18 GSI Borrow of securities N/A
131,175 Ordinary
08/01/18 GSAMI Buy
12,005
1,147 Ordinary
08/01/18 GSI Buy
156,716
15,182 Ordinary
08/01/18 GAUS Buy
427,709
41,394 Ordinary
08/01/18 GAUS Buy
686,931
65,804 Ordinary
08/01/18 GSI Buy
522,543
50,350 Ordinary
08/01/18 GSI Buy
685,900
65,804 Ordinary
08/01/18 GSI Buy
59,010
5,711 Ordinary
08/01/18 GSI Buy
368,700
35,683 Ordinary
08/01/18 GSCO Borrow of securities N/A
430,400 Ordinary
08/01/18 GSI Buy
72,541
7,000 Ordinary
08/02/18 GSAMLP Sell
344
33 Ordinary
08/02/18 GAUS Buy
169,570
16,315 Ordinary
08/02/18 GAUS Buy
1,330,431
127,535 Ordinary
08/02/18 GSI Buy
1,758,294
170,000 Ordinary
08/02/18 GSI Buy
1,328,438
127,535 Ordinary
Date of
change
Person whose relevant
interest changed
Nature of
Change
Consideration given in
relation to change
(NZD)
Number of
Securities
Class
08/02/18 GSI Buy
23,394
2,251 Ordinary
08/02/18 GSI Buy
146,162
14,064 Ordinary
Signature
Print name:
Haruka Araki
(signing under power of
attorney)
Capacity:
Attorney
Sign here:
Date:
13 August 2018
Annexure C – Relevant Agreements
Part A
6
>
3%
£222
€
DATED
.1
Ve 'sion: DECEMBER
1995
OVERSEAS SECURITIES LENDER'S AGREEMENT
Clifford
Chance,
200 Aldersgate Street
London. ECIA
4JJ
Reif TJH
@
~
CONTENTS
Clause
1.
INTERPRETATION
2.
LOANS OF SECURITIES
3.
DELIVERY OF SECURITlES
4.
RIGHTS AND TITLE
5,
RATES
.
6.
COLLATERAL
7.
REDELIVERY OF EQUlVALENT SECURITlES
8.
SET-OFF ETC
9.
TAXATlON
10
LENDER'S WARRANTIES
11,
BORROWER'S WARRANTIES
12.
EVENTS OF DEFAULT
13.
OUTSTANDING PAYMENTS
l4.
TRANSACTIONS ENTERED INTO AS AGENT
l5,
TERMINATION OF COURSE OF DEALINGS BY NOTICE
..
16,
GOVERNlNG PRACTICES
17.
OBSERVANCE OF PROCEDURES
18.
SEVERANCE
19.
SPEClFlC PERFORMANCE
20.
NOTICES
21.
ASSIGNMENT
22.
NON
-
WAIVER
234
ARBITRATlON AND JURISDICTION
24.TIME
25.
RECORDING
26,
GOVERNING LAW
SCHEDULE A
SCHEDULE B
(Tax Addendum)
....
Page
.,1
.14
.15
.15
.17
.18
.22
.23
...25
...26
..... 27
...27
...28
...29
..... 30
,,,31
...31
...31
...31
...31
..... 32
...32
...32
...32
...32
...32
%
THIS AGREEMENT
is made the
day
of
,
2004
BETWEEN:-
(1)
Royal Tmst Corporation
of
Canada,
a
company incoxporated under the laws
of
Canada
whose registered office is at Royal Tmst Tower, 77 King Street, West, 35"' Floor, Toronto,
Ontario. Canada. MSW 1P9; and
(2)
Goldman Sachs Intemational, an unlimited companyincorporated ul lderthe laws
of
England
whose registered oftlce is
at Peterborough Court,
133
Fleet Street, London EC4A ZBB,
England.
WHEREAS:-
l.
The Panies hereto are desirous
of
agreeing
a
procedure whereby
aither one
of
them (the
"Lender") will
make available to the other
of
them (the
"Borrov 'er") from time to time
Securities (as hereinafier deflned) in order to enable the Bonowe
,
subject to any hqland
Revenue provisions then in force, to
fulfil
a
contract to sell such Secl uities er to on-lend such
Securities to
a
third pany to enable such pany to fulfil
a
contract to sell such Securities,
whether or not
as
pan
of
a
chain
of
arrangements to enable the fin;
1
pany in such chain to
fulill
a
contract to sell such Securities 0r to replace an existing lo;m
of
Securities to such
third party, er for other purposes.
2.All
transactions carried out under this Agreement
will
be effected in accordance with the
Rules (as hereinalier defined)
TOGETHER WITH
current marke
practices, customs and
convent10ns.
NOWTHIS AGREEMENT WITNESSETH ANDITIS HEREBYAGILEED AS FOLLOWS:
1.
INTERPRETATION
(A)
In this Agreement:
-
"Act of lnsolvency"
means
in relation to either Party
(i)
its
making
a
general
assigrunen1
for the benefit of,
or
entenng
1nto a reorgan1zat10n,
am ngement, or composit10n
with creditors, or
1
~
(ii)
(iii)
(iv)
iv)
(vi)
llagentvv
"Alternative Collateral"
its admitting in writing that it
is
mable to pay its debts
as
they become due, or
its seeking, consentingto or acquisscing in the appointment
of
any
tmstee,
administrator,
rsceiveror
liquidator
or
analogous officer
of it or any male dal pan
of
its property, or;
the presentation er Hling
of
a
petition in respect
of it (other
than by the other Pany to this Agreement in respect
of
any
obli gation under this Agreement) in any coun or before any
agency
alleging
er
for
the
bankmptcy,
winding
-up
or
insolvency
of
such Pany (or any malogous proceeding) or
seeking any reorganization, arrar gement, composition, re
-
adjustment,
administration,
liqxidation,
dissolutionor
similar relief under any present or future
statute,
lawor
regulation, such petition (except ja the case
of
a
petition for
winding
-
up or any analogous pro( eeding inrespect
of
which
no such 30 daypeiiod shall applyj not havingbeen stayedor
dismissed
within
30 days
of
its 5 ing;
the appointment
of
a
receiver, acministrator, liquidator or
tmstee or analogous officer
of
sxch pany over all or any
material pan
of
such
pany's property; or
the convening
of anymeetingof
il
s
creditors for the purpose
of
considering
a
voluntary arrar gement
as
referred to in
Section
3
of
the Insolvency Act
1986
(or any analogous
proceeding;
shall have the same meaning give n in Clause 14;
means Collateral
of
a
Value equal to the Collateral delivered
pursuant to Clause 6 and provider by
wayof
substitution for
Collateral originally delivered
ox
previously substituted in
accordance
with
the provisions
0
'Clauses 6(F) or 6(G);
2
~
"Appropriate Tax Vouchers"
means:
"Approved UK Collecting Agent"
"Approved lntermediary"
"Assured Payment"
(i)
either such tax vouchers
£
nd/or cenificates
as
shall
enable the recipient to
c1£
im and receive from any
relevant
tax
authority,
in
respect
of
interest,
dividends,
distribution
and/or
other
amounts
(including
for
the
av( üidance
of
doubt
any
manufactured
payment)
relating
to
particular
Secu1ities, all and any repayment
0f
tax or benefit
of
tax credit to which the Lender would have been
entitled but for the loan
0*
'Secudties in accordance
with this Agreement and/ Jr to which the Lender is
entitled in respect
of
tax withheldand accounted
for in
respect
of
any mznufactured payment;
er
suchtax
vouchers
an(/or
cenificates
as
are
provided
by
theBorrowerwhich
evidencean
amount
of
overseas
rai
deducted
whichshall
enable the recipient to
clz
im
and receive from any
relevant tax authority all und anyrepayment
of
tax
from the UK Inland Re'/enue or benefits
of
tax
credit
in
the
jurisdict
on
of
the
recipient's
residence; and
(ii)
such
vouchers
and/or
ceni6<mtes
in
respect
of
interest,
dividends,
dis ;ributions
and/or
other
amounts relating to partiuular Collateral;
means
a
person who is approved
£ s
suchfor the purposes
of
theRules
of
the
UK
lnlam
Revenue
relating
to
stocklending and manufactured
i1
1terest and dividends;
means
a
person who is approved
€
s
such forthe purposes
of
the Rules
of UK Inland
Revenue
relating to stocklending
and manufactured interest and di lidends;
means
a
payment obligation
of
a
Settlement Bank a1ising
(under the Assured Papnem Ag 'eement)
as a result
of
a
transfer
of
stock or other secu1itie
;
to
a
CGO stock account
of
a
member
of
the CGO for who:
n
that Settlement Bank is
actmg;
3
"Assured Payment Agreement"
"Base Currency"
"Bid Price"
"Brd Value"
means an agreement dated 24 October 1986 between the
Bank
of
England and all other ban ks which are for the time
being acting
as
Settlement Bank:in relation to the CGO
regulating the obligations
of
such banks to make payments
in respect
of
transfers
of
securit
es
through the CGO
as
supplemented and amended
fi
-
om time to time;
has the meaning given in the
Sch<
:dule hereto;
in relation to Equivalent Secu1itie; er Equivalent Collateral
means
the
best
available brd prce thereof on the most
appropriate market in
a
standard :.ize;
Subject to Clause 8(E) means:-
(a)
in relation to Equivalent Collateral at
a
particulax
time:
-
iii
in relation to Collateral Types B(x) and C
(more
specifica
ly
referredto
in
the
Schedule) the Vz lue thereof
as
calculated
in accordance with such Schedule;
(ii)
in relation to all other types
of
Collateral
(more
specifica ly
referredto
in
the
Schedule)
the
anount
whichwould
be
received on
a sah
:
of suchcollateral
at the
Brd
Price there(f
atsuch
times
less
all
costs,
feesand
zxpenses
that
would be
incu1red
in
conlection
with
selling
or
otherwise
reali ;ing
such
Equivalent
Collateral,
calcu ated on the assumption
that the aggregat
=
thereof is the least that
could reasonabl)
be expected to
be paid
in
order
to
cerry
out
suchsale
or
realisation and
aw
lding thereto the amount
of
any interest, d vidends, distributions or
other amounts p ltd to the Lender and in
respect
of which aquivalent amounts have
not
been
paid
to
the
Bonower
in
4
"Borrower"
"Borrowing Request"
"Business Day"
"Cash Collateral"
accordance
with
Clause 6(G)pliOrtO such
time
in
respeu
of
such
Equivalent
Collateral or
the
original Collateral held
gross
of
all
and
any
tax deducted or paid
in respect thereoE
and
(b)
in relation to Equivalent Securitics
at a
panicular
time the amount which w ould be received on
a sale
of
such
Equivalent
Securities
at
theBrd
Price
thereof
at
such
time
lass
all
costs,
feesand
expenses
thatwould
be
incurred
in
connection
therewith,
calculated on the assumption that the
aggregate thereof is the
l<
ast that could reasonably
be
expected to be paid
n order to can'y out the
transact10n;
with
respect
to
a
panicular joan
of
Secuiities means the
Borrower
as
referred to in Recita
l of
this Agreement;
means
a
request made (by telephane er Otheiwise) by the
Borrower to the Lender pursuant
l
o Clause 2(A) specifying
the description, title and amount
of
the Securitim required
by
the
Boxrower,
the
proposei
Settlement
Date
and
duration
of
such joan and the date, time, mode and place
of
de1ive1y
which shall, where releve nt, include thebankagent
clea1ing or settlement system and accountto which delive1y
of
the Secu1ities is to be made;
means
a
day on which banks ard secudties markets
are
open for business generally in London and, in relation to
the delivery or redeliveryof any
o
fthe fo1lowing in relation
to any loan, in the place(s) wher: the relevant Securities,
Equivalent
Secuxities,
Collateral
(including
Cash
Collateral) er Equivalent Collate1 al are to be delivered;
means
Collateral
thattakes
thu
fonn
of
a
deposit
of
currency;
5
"Central Gilts Office"
"CGO Collateral"
"CGO Rules"
"Close of Business"
"Collateral"
"Defaulting Party"
"Equivalent Collateral"
or
"Collateral equivalent to"
means the computer based systen
managedbytheBank or
"CGO" of
England to facilitate
l
he book-entrytransfer
of
gilt
-edged securities;
Shall have the meaning specifiej in paragraph A of the
Schedule;
means the requirements
of
the C 3O for the time being in
force
as
deflned in the membership agreement regulating
membership
of
the CGO;
means the time at whichbanl<s close in the business centre
in which payment is to
be
male er Collateral is to
be
delivered;
means such secu1ities er financial instmments or deposits
of
cunency
as are referred to in
tre
Schedule hereto or any
combination thereof which are del ivered bythe Bonower to
the Lender in accordance with
his
Agreement and shall
includethe
ceniicates
and
(thor
documents
of
or
evidencing title and transfer in
re: ;pect
of
the foregoing
(as
appropriate), and shall include
A
temative Collateral;
shall have the meaning given in (ilause
12;
in relation to any Collateral provi( cd underthis Agreement
means securities, cash er other property,
as
the case maybe,
of
an identical type, nominalvalul
:,
description andamount
lo panicular Collateral
so
provided and shall include the
cenificates and other documems
uf
er evidencingtitle
and
transfer in respect
of
the foregoin;;(as appropriate).
If
and
to the extent that such Collateral consists
of
securities that
are
panly
paid
or
have
been
converted,
subdivided,
consolidated,
redeemed,
made
tre
subject
of
a
takeover,
capitalisation issue, rights issue
(r
event similar to any
of
the
foregoing,
the
expression
shall
have
the
following
meamng:
6
(ß)
(b)
(C)
(d)
je)
(0
in
the
case
of
conversion,
subdivisionor
consolidation the secu1ities into which the relevant
Collateral
hasbeen
coaverted,
subdivided
or
consolidated PROVIDEJ) THAT,
if
appropriate,
notice has been given in accordance with Clause
4(B)(vi);
in
thecase
of
redempjon,
a
sum
of
money
equivalent to the proceeds
0f
the redemption;
in the
case
of
a
takeovzr,
a
sum
of
money
or
securities,
being the consideration or altemative
consideration
of
which
,he
Borrower
has
given
notice to the Lender in
accordance
with
Clause
4(B)(vi);
in the
case
of
a
call on
;anly
paid securities, the
paid
-
up
secu1ities
PROVIDED
THAT
the
Boxmwer shall have paid lo the Lender an amount
of
money equal to the snm due in respect
of
the
call;
in the
case
of
a
capitalisation issue, the relevant
Collateral
TOGETHER
WITH
thesecurities
allotted by way
of
a
bom
s
thereon;
in the case
of
a zi ghts isst e, the relevant Collateral
TOGETHER
WITH
the
secu1ities
allotted
thereon,
PROVIDED
l HAT
the Borrower
has
given
noticetothe
Leider
in
accordance
with
Clause 4(B)(vi), and has Jaidto the Lender alland
any sums due in respect
hereof;
7
"Equivalent Securities"
(g)
in the event that
a payme1
Lt
or deliveryof lncome is
made
in respect
of
the relevant Collateral in the
fonn
of
securities or
a
curtiticate which may
at a
future date be exchange! for secu1ities er in the
event
of
an option to take Income in the fonn
of
secuxities
or
a
cenificatcr which may at
a
future
date be exchanged for secu1ities, notice has been
given to the Borrower in accordance with Clause
4(B)(vi)
therelevant
('ollateral
TOGETHER
WITH
secu1ities
or
a
:enificate
equivalent
to
those allotted;
(h)
in
thecase
of
any
event
similar
to
any
of
the
foregoing,
the
relevant
Collateral
TOGETHER
WITH
or replaced by
a
s'
im
of moneyor securities
equivalent
to
that
received
in
respect
of
such
Collateral resulting from such event;
For
the
avoidancg
of
doubt,
in
the
case
of
Banker's
Acceptances (Collateral type B(x)), Equivalent Collateral
must bear dates, acceptances and endorsements
(if
any) by
the same entities
as
the
bill
to which it
is intended to be
equivalent and for the purposes
ofthis definition,
secu1ities
are
equivalem
toother
securitiEs
where
they
are
of
an
identical type, nominal value,
des
c1iption and amount and
such tenn shall include the
cex1ifi< :are and
other documents
of
or
evidencing
title
andtra:1sfer
in
respect
of
the
foregoing
(as
appropiiate);
meanssecurities
of
an
identic;ll
type,
nominal
value,
description and amount to particJlar Securitim borrowed
and
such
tenn
shall
includetkecenificates
and
other
documents
of
or evidencing title
and
transfer in respect
of
the foregoing las appropriate).
lf
and to the extent that
such
Securities
are
panly paid Jr
have been
convened,
subdivided, consolidated, redeerr ed, made the subject
of
a
takeover, capitalisation issue, lights issue or event similar to
any
of
the
foregoing,
the
expression
shall
have
the
following meaning:
8
ja)
(b)
(C)
cd)
(€)
cD
(g)
in
the
case
of
comersion,
subdivision
or
consolidation
the
secuitiesinto
which
the
bonowedSecuxities
Javebeen
convened,
subdivided er consolidatl
ad
PROVIDED THAT
if
appropdate, notice has teen given in accordance
with
Clause 4(B)(vi);
in
the
case
of
redemption,
a
sum
of
money
equivalent to the proceec
s
of
the redemption;
in
the
case
of
a
takeover,
a
sum
of
money
or
securities,
being the col sideration or altemative
consideration
of
which tke Lender has given notice
totheBorrower
in
a
=
cordance
with
Clause
4(B)(vi);
in the
case
of
a
call on partly paid securitias, the
paid
-up secu1ities PROVD)ED
THAT
the Lender
shallhave
paid
to
the
3orrower
an
amount
of
money equal to the sum
ülue
in respect
of
the call;
in the
case
of
a
capitalizz tion issue, the borrowed
Securitias
TOGETHEI1
WITH
the
secu1ities
allotted by way
of
a
bom
s
thereon;
in
the
case
of
a
ri
~
l
s
issue,
the
bonowed
Securities
TOGETHER
WITH
thesecuritias
allotted thereon. PROVIDED THAT
the Lender
has
given notice to the
3orrower in accordance
with
Clause 4(B)(vi),
and has paid to the Bonower
all and any sums due in r aspect thereof
in the event that
a
paymer t or delive1yof hlcome is
made in respect
of
the bufowed Securities in the
fom1
of
secu1ities or
a
crrtificate which may
at
a
future date be exchanged for securities or in the
event
0f
an
option to take Income in the fonn of
secu1ities
er
a
certiticate
which may
at
a
filture
date be exchanged for se:u1ities, notice has been
given to the Borrower in accordance with Clause
9
"Event of Default"
"Income"
"lncome Payment Date"
"Lender"
"Manufactured Dividend"
"Margin"
4(B)(vi)
theborrowed
Securities
TOGETHER
WITH
securities
0r
a
nertificate
equivalent
to
those allotted;
(h)
in
the
case
of
any
evert
similar to any of
the
foregoing, the borrowed 3ecu1ities
TOGETHER
WITH
or replaced by
a
s1
em
of moneyor
secu1ities
equivalent
to
that
receiled
in
respect
of
such
borrowed Securities resujting from such event;
For the purposes
of
this definition
securities are equivalent
toother
secu1ities
where
they
are
of
an
identical
type,
nominal value, description and an .ount and such term shall
include the cenificate and other dc cmnents
of
or evidencing
title
and
transfer
in
respect
of
the
foregoing
(as
appropdate);
has the meaning given in Clause
[
2;
any interest, dividends or other distxibutions
of
any kind
whatsoever with respect to any Sucuriti
~
er Collateral;
with
respect to any Securities or Collateral means the date
on which lncome
is paid in respzct
of
such Secuiities or
Collateral,
or,
in
thecase
of
registered
Securities
or
Collateral,
thedate
by
reference
to
which
panicular
registered
holders
are
identifiej
as
being
entitled
to
papnent
of
lncome;
with
respect to
a
parlicular joan
of
Secu1iti
~
means the
Lender
as
refened to in Recital
l of
this Agree1nent;
shall have the meaning given in (Ilause 4(B)(ii);
shall have the meaning specified in the Schedule hereto;
10
"Nominee"
"Non-Defaulting Party"
"Offer Price"
"Offer Value"
"Parties"
"Performance Date"
"Principal"
means an agent er
a
nominee appc inted by either Partyand
approved
(if
appropiiate)
as such
bythe Inland Revenue to
accept delivery of, hold or deliv( r Securities, Equivalent
Securities,
Collateral
and/or Equivalent Collateral on its
behalf whose appointment
has buen notified to the other
Pany;
shall have the meaning given in ( lause 12;
in relation to Equivalent Securitie; or Equivalent Collateral
means the best available offer p1ice thereof on the most
appropriate market in
a
standard size;
Subject to Clause 8(E) means:-
(a)
in relation to Collateral
equivalent to Collateral
types B
(ix)
and C (more Hpecificallyreferred to in
theSchedule
hereto)
the
Valuethereof
as
calculated in accordance with such Schedule; and
(b)
in relation to Equivalent Securities or Collateral
equivalent to all other ljpes of Collateral (more
specif1ca1lyrefe1red to in the Schedule hereto) the
amoum
it
would
cestto
boy
such
Equivalent
Securitics
or Equivalent
Collateral
at
the
Offer
Price thereof
at such
tim:
together with all costs,
feesand
expenses
that
would
be
incuwed
in
comlection therewith,
calü eulated
on the assmnption
that the aggregate there(
f
is the least that could
reasonablybe expected
t<
>
be paid in order to can
-
y
out the transaction:
means the Lender and the Borro
wer and "Pany" shall be
constmed accordingly;
shall have the meaning given in (Tlause 8;
shall have the meaning given in (llause l4;
11
"Reference Price"
"Relevant Payment Date"
means:
(a)
in
relationtothe
wluation
of
Securities,
Equivalent Securities, Cullateral and/or Collateral
equivalent
to
types
B
(li),
(viii),
(xi)
and
(xii)
(more
specifically
refered
to
in
theSchedule
hereto) such price
as
is
squal to the mid market
quotation
of
such Securit
es,
Equivalent Securities,
Collateral and/or Equiva ent Collateral
as
derived
from
a
reputable p1icing information service (such
as
the
services
provimd
by
Reuters,
Extel
Statistical
Services
an
i
Telerate)
reasonably
chosen
in
good
faith
by
theLenderor
if
unavailable the market value thereof
as
delived
from the prices or rates brd by
a
reputable dealer
for the relevant instrumunt reasonably chosen in
good faith by the Lender, in each case at Close
of
Business on the previous Business Day;
(b)
in relation to
the
valuation
of
Collateraland/or
Collateral equivalent to ( ollateral types A and
Bill
(more
specifically
refered
to
in
theSchedule
hereto),
the
CGO
Re
Terence
Price
of
such
Securities, Equivalent
So
:urilies, Collateraland/or
Equivalent Collateral the
1
current
as
detennined in
accordance
with the CGO Rules from time to time
in force.
(c)
in relation to the valualion of Collateral and/or
Collateral equivalent to ( ollateraltypes B(iii), (iv),
(v), (vi), (vii)
and
(ix), (note speciflcally referred
to in the Schedule heretoöthe market value thereof
as
derivedfrom the
rates
brd by Barclays Bank
PLCfor
such
instrumerts or,
in the
absence
of
such
a
brd,the average
of
the rates brd by two
reading
market
makers
for
such
instmments
at
Close
of
Business on the previous Business Day;
shall have the meaning given in Clause 4(B)(I);
12
"Rules"
"Securities"
"Settlement Bank"
"Settlement Date"
"Stock Exchange"
means the rules for the time being
of
the Stock Exchange
(where either Pany is
a
member
of
the Stock Exchange)
and/or
any
other
regulatory
aut101ity
whose
mles
and
regulations shall from time to tin.e affect the activities
of
the Panies pursuant to this Agre
zment
including but not
limited to the stocklendingregula ions and guidance notes
relatingto beth stocklending and1 aanufactured interestand
dividends for the time being in for :e
of
the Conmiissioners
of
the
hülandRevenueand
an;'
associated
procedures
required pursuamthereto (PROVIDED THAT in
an Event
of
Default, where either Pany
is
a
member
of
the Stock
Exchange,
theRules
and
Regulations
of
the
Stock
Exchange shall prevail);
means Overseas Securities
as
detined in the Income Tax
(StockLending)Regulations 1980
(S.1
1989No. 1299)(as
amended bythe hlcome Tax (Stocl;Lending) (Amendment)
Regulations 1990 (S.I. 1990No. 2552)and
1993 (S.l. 1993
N0. 2003)) er any statutory modification or
re
-
enactment
thereof for the time being in forc
B
which the Bonower
is
entitled to bonow from the Lendr
r
in accordance
withthe
Rules and which are the subject
cf
a
joan pursuant to this
Agreement and such temü shall in :jude the certificates and
other documents
of title in
respec;
of
the foregoing;
means
a
settlement
member
of
the
CHAPS
and
Town
Clea1ing
systems
who
hasentered
intocontractual
anangements with the CGO to p 'ovide Assured Payment
facilities for members
of
the CG0;
means
the
date
upon
whichSecu1ities
are
or are to
be
transferredto
theBorrower
ir
accordance
with
this
Agreement;
means the London Stock Exchan;
ge
Limited;
13
"Value"
at
any panicular time
means
in Iespect
of
Secuxities and
Equivalent
Secu1ities,
theReference
Pricethereof then
cunent
and
in
respect
of
Colleteral
and/or
Equivalent
Collateral such wonh
as
detennin! :d in accordance withthe
Schedule hereto.
(B)All
headings appear for convenience only and shall not affect the iaterpretation hereof
(C)
Notwithstanding the
use
of
expressions such
as
"borrow""lend"
"Collateral", "Margin",
redeliver", etc. which are used to reflect temlinology used in the
r
1arket
for transactions
of
the
kind
provided
for
in
this
Agreement,
title to
Securities"borrowed"or
"lent"
and
"Collateral" provided in accordance withthis Agreement shall pass from one Partyto another
as
provided for in this Agreement, the
Pa11y
obtaining such title being obliged to redeliver
Equivalent Securities or Equivalent Collateral
as
the case may be.
(D)
For the purposes
of
Clauses 6(H)
-
6(K)
and 8(C)-8(E)
of
this Agree1 nent or othen;vise where
a
convemion into the Base Currency is required, all
p1ices,
sums
ur values (including any
Value,
Offer
Value
and
Brd
Value)
of
Secu1ities,
Equivalent
Securitias,
Collateral
or
Equivalent Collateral (including Cash Collateral)
stated
in currencies other than the Base
Currency shall be convened into the Base Cunencyat the spot rate
c
f
exchange atthe relevant
time in the London interbank market for the purchase
of
the Base
C mencywiththe currency
concemed.
(E)
Where at anytime there is in existence anyother agreement betwee
n
the Parties the tenns
of
which make provision for the lending
of
Securities (as defined in t} is Agreement)
as
well
as
other securities the tenns
of
this Agreement shall applyto the lendin
gof
such Secu1ities to the
exclusion
of
any other such agreement.
2.
LOANS OF SECURITIES
(A)
The Lender
will
lend Secu1ities to the Borrower, and the Borrowcr
will bonowSecurities
from the Lender in accordance withthe remis and conditions
of
thin Agreement and with the
Rules
PROVIDED ALWAYS THAT
the Lender shall have receiv
ad
fi'om the Boxrowerand
accepted (by whatever means)
a
Borrowing Request.
(B)
The Borrower
has the right to reduce the amount
of
Secuxities refened to in
a
Bolrowing
Request
PROVIDED THAT
the Borrower has notiiied the Lender
of
suchreduction no later
than middayLondon time on the daywhich is two Business Days
pz
tor to the SettlementDate
unless
othenvise
agreed
between
the
Paniesandthe
Lender
si1allhave
accepted
such
reduction (by whatever means).
l4
3.
DELIVERY
OF SECURITlES
The Lender shall procure the delivery of Securities to the Borrower or deliver such Securities in
accordance
with the relevant Borrowing Request TOGETHER
WITH
approp1iate instmments
of
transfer duly slamped where necessary and such other instmments
as
ma)
be requisite to vest title
thereto in the Bonower.Such Secu1ities shall be deemed to have been deliw ered
bythe Lender to the
B01mwer on delivery to the Borrower or
as
it shall direct
of
the relevant inslmments
of
transfer, or in
the case
of
Securities held by an agent or
a
clearing or settlement system on the effective instructions
to such agent er the operator
of
such system to hold the Secu1ities absolutely for the Borrower, er by
such other means
as
may be agreed.
4.
RIGHTS AND TITLE
(A)The
Parties
shall
execute
and
deliverall
necessary
documentsand
give
all
necessary
instmctions to procure that all right, title and interest in:
(1)
any Securities borrowed pursuant to Clause 2;
(ii)
any Equivalent Secu1ities redelivered pursuant to Clause
7
;
(iii)
any Collateral delivered pursuant to Clause 6;
(iv)
any Equivalent Collateral redelivered pursuant to Clauses
6
or
7;
shall pass from one Pany to the other subject to the tenns and conditions mentioned herein
and
in accordance with the Rules, on delivery or redelivery
of
the ;ame in accordance with
this Agreement, free from all liens, charges and encumbrances.
in
the case
of
Secu1ities,
Collateral, Equivalent Securities or Equivalent Collateral title to which
is registered in
a
computer based system which provides for the recording and trans
?er
of title to the same by
wayof
book entries, delive1y and transfer
of title shall take place in accordance withthe rules
and procedures
of
such system
as
in force from time to time.
The
P 1ny acquiring such right,
title
and interest shall have no Obli gation to retum er redeliver any
of
the assets so acquired
but, in
so
far
as
any Securities are borrowed or any Collateral is delivered to such Pany, such
Pany shall
be
obliged,
subject
to
the temqs
of
this
Agreement,
to
redeliver Equivalent
Secu1ities or Equivalent Collateral
as
appropxiate.
(B)
(i)
Where Income is paid in relation to any Securities on or
b/
reference to an Income
Payment Date on which such Securities are the subject :)f
a
joan hereunder, the
Borrower shall, on the date
of
the payment
of
such hlcome, or on such other date
as
the panies may from time to time agree, (the "Relevant Fayment Date") pay and
15
(ii)
(iii)
(iv)
IV)
deliver
a
sum
of
money
er
propeny
equivalent
to
thu
same(with
any
such
endorsements or assignments
as
shall be customary and
appropliate to effect the
delivery) to the Lender or its Nominee, i1respective
of
whetlüer the Borrower received
the same.
The provisions
of
sub
-
paragraphs
(ii)to
(v) bell w shall apply in relation
hereto.
subj ect to sub
-
paragraph
(iii)
below, in the case
of
any moor
je
comp1ising
a
paymem,
the amount (the
"Manufactured Dividend")
payable bythe B01rower shall be equal
to the amount
of
the relevant lncome together with
an ajnount equivalent to any
deduction, withholding or payment for or on account of
1ax
made by the relevant
issuer (or on its behalf) in respect
of
such hlcome together
'
vithanyamount equal to
any other tax credit associated with such lncome unless
a
lesser amount is agreed
between
the Paniesor
an
Appropriale Tax Voucher (t( gether with any fi1rther
amount which may be agreed between the Partics to be
pa
id) is provided in lieu
of
such deduction, withholdingtax credit or payment.
Where either the Borrower, or any person to whom the B01rower has on
-lent the
Secudties, is unable to make payment
of
the Manufactureül Dividend to the Lender
without accountingto the Inland Revenue fqr any amount
(
f
relevant tax (as required
by Schedule 23A to the Income and Corporation Taxes Act 1988) the Borrower shall
pay to the Lender or its nominee, in cash, the Manufacture
d
Dividend
less amounts
equal
tosuch
tax.
TheBorrowershall
at
the
same
t me
if
requested
supply
Appropxiate Tax Vouchers to the Lender.
If
at any time anyManufactured Dividend falls to be paid
a 1d
neither
of
the Parties is
an
Approved UK Intemqediaryor
an
Approved UKCollec ;ing Agent, the Borrower
shall procure that the payment is paid through an Approve
d
UK htemiediary or
an
Approved UK Collecting Agent agreed bythe Partias for
iris
purpose, unless the rate
of
relevant withholding tax in respect
of
any Income that w Juld have been payable to
the Lender but for the joan
of
the Securities would have bel
:n
zero and no income tax
liability under Section
123
of
the lncome and Corporatiol Taxes Act 1988 would
have arisen in respect thereof.
In the event
of
the Borrower falling to remit either direct
,y
or by its Nominee any
sum payable pursuant to this Clause, the Borrower herebylmdenakes to pay
a
rate to
the Lender (upon demand) on the amount due and outstai ding at the rate provided
for in Clause
13
hereoflInterest on such sum shallaccme
<
lailycommencingon
and
inclusive
of
thethird
Business
Day
after
the
Relevant
Payment
Date,
unless
otherwise agreed between the Panies.
16
5.
(A)
(B)
(vi)
Each Party undertakes that where
it
holds securities
of
the same description
as
any
seculities bon
-
owed by
it or transferred to it by way of ccllateral at
a
time when
a
right to vote
arises in respect
of
such secu1ities,
it will
uue its best endeavours to
arrange for the voting1i ghts attached to such secu1ities to b : exercised in accordance
with the instmctions
of
the lender or Borrower
(as the
car
.e
may be) PROVH)ED
ALWAYS THAT
each
Pany shall use its best endeavour:, to
notifythe other of its
instmctions in writing no later than seven Business Days pr or to the dateupon which
such votes are exercisable or
as
othewvise agreed between the Parties and that the
Panyconcemed shall not be obliged
so
to exercise the
voteä
in
respect
of
a
number
of
securities greater than the number so lent or transferred to it.
For the avoidance
of
doubtthe Parties
agree
that
subject
as
hereinbefore prcvided any voting rights
attaching
totherelevant
Secu1ities,
Equivalent
Secu:ities,
Collateraland/or
Equivalent Collateral shall be exercisable by the persons in whose name they are
registered
or
in the
case
of
Securities,
Equivalent
Secuities,
Collateraland/or
Equivalent Collateral in bearer fonn, the persons by or on behalf
of
whom they are
held, and not necessarilyby the B01rower er the Lender
(€ s
the case may be).
(vii)
Where, in respect
of
anyborrowed Securiti
~
or any Collatl
sral,
anyrights relatingto
conversion, sub-division, consolidation, pre-empting, rights arising1mder
a
takeover
offer er other rights, including those requiiing election bJ the holder for the time
being
of
such Securities or Collateral, become exercisable pxior to the redeliveryof
Equivalent Securitim or Equivalent Collateral, then the
LE
nder or Borrower,
as
the
case
maybe, may, within
a
reasonable time before the late:
Ei
time for the exercise
of
the
right
or
option
give
written notice to the other par;y that
on
redelive1y
of
Equivalent
Securities
er Equivalent Collateral,
as
the cese may be,
it
wishesto
receive Equivalent Securities or Equivalent Collateral in
su
:h foml
as
will
a1ise
if
the
right is exercised or, in the case
of
a
ri ght which maybe
ex
ercised in more than one
manner, is exercised
as
is speciiied in such written notice.
(viii)
Any payment to be made by the Bonower under this Ciause shall be made in
a
mamer to be agreed between the Panies.
RATES
In respect
of
sach joan
of
Securities, the Bonower shall pay to tre Lender, in the manner
prescribed
in sub
-
clause (C),
sums
calculated by applying
such
rate
as
shall be agreed
between the Panies from time to time to the daily Value
of
the
rel< :vant Securities.
VK/here
Cash Collateral is deposited wilh the Lender in respect
of
any joan
of
Securities in
circumstances where:
l7
(C)
6.
(A)
(i)
interest is eamed bythe Lender in respect
of
such Cash Collateral and that interest is
paid to the Lender without deduction
of
tax, the Lender
sha
l1
payto the B01rower, in
the marmor prescxibed in sub-clause (C), an amount equzl to the gross amount
of
such interest eamed.
Any
such pa)ment due to the Borrou er maybe sei-
off
against
any payment
due
to the Lender pursuant to
sub-clause (A) hereof
if
either the
Borrower
has warranted to the Lender in this Agreement that it is subj ectto tax inthe
United Kingdom under
Case
I
of
Schedule D
in
respect
of
any income alising
pursuant to or in comection with the b01rowing
of
Securitie
s
hereunder or the Lender
has
notitied the B01rower
of
the gross amount
of
such into rest or income; and
(ii)
sub-clause (B)(I) above does not apply, the Lender shall p£.,yto the Borrower, in the
manner presented in sub-clause (C), sums calculated byapplying such rates
as
shall
be
agreed
between
the
Parties
fromtime
to
time to th:
amount
of
such
Cash
Collateral.
Any
such
payment due to the Bonower may
besei-
off
against any
payment due to the Lender pursuant to sub-clause (A) her eoe
In respect
of
each joan
of
Secu1ities, the payments refeired to in su
>
-Clauses
(A)
and (B)
of
this Clause shall accme daily in respect
of
the period conunencim; on and inclusive of the
Settlement Day and temlinatingon and exclusive
of
the BusinessD£
yupon which Equivalent
Securities are redelivered 0r Cash Collateral is repaid.
Unless other wise agreed, the sums so
accruing in respect
of
each calendar month shall be paid in
a1Tear;
by the Borrower to the
Lender or to the Borrower bythe Lender
(as the case maybe) not taler than the Business Day
which is one week after the last Business
Dayof
the calendar montlf to which such payments
relate or such other date
as
the panies shall from time to time aglee.
Any payment made
pursuant to sub-clauses (A) and (B) hereof shallbe in such currencyand shallbe paidin such
mamler and at such place
as
shall be agreed between the Parties.
COLLATERAL
(i)
Subject to sub-clauses (B), (C) and (E) below the
B01TOv'er undenakes to deliver
Collateral
to
the
Lender
(or
in
accordance
with
theLender's
instmctions)
TOGETHER VVITH
approp1iate
instmments
of
transfer
duly
stamped
where
necessaxy and such other instruments
as
may be requisite lo vest title thereto in the
Lender simultaneously
withdeliveryofthe bonowed Secu ities and in any event no
later than Close
of
Business on the Settlement Date.
Colleteral may be provided in
any
of
the fonns specified in the Schedule herelo
(as agreed between the Panies);
l8
(B)
(C)
(D)
jE)
(ii)
where Collateral is delivered to the Lender's Nominee any obligation under this
Agreement to redeliver er othemise account for Equivalmt Collateral shall be an
obli gation
of
the Lender notwithstanding that any such redr :liverymaybe effected in
any particular case by the Nominee.
Where CGO Collateral is provided to the Lender or its Nomine<
by member
-
to-member
deliveryor delivery
-
by
-value in accordance with the provisions
of
t
Je
CGO Rules from time
to time in
force,
the obligation of the Lender shall be to redeliver Equivalent Collateral
through the CGO to the Borrower in accordance with this Agrezment.
Any references,
(howsoever
expressed)
in
this
Agreement,
the
Rules,
and/or
any
other
agreement
er
communication between the panies to an obligation to redeliver
su
ch Equivalent Collateral
shall be construed accordingly.
If
the joan
of
Securities in respect
Jf which such Collateral
was
provided
has
not
been
discharged
when the Collateral
is
redelivered,
the Assured
Payment obligation generated on such redelivery shallbe deemed
t£
)
constitute
a
payment
of
money which shall be treated
as
Cash Collateral until the joan
;s
discharged,
or funher
Equivalent
Collateral
is
provided
later during that Business Day.
This procedure
shall
continue daily where CGO Collateral is delivered
-
by
-
value for
as
eng
as
the relevant joan
remains outstanding.
Where CGO Collateral or other collateral is provided by delivery
-b /-value to
a
Lender or its
Nominee the Borrower mayconsolidate such Collateral with other (iollateralprovided bythe
same
delivery to
a
third party for whom the Lender or its Nominee is acting.
Where Collateral is provided bydelivery
-
by
-vaiue through an alten alive book entrytransfer
system,
not being the CGO, the obligation
of
the Lender shall
be
to redeliver Equivalent
Collateral through such book entrytransfer system in accordance
withthis
Agreement.
If
the
joan
of
Securities in respect
of which such Collateral was provided has not been discharged
when the Collateral is redelivered, any payment obli gation general ai within the book entry
transfer system on such redelivery shall be deemed to constitute
a
;
a3m1ent
of moneywhich
shall be treated
as
Cash Collateral until the joan is discharged, or furlher Equivalent Collateral
is provided later during that Business Day.
This procedure shall col 1tinue when Collateral is
delivered-by
-value for
as
long
as
the relevant loan remains outstan! iing;
WhereCash
Collateral
is
provided
the
sum
of
money
so
depos:ted
may be adjusted
in
accordance
withclause 6(H).
Subject to Clause 6(H)(ii), the Cashljollateral shallbe repaid
at
the
same
time
as
Equivalent
Securities
in
respect
of
the
Eüecuritim
bortcwed
are
redelivered, and the Borrower shall not assigu, charge, dispose
of
(
r otherwise deal with its
rights in respect
of
the Cash Collateral.
lf
the Borrower falls to col nply with its obligations
for such redelivery or Equivalent Securities the Lender shall have &
e
right to applythe Cash
Collateral by way
of
set-
off
in accordance with Clause 8.
19
(F)
(G)
(H)
The Bonower may from time to time call for
the
repayment
di" Cash Collateral
or the
redelivery
of
Collateral equivalent to any Collateral delivered to ihr
:
Lender prior to the date
on which the
same
would otherwise have been repayable or redeliverable PROVIDED
THAT
at the time
of
such repayment or redelivery the
B01rOwe1
shall have delivered or
delivers Altemative Collateral acceptable to the Lender.
iii
Where Collateral (other than Cash Collateral) is delivered in respect
of
which any
lncome maybecome payable, the Borrower shall call for
th: redeliveryof Collateral
equivalent to such Collateral in good time to ensure that such Equivalent Collateral
may be delivered prior to any such Income becoming payab
,e
to the Lender, unless in
relation to such Collateral the parties
are satisfied before 'he relevant Collateral is
transferred that no tax
will
be payable to the UK Inland lLevenue under Schedule
23A of the Income and Corporation Taxes Act 1988.
At
the time
of
suchredelivery
the Borrower shall deliver Altemative Collateral acceptable to the Lender.
(ii)
WheretheLender receives
any
lncomein circumstanceswherethe Panies
are
satisfied
asset
out in Clause 6(G)(I) above, then the Leuder shall on the date on
which the Lender receives such Income or on such date
as t Je Pa11ies
may from time
to time agree, pay and deliver
a
sum
of moncyorpropeny
e
quivalentto such Income
(with
any such endorsements or assigmnents
as
shallbe
cus*
omaryandappropriate to
effect the delivery) to the Borrower and shall supply Appr )priate Tax Vouchers
(if
any) to the Borrower.
Unless the Schedule to this Agreement indicates that Clause 6(I) shall apply in lieu
of
this
Clause 6(H), or unless othewvise agreed between the Parties,
the
Value
of
the Collateral
delivered to or deposited
withthe Lender er its nominated bank or depository (excludingany
Collateral repaid or redelivered under sub-clauses (H)(ii) or (I)(ii) Eelow
(as the case
maybe)
("Posted Collateral")) in
respect
of
any loan
of
Securities shallbe
ar
from dayto day and at
any time the same proportion to the Value
of
the Securities borrowe
rd
under such loan
as
the
Posted Collateral bote at the commencement
of
such loan. Accord ngly:
(i)
the Value
of
the Posted Collateral to be delivered or deposited while the joan
of
Securities continues shall be equal to the Value
of
the bor
-
owed Secu1ities and the
Margin applicable thereto (the "Required Collateral Value");
(ii)
if
on any Business Day the Value
of
the Posted Collateral in respect
of
any joan
of
Secu1ities exceeds the Required Collateral Value in respec'
of
suchloan, the Lender
shall (on demand) repay such Cash Collateral and/or redeliver to the Borrower such
Equivalent Collateral
as
will
eliminate the excess; and
20
(1)
(J)
(K)
(iii)
if
on any Business Day the Value
of
the Posted Collateral falls below the Required
Collateral Value, the Borrower shall (on demand) provide such funher Collateralto
the Lender
as
will
eliminate the deticiency.
Subj ect to Clause 6(J), unless the Schedule to this Agreement indic lies Lhatclause 6(H) shall
apply in lieu
of
this Clause 6(I), or unless othemise agreed
betweä :n
the Parties:
-
(i)
the aggregate Value
of
the Posted Collateral in respect
<)f
all loans
of
Securities
outstanding
underthis
Agreement
shall
equal
the
aggregate
of
the
Required
Collateral Values in respect of such loans;
(ii)
if
at any time the aggregate Value
of
the Posted Collateral in respect
of
all loans
of
Securities outstandingunder this Agreement exceeds the
€
ggregate
of
the Required
Collateral Values in respect
of
such loans, the Lender shal
(on demand) repay such
Cash Collateral and/or redeliver to the BOxrOwer such Eql ivalent Collateral
as
will
eliminate the excess;
(iii)
if
at any time the aggregate Value
of
the Posted Collateral in respect
of
all loans
of
Securities outstanding under this Agreement falls below the aggregate
of
Required
Collateral
Values
in respect
of all
such
loans,
the
B01nwer shall (on demand)
provide such further Collateral to the Lender
as
will
elimi' late the deficiency.
Where Clause 6(I) applies, unless the Schedule to this Agreement
ndicates that this Clause
6(J) does not apply,
if
a
Pany(the
"first Party")
would, but for ihr: ;Clause 6(J), be required
under Clause 6(I) to repay Cash Collateral, redeliver Equivalent
See
:uzities or provide funher
Collateral in circumstances where the other Pany (the "second
Pany")
would, but for this
Clause 6(J), also be required to repay Cash Collateral or providt
er redeliver Equivalent
Collateral under Clause 6(I), then the Value
of
the Cash Collateral or Equivalent Collateral
deliverable bythe
firstparty("x")
shall be
set-
off
againstthe Value
of
the Cash Collateral, or
Equivalent Collateral or fimher Collateral deliverable bythe
second
Pany("Y")
and the only
obligation
of
the panies under Clause 6(I) shall be, where X exceeds Y, an obligation
of
the
first Pany, or where Y exceeds X, an obli gation
of
the second Party, to repaycashcollateral,
redeliver Equivalent Collateral or to deliver funher Collateral having
a
Value equal to the
difference between X and Y.
Where Cash Collateral is repaid, Equivalent Collateral is redeliven
:d
or funher Collateral is
provided by
a
Pany under Clause 6(I), the parlies shall agree
to
which joan er
loans
of
Securities such repaymem, redelivery er further provision is to
l
>
e
attributed and falling
agreement
it
shall
be
att1ibuted,
as
detemined
by
the
Pany
making
such
repayment,
redeliveryor further provision to the earliest outstanding joan and,
i1
1the case
of
repaymentor
2l
(L)
7.
(A)
(B)
(C)
redeliveryup to the point
at
which the Value
of
Collateral in respect
of
such joan is reducedto
zero and,
in the case
of
a
further provision up to the point at which the Value
of
the Collateral
in respect
of
such joan equals the Required Collateral Value in
respü :ct
of
such loan, andthen
to the next earliest outstanding joan up to the similar point and
so un.
Where any cash Collateral falls to be repaid or Equivalent Collateral to be redelivered or
further Collateral to be provided under this Clause 6, it shall be deliv ered withinthe minimum
period a&er demand specified in the Schedule or
if
no appropriate period is there specified
within the
standard
settlement time for delivery
of
the
relevant
:ype
of
Cash Collateral,
Equivalent Collateral or Collateral,
as
the case may be.
REDELIVERY OF EQUIVALENT SECURITIES
The
Bonower
undenakestoredeliver
Equivalent
Securities
i1
accordance
with
this
Agreement and the tenns
of
the relevant Borrowing Request.
For t}
e avoidance
of
doubtany
reference herein or in any other agreement er communication betwe
zn
the Parties (howsoever
expressed) to an obli gation to redeliver or account for er act in relati m to borrowed Secu1ities
shall accordinglybe construed
as a
reference to an obli gation to
rede
:river or account for er act
in relation to Equivalent Securities.
Subject to Clause
8
hereof and the tenns
of
the relevant BorrowingRequest the Lender may
call for the redelivery
of all or any Equivalent Securities
at any
timü
:
by giving notice on any
Business Day
of
not less than the standard settlement time for such Equivalent Seculities on
the exchange or in the clea1ing organisation through which the rele jam borrowed Securities
were
originally
delivered.TheBorrowershall
as
hereinafierJrovidedredeliver
such
Equivalent Securities not later than the expixy
of
such notice in accc rdance
withthe Lender's
instmctions.
Simultaneously withthe redelively
of
the Equivalent Seculities in accordance
with
such
call,
the Lender shall
(subject
toClause
6(I),
if
app icable)
repay
any Cash
Collateraland redeliver to the BOrrOwer Collateral
equivalent to the Collateral delivered
pursuant to Clause
6
in respect
of
the borrowed Secuiities.
F or
thnavoidance
of
doubt any
reference herein or in any other agreement or communication betw
sen the Parties (however
expressed) to an obligation to redeliver or account for or act in relation to Collateral shall
accordingly be construed
as a reference to an obligation to redelivc
r
er account for er act in
relation to Equivalent Collateral.
If
the Borrower does not redeliver Equivalent Secu1ities in acconlance with such call, the
Lender may elect to continue the joan
of
Securitias
PROVIDED THAT
if
the Lender does
not elect to continue the loan the Lender may by written notice
;o
the Borrower elect to
temlinate the relevant joan.
Upon the expiryof
such notice the
prow
isions
of
Clauses 8(B) to
(F) shall apply
as
if
upon the expiry
of
such notice an Event
of
Default had occuned in
22
(D)
(E)
(F)
(G)
8.
jA)
relation to the Borrower (who shall thus be the Defaulting Pany for the purposes of this
Agreement) and
as
if
the relevant joan were the only joan outstandlng.
In the event that
as a
result
of
the failure
of
the B01rower to redelive 'Equivalent Securities to
the Lender in accordance
withthis Agreement
a
"buy
-
in"
is exercis< d against the Lender then
provided that reasonable notice has been given to the B01rower
o1
the likelihood
of
such
a
"buy
-
in", the Borrower shall account to the Lender for the total
costs and expenses reasonably
incurred by the Lender
as a
result
of
such "buy
-
in".
Subject to the terms
of
the relevant Borrowing Request, the
B01TOVV
er shall be entitled at any
time to temlinate
a
particular joan
of
Securities
and
to redelive1
all and any Equivalent
Securities due and outstanding to the Lender in accordance with t
ze
Lender's instructions.
The Lender shall accept such redeliveryand simultaneouslytherew th (subject to Clause 6(l)
if
applicable) shall repay to the Borrower any Cash Collateral or,
as ;he case maybe, redeliver
Collateral equivalent to the Collateral provided by the
BOlTOwer pursuant to Clause
6
in
respect thereof
Where
a
TALISMAN shon tenn cenificate
(as desc1ibed
in paragr
1ph
C
of
the Schedule) is
provided by wayof Collateral, the obli gation to redeliver Equivalert Collateral is satisfied by
the rede1ive1y
of
the certificate to the Bonower or its expiry
as
provided for in the Rules
applying to such cenificate.
Where
a
Letter
of
Credit
is
provided
by way of Collateral, the obligation to redeliver
Equivalent Collateral is satisfied by the lender redelivering for cancellation the Letter
of
Credit
so
provided, or where the Letter
of
Credit is provided in respect
of
more than one loan,
by the Lender consenting to
a
reduction in the value
of
the Letter
<
>
f
Credit.
SET-OFF ETC.
On the date and time (the
"Performance Date")
that Equivalent Sucmities
are
requiredto be
redelivered by the Bonower in accordance with the provisions
of tl is Agreement the Lender
shall simultaneously redeliver the Equivalent Collateral and repay any Cash Collateral held
(in
respect
of
the Equivalent Securities to be redelivered) to the Bor 'ower. Neither Pany shall
be obliged to make delivery (or make
a
payment
as
the case
maybs) to the other unless it is
satisf}ed that the other
Partywill
make such delivery
(Or make an appropriate payment
as
the
case may bei to it simultaneously.
If
it is not
so
satisfied (whether because an Event
of
Default
has occurred in respect
of
the other Pany or othenvise) it shall notifythe other Pany
and unless that other Partyhas made arrangements which are suffic ent to assure fhll delivery
(or the approp1iate payment
as
the case may bei to the notifying Party, the notifying Party
23
(B)
(C)
(D)
(E)
shall (provided it is itself in
a
position, and willing, to perfonn its
ow
n obligations)be entitled
to withhold delivery (or payment,
as
the case maybe) to the other Party.
If
an Event
of Default occurs in relation to either pany, the Partie;' delivery and payment
obligations land any other obligations theyhave under this Agreeme
1t)
shallbe accelerated
so
as
to require perfomlance thereof
at the time such Event
of
Default
£
>
ccurs (the date
of
which
shall be the "Performance Date" for the purposes of this clause)
md in such event:
(i)
the Relevant Value
of
the Secu1ities to be delivered (or pajlment to be made,
as
the
case
maybe) by each Pany shall be established in accordan :e with Clause 8(C); and
(ii)
on the basis
of
the Relevant Values
so
established, an account shall be taken (as at
the Perfomuance Date)
of
what is due from each Partyto tlve other and (on the basis
that
eachPar1y's
claim
against
the
other
in
respect
of delivery of Equivalent
Seculities or Equivalent Collateral or any cash payment ei uals the Relevant Value
thereof) the sums due from one Pany shall be
set-
off
again
st
the sums due from the
other and only the balance
of
the account shall be payable (by the Party having the
claim valued
at the lower amount pursuant to the foregoin;;) and such balance shall
be payable on the Perfonnance Date.
For the purposes
of
Clause 8(B) the Relevant Value:-
iii
of
any cash payment obligation shall equal its par value
(ü
lisregarding any amount
taken into account under
(ii)
or
(iii)
below;
(ii)
of
any securities to be delivered bythe Defau1tingpa11y
sha l1,
subj ect to Clause 8(E)
below, equal the Offer Value thereof; and
(iii)
of
any secu1ities to be delivered to the Defaultingpany
sha
ll, subject to Clause 8(E)
below, equal the Bid Value thereof.
For the purposes
of
Clause 8(C), but subject to Clause 8(E) below, the Bid Value and Offer
Value
of
any secu1ities shallbe calculated
as at the Close
of
Busine:
s
in the most appropriate
market for securities
of
the relevant description (as detennined
bytlle Non
-
Defaultingparty)
on the first Business Dayfollowing the Perfomüance Date, or
if
the
'elevam Event
of
Default
occurs
outside the
nonnal business hours
of
such
market,
on tl,e second Business Day
following the Perfonnance Date (the "Default Valuation Time");
(i)
Where the Non-Defaultingpanyhas fol1owing the occurrel ice
of
an Event
of
Default
but prior to the Default Valualion Time purchased secmitie
;
fonningpan of the
same
24
(F)
(G)
(H)
9.
(A)
issue and being
of
an identical type and description to the:
:e
to be delivered by the
Defaulting Pany and in substantially the
same amount
as
those securities or sold
securities
fom1ing
pan
of
the
sameissueand
being
o:' anidentical
type
and
description
tothosetobe
delivered
by
him
tothe
Eefaulting
Party
and
in
substantially the same amount
as
those securitias, the cost
of
such purchase or the
proceeds
of
such sale, as the case may be, (taking into accc unt all reasonable costs,
fees and expenses that
wouldbe incuued in comlection the1ewith) shall be treated
as
the Offer Value or Brd Value,
as
the case may be,
of
the
r!
slevant securities for the
pu1poses
of
this Clause
8.
(ii)
Vvhere the amount
of
any securities sold orpurchased
as me
ntioned in (E)(I) above is
not in substantiallythe same amount
as
those secuxities to b zvalued for the purposes
of
Clause
8(C) the Offer Value or the Brd Value
(as thu case may be)
of
those
securities shall be ascenained by dividingthe net proceeds
<
)f
sale
or costof purchase
by the amount
of
the secu1itiw sold or purchased
so as
to o Jtain
a
net unit price and
multiplying that net unit price by the amount
of
the securities to be valued.
Anyreference in this Clause
8
to securitim shall include anyasset
Otj1er
than cashprovided by
way
of
Collateral.
If
the Bon'ower or the Lender for any reason fall to complywith
th<
1ir
respective obligations
under Clauses 6(F ) er 6(G) in respect
of
redelivery
0f
Equivalent C J1lateral or repayment
of
Cash Collateral such failure shall be an Event
of
Default for the pu1roses
of
this Clause 8, and
the person
failingto comply shall thus
be the Defaulting Party.
Subject to and without prejudice to its ri ghts under Clause 8(A) eith
er
Panymay &om time to
time in accordance with market practice and in recognition
of
thu practical difficulties in
ananging simultaneous delivery
of
Secu1ities, Collateral and cash transfers waive its right
under this Agreement in respect
of
simultaneous
delivery and/o:' pamlent PROVIDED
THAT
no such waiver in respect
of
one transaction shall bind
i'
in respect
of
any other
transact10n.
TAXATION
The Borrower hereby undenakes promptly to pay and account fcr any transfer or similar
duliesor
taxes
chargeable
in
cormection
with any transaction
effected
pursuant
to
or
contemplated by this Agreement, and shall indemnify and keep indemnified the Lender
against any
liability arising in respect thereof
as a result
of
the Bor
-
ower's failure to do
so.
25
(B)
The Borrower shall onlymake
a
Bonowing
Request where the pumose
of
the joan meets the
requirements
of
the Rules regarding the conditions that must be
frlfilled for
Section 129
of
the Income and Corporation Taxes Act 1988 (or any statutorymoc itlcation or re
-enactment
thereof for the time being in force) to applyto the axrangementconc :mingthe loan, unless the
Lender is aware that the transaction is unapproved for the
pu1pose
s
of
the Rules
of
the
UK
Inland Revenue or such purpose is not met.
(C)
A Pany undenakes to notify the other Pany
if
it
becomes or
cease s
to be an Approved
UK
Intennediary or
an
Approved UK Collecting Agent.
10.
LENDER'S WARRANT1ES
Each Party hereby wanants and undertakes to the other on
a
continuing
ba sis
to the intent that such
warranties shall survive the completion
of
anytransaction contemplated her
Bin
that, where actingas
a
Lender:
(A)
it
is
duly
authorised
andempowered
to
perfonn
its
duties
anül
obligations
underthis
Agreement;
(B)
it
is not rest1icted under the temls
of
its constitution or in any other manner from lending
Secuiities in accordance with this Agreement or from othenvise psrfonning its obligations
hereunder;
(C)
it
is absolutelyentitled to
pass
full
legal and beneficial ownership of all Secmities providedby
it
hereunder to the Borrower free from all lions, charges and encux xbrances;
(D)
where the Schedule to this Agreement specifies that this Clause
l0(D)
applies,
it
is not
resident in the United Kingdom for tax purposes and either is not canying on
a trade in the
United Kingdom through
a
branch or agency or
if
it
is carrying on
s
ich
a
trade the joan is not
entered into in the course
of
the business
of
suchbranch or agency, and it has
(i)deliveredor
caused to be delivered to the Borrower
a
duly completed and ceniiiwad Certitlcate (MOD2) or
a
photocopy thereof bearing an Inland Revenue acknowledgemem and unique number and
such cenificate or photocopy remains valid or (ii)
has taken all necessary steps to enable
a
specific authorisation to make gross payment
of
the Manufactured Dividend to be issued by
the Inland Revenue.
26
ll.
BORROWER'S WAKRANTlES
Each Party hereby warrants and undenakes to the other on
a
continuingbas is to the intent that such
wairanties shall survive the completion
of
anytmnsaction contemplated herr in that, where actingas
a
Bonower:
(A)
(B)
(C)
(D)
(E)
l2.
it
has
all necessary licenses and approvals, and is dulyauthorised an iempowered, to perfonn
itsduties
and
obligations
under this Agreement and
will
do
nothing prejudicial to the
continuation
of
such authorisation, licenses er approvals;
it
is not restlicted under the tenns
of
its constitution er in any other marmor from borrowing
Secuzities
in accordance with this Agreement or fi
-
om othem/ise purforming its obligations
hereunder:
it is absolutelyentitled to
pass
fhll
legal and beneficial ownership
of 1llcollateralprovided by
it hereunder to the Lender free from all liens, charges and encumb1ances;
it
is acting
as
principal in respect
of
this Agreement;
where the Schedule to this Agreement specifies this Clause
l
1(E)
a
Jplies,
it
is subject to tax
in the United Kingdom under Case I
of
Schedule D in respect
of
an) income arisingpursuant
to or in comlection with the bonowing
of
Secu1ities hereunder.
EVENTS OF DEFAULT
Each
of
the following events Occuningin relation to either Pany(the "Defaulting Party", the other
Panybeingthe "Non
-
Defaulting Pal1y") shallbean Eventof Default for
'
he puxpose
of
Clause 8:-
(A)
the B01rower er Lender falling to pay or repay
Cash
Collateraor deliver or redeliver
Collateral or Equivalent Collateral upon the due date, and the Nor
-
Defaulting Pany
serves
written notice on the Defaultingparty;
(B)
the Lender or Borrower falling to complywith its obligations under Clause
6, and the Non-
Defaulting Pany
sen/es
written notice on the Defaulting Party;
(C)
the Bowower failingto complywith Clause 4(B)(I), (ii) or (iii)hereo ;andtheNon
-
Defaulting
Pany serves wxitten notice on the Defaulting Pany;
27
&
(D)
an
Act of lnsolvencyoccuning withrespect to the Lender or the
Box
lower and (except in the
case
of
an
Act of Insolvency which is the presentation
of
a petitiol for winding up or any
analogous
proceeding
er
the
appointment
of
a
liquidator
or
analogous
officer
of
the
Defaulting Pany in which
case no such notice shall be required) tl.e Non-Defaulting Party
serves
Mitten notice on the Defaulting Pany;
(E)
any representations er warranties made by the Lender or the Bonower being incorrect er
untme in any material respect when made or repeated or deemed to have been made or
repeated, and the Non-Defaulting Pany serves w1itten notice on thü:Defaulting Party;
(F)
the Lender or the Borrower admitting to the other that itis unabln to, 0r it intends not to,
perfonn anyof its obligations hereunder and/or in respect
of
anyloar hereunder, and theNon-
Defaulting Party
se1ves
written notice on the Defaulting Pany;
(G)
the Lender
(if
appropriate) or the Borrower being declared in default by the approp1iate
authorityunder the Rules or being suspended er expelled 6*om memläership
of
or panicipation
in any securities exchange or association or other self-regulatory or ganisation, or suspended
from dealing in secu1ities by any govemment agency, and the Non
-
Defhulting Pany seives
Mitten notice
on the Defaulting Pany;
(H)
any
of
the assets
of
the Lender or the Bonower or the
assets
of
in
vestors held by or to the
order
of
the Lender or the Borrower beingtransfened or ordered to lie transfened to
a
trustee
by
a
re
~
llatory authority pursuant to any securities regulating lzgislation and the Non
-
Defaulting Pany sen/es written notice on the Defaulting Pany; er
(I)
the Lender or the Borrower falling to perfonn any other
of
its Oblig1tions hereunder and not
remedying such failure within 30 days aber the Non
-
Defaulting
Pz
ny
serves w1itten notice
requiring it to remedy such failure, and the Non
-
Defaulting Pan)
serves
a
further written
notice on the Defaultingparty.
Each Pal1y shall
notifythe other
if
an Event
of
Default occurs in relation to it.
13.
OUTSTANDlNG PAYMENTS
In the event
of
either Pany failingto remit either directlyor by its Nominee sums in accordance with
this Agreement such Pany herebyundenakes
1o
pay
a
rate to the other Part) upon demand on the net
balance due and outstanding
of
1% above the Barclays Bank PLC base rate
i'om time to time in force.
28
I4.
(A)
(B)
(C)
(D)
TRANSACTIONS ENTERED INTO AS AGENT
Subject to the following provisions
of
this Clause, the Lender may enter into loans
as agent
(in
such capacity, the
"Agent") for
a
third person
(a
"Principal")
whether
as
custodian er
investment manager or othemise (a joan
so entered into being refer red to in this clause
as an
"Agency Transaction").
A Lender may enter into an Agency Transaction i£ but only
if
-
(i)
it
specif}es that joan
as an Agency Transaction at the time when it enters into it;
(ii)
it
enters into that joan on behalf
of
a
single P1incipal who:
.e
identity is disclosed to
the Borrower (whether by name or by reference to
a
code or identifier which the
Panies have agreed
will
be used to refer to
a
specified P1ineipal) at the time when it
enters into the loan; and
(iii)
it
has at the time when the joan is entered into actual authc
rityto
enter into the loan
and to perfom1 on behalf
of
that Principal all
of
that P1incipal's obligations under the
agreement referred to in (D)(ii)below.
The Lender undenakes that,
if
it
enters
as
agent into an Agencytre nsaction, forthwithupon
becoming aware:-
(i)
of
any event which constilutes
an
Act
of
Insolvency wim respect to the relevant
P1incipal; or
(ii)
of
anybreach
of anyof
the wa1ranties given in Clause 14(E) below or
of
anyevent er
circumstance which
has the result that any such wanantyvw ould be untrue
if
repeated
by reference to the current facts;
(iii)
it will infonn
the Borrower of that£act
and
will,
if
so
required by the B01rower,
fumish it with
such additional infomlation
as
it may reascnably request.
(i)
Each Agency Transaction shall be
a
transaction between
ue
relevant Principal and
the Bonower and no person other than the relevant P1incipal and the Botrower shall
be
a
partyto or have any rights or obli gations under an Age ley Transaction. Without
limitingthe foregoing, the Lender shall not be liable
as pxi1 ,cipal
fortheperfomlance
of
an AgencyTransaction or for breach
of
any wanantyc01 ltained in Clause 10(D) or
11(E)
of
this Agreement, but this is without prejudice to
a
ny
liabilityof
the Lender
under anyother provision
of
this Clause.
29
jE)
15.
(ii)
A11
the provisions
of
the Agreement shall apply separatelyns between the Borrower
and each Principal for whom the Agent
has entered into
e
n
Agency transaction or
Agency Transactions
as
if
each such Principal were
a
pan;to
a
separate agreement
with
the
Borrower in all
respects
identical
with this Agreement other than this
paragraph and
as
if
the Principal were Lender in respect
ol
'that agreement.
PROVI]JED THAT
if
there occurs in relation to the Agent an Event
of
Default or
an ever
1t
whichwould constitute
an Event
of Default
if
the Borrower served written notice under any sub-clause
of
Clause 12,
the BOIrOwer shall be entitled by giving
mitten notice to the Principal (which notice shall be
validlygiven
if
given to the Lender in accordance withclause 20)
t£
v
declarethatbyreason
of
that event an Eventof Default is to be trealed
as
occuning in relation to the Pzincipal.
If
the
Bonower gives such
a
notice then an Eventof Default shall be
treat<
ad
as
occurringin relation
to the P1incipal
at the time when the notice is deemed to be given; and
f
the Principal is
neither incorporated nor
has established
a
place
of
business
in Gr
rat
Britain, the Principal
shall for the purposes
of
the agreement referred to in
(D)(ii)be
dee1
nedto have appointed
as
its agent to receive on its behalf service
of
process in the courts
of
England the Agent, or
if
the
Agent
is
neither incorporated nor
has
established
a
place ofbusiness in the United
Kingdom, the person appointed by the Agent for the purposes
of
this Agreement, or such
other person
as
the Principal may from time to time specify in
a
w litten notice given to the
other party.
(iii)
The foregoingprovisions
of
this Clause do not affect the operation
of
the Agreement
as
between the Borrower and the Lender in respect
of anytl ansactions into whichthe
Lender may enter on its own account
as
principal.
The Lender wazrants to the Borrower that it will, on every occasion on which it enters or
puxpons to enter into
a
transaction
as an Agency Transaction,
hav<
:
been duly authoiised to
enter into that joan and perfonn the obli gations arising thereunde;' on behalf
of
the person
whom it specifies
as
the Principal in respect of that transaction and to perfonn on behalf
of
that person all the obli gations
of
that person under the agreement 1eferred to in (D)(ii).
TERMINATlON OF COURSE OF DEALINGS BY NOTICE
Each
Pany
shallhavethe
right to bring
thecourse
of
dealing
:ontemplated
under this
Agreement to an end by giving not less than
l5
Business Days' notice in w1itingto the other
Pany (which notice shall specifythe date
of temlination) subject t)
an
obligation to ensure
that all loans which have been entered into but not discharged at the time such notice is given
are
duly discharged in accordance with this Agreement and with the Rules.
30
16.
17.
18.
19.
20.
GOVERNING PRACTICES
The Bonower shall
use its best endeavours to
notifythe Lender (in
'
v1iting)
of
anychanges in
legislation or practices goveming or affecting the Lender's rights
3r
obligations under this
Agreement or the treatment
of
transactions effected pursuant to or contemplated by this
Agreemem.
OBSERVANCE OF PROCEDURES
Each
of
the Panies hereto agrees that in taking anyaction that mayr
e
required in accordance
with this Agreement it shall obsewe st1ict1ythe procedures and time able applied bythe Rules
and, further, shall observe strictlyanyagreement (oral orotherwise)
as
to thetime for delivery
or redelivery
of
any money,
Secuxities,
Equivalent
Secmities,
Collateral
or
Equivalent
Collateral emered into pursuant to this Agreement.
SEVERANCE
If
anyprovision
of
this Agreement is declared byany judicial or eth
er
competent authoiityto
be void or otherwise unenforceable, that provision shall be severed from the Agreement and
the
remaining provisions
of
this
Agreement
shallremain
in
fullforce
and
effect.The
Agfeement shall, however, thereaRer be amended bythe Panies in
sl
ich reasonable marmer so
as
to achieve,
without illegality, the intention of the Partias wil}
respect to that severed
prov1s10n.
SPECIFIC PERFORMANCE
Eachpartyagrees that in relation to legal proceedings
it will
not seel; specificperfom1ance
of
the other Party's obli gation to deliver or redeliver Secmities, Equiva lent Secu1ities, Collateral
or Equivalent Collateral but without prejudice to any other rights il
mayhave.
NOTICES
Allnotices issued under this agreement shall be in writing (whi< h shall include telex or
facsimile messages) and shallbe deemed validlydelivered
if
sent by prepaid Erst class postto
or lettat the addresses or sent to the telex or facsimile number
of tl
e
Parties respectively or
such other addresses or telex or facsimile numbers
as each Panymz
ynotifyin writing
to the
other.
3
1
21.
ASSIGNMENT
Neither Pany may charge assign or transfer all or any
of
its rights
3r
obligations hereunder
without the prior consem
of
the other Party.
22.
NON
-
WAIVER
No failure or delay by either Pany to exercise any right, power or privilege heremlder shall
operate
asa
waiver thereof nor shall any single or partial exercise
of
any right, power or
privilege preclude any other or iimher exercise thereof or the exnrcise
of
any other right,
power er privilege
as
herein pmvided.
23,
ARBITRATION AND JURlSDlCTION
(A)
All
claims, disputes and matters
of conflict between the Parties a1ising hereunder shall be
refened to or submitted for arbitration in London in accordance w th English Law before
a
sole arbitrator to be agreedbetween the Panies or in default
of
agreement byan arbitrator to
be nominated bythe Chainnan
of
the Stock Exchange on the appli( ation
of
either Pany, and
this Agreement shall be deemed for this purpose to be
a
submissioz
;
to arbitxation within the
Arbitiation Acts 1950 and 1979, er any statutory modification er re
=
enactmentthereof for the
time being in force.
(B)
This Clause shall take effect notwithstanding the frustration or other tem1ination of this
Agreement.
(C)
No action shall be brought upon any issue between the Panies um
.er
or in comlection with
this Agreement untilthe
same has been submitted to arbitration pur ;uanthereto andan award
made.
24.
TIME
Time shall be
of
the essence
of
the Agreement.
25.
RECORDING
The Panies agree that each may electronically record all telephonic conve rsations between them.
26.
GOVERNING LAW
This Agreement is govemed by, and shall be constmed in accordance
win,
English Law.
32
Per:
;l)/£
=
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Title:
Eiäiiii1ii5&.&is.äü..;m.£,ß..ä,,
....
GOLDMAN SACHS INTERNATIONAL
)
"*x
-
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Name:
/B1/N (
ÜQE
6<%;
Title;
£
=
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=5;
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DIRECTOR, GLOBAL BECURITIES LENDING
I
FINANCE
m€:LYNNE HIB3EBI
-
L
OGAN
@
33
AGREED to and accepted this
day
of
ROYAL TRUST CORPORATION OF CANADA
SUSAN PIKS
Name:
MANAGER,OPERAWONS
Per:
Name:
Title:
Version:
DECEMBCR 1945
C3
SL. ~..
D
ATED
~. ~-~ ;~ ;r~~~~rrea ~,,.
1
~1~
~
~
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~ ~ ~t a `~ ~-~ ~`5
~
~
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u
L ~
zc~c
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O
VERSEAS SECURITIES
LENDER'S
AGRE~MEl~'T
C
lifford
Chance,
2
00
Aldersgate Street
L
ondon,
EelA4JJ
Red:
TJH
]
PON073S.34
CONTENTS
C
lause
passe
I.
INTERPRETATION3
2.
LOANS OF
SECUk1TIE5
lb
3.
DELIVERY OF
SECURI'I']ES
16
4.
RIGHTS AND TITLE
I7
5.
RATES~9
6.
COLLATERAL~p
7.
REDELIVERY
OF
EQUIVALENT
SECURITIES
24
8.
SET-OFF
ETC.
25
9.
TAXATION
27
10.
LENDER'S WA,ItRANTIES
2g
11.
BORROWER'S
WARRANTIES
29
12.
EVENTS OF ll
EFAULT
29
13.
OUTSTANUII~sG PAYMENTS
3Q
1
4.
TRANSACTIQNS
ENTERED IN
TO AS
AGENT
31
i5.
TERMIlVATION OF
COURSE OF
DEALINGS
BY
NOTICE
33
16.
GOVERNING PRACTICES
33
I7.OBSERVANCE
OF
PROCEDURES
33
18.
SEVERANCE33
19.SPECIFIC PERFC}RMANCE
33
2
0.NOTICES
33
21.
ASSIGNMENT
34
22.
NON-WAIVER
34
2
3.ARk3ITRATION AND
JURISDICTION
34
24.
TIlVIE
34
2
5.
RECORDING
34
2
6.GOVERNING
LAW
35
SCHEDULE
3{
rn
ouo~ss.s~s
THIS
AGREEMENT is
made the
day of
,
2002
~
~
BETWEEN:-
(1)
Citibank,
N.A.
whose
registered office is
at 336 Strand,
London, WC2R
1HB; and
(
2} Goldman
Sachs
Internationa], a
company
incorporated
under the Iaws of ..
EnS~^:~_c~^.u.~ri~~~~5
whose
registered office
is at
Peterborough
Court, 133
Fleet Street, London,
EC4A
2BB
...........
.......................................
W
HEREAS:-
1.
The
Parties
hereto are
desirous of agreeing
a
procedure whereby
either one of them
(the
"
Lender"}
will make
available to the other
of
them (the
"Borrower") from
time to time
S
ecurities
(as
hereinafter
defined)
in
order to
enable the
Borrower, subject to any
Tnland
R
evenue provisions
then
in force, to fulfil
a
contract to sell
such Securities or
to
on
lend such
S
ecurities to
a third party
to enable
such
party to
fulfil
a contract to
sell
such
Securities,
wheEher
or
not as
part of a
chain
of
arrangements to
enable
the
#"anal party
in such etzain to
fulfil a
contract to
sell
such
Securities or to
replace an
existing
loan of Securities
to such third party,
or
for
other
puzposes.
2.
All
transactions
carried
out under
this
Agreement will be
effected in
accordance with
the Rules
(as
hereinafter
defined)
TOGETHER WITH
current
market
practices, customs
and
c
onventions.
NOW
THIS
AGREEMENT
WITNESSETH AND
IT IS
HEREBY
AGREED AS
FOLLOWS:-
1.
IN
TERPRETATION
(A)
In
this
Agreement:-
"Act
of
Insolvency" means in
relation to
either
Party
(i)
its
making
a
general
assignment fox
the
be
nefit of, or
entering
into a
reorganisation,
arrangement, or
composition
with
creditors,
or
{ii)
its
admitting
in writing
that it is
unable
to
pay its debts as they
be
come due,
or
J
PON0755.44
-3-
(iii)
its seeking, consenting
to
or
acquiescing in the
appointment of
any
trustee, adminisErator, receiver
or
liquidator or
analogous
officer of it or any material part of
its
property, or;
(iv)
the presentation or filing of a
petition in respect of it
{other
than by the other
Party
to
this
Agreement in
respect of
any
o
bligation under this
Agreement) in any court or
before any
agency alleging
or for the
bankruptcy, winding
-up
ar
insolvency of such
Party (or any analogous
proceeding) or
seeking any
reorganisation,
arrangement,
composition, re-
adjustment,
administration,
Liquidation, dissolution
or similar
relief under any present or future
statute,
law
or
regulation,
such petition {except in the case of a petition
far
winding
-up
or
any
analogous proceeding in respect
of which no such
30 day
period
shall apply) not having
be
en
stayed or dismissed
within
30
days of its filing;
(v)
the appointment
of a receiver,
administrator,
liquidator
or
trustee or
analogous officer of such
Party over all or
any
material
part of such
Party's
property; or
(
vi}
the convening of any meeting
of its crediEors far the
purpose
of
considering a voluntary arrangement
as referred
to
in
S
ection 3 of
the Insolvency Act 19$6 (or any
analogous
p
roceeding};
"Agent"
shall have the
same meaning given in
Clause
I4;
"Alternative
CoIlateral"
means Collateral
of
a
Value
e9ua1
to the
Collateral delivered
pursuant to
C3ause 6 a►~d provided
by
way of
substitution
for
C
ollateral
originally
delivered
or
previously
substituted
in
accordance
with
the
provisions of
Clauses
6(F) or
6{G);
I
PON07S5.44
-4-
"Appropriate Tax Vouchers" means:-
(i)
either
such tax
vouchers andlor
certificates as shall
e
nable tl~e recipient to claim and receive
fram any
r
elevant
tax authority,
in
respect of
interest,
d
ividends,
distributions
and/or other amounts
(
including
for the avoidance
of doubt any
manufactured payment)
relating
to
particular
S
ecurities,
all and
any
repayment of
ta~c
or benef
t of
tax
credit
to which the
Lender
would
have been
entitled
but for
the laan of
Securities in
accordance
with this Agreement and/or
to which
the Lender is
e
ntitled
in
respect of tax withheld and accounted for
in
respect of any
manufactured
payment; or such
tax
v
ouchers
and/or
certificates as are provided
by
the
Borrower which evidence an
amount of
overseas tax
d
educted which
shall enable the recipient
to
claim
and receive from any relevant tax authority all
and
any
repayment of
ta;c from. the
LTK
Inland Revenue
o
r
be
nefits of tax
credit in the
juzisdiction
of the
recipient's
residence; and
(
ii)
such
vouchers and/or certificates in
respect of
i
nterest,
dividends, distributions andlor
other
amounts
relating
to particular
Collateral;
"
Approved UK Collecting Agent"
means a
person who is approved as such for
the purposes of
t
he Rules of the
IJK Inland Revenue relating
to stocklending
and
manufactured interest
and
dividends;
"
Approved
Intermediary" means a person
who is
apQroved as such for
the
purposes of
the
Rules of ttze LTK
Inland
Revenue relating
to stacklending
and
manufactured
interest and
dividends;
"
Assured
Payment' nneans a
payment
obligation of a
Settlement Bank arising
{
under
the
Assured
Payment Agreement) as a
result of a
transfer of
stock or other
securities
to a CG{> stock
account of
a member of
the CGO for wham
that Settlement Bank
is
acting;
J
PON0135.~4
~~-
"Assured Payment
Agreement' means an
agreement dated 24
October 1986
be
tween the
Bank
of
England and all
the
other banks
which are
for
the
time
being
acting as
Settlement Banks in
relation
to
the
CGO
regulating
the
obligations of such
banks
to make
payments in
r
espect
of transfers of
securities through
the
CGO as
s
upplemented and
amended fr
om
time
to time;
"
Base
Currency"
has
the meaning given in
the Schedule hereto;
"
Bid Price"
in relation to
Equivalent Securities
or
Equivalent
Cailateral
m
eans the nest
availab3e bid price thereof
on
the mosE
appropriate
market in a standard size;
"
Bid Value"
Subject to Clause
8(E)
means:-
(a) in
relation to Equivalent
Collateral
at a
particular
time:-
(i)
in
relation to Collateral
Types
B(x}
and C
(
more specifically
referred to
in
the
Schedule) the Value
thereof as
calculated
i
n
accordance with such
Schedule;
(
ii}
in relation to a31
other types of
Collateral
(more
specifically
referred to
in the
Schedule) the
amount which
would be
received on a
sale
of
such Collateral
at the
B
id
Price thereof at
such
time less
all
c
osts, fees and
expenses that
would be
i
ncurred in
connection with
selling or
otherwise
realising such
Equivalent
C
ollateral,
calculated on
the
assumption
that the
aggregate thereof is
the
least that
could
reasonably be
expected
to be
paid in
order to
carry out
such sale or
realisation
and
adding
thereto the
amounE
of any
interest,
dividends,
distributions or
other
a
mounts paid to
the Lender
and in
respect
o
f
which
equivalent
amounts
have not
J
PON0755.4t
been
paid
to the
Borrower
in accordance
~~ith Clause
6(G}
prior to
such
time in
re
spect of
such Equivalent
Collateral
or
the original
Collateral held
gross
of
all
and
any
tax
deducted
or paid in
respect
thereof;
and
{b}
in
reEation
to Equivalent
Securities
at a
particular
time
the
amount which
would
be
received on
a sale
o
f such
Equivalent
Securities
at the
Bid
Price
t
hereof
at such
time less
all costs,
fees
and expenses
that would
be
incurred in
connection
therewith,
c
alculated on
the
assumption that the
aggregate
thereof
is the
least
thak could
reasonably be
expected
to be
paid in
order to carry
out
the
transaction;
"
Borrower"
with
respect to
a
particular
loan of
Securities
means the
B
orrower
as
referred to in
Recital 1
of this
Agreement;
"
Borrowing
Request"
means
a
request made {by
telephone
or otherwise) by
the
B
orrower
to
the
Lender
pursuant
to
Clause
2{A}
specifying the
d
escription,
tine
ancE
amount
of
the
Securities
required by
the
B
orrower, the
proposed
Settlement Date
and
duration
of such
loan
and
the
date, time,
mode
and
place of
delivery
which
s
hall,
where
relevant,
include the
bank
agent
clearing
or
s
ettlement system
and
account
to
which
delivery of
the
S
ecurities
is to be
made;
"
Business
Day"
means
a day
on
which banks
and
securities
markets are
open
for
business
generally
in
London and,
in
relation to
the
delivery
or
redelivery
of any
of the
following
in
relation to any
l
oan,
in the
places)
where the
relevant
Securities,
Equivalent
S
ecurities,
Collateral
(including
Cash
Collateral)
or
Equivalent
C
ollateral are to
be
delivered;
"cash
Collateral"
means
Collateral that
takes the
form
of
a
deposit of
currency;
3
PpN07S5.44
'~-
"Central
Gilts
Office"
means
the
computer
based
system
managed
by
the
Bank
of
o
r
"CGO"
England
to
facilitate
the
book
-entry
transfer
of
gilt~dged
s
ecurities;
"
CGO
Collateral"
shall
have
the
meaning
specified
in
paragraph
A
of
the
S
chedule;
"
CGO
Rules"
means
the
requirements
of
the
CGO
far
the
time
being
in
force
a
s
defined
in
the
membership
agreement
regulating
m
embership
of
the
CGO;
"
Close
of
Business"
means
the
time
at
which
banks
close
in
the
business
centre
in
w
hich
payment
is
to
be
made
or
Collateral
is
to
be
delivered;
"
Collateral"
means
such
securities
or
financial
instruments
or
deposits
of
c
urrency
as
are
referred
to
in
the
Schedute
hereto
or
any
c
ombination
thereof
which
are
delivered
by
the
Borrower
to
t
he
Lender
in
accordance
with
this
Agreement
and
shall
i
nclude
the
cerEificates
and
other
documents
of
or
evidencing
t
itle
and
transfer
in
respect
of
the
foregoing
(as
appropriate),
a
nd
shall
include
Alternative
Collateral;
'
Defaulting
Party"
shall
have
the
meaning
given
in
Clause
12;
"
Equivalent
Collateral"
or
in
relation
to
any
Cotlaterai
provided
under
this
Agreement
°
Collateral
equivalent
to"
means
securities,
cash
or
other
property,
as
the
case
may
be
,
o
f
an
identical
type,
nominal
value,
description
and
amount
to
p
articular
Cotla[eral
so
provided
and
shat]
include
the
c
ertificates
and
other
documents
of
or
evidencing
title
an
d
t
ransfer
in
respect
of
the
foregoing
(as
appropriate}.
If
and
to
t
he
extent
that
such
Collateral
consists
of
securities
that
are
p
artly
paid
or
have
been
converted,
subdivided,
consolidated,
r
edeemed,
made
the
subject
of
a
takeover,
capitalisation
issue,
ri
ghts
issue
or
event
simzlar
to
any
of
the
foregoing,
the
e
xpression
shall
have
the
following
meaning:
(
a}
in
the
case
of
conversion,
subdivision
or
c
onsolidation
the
securities
into
which
the
relevant
C
ollateral
has
be
en
converted,
subdivided
or
~
PONo7ss.aa
-8-
consolidated PROVIDED THAT, if appropriate,
n
otice
has
been given
in
accordance with Clause
(b)
in the
case
of
redemption, a sum
Qf
money
e
quivalent to
the proceeds of
the
redemption;
{
c)
in the case
of
a
takeover, a sum
of money
or
s
ecurities, being
the consideration or
alternative
c
onsideration
of which the Borrower has
given
n
otice to
the Lender in
aceardance with
Clause
4
(B)(vi};
(d)
in th
e case of a
caii an partly paid securities,
the
paid-up
securities
PROVIDED
THAT the
B
orrower
shall have paid
to the Lender
an amount
of
money
equal
to
the sum
dt~e in respect of
the call;
(
e}
in the
case of a
capitalisation
issue, the relevant
C
a1laEeral
TOGETHER
WITH the
securities
allotted by
way of a
bonus
thereon;
(fl in
the
case of a rights
issue, the
relevant
Collateral
T
OGETHER
WITH
the
securities
allotted thereon,
P
ROVIDED
THAT
the
Borrower has given
notice
to
the bender in
accordance with
Clause 4(B)(vi),
and has
paid to the
Lender al
i and any sums
due in
respect
thereof;
(g) in
the event
that a
payment or
delivery of
Income is
made in
respect of
the
relevant Collateral in
the form
o
f securities
ar a
certificate which
may aL a
future
date be
exchanged for
securities or in
the event of an
o
ption to
take Income in
the form
of securities
or a
c
ertificate
which may
at a future
date be
exchanged
f
or
securities, notice
has be
en given to the
Borrower
in
accordance with
Clause
4(B}(vi) the
relevant
C
ollateral
TOGETHER WITH
securities or
a
certificate
equivalent to
those
allotted;
7
{'ON07SS.da
-9-
(h)
in the case of
any
event similar
to any of
the
foregoing, the
relevant
Collateral
TOGETHER
WITH or
replaced
by a sum of
money or
securities
e
quivalent to [hat
received
in
respect
of such
Collateral
resulting from such event;
For the avoidance
of
doubt, in the
case
of
Bankers'
Acceptances {Collateral
type
B(v)),
Equivalent
Collateral
must
bear dates,
acceptances and
endorsements (if any)
by
the
same
e
ntities as
the bill
to
which
it
is intended to be
equivalent
and
f
or
the
purposes
of
this
definition, securities
are equivalent
to
other
securities where
they are of
an
identical
type,
nominal
v
alue,
description and
amount and
such term sha11
include
the
c
ertificate and
other
documents of or
evidencing
title
and
t
ransfer in respect of the
foregoing
(as
appropriate};
"Equivalent
Securities"
means
securities of an
identical type,
nominat
value,
d
escription and
amount to
particular
Securities borrowed
and
such
term shall
include the
certificates and other
documents of
or evidencing
title and tr
ansfer in respect
of
the
foregoing (as
a
ppropriate).
If and to the extent
that
such
Securities are
partly paid or
have
been converted,
subdivided,
consolidated,
r
edeemed, made the
subject
of
a
takeover,
capitalisation
issue,
ri
ghts issue
or
event similar
to any
of the
foregoing, the
e
xpression shall have the
following
meaning:
(
a}
in
the case of
conversion,
subdivision or
consolidation
the
securities
into which the
borrowed
Securities have
been
converted,
subdivided
or
c
onsolidated
PROVIDED
THAT if
appropriate,
n
otice
has
been given
in
accordance
with
Clause
4(B)(vi);
(b)
in the case of
redemption, a
sum of
money
equivalent
to the
proceeds
of
the
redemption;
1
PpN07Si~t
-la-
(c) in
the case of
ta[ceover, a surn of money
or
securities,
b
eing
the
consideration or alternative consideration
of
which the
Lender has given
notice to the
Borrower in
accordance with
Clause 4(B}{vi);
(d) in
the case of
a ca13 an partly
paid securities,
the
paid
-up securities
PROVIDED THAT
the Lender
s
hall have
paid
to
the
Borrower an
amount of money
equal to the surn
due in
respect
of
the call;
(
e}
in the
case of a
capitalisation issue,
the borrowed
Securities
TOGE'1'HER
WITH the
securities
allotted by
way of a
bonus
thereon;
(fl in
the case of a rights
issue, the
borrowed
Securities
T
(}GETHER WITH the securities
allotted
thereon,
P
Rt3VIDED
THAT the Lender
has given
notice to
the
Borrower in
accordance with
Clause 4(B)(vi),
and has
paid to
the
Borrower all and any
sums due
i
n
respect
thereof;
(g)
in the
event that a
payment or delivery of
Income is
made
in respect of
the
borrowed Securities in
the
form
of
securities or
a certificate
which may at
a
future
date be
exchanged for securities
or in the
event of an
option
to
take Income
in
the form of
s
ecurities or a
certificate which
may at a
future
date
be
exchanged far
securities, notice has
been given to
the
Borrower in
accordance with
Clause
4(B)(vi}
the
b
orrowed Securities
TOGETHER
WITH securities
or
a
certificate
equivalent to
those allotted;
(h)
in the
case
of any
event
similar Eo any of Ehe
f
oregoing,
the borrowed
Securities
TOGETHER
W
ITH or
replaced by a
sum
of money or
securities
e
quivalent to that
received in
respect of such
b
orrowed Securities
resulting from such
event;
For the
purposes
of this
definition,
securities
are
e
quivalent to
other securities
where they
are of
an
3
Pt3N0755.44
-It-
identical type,
nominal value,
description and
amount and such
term shall include the
certificate
and other documents of
or
evidencing title
and
transfer in
respect
of
the
foregoing (as
appropriate};
"Event of
Default"
has
the meaning given in Clause I2;
"Ineame"
any interest,
dividends or other
distributions
of any kind
whatsoever with
respect
to
any
Securities or Collateral;
"Income Payment Date",
with respect to any Securities ar
Collateral means
the date
on
which income
is paid in
respect of
such
Securities
or
Collateral, or,
in the case of registered
Securities
or
Collateral,
the date by
reference to which particular
registered
folders
are
identified as being entitled
to payment of
Income;
"Lender"
with respect to a
particniar Eoan of
Securities
means the
Lender as refereed to in
Recital 1 of this Agreement;
"
Manufactured
Dividend"
shall have the meaning
given in Clause 4(B)(ii);
"
Margin"
shall have the meaning
specified in the Schedule
hereto;
"Nominee"
means
an agent or a
nominee
appointed by either
Party and
approved
{if
appropriate}
as such by the
Inland Revenue to
accept delivery
of, haid or deliver
Securities,
Equivalent
S
ecurities, Collateral
andlor Equivalent Collateral
on its behalf
whose appointment has
been
notified to the
other
Party;
"Nan-Defaulting Party"
shall have the meaning
given in Clause 12;
"
Offer
Price" in zetation
to
Equivalent
Securities or
Equivalent Collateral
means the best
available offer price
thereof on the
most
a
ppropriate market in a standard
size;
1PON0735.A4
- IZ -
"Offer
Value"
Subject
to Clause 8{E)
means:-
{a) in
relation
to Collateral
equivalent
to
Collateral
types B
(ix)
and
C (more
specifically
referred to in
the
Schedule
hereto)
the Value
thereof as
calculated
in
accordance
with
such Schedule; and
(b)
in
relation
to
Equivalent
Securities or
Collateral
equivalent to all
other types
of
Collateral
{more
s
pecifically
referred
to
in
the
Schedule hereto) the
amount it would cast to
buy such
Equivalent
Securities ar Equivalent
~ollaterat aE
the Offer
Price
thereof at such
time together with
all
costs,
fees
and
expenses
that
would be incurred
an connection
t
herewith,
calculated
on the
assumption
that the
aggregate thereof is
the
least that could
reasonably
be
expected
to be gold in
order
to
carry
out the
t
ransaction;
"Parties"
means
the Lender and
the Borrower
and "Party"
shall
be
construed accordingly;
°
Performance
Date" s11a11 have the
meaning given in Clause 8;
"
Principal"
shall
have the meaning given in Clause 14;
1
PON07$5.44
-13-
"Reference Price"
means:
(a) in
relation to the
valuation of
Securities,
Equivalent
S
ecurities,
Collateral
and/or
Collateral
equivalent
to
types B {ii),
(viii),
(xi}
and
(xii) {more
speci~caliy
r
eferred to
in
the
Schedule
hereto) such
price as is
equal
to the mid
market
quotation of
such
Securities,
E
quivalent Securities,
Collateral and/or
Equivalent
Collateral as
derived
from a
reputable
pricing
i
nformation
service
(such as the
services
provided
by
Reuters,
Extet Statistical
Services
and
Telerate)
reasonably
chosen in good
faith
by the
Lender or if
u
navailable the market
value thereof as
derived from
Ehe prices or
rates bid
by a
reputable dealer
for the
r
elevant
instrument
reasonably chosen in
good
faith
by the Lender,
in
each case at
Clase of
Business on
the
previous Business
Day;
(
b}
in
relation to the
valuation of ColEateral
and/or
Co3latera3
equivalent
to
Collateral types A
and
B(i)
(more
specifically
referred
to in the
Schedule
hereto), the
CGO
Reference
Price of such
Securities,
Equivalent
Securities, CoElateral
and/or
Equivalent
C
ollateral
then current as
determined in
accordance
with the
CGO Rules
from
time to time in
force.
(c)
in relation
to the
valuation of
Collateral
and/or
C
ollateral
equivalent
to Collateral
types
B(iii},
(iv),
(v), (vi}
(vii) and (ix),
(more
specifically referred
to
i
n
the
Schedule hereto),
the
market
value thereof
as
derived from the
rates bid
by
Barclays Bank PLC
for
s
uch
instruments or, in the absence
of such
a
bid, the
a
verage of
the rates
bid by two
leading
market
m
akers for such
instruments
at
C3ose of
Business on
the
previous
Business Day;
"
Relevant
Payment Date"
shall have
the meaning
given in
Clause 4(B)(i);
m
o!.o75s.ss
- t4 -
"Rules"
means
the rules far the
time being of
the Stock
Exchange
(where either
Party is a
member of the
Stock
Exchange}
andlor
any
other
regulatory
authority
whose rules and
regulations
shall
from time to time affect
the activities of
the Parties
p
ursuant to this
Agreement including but not limited
to the
s
tocklending
regulations
and guidance
notes
relating
to bath
s
tocklending
and
tnanufacturec~
interest and
dividends far the
time
being in
force of
the
Commissioners of
the
Inland
R
evenue and any
associated
procedures
required
pursuant
t
hereto
{PROVIDED
THAT in an Event
of
Default,
where
e
ither
Party
is
a member of the
Stock
Exchange, the
Rules and
R
egulations
of the Stock
Exchange shall
prevail);
"
Securities" means
Overseas
Securities as
definetf
in
the Income
Tax
(Stock
Lending) Regulations 1489 (5.1. 1989 No.
1299}
(as
a
mended
by the Tneome Taac {Stock
Lending) (Amendment)
R
egulations
199Q (S.I. 199Q No. 2552}and 1993 {S.I.
1993 No.
2
003)}
or any
statutory
modification or re-enactment thereof
for
the time being in
force
which
the Borrower is
entitled to
b
arrow
from
the
Lender in
accordance
with the Rules and
which are the subject
of
a loan pursuant
to
this Agreement and
such
term sha31
include
the certificates and
other
documents of
title in
respect
of
the
foregoing;
"
Settlement Bank"
means a
settlement member
of the
CHAPS and Tawn
Clearing
s
ystems who has entered into
contractual
arrangements with
t
he CGO to
provide
Assured Payment
facilities
for members
o
f
the
CGO;
"
Settlement Date"
means
the date upon
which
Securities are ar are to be
t
ransferred
to the
Borrower in
accordance with
this
Agreement;
"Stock
Exchange"
means the London
Stock Exchange
Limited;
"Value"
at
any
particular
time means in
respect of
Securities and
Equivalent Securities, the Reference
Price thereof then
current
and in
respect of
Collateral andlor
Equivalent
Collateral such
worth
as determined
in accordance with
the Schedule
hereto.
J
PON~75S.~t~i
-15-
(B) Al]
headings appear for
convenience
only
and shaLE not
affect the
interpretation
hereof.
(C)
Notwithstanding the use
of
expressions such as "borrow",
"lend",
"Collateral", "Margin",
"redeliver"
etc.
which are used to reflect
te~rrunology used in
the
market for
transactions of
the kind
provided for
in this Agreement,
title
to Securities
"borrowed" or "lent"
and
"
Gotlateral"
gravided in
accordance with
this
Agreement shad
pass
from one Party
to
a
nother
as
provided for in this
Agreement, the Party obtaining
such title
being
obliged
to
r
edeEiver Equivalent
Securities
or
Equivalent Collateral as
the
case may be.
(D) For
the
purposes of Clauses 6{H)
-6{K)
and $(C)
-8(E}
of this
Agreement or
otherwise where
a
conversion
into the
Base Currency is
required, all
prices, sums or values
(including any
V
alue, OfFer
Value and Bid
Value) of
Securities, Equivalent
Securities,
Collateral or
Equivalent
Collateral
(including Cash
Collateral}
stated in
currencies other
than
the Base
Currency
shall
be
converted into the Base
Carrency at
the
spot rate of
exchange at
the
r
elevant time in the
London
interbank
market for the purchase of
the Base
Currency with the
c
urrency concerned.
(E)
Where at any time there
is
in
existence
any other agreement
between
the
Parties the
terms of
w
hich make
provision for the lending
of
Securities
{as defined in this
Agreement)
as
welt as
o
ther
securities the
teens of this Agreement
shall apply
to the lending
of such
Securities to
the exclusion of
any other
such agreement.
2.
LOANS
OF
SECURTI7ES
{
A)
The
Lender wiEl lend
Securities to the
Borrower, and
the
Borrower will borrow
Securities
from the
Lender in
accordance with the
terms and conditions
of this
Agreement
and with the
Rules
PROVIDED
ALWAYS
THAT the Lender shall
have received
from the
Borrower and
a
ccepted
(by
whatever
nneans}
a
Borrowing Request.
(B)
The
Borrower has the
right to reduce the
amount of
Securities
referred
to
in
a
Borrowing
Request
PROVIDED THAT the
Borrower has notified
the Lender
of
such
reduction
no
Eater
than midday
Landon time on the day
which
is
two Business Days
prior to the
Settlement Date
unless otherwise
agreed
be
tween
the
Parties and
the
Lender shall have
a
ccepted such
reduction (hy
whatever
means}.
3.
DELNERY OF
SECLJR.I'I'IES
T
'he Lender
shall
procure the
delivery
of
Securities to the
Borrower or
deliver such
Securities in
a
ccordance with the
relevant
Borrowing
Request TOGETHER WITH
appropriate
instnaments of
transfer duly
stamped
where necessary
and such
other
instruments as may
be
requisite to
vest title
7
PON07SS.~Sa
-16-
thereto in the
Borrowe
Borrower on delivery
the
case of
Securities
r
s
uch
agent
or the opera
o
ther
means as may
be
4.
{A}
(B)
Such
Securities
shat] be deemed
to
have been
delivered by
the
Lender
to
the
the
Borrower
or as it sha1C direct of the relevant
instruments
of
transfer,
or in
3 by an agent or
a
clearing or
settlement
system on the effective instructions
to
r
of such
system
to hold the
Securities
absolutely
for the
Borrower,
ar by such
T
he
Parties shall
execute
and
deliver
alt necessary documents and
give all
necessary
instructions o
procure that aEl right,
title
aid interest in:
(i)
{
ii}
(
iii}
(
iv}
s
hall pass
and in acc
an j~ Securities
borrowed
pursuant to
Clause 2;
E
c~uivaient Securities redelivered
pursuant
to Clause 7;
C
ollateral
delivered pursuant to Clause 6;
Equivalent Collateral
redelivered
pursuant to Clauses 6 ar 7;
~~
one Party
to
the other
subject to the terms and conditions
mentioned herein
once with the
Rules, on
delivery or redelivery of the
same
in
accordance
with
nt,
free
from all liens,
charges
and
encumbrances.
In the
case
of Securities,
~
uivalent Securities or
Equivalent
Collateral
title to which is
registered in
a
;d
system which
provides for
the recording and
transfer
of
title to the same by
e
ntries, delivery
and transfer
of title shall take place in
accordance with
the
;
edures
of
such system as
in force from
time to
time. The Party acquiring such
~ interest shat]
have no
obligation
to
return
or
redeliver
any of
the
assets
so
i
n
so far as
any
Securities
are
borrowed or any
Collateral is delivered to
such
arty shall
be
obliged, subject to the terms
of this
Agreement, to redeliver
curities or
Equivalent
Collateral as
appropriate.
this Agree
C
ollateral,
c
omputer
b
way of
boc
rules and p~
r
ight, title <
a
cquired bu
P
arty, such
Equivalent
(
i}
as
ere Income
is paid in
relation to any
Securities on
or by
reference to
an Income
meet
Date on which
such
Securities are the
subject of
a loan
hereunder,
the
rower shall,
an the
date of the
payment of such
Income, or
on such
other
date
h
e
Parties may from
time to
time agree, (the
"Relevant Payment Date") pay
deliver
a sum of
money or
property
equivalent
to the same
(with any such
~
rsements or
assignments as shall be
customary and
appropriate to
effect
the
very) to the
Lender or
its
Nominee,
irrespective of whether
the Borrower
r
ived the same.
The
provisions of sub
-paragraphs
(ii}
to
{v)
be
low
shall apply
elation thereto.
i
Porra~ss.oa
~
-
17
{ii)
subject to
sub
-paragraph (iii)
below, in the
case
of any
Income
comprising
a
payment,
the
arrzount (the
"Manufactured
Dividend")
payable
by the
Borrower
shall be
equal
to Ehe
amounE
of
the
relevant
Income
together
with an
amount
e
quivalent to any
deduction, withholding
or payment
for or on
account of
tax made
by
the relevant
issuer (or
on
its
behalf}
in
respect of such
Inconne
together
with an
a
mount equal to any
other
tax
credit
associated
with such
Income
unless a
lesser
a
mount is
agreed be
tween the
Parties or an
Appropriate Tax
Voucher
{together
with
any
further amount
which
may be agreed
between the
Parties
to
be
paid}
is
p
rovided
in lieu of such
deduction,
withholding
tax
credit or
payment.
(iii)
Where
either the
Borrower, or
any person
to
whom the
Borrower
has
on-lent the
S
ecurities, is
unable
to make
payment
of
the
Manufactured
Dividend to
the
Lender
without
accounting
to the
Inland Revenue
for any
amount of
relevant
tax
(as
required
by
Schedule
23A to the
Income and
Corporation
Taxes Act
1988}
the
B
orrower shall pay
to
the Lender
or its
Nominee, in
cash,
the
Manufactured
Dividend
less
amounts equat to such
tax.
The
Borrower shall at
the same
time if
requested
supply
Appropriate Tax
Vouchers to the
Lender.
(
iv)
If
at any
time any
Manufactured Dividend
falls to
be paid and
neither
of the
Parties is an
Approved L3K
Intermediary or an Approved
~JK
Cotlecting
Agent,
the
B
orrower
shall procure that
the payment
is paid
through an
Approved
iJK
I
ntermediary
or an
Approved UK
Collecting
Agent agreed by the
Partzes
for this
p
urpose, unless the
rate of relevant
withholding
tax in respect
of any
Income that
would
have been
payable to the
Lender but for the
loan
of the
Securities
would
have been
zero and no
income tax liability
under
Section I23 of
the
Income
and
Corporation
Tapes Act
1988 would have
arisen in
respect
thereof.
(v) In
the
event
of
the
Borrower failing to remit
either directly
or by
its Nominee
any
sum
payable pursuant
to
this Clause,
the
Borrower hereby
undertakes
to pay a
rate
to the
Lender
(upon demand) on the
amount
due ar~d
outstanding
at
the
rate
provided for in
Clause 13
herea£ Interest
on
such
sum shall
accrue daily
c
ommencing an and
inclusive
of the third
Business Day
after
the
Relevant
P
ayment Date,
unless otherwise
agreed
between the
Parties.
(
vi)
Each Party
undertakes
that
where
it
holds
securities of the
same
description
as any
s
ecurities borrowed
by it or
transferred
to it by way
of
collateral at
a
time
when a
right to
vote arises
in respect of
such
securities, it will
use
its
best
endeavours to
arrange
for the
voting
ri
ghts attached
£o such
securities
to be
exercised
in
accordance
with the
instructions
of the Lender
or
Borrower
(as the case
may
be)
)PON97S5.44
I$-
PRC)VIDED
ALWAYS
THAT
each Party shall use
its best endeavours
to notify
the other of its
instructions
in
writing
no
Later
than seven
Business Uays prior
to
the date upon
which such votes are exercisable or
as otherwise agreed be
tween the
Parties and that the Party
concerned shall not be obliged
so to exercise the
votes in
respect of a number of
Securities greater than
the number
so
lent or transferred
to
it. For the
avoidance of doubt the Parties agree that subject as hereinbefore
p
rovided
any
voting rights attaching
to
the relevant Securities,
Equivalent
S
ecurities, Caliateral and/or Equivalent Collateral
shall be
exercisable
by the
p
ersons
in
whose name they are registered or in the
case
of
Securities, Equivalent
Securities, Collateral an
d/or
Equivalent Collateral in bearer form,
the persons by or
on behalf of
whom they are held,
and not necessarily by the
Borrower or
the
Lender
(as
the
case may be).
(
vii) Where, in respect of any
borrowed
Securities
ar any Collateral, any
rights
relating
to conversion, sub-division, consoiidatian, pre-emption, rights arising under
a
takeover offer
or
other rights, including those
requiring
election
by
the holder for
the time being of such Securities
or
Collateral, become exercisable prior
to the
redelivery of Equivalent Securities or
Equivalent Collateral, then
the Lender or
Borrower,
as
the
case
may
be, may,
within a reasonable time be
fore the
latest time
for
the exercise of the right or
option
give
written
notice to the other
Party that on
redelivery of
Equivalent Securities or
Equivalent Cotlaterai,
as the case may be, it
wishes to receive
Equivalent
Securities
or Equivalent Collateral in such form as
will
arise
if the right
is
exercised or, in the case of a right
which may be exercised
in
mare than
one
manner,
is
exercised as is specifted in such
written notice.
(
viii) Any payment to
be made by the Borrower
under this Clause shall be
made in a
m
anner to
be
agreed
be
tween
the Parties.
5.
RA'I'ES
{
A)
In respect of each
loan of Securities, the
Borrower shall pay to the Lender, in the
manner
prescribed in sub
-Clause
(C},
sums calcu3ated by
applying such rate as shall be agreed.
between the Parties from
time to time to the daily
Value of the
relevant
Securities.
{
B)
Where Cash
Collateral is deposited with
the Lender in respect of
any loan
of
Securities
in
circumstances
where:
{
i}
interest is earned by the Lender
in respect of such Cash Collateral
and that interest
is
paid to the
Lender without
deduction of tax,
the Lender shall pay
to the
J
PONQ7S5.44
-~4-
Borrower,
in
the manner
prescribed in
sub-Clause (C), an
amount
equal
to the
g
ross amount of such interest
earned. Any such
payment due to
the
Borrower may
b
e
set-aff against any
payment due to the
Lender
pursuant
to sub-Clause
(A)
h
ereof
if either
the
Borrower has warranted
to the Lender in
this
Agreement that it
i
s subject
to tax in
the
United
Kingdom under
Case I of Schedale D in
respect of
any income arising
pursuant to or in connection
with the borrowing of
Securities
hereunder or
the Lender has notifed
the Borrower of the
gross amount
of such
interest or income;
and
(
iil
sub
-Clause
(B)(i}
above does not apply,
the Lender shall gay
to
the Borrower,
in
the
manner
presented in sub-Clause
(C), sums calculated by applying
such rates as
shall be agreed
be
tween
the Parties from time
to time
to
the
amount of such
Cash
Collateral. Any such
payment due to the Borrower
may be
set-off against
any
payment due to the Lender
pursuant to sub-Clause (A) hereof.
(
C}
In respect of each loan
of
Securities, the payments referred to in
sub
-Clauses
(A}
and
{B) of
this Clause
shalt accrue daily in respect
of
the
period commencing on and
inclusive of
the
Settlement
Day and terminating on
and
exclusive of the
Business
Day
upon
which
E
quivalent Securities are redelivered or
Cash
Callateraf is repaid.
Unless
otherwise agreed,
t
he sums so
accruing in respect of each
calendar
month shall be paid in
arrears by the
B
ozrower Eo the Lender
or to
the
Borrower
by the Lender (as the
case may be) not
Later than
the Business Day which
is one week after
the last Business Day
of the catendar
month to
which such
payments relate
or
such other date as the Parties
shall from
time to
time agree.
Any payment
made pursuant
to sub-Clauses
(A}
and (B)
hereof shall be in such
currency and
shall be paid
in such manner and at such place as shall
be agreed
between the Parties.
b. COLLATERAL
{A}
(i)
Subject
to sib-Clauses (B),
(C) and (E) below the Borrower
undertakes to
deliver
C
ollateral
to the
Lender
(or in accordance with the
Lender's
instructions)
T
OGETHER
WITH appropriate
instruments of transfer duly stamped
where
necessary and
such other
instruments as may be requisite
to vest title thereto
in the
Lender simultaneously with delivery
of
the
borrowed
Securities and
in
any
event
no later than Close
of Business on the Settlement Date.
Collateral
may
be
provided in
any of the forn~s specified in the
ScheduEe hereto (as
agreed
between
the
Parties);
(
ii}
where
Collateral
is
delivered
to the
Lender's Nominee any
obligation
under this
A
greement to redeliver or otherwise
account for Equivalent
CollateraE
shall be an
7PON0735.a4
-20-
ab(igation of the Lender
notwithstanding
that
any such
redelivery
may
be
effected
i
ri
any
particular
case by the
Nominee.
(B) Where
CGfl Collateral is
provided to
the Lender
ar its
Nominee by member
-to-member
delivery or delivery
-by-value
in
accordance with
the provisions of
the CGO
Rules from time
t
o time in
farce,
the obligation of the
Lender shall be
to
redeliver
Equivalent
Collateral
t
hrough the CGO to
the Borrower
in
accordance with
this Agreement.
Any
references,
(howsoever expressed) in
this Agreement,
the Rules, anctlor any other agreement
or
c
ommunication between
the Parties to an obligation to redeliver
such Equivalent Cflllateral
shall be construed accordingly. If
the loan of Securities in respect of
which such
Collateral
w
as provided has not been discharged when tfie
Collateral is
redelivered,
the
Assured
Payment
obligation
generated on
such redelivery
shall be
deemed
to
constitute a
payment of
m
oney which
shall be
treated
as Cash
Collateral
until the Ioan is
discharged, or
further
E
quivalent
Coilaieral is
provided Iater
during
that Business Day.
This
procedure shall
continue daily
where CGO
Collateral
is delivered-by-value
for as long as
the
relevant 3oan
r
emains outstanding.
{
C)
Where
CGO Collateral or other
coliatera!
is provided by delivery
-by
-value to a
Lender or its
N
ominee the
F3orrower may
consolidate such
Collateral with
other
Collateral
provided by
the
same delivery
to a third
party for
wham the Lender
or its
Nominee is acting.
{
D) Where Collateral
is
provided by delivery-by-value through
an
alternative book entry
transfer
s
ystem, not being the CGO,
the
obligation of
the Lender shall
be to
redeliver
Equivalent
C
ollateral
tluough such
book entry
transfer
systerrm in accordance with
this
Agreement.
If the
loan of Securities in respect of
which
such Collateral
was
provided has not been discharged
when the Caliaterat is redelivered, any payment obligation
generated within
the book
entry
transfer
system on such redelivery shalt be
deemed
to constitute a
payment of
money which
shall be
treated
as
Cash Col6ateral until the
loan
is discharged, or
further
Equivalent
Collateral is
provided
later during that
Business Day.
This
procedure shall
continue
when
C
ollateraE is delivered-by
-value for
as
long
as the
relevant loan remains outstanding;
(E) Where Cash
Collateral is
provided
the sum of
money so
deposited may be
adjusted in
accordance with
Clause
6{H}.
Subject
to
Clause 6{H}(ii),
the Cash
Collateral shall
be repaid
at the
same time as Equivalent Securities in
respect of the
Securities
borrowed are
redelivered,
and the
Borrower shalt
not assign,
charge, citspose of or
otherwise deal
with its
rights in
respect of the
Cash
Collateral. If the
Borrower
fails
to comply
with its
obligations
f
or such
redeEivery of
Equivalent
Securities the Lender
shall have the ri
ght to apply the Cash
C
oliatera!
by
way of set-off in
accordance with Clause $.
~
roho~ss.aa
-21-
{F)
The
Borrower may from
time
to
time
call
for
the
repayment of
Cash
Collateral or
the
r
edelivery of Collateral
equivalent to any Collateral
delivered to the
Lender prior
to the date
on
which the same would
otherwise have been
repayable
or
redeiiverable
PROVIDED
THAT
at the time of such
repayment or
redelivery the
Borrower shall
have
delivered or
d
elivers
Alternative Co3laterai
acceptable to the Lender.
(G) (i)
Where
ColEateral
(other than Cash
Collateral) is
delivered in
respect
of which
any
Income may
become
payable, the
Borrower shall call far
the
redelivery of
Collateral
equivalent
to such
Collateral in good time
to
ensure that
such
Equivalent
Collateral may be
delivered prior to any such
Income
i~ecoming
payable to the
L
ender, unless in relation
to such Collateral the
Parties are
satisfied
before
the
r
elevant
Collateral is
transferred
that no tax will be
payable
to the
tJK Inland
Revenue under
Schedule 23A of the Income
and
Corporation Taxes Act
1988. Ak
the
time
of such
redelivery the
Borrower shall
deliver
Alternative
Collateral
acceptable
to the Lender.
(ii)
Where the
Lender receives
any Income in
circumstances where the
Parties are
satisfied
as set
out in Clause
6(G}(i) above, then the
Lender shall on the
date on
w
hich the
Leader receives such Income or on
such
date as the
Parties
may
from
time
to time agree, pay
and
deliver a sum of money
or
property
equivalent to
such
I
ncome
{with any such
endorsements
or
assignments as
shall be
customary and
a
ppropriate to
effect the
delivery}
to
the
Borrower and shall
supply
Appropziate
Tax
Vouchers (if any) to the Borrower.
(
H}
Unless the Schedule
to
this Agreement indicates that
Clause 6(I) shall app3y
in lieu of
this
Clause
6(H},
or
unless
otherwise agreed between the
Parties,
the
Value of
the
Collatera]
delivered
to or deposited
with the
Lender or its nominated
bank or depositary
(excluding any
C
eliateral repaid or redelivered
under
sub
-Clauses
(H}(ii}
or
(I){ii) below
(as the case
may
ice
}
{"Posted
Collateral"})
in
respect of any loan of
Securities shall bear from
day
to day
and
a
t any time the
same proportion to the
Value of
the Securities
borrowed under
such loan
as
t
he Posted
Collateral bore at the
commencement of such loan.
Accordingly:
(i)
the
Value of
the Posted Collateral
to be delivered or deposited
while
the loan
of
Securities
continues shall be equal to the
Value of
the
borrowed
Securities and the
Margin
applicable
thereto (the "Required
Collateral Value");
(
ii}
if on any
Business Day the
Value
of
the
Posted
Collateral in respect
of any
loan of
Securities
exceeds the Required
Collateral
Value in
respect of
such loan,
the
Lender
shall (on
demand) repay
such Cash
Collateral and/or
redeliver to the
B
orrower such Equivalent
Collateral as will
eliminate the
excess; and
J
PON07S~.44
-22-
(iii}
if on any
Business
Day the
Value of the Posted
Collateral falls
below
the
Required
Collateral
Value, the
Borrower shall
(on
demand)
provide such further
Collateral
to
C
he Lender
as will
eliminate
the
deficiency.
(I) Subject to Clause 6{J), unless the
Schedule to this
Agreement
indicates that
Clause
6(H}
shall
apply
in
lieu of
this Clause
6(I},
or
unless otherwise
agreed between
the
Parties:-
(i)
the
aggregate Value of
the
Posted
Collateral in
respect of all
loans
of Securities
o
utstanding under
this
Agreement
shall equal
the
aggregate of
the Required
Cailateral
Values
in respect of such
loans;
(
iii
if at any
time
the aggregate
Va[ue
of
the
Posted Collateral in
respect
of all
loans
of
Securities
outstanding
under this Ageement exceeds the
aggregate of
the Required
Collateral Values in
respect of such
loans, the Lender
shah
(on demand) repay
such
C
ash
Collateral
and/or
redeliver to the Borrower such Equivalent Collateral as will
eliminate the
excess;
(iii)
if
at any time the
aggregate
Value of
the Posted
Collateral
in respect of all loans
of
S
ecurities
outstanding under
this
Agreement falls
beIaw the aggregate of
Required
C
ollateral Values in respect of all such
loans,
the
Borrower shall
{on
demand}
p
rovide such
further
Collateral to
the Lender as
will
eEiminate the
deficiency.
{J}
Where
Clause 6(I) applies, unless the
Schedule to this Agreement indicates
that
this Clause
6(J)
does not apply, if
a Party
(the
"first Party")
would, but for
this
Clause 6(J), be
required
u
nder
Clause
6(I}
to repay
Cash
Collateral,
redeliver
Equivalent
Securities or
provide further
C
ollateral
in
circumstances
where the other
Party
(the
"second
Party"}
would, but
for this
Clause
b(J),
also
be required to repay
Cash
Collateral or provide
or
redeliver
Equivalent
C
ollateral under CIause 6(~,
then the
Value of
the Cash
Collateral ar
Equivalent
Collateral
d
eliverable by
the first Party
{"X"}
shall
be set-off against the
Value
of
the Cash
Collateral,
or Equivalent
Collateral
or
further Collateral deliverable
by the second Party
("Y"}
and the
only
obligation of the Parties under
Clause
6(I}
shaI] be,
where X exceeds Y, an
obligation of
the
firs[
Party,
or where Y exceeds
X, an
obligation of the second Party, to repay
Cash
C
ollateral, redeliver Equivalent
Collateral or to
deliver further
Collateral
having a
Value
e
qual to tine
difference
be
tween X and
Y.
(K)
Where Cash
Collateral
is repaid,
Equivalent
Collateral is
redelivered or further
Collateral is
p
rovided
by
a Party
under
Clause 6(I),
the Parties
shall
agree to which
loan or loans
of
S
ecurities
such repayment, redelivery or
further
provision is to
be attributed
and failing
agreement
i[ shall be attributed, as
determined by the Party
making such repayment,
Jvoxo7ss.aa
-23-
redelivery
or further
provision
to
the earliest outstanding
Ioan and, in the case of a
repayment
o
r redelivery up to the point at
which the Value
of Collateral in respect of
such loan is
r
educed
to
zero and, in the case of a
further
provision
up
to the point at which the
Value of
the Collateral in
respect of
such
loan
equals
the
Required Collateral Value in respect
of such
loan, and
then
to
the next
earliest outstanding loan up to the
similar point and so
an.
(L)
Where any
Cash Collateral falls to be repaid or Equivalent Collateral to be
redelivered or
further
Collateral to be provided
under this Clause 6,
it shall be delivered
within the
m
inimum period after demand specified in the
Schedule
or if no appropriate period
is there
specified within
the
standard settlement time for
delivery
of the relevant type
of Cash
C
ollateral,
Ec3uivalent Collateral
or Collateral, as the case may be.
7. REDELNERY OF
EQUNALENT SECURITIES
(A) The Borrower
undertakes to
redeliver Equivalent
Securities
in accordance
with this
A
greement and the terms of the relevant Borrowing RequesE.
For
the
avoidance
of doubt
a
ny
reference herein or in
any other agreement
or
eonntnunication
between the Parties
(howsoever expressed)
to an
obligation to
redeliver or account
for or act
in
relation to
borrowed Securities shall accordingly be construed as a reference
to
an
obligation to
redeliver or account for
or
act
in
relation to Equivalent
Securities.
(B)
Subject to Clause 8 hereof and the terms of
the
relevant Borrowing Request the
Lender may
call for the redelivery of all or any
Equivalent
Securities at any time by
giving
notice on any
B
usiness
Day
of not less than the
standard
settlement time for
such
Equivalent Securities on
t
he
exchange or in the clearing
organisation
through
which the re€evant
borrowed Securities
w
ere originally delivered. The Borrower shall as
hereinafter
provided
redeliver
such
Equivalent Securities not
later than the
expiry of such notice
in
accordance with the
Lender's
instructions. Simultaneously
with
the
redelivery
of tE~e Equivalent Securities in
accordance
with
such call, t11e Lender shall (subjecE to Clause b(I), if applicable) repay any
Cash
C
ollateral and redeliver to the
Borrower
Collateral equivalent to
the
Collateral
delivered
p
ursuant to Clause
6 in respect
of the
borrowed Securities. For
the
avoidance of
doubt
any
r
eference
herein or in any other
agreement
or
communication
between the Parties (however
e
xpressed}
to
an
obligation to
redeliver or account for
ar
act in relation
to
Collateral shall
accordingly be construed as a
reference to an
obligation to
redeliver or
account for or act in
r
elation to
Equivalent
Collateral.
{
C)
If the
Borrower does
not
redeliver
Equivalent Securities
in
accordance
with such call,
th
e
L
ender may elect
to continue
the loan
of Securities
PROVIDED THAT if the
Lender
does
nc~t
elect to continue
the
loan the
Lender may
by written
notice
to the Borrower elect to
terminate the relevant
loan.
Upon the expiry
of
such notice the
provisions
of
Clauses {8) (B)
I
PON07S5.44
-2~-
to {F)
shall
apply as if
upon Ehe
expiry of
such notice
an
Event
of
Default
had
occurred
in
r
elation
to the Borrower
(who
shall thus
be the
Defaulting
Farty for
the
purposes of
this
A~
eemenE) and as
if
the
relevant loan
were the only
Loan
outstanding.
(D) In the
event that as a
result of
the faiture
of the
Borrower
to
redeliver Equivalent
Securities
to the
Lender in
accordance with
this
Agreement
a "buy
-in" is exercised
against the
Lender
then provided that
reasonable
notice
has been given
to
the
Borrower of
the
likelihood of
such a
"buy-in",
the
Borrower shall
account to the
Lender for
the total
costs and
expenses
r
easonably
incurred. by the Lender
as a result of
such "buy
-in".
(E)
Subject to
the terms of
the
relevant
Borrowing
Request, the
Borrower shall
Eye
entitled at any
t
ime to terminate a
particular loan
of Securities and to
redeliver all
and any
Equivalent
S
ecurities due
and outstanding to the
Lender in
accordance with
the
Lender's
instructions.
The Lender shall accept
such
redelivery
and
simultaneously
therewith
(subject to
Clause 6(I)
if
applicable)
shall
repay
to the
Borrower any Cash Collateral or,
as the
case may
be,
r
edeliver
Collateral
equivalent to the Collateral
provided by
the
Borrower
pursuant to Clause
b in
respect
thereof.
(F)
Where
a
TALISMt1N short
term
certificate
{as
described in paragraph
C
of
the
Schedtile) is
provided by way of Collateral, the
obligation
to
redeliver Ectaivalent
Collateral is
satisfied
by the
redelivery
of
the
certificate to the Borrower ar its
expiry as provided for in
the Rues
a
pplying
to such certificate.
{
G) Where a Letter
of
Credit is
provided
by
way of
Collateral,
the
obligation to redeliver
Equivalent Collateral is satisfied by the
Lender
redelivering
far cancellation the Letter
of
Credit so
provided,
or
where
the Letter of
Credit
is pxovided in respect of
more than one
l
oan, by
the Lender consenting
to
a reduction in the value of the
Letter of
Credit.
~. SET-OFF ETC
(
A}
Qn
the date
and
time (the "Performance
Date") tl-~at
Equivalent Securities are required
to
be
redelivered by the Borrower in accordance with
the
provisions of
this
Agreement
the
Lender
shall
simultaneously
redeliver
the
Equivalent
Collateral and
repay any
Cash
C
ollateral held
{in
respect of
the
Equivalent
Securities to
be
redelivered) to
the Borrower.
Neither
Party shall be obliged to make delivery (or make a payment as the
case may
be) to
t
he other
unless
it is satisfied
that
the other
Party will
make such
delivery
{or make an
appropriate
payment
as Ehe
case may be)
to it
simultaneously.
If it is
not
so satisfied
(
whether be
cause
an Event of
Default
has occurred
in
respect of the
other
Party or
o
therwise)
it shall
notify the
other
paz-ty
and unless
that
other Par[y has
made
arrangements
w
[~ich are
sufficient
to assure full
delivery {or
the
appropriate
payment as the
case
may
be}
to
1
PONo755.aa
- 25 -
the
notifying
Party,
the
notifying
Party
shall
{provided
it
is
itse]f
in
a
position,
and
willing,
to
p
erform
its
awn
obligations)
be
entitled
to
withhold
delivery
{ar
payment,
as
the
case
may
b
e}
to
the
other
Party.
{
B)
If
an
Event
of
Default
occurs
in
relation
to
either
Party,
the
Parties'
delivery
and
payment
o
bligations
(and
any
other
obligations
they
have
under
this
Agreement}
shall
be
accelerated
s
a
as
to
require
performance
thereof
at
the
time
such
Event
of
Default
occurs
(the
dale
of
w
hich
shall
be
the
"Performance
Date"
for
the
purposes
of
this
clause)
an
d
in
such
evens:
(
i}
the
Relevant
Value
of
the
Securities
to
be
delivered
(ar
payment
to
be
made,
as
the
c
ase
may
be
)
by
each
Party
shall
be
established
in
accordance
with
Clause
8(C);
a
nd
(
ii;?
on
the
basis
of
the
Relevant
Values
sa
established,
an
account
shall
be
taken
(as
at
t
he
Performance
Date)
of
what
is
due
fr
om
each
Party
to
the
other
and
(on
the
b
asis
that
each
Party's
claim
against
the
other
in
respect
of
delivery
of
Equivalent
S
ecurities
or
Equivalent
Collateral
or
any
cash
payment
equals
the
Relevant
Value
t
hereofl
the
sums
due
from
one
Party
shall
be
set
-off
against
the
sums
due
from
the
o
ther
and
only
the
balance
of
the
account
shall
be
payable
(by
the
Party
having
the
c
laim
valued
at
the
lower
amount
pursuant
to
the
foregoing)
and
such
balance
shall
b
e
payab3e
on
the
Performance
Date.
(
C)
For
the
purposes
of
Clause
8{B)
the
Relevant
Vatue:-
(i)
of
any
cash
payment
obligation
shall
equal
its
par
value
(disregarding
any
amount
t
aken
into
account
under
(ii)
or
{iii)
below};
(
ii)
of
any
securities
to
be
delivered
by
the
Defaulting
Party
shall,
subject
to
Clause
8
(E}below,
equal
the
C}ffer
Value
thereof;
and
(
iii)
of
any
securities
to
be
delivered
to
the
Defaulting
Party
shall,
subject
to
C
lause
8(E)
below,
equal
the
Bid
Value
thereof.
(
D)
For
the
purposes
of
Clause
$(C},
but
subject
to
Clause
8(E)
below,
the
Bid
Value
and
Offer
V
alue
of
any
securities
shall
be
calculated
as
at
the
Close
of
Business
in
the
most
appropriate
m
arket
for
securities
of
the
relevant
description
(as
deternlined
by
the
Non
-Defaulting
Party)
o
n
the
first
Business
Day
following
the
Performance
Date,
or
if
the
relevant
Event
of
Default
o
ccurs
outside
the
normal
business
hours
of
such
market,
on
the
second
Business
Day
f
ollowing
the
Performance
Dace
(the
"Default
Valuation
Time");
~
Porro~ss.aa
-26-
{E)
(i)
Where the Non-Defaulting
Party has
following the occurrence of an Event of
Default but prior
to the Default
Valuation Time purchased securities
forming part
o
f the same issue and being
of an
identical type and description to those to be
d
elivered by
the Defaulting Party
and
in
substantially
the same amount as those
securities
or so]d securities
forming part of
the same issue and being of
an identical
t
ype and
description to
those to be
delivered
by
him to the
Defaulting Party
and in
s
ubstarttialiy
the
same
amount as those securities,
the cost
of such
purchase or the
p
roceeds
of such
sale,
as
the case may
be, (taking into
account all reasonable costs,
fees and
expenses
that would be
incurred in
conneceion therewith) shall
be created
as the
Offer Value or
Bid Value, as the case
may
be,
of the relevant
securities for
the purposes
of
this
Clause 8.
(ii>
Where the
amount flf any
securities
sold or
purchased as
mentioned
in
(E){i) above
as not
in substantially
the same
amount as
those
securities to be
valued
for
the
purposes
Clause S{C) the
Offer Value or the
Bid Value (as the
case may be) of
those
securities
shall
be
ascertained
by
dividing the
net
proceeds of sale or
cost
of
purchase by
the amount of
the securities
sold or
purchased so as to
obtain a net
unit
price and multiplying
that net
unit price by
the amount
of the securities co be
v
alued.
(
F} Any
reference in this
Clause 8 to
securities shalt
include any
asset other
than cash provided
by
way of
Collateral.
(G)
If the Borrower
or the Lender
for any
reason
fail
to
comply
with their
respective
obligations
under
Clauses
6(F}
or
6(G) in respect
of redelivery
of
Equivalent
Callatera] or
repayment of
Cash
Collateral such
failure
shall
be
an
Event of Default
for the
purposes
of this Clause 8,
and the
person
failing to comply
shall thus
be the
Defaulting
Party.
(
H}
Subject to
and
without
prejudice to its rights
under
CIause 8(A)
either Party
may from time
to time
in accordance
with
market
practice and in
recognition of
the
practical difficulties in
arranging
simultaneous
delivery of
Securities,
Collateral and cash
transfers waive its ri
ght
u
nder this Agc-
eement in
respect of
simultaneous delivery
ancUor
payment PROVIDED
THAT no
such
waiver in respect of
one
transaction
sha11 bind
it
in respect of any other
t
ransaction.
9.
TAXATION
(A)
The
Borrower
hereby
undertakes
promptly to
pay and
account for any
transfer or
similar
duties
or taxes
chargeable in
connection
with any
transaction
effected pursuant to or
1
PON0755.44
_2'~_
contemplated
by this Agreement,
and shall
indemnify and
keep
indemnified
the
Lender
against
any liability
arising in respect
thereof as a result of
the
Borrower's
failure to do
so.
(B) The Borro~~~er
shall only make
a
Sorrowing Reques[
where the purpose of
the
Loan meets th
e
r
equirements of the Rues
regarding Ehe
conditions that
must be fulfilled for
Section 129 of
the Income and
Corporation Taxes Act
1988
{or
any
statutory modification
or
reenactment
thereof for the time
being
in force) to apply
to the arrangement
concerning the loan,
unless
the
Lender is aware that
the
transaction is
unapproved for the purposes of
the
Rales of the
IJK
Inland Revenue or such
purpose
is not met.
(C) A Party
undertakes
to notify the other Party if it
becomes or ceases
to
be
an
Approved UK
I
ntermediary or an Approved
UK
Collecting Agent.
10.
LENDER'S
WARRANTIES
Each Patty
hereby warrants and
undertakes
to
the
other on a continuing
basis
to the
intent that such
warranties
shall survive the
completion of any transaction
contemplated
herein
that,
where
acting
as a
Lender:
(A) it is duly
authorised and
empowered to perform
its duties and obligations
under this
A
greement;
(B) it is not
restricted under the
terms of its
cflnstitution or in any other manner
from
t
ending
Securities in accordance
with this
Agreement or fr
om otherwise
p
erforming its
obligations hereunder;
(C) it is
absolutely entitled to
pass
full legal and
beneficial
ownership of all Securities
provided
by it hereunder
to the Borrower free from all
Liens, chazges and
encumbrances;
(D)
where the Schedule
to this Agreement specifies that
this Clause IO(D)
applies, it
is not
r
esident
in
the
United Kingdom for tax
purposes and either is not carrying
on a trade
in the
United
Kingdom through a branch or
agency
or if
it is carrying on such a
trade the loan is
not entered into in
the course of the business of such
branch or
agency, and
it has (i)
d
elivered or caused to be delivered
to the Borrower a duly
completed and
certified
Certificate
(IvSOD2}
or a
photocopy thereof bearing
an
Inland Revenue
acknowledgement
and
unique number
and
such Certificate or
photocopy
remains valid or {ii) has
taken all
necessary steps
to
enable a specific
authorisation to
make gross
payment of
the
M
anufacturecE Dividend
to
be
issued
by
the
Inland
Revenue;
i
rorao~ss.as
-28-
i, t t~
1 •• J ,
E
ach
Party hereby
warrants and undertakes to the
other on a continuing basis to the
intent that such
w
arranties stall survive the completion
of any
transaction
contemplated
herein that,
where acting
as a
Borrower:
(A)
it has all
necessary
licenses
and approvals,
and
is duly
authorised
and
empowered, to
p
erform
its
duties and
obligations under
this
Agreement
and will do
nothing
prejudicial to
the continuation of such
authorisation, licences or
approvals;
{
B)
it is not restricted
under
the
terms of its
constitution or in
any
other manner
from harrowing
S
ecurities in
accordance with
this
Agreement or
from
otherwise
performing
its obligations
h
ereunder;
(C)
it is
absolutely
entitled to
pass full legat
and
beneficial ownership of all
Collateral
provided
by
it hereunder to the
Lender free from
all Bens,
charges
and
encumbrances;
(D)
it zs
acting as
principal in respect
of
this
Agreement;
{
E) where
the
Schedule to this
Agreement specifies
this Clause
1]
(E) applies,
it is
subject to t~
i
n
the
United Kingdom
under
Case I of
Schedule D in
respect of
any
income
arising
pursuant
t
o
or
in connection with
the borrowing
of Seciu-
ities
hereunder.
1
2. EVENTS
OF DEFAULT
Each
of the
following events
occurring in relation to either
Party
(the
"llefaulting Party",
the other
Party being
the
"Non
-Defaulting
Party"}
shall be
an Event
of Default
for the
purpose of
Clause 8:-
(A}
the
Borrower ar
Lender
failing to
pay or repay
Cash
Collateral or deliver or
redeliver
C
ollateral or
EquivaEent
Collateral upon
the due
date, and
the Non
-Defaulting
Party
serves
written notice
on the
Defaulting
Party;
(
B}
the Lender
or
Borrower failing
to comply ti
vith its
obligations
under Clause
6,
and the Non-
Defaulting Party
serves written
notice on
the
Defaulting Party;
(C)
the
Borrower
failing to
comply
with
Clause 4{B)(i),
(ii) or {iii)
hereof, and the
Non-
Defaulting
Party serves
written
notice on
the Defaulting
Party;
I
PON07S5.43
-29-
(D}
an Act
of Insolvency
occurring
with respect to the
Lender
ar the
Borrower and
{except in
the
c
ase of an Acc of
Insolvency which
is the
presentation of a
petition for winding
up
or any
a
nalogous proceeding or the
appointment of a
liquidator or
analogous
officer of the
D
efaulting Party in which
case no
such notice shall be
required) the
Non-Defaulting
Party
serves written
notice on
the
Defaulting Party;
{
E)
any
representations or
warranties made by the
Lender or
the
Borrower being
incorrect
or
u
ntrue
in any
materiaE
respect
when made
or repeated or
deemed to have
been made
or
repeated,
ana the Nan
-Defaulting Party
serves written
notice on the
Defaulting Party;
{
F)
the Lender
or the Borrower
admitting
to the other that
it is unable
to,
or
it
intends
not to,
p
erform any of
its obligations
hereunder
and/or in respect
of any
loan
hereunder,
and the
Non
-Defaulting
Party
serves written
notice on
the Defaulting
Party;
(G)
the Lender
(if appropriate)
or the
Borrower being
decEared
in
defaukt by
the
appropriate
a
uthority
under the Rules
or E>eing
suspended or
expelled from
membership of
or
p
articipation in any
securities exchange
or association or
Other self
-regulatory
organisation,
o
r
suspended
fr
om dealing
in
securities by any
government agency,
and the
Non-Defaulting
Party
serves written
notice on the
Defaulting Party;
(H)
any
of
the assets of
the Lender
or
the
Borrower or the
assets of
investors held
by or to
the
o
rder
of the Lender or
the Borrower
being
transferred or ordered
to be
transferred
to a
trustee by
a regulatory authority
pursuant to any
securities
regulating
legislation and
the
N
an
-Defaulting
Party serves written
notice
on
the Defaulting
Party, or
(
I}
the
Lender ar
the Borrower failing
to
perform
any other of
its obligations
hereunder and not
r
emedying such
failure within
30 days after the
Non
-Defaulting Party serves
written notice
r
equiring it to
remedy such
failure, and
the Non
-Defaulting Party
serves a
further
written
notice on the
Defaulting
Party.
Each Party
shall notify the
other if
an Event of
Default occurs in
relation to it.
I3.
OUTSTANDING
PAYMENTS
In the event
of either
Party failing
to remit
either
directly or
by its Nominee
sums
in
accordance
with
t
his Agreement such ParEy
hereby
undertakes
to pay a
rate to the
other Party
upon
demand an
the net
balance
due and
outstancl~ng
of 1%above
the
Barclays
Bank
PLC base
rate
from
time to
time
in
force.
J
PON0755.~ui
-3a-
14.
TRANSACTIONS ENTERED
INTO AS
AGENT
(A)
Subject to the
following provisions
of this
Clause, the Lender
may enter
into
loans
as
agent
(in such
capacity, the
"Agent"}
for a
third person (a
"Principal"),
whether as custodian or
investment
manager
or otherwise
{a
Loan
so entered into
being referred to
in this clause as an
"
A.gency Transaction").
(B) A
bender may
enter into an
Agency Transaction if,
but only if:-
{i}
it specifies that
loan as an
Agency
Transaction at
the time
when
it enters into
it;
{
ii) it
enters into that
loan on behalf
of a single
Principal
whose identity is
disclosed to
the
Borrower
(whether
by
name
or
by
reference
to
a code or
identifier which the
Parties
have agreed
will
be
used to
refer to a
specified Principal) at
the time when
i
t enters into
the Iaan;
and
(iii)
it has
at the time
when the
taan is
entered
into
actual authority
to enter into
the
loan
and to
perform on be
half of that
Principal all
of that Principal's
obligations
under the
agreement
referred to
in
(D)(ii}below.
{C}
The
Lender
undertakes that, if
it enters
as
agent
into
an
Agency Transaction,
forthwith upon
b
ecoming aware:-
(i)
of any
event which
constitutes
an
Act
of
Insolvency with
respect to
the relevant
P
rincipal; or
(ii)
of any
breach
of
any of the
warranties given in
Clause l~(E)
below or of any
event
o
r
circumstance which has
the result
that any such
warranty
would
be
untrue
if
r
epeated by re
ference to the
current facts;
it will
inform the
Borrower of
that fact
and
will, if so
required by
the Borrower,
furnish it
w
ith
such
additional
information as it may
reasonably request.
(
D}
(i)
Each
Agency
Transaction shall be a
transaction be
tween Ehe
relevant Principal
and
the
Borrower
and no person
other than the
relevant
Principal and the
Borrower
s
hall
be
a party to or have
any rights
or
obligations
under an
Agency Transaction.
Without
limiting the
foregoing,
the Lender shall
not be liable as
principal for
the
p
erformance
of an
Agency
Transaction or for
breach of any
warranty contained
in
1
poNo~ss.ss
-31-
Clause
10(D) or 11(E)
of this
Agreement,
but
this is
without
prejudice to
any
liability
of the
Lender
under any other provision
of
this Clause.
(ii)
Alt
the
provisions of
the
Agreement
shall
apply
separately as betwezn the
B
orrower
and
each
Principal fc~r
whom the
Agent has
entered
into
an
Agency
t
ransaction or
Agency Transactions as
if
each
such
Principal were a
party to a
s
eparate
agreement
with the
Borrower in
all respects
identical
with this
Agreement
o
ther
than this
paragraph and
as if
the
Principal
were
Lender in
respect of that
agreement.
P
R{~VIDED THAT
i
f
there occurs
in
relation
to the
Agent an
Event of
Default or
an event
which
w
ould
constitute
an Event
of
Default if the
Borrower
served
written notice
under
any
sub-C(ayse of
Clause 12,
the
Borrower shall
be
entitled by giving
written
notice t~
the Principal
(which
notice
shall be
validly given
if given
to
the Lender in
a
ccordance
with
Clause 20) to
declare
that
by
reason
of
that event
an Event of
Default
is to be
treated as
occurring
in relation to
the Principal.
If
the Borrower
gives
such a
notice
then an
Event of
Default
shall be
tr
eated as
occurring in
r
elation to the
Principal
at the
time when
the notice is
deemed
to
be
given; and if
the
Principal is
neither
incorporated nor
has
established a
place of
business
in
G
reat
Britain, the
Principal
shall
for the
purposes of
the
agreement referred to in
(D)(ii)
be
deemed to have
appointed as its
agent to
receive
on its
behalf
service of
p
rocess in the
courts
of England
the
Agent, or if the
Agent is
neither incorporated
n
or has
established
a place
of
business in
the United
Kingdom,
the
person
a
ppointed by
the
Agent for
the
purposes of this
Agreement, or
such
other
person
a
s
the
Principal may fr
om time to
time
specify in a
written
notice given to
the
other
A
~Y~
(
iii) The
foregoing
provisions
of this
Clause do
not
affect the
operation of the
A
greement
as be
tween the
Borrower
and the
Lender in
respecE
of
any
transactions
into
which the
Lender may enter
on its
own
account as
principal.
(
E} The
Lender
warrants to
the Borrower
that it
will, on every
occasion
on
which it
enters or
p
urports
to
enter
into
a
transaction as
an Agency
Transaction,
have been
duty authorised to
e
nter into
that loan
and
perform the
obligations arising
thereunder on
behalf
of
the
person
w
hom
it specifies
as
the Principal
in
respect of that
transaction and to
perform on behalf of
t
hat
person all the
obligations of
that
person under
the agreement
referred to
in
(D)(ii).
J
PON07SSA4
-32-
~5.
TERIvfINATION OF
COURSE OF
DEALIIVGS BY
NOTICE
Each Party shat]
have the right to bring the course
of
dealing
contemplated under this
Agreement to an
end by
giving not less than
15
Business Days'
notice in writing to the other Party
{which
notice shall
specify
the date of
termination)
subject to an abligatian to
ensare that alE
loans
and which have been
entered
into
but
not
discharged at
the time such notice is
given are duly
discharged
in accordance with
t
his Agreement and with
the Rules.
16.
GOVERNING
PRACTICES
The
Borrower
shall
use its best
endeavours to notify
the Lender (in writing)
of any
changes in
legislation
or
practices
governing or
affecting the
Lender's
ri
ghts oz-
obligations under this
Agreement or
t
he treatment
of
transactions
effected pursuant to
or contemplated by
this
Agreement.
1
7.
OBSERVAIv7
CE
OF
PROCEDURES
Each of
the Parties
hereto agrees
that in taking any
action that
may be required in
accordance with
this
Agreement
it shall
observe strictly
the
procedures
and timetable
applied by the Rules
and, further, shall
o
bserve
strictly any
agreement (oral or
otherwise) as
to the time
for delivery or redelivery of any
money,
S
ecurities,
Equivalent
Securities,
Collateral or
Equivalent
Collateral entered into pursuant to this
Agreement.
18.
SEVERANCE
If any
provision of this
Agreement is declared by
any judicial
or other
competent
authority to be void
or
o
therwise
unenforceable,
that provision
shall
be
severed
from the
Agreement and
the remaining
provisions of this
Agreement
shall remain
in full
force and effect.
The
Agreement shall,
however,
thereafter be
amended by
the Parties in
Bach
reasonable
manner so as to
achieve,
without illegality,
the
intention
of the Parties
with
respect to that
severed provision.
1).
SPECIFEC
PEFtF~RiVIANCE
Each Party
agrees
that in relation to
legal
proceedings it
will
not
seek specific
performance
of the
other
P
arty's
obligation to
deliver or redeliver
Securities,
Equivalent Securities,
Collateral
or Equivalent
C
oltatera]
but without
prejudice to any
other rights it
may have.
2Q.
NOTICES
All
notices
issued under this
Agreement
shall
be
in writing (which
shall include
telex or
facsimile
messages)
and shall be
deemed validly
delivered if
sent by
prepaid first class
post to
or left
at the
i
Potuo-tss
as
-33-
addresses or sent to the telex or
facsimile number of
the
Parties respectively ar such
other addresses or
telex or facsimile numbers as each Party
may notify in
writing to the
other.
21. ASSIGNM]FNT
Neither
Party may
charge assign
or transfer all or any of its
rights
or
obligations hereunder
without the
prior consent of the other
Party.
22. NON
-WAVER
No
failure
or
delay by
either Party to exercise any
ri
ght,
power or privilege hereunder
shall
operate
as a
waiver
thereof nor shall any
single or
partial exercise
of any right, power or
privilege
preclude
any other
ar further
exercise thereof or
tine
exercise of any
other right, power or privilege
as herein
provided.
2
3.
ARBITRATION AND
JURISDICTION
(
A}
All claims,
disputes and
matters of conflict between the
Parties arising
hereunder
shall be
r
efereed
to
or
submitted
for arbitration in London in
accordance with English Law
be
fore
a
sole arbitrator to
be agreed between the
Parties or in
defau(E
of
agreement by
an
arbitrator to
b
e
nominaEed by the
Chairman of The
Stock Exchange on
the
appEication of
either Party, and
t
his Agx-eement sha►1
be deemed
for this purpose to be a
submnssion to
arbitration within
the
A
cbiiration Acts
1950 and 1974, or any
statutory modification
or re-enactment
thereof for
the time
being in force.
(B) This
Clause sha31 take
effect notwithstanding the
frustration or other
ternunation
of this
A
greement.
(C)
N~ action shall be
brought upon any issue
between the Parties
under or in
connection with
this
Agreement until the same
has been submitted to
arbitration
pursuant hereto
and an
award made.
24. TLVIE
T
ime
shall
be of
the
essence
of the
Agreement.
25.
RECORDING
The Parties
agree that
each may
electronically record alf telephonic
conversadans
between
them.
I
POh0735.31
-34-
26.
G(~VERNIlVG
LAW
T
his
Agreement
is
governed
by,
and
shall
be
construed
in
accordance
with,
English
Law.
I
N
WITNESS
WHEREOF
this
Agreement
has
been
executed
an
behakf
of
the
Parties
hereto
the
day
a
nd
year
fi
rst
before
written.
S
IGNED
BY
•
•
IN
THE
PRESENCE
C7F:
}
1
C
itibank,
N.A
Manuel
M.
Mar~nea
V
ices
~'res'sdent
S
IGNED
BY
o
N
~Ex.~z.~
of
I
N
THE
PRESENCE
OF:
Goldman
Sachs
Intern~a~o~nZ],,
Q
~
~~`
4
E
~
~
Q
~G~
~~
Q
~R
~
~,~.
Signature
VerSfied
W
WSS
FISS
C
itibank
N.A.
~
onclon
,~
F
~:
t
R
EBECCA
VJAL.SN
rn
oNa~ss.aa
-35-
_SCHEDULE
COLLATERAL
Types
C
ollateral
acceptable
under
this Agreement
may
include the
following or
othertivise, as
agreed
between
the Parties
fr
om time to time whether
transferable by hand
or ti
~ithin a depositary:-
A. British
Government
Stock
and other
stock registered
at the
Bank
of England
which is
transferable through the
CGfl
to the
Lender or its Nominee against an
Assured
Payment,
hereinbefore
referred to as CGO Collateral.
B.
(i}
British Government
Stock and
Sterling Issues by foreign
governments
(transferable
through the
CGO),
in the
form of an
enfaced
transfer
deed or a
long term
co3lateral
c
ertificate
or
overnight
collateral
chit issued by the CGO
accompanied (in
each
case)
by
an executed
unenfaced transfer deed;
(ii) Corporation and
Commonwealth Stock zn the form of
registered
stock
ar
allotment
letters duly renounced;
(
iii)
CTK Government
Treasury
BiIls;
(
iv:>
U.S.
Government Treasury
Bills;
(v)
Bankers' Acceptances;
(
vi}
Sterling
Certificates of Deposit;
(
vii) Foreign Currency
Certificates
of
Deposit;
(
viii)
Locai Authority
Bonds;
(ix) LecaE
Authority
Bifls;
(x)
Letters
of Credit;
(xi)
Bonds
or
Equities
in
registrable
form or allotment
letters
duly
renounced;
(
xii)
Bonds
ar
Equities
in
beazer farm.
~or~oz~s.~a
-36-
Clause
6{J)
(netting
of
margin
where
one party
both
a Borrower and
Lender) ~~Ishall
nat* apply,
M
inimum
period
after
demand
far
transferring
Cash Collateral
or
Equivalent Collateral:
Same day
B
ASE
C`LJI2RENCY
Tice
Base
Currency
applicable to this
Agreement is:
GBP
L
ENDERS
WARR.ANT7ES
C
lause
lfl{D)
!shall not"
apply.
.
fi
t:•.
::.~►flllia[.`]
C
lause
11/(E}
shalUs~e~~ apply.
[
NB~
Deiete
as
appropriate.]
J
PON07S5.44
-38-
Part B
(Multicurrency — Cross Border)
ISDA
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of ......................................
............................................................... and ......................................................................
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
1992 by International Swap Dealers Association, Inc.
2
ISDA 1992
(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.
3
ISDA 1992
(ii) Liability. If: —
(1) X is required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, to make any deduction or withholding in respect of which X
would not be required to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against X,
then, except to the extent Y has satisfied or then satisfies the liability resulting from such Tax, Y
will promptly pay to X the amount of such liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to comply with or perform any
agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective designation of an Early
Termination Date in respect of the relevant Transaction, a party that defaults in the performance of any
payment obligation will, to the extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on demand in the same currency
as such overdue amount, for the period from (and including) the original due date for payment to (but
excluding) the date of actual payment, at the Default Rate. Such interest will be calculated on the basis of
daily compounding and the actual number of days elapsed. If, prior to the occurrence or effective designation
of an Early Termination Date in respect of the relevant Transaction, a party defaults in the performance of
any obligation required to be settled by delivery, it will compensate the other party on demand if and to the
extent provided for in the relevant Confirmation or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed to be repeated by each party
on each date on which a Transaction is entered into and, in the case of the representations in Section 3(f), at
all times until the termination of this Agreement) that:—
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of the jurisdiction of its
organisation or incorporation and, if relevant under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other documentation relating to
this Agreement to which it is a party, to deliver this Agreement and any other documentation relating
to this Agreement that it is required by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any Credit Support Document to which it is
a party and has taken all necessary action to authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance do not violate or conflict
with any law applicable to it, any provision of its constitutional documents, any order or judgment
of any court or other agency of government applicable to it or any of its assets or any contractual
restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to have been obtained by it
with respect to this Agreement or any Credit Support Document to which it is a party have been
obtained and are in full force and effect and all conditions of any such consents have been complied
with; and
(v) Obligations Binding. Its obligations under this Agreement and any Credit Support Document
to which it is a party constitute its legal, valid and binding obligations, enforceable in accordance
with their respective terms (subject to applicable bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to
equitable principles of general application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
4
ISDA 1992
(b) Absence of Certain Events. No Event of Default or Potential Event of Default or, to its knowledge,
Termination Event with respect to it has occurred and is continuing and no such event or circumstance would
occur as a result of its entering into or performing its obligations under this Agreement or any Credit Support
Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge, threatened against it or any of its
Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body,
agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of
this Agreement or any Credit Support Document to which it is a party or its ability to perform its obligations
under this Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is furnished in writing by or on
behalf of it to the other party and is identified for the purpose of this Section 3(d) in the Schedule is, as of
the date of the information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as being made by it for
the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as being made by it for
the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have any obligation under this
Agreement or under any Credit Support Document to which it is a party:—
(a) Furnish Specified Information. It will deliver to the other party or, in certain cases under
subparagraph (iii) below, to such government or taxing authority as the other party reasonably directs:—
(i) any forms, documents or certificates relating to taxation specified in the Schedule or any
Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation; and
(iii) upon reasonable demand by such other party, any form or document that may be required or
reasonably requested in writing in order to allow such other party or its Credit Support Provider to
make a payment under this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such deduction or withholding at a
reduced rate (so long as the completion, execution or submission of such form or document would
not materially prejudice the legal or commercial position of the party in receipt of such demand),
with any such form or document to be accurate and completed in a manner reasonably satisfactory
to such other party and to be executed and to be delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if none is specified, as soon as
reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in full force and effect all
consents of any governmental or other authority that are required to be obtained by it with respect to this
Agreement or any Credit Support Document to which it is a party and will use all reasonable efforts to obtain
any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all applicable laws and orders to
which it may be subject if failure so to comply would materially impair its ability to perform its obligations
under this Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made by it under Section 3(f)
to be accurate and true promptly upon learning of such failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax levied or imposed upon
it or in respect of its execution or performance of this Agreement by a jurisdiction in which it is incorporated,
5
ISDA 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
6 ISDA 1992
described) in respect of such party, any Credit Support Provider of such party or any applicable
Specified Entity of such party under one or more agreements or instruments relating to Specified
Indebtedness of any of them (individually or collectively) in an aggregate amount of not less than
the applicable Threshold Amount (as specified in the Schedule) which has resulted in such Specified
Indebtedness becoming, or becoming capable at such time of being declared, due and payable under
such agreements or instruments, before it would otherwise have been due and payable or (2) a default
by such party, such Credit Support Provider or such Specified Entity (individually or collectively)
in making one or more payments on the due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments (after giving effect to any
applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable Specified
Entity of such party: —
(1) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (2) becomes
insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay
its debts as they become due; (3) makes a general assignment, arrangement or composition
with or for the benefit of its creditors; (4) institutes or has instituted against it a proceeding
seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or
insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its
winding-up or liquidation, and, in the case of any such proceeding or petition instituted or
presented against it, such proceeding or petition (A) results in a judgment of insolvency or
bankruptcy or the entry of an order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or restrained in each case within 30 days
of the institution or presentation thereof; (5) has a resolution passed for its winding-up, official
management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
(6) seeks or becomes subject to the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official for it or for all or substantially
all its assets; (7) has a secured party take possession of all or substantially all its assets or has
a distress, execution, attachment, sequestration or other legal process levied, enforced or sued
on or against all or substantially all its assets and such secured party maintains possession, or
any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days
thereafter; (8) causes or is subject to any event with respect to it which, under the applicable
laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (1)
to (7) (inclusive); or (9) takes any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider of such party
consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets
to, another entity and, at the time of such consolidation, amalgamation, merger or transfer: —
(1) the resulting, surviving or transferee entity fails to assume all the obligations of such party
or such Credit Support Provider under this Agreement or any Credit Support Document to
which it or its predecessor was a party by operation of law or pursuant to an agreement
reasonably satisfactory to the other party to this Agreement; or
(2) the benefits of any Credit Support Document fail to extend (without the consent of the
other party) to the performance by such resulting, surviving or transferee entity of its
obligations under this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or, if applicable, any Credit
Support Provider of such party or any Specified Entity of such party of any event specified below constitutes
an Illegality if the event is specified in (i) below, a Tax Event if the event is specified in (ii) below or a Tax
Event Upon Merger if the event is specified in (iii) below, and, if specified to be applicable, a Credit Event
7 ISDA 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.
8
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6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of Default with respect to
a party (the “Defaulting Party”) has occurred and is then continuing, the other party (the “Non-defaulting
Party”) may, by not more than 20 days notice to the Defaulting Party specifying the relevant Event of Default,
designate a day not earlier than the day such notice is effective as an Early Termination Date in respect of
all outstanding Transactions. If, however, “Automatic Early Termination” is specified in the Schedule as
applying to a party, then an Early Termination Date in respect of all outstanding Transactions will occur
immediately upon the occurrence with respect to such party of an Event of Default specified in
Section 5(a)(vii)(1), (3), (5), (6) or, to the extent analogous thereto, (8), and as of the time immediately
preceding the institution of the relevant proceeding or the presentation of the relevant petition upon the
occurrence with respect to such party of an Event of Default specified in Section 5(a)(vii)(4) or, to the extent
analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will, promptly upon becoming aware of
it, notify the other party, specifying the nature of that Termination Event and each Affected Transaction
and will also give such other information about that Termination Event as the other party may reasonably
require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under Section 5(b)(i)(1) or a Tax
Event occurs and there is only one Affected Party, or if a Tax Event Upon Merger occurs and the
Burdened Party is the Affected Party, the Affected Party will, as a condition to its right to designate
an Early Termination Date under Section 6(b)(iv), use all reasonable efforts (which will not require
such party to incur a loss, excluding immaterial, incidental expenses) to transfer within 20 days after
it gives notice under Section 6(b)(i) all its rights and obligations under this Agreement in respect of
the Affected Transactions to another of its Offices or Affiliates so that such Termination Event
ceases to exist.
If the Affected Party is not able to make such a transfer it will give notice to the other party to that
effect within such 20 day period, whereupon the other party may effect such a transfer within
30 days after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject to and conditional upon the
prior written consent of the other party, which consent will not be withheld if such other party’s
policies in effect at such time would permit it to enter into transactions with the transferee on the
terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a Tax Event occurs and there
are two Affected Parties, each party will use all reasonable efforts to reach agreement within 30 days
after notice thereof is given under Section 6(b)(i) on action to avoid that Termination Event.
(iv) Right to Terminate. If: —
(1) a transfer under Section 6(b)(ii) or an agreement under Section 6(b)(iii), as the case may
be, has not been effected with respect to all Affected Transactions within 30 days after an
Affected Party gives notice under Section 6(b)(i); or
(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
9
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continuing, designate a day not earlier than the day such notice is effective as an Early Termination
Date in respect of all Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under Section 6(a) or (b), the Early
Termination Date will occur on the date so designated, whether or not the relevant Event of Default
or Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination Date, no further
payments or deliveries under Section 2(a)(i) or 2(e) in respect of the Terminated Transactions will
be required to be made, but without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the occurrence of an Early
Termination Date, each party will make the calculations on its part, if any, contemplated by Section 6(e)
and will provide to the other party a statement (1) showing, in reasonable detail, such calculations
(including all relevant quotations and specifying any amount payable under Section 6(e)) and (2) giving
details of the relevant account to which any amount payable to it is to be paid. In the absence of written
confirmation from the source of a quotation obtained in determining a Market Quotation, the records of
the party obtaining such quotation will be conclusive evidence of the existence and accuracy of such
quotation.
(ii) Payment Date. An amount calculated as being due in respect of any Early Termination Date
under Section 6(e) will be payable on the day that notice of the amount payable is effective (in the
case of an Early Termination Date which is designated or occurs as a result of an Event of Default)
and on the day which is two Local Business Days after the day on which notice of the amount payable
is effective (in the case of an Early Termination Date which is designated as a result of a Termination
Event). Such amount will be paid together with (to the extent permitted under applicable law)
interest thereon (before as well as after judgment) in the Termination Currency, from (and including)
the relevant Early Termination Date to (but excluding) the date such amount is paid, at the
Applicable Rate. Such interest will be calculated on the basis of daily compounding and the actual
number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the following provisions
shall apply based on the parties’ election in the Schedule of a payment measure, either “Market Quotation”
or “Loss”, and a payment method, either the “First Method” or the “Second Method”. If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed that “Market Quotation”
or the “Second Method”, as the case may be, shall apply. The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an Event of Default: —
(1) First Method and Market Quotation. If the First Method and Market Quotation apply, the
Defaulting Party will pay to the Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting Party) in respect of the
Terminated Transactions and the Termination Currency Equivalent of the Unpaid Amounts owing
to the Non-defaulting Party over (B) the Termination Currency Equivalent of the Unpaid Amounts
owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the Defaulting Party will pay
to the Non-defaulting Party, if a positive number, the Non-defaulting Party’s Loss in respect
of this Agreement.
(3) Second Method and Market Quotation. If the Second Method and Market Quotation apply,
an amount will be payable equal to (A) the sum of the Settlement Amount (determined by the
10 ISDA 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.
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7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or obligation in or under this Agreement
may be transferred (whether by way of security or otherwise) by either party without the prior written consent
of the other party, except that: —
(a) a party may make such a transfer of this Agreement pursuant to a consolidation or amalgamation
with, or merger with or into, or transfer of all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any amount payable to it from
a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement will be made in the
relevant currency specified in this Agreement for that payment (the “Contractual Currency”). To the extent
permitted by applicable law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any tender in any currency other than the Contractual
Currency, except to the extent such tender results in the actual receipt by the party to which payment is owed,
acting in a reasonable manner and in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable in respect of this Agreement.
If for any reason the amount in the Contractual Currency so received falls short of the amount in the
Contractual Currency payable in respect of this Agreement, the party required to make the payment will, to
the extent permitted by applicable law, immediately pay such additional amount in the Contractual Currency
as may be necessary to compensate for the shortfall. If for any reason the amount in the Contractual Currency
so received exceeds the amount in the Contractual Currency payable in respect of this Agreement, the party
receiving the payment will refund promptly the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or order expressed in a
currency other than the Contractual Currency is rendered (i) for the payment of any amount owing in respect
of this Agreement, (ii) for the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the payment of any amount described
in (i) or (ii) above, the party seeking recovery, after recovery in full of the aggregate amount to which such
party is entitled pursuant to the judgment or order, will be entitled to receive immediately from the other
party the amount of any shortfall of the Contractual Currency received by such party as a consequence of
sums paid in such other currency and will refund promptly to the other party any excess of the Contractual
Currency received by such party as a consequence of sums paid in such other currency if such shortfall or
such excess arises or results from any variation between the rate of exchange at which the Contractual
Currency is converted into the currency of the judgment or order for the purposes of such judgment or order
and the rate of exchange at which such party is able, acting in a reasonable manner and in good faith in
converting the currency received into the Contractual Currency, to purchase the Contractual Currency with
the amount of the currency of the judgment or order actually received by such party. The term “rate of
exchange” includes, without limitation, any premiums and costs of exchange payable in connection with the
purchase of or conversion into the Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these indemnities constitute
separate and independent obligations from the other obligations in this Agreement, will be enforceable as
separate and independent causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained or claim or proof being
made for any other sums payable in respect of this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient for a party to demonstrate
that it would have suffered a loss had an actual exchange or purchase been made.
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9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties
with respect to its subject matter and supersedes all oral communication and prior writings with respect
thereto.
(b) Amendments. No amendment, modification or waiver in respect of this Agreement will be effective
unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the
parties or confirmed by an exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of the
parties under this Agreement will survive the termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights, powers, remedies and
privileges provided in this Agreement are cumulative and not exclusive of any rights, powers, remedies
and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in respect of it) may be
executed and delivered in counterparts (including by facsimile transmission), each of which will be
deemed an original.
(ii) The parties intend that they are legally bound by the terms of each Transaction from the moment
they agree to those terms (whether orally or otherwise). A Confirmation shall be entered into as
soon as practicable and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of electronic messages on
an electronic messaging system, which in each case will be sufficient for all purposes to evidence
a binding supplement to this Agreement. The parties will specify therein or through another effective
means that any such counterpart, telex or electronic message constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect of this
Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power
or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or
privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of reference only and are not
to affect the construction of or to be taken into consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that enters into a Transaction
through an Office other than its head or home office represents to the other party that, notwithstanding the
place of booking office or jurisdiction of incorporation or organisation of such party, the obligations of such
party are the same as if it had entered into the Transaction through its head or home office. This representation
will be deemed to be repeated by such party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives payments or deliveries
for the purpose of a Transaction without the prior written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such Multibranch Party may make
and receive payments or deliveries under any Transaction through any Office listed in the Schedule, and the
Office through which it makes and receives payments or deliveries with respect to a Transaction will be
specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party for and against all
reasonable out-of-pocket expenses, including legal fees and Stamp Tax, incurred by such other party by
reason of the enforcement and protection of its rights under this Agreement or any Credit Support Document
13
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to which the Defaulting Party is a party or by reason of the early termination of any Transaction, including,
but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this Agreement may be given in any
manner set forth below (except that a notice or other communication under Section 5 or 6 may not be given
by facsimile transmission or electronic messaging system) to the address or number or in accordance with
the electronic messaging system details provided (see the Schedule) and will be deemed effective as
indicated:—
(i) if in writing and delivered in person or by courier, on the date it is delivered;
(ii) if sent by telex, on the date the recipient’s answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is received by a responsible
employee of the recipient in legible form (it being agreed that the burden of proving receipt will be
on the sender and will not be met by a transmission report generated by the sender’s facsimile
machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt
requested), on the date that mail is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a Local Business
Day or that communication is delivered (or attempted) or received, as applicable, after the close of business
on a Local Business Day, in which case that communication shall be deemed given and effective on the first
following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the address, telex or facsimile
number or electronic messaging system details at which notices or other communications are to be given to
it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in accordance with the law
specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to this Agreement
(“Proceedings”), each party irrevocably:—
(i) submits to the jurisdiction of the English courts, if this Agreement is expressed to be governed
by English law, or to the non-exclusive jurisdiction of the courts of the State of New York and the
United States District Court located in the Borough of Manhattan in New York City, if this
Agreement is expressed to be governed by the laws of the State of New York; and
(ii) waives any objection which it may have at any time to the laying of venue of any Proceedings
brought in any such court, waives any claim that such Proceedings have been brought in an
inconvenient forum and further waives the right to object, with respect to such Proceedings, that
such court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in any other jurisdiction
(outside, if this Agreement is expressed to be governed by English law, the Contracting States, as defined
in Section 1(3) of the Civil Jurisdiction and Judgments 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
14
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reason any party’s Process Agent is unable to act as such, such party will promptly notify the other party
and within 30 days appoint a substitute process agent acceptable to the other party. The parties irrevocably
consent to service of process given in the manner provided for notices in Section 12. Nothing in this
Agreement will affect the right of either party to serve process in any other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent permitted by applicable
law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity
on the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief
by way of injunction, order for specific performance or for recovery of property, (iv) attachment of its assets
(whether before or after judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts of any jurisdiction and
irrevocably agrees, to the extent permitted by applicable law, that it will not claim any such immunity in any
Proceedings.
14. Definitions
As used in this Agreement:—
“Additional Termination Event” has the meaning specified in Section 5(b).
“Affected Party” has the meaning specified in Section 5(b).
“Affected Transactions” means (a) with respect to any Termination Event consisting of an Illegality, Tax
Event or Tax Event Upon Merger, all Transactions affected by the occurrence of such Termination Event
and (b) with respect to any other Termination Event, all Transactions.
“Affiliate” means, subject to the Schedule, in relation to any person, any entity controlled, directly or
indirectly, by the person, any entity that controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, “control” of any entity or person means
ownership of a majority of the voting power of the entity or person.
“Applicable Rate” means:—
(a) in respect of obligations payable or deliverable (or which would have been but for Section 2(a)(iii))
by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either party from and after the date
(determined in accordance with Section 6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would have been but for
Section 2(a)(iii)) by a Non-defaulting Party, the Non-default Rate; and
(d) in all other cases, the Termination Rate.
“Burdened Party” has the meaning specified in Section 5(b).
“Change 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.
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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
16
ISDA 1992
been required after that date. For this purpose, Unpaid Amounts in respect of the Terminated Transaction or
group of Terminated Transactions are to be excluded but, without limitation, any payment or delivery that
would, but for the relevant Early Termination Date, have been required (assuming satisfaction of each
applicable condition precedent) after that Early Termination Date is to be included. The Replacement
Transaction would be subject to such documentation as such party and the Reference Market-maker may, in
good faith, agree. The party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of the same day and time
(without regard to different time zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the Market Quotation will be the
arithmetic mean of the quotations, without regard to the quotations having the highest and lowest values. If
exactly three such quotations are provided, the Market Quotation will be the quotation remaining after
disregarding the highest and lowest quotations. For this purpose, if more than one quotation has the same
highest value or lowest value, then one of such quotations shall be disregarded. If fewer than three quotations
are provided, it will be deemed that the Market Quotation in respect of such Terminated Transaction or group
of Terminated Transactions cannot be determined.
“Non-default Rate” means a rate per annum equal to the cost (without proof or evidence of any actual cost)
to the Non-defaulting Party (as certified by it) if it were to fund the relevant amount.
“Non-defaulting Party” has the meaning specified in Section 6(a).
“Office” means a branch or office of a party, which may be such party’s head or home office.
“Potential Event of Default” means any event which, with the giving of notice or the lapse of time or both,
would constitute an Event of Default.
“Reference Market-makers” means four leading dealers in the relevant market selected by the party
determining a Market Quotation in good faith (a) from among dealers of the highest credit standing which
satisfy all the criteria that such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such dealers having an office in the same
city.
“Relevant Jurisdiction” means, with respect to a party, the jurisdictions (a) in which the party is
incorporated, organised, managed and controlled or considered to have its seat, (b) where an Office through
which the party is acting for purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment is made.
“Scheduled Payment Date” means a date on which a payment or delivery is to be made under Section 2(a)(i)
with respect to a Transaction.
“Set-off” means set-off, offset, combination of accounts, right of retention or withholding or similar right
or requirement to which the payer of an amount under Section 6 is entitled or subject (whether arising under
this Agreement, another contract, applicable law or otherwise) that is exercised by, or imposed on, such
payer.
“Settlement Amount” means, with respect to a party and any Early Termination Date, the sum of: —
(a) the Termination Currency Equivalent of the Market Quotations (whether positive or negative) for each
Terminated Transaction or group of Terminated Transactions for which a Market Quotation is determined;
and
(b) such party’s Loss (whether positive or negative and without reference to any Unpaid Amounts) for
each Terminated Transaction or group of Terminated Transactions for which a Market Quotation cannot be
determined or would not (in the reasonable belief of the party making the determination) produce a
commercially reasonable result.
“Specified Entity” has the meanings specified in the Schedule.
17
ISDA 1992
“Specified Indebtedness” means, subject to the Schedule, any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect of borrowed money.
“Specified Transaction” means, subject to the Schedule, (a) any transaction (including an agreement with respect
thereto) now existing or hereafter entered into between one party to this Agreement (or any Credit Support
Provider of such party or any applicable Specified Entity of such party) and the other party to this Agreement (or
any Credit Support Provider of such other party or any applicable Specified Entity of such other party) which is
a rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any option with respect to any of these
transactions), (b) any combination of these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
“Stamp Tax” means any stamp, registration, documentation or similar tax.
“Tax” means any present or future tax, levy, impost, duty, charge, assessment or fee of any nature (including
interest, penalties and additions thereto) that is imposed by any government or other taxing authority in
respect of any payment under this Agreement other than a stamp, registration, documentation or similar tax.
“Tax Event” has the meaning specified in Section 5(b).
“Tax Event Upon Merger” has the meaning specified in Section 5(b).
“Terminated Transactions” means with respect to any Early Termination Date (a) if resulting from a
Termination Event, all Affected Transactions and (b) if resulting from an Event of Default, all Transactions
(in either case) in effect immediately before the effectiveness of the notice designating that Early Termination
Date (or, if “Automatic Early Termination” applies, immediately before that Early Termination Date).
“Termination Currency” has the meaning specified in the Schedule.
“Termination Currency Equivalent” means, in respect of any amount denominated in the Termination
Currency, such Termination Currency amount and, in respect of any amount denominated in a currency other
than the Termination Currency (the “Other Currency”), the amount in the Termination Currency determined
by the party making the relevant determination as being required to purchase such amount of such Other
Currency as at the relevant Early Termination Date, or, if the relevant Market Quotation or Loss (as the case
may be), is determined as of a later date, that later date, with the Termination Currency at the rate equal to
the spot exchange rate of the foreign exchange agent (selected as provided below) for the purchase of such
Other Currency with the Termination Currency at or about 11:00 a.m. (in the city in which such foreign
exchange agent is located) on such date as would be customary for the determination of such a rate for the
purchase of such Other Currency for value on the relevant Early Termination Date or that later date. The
foreign exchange agent will, if only one party is obliged to make a determination under Section 6(e), be
selected in good faith by that party and otherwise will be agreed by the parties.
“Termination Event” means an Illegality, a Tax Event or a Tax Event Upon Merger or, if specified to be
applicable, a Credit Event Upon Merger or an Additional Termination Event.
“Termination Rate” means a rate per annum equal to the arithmetic mean of the cost (without proof or
evidence of any actual cost) to each party (as certified by such party) if it were to fund or of funding such
amounts.
“Unpaid Amounts” owing to any party means, with respect to an Early Termination Date, the aggregate of
(a) in respect of all Terminated Transactions, the amounts that became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early Termination
Date and which remain unpaid as at such Early Termination Date and (b) in respect of each 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
18
ISDA 1992
value of that which was (or would have been) required to be delivered as of the originally scheduled date
for delivery, in each case together with (to the extent permitted under applicable law) interest, in the currency
of such amounts, from (and including) the date such amounts or obligations were or would have been required
to have been paid or performed to (but excluding) such Early Termination Date, at the Applicable Rate. Such
amounts of interest will be calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above shall be reasonably
determined by the party obliged to make the determination under Section 6(e) or, if each party is so obliged,
it shall be the average of the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below
with effect from the date specified on the first page of this document.
............................................................................... ........................................................................
(Name of Party) (Name of Party)
By: ............................................................................. By: ...................................................................
Name: Name:
Title: Title:
Date: Date:
ISDA®
International Swaps and Derivatives Association, Inc.
2002 MASTER AGREEMENT
dated as of .....................................................................
.................................................................................... and .....................................................................................
have entered and/or anticipate entering into one or more transactions (each a “Transaction”) that are or will be
governed by this 2002 Master Agreement, which includes the schedule (the “Schedule”), and the documents and
other confirming evidence (each a “Confirmation”) exchanged between the parties or otherwise effective for the
purpose of confirming or evidencing those Transactions. This 2002 Master Agreement and the Schedule are together
referred to as this “Master Agreement”.
Accordingly, the parties agree as follows:―
1. Interpretation
(a) Definitions. The terms defined in Section 14 and elsewhere in this Master Agreement 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, 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.
Copyright © 2002 by International Swaps and Derivatives Association, Inc.
2 ISDA® 2002
(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 condition specified in this Agreement to be a
condition precedent for the purpose of this Section 2(a)(iii).
(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 Settlement 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 of Payments. 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 which 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 and payment obligation will be
determined in respect of all amounts payable on the same date in the same currency in respect of those Transactions,
regardless of whether such amounts are payable in respect of the same Transaction. The election may be made in the
Schedule or any Confirmation by specifying that “Multiple Transaction Payment Netting” applies to the Transactions
identified as being subject to the election (in which case clause (ii) above will not apply to such Transactions). If
Multiple Transaction Payment Netting is applicable to Transactions, it will apply to those Transactions with effect
from the starting date specified in the Schedule or such Confirmation, or, if a starting date is not specified in the
Schedule or such Confirmation, the starting date otherwise agreed by the parties in writing. 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
3 ISDA® 2002
(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, after a Transaction is
entered into (regardless of whether such action is taken or brought with respect to a party
to this Agreement) or (II) a Change in Tax Law.
(ii) Liability. If:―
(1) X is required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, to make any deduction or withholding in respect of which X would
not be required to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against X,
then, except to the extent Y has satisfied or then satisfies the liability resulting from such Tax, Y will
promptly pay to X the amount of such liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d)).
3. Representations
Each party makes the representations contained in Sections 3(a), 3(b), 3(c), 3(d), 3(e) and 3(f) and, if specified in the
Schedule as applying, 3(g) 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). If any “Additional Representation” is specified in the Schedule or any
Confirmation as applying, the party or parties specified for such Additional Representation will make and, if
applicable, be deemed to repeat such Additional Representation at the time or times specified for such Additional
Representation.
(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;
4 ISDA® 2002
(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, any of its Credit
Support Providers or any of its applicable Specified Entities 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.
(g) No Agency. It is entering into this Agreement, including each Transaction, as principal and not as agent of
any person or entity.
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 clause (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
5 ISDA® 2002
(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, organised,
managed and controlled or considered to have its seat, or where an 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 (subject to
Sections 5(c) and 6(e)(iv)) 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 9(h)(i)(2) or (4) required to be made by it if such failure is
not remedied on or before the first Local Business Day in the case of any such payment or the first Local
Delivery Day in the case of any such delivery after, in each case, notice of such failure is given to the party;
(ii) Breach of Agreement; Repudiation of Agreement.
(1) 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 9(h)(i)(2)
or (4) 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 within 30 days after notice of such failure is given to the party; or
(2) the party disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the
validity of, this Master Agreement, any Confirmation executed and delivered by that party or any
6 ISDA® 2002
Transaction evidenced by such a Confirmation (or such action is taken by any person or entity
appointed or empowered to operate it or act on its behalf);
(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, or any security interest granted by such party or such Credit
Support Provider to the other party pursuant to any such Credit Support Document, to be in full
force and effect for the purpose of this Agreement (in each 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 (or such action is
taken by any person or entity appointed or empowered to operate it or act on its behalf);
(iv) Misrepresentation. A representation (other than a representation under Section 3(e) or 3(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:―
(l) defaults (other than by failing to make a delivery) under a Specified Transaction or any
credit support arrangement relating to a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, such default results in 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 due on the last payment or exchange date of, or any payment on early termination of, a
Specified Transaction (or, if there is no applicable notice requirement or grace period, such default
continues for at least one Local Business Day);
(3) defaults in making any delivery due under (including any delivery due on the last delivery
or exchange date of) a Specified Transaction or any credit support arrangement relating to a
Specified Transaction and, after giving effect to any applicable notice requirement or grace period,
such default results in a liquidation of, an acceleration of obligations under, or an early termination
of, all transactions outstanding under the documentation applicable to that Specified Transaction; or
(4) disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the validity
of, a Specified Transaction or any credit support arrangement relating to a Specified Transaction
that is, in either case, confirmed or evidenced by a document or other confirming evidence executed
and delivered by that party, Credit Support Provider or Specified Entity (or such action is taken by
any person or entity appointed or empowered to operate it or act on its behalf);
7 ISDA® 2002
(vi) Cross-Default. If “Cross-Default” is specified in the Schedule as applying to the party, the
occurrence or existence of:―
(l) a default, event of default or other similar condition or event (however described) in
respect of such party, any Credit Support Provider of such party or any applicable Specified Entity
of such party under one or more agreements or instruments relating to Specified Indebtedness of
any of them (individually or collectively) where the aggregate principal amount of such agreements
or instruments, either alone or together with the amount, if any, referred to in clause (2) below, is
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 under such agreements or
instruments on the due date for payment (after giving effect to any applicable notice requirement or
grace period) in an aggregate amount, either alone or together with the amount, if any, referred to in
clause (1) above, of not less than the applicable Threshold Amount;
(vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable Specified
Entity of such party:―
(l) 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)(A) institutes or has instituted against it, by a regulator, supervisor or
any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the
jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, 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 by it or such regulator, supervisor or similar official, or
(B) 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 such proceeding or petition is
instituted or presented by a person or entity not described in clause (A) above and either (I) 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 (II) is not dismissed, discharged, stayed or restrained in
each case within 15 days of the institution or presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant to a consolidation,
amalgamation or merger); (6) seeks or becomes subject to the appointment of an administrator,
provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for
all or substantially all its assets; (7) has a secured party take possession of all or substantially all its
assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced
or sued on or against all or substantially all its assets and such secured party maintains possession,
or any such process is not dismissed, discharged, stayed or restrained, in each case within 15 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 (l) to (7) above
(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
8 ISDA® 2002
(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, or reorganises,
reincorporates or reconstitutes into or as, another entity and, at the time of such consolidation,
amalgamation, merger, transfer, reorganisation, reincorporation or reconstitution:―
(l) 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; 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 (subject
to Section 5(c)) an Illegality if the event is specified in clause (i) below, a Force Majeure Event if the event is
specified in clause (ii) below, a Tax Event if the event is specified in clause (iii) below, a Tax Event Upon Merger if
the event is specified in clause (iv) below, and, if specified to be applicable, a Credit Event Upon Merger if the event
is specified pursuant to clause (v) below or an Additional Termination Event if the event is specified pursuant to
clause (vi) below:―
(i) Illegality. After giving effect to any applicable provision, disruption fallback or remedy specified
in, or pursuant to, the relevant Confirmation or elsewhere in this Agreement, due to an event or circumstance
(other than any action taken by a party or, if applicable, any Credit Support Provider of such party)
occurring after a Transaction is entered into, it becomes unlawful under any applicable law (including
without limitation the laws of any country in which payment, delivery or compliance is required by either
party or any Credit Support Provider, as the case may be), on any day, or it would be unlawful if the relevant
payment, delivery or compliance were required on that day (in each case, other than as a result of a breach
by the party of Section 4(b)):―
(1) for the Office through which such party (which will be the Affected Party) makes and
receives payments or deliveries with respect to such Transaction to perform any absolute or
contingent obligation to make a payment or delivery in respect of such Transaction, 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) for such party or any Credit Support Provider of such party (which will be the Affected
Party) to perform 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, to receive a payment or delivery under such Credit Support Document or to comply
with any other material provision of such Credit Support Document;
(ii) 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
9 ISDA® 2002
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 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 (or it would be 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;
(iii) Tax Event. Due to (1) any action taken by a taxing authority, or brought in a court of competent
jurisdiction, after a Transaction is entered into (regardless of whether such action is taken or brought with
respect to a party to this Agreement) or (2) 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 Settlement Date
(A) 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 9(h)) or (B) 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 9(h)) 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));
(iv) Tax Event Upon Merger. The party (the “Burdened Party”) on the next succeeding Scheduled
Settlement 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 9(h)) or (2) receive a payment from
which an amount has been deducted or withheld for or on account of any 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 (or any substantial part of the assets comprising the business conducted by it
as of the date of this Master Agreement) to, or reorganising, reincorporating or reconstituting into or as,
another entity (which will be the Affected Party) where such action does not constitute a Merger Without
Assumption;
(v) Credit Event Upon Merger. If “Credit Event Upon Merger” is specified in the Schedule as
applying to the party, a Designated Event (as defined below) occurs with respect to such party, any Credit
Support Provider of such party or any applicable Specified Entity of such party (in each case, “X”) and such
Designated Event does not constitute a Merger Without Assumption, and the creditworthiness of X or, if
applicable, the successor, surviving or transferee entity of X, after taking into account any applicable Credit
Support Document, is materially weaker immediately after the occurrence of such Designated Event than
that of X immediately prior to the occurrence of such Designated Event (and, in any such event, such party
or its successor, surviving or transferee entity, as appropriate, will be the Affected Party). A “Designated
Event” with respect to X means that:―
(1) X consolidates or amalgamates with, or merges with or into, or transfers all or substantially
all its assets (or any substantial part of the assets comprising the business conducted by X as of the
10 ISDA® 2002
date of this Master Agreement) to, or reorganises, reincorporates or reconstitutes into or as, another
entity;
(2) any person, related group of persons or entity acquires directly or indirectly the beneficial
ownership of (A) equity securities having the power to elect a majority of the board of directors (or
its equivalent) of X or (B) any other ownership interest enabling it to exercise control of X; or
(3) X effects any substantial change in its capital structure by means of the issuance,
incurrence or guarantee of debt or the issuance of (A) preferred stock or other securities convertible
into or exchangeable for debt or preferred stock or (B) in the case of entities other than
corporations, any other form of ownership interest; or
(vi) 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 will be as specified for such Additional Termination Event in the Schedule or such
Confirmation).
(c) Hierarchy of Events.
(i) An event or circumstance that constitutes or gives rise to an Illegality or a Force Majeure Event will
not, for so long as that is the case, also constitute or give rise to an Event of Default under Section 5(a)(i),
5(a)(ii)(1) or 5(a)(iii)(1) insofar as such event or circumstance relates to the failure to make any payment or
delivery or a failure to comply with any other material provision of this Agreement or a Credit Support
Document, as the case may be.
(ii) Except in circumstances contemplated by clause (i) above, if an event or circumstance which would
otherwise constitute or give rise to an Illegality or a Force Majeure Event also constitutes an Event of
Default or any other Termination Event, it will be treated as an Event of Default or such other Termination
Event, as the case may be, and will not constitute or give rise to an Illegality or a Force Majeure Event.
(iii) If an event or circumstance which would otherwise constitute or give rise to a Force Majeure Event
also constitutes an Illegality, it will be treated as an Illegality, except as described in clause (ii) above, and
not a Force Majeure Event.
(d) Deferral of Payments and Deliveries During Waiting Period. If an Illegality or a Force Majeure Event has
occurred and is continuing with respect to a Transaction, each payment or delivery which would otherwise be
required to be made under that Transaction will be deferred to, and will not be due until:―
(i) the first Local Business Day or, in the case of a delivery, the first Local Delivery Day (or the first
day that would have been a Local Business Day or Local Delivery Day, as appropriate, but for the
occurrence of the event or circumstance constituting or giving rise to that Illegality or Force Majeure Event)
following the end of any applicable Waiting Period in respect of that Illegality or Force Majeure Event, as
the case may be; or
(ii) if earlier, the date on which the event or circumstance constituting or giving rise to that Illegality or
Force Majeure Event ceases to exist or, if such date is not a Local Business Day or, in the case of a delivery,
a Local Delivery Day, the first following day that is a Local Business Day or Local Delivery Day, as
appropriate.
(e) Inability of Head or Home Office to Perform Obligations of Branch. If (i) an Illegality or a Force
Majeure Event occurs under Section 5(b)(i)(1) or 5(b)(ii)(1) and the relevant Office is not the Affected Party’s head
or home office, (ii) Section 10(a) applies, (iii) the other party seeks performance of the relevant obligation or
11 ISDA® 2002
compliance with the relevant provision by the Affected Party’s head or home office and (iv) the Affected Party’s head
or home office fails so to perform or comply due to the occurrence of an event or circumstance which would, if that
head or home office were the Office through which the Affected Party makes and receives payments and deliveries
with respect to the relevant Transaction, constitute or give rise to an Illegality or a Force Majeure Event, and such
failure would otherwise constitute an Event of Default under Section 5(a)(i) or 5(a)(iii)(1) with respect to such party,
then, for so long as the relevant event or circumstance continues to exist with respect to both the Office referred to in
Section 5(b)(i)(1) or 5(b)(ii)(1), as the case may be, and the Affected Party’s head or home office, such failure will
not constitute an Event of Default under Section 5(a)(i) or 5(a)(iii)(1).
6. Early Termination; Close-Out Netting
(a) Right to Terminate Following Event of Default. If at any time an Event of Default with respect to a party
(the “Defaulting Party”) has occurred and is then continuing, the other party (the “Non-defaulting Party”) may, by not
more than 20 days notice to the Defaulting Party specifying the relevant Event of Default, designate a day not earlier
than the day such notice is effective as an Early Termination Date in respect of all outstanding Transactions. If,
however, “Automatic Early Termination” is specified in the Schedule as applying to a party, then an Early
Termination Date in respect of all outstanding Transactions will occur immediately upon the occurrence with respect
to such party of an Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the extent analogous thereto,
(8), and as of the time immediately preceding the institution of the relevant proceeding or the presentation of the
relevant petition upon the occurrence with respect to such party of an Event of Default specified in
Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event other than a Force Majeure 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 the other party such other information about that
Termination Event as the other party may reasonably require. If a Force Majeure Event occurs, each party
will, promptly upon becoming aware of it, use all reasonable efforts to notify the other party, specifying the
nature of that Force Majeure Event, and will also give the other party such other information about that
Force Majeure Event as the other party may reasonably require.
(ii) Transfer to Avoid Termination Event. If 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, other than 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 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 of such occurrence is given under
Section 6(b)(i) to avoid that Termination Event.
12 ISDA® 2002
(iv) Right to Terminate.
(1) If:―
(A) 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
(B) 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,
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 are two Affected Parties, or the Non-
affected Party in the case of a Credit Event Upon Merger or an Additional Termination Event if
there is only one Affected Party may, if the relevant Termination Event is then continuing, by not
more than 20 days notice to the other party, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected Transactions.
(2) If at any time an Illegality or a Force Majeure Event has occurred and is then continuing
and any applicable Waiting Period has expired:―
(A) Subject to clause (B) below, either party may, by not more than 20 days notice to
the other party, designate (I) a day not earlier than the day on which such notice becomes
effective as an Early Termination Date in respect of all Affected Transactions or (II) by
specifying in that notice the Affected Transactions in respect of which it is designating the
relevant day as an Early Termination Date, a day not earlier than two Local Business Days
following the day on which such notice becomes effective as an Early Termination Date in
respect of less than all Affected Transactions. Upon receipt of a notice designating an
Early Termination Date in respect of less than all Affected Transactions, the other party
may, by notice to the designating party, if such notice is effective on or before the day so
designated, designate that same day as an Early Termination Date in respect of any or all
other Affected Transactions.
(B) An Affected Party (if the Illegality or Force Majeure Event relates to performance
by such party or any Credit Support Provider of such party of an obligation to make any
payment or delivery under, or to compliance with any other material provision of, the
relevant Credit Support Document) will only have the right to designate an Early
Termination Date under Section 6(b)(iv)(2)(A) as a result of an Illegality under
Section 5(b)(i)(2) or a Force Majeure Event under Section 5(b)(ii)(2) following the prior
designation by the other party of an Early Termination Date, pursuant to
Section 6(b)(iv)(2)(A), in respect of less than all Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under Section 6(a) or 6(b), the Early
Termination Date will occur on the date so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination Date, no further payments or
deliveries under Section 2(a)(i) or 9(h)(i) 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 will be determined pursuant to Sections 6(e) and 9(h)(ii).
13 ISDA® 2002
(d) Calculations; Payment Date.
(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 (l) showing, in reasonable detail, such calculations (including any
quotations, market data or information from internal sources used in making such calculations),
(2) specifying (except where there are two Affected Parties) any Early Termination Amount payable and
(3) 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 or market data obtained in determining a Close-out
Amount, the records of the party obtaining such quotation or market data will be conclusive evidence of the
existence and accuracy of such quotation or market data.
(ii) Payment Date. An Early Termination Amount due in respect of any Early Termination Date will,
together with any amount of interest payable pursuant to Section 9(h)(ii)(2), be payable (1) on the day on
which 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 (2) on the day which is two Local Business Days after the
day on which notice of the amount payable is effective (or, if there are two Affected Parties, after the day on
which the statement provided pursuant to clause (i) above by the second party to provide such a statement is
effective) in the case of an Early Termination Date which is designated as a result of a Termination Event.
(e) Payments on Early Termination. If an Early Termination Date occurs, the amount, if any, payable in
respect of that Early Termination Date (the “Early Termination Amount”) will be determined pursuant to this
Section 6(e) and will be subject to Section 6(f).
(i) Events of Default. If the Early Termination Date results from an Event of Default, the Early
Termination Amount will be an amount equal to (1) the sum of (A) the Termination Currency Equivalent of
the Close-out Amount or Close-out Amounts (whether positive or negative) determined by the Non-
defaulting Party for each Terminated Transaction or group of Terminated Transactions, as the case may be,
and (B) the Termination Currency Equivalent of the Unpaid Amounts owing to the Non-defaulting Party less
(2) the Termination Currency Equivalent of the Unpaid Amounts owing to the Defaulting Party. If the Early
Termination 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 the Early Termination Amount
to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a Termination Event:―
(1) One Affected Party. Subject to clause (3) below, if there is one Affected Party, the Early
Termination Amount will be determined in accordance with Section 6(e)(i), except that references
to the Defaulting Party and to the Non-defaulting Party will be deemed to be references to the
Affected Party and to the Non-affected Party, respectively.
(2) Two Affected Parties. Subject to clause (3) below, if there are two Affected Parties, each
party will determine an amount equal to the Termination Currency Equivalent of the sum of the
Close-out Amount or Close-out Amounts (whether positive or negative) for each Terminated
Transaction or group of Terminated Transactions, as the case may be, and the Early Termination
Amount will be an amount equal to (A) the sum of (I) one-half of the difference between the higher
amount so determined (by party “X”) and the lower amount so determined (by party “Y”) and
(II) the Termination Currency Equivalent of the Unpaid Amounts owing to X less (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to Y. If the Early Termination
Amount is a positive number, Y will pay it to X; if it is a negative number, X will pay the absolute
value of the Early Termination Amount to Y.
14 ISDA® 2002
(3) Mid-Market Events. If that Termination Event is an Illegality or a Force Majeure Event,
then the Early Termination Amount will be determined in accordance with clause (1) or (2) above,
as appropriate, except that, for the purpose of determining a Close-out Amount or Close-out
Amounts, the Determining Party will:―
(A) if obtaining quotations from one or more third parties (or from any of the
Determining Party’s Affiliates), ask each third party or Affiliate (I) not to take account of
the current creditworthiness of the Determining Party or any existing Credit Support
Document and (II) to provide mid-market quotations; and
(B) in any other case, use mid-market values without regard to the creditworthiness of
the Determining Party.
(iii) Adjustment for Bankruptcy. In circumstances where an Early Termination Date occurs because
Automatic Early Termination applies in respect of a party, the Early Termination Amount will be subject to
such adjustments as are appropriate and permitted by applicable 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) Adjustment for Illegality or Force Majeure Event. The failure by a party or any Credit Support
Provider of such party to pay, when due, any Early Termination Amount will not constitute an Event of
Default under Section 5(a)(i) or 5(a)(iii)(1) if such failure is due to the occurrence of an event or
circumstance which would, if it occurred with respect to payment, delivery or compliance related to a
Transaction, constitute or give rise to an Illegality or a Force Majeure Event. Such amount will (1) accrue
interest and otherwise be treated as an Unpaid Amount owing to the other party if subsequently an Early
Termination Date results from an Event of Default, a Credit Event Upon Merger or an Additional
Termination Event in respect of which all outstanding Transactions are Affected Transactions and
(2) otherwise accrue interest in accordance with Section 9(h)(ii)(2).
(v) Pre-Estimate. The parties agree that 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 the termination of the Terminated
Transactions.
(f) Set-Off. Any Early Termination Amount payable to one party (the “Payee”) by the other party (the
“Payer”), in circumstances where there is a Defaulting Party or where there is one Affected Party in the case where
either a Credit Event Upon Merger has occurred or any other Termination Event in respect of which all outstanding
Transactions are Affected Transactions has occurred, will, at the option of the Non-defaulting Party or the Non-
affected Party, as the case may be (“X”) (and without prior notice to the Defaulting Party or the Affected Party, as the
case may be), be reduced by its set-off against any other amounts (“Other Amounts”) payable by the Payee to the
Payer (whether or not arising under this Agreement, matured or contingent and irrespective of the currency, place of
payment or place of booking of the obligation). To the extent that any Other Amounts are so set off, those Other
Amounts will be discharged promptly and in all respects. X will give notice to the other party of any set-off effected
under this Section 6(f).
For this purpose, either the Early Termination Amount or the Other Amounts (or the relevant portion of such
amounts) may be converted by X into the currency in which the other is denominated at the rate of exchange at which
such party would be able, in good faith and using commercially reasonable procedures, to purchase the relevant
amount of such currency.
15 ISDA® 2002
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 Section 6(f) will be effective to create a charge or other security interest. This Section 6(f) will be
without prejudice and in addition to any right of set-off, offset, combination of accounts, lien, right of retention or
withholding or similar right or requirement to which any party is at any time otherwise entitled or subject (whether by
operation of law, contract or otherwise).
7. Transfer
Subject to Section 6(b)(ii) and to the extent permitted by applicable law, 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 Early Termination Amount payable
to it by a Defaulting Party, together with any amounts payable on or with respect to that interest and any other rights
associated with that interest pursuant to Sections 8, 9(h) and 11.
Any purported transfer that is not in compliance with this Section 7 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 good faith and using
commercially reasonable procedures in converting the currency so tendered into the Contractual Currency, of the full
amount in the Contractual Currency of all amounts payable in respect of this Agreement. If for any reason the
amount in the Contractual Currency so received falls short of the amount in the Contractual Currency payable in
respect of this Agreement, the party required to make the payment will, to the extent permitted by applicable law,
immediately pay such additional amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received exceeds the amount in the Contractual
Currency payable in respect of this Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or order expressed in a currency
other than the Contractual Currency is rendered (i) for the payment of any amount owing in respect of this
Agreement, (ii) for the payment of any amount relating to any early termination in respect of this Agreement or (iii) in
respect of a judgment or order of another court for the payment of any amount described in clause (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 purpose
of such judgment or order and the rate of exchange at which such party is able, acting in good faith and using
16 ISDA® 2002
commercially reasonable procedures 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.
(c) Separate Indemnities. To the extent permitted by applicable law, the indemnities in this Section 8
constitute separate and independent obligations from the other obligations in this Agreement, will be enforceable as
separate and independent causes of action, will apply notwithstanding any indulgence granted by the party to which
any payment is owed and will not be affected by judgment being obtained or claim or proof being made for any other
sums payable in respect of this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient for a party to demonstrate that it
would have suffered a loss had an actual exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with
respect to its subject matter. Each of the parties acknowledges that in entering into this Agreement it has not relied
on any oral or written representation, warranty or other assurance (except as provided for or referred to in this
Agreement) and waives all rights and remedies which might otherwise be available to it in respect thereof, except that
nothing in this Agreement will limit or exclude any liability of a party for fraud.
(b) Amendments. An amendment, modification or waiver in respect of this Agreement will only be effective if
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 by an exchange of 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 and by electronic messaging system), 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 will 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, by an exchange of electronic messages on an electronic messaging system
or by an exchange of e-mails, 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, electronic message or e-mail 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.
17 ISDA® 2002
(h) Interest and Compensation.
(i) Prior to Early Termination. Prior to the occurrence or effective designation of an Early
Termination Date in respect of the relevant Transaction:―
(1) Interest on Defaulted Payments. If a party defaults in the performance of any payment
obligation, it will, to the extent permitted by applicable law and subject to Section 6(c), pay interest
(before as well as after judgment) on the overdue amount to the other party on demand in the same
currency as the overdue amount, for the period from (and including) the original due date for
payment to (but excluding) the date of actual payment (and excluding any period in respect of
which interest or compensation in respect of the overdue amount is due pursuant to clause (3)(B) or
(A) below), at the Default Rate.
(2) Compensation for Defaulted Deliveries. If a party defaults in the performance of any
obligation required to be settled by delivery, it will on demand (A) compensate the other party to
the extent provided for in the relevant Confirmation or elsewhere in this Agreement and (B) unless
otherwise provided in the relevant Confirmation or elsewhere in this Agreement, to the extent
permitted by applicable law and subject to Section 6(c), pay to the other party interest (before as
well as after judgment) on an amount equal to the fair market value of that which was required to be
delivered in the same currency as that amount, for the period from (and including) the originally
scheduled date for delivery to (but excluding) the date of actual delivery (and excluding any period
in respect of which interest or compensation in respect of that amount is due pursuant to clause (4)
below), at the Default Rate. The fair market value of any obligation referred to above will be
determined as of the originally scheduled date for delivery, in good faith and using commercially
reasonable procedures, by the party that was entitled to take delivery.
(3) Interest on Deferred Payments. If:―
(A) a party does not pay any amount that, but for Section 2(a)(iii), would have been
payable, it will, to the extent permitted by applicable law and subject to Section 6(c) and
clauses (B) and (C) below, pay interest (before as well as after judgment) on that amount
to the other party on demand (after such amount becomes payable) in the same currency as
that amount, for the period from (and including) the date the amount would, but for
Section 2(a)(iii), have been payable to (but excluding) the date the amount actually
becomes payable, at the Applicable Deferral Rate;
(B) a payment is deferred pursuant to Section 5(d), the party which would otherwise
have been required to make that payment will, to the extent permitted by applicable law,
subject to Section 6(c) and for so long as no Event of Default or Potential Event of Default
with respect to that party has occurred and is continuing, pay interest (before as well as
after judgment) on the amount of the deferred payment to the other party on demand (after
such amount becomes payable) in the same currency as the deferred payment, for the
period from (and including) the date the amount would, but for Section 5(d), have been
payable to (but excluding) the earlier of the date the payment is no longer deferred
pursuant to Section 5(d) and the date during the deferral period upon which an Event of
Default or Potential Event of Default with respect to that party occurs, at the Applicable
Deferral Rate; or
(C) a party fails to make any payment due to the occurrence of an Illegality or a Force
Majeure Event (after giving effect to any deferral period contemplated by clause (B)
above), it will, to the extent permitted by applicable law, subject to Section 6(c) and for so
long as the event or circumstance giving rise to that Illegality or Force Majeure Event
18 ISDA® 2002
continues and no Event of Default or Potential Event of Default with respect to that party
has occurred and is continuing, pay interest (before as well as after judgment) on the
overdue amount to the other party on demand in the same currency as the overdue amount,
for the period from (and including) the date the party fails to make the payment due to the
occurrence of the relevant Illegality or Force Majeure Event (or, if later, the date the
payment is no longer deferred pursuant to Section 5(d)) to (but excluding) the earlier of the
date the event or circumstance giving rise to that Illegality or Force Majeure Event ceases
to exist and the date during the period upon which an Event of Default or Potential Event
of Default with respect to that party occurs (and excluding any period in respect of which
interest or compensation in respect of the overdue amount is due pursuant to clause (B)
above), at the Applicable Deferral Rate.
(4) Compensation for Deferred Deliveries. If:―
(A) a party does not perform any obligation that, but for Section 2(a)(iii), would have
been required to be settled by delivery;
(B) a delivery is deferred pursuant to Section 5(d); or
(C) a party fails to make a delivery due to the occurrence of an Illegality or a Force
Majeure Event at a time when any applicable Waiting Period has expired,
the party required (or that would otherwise have been required) to make the delivery will, to the
extent permitted by applicable law and subject to Section 6(c), compensate and pay interest to the
other party on demand (after, in the case of clauses (A) and (B) above, such delivery is required) if
and to the extent provided for in the relevant Confirmation or elsewhere in this Agreement.
(ii) Early Termination. Upon the occurrence or effective designation of an Early Termination Date in
respect of a Transaction:―
(1) Unpaid Amounts. For the purpose of determining an Unpaid Amount in respect of the
relevant Transaction, and to the extent permitted by applicable law, interest will accrue on the
amount of any payment obligation or the amount equal to the fair market value of any obligation
required to be settled by delivery included in such determination in the same currency as that
amount, for the period from (and including) the date the relevant obligation was (or would have
been but for Section 2(a)(iii) or 5(d)) required to have been performed to (but excluding) the
relevant Early Termination Date, at the Applicable Close-out Rate.
(2) Interest on Early Termination Amounts. If an Early Termination Amount is due in respect
of such Early Termination Date, that amount will, to the extent permitted by applicable law, be paid
together with interest (before as well as after judgment) on that amount in the Termination
Currency, for the period from (and including) such Early Termination Date to (but excluding) the
date the amount is paid, at the Applicable Close-out Rate.
(iii) Interest Calculation. Any interest pursuant to this Section 9(h) will be calculated on the basis of
daily compounding and the actual number of days elapsed.
19 ISDA® 2002
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 and agrees with the other party that, notwithstanding the place
of booking or its jurisdiction of incorporation or organisation, its obligations are the same in terms of recourse against
it as if it had entered into the Transaction through its head or home office, except that a party will not have recourse
to the head or home office of the other party in respect of any payment or delivery deferred pursuant to Section 5(d)
for so long as the payment or delivery is so deferred. This representation and agreement will be deemed to be
repeated by each party on each date on which the parties enter into a Transaction.
(b) If a party is specified as a Multibranch Party in the Schedule, such party may, subject to clause (c) below,
enter into a Transaction through, book a Transaction in and make and receive payments and deliveries with respect to
a Transaction through any Office listed in respect of that party in the Schedule (but not any other Office unless
otherwise agreed by the parties in writing).
(c) The Office through which a party enters into a Transaction will be the Office specified for that party in the
relevant Confirmation or as otherwise agreed by the parties in writing, and, if an Office for that party is not specified
in the Confirmation or otherwise agreed by the parties in writing, its head or home office. Unless the parties
otherwise agree in writing, the Office through which a party enters into a Transaction will also be the Office in which
it books the Transaction and the Office through which it makes and receives payments and deliveries with respect to
the Transaction. Subject to Section 6(b)(ii), neither party may change the Office in which it books the Transaction or
the Office through which it makes and receives payments or deliveries with respect to a Transaction without the prior
written consent of the other party.
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, execution fees and Stamp Tax, incurred by such other party by reason of the
enforcement and protection of its rights under this Agreement or any Credit Support Document to which the
Defaulting Party is a party or by reason of the early termination of any Transaction, including, but not limited to,
costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this Agreement may be given in any manner
described below (except that a notice or other communication under Section 5 or 6 may not be given by electronic
messaging system or e-mail) to the address or number or in accordance with the electronic messaging system or
e-mail 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 it 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 it is delivered or its delivery is attempted;
(v) if sent by electronic messaging system, on the date it is received; or
20 ISDA® 2002
(vi) if sent by e-mail, on the date it is delivered,
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 will be deemed given and effective on the first following day that is
a Local Business Day.
(b) Change of Details. Either party may by notice to the other change the address, telex or facsimile number or
electronic messaging system or e-mail 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 any dispute arising out of or in
connection with this Agreement (“Proceedings”), each party irrevocably:―
(i) submits:―
(1) if this Agreement is expressed to be governed by English law, to (A) the non-exclusive
jurisdiction of the English courts if the Proceedings do not involve a Convention Court and (B) the
exclusive jurisdiction of the English courts if the Proceedings do involve a Convention Court; or
(2) if this Agreement is expressed to be governed by the laws of the State of New York, 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;
(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; and
(iii) agrees, to the extent permitted by applicable law, that the bringing of Proceedings in any one or
more jurisdictions will not preclude the bringing of Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent, if any, specified opposite its name
in the Schedule to receive, for it and on its behalf, service of process in any Proceedings. If for any reason any
party’s Process Agent is unable to act as such, such party will promptly notify the other party and within 30 days
appoint a substitute process agent acceptable to the other party. The parties irrevocably consent to service of process
given in the manner provided for notices in Section 12(a)(i), 12(a)(iii) or 12(a)(iv). Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted by applicable law.
(d) Waiver of Immunities. Each party irrevocably waives, to the 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 or
order for specific performance or 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.
21 ISDA® 2002
14. Definitions
As used in this Agreement:―
“Additional Representation” has the meaning specified in Section 3.
“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, Force Majeure
Event, Tax Event or Tax Event Upon Merger, all Transactions affected by the occurrence of such Termination Event
(which, in the case of an Illegality under Section 5(b)(i)(2) or a Force Majeure Event under Section 5(b)(ii)(2), means
all Transactions unless the relevant Credit Support Document references only certain Transactions, in which case
those Transactions and, if the relevant Credit Support Document constitutes a Confirmation for a Transaction, that
Transaction) 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.
“Agreement” has the meaning specified in Section 1(c).
“Applicable Close-out Rate” means:―
(a) in respect of the determination of an Unpaid Amount:―
(i) 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;
(ii) in respect of obligations payable or deliverable (or which would have been but for Section 2(a)(iii))
by a Non-defaulting Party, the Non-default Rate;
(iii) in respect of obligations deferred pursuant to Section 5(d), if there is no Defaulting Party and for so
long as the deferral period continues, the Applicable Deferral Rate; and
(iv) in all other cases following the occurrence of a Termination Event (except where interest accrues
pursuant to clause (iii) above), the Applicable Deferral Rate; and
(b) in respect of an Early Termination Amount:―
(i) for the period from (and including) the relevant Early Termination Date to (but excluding) the date
(determined in accordance with Section 6(d)(ii)) on which that amount is payable:―
(1) if the Early Termination Amount is payable by a Defaulting Party, the Default Rate;
(2) if the Early Termination Amount is payable by a Non-defaulting Party, the Non-default
Rate; and
(3) in all other cases, the Applicable Deferral Rate; and
22 ISDA® 2002
(ii) for the period from (and including) the date (determined in accordance with Section 6(d)(ii)) on
which that amount is payable to (but excluding) the date of actual payment:―
(1) if a party fails to pay the Early Termination Amount due to the occurrence of an event or
circumstance which would, if it occurred with respect to a payment or delivery under a Transaction,
constitute or give rise to an Illegality or a Force Majeure Event, and for so long as the Early
Termination Amount remains unpaid due to the continuing existence of such event or circumstance,
the Applicable Deferral Rate;
(2) if the Early Termination Amount is payable by a Defaulting Party (but excluding any
period in respect of which clause (1) above applies), the Default Rate;
(3) if the Early Termination Amount is payable by a Non-defaulting Party (but excluding any
period in respect of which clause (1) above applies), the Non-default Rate; and
(4) in all other cases, the Termination Rate.
“Applicable Deferral Rate” means:―
(a) for the purpose of Section 9(h)(i)(3)(A), the rate certified by the relevant payer to be a rate offered to the
payer by a major bank in a relevant interbank market for overnight deposits in the applicable currency, such bank to
be selected in good faith by the payer for the purpose of obtaining a representative rate that will reasonably reflect
conditions prevailing at the time in that relevant market;
(b) for purposes of Section 9(h)(i)(3)(B) and clause (a)(iii) of the definition of Applicable Close-out Rate, the
rate certified by the relevant payer to be a rate offered to prime banks by a major bank in a relevant interbank market
for overnight deposits in the applicable currency, such bank to be selected in good faith by the payer after
consultation with the other party, if practicable, for the purpose of obtaining a representative rate that will reasonably
reflect conditions prevailing at the time in that relevant market; and
(c) for purposes of Section 9(h)(i)(3)(C) and clauses (a)(iv), (b)(i)(3) and (b)(ii)(1) of the definition of
Applicable Close-out Rate, a rate equal to the arithmetic mean of the rate determined pursuant to clause (a) above and
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.
“Automatic Early Termination” has the meaning specified in Section 6(a).
“Burdened Party” has the meaning specified in Section 5(b)(iv).
“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 after the parties enter
into the relevant Transaction.
“Close-out Amount” means, with respect to each Terminated Transaction or each group of Terminated Transactions
and a Determining Party, the amount of the losses or costs of the Determining Party that are or would be incurred
under then prevailing circumstances (expressed as a positive number) or gains of the Determining Party that are or
would be realised under then prevailing circumstances (expressed as a negative number) in replacing, or in providing
for the Determining Party the economic equivalent of, (a) the material terms of that Terminated Transaction or group
of Terminated Transactions, including the payments and deliveries by the parties under Section 2(a)(i) in respect of
that Terminated Transaction or group of Terminated Transactions that would, but for the occurrence of the relevant
Early Termination Date, have been required after that date (assuming satisfaction of the conditions precedent in
23 ISDA® 2002
Section 2(a)(iii)) and (b) the option rights of the parties in respect of that Terminated Transaction or group of
Terminated Transactions.
Any Close-out Amount will be determined by the Determining Party (or its agent), which will act in good faith and
use commercially reasonable procedures in order to produce a commercially reasonable result. The Determining
Party may determine a Close-out Amount for any group of Terminated Transactions or any individual Terminated
Transaction but, in the aggregate, for not less than all Terminated Transactions. Each Close-out Amount will be
determined as of the Early Termination Date or, if that would not be commercially reasonable, as of the date or dates
following the Early Termination Date as would be commercially reasonable.
Unpaid Amounts in respect of a Terminated Transaction or group of Terminated Transactions and legal fees and out-
of-pocket expenses referred to in Section 11 are to be excluded in all determinations of Close-out Amounts.
In determining a Close-out Amount, the Determining Party may consider any relevant information, including, without
limitation, one or more of the following types of information:―
(i) quotations (either firm or indicative) for replacement transactions supplied by one or more third parties that
may take into account the creditworthiness of the Determining Party at the time the quotation is provided and the
terms of any relevant documentation, including credit support documentation, between the Determining Party and the
third party providing the quotation;
(ii) information consisting of relevant market data in the relevant market supplied by one or more third parties
including, without limitation, relevant rates, prices, yields, yield curves, volatilities, spreads, correlations or other
relevant market data in the relevant market; or
(iii) information of the types described in clause (i) or (ii) above from internal sources (including any of the
Determining Party’s Affiliates) if that information is of the same type used by the Determining Party in the regular
course of its business for the valuation of similar transactions.
The Determining Party will consider, taking into account the standards and procedures described in this definition,
quotations pursuant to clause (i) above or relevant market data pursuant to clause (ii) above unless the Determining
Party reasonably believes in good faith that such quotations or relevant market data are not readily available or would
produce a result that would not satisfy those standards. When considering information described in clause (i), (ii) or
(iii) above, the Determining Party may include costs of funding, to the extent costs of funding are not and would not
be a component of the other information being utilised. Third parties supplying quotations pursuant to clause (i)
above or market data pursuant to clause (ii) above may include, without limitation, dealers in the relevant markets,
end-users of the relevant product, information vendors, brokers and other sources of market information.
Without duplication of amounts calculated based on information described in clause (i), (ii) or (iii) above, or other
relevant information, and when it is commercially reasonable to do so, the Determining Party may in addition
consider in calculating a Close-out Amount any loss or cost incurred in connection with its terminating, liquidating or
re-establishing any hedge related to a Terminated Transaction or group of Terminated Transactions (or any gain
resulting from any of them).
Commercially reasonable procedures used in determining a Close-out Amount may include the following:―
(1) application to relevant market data from third parties pursuant to clause (ii) above or information from
internal sources pursuant to clause (iii) above of pricing or other valuation models that are, at the time of the
determination of the Close-out Amount, used by the Determining Party in the regular course of its business in pricing
or valuing transactions between the Determining Party and unrelated third parties that are similar to the Terminated
Transaction or group of Terminated Transactions; and
24 ISDA® 2002
(2) application of different valuation methods to Terminated Transactions or groups of Terminated Transactions
depending on the type, complexity, size or number of the Terminated Transactions or group of Terminated
Transactions.
“Confirmation” has the meaning specified in the preamble.
“consent” includes a consent, approval, action, authorisation, exemption, notice, filing, registration or exchange
control consent.
“Contractual Currency” has the meaning specified in Section 8(a).
“Convention Court” means any court which is bound to apply to the Proceedings either Article 17 of the 1968
Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters or
Article 17 of the 1988 Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters.
“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.
“Cross-Default” means the event specified in Section 5(a)(vi).
“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.
“Defaulting Party” has the meaning specified in Section 6(a).
“Designated Event” has the meaning specified in Section 5(b)(v).
“Determining Party” means the party determining a Close-out Amount.
“Early Termination Amount” has the meaning specified in Section 6(e).
“Early Termination Date” means the date determined in accordance with Section 6(a) or 6(b)(iv).
“electronic messages” does not include e-mails but does include documents expressed in markup languages, and
“electronic messaging system” will be construed accordingly.
“English law” means the law of England and Wales, and “English” will be construed accordingly.
“Event of Default” has the meaning specified in Section 5(a) and, if applicable, in the Schedule.
“Force Majeure Event” has the meaning specified in Section 5(b).
“General Business Day” means a day on which commercial banks are open for general business (including dealings
in foreign exchange and foreign currency deposits).
“Illegality” has the meaning specified in Section 5(b).
25 ISDA® 2002
“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 “unlawful” will be construed accordingly.
“Local Business Day” means (a) in relation to any obligation under Section 2(a)(i), a General Business Day in the
place or places specified in the relevant Confirmation and a day on which a relevant settlement system is open or
operating as specified in the relevant Confirmation or, if a place or a settlement system is 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) for the purpose of determining when a Waiting Period expires, a General Business
Day in the place where the event or circumstance that constitutes or gives rise to the Illegality or Force Majeure
Event, as the case may be, occurs, (c) in relation to any other payment, a General Business Day 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
and, if that currency does not have a single recognised principal financial centre, a day on which the settlement
system necessary to accomplish such payment is open, (d) in relation to any notice or other communication, including
notice contemplated under Section 5(a)(i), a General Business Day (or a day that would have been a General
Business Day but for the occurrence of an event or circumstance which would, if it occurred with respect to payment,
delivery or compliance related to a Transaction, constitute or give rise to an Illegality or a Force Majeure Event) in
the place 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 (e) in relation to Section 5(a)(v)(2), a
General Business Day in the relevant locations for performance with respect to such Specified Transaction.
“Local Delivery Day” means, for purposes of Sections 5(a)(i) and 5(d), a day on which settlement systems necessary
to accomplish the relevant delivery are generally open for business so that the delivery is capable of being
accomplished in accordance with customary market practice, in the place specified in the relevant Confirmation or, if
not so specified, in a location as determined in accordance with customary market practice for the relevant delivery.
“Master Agreement” has the meaning specified in the preamble.
“Merger Without Assumption” means the event specified in Section 5(a)(viii).
“Multiple Transaction Payment Netting” has the meaning specified in Section 2(c).
“Non-affected Party” means, so long as there is only one Affected Party, the other party.
“Non-default Rate” means the rate certified by the Non-defaulting Party to be a rate offered to the Non-defaulting
Party by a major bank in a relevant interbank market for overnight deposits in the applicable currency, such bank to
be selected in good faith by the Non-defaulting Party for the purpose of obtaining a representative rate that will
reasonably reflect conditions prevailing at the time in that relevant market.
“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.
“Other Amounts” has the meaning specified in Section 6(f).
26 ISDA® 2002
“Payee” has the meaning specified in Section 6(f).
“Payer” has the meaning specified in Section 6(f).
“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.
“Proceedings” has the meaning specified in Section 13(b).
“Process Agent” has the meaning specified in the Schedule.
“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.
“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.
“Schedule” has the meaning specified in the preamble.
“Scheduled Settlement Date” means a date on which a payment or delivery is to be made under Section 2(a)(i) with
respect to a Transaction.
“Specified Entity” has the meaning specified in the Schedule.
“Specified Indebtedness” means, subject to the Schedule, any obligation (whether present or future, contingent or
otherwise, as principal or surety or otherwise) in respect of borrowed money.
“Specified Transaction” means, subject to the Schedule, (a) any transaction (including an agreement with respect to
any such transaction) 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
not a Transaction under this Agreement but (i) which is a rate swap transaction, swap option, 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, credit protection transaction, credit
swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction,
reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, weather index transaction or
forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with
respect to any of these transactions) or (ii) which is a type of transaction that is similar to any transaction referred to
in clause (i) above that is currently, or in the future becomes, recurrently entered into in the financial markets
(including terms and conditions incorporated by reference in such agreement) and which is a forward, swap, future,
option or other derivative on one or more rates, currencies, commodities, equity securities or other equity
instruments, debt securities or other debt instruments, economic indices or measures of economic risk or value, or
other benchmarks against which payments or deliveries are to be made, (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.
“Stamp Tax Jurisdiction” has the meaning specified in Section 4(e).
27 ISDA® 2002
“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 an Illegality or
a Force Majeure Event, all Affected Transactions specified in the notice given pursuant to Section 6(b)(iv), (b) if
resulting from any other Termination Event, all Affected Transactions and (c) if resulting from an Event of Default,
all Transactions in effect either immediately before the effectiveness of the notice designating that Early Termination
Date or, if Automatic Early Termination applies, immediately before that Early Termination Date.
“Termination Currency” means (a) if a Termination Currency is specified in the Schedule and that currency is freely
available, that currency, and (b) otherwise, euro if this Agreement is expressed to be governed by English law or
United States Dollars if this Agreement is expressed to be governed by the laws of the State of New York.
“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 Close-out Amount 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 Force Majeure Event, a Tax Event, 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.
“Threshold Amount” means the amount, if any, specified as such in the Schedule.
“Transaction” has the meaning specified in the preamble.
“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) or due but for Section 5(d)) to such party under Section 2(a)(i) or 2(d)(i)(4) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date, (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) or
5(d)) required to be settled by delivery to such party on or prior to such Early Termination Date and which has not
been so settled as at such Early Termination Date, an amount equal to the fair market value of that which was (or
would have been) required to be delivered and (c) if the Early Termination Date results from an Event of Default, a
Credit Event Upon Merger or an Additional Termination Event in respect of which all outstanding Transactions are
Affected Transactions, any Early Termination Amount due prior to such Early Termination Date and which remains
unpaid as of such Early Termination Date, in each case together with any amount of interest accrued or other
28 ISDA® 2002
compensation in respect of that obligation or deferred obligation, as the case may be, pursuant to Section 9(h)(ii)(1)
or (2), as appropriate. The fair market value of any obligation referred to in clause (b) above will be determined as of
the originally scheduled date for delivery, in good faith and using commercially reasonable procedures, by the party
obliged to make the determination under Section 6(e) or, if each party is so obliged, it will be the average of the
Termination Currency Equivalents of the fair market values so determined by both parties.
“Waiting Period” means:―
(a) in respect of an event or circumstance under Section 5(b)(i), other than in the case of Section 5(b)(i)(2)
where the relevant payment, delivery or compliance is actually required on the relevant day (in which case no
Waiting Period will apply), a period of three Local Business Days (or days that would have been Local Business
Days but for the occurrence of that event or circumstance) following the occurrence of that event or circumstance;
and
(b) in respect of an event or circumstance under Section 5(b)(ii), other than in the case of Section 5(b)(ii)(2)
where the relevant payment, delivery or compliance is actually required on the relevant day (in which case no
Waiting Period will apply), a period of eight Local Business Days (or days that would have been Local Business
Days but for the occurrence of that event or circumstance) following the occurrence of that event or circumstance.
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.
.................................................................................... ....................................................................................
(Name of Party) (Name of Party)
By: ............................................................................. By: .............................................................................
Name: Name:
Title: Title:
Date: Date:
Data sourced from publicly available filings. Our datasets may not be complete. Automated analysis can produce errors. If you believe any data on this page is incorrect, please contact us at hello@nzxplorer.co.nz. For informational purposes only. Not investment advice.
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