Attached files
file | filename |
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8-K - FORM 8-K - MET PRO CORP | mpr8k2010tc.htm |
EX-10.BJ - ISDA SCHEDULE TO THE MASTER AGREEMENT - MET PRO CORP | mpr8k2010tcexbj.htm |
EX-10.BH - TRADE CONFIRMATION - MET PRO CORP | mpr8k2010tcexbh.htm |
Exhbit
(10)(bi)
(Multicurrency
- Cross Border)
ISDA®
International
Swap Dealers Association, Inc.
MASTER
AGREEMENT
dated
as of October ....,
..2005
Brown Brothers Harriman &
Co…… and …… Met-Pro
Corporation……………………
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.
(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.
ISDA® 1992
2
(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 patty (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)).
ISDA®
1992
3
(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,
ISDA®
1992
4
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
ISDA®
1992
5
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
ISDA®
1992
6
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.
ISDA®
1992
7
6.
Early Termination
(a) Right to
Terminate Following Event of Default. If at any time an Event of
Default with respect to
a
party (the "Defaulting Party") has occurred and is then continuing, the other
party (the "Non-defaulting Party") may, by not more than 20 days notice to the
Defaulting Party specifying the relevant Event of Default, designate a day not
earlier than the day such notice is effective as an Early Termination Date in
respect of all outstanding Transactions. If, however, "Automatic Early
Termination" is specified in the Schedule as applying to a party, then an Early
Termination Date in respect of all outstanding Transactions will occur
immediately upon the occurrence with respect to such party of an Event of
Default specified in Section 5(a)(vii)(l), (3), (5), (6) or, to the extent
analogous thereto, (8), and as of the time immediately preceding the institution
of the relevant proceeding or the presentation of the relevant petition upon the
occurrence with respect to such party of an Event of Default specified in
Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to
Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an
Affected Party will, promptly upon becoming aware of it, notify the other party,
specifying the nature of that Termination Event and each Affected Transaction
and will also give such other information about that Termination Event as the
other party may reasonably require.
(ii) Transfer
to Avoid Termination Event. If either an Illegality under Section
5(b)(i)(1) or a Tax Event occurs and there is only one Affected Party, or if a
Tax Event Upon Merger occurs and the Burdened Party is the Affected Party, the
Affected Party will, as a condition to its right to designate an Early
Termination Date under Section 6(b)(iv), use all reasonable efforts (which will
not require such party to incur a loss, excluding immaterial, incidental
expenses) to transfer within 20 days after it gives notice under Section 6(b)(i)
all its rights and obligations under this Agreement in respect of the Affected
Transactions to another of its Offices or Affiliates so that such Termination
Event ceases to exist.
If
the Affected Party is not able to make such a transfer it will give notice to
the other party to that effect within such 20 day period, whereupon the other
party may effect such a transfer within 30 days after the notice is given under
Section 6(b)(i).
Any
such transfer by a party under this Section 6(b)(ii) will be subject to and
conditional upon the prior written consent of the other party, which consent
will not be withheld if such other party's policies in effect at such time would
permit it to enter into
transactions with the transferee on the terms proposed.
(iii) Two Affected
Parties. If an
Illegality under Section 5(b)(i)(1) or a Tax Event occurs and there are two
Affected Parties, each party will use all reasonable efforts to reach agreement
within 30 days after notice thereof is given under Section 6(b)(i) on action to
avoid that Termination Event.
(iv) Right
to
Terminate. If:
-
(1)
a transfer under Section 6(b)(ii) or an agreement under Section 6(b)(iii), as
the case may be, has not been effected with respect to all Affected Transactions
within 30 days after an Affected Party gives notice under Section 6(b)(i);
or
(2)
an Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger or an
Additional Termination Event occurs, or a Tax Event Upon Merger occurs and the
Burdened Party is not the Affected Party,
either
party in the case of an Illegality, the Burdened Party in the case of a Tax
Event Upon Merger, any Affected Party in the case of a Tax Event or an
Additional Termination Event if there is more than one Affected Party, or the
party which is not the Affected Party in the case of a Credit Event Upon Merger
or an Additional Termination Event if there is only one Affected Party may, by
not more than 20 days notice to the other party and provided that the relevant
Termination Event is then
ISDA®
1992
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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
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Non-defaulting
Party) in respect of the Terminated Transactions and the Termination Currency
Equivalent of the Unpaid Amounts owing to the Non-defaulting Party less (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the Defaulting Party will pay it to
the Non-defaulting Party; if it is a negative number, the Non-defaulting Party
will pay the absolute value of that amount to the Defaulting Party.
(4) Second Method and Loss. If
the Second Method and Loss apply, an amount will be payable equal to the
Non-defaulting Party's Loss in respect of this Agreement. If that amount is a
positive number, the Defaulting Party will pay it to the Non-defaulting Party;
if it is a negative number, the Non-defaulting Party will pay the absolute value
of that amount to the Defaulting Party.
(ii)
Termination
Events.
If the Early Termination Date results from a Termination
Event:-
(1)
One Affected
Party. If there is one Affected Party, the amount payable will be
determined in accordance with Section 6(e)(i)(3), if Market Quotation applies,
or Section 6(e)(i)(4), if Loss applies, except that, in either case, references
to the Defaulting Party and to the Non-defaulting Party will be deemed to be
references to the Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the Transactions are being
terminated, Loss shall be calculated in respect of all Terminated
Transactions.
(2) Two Affected Parties.
If there are two Affected Parties:-
(A)
if Market Quotation applies, each party will determine a Settlement Amount in
respect of the Terminated Transactions, and an amount will be payable equal to
(I) the sum of (a) one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the Settlement Amount of
the party with the lower Settlement Amount ("Y") and (b) the Termination
Currency Equivalent of the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B)
if Loss applies, each party will determine its Loss in respect of this Agreement
(or, if fewer than all the Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal to one-half of the
difference between the Loss of the party with the higher Loss ("X") and the Loss
of the party with the lower Loss ("Y").
If
the amount payable is a positive number, Y will pay it to X; if it is a negative
number, X will pay the absolute value of that amount to Y.
(iii)
Adjustment
for Bankruptcy. In
circumstances where an Early Termination Date occurs because "Automatic Early
Termination" applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are appropriate and
permitted by law to reflect any payments or deliveries made by one party to the
other under this Agreement (and retained by such other party) during the period
from the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties
agree that if Market Quotation applies an amount recoverable under this Section
6(e) is a reasonable pre-estimate of loss and not a penalty. Such amount is
payable for the loss of bargain and the loss of protection against future risks
and except as otherwise provided in this Agreement neither party will be
entitled to recover any additional damages as a consequence of such
losses.
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7. Transfer
Subject
to Section 6(b)(ii), neither this Agreement nor any interest or obligation in or
under this Agreement may be transferred (whether by way of security 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 it 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 tbe
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 con finned by
an exchange of telexes or electronic messages on an electronic messaging
system.
(c) Survival of
Obligations.
Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of
the parties under this Agreement will survive the termination of any
Transaction.
(d) Remedies
Cumulative.
Except as provided in this Agreement, the rights, powers, remedies and
privileges provided in this Agreement are cumulative and not exclusive of any
rights, powers, remedies and privileges provided by law.
(e) Counterparts and
Confirmations.
(i) This Agreement (and each amendment,
modification and waiver in respect of it) may be executed and delivered in
counterparts (including by facsimile transmission), each of which will be
deemed an original.
(ii)
The parties intend that they are legally bound by the terms of each Transaction
from the moment they agree to those terms (whether orally or otherwise). A
Confirmation shall he entered into as soon as practicable and may he executed
and delivered in counterparts (including by facsimile transmission) or be
created by an exchange of telexes or by an exchange of electronic messages on an
electronic messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The parties will
specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation,
(f)
No Waiver
of Rights. A failure or delay in
exercising any right, power or privilege in respect of this Agreement will not
be presumed to operate as a waiver, and a single or partial exercise of any
right, power or privilege will not be presumed to preclude any subsequent or
further exercise, of that right, power or privilege or the exercise of any other
right, power or privilege.
(g) Headings. The headings used in this
Agreement are for convenience of reference only and are not
to
affect the construction of or to be taken into consideration in interpreting
this Agreement.
10 Offices; Multibranch
Parties
(a) If
Section 10(a) is specified in the Schedule as applying, each party that enters
into a Transaction
through
an Office other than its head or home office represents to the other party that,
notwithstanding the place of booking office or jurisdiction of incorporation or
organisation of such party, the obligations of such party are the same as if it
had entered into the Transaction through its head or home office. This
representation will be deemed to be repeated by such party on each date on which
a Transaction is entered into.
(b) Neither
party may change the Office through which it makes and receives payments or
deliveries
for
the purpose of a Transaction without the prior written consent of the other
party.
(c) If
a party is specified as a Multibranch Party in the Schedule, such Multibranch
Party may make and receive payments or deliveries under any Transaction through
any Office listed in the Schedule, and the Office through which it makes and
receives payments or deliveries with respect to a Transaction will be specified
in the relevant Confirmation.
11. Expenses
A
Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support
Document
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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 anyone or more jurisdictions preclude the bringing of Proceedings
in any other jurisdiction.
(c) Service of
Process. Each
party irrevocably appoints the Process Agent (if any) specified opposite its
name in the Schedule to receive, for it and on its behalf, service of process in
any Proceedings. If for any
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reason
any party's Process Agent is unable to act as such, such party will promptly
notify the other party and within 30 days appoint a substitute process agent
acceptable to the other party. The parties irrevocably consent to service of
process given in the manner provided for notices in Section 12. Nothing in this
Agreement will affect the right of either party to serve process in any other
manner permitted by law.
(d) Waiver of
Immunities. Each
party irrevocably waives, to the fullest extent permitted by applicable law,
with respect to itself and its revenues and assets (irrespective of their use or
intended use), all immunity on the grounds of sovereignty or other similar
grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of
injunction, order for specific performance or for recovery of property, (iv)
attachment of its assets (whether before or after judgment) and (v) execution or
enforcement of any judgment to which it or its revenues or assets might
otherwise be entitled in any Proceedings in the courts of any jurisdiction and
irrevocably agrees, to the extent permitted by applicable law, that it will not
claim any such immunity in any Proceedings.
14. Definitions
As
used in this Agreement.--
"Additional
Termination Event" has the meaning
specified in Section 5(b).
"Affected
Party" has
the meaning specified in Section 5(b).
"Affected
Transactions" means (a) with respect
to any Termination Event consisting of an Illegality, Tax Event or Tax Event
Upon Merger, all Transactions affected by the occurrence of such Termination
Event and (b) with respect to any other Termination Event, all
Transactions.
"Affiliate" means, subject to the
Schedule, in relation to any person, any entity controlled, directly or
indirectly, by the person, any entity that controls, directly or indirectly, the
person or any entity directly or indirectly under common control with the
person. For this purpose, "control" of any entity or person means ownership of a
majority of the voting power of the entity or person.
"Applicable Rate"
means.--
(a) in
respect of obligations payable or deliverable (or which would have been but for
Section 2(a)(iii))
by
a Defaulting Party, the Default Rate;
(b)
in respect of an obligation to pay an amount under Section 6( e) of either party
from and after the date
(determined
in accordance with Section 6(d)(ii)) on which that amount is payable, the
Default Rate;
(c) in
respect of all other obligations payable or deliverable (or which would have
been but for
Section
2(a)(iii)) by a Non-defaulting Party, the Non-default Rate; and
(d) in
all other cases, the Termination Rate.
"Burdened
Party" has
the meaning specified in Section 5(b).
"Change 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 II. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
“Market
Quotation" means, with respect to one or more Terminated Transactions and
a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have
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been
required after that date. For this purpose, Unpaid Amounts in respect of the
Terminated Transaction or group of Terminated Transactions are to be excluded
but, without limitation, any payment or delivery that would, but for the
relevant Early Termination Date, have been required (assuming satisfaction of
each applicable condition precedent) after that Early Termination Date is to be
included. The Replacement Transaction would be subject to such documentation as
such party and the Reference Market-maker may, in good faith, agree. The party
making the determination (or its agent) will request each Reference Market-maker
to provide its quotation to the extent reasonably practicable as of the same day
and time (without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of
which those quotations are to be obtained will be selected in good faith by the
party obliged to make a determination under Section 6(e), and, if each party is
so obliged, after consultation with the other. If more than three quotations are
provided, the Market Quotation will be the arithmetic mean of the quotations,
without regard to the quotations having the highest and lowest values. If
exactly three such quotations are provided, the Market Quotation will be the
quotation remaining after disregarding the highest and lowest quotations. For
this purpose, if more than one quotation has the same highest value or lowest
value, then one of such quotations shall be disregarded. If fewer than three
quotations are provided, it will be deemed that the Market Quotation in respect
of such Terminated Transaction or group of Terminated Transactions cannot be
determined.
"Non-default
Rate" means a
rate per annum equal to the cost (without proof or evidence of any actual cost)
to the Non-defaulting Party (as certified by it) if it were to fund the relevant
amount.
"Non-defaulting
Party" has the meaning specified in Section
6(a).
"Office" means a branch or office of a party,
which may be such party's head or home office.
"Potential
Event of Default" means
any event which, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.
"Reference
Market-makers" means
four leading dealers in the relevant market selected by the party determining a
Market Quotation in good faith (a) from among dealers of the highest credit
standing which satisfy all the criteria that such party applies generally at the
time in deciding whether to offer or to make an extension of credit and (b) to
the extent practicable, from among such dealers having an office in the same
city.
"Relevant
Jurisdiction" means,
with respect to a party, the jurisdictions (a) in which the party is
incorporated, organised, managed and controlled or considered to have its seat,
(b) where an Office through which the party is acting for purposes of this
Agreement is located, (c) in which the party executes this Agreement and (d) in
relation to any payment, from or through which such payment is
made.
"Scheduled
Payment Date" means a
date on which a payment or delivery is to be made under Section 2(a)(i) with
respect to a Transaction.
"Set-off" means set-off, offset,
combination of accounts, right of retention or withholding or similar right or
requirement to which the payer of an amount under Section 6 is entitled or
subject (whether arising under this Agreement, another contract, applicable law
or otherwise) that is exercised by, or imposed on, such payer.
"Settlement
Amount" means,
with respect to a party and any Early Termination Date, the sum of:
-
(a)
the Termination Currency Equivalent of the Market Quotations (whether positive
or negative) for each Terminated Transaction or group of Terminated Transactions
for which a Market Quotation is determined; and
(b)
such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified
Entity" has
the meanings specified in the Schedule.
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"Specified
Indebtedness" means,
subject to the Schedule, any obligation (whether present or future, contingent
or otherwise, as principal or surety or otherwise) in respect of
borrowed money.
"Specified
Transaction" means,
subject to the Schedule, (a) any transaction (including an agreement with
respect thereto) now existing or hereafter entered into between one party to
this Agreement (or any Credit Support Provider of such party or any applicable
Specified Entity of such party) and the other party to this Agreement (or any
Credit Support Provider of such other party or any applicable Specified Entity
of such other party) which is a rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions), (b) any combination of these transactions and (c) any other
transaction identified as a Specified Transaction in this Agreement or the
relevant confirmation.
"Stamp Tax"
means any stamp, registration, documentation or similar tax.
"Tax" means
any present or future tax, levy, impost, duty, charge, assessment or fee of any
nature (including interest, penalties and additions thereto) that is imposed by
any government or other taxing authority in respect of any payment under this
Agreement other than a stamp, registration, documentation or similar
tax.
"Tax
Event" has the
meaning specified in Section 5(b).
"Tax
Event Upon Merger" has the
meaning specified in Section 5(b).
"Terminated
Transactions" means with respect to
any Early Termination Date (a) if resulting from a Termination Event, all
Affected Transactions and (b) if resulting from an Event of Default, all
Transactions (in either case) in effect immediately before the effectiveness of
the notice designating that Early Termination Date (or, if "Automatic Early
Termination" applies, immediately before that Early Termination
Date).
"Termination
Currency" has the meaning specified in the Schedule.
"Termination
Currency Equivalent" means, in respect 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 annurn equal to the arithmetic mean of the cost
(without proof or evidence of any actual cost) to each party (as certified by
such party) if it were to fund or of funding such amounts.
"Unpaid
Amounts" owing
to any party means, with respect to an Early Termination Date, the aggregate of
(a) in respect of all Terminated Transactions, the amounts that became payable
(or that would have become payable but for Section 2(a)(iii)) to such party
under Section 2(a)(i) on or prior to such Early Termination Date and which
remain unpaid as at such Early Termination Date and (b) in respect of each
Terminated Transaction, for each obligation under Section 2(a)(i) which was (or
would have been but for Section 2(a)(iii)) required to be settled by delivery to
such party on or prior to such Early Termination Date and which has not been so
settled as at such Early Termination Date, an amount equal to the fair
market
ISDA®
1992
17
value
of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN
WITNESS WHEREOF the parties have executed this document on the respective dates
specified below with effect from the date specified on the first page of this
document.
MET-PRO CORPORATION | Brown Brothers Harriman | |||
(Name
of Party)
|
(Name
of Party)
|
|||
By: |
/s/
Gary J. Morgan
|
By:
|
/s/ Thomas J. Saunder | |
Name:
Gary J. Morgan
|
Name:
Thomas J. Saunder
|
|||
Title:
Vice President Finance
|
Title:
SVP
|
|||
Date:
October 12, 2005
|
Date:
10/12/05
|
ISDA®
1992
18