Template:Nutshell 2002 ISDA 9

9. Miscellaneous
9(a) Entire Agreement. This Agreement is the entire agreement between the parties on its subject matter. Neither party has relied on any representation (except the actual Representations) when entering into it and each party therefore waives all rights it might otherwise have to claim it has. That said, nothing will limit either party’s liability for fraud.
9(b) Amendments. An amendment of, or waiver given under, this Agreement will only be effective if in writing and executed by each of the parties otherwise suitably electronically confirmed.
9(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the parties’ obligations will survive the termination of any Transaction.
9(d) Remedies Cumulative. Except otherwise stated, a party’s rights under this Agreement are additional to any rights it happens to have at law.
9(e) Counterparts and Confirmations.

9(e)(i) Counterparts: This Agreement (and any amendment) may be executed in counterparts.

9(e)(ii) Confirmations: The parties will be bound by the terms of each Transaction from the moment they agree to those terms. They must agree a confirmation (which they will designate as a Confirmation) as soon as practicable afterwards. The Confirmation will be evidence of a binding supplement to this Agreement. They may do this electronically (including by email!).

9(f) No Waiver of Rights. A failure to exercise any right under this Agreement will not waive that right. Any exercise of a right will not be preclude any later exercise of that right, or the exercise of any other right.
9(g) Headings. Headings in this Agreement are for convenience only and should not be considered when interpreting this Agreement.
9(h)(i) Prior to Early Termination. Before an Early Termination Date is designated for the relevant Transaction:―

(1) Interest on Defaulted Payments. If a party defaults on any payment obligation, it will pay interest on the overdue amount from the original due date to the actual payment date (excluding any relevant Waiting Period), at the Default Rate.

(2) Compensation for Defaulted Deliveries. If a party defaults on any delivery obligation, it will, on demand:

(A) compensate the other party per the relevant Confirmation; and

(B) pay interest on the fair market value of the delivery obligation from the original due date to the actual delivery date (excluding any period to which clause (4) below applies), at the Default Rate. The innocent party will determine the fair market value as of the scheduled delivery date in good faith and a commercially reasonable manner.

(3) Interest on Deferred Payments. If:―

(A) a party does not pay an amount that, but for Section 2(a)(iii), would have been payable, it will, subject to (B) and (C) below, pay interest on demand from the date the amount would otherwise have been payable to the date it actually becomes payable, at the Applicable Deferral Rate;

(B) a payment is deferred under Section 5(d), the party which would otherwise have been required to make it will (as long as no Event of Default or Potential Event of Default exists, pay interest on demand from the original due date to the earlier of the date it is no longer deferred and the date on which the Event of Default or Potential Event of Default occurs, at the Applicable Deferral Rate; or

(C) a party fails (after giving effect to any deferral period set out in (B) above) to make any payment because of an Illegality or a Force Majeure Event it will, as long as the Illegality or Force Majeure Event continues and no Event of Default or Potential Event of Default exists, pay interest on demand from the date the party failed to make the payment (or, if later, the date the payment is no longer deferred) to the earlier of the date on which the Illegality or Force Majeure Event ceases and the date on which an Event of Default or Potential Event of Default occurs to that party (excluding any period in which compensation is due under clause (B) above), at the Applicable Deferral Rate.

(4) Compensation for Deferred Deliveries. If:―

(A) a party does not settle any delivery that, but for Section 2(a)(iii), it would have been required to make; or

(B) a delivery is deferred under Section 5(d); or

(C) a party fails to deliver because of an Illegality or Force Majeure Event when any applicable Waiting Period has expired,

that party will compensate and pay interest to the other party on demand (after such delivery becomes required) as required the relevant Confirmation.

9(h)(ii) Early Termination. Upon an Early Termination Date on a Transaction:―

9(h)(ii)(1) Unpaid Amounts. To determine an Unpaid Amount for that Transaction, interest will accrue on any payment obligation or the fair market value of any delivery obligation from the date the obligation was due to be performed until the Early Termination Date, at the Applicable Close-out Rate.

9(h)(ii)(2) Interest on Early Termination Amounts. If an Early Termination Amount is due it must be paid with interest in the Termination Currency from the Early Termination Date until the date it is paid, at the Applicable Close-out Rate.

9(h)(iii) Interest Calculation. Any interest under this Section will compound daily and be for the actual number of days elapsed.