1987 ISDA wikitext: Difference between revisions

{{ISDA Master Agreement 1987 2}}

{{isda87prov|3}} '''{{isdaprov|Representations}}'''<br>

Each party represents to the other party (which representations will be deemed to be repeated by each party on each date on which a {{isda87prov|Swap Transaction}} is entered into and, in the case of the representations in Section {{isda87prov|3(f)}}, at all times until the termination of this {{isda87prov|Agreement}}) that:-<br>

:{{isda87prov|3(a)(ix)}} '''{{isdaprov|Payer Tax Representation}}'''. Each representation specified in Part 2 of the {{isda87prov|Schedule}} as being made by it for the purpose of this Section {{isda87prov|3(e)}} is accurate and true.<br>

:{{isda87prov|3(a)(x)}} '''{{isdaprov|Payee Tax Representations}}'''. Each representation specified in Part 2 of the {{isda87prov|Schedule}} as being made by it for the purpose of this Section {{isda87prov|3(f)}} is accurate and true.<br>

{{isda87prov|4}} '''{{isda87prov|Agreements}}'''<br>

Each party agrees with the other that, so long as it has or may have any obligation under this {{isda87prov|Agreement}} or under any {{isda87prov|Credit Support Document}} to which it is a party:-<br>

{{isda87prov|4(d)}} '''{{isdaprov|Tax Agreement}}'''. It will give notice of any failure of a representation made by it under Section {{isda87prov|3(f)}} to be accurate and true promptly upon learning of such failure.<br>

{{isda87prov|4(e)}} '''{{isda87prov|Payment of Stamp Tax}}'''. ft will pay any {{isda87prov|Stamp Tax}} levied or imposed upon it or in respect of its execution or performance of this {{isda87prov|Agreement}} by a jurisdiction in which it is incorporated, organised, managed and controlled, or considered to have its seat, or in which a branch or office through which it is acting for the purpose of this {{isda87prov|Agreement}} is located (“'''{{isda87prov|Stamp Tax Jurisdiction}}'''”) and will indemnify the other party against any {{isda87prov|Stamp Tax}} levied or imposed upon the other party or in respect of the other party's execution or performance of this {{isda87prov|Agreement}} by any such {{isda87prov|Stamp Tax Jurisdiction}} which is not also a {{isda87prov|Stamp Tax Jurisdiction}} with respect to the other party.<br>

{{isda87prov|5}} '''{{isda87prov|Events of Default and Termination Events}}'''.<br>

{{isda87prov|5(a)}} '''{{isda87prov|Events of Default}}'''. The occurrence at any time with respect to a party or, if applicable, any {{isda87prov|Specified Entity}} of such party, of any of the following events constitutes an event of default (an “'''{{isda87prov|Event of Default}}'''”) with respect to such party:-<br>

:{{isda87prov|5(b)(iv)}} '''{{isda87prov|Credit Event Upon Merger}}'''. If “'''{{isda87prov|Credit Event Upon Merger}}'''” is specified in Part I of the {{isda87prov|Schedule}} as applying to the party, such party (“'''X'''”) consolidates or amalgamates with, or merges into, or transfers all or substantially all its assets to, another entity and such action does not constitute an event described in Section {{isda87prov|5(a)(viii)}} but the creditworthiness of the resulting, surviving or transferee entity (which will be the {{isda87prov|Affected Party}}) is materially weaker than that of X immediately prior to such action.<br>

{{isda87prov|5(c)}} '''{{isda87prov|Event of Default and Illegality}}'''. If an event or circumstance which would otherwise constitute or give rise to an {{isda87prov|Event of Default}} also constitutes an {{isda87prov|Illegality}}, it will be treated as an {{isda87prov|Illegality}} and will not constitute an {{isda87prov|Event of Default}}.<br>

{{isda87prov|6}} '''{{isdaprov|Early Termination}}'''<br>

{{isda87prov|6(a)}} '''{{isda87prov|Right to Terminate Following Event of Default}}'''. If at any time an {{isda87prov|Event of Default}} with respect to a party (the “'''{{isda87prov|Defaulting Party}}'''”) has occurred and is then continuing, the other party may, by not more than 20 days notice to the {{isda87prov|Defaulting Party}} specifying the relevant {{isda87prov|Event of Default}}, designate a day not earlier than the day such notice is effective as an {{isda87prov|Early Termination Date}} in respect of all outstanding {{isda87prov|Swap Transaction}}s. However, an {{isda87prov|Early Termination Date}} will be deemed to have occurred in respect of all {{isda87prov|Swap Transaction}}s immediately upon the occurrence of any {{isda87prov|Event of Default}} specified in Section {{isda87prov|5(a)(vii)}}(1), (2), (3), (5), (6), (7) or (8) and as of the time immediately preceding the institution of the relevant proceeding or the presentation of the relevant petition upon the occurrence of any {{isda87prov|Event of Default}} specified in Section {{isda87prov|5(a)(vii)(4)}}.<br>

:{{isda87prov|6(e)(iv)}} '''{{isdaprov|Adjustment for Bankruptcy}}'''. In circumstances where an {{isda87prov|Early Termination Date}} is deemed to occur, the amount determined under Section {{isda87prov|6(e)(i)}} will be subject to such adjustments as are appropriate and permitted by {{isda87prov|law}} to reflect any payments made by one party to the other under this Agreement (and retained by such other party) during the period from the relevant {{isda87prov|Early Termination Date}} to the date for payment determined under Section {{isda87prov|6(d)(ii)}}.<br>

:{{isda87prov|6(e)(v)}} '''{{isdaprov|Pre-Estimate of Loss}}'''. The parties agree that the amounts recoverable under this Section {{isda87prov|6(e)}} are a reasonable pre-estimate of loss and not a penalty. Such amounts are payable for the loss of bargain and the loss of protection against future risks and except as otherwise provided in this Agreement neither party will be entitled to recover any additional damages as a consequence of such losses.<br>

{{isda87prov|7}} '''{{isda87prov|Transfer}}'''<br>

Subject to Section {{isda87prov|6(b)}} and to any exception provided in the {{isda87prov|Schedule}}, neither this Agreement nor any interest or obligation in or under this Agreement may be transferred by either party without the prior written {{isda87prov|consent}} of the other party (other than pursuant to a consolidation or amalgamation with, or merger into, or transfer of all or substantially all its assets to, another entity) and any purported transfer without such {{isda87prov|consent}} will be void.<br>

{{isda87prov|8}} '''{{isda87prov|Contractual Currency}}'''<br>

{{isda87prov|8(a)}} '''{{isda87prov|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 “'''{{isda87prov|Contractual Currency}}'''”). To the extent permitted by applicable {{isda87prov|law}}, any obligation to make payments under this Agreement in the {{isda87prov|Contractual Currency}} will not be discharged or satisfied by any tender in any currency other than the {{isda87prov|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 {{isda87prov|Contractual Currency}}, of the full amount in the {{isda87prov|Contractual Currency}} of all amounts due in respect of this Agreement. If for any reason the amount in the {{isda87prov|Contractual Currency}} so received falls short of the amount in the {{isda87prov|Contractual Currency}} due in respect of this Agreement, the party required to make the payment will, to the extent permitted by applicable {{isda87prov|law}}, immediately pay such additional amount in the {{isda87prov|Contractual Currency}} as may be necessary to compensate for the shortfall. If for any reason the amount in the {{isda87prov|Contractual Currency}} so received exceeds the amount in the {{isda87prov|Contractual Currency}} due in respect of this Agreement, the party receiving the payment will refund promptly the amount of such excess.<br>

{{isda87prov|8(c)}} '''{{isda87prov|Separate Indemnities}}'''. To the extent permitted by applicable {{isda87prov|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 due in respect of this Agreement.<br>

{{isda87prov|8(d)}} '''{{isda87prov|Evidence of Loss}}'''. For the purpose of this Section {{isda87prov|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.<br>

{{isda87prov|9}} '''{{isda87prov|Miscellaneous}}'''.<br>

{{isda87prov|9(a)}} '''{{isda87prov|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.<br>

{{isda87prov|9(f)}} '''{{isda87prov|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.<br>

{{isda87prov|9(g)}} '''{{isda87prov|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.<br>

{{isda87prov|10}} '''{{isda87prov|Multibranch Parties}}'''<br>

If a party is specified as a Multibranch Party in Part 4 of the {{isda87prov|Schedule}}, such Multibranch Party may make and receive payments under any {{isda87prov|Swap Transaction}} through any of its branches or offices listed in the {{isda87prov|Schedule}} (each an “'''{{isda87prov|Office}}'''”). The {{isda87prov|Office}} through which it so makes and receives payments for the purpose of any {{isda87prov|Swap Transaction}} will be specified in the relevant {{isda87prov|Confirmation}} and any change of {{isda87prov|Office}} for such purpose requires the prior written {{isda87prov|consent}} of the other party. Each Multibranch Party represents to the other party that, notwithstanding the place of payment, the obligations of each {{isda87prov|Office}} are for all purposes under this Agreement the obligations of such Multibranch Party. This representation will be deemed to be repeated by such Multibranch Party on each date on which a {{isda87prov|Swap Transaction}} is entered into.<br>

{{isda87prov|11}} '''{{isda87prov|Expenses}}'''<br>

A {{isda87prov|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 {{isda87prov|Stamp Tax}}, incurred by such other party by reason of the enforcement and protection of its rights under this Agreement or by reason of the early termination of any {{isda87prov|Swap Transaction}}, including, but not limited to, costs of collection.<br>

{{isda87prov|12}} '''{{isda87prov|Notices}}'''<br>

{{isda87prov|12(a)}} '''{{isda87prov|Effectiveness}}'''. Any notice or communication in respect of this Agreement will be sufficiently given to a party if in writing and delivered in person, sent by certified or registered mail (airmail, if overseas) or the equivalent (with return receipt requested) or by overnight courier or given by telex (with answerback received) at the address or telex number specified in Part 4 of the {{isda87prov|Schedule}}. A notice or communication will be effective:-<br>

:{{isda87prov|12(a)(iii)}} if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested), three Local Banking Days after despatch if the recipient's address for notice is in the same country as the place of despatch and otherwise seven Local Banking Days after despatch.<br>

{{isda87prov|12(b)}} '''{{isda87prov|Change of Addresses}}'''. Either party may by notice to the other change the address or telex number at which notices or communications are to be given to it.<br>

{{isda87prov|13}} '''{{isda87prov|Governing Law and Jurisdiction}}'''<br>

{{isda87prov|13(a)}} '''{{isda87prov|Governing Law}}'''. This Agreement will be governed by and construed in accordance with the {{isda87prov|law}} specified in Part 4 of the {{isda87prov|Schedule}}.<br>

{{isda87prov|13(c)}} '''{{isda87prov|Service of Process}}'''. Each party irrevocably appoints the Process Agent (if any) specified opposite its name in Part 4 of the {{isda87prov|Schedule}} to receive, for it and on its behalf, service of process in any {{isda87prov|Proceedings}}. [f 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 {{isda87prov|consent}} to service of process given in the manner provided for notices in Section {{isda87prov|12. Nothing in this Agreement will affect the right of either party to serve process in any other manner permitted by {{isda87prov|law}}.<br>

{{isda87prov|13(d)}} '''{{isda87prov|Waiver of Immunities}}'''. Each party irrevocably waives, to the fullest extent permitted by applicable {{isda87prov|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 {{isda87prov|Proceedings}} in the courts of any jurisdiction and irrevocably agrees, to the extent permitted by applicable {{isda87prov|law}}, that it will not claim any such immunity in any {{isda87prov|Proceedings}}.<br>

{{isda87prov|14}} '''{{isda87prov|Definitions}}'''<br>

As used in this Agreement:-<br>

:(b) in the case of notice of an {{isda87prov|Early Termination Date}} given as a result of a {{isda87prov|Termination Event}}, interest on such amounts due and payable by either party will be calculated at a rate per annum equal to the arithmetic mean of the cost (without proof or evidence of any actual cost) to each party (as certified by such party and regardless of whether due and payable by such party) if it were to fund or of funding such amounts.<br>

Such amounts of interest will be calculated on the basis of daily compounding and the actual number of days elapsed.<br>

IN WITNESS WHEREOF the parties have executed this document as of the date specified on the first page of this document.<br>