ISDA® International Swaps and Derivatives Association, Inc. dated as of 30 August 2006
Exhibit
99.1
ISDA®
International
Swaps and Derivatives Association, Inc.
dated
as of 30 August 2006
|
MACQUARIE
BANK LIMITED
(ABN
46008 583 542)
|
and
|
SAMSON
OIL & GAS USA, INC
|
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 fur 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.
(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;
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(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, 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.
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(a) Basic
Representations
(i) Status.
It is
duly organized and validly existing under the laws of the jurisdiction of
its
organization 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 authorize 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,
reorganization, insolvency, moratorium or similar laws affecting creditors’
rights generally and subject, as to enforceability, to equitable principles
of
general application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
(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 of 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.
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(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
(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
Authorizations.
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.
5
(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 of execution or performance of this Agreement by a jurisdiction
in which it is incorporated, organized, 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
or 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
en 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 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
6
(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:
(1) 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
or. 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
(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
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 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;
(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) (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 organization
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;
8
(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 (1) 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
(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 reorganizes, reincorporates or reconstitutes into or as, another entity
and, at the time of such consolidation, amalgamation, merger, transfer,
reorganization, reincorporation or reconstitution:
(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; or
(2) the
benefits of any Credit Support Document tail 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)):
9
(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 or make a payment or
delivery in respect of such Transaction, firm 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 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 ran 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;
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(iii) Tax
Event.
Due to
(1) any notice 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(b)) 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 reorganizing, 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 ▇▇▇▇▇ 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 date of this Master Agreement) to,
or
reorganizes, 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
11
(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 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)(l) 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 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 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).
12
(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 ▇▇▇▇▇ 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)(1).
13
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.
(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 Nonaffected 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 au 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 on 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 ▇▇▇▇, pursuant to
Section 6(b)(iv)(2)(A), in respect of less than all Affected
Transactions.
14
(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).
(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 (1) 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(b)(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(1).
(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 Nondefaulting 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.
15
(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.
(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, all 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).
16
(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, win, at the option of
the
Non-defaulting Party or the Nonaffected 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.
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).
17
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 fun 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 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.
18
(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 bad 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 bylaw.
(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 other 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.
19
(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.
(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 be 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 Of
compensation in respect of the overdue amount is due pursuant to clause (3)(8)
or (C) 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 the extent 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;
20
(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
(8) 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 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:
(A) 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 win
accrue on the amount of any payment obligation or the amount equal to the
fair
market value of any obliged 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.
21
(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.
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 organization, 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.
22
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
(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
23
(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
anyone 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.
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.
24
“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
(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;
25
(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 realized 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 Section 2(a)(iii) and (b)
the
option rights of the parties in respect of that Terminated Transaction or
group
of Terminated Transactions.
26
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 outof-pocket expenses referred to in
Section II 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 accounts 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 utilized. 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).
27
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
(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, authorization, 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
▇▇▇▇ ▇▇▇▇▇▇▇▇ 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).
28
“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).
“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
organized, present or engaged in a trade or business in such jurisdiction,
or
having or having bad 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
Delivery 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
recognized 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.
29
“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).
“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, organized, 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.
30
“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).
“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,
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.
31
“Terminated
Transactions’’
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 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 as determined
by both
parties.
32
“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.
|
MACQUARIE
BANK LIMITED
|
SAMSON
OIL
& GAS USA, INC
|
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Associate Director
Date:
November 15, 2006
|
|
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | By: /s/ ▇.▇. ▇▇▇▇ | ||
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Associate Director
Date:
November
15, 2006
|
Name:
▇▇▇▇▇ ▇▇▇▇
Title:
Managing Director
Date:
November 1, 2006
|
33