Exhibit 10.8.10
Via Facsimile
August 2, 1996
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone No.: 212/▇▇▇-▇▇▇▇
Facsimile No.: 212/238-5461
Subject: Swap Transaction between NRG Generating (Newark) Cogeneration
Inc. ("Newark") and NRG Generating (▇▇▇▇▇▇) Cogeneration Inc.
("▇▇▇▇▇▇") and Credit Suisse, New York Branch ("Credit Suisse")
Dear Sirs:
The purpose of this telecopy agreement (this "Confirmation") is to confirm
the terms and conditions of the Transaction entered into between us on the
Trade Date specified below (the "Transaction"). This confirmation
constitutes a "Confirmation" as referred to in the Agreement specified
below.
1. This confirmation supplements, forms part of, and is subject to, the
1992 ISDA Master Agreement dated as of August 2, 1996 as amended and
supplemented from time to time (the "Agreement"), between you and us.
All provisions contained in the Agreement govern this Confirmation
except as expressly modified below.
Party A and Party B each represents to the other that it has entered
into this Transaction in reliance upon such tax, accounting,
regulatory, legal and financial advice as it deems necessary and not
upon any view expressed by the other except as expressly set forth in
the Agreement.
Party A and Party B expressly acknowledge that, in reliance upon the
other party's entering into the Transaction evidenced by this
Confirmation, each party has made (or refrained from making) other
material actions.
In this Confirmation, "Party A" means Credit Suisse and "Party B"
means Newark and ▇▇▇▇▇▇.
2. The terms of the particular Swap Transaction to which this
Confirmation relates are as follows:
Notional Amount: USD 77,500,000, subject to amortization as set out in
Appendix A attached hereto
Trade Date: 2 August 1996
Effective Date: 6 August 1996
Termination Date: 23 May 2011, subject to adjustment in accordance with
the Modified Following Business Day Convention
Fixed Amount:
Fixed Rate Payer Party B
Fixed Rate Payer
Payment Dates: The last day of March, June, September, and
December, commencing on the last day of September
1996 and ending on the last day of March 2011,
inclusive, thereafter on 23 May 2011, subject to
adjustment in accordance with the Modified
Following Business Day Convention.
Fixed Rate: 6.90%
Fixed Rate Day Count
Fraction: Actual 360
Compounding: Inapplicable
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer Payment
Date: The last day of March, June, September, and
December, commencing on the last day of September
1996 and ending on the last day of March 2011,
inclusive, thereafter on 23 May 2011, subject to
adjustment in accordance with the Modified
Following Business Day Convention.
Floating Rate for initial
Calculation Period: 5,49141%
Floating Rate Option: USD-LIBOR-BBA: provided.
(i) in respect of the first Calculation Period
the Designated Maturity shall be 2 months;
(ii) the rate for the final Calculation Period
shall be determined by Linear Interpolation
of the rate for 1 month and the rate for 2
month.
Designated Maturity: 3 months (except as noted above)
Spread: None
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Business Days: New York
Calculation Agent: Party A
3. Account Details:
Payments to Party A Credit Suisse
Loan Department
One Liberty Plaza
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Acct No. 904996-02
(Loan Department Clearing Account)
Ref.: NRG Newark ▇▇▇▇▇▇ Swap
ABA No. ▇▇▇▇▇▇▇▇▇
Payment to Party B Holder: NRG Generating (Newark) Cogeneration, Inc.
Bank: Norwest Bank Minnesota N.A.
Acct. No. 6355 03 7096
ABA No. 091 000 019
Please confirm that the foregoing correctly set forth the terms of our
agreement by signing and returning this Confirmation to us via facsimile at
212/238-5461.
Yours sincerely,
CREDIT SUISSE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
ASSOCIATE
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
ASSOCIATE
Accepted and confirmed as of the Trade Date:
NRG Generating (Newark) Cogeneration, Inc.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
NRG Generating (▇▇▇▇▇▇) Cogeneration, Inc.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
APPENDIX A
TO A TRANSACTION
BETWEEN
NRG GENERATING (NEWARK) COGENERATION, INC.
and
NRG GENERATING (▇▇▇▇▇▇) COGENERATION, INC.
and
CREDIT SUISSE, NEW YORK BRANCH
Period up to, but excluding
the Fixed and Floating Rate
Payer Payment Date Scheduled Notional Amount
to occur on: Outstanding (USD):
30-Sep-96 77,500,000
31-Dec-96 76,511,875
31-Mar-97 75,523,750
30-Jun-97 74,574,375
30-Sep-97 73,625,000
31-Dec-97 72,675,625
31-Mar-98 71,726,250
30-June-98 70,660,625
30-Sep-98 69,595,000
31-Dec-98 68,529,375
31-Mar-99 67,463,750
30-Jun-99 66,262,500
30-Sep-99 65,061,250
31-Dec-99 63,860,000
31-Mar-2000 62,658,750
30-Jun-2000 61,583,438
29-Sep-2000 60,508,125
29-Dec-2000 59,432,813
30-Mar-2001 58,357,500
29-Jun-2001 57,049,688
28-Sep-2001 55,741,875
31-Dec-2001 54,434,063
29-Mar-2002 53,126,250
28 Jun-2002 51,760,313
30-Sep-2002 50,394,375
31-Dec-2002 49,028,438
31-Mar-2003 47,662,500
30-Jun-2003 46,500,000
30-Sep-2003 45,337,500
31-Dec-2003 44,175,000
Period up to, but excluding
the Fixed and Floating Rate
Payer Payment Date Scheduled Notional Amount
to occur on: Outstanding (USD):
31-Mar-2004 43,012,500
30-Jun-2004 41,879,063
30-Sep-2004 40,745,625
31-Dec-2004 39,612,188
31-Mar-2005 38,478,750
30-Jun-2005 37,296,875
30-Sep-2005 36,115,000
30-Dec-2005 34,933,125
31-Mar-2006 33,751,250
30-Jun-2006 32,637,188
29-Sep-2006 31,523,125
29-Dec-2006 30,409,063
30-Mar-2007 29,295,000
29-Jun-2007 27,958,125
28-Sep-2007 26,621,250
31-Dec-2007 25,284,375
31-Mar-2008 23,947,500
30-Jun-2008 22,504,063
30-Sep-2008 21,060,625
31-Dec-2008 19,617,188
31-Mar-2009 18,173,750
30-Jun-2009 16,720,625
30-Sept-2009 15,267,500
31-Dec-2009 13,814,375
31-Mar-2010 12,361,250
30-Jun-2010 10,946,875
30-Sep-2010 9,532,500
31-Dec-2010 7,149,375
31-Mar-2011 4,766,250
23-May-2011 2,383,125
/bhs
(Multicurrency-Cross Border)
ISDAr
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of August 2, 1996
Credit Suisse, New York Branch and NRG Generating (Newark) Cogeneration,
Inc., and NRG Generating (▇▇▇▇▇▇) Cogeneration, Inc. have entered and/or
anticipate entering into one or more transactions (each a "Transaction")
that are or will be governed by this Master Agreement, which includes the
schedule (the "Schedule"), and the documents and other confirming evidence
(each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will
have the meanings therein specified for the purpose of this Master
Agreement.
(b) Inconsistency. In the event of any inconsistency between the
provisions of the Schedule and the other provisions of this Master
Agreement, the Schedule will prevail. In the event of any inconsistency
between the provisions of any Confirmation and this Master Agreement
(including the Schedule), such confirmation will prevail for the purpose of
the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on
the fact that this Master Agreement and all Confirmations form a single
agreement between the parties (collectively referred to as this
"Agreement"), and the parties would not otherwise enter into any
Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds and in the manner customary for payments in
the required currency. Where settlement is by delivery (that is,
other than by payment), such delivery will be made for receipt on the
due date in the manner customary for the relevant obligation unless
otherwise specified in the relevant confirmation or elsewhere in this
Agreement.
(iii) Each obligation of each party under Section 2(a)(I) is
subject to (1) the condition precedent that no Event of Default or
Potential Event of Default with respect to the other party has
occurred and is continuing, (2) the condition precedent that no Early
Termination Date in respect of the relevant Transaction has occurred
or been effectively designated and (3) each other applicable condition
precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving
a payment or delivery by giving notice to the other party at least five
Local Business Days prior to the scheduled date for the payment or delivery
to which such change applies unless such other party gives timely notice of
a reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable: --
(i) in the same currency; and
(ii) in respect of the same Transaction.
By each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party
by whom the larger aggregate amount would have been payable to pay to the
other party the excess of the larger aggregate amount over the smaller
aggregate amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same
date in the same currency in respect of such Transactions, regardless of
whether such amounts are payable in respect of the same Transaction. The
election may be made in the Schedule or a Confirmation by specifying that
subparagraph (ii) above will not apply to the Transactions identified as
being subject to the election, together with the starting date (in which
case subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for
different groups of Transactions and will apply separately to each pairing
of Offices through which the parties make and receive payments or
deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without
any deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as
modified by the practice of any relevant governmental revenue
authority, then in effect. If a party is so required to deduct or
withhold, then that party ("X") will: --
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of determining
that such deduction or withholding is required or receiving
notice that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition
to the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure that
the net amount actually received by Y (free and clear of
Indemnifiable Taxes, whether assessed against X or Y) will equal
the full amount Y would have received had no such deduction or
withholding been required. However, X will not be required to pay
any additional amount to Y to the extent that it would not be
required to be paid but for -
(A) the failure by Y to comply with or perform any
agreement contained in Section 4(a)(I), 4(a)(iii) or 4(d);
or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure
would not have occurred but for (I) any action taken by a
taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (II) a
Change in Tax Law.
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(ii) Liability. If: --
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to make
any deduction or withholding in respect of which X would not be
required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X.
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the amount
of such liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d).
(e) Default Interest: Other Amounts. Prior to the occurrence or
effective designation of an Early Termination Date in respect of the
relevant Transaction, a party that defaults in the performance of any
payment obligation will, to the extent permitted by law and subject to
Section 6(c), be required to pay interest (before as well as after
judgment) on the overdue amount to the other party on demand in the same
currency as such overdue amount, for the period from (and including) the
original due date for payment to (but excluding) the date of actual
payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If,
prior to the occurrence or effective designation of an Early Termination
Date in respect of the relevant Transaction, a party defaults in the
performance of any obligation required to be settled by delivery, it will
compensate the other party on demand if and to the extent provided for in
the relevant Confirmation or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be
deemed to be repeated by each party on each date on which a Transaction is
entered into and, in the case of the representations in Section 3(f), at
all times until the termination of this Agreement) that: --
(a) Basic Representations.
(i). Status. It is duly 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 validation 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)).
3
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would occur as
a result of its entering into or performing its obligations under this
Agreement or any Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates, any action, suit or
proceeding at law or in equity or before any court, tribunal, governmental
body, agency or official or any arbitrator that is likely to affect the
legality, validity or enforceability against it of this Agreement or any
Credit Support Document to which it is a party or its ability to perform
its obligations under this Agreement or such Credit Support Documents.
(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) Payer Tax Representations. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3(f) is
accurate and true.
4. Agreements
Each party with the other that, so long as either party has or may have any
obligation under this Agreement or under any Credit Support Document to
which it is a party: --
(a) Furnish Specified Information. It will deliver to the other party or,
in certain cases under subparagraph (iii) below, to such government or
taxing authority as the other party reasonably directs: --
(i) any forms, documents or certificates relating to taxation
specified in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any
Confirmation; and
(iii) upon reasonable demand by such other party, any form or
document that may be required or reasonably requested in writing in
order to allow such other party or its Credit Support Provider to make
a payment under this Agreement or any applicable Credit Support
Document without any deduction or withholding for or on account of any
Tax or with such deduction or withholding at a reduced rate (so long
as the completion, execution or submission of such form or document
would not materially prejudice the legal or commercial position of the
party in receipt of such demand), with any such form or document to be
accurate and completed in a manner reasonably satisfactory to such
other party and to be executed and to be delivered with any reasonably
required certification.
In each case by the date specified in the Schedule or such Confirmation or,
if none is specified, as soon as reasonably practicable.
(b) Maintain 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.
(d) Tax Agreement. It will give notice of any failure of a representation
made by it under Section 3(f) to be accurate and true promptly upon
learning of such failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp
Tax levied or imposed upon it or in respect of its execution or performance
of this Agreement by a jurisdiction in which it is incorporated,
4
organized, managed and controlled, or considered to have its seat, or in
which a branch or office through which it is acting for the purpose of this
Agreement is located ("Stamp Tax Jurisdiction") and will indemnify the
other party against any Stamp Tax levied or imposed upon the other party or
in respect of the other party's execution or performance of this Agreement
by any such Stamp Tax Jurisdiction which is not also a Stamp Tax
Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any
Specified Entity of such party of any of the following events constitutes
an event of default (an "Event of Default") with respect to each party: --
(i) Failure to Pay or Deliver. Failure by the party to make, when
due, any payment under this Agreement or delivery under Section
2(a)(I) or 2(e) required to be made by it if such failure is not
remedied on or before the third Local Business Day after notice of
such failure is given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or
perform any agreement or obligation (other than an obligation to make
any payment under this Agreement or delivery under Section 2(a)(i) or
2(e) or to give notice of a Termination Event or any agreement or
obligation under Section 4(a)(I), 4(a)(ii) or 4(d)) to be complied
with or performed by the party in accordance with this Agreement if
such failure is not remedied on or before the thirtieth day after
notice of such failure is given to the party'
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any
applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support
Document to be in full force and effect for the purpose of this
Agreement (in either case other than in accordance with its
terms) prior to the satisfaction of all obligations of such party
under each Transaction to which such Credit Support Document
relates without the written consent of the other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f) made or repeated or deemed to have been made
or repeated by the party or any Credit Support Provider of such party
in this Agreement or any Credit Support Document proves to have been
incorrect or misleading in any material respect when made or repeated
or deemed to have been made or repeated;
(v) Default under Specified Transaction. The party, any Credit
Support Provider of such party or any applicable Specified Entity of
such party (1) defaults under a Specified Transaction and, after
giving effect to any applicable notice requirement or grade period,
there occurs a liquidation of, an acceleration of obligations under,
or an early termination of, that Specified Transaction, (2) defaults,
after giving effect to any applicable notice requirement or grace
period, in making any payment or delivery due on the last payment,
delivery or exchange date of, or any payment on early termination of,
a Specified Transaction (or such default continues for at least three
Local Business Days if there able source requirement or grace period)
or (3) disaffirms, disclaims, repudiates or rejects, in whole or in
part, a Specified Transaction (or such action is taken by any person
or entity appointed or empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule
as applying to the party, the occurrence or existence of (1) a
default, event of default or other similar conditions or event
(however
5
described) in respect of such party, any Credit Support Provider of
such party or any applicable Specified Entity of such party under one
or more agreements or instruments relating to Specified Indebtedness
of any of them (individually or collectively) in an aggregate amount
of not less than the applicable Threshold Amount (as specified in the
Schedule) which has resulted in such Specified Indebtedness becoming,
or becoming capable at such time of being declared, due and payable
under such agreements or instruments, before it would otherwise have
been due and payable or (2) a default by such party, such Credit
Support Provider or such Specified Entity (individually or
collectively) in making one or more payments on the due date thereof
in an aggregate amount of not less than the applicable Threshold
Amount under such agreements or instruments (after giving effect to
any applicable notice requirement or grace period;
(vii) Bankruptcy. The party, any Credit Support Provider of such
party or any applicable Specified Entity of such party: --
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to
pay its debts or fails or admits in writing its inability
generally to pay its debts as they become due; (3) makes a
general assignment, arrangement or composition with or for the
benefit of its creditors; (4) institutes or has instituted
against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency
law or other similar law affecting creditors' rights, or a
petition is presented for its winding-up or liquidation, and, in
the case of any such proceeding or petition instituted or
presented against it, such proceeding or petition (A) results in
a judgment of insolvency or bankruptcy or the entry of an order
for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its winding-
up, official management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its
assets; (7) has a secured party take possession of all or
substantially all its assets or has a distress, execution,
attachment, sequestration or other legal process levied, enforced
or sued on or against all or substantially all its assets and
such secured party maintains possession, or any such process is
not dismissed, discharged, stayed or restrained, in each case
within 30 days thereafter; (8) causes or is subject to any event
with respect to it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events
specified in clauses (1) to (7) (inclusive); or (9) takes any
action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or merges
with or into, or transfers all or substantially all its assets to,
another entity and, at the time of such consolidation, amalgamation,
merger or transfer: --
(1) the resulting, surviving or transferee entity fails to
assume all the obligations of such party or such Credit Support
Provider under this Agreement or any Credit Support Document to
which it or its predecessor was a party by operation of law or
pursuant to an agreement reasonably satisfactory to the other
party to this Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by
such resulting, surviving or transferee entity of its obligations
under this Agreement.
(b) Termination Events. The occurrence at any time with respect to a
party or, if applicable, any Credit Support Provider of such party or any
Specified Entity of such party of any event specified below constitutes an
Illegality if the event is specified in (i) below , a Tax Event if the
event is specified in (ii) below or a Tax Event Upon Merger if the event is
specified in (iii) below, and, if specified to be applicable, a Credit
Event
6
upon Merger if the event is specified pursuant to (iv) below or an
Additional Termination Event if the event is specified pursuant to (v)
below: --
(i) Illegality. Due to the adoption of, or any change in, any
applicable law after the date on which a Transaction is entered into,
or due to the promulgation of, or any change in, the interpretation by
any court, tribunal or regulatory authority with competent
jurisdiction of any applicable law after such date, it becomes
unlawful (other than as a result of a breach by the party of Section
4(b)) for such party (which will be the Affected Party): --
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other material
provision of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party
to perform, any contingent or other obligation which the party
(or such Credit Support Provider) has under any Credit Support
Document relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the ate on
which a Transaction is entered into (regardless of whether such action
is taken or brought with respect to a party to this Agreement) or (y)
a Change in Tax Law, the party (which will be the Affected Party)
will, or there is a substantial likelihood that it will, on the next
succeeding Scheduled Payment Date (1) be required to pay to the other
party an additional amount in respect of an Indemnifiable Tax under
Section 2(d)(I)(4) (except in respect of interest under Section 2(e),
6(d)(ii) or (2) receive a payment from which an amount is required to
be deducted or withheld for or on account of a Tax (except in respect
of interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional
amount is required to be paid in respect of such Tax under Section
2(d)(I)(4) (other than by reason of Section 2(d)(I)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on
the next succeeding Scheduled Payment Date will either (1) be required
to pay an additional amount in respect of an Indemnifiable Tax under
Section 2(d)(I)(4) (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e) or (2) receive a payment from which an amount has
been deducted or withheld for or on account of any Indemnifiable Tax
in respect of which the other party is not required to pay an
additional amount (other than by reason of Section 2(d)(I)(4)(A) or
(B)), in either case as a result of a party consolidating or
amalgamating with, or merging with or into, or transferring all or
substantially all its assets to, another entity (which will be the
Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party ("X"),
any Credit Support Provider of X or any applicable Specified entity of
X consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and
such action does not constitute an event described in Section
5(a)(viii) but the creditworthiness of the resulting, surviving or
transferee entry is materially weaker than that of X, such Credit
Support Provider or such Specified Entity, as the case may be,
immediately prior to such action (and, in such event, X or its
successor or transferee, as appropriate, will be the Affected Party);
or
(v) Additional Termination Event. If any "Additional Termination
Event" is specified in the Schedule or any Confirmation as applying,
the occurrence of such event (and, in such event, the Affected Party
or Affected Parties shall be as specified for such Additional
Termination Event in the Schedule or such Confirmation.)
(c) Event of Default and Illegality. If an event or circumstance which
would otherwise constitute or give rise to an Event of Default also
constitutes an Illegality, it will be treated as an Illegality and will not
constitute an Event of Default.
7
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an
Event of Default with respect to a party (the "Defaulting Party") has
occurred and is then continuing, the other party (the "Non-defaulting
Party") may, by not more than 20 days notice to the Defaulting Party
specifying the relevant Event of Default, designate a day not earlier than
the day such notice is effective as an Early Termination Date in respect of
all outstanding Transactions. If, however, "Automatic Early Termination"
is specified in the Schedule as applying to a party, then an Early
Termination Date in respect of all outstanding Transactions will occur
immediately upon the occurrence with respect to such party of an Event of
Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the extent
analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of
Default specified in Section 5(a)(vii)(4) or, to the extent analogous
thereto. (8).
(b) Right to Terminate following Termination Event
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying
the nature of that Termination Event and each Affected Transaction and
will also give such other information about that Termination Event as
the other party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality
under Section 5(b)(I)(1) or a Tax Event occurs and there is only one
Affected Party, or if a Tax Event Upon Merger occurs and the Burdened
Party is the Affected Party, the Affected Party will, as a condition
to its right to designate an Early Termination Date under Section
6(b)(iv), use all reasonable efforts (which will not require such
party to incur a loss, excluding immaterial, incidental expenses) to
transfer within 20 days after it gives notice under Section 6(b)(i)
all its rights and obligations under this Agreement in respect of the
Affected Transactions to another of its Offices or Affiliates so that
such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days
after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be
subject to and conditional upon the prior written consent of the other
party, which consent will not be withheld if such other party's
policies in effect at such time would permit it to enter into
transactions with the transferee on the terms proposed.
(iii) Two Affected Parties. If an illegality under Section
5(b)(i)(1) or a Tax Event occurs and there are two Affected Parties,
each party will use all reasonable efforts to reach agreement within
30 days after notice thereof is given under Section 6(b)(i) on action
to avoid that Termination Event.
(iv) Right to Terminate. If: --
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, has not been effected with
respect to all Affected Transactions within 30 days after an
Affected Party gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected
Party.
Either party in the case of an Illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in the case of a
Tax Event or an Additional Termination Event if there is more than one
Affected Party, or the party which is not the Affected Party in the
case of a Credit Event Upon Merger or an Additional Termination Event
if there is only one Affected Party may, by not more than 20 days
notice to the other party and provided that the relevant Termination
Event is then
8
continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date
so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(e) in respect of the Terminated Transactions will be
required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and
will provide to the other party a statement (1) showing in reasonable
detail, such calculations (including all relevant quotations and
specifying any amount payable under Section 6(e) and (2) giving
details of the relevant account to which any amount payable to it is
to be paid. In the absence of written confirmation from the source of
a quotation obtained in determining a Market Quotation, the records of
the party obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect in
any Early Termination Date under Section 6(e) will be payable on the
day that notice of the amount payable is effective (in the case of an
Early Termination Date which is designated or occurs as a result of an
Event of Default) and on the day which is two Local Business Days
after the day on which notice of the amount payable is effective ( in
the case of an Early Termination Date which is designated as a result
of a Termination Event). Such amount will be paid together with (to
the extent permitted under applicable law) interest thereon (before as
well as after judgment) in the Termination Currency, from (and
including the relevant Early Termination Date to (but excluding) the
date such amount is paid, at the Applicable Rate. Such interest will
be calculated on the basis of daily compounding and the actual number
of days elapsed.
(c) Payments on Early Termination. If an Early Termination Date occurs,
the following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the
parties fail to designate a payment measure or payment method in the
Schedule, it will be deemed that "Market Quotation" or the "Second Method",
as the case may be, shall apply. The amount, if any, payable in respect of
an Early Termination Date and determined pursuant to this Section will be
subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default --
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the Non-
defaulting Party the excess, if a positive number, of (A) the sum
of the Settlement Amount (determined by the Non-defaulting Party)
in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the Non-
defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's Loss in respect of
this Agreement.
(3) Second Method and Market Quotation. If the Second Method
and Market Quotation apply, an amount will be payable equal to
(A) the sum of the Settlement Amount (determined by the
9
Non-Defaulting Party) in respect of the Terminated Transactions
and Termination Currency Equivalent of the Unpaid Amounts owing
to the Non-defaulting Party less (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party.
If that amount is a positive number, the Defaulting Party will
pay it to the Non-defaulting Party; if it is a negative number,
the Non-defaulting Party will pay the absolute value of that
amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss
apply, an amount will be payable equal to the Non-defaulting
Party's Loss in respect of this Agreement. If that amount is a
positive number, the Defaulting Party will pay it to the Non-
defaulting Party; if it is a negative number, the Non-defaulting
Party will pay the absolute value of that amount to the
Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event: --
(1) One Affected Party. If there is one Affected Party, the
amount payable will be determined in accordance with Section
6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4),
if Loss applies, except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party will be deemed
to be references to the Affected Party and the party which is not
the Affected Party, respectively, and, if Loss applies and fewer
than all the Transactions are being terminated, Loss shall be
calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: --
(A) if Market Quotation applies, each party will determine
a Settlement Amount in respect of the Terminated
Transactions, and an amount will be payable equal to (f) the
sum of (1) one-half of the difference between the Settlement
Amount of the party with the higher Settlement Amount ("X")
and the Settlement Amount of the party with the lower
Settlement Amount ("Y") and (b) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (II) the
Termination Currency Equivalent of the Unpaid Amounts owing
to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with
the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X;
if it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an
Early Termination Date occurs because "Automatic Early Termination"
applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are appropriate
and permitted by law to reflect any payments or deliveries made by one
party to the other under this Agreement (and retained by such other
party) during the period from the relevant Early Termination Date to
the date (or payment determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies
an amount recoverable under this Section 6(e) is a reasonable pre-
estimate of loss and not a penalty. Such amount is payable for the
loss of bargain and the loss of protection against future risks and
except as otherwise provided in this Agreement neither party will be
entitled to recover any additional damages as a consequence of such
losses.
10
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of
the other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of
all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in
any amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be
void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this
Agreement will be made in the relevant currency specified in this Agreement
for that payment (the "Contractual Currency"). To the extent permitted by
applicable law, any obligation to make payments under this Agreement in the
Contractual Currency will not be discharged or satisfied by any tender in
any currency other than the Contractual Currency, except to the extent such
tender results in the actual receipt by the party to which payment is owed
acting in a reasonable manner and in good faith in converting the currency
so tendered into the Contractual Currency, of the full amount in the
contractual Currency of all amounts payable in respect of this Agreement.
If for any reason the amount in the Contractual Currency so received falls
short of the amount in the Contractual Currency payable in respect of this
Agreement, the party required to make the payment will, to the extent
permitted by applicable law, immediately pay such additional amount in the
Contractual Currency as may be necessary to compensate for the shortfall.
If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount
of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment
or order expressed in a currency other than the contractual Currency is
rendered (i) for the payment of any amount owing in respect of this
Agreement, (ii) for the payment of any amount relating to any early
termination in respect of this Agreement or (iii) in respect of a judgment
or order of another court for the payment of any amount described in (i) or
(ii) above, the party seeking recovery, after recovery in full of the
aggregate amount to which such party is entitled pursuant to the judgment
or order, will be entitled to receive immediately from the other party the
amount of any shortfall of the Contractual Currency received by such party
as a consequence of sums paid in such other currency and will refund
promptly to the other party any excess of the Contractual Currency received
by such party as a consequence of sums paid in such other currency if such
shortfall or such excess arises or results from any variation between the
rate of exchange at which the Contractual Currency is converted into the
currency of the judgment or order for the purposes of such judgment or
order and the rate of exchange at which such party is able, acting in a
reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with
the amounts of the currency of the judgment or order actually received by
such party. The term "rate of exchange" includes, without limitation, any
premiums and costs of exchange payable in connection with the purchase of
or conversion into the Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law,
these indemnities constitute separate and independent obligations from the
other obligations in this Agreement, will be enforceable as separate and
independent causes of action, will apply notwithstanding any indulgence
granted by the party to which any payment is owed and will not be affected
by judgment being obtained or claim or proof being made for any other sums
payable in respect of this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be
sufficient for a party to demonstrate that it would have suffered a loss
had an actual exchange or purchase been made.
11
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and
supersedes all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing
evidenced by a facsimile transmission) and executed by each of the parties
or confirmed by an exchange of telexes or electronic messages on an
electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive
the termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the
rights, powers, remedies and privileges provided in this Agreement are
cumulative and not exclusive of any rights, powers, remedies and privileges
provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be deemed an
original.
(ii) The parties intend that they are legally bound by the terms of
each Transaction from the moment they agree to those terms (whether
orally or otherwise). A Confirmation shall be entered into as soon as
practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of
telexes or by an exchange of electronic messages on an electronic
messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that
any such counterpart, telex or electronic message constitutes a
Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right,
power or privilege in respect of this Agreement will not be presumed to
operate as a waiver, and a single or partial exercise of any right, power
or privilege will not be presumed to preclude any subsequent or further
exercise, of that right, power or privilege or the exercise of any other
right, power or privilege.
(g) Headings. The hearings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken
into consideration in interpreting this Agreement.
10. Offices: Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party
that enters into a Transaction through an Office other than its head or
home office represents to the other party that, notwithstanding the place
of booking office or jurisdiction of incorporation or organization of such
party, the obligations of such party are the same as if it had entered into
the Transaction through its head or home office. This representation will
be deemed to be repeated by such party on each date on which a Transaction
is entered into.
(b) Neither party may change the Office through which it makes and
receives payments or deliveries for the purpose of a Transaction without
the prior written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office
through which it makes and receives payments or deliveries with respect to
a Transaction will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other
party for and against all reasonable out-of-pocket expenses, including
legal fees and Stamp Tax, incurred by such other party by reason of the
enforcement and protection of its rights under this Agreement or any Credit
Support Document
12
to which the Defaulting Party is a party or by reason of the early
termination of any Transaction, including, but not limited to, costs of
collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice
or other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated: --
(i) if in writing and delivered in person or by courier, on the date
it is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that
transmission is received by a responsible employee of the recipient in
legible form (it being agreed that the burden of proving receipt will
be on the sender and will not be met by a transmission report
generated by the sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that
electronic message is received.
unless the date of that delivery (or attempted delivery) or that receipt,
as applicable, is not a Local Business Day or that communication is
delivered (or attempted) or received, as applicable, after the close of
business on a Local Business Day, in which case that communication shall be
deemed given and effective on the first following day that is a Local
Business Day.
(b) Change of Addresses. Either party may by notice to the other change
the address, telex or facsimile number or electronic messaging system
details at which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and consorted in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings
relating to this Agreement ("Proceedings"), each party irrevocably: --
(i) submits to the jurisdiction of the English courts, if this
Agreement is expressed to be governed by English law, or to the non-
exclusive jurisdiction of the courts of the State of New York and the
United States District Court located in the Borough of Manhattan in
New York City, if this Agreement is expressed to be governed by the
laws of the State of New York; and
(ii) waives any objections which it may have at any time to the laying
of venue of any Proceedings brought in any such court, waives any
claim that such Proceedings have been brought in an inconvenient forum
and further waives the right to object, with respect to such
Proceedings, that such court does not have any jurisdiction over such
party.
Nothing in this Agreement precludes either party from bringing Proceedings
in any other jurisdiction (outside, if this Agreement is expressed to be
governed by English law, the Contracting States, as defined in Section 1(3)
of the Civil Jurisdiction and Judgments ▇▇▇ ▇▇▇▇ or any modification,
extension or for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent
(if any) specified opposite its name in the Schedule to receive, for it and
on its behalf, services of process in any Proceedings. If for any
13
reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute
process agent acceptable to the other party. The parties irrevocably
consent to service of process given in the manner provided for notices in
Section 12. Nothing in this Agreement will affect the right of either
party to serve process in any other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its revenues
and assets (irrespective of their use or intended use), all immunity on the
grounds of sovereignty or other similar grounds from (I) suit, (ii)
jurisdiction of any court, (iii) relief by way of injunction, order for
specific performance or for recovery of property, (iv) attachment of its
assets (whether before or after judgment) and (v) execution of enforcement
of any judgment to which it or its revenues or assets might otherwise be
entitled in any Proceedings in the courts of any jurisdiction and
irrevocably agrees, to the extent permitted by applicable law, that it will
not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement: --
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a)A with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b)
with respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, director or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose,
"control" of any entity or person means ownership of a majority of the
voting power of the entity or person.
"Applicable Rate" means: --
(a) in respect of obligations payable or deliverable (or which would have
been but for Section 2(a)(iii) by a Defaulting Party, the Default Rate:
(b) in respect of an obligation to pay an amount under Section 6(e) of
either party from and after the date (determined in accordance with Section
6(d)(ii)) on which that amount is payable, the Default Rate:
(c) in respect of all other obligations payable or deliverable (or which
would have been but for Section 2(a)(ii) by a Non-defaulting Party, the Non-
default Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or after
the date on which the relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorization, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is
specified as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if
it were to fund or of funding the relevant amount plus 1% per annum.
14
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with
Section 6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be
imposed in respect of a payment under this Agreement but for a present or
former connection between the jurisdiction of the government or taxation
authority imposing such Tax and the recipient of such payment or a person
related to such recipient (including, without limitation, a connection
arising from such recipient or related person being or having been a
citizen or resident of such jurisdiction, or being or having been
organized, present or engaged in a trade or business in such jurisdiction,
or having or having had a permanent establishment or fixed place of
business in such jurisdiction, but excluding a connection arising solely
from such recipient or related person having executed, delivered, performed
its obligations or received a payment under, or enforced, this Agreement or
a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the
case of tax matters, by the practice of any relevant governmental revenue
authority) and "lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) (a) in relation to any obligation
under Section 2(a)(I), in the place(s) specified in the relevant
confirmation or, if not so specified, as otherwise agreed by the parties in
writing or determined pursuant to provisions contained, or incorporated by
reference, in this Agreement, (b) in relation to any other payment, in the
place where the relevant account is located and, if different, in the
principal financial center, if any, of the currency of such payment, (c) in
relation to any notice or other communication, including notice
contemplated under Section 5(a)(I), in the city specified in the address
for notice provided by the recipient and, in the case of a notice
contemplated by Section 2(b), in the place where the relevant new account
is to be located and (d) in relation to Section 5(a)(v)(2), in the relevant
locations for performance with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one of more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to
be its total losses and costs (or gain, in which case expressed as a
negative number) in connection with this Agreement or that Terminated
Transaction or group of Terminated Transactions, as the case may be,
including any loss of bargain, cost of funding or, at the election of such
party but without duplication, loss or cost incurred as a result of its
terminating, liquidating, obtaining or reestablishing any hedge or related
trading position (or any gain resulting from any of them). Loss includes
losses and costs (or gains) in respect of any payment or delivery required
to have been made (assuming satisfaction of each applicable condition
precedent) on or before the relevant Early Termination Date and not made,
except, so as to avoid duplication, if Section 6(e)(i)(1) or (3) or
6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and out-
of-pocket expenses referred to under Section 11. A party will determine
its Loss as of the relevant Early Termination Date, or, if that is not
reasonably practicable, as of the earliest date thereafter as is reasonably
practicable. A party may (but need not) determine its Loss by reference to
quotations of relevant rates or prices from one or more leading dealers in
the relevant markets.
"Market Quotation" means, with respect to one or more Terminated
Transactions and a party making the determination, an amount determined on
the basis of quotations from Reference Market-makers. Each quotation will
be for an amount, if any, that would be paid to such party (expressed as a
negative number) or by such party (expressed as a positive number) in
consideration of an agreement between such party (taking into account any
existing Credit Support Document with respect to the obligations of such
party) and the quoting Reference Market-maker to enter into a transaction
(the "Replacement Transaction") that would have the effect of preserving
for such party the economic equivalent of any payment or delivery (whether
the underlying obligation was absolute or contingent and assuming the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(I) in respect of such Terminated Transaction or group of
Terminated Transactions that would, but for the occurrence of the relevant
Early Termination Date,
15
have been required after that date. For this purpose, Unpaid Amounts in
respect of the Terminated Transaction or group of Terminated Transactions
are to be excluded but, without limitation, any payment or delivery that
would, but for the relevant Early Termination Date, have been required
(assuming satisfaction of each applicable condition precedent) after that
Early Termination Date is to be included. The Replacement Transaction
would be subject to such documentation as such party and the Reference
Market-maker may, in good faith, agree. The party making the determination
(or its agent) will request each Reference Market-maker to provide its
quotation to the extent reasonably practicable as of the same day and time
(without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as
of which those quotations are to be obtained will be selected in good faith
by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than
three quotations are provided, the Market Quotation will be the arithmetic
mean of the quotations, without regard to the quotations having the highest
and lowest values. If exactly three such quotations are provided, the
Market Quotation will be the quotation remaining after disregarding the
highest and lowest quotations. For this purpose, if more than one
quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If fewer than three quotations are
provided, it will be deemed that the Market Quotation in respect of such
Terminated Transaction or group of Terminated Transactions cannot be
determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof
or evidence of any actual cost) to the Non-defaulting Party (as certified
by it) if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's
head or home office.
"Potential Event of Default" means any event which, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria
that such party applies generally at the time in deciding whether to offer
or to make an extension of credit and (b) to the extent practicable, from
among such dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions
(a) in which the party is incorporated, 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.
"Scheduled Payment Date" means a date on which a payment or delivery is to
be made under Section 2(a)(i) with respect to a Transaction.
"set-off" means set-off, offset, combination of accounts, right of
retention or withholding or similar right or requirement to which the payer
of an amount under Section 6 is entitled or subject (whether arising under
this Agreement, another contract, applicable law or otherwise) that is
exercised by, or imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early
Termination Date, the sum of: --
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference
to any Unpaid Amounts) for each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation cannot be determined
or would not (in the reasonable belief of the party making the
determination) produce a commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
16
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety
or otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter
entered into between one party to this Agreement (or any Credit Support
Provider of such party or any applicable Specified Entity of such party)
and the other party to this Agreement (or any Credit Support Provider of
such other party or any applicable Specified Entity of such other party)
which is a rate swap transaction, basis swap, forward rare transaction,
commodity swap, commodity option, equity or equity index swap, equity or
equity index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect
to any of these transactions), (b) any combination of these transactions
and (c) any other transaction identified as a Specified Transaction in this
Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including interest, penalties and
additions thereto) that is imposed by any government or other taxing
authority in respect of any payment under this Agreement other than a
stamp, registration, documentation or similar tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date
(a) if resulting from a Termination Event, all Affected Transactions and
(b) if resulting from an Event of Default, all Transactions (in either
case) in effect immediately before the effectiveness of the notice
designating that Early Termination Date (or, if "Automatic Early
Termination" applies, immediately before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount
denominated in the Termination Currency, such Termination Currency amount
and, in respect of any amount denominated in a currency other than the
Termination Currency (the "Other Currency"), the amount in the Termination
Currency determined by the party making the relevant determination as being
required to purchase such amount of such Other Currency as at the relevant
Early Termination Date, or, if the relevant Market Quotation or Loss (as
the case may be), is determined as of a later date, that later date, with
the Termination currency at the rate equal to the spot exchange rate of the
foreign exchange agent (selected as provided below) for the purchase of
such Other Currency with the Termination Currency at or about 11:00 a.m.
(in the city in which such foreign exchange agent is located) on such date
as would be customary for the determination of such a rate for the purchase
of such Other Currency for value on the relevant Early Termination Date or
that later date. The foreign exchange agent will, if only one party is
obliged to make a determination under Section 6(e), be selected in good
faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon
Merger or, if specified to be applicable Credit Event Upon Merger or an
Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of
the cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have become
payable but for Section 2(a)(ii9) to such party under Section 2(a)(i) on or
prior to such Early Termination Date and which remain unpaid as at such
Early Termination Date and (b) in respect of each Terminated Transaction,
for each obligation under Section 2(a)(i) which was (or would have been but
for Section 2(a)(iii) required to be settled by delivery to such party on
or prior to such Early Termination Date and which has not been so settled
as at such Early Termination Date, an amount equal to the fair market
17
value of that which was (or would have been) required to be delivered as of
the originally scheduled date for delivery, in each case together with (to
the extent permitted under applicable law) interest, in the currency of
such amounts, from (and including) the date such amounts or obligations
were or would have been required to have been paid or performed to (but
excluding) such Early Termination Date, at the Applicable Rate. Such
amounts of interest will e calculated on the basis of daily compounding and
the actual number of days elapsed. The fair market value of any obligation
referred to in clause (b) above shall be reasonably determined by the party
obliged to make the determination under Section 6(e) or, if such party is
so obliged, it shall be the average of the Termination Currency Equivalents
of the fair market values reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the
respective dates specified below with effect from the date specified on the
first page of this document.
Credit Suisse, New York Branch NGR Generating (Newark)
Cogeneration Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Associate Title: President
Date: Date: 8-8-96
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Associate
Date:
NGR Generating (▇▇▇▇▇▇)
Cogeneration Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Date: 8-8-96
18
SCHEDULE to the MASTER AGREEMENT
dated as of August 2, 1996 between
CREDIT SUISSE acting through its
New York Branch ("Party A") and
NGR GENERATING (NEWARK) COGENERATION INC.
and NGR GENERATING (▇▇▇▇▇▇) COGENERATION INC.
(collectively, "Party B")
PART 1 Termination Provisions and Certain Other Matters
(a) "Specified Entity" means, in relation to Party A, for the
purpose of:
Section 5(a)(v), none;
Section 5(a)(vi), none;
Section 5(a)(vii), none; and
Section 5(b)(iv), none;
and in relation to Party B, for the purpose of:
Section 5(a)(v), none;
Section 5(a)(vi), none;
Section 5(a)(vii), none; and
Section 5(b)(iv), none.
(b) "Specified Transaction" will have the meaning specified in
Section 14, which meaning specified in Section 14, which meaning shall be
limited to "Interest RateHedge Agreements" (as defined in the Credit
Agreement (as defined in Park 4(k) of this Schedule)).
(c) The "Cross-Default" provisions of Section 5(a)(vi) of this
Agreement will not apply to Party A. The "Cross-Default" provisions of
Section 5(a)(vi) of this Agreement will apply to Party B. In connection
therewith, "Specified Indebtedness" means all "Obligations", means $100,000
(or its "Equivalent"), as defined in the Credit Agreement).
(d) The "Credit Support Default" provisions of Section 5(a)(iii)
of this Agreement shall apply.
(e) The "Credit Event Upon Merger" provisions of Section
5(b)(iv) of this Agreement will not apply to Party A. The "Credit Event
Upon Merger" provisions of Section 5(b)(iv) will apply to Party B.
(f) The "Automatic Early Termination" provision of Section 6(a)
will not apply to Party A and Party B.
(g) Payments on Early Termination. For the purpose of Section
6(e):
(i) Market Quotation.
(ii) The Second Method will apply.
(h) "Termination Currency" means United States Dollars.
(i) Additional Termination Events. The following shall
constitute Additional Termination Event.
(i) It shall constitute an Additional Termination Event
under this Agreement if (1) the Credit Agreement shall have expired or
terminated or shall have otherwise ceased to be in full force and
effect (other than as a result of an Event of Default (as such term is
defined in the Credit Agreement) with respect to Party B (in which
event Party B will be the Affected Party), or (2) Party B shall cease
to be a party to the Credit Agreement (in which event Party B will be
the Affected Party).
(ii) It shall also constitute an Additional Termination
Event under this Agreement if due to the occurrence of a natural or
man-made disaster, armed conflict, act of terrorism, riot, labor
disruption or any other circumstance beyond its control after the date
on which a Transaction is entered into, it becomes impossible (an
"Impossibility"), (other than as a result of its own misconduct) for
such a party (which will be the Affected Party):
(1) to perform any absolute or contingent obligation, to
make a payment or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other material
provision of this Agreement relating to such Transaction; or
2
(2) to perform, or for any Credit Support Provider of such
party to perform, any contingent or other obligation which the
party (or such Credit Support Provider) has under any Credit
Support Document relating to such Transaction. An Impossibility
shall be treated as an Illegality for all purposes of this
Agreement.
(j) Partial Termination. The aggregate notional amount of all
Transactions may be reduced as set forth in Section 5.5(b) of the Credit
Agreement. In the event of any such reduction, Party B will be deemed to
have designated an Early Termination Date only with respect to the amount
by which the Notional Amounts are so reduced on the date of such partial
prepayment. In any such event, Party B shall be the Affected Party.
3
PART 2: Tax Representations
Payer Tax Representation. For the purpose of Section 3(e), each
of Party A and Party B will make the following representation:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of any
Relevant Jurisdiction to make any deduction or withholding for or on
account of any Tax from any payment (other than interest under Section
2(e), 6(d) or 6(e)) to be made by it to the other party under this
Agreement. In making this representation, it may rely on:
(i) the accuracy of any representation made by the other
party pursuant to Section 3(f);
(ii) the satisfaction of the agreement of the other party
contained in Section 4(a)(iii) and the accuracy and effectiveness
of any document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii); and
(iii) the satisfaction of the agreement of the other
party contained in Section 4(d); provided that it shall not be a
breach of this representation where reliance is placed on clause
(ii) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of a material prejudice to its
legal or commercial position.
Payee Tax Representations. For the purpose of Section 3(f),
Party A shall make the following representation:
Each payment received or to be received by it in connection with
this Agreement will be effectively connected with its conduct of a trade or
business in the United States.
Party B makes no representations.
4
PART 3: Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement,
each party agrees to deliver the following documents:
(a) Tax forms, documents or certificates to be delivered are:
Party required to Form/Document/ Date by which
deliver document Certificate to be delivered
Party A An Internal Revenue (A) Before the
Service form 4224 or First Scheduled
any successor form Payment Date; (B)
to such Form 4224, promptly upon
completed in a reasonable demand by
manner reasonably Party B; and (C)
satisfactory to promptly upon
Party B learning that any
Form 4224 or any
successor form to
such Form 4224
previously provided
by Party A become
obsolete or
incorrect
For purposes of Section 2(d)(i)(4)(A), Party A shall be deemed to
have failed to comply with Section 4(a)(i) if the Internal Revenue Service
Form 4224 (or any successor form) delivered to Party B is or becomes
incomplete, obsolete or incorrect until such time as (i) Party A delivers a
new tax form as required by Section 4(a)(i) or (ii) such previously
delivered tax form is no longer incomplete, obsolete or incorrect.
(b) Other documents to be delivered are:
Party required Date by which Covered by
to Form/Document/ to be Section 3(d)
Deliver Certificate delivered Representation
document
Party B Opinion of Upon execution No
counsel and delivery
satisfactory to of this
Party A Agreement
Party B Certified Upon execution Yes
copies of all and delivery
corporate of this
authorizations Agreement
and any other
documents with
respect to the
execution,
delivery and
performance of
this Agreement.
5
Party B Certificate of Upon execution Yes
authority and and delivery
specimen of this
signatures of Agreement and
individuals thereafter
executing this upon request
Agreement and of Party A
Confirmations
6
PART 4: Miscellaneous
(a) Address for Notices. For the purpose of Section 12(a) of
this Agreement.
Address for notice or communications to Party A:
Any notice shall be delivered to the address or facsimile or
telex number specified in the relevant Confirmation of a Transaction.
For purposes of Section 5 and 6 of this Agreement, any notice shall
also be delivered to the following address:
Credit Suisse, New York Branch
Tower 49
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Project Finance
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Address for notice of communications to Party B:
NRG Generating (Newark) Cogeneration Inc.
NRG Generating (▇▇▇▇▇▇) Cogeneration Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Process Agent. For the purpose of Section 1(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: See Section 5(j) of this
Schedule.
(c) Offices. This provisions of Section 10(a) will not apply to
this Agreement.
(d) Multibranch Party. For the purpose of Section 10 of this
Agreement.
Party A is not a Multibranch Party.
7
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A, unless
otherwise specified in a Confirmation in relation to the relevant
Transaction.
(f) Credit Support Provider. Details of any Credit Support
Document:
Each of the "Security Documents" (as defined in the Credit
Agreement), together with any and all other documents which by their
terms secure, guarantee or otherwise support Party B's obligations
hereunder from time to time, shall be Credit Support Documents for the
benefit of Party A.
(g) Credit Support Provider. None.
(h) Governing Law. This Agreement is a contract made under the
laws of the State of New York of the United States and for all
purposes shall be governed by and construed in accordance with the
laws of such State without regard to any conflicts of laws provisions
thereof.
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) will
not apply to any Transaction unless specified in the relevant
Confirmation.
(j) "Affiliate" will have the meaning specified in Section 14 of
this Agreement.
(k) "Credit Agreement" shall mean the Credit Agreement, dated as
of May 17, 1996, among Party B, Party A, as a lender and Agent for the
benefit of the Secured Parties, Greenwich Funding Corporation as a
Lender and any Purchasing Lender thereunder, as the same may be
amended, supplemented or modified from time to time.
8
PART 5: Other Provisions
(a) Set off; Counterclaim. In addition to the provisions set
forth in Section 8.8 of the Credit Agreement, without affecting the
provisions of this Agreement requiring the calculation of certain net
payment amounts, all payments under this Agreement shall be made without
set off or counterclaim and will not be subject to any conditions except as
provided in Section 2 and 6(c) of this Agreement and except if Party B is a
Defaulting Party and Party A is a Noon-defaulting Party, Party A will have
the right to set off, counterclaim or withhold payment of any obligation,
whether matured or unmatured, under this Agreement or any other agreement
between or involving the parties against any payment or performance of any
obligation, whether matured or unmatured, of Party A under this Agreement
or any other agreement between or involving the parties or their Affiliates
regardless of the office or branch through which a party is acting, and
Party A's obligations hereunder or thereunder to Party B shall be deemed to
be satisfied and discharged to the extent of such set off, counterclaim or
withholding.
(b) Notice of Facsimile Transmission. Section 12(a) is hereby
amended by inserting the words "or 13(c)" between the number "6" and the
word "may" in the second line thereof.
(c) Additional Events of Default. With respect to Party B only,
it shall constitute an Event of Default under the Agreement if an Event of
Default, as such term is defined in the Credit Agreement, shall occur and
be continuing.
(d) Further Agreements of Party B. Party B agrees with Party A
that, so long as it has or may have any obligation under this Agreement, it
will comply with the covenants set forth in the Credit Agreement and
Financing Documents (as defined in the Credit Agreement), to which it is a
party.
(e) Further Representations. In addition to the representations
contained in Section 3, Party B represents to Party A (which
representations will be deemed to be repeated by Party B on each date on
which a Transaction is entered into) that each of the representations and
warranties contained in Article IV of the Credit Agreement are true and
correct.
9
(f) Interest Rate Hedge Agreement. The parties hereto
acknowledge and agree that the Schedule and any confirmation and the
Agreement of which it forms a part shall constitute an "Interest Rate Hedge
Agreement", as such term is defined in the Credit Agreement, and Party A is
and shall be deemed, and shall be entitled to the benefits and security
accruing to, a party to such an Interest Rate Hedge Agreement and a
"Secured Party" under the Credit Support Documents and the other Financing
Documents, in each case to the extent expressly set forth therein.
(g) Application of Payments. Section 2 of this Agreement is
hereby amended to insert the following clause (f) thereto:
"(f) With respect to Party B only, Party B agrees (1) to
apply any payments made by Party A to Party B on any Scheduled
Payment Date (after giving effect to the netting provisions of
Section 2(c) of this Agreement) to the payment of interest then
due or soon to become due, on the relevant due date, under the
Dollar Loan Notes (as defined under the Credit Agreement) or any
instrument that replaces the Dollar Loan Notes and to any other
Obligations under the Credit Agreement then due or soon to become
due on the relevant due date under the Credit Agreement and (2)
that, if any such interest or other Obligation is due and owing
on a date on which Party A is obligated to make a payment
hereunder to Party B and if an Event of Default has occurred and
is continuing under the Credit Agreement, Party A shall make any
payment to the Agent (as defined in the Credit Agreement)."
(h) Submission to Jurisdiction.
(i) Any legal action or proceeding against Party B with
respect to this Agreement and any Credit Support Document or the
transactions in connection with or relating hereto or thereto,
may be brought in the courts of the State of New York in the
County of New York or of the United States for the Southern
District of New York and, by execution and delivery of this
Agreement, Party B hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Party B agrees that a
judgment, after exhaustion of all available appeals, in any such
action or proceeding shall conclusive and binding upon
10
Party B, and may be enforced in any other jurisdiction, including
without limitation Chile, by a suit upon such judgment, a
certified copy of which shall be conclusive evidence of the
judgment.
(ii) Party B hereby irrevocably designates, appoints and
empowers CT Corporation System, Inc. (the "Process Agent"), with
offices on the date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
as its designee, appointee and agent to receive and accept
service of any and all legal process, summons, notices and
documents arising out of this Agreement. If for any reason such
designee, appointee and agent shall cease to be available to act
as such, Party B agrees to designate a new designee, appointee
and agent in New York City on the terms and for the purposes of
this provision satisfactory to Party A. Party B further
irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail,
postage prepaid, to such Borrower, at its respective addresses
set forth herein such service to become effective 30 days after
such mailing. Nothing herein shall affect the right of Part A to
serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against Party B in any
other jurisdiction.
(iii) Party B hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any
of the aforesaid actions or proceedings arising out of or in
connection with this Agreement or any Credit Support Document or
the transactions in connection with, or relating hereto or
thereto brought in the courts referred to in clause (i) above and
hereby further irrevocably waives and agrees not to plead or
claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient
forum.
(iv) WITH REGARD TO THIS AGREEMENT AND THE CREDIT SUPPORT
DOCUMENTS TO WHICH IT IS A PARTY, EACH OF THE PARTIES HERETO
WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
AND FOR ANY COUNTERCLAIM THEREIN.
(v) Party A and Party B agree, regardless of cause, not to
assert any claim whatsoever against the
11
other party for loss of anticipatory profits or consequential
damages.
(j) Confirmations. Notwithstanding anything to the contrary in
the Agreement:
(i) The parties hereto agree that with respect to each
Transaction hereunder a legally binding agreement shall exist
from the moment that the parties hereto agree on the essential
terms of such Transaction, which the parties anticipate will
occur by telephone.
(ii) For each Transaction Party A and Party B agree to enter
into hereunder, Party A shall promptly send to Party B a
Confirmation, setting forth the terms of such Transaction. Party
B shall execute and return the Confirmation to Party A or request
correction of any error within three Business Days of receipt.
Failure of Party B to respond within such period shall not affect
the validity of enforceability of such Transaction and shall be
deemed to be an affirmation of such terms.
(k) ISDA Definitions. Unless otherwise specified in a
Confirmation, this Agreement incorporates, and is subject to and
governed by the 1991 ISDA Definitions (the "1991 Definitions")
published by the International Swap Dealers Association Inc. ("ISDA").
In the event of any inconsistency among the provisions of this
Agreement and the 1991 Definitions, this Agreement will prevail.
(l) Transfers. The parties agree that Party A may transfer its
rights and obligations under this Agreement (with such modifications
and representations relating to Taxes as shall be reasonably requested
by Party B to preserve the position of Party B), in whole but not in
part, to any other Affiliate of Party A with a guarantee by Party A or
to any other branch or agency of Credit Suisse, provided that such
assignment will not give rise to a Termination Event or an Event of
Default with respect to such assignee of Party A or to Party B.
Additionally, notwithstanding the provisions of Section 12 of this
Agreement, Party A may sell and assign one or more participation
interests in one or more Transactions.
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(m) Section 3. Section 3 of the Agreement is hereby amended by
adding at the end thereof the following subsections (g) and (h):
(g) Eligible Swap Participant. It is an "eligible swap
participant" as that term is defined by the Commodity Futures Trading
Commission at 17 C.F.R. 35.1(b)(2).
(h) No Reliance, etc. (i) the other party hereto is not
acting as a fiduciary or financial or investment advisor for it; (ii)
it is not relying (for purposes of making any investment decision or
otherwise) upon any advice, counsel or representations (whether
written or oral) of the other party hereto; (iii) the other party
hereto has not given to it (directly or indirectly through any other
person) any assurance, guarantee, or representation whatsoever as to
the expected or projected success, profitability, return, performance,
result, effect, consequence, or benefit (either legal, regulatory,
tax, financial, accounting, or otherwise) of this transaction; (iv) it
has consulted with its own legal, regulatory, tax business,
investment, financial and accounting and other advisors to the extent
it has deemed necessary, and it has made its own investment, hedging
and trading decisions (including decisions regarding transaction)
based upon its own judgment and upon any advice from such advisors as
it has deemed necessary and not upon any view expressed by the other
party hereto; and (v) it is entering into this transaction and any
other documentation relating hereto with a full understanding of all
of the terms, conditions and risks hereof and thereof (economic and
otherwise) and it is capable of assuming and willing to assume
(financially and otherwise) those risks.
(n) Escrow Payments. If by reason of the time difference
between the cities in which payments are to be made, it is not possible for
simultaneous payments to be made on any date on which both parties are
required to make payments hereunder, either party may at its option and in
its sole discretion notify the other party at its option and in its sole
discretion notify the other party that payments on that date are to be made
in escrow. In this case deposit of the payment due earlier on that date
shall be made by 2:00 p.m. (local time at the place for earlier payment) on
that date with an escrow agent selected by the party giving the notice,
accompanied by irrevocable payment
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instructions (i) to release the deposited payment to the intended recipient
upon receipt by the escrow agent of the required deposit of the
corresponding payment from the other party o the same date accompanied by
irrevocable payment instructions to the same effect or (ii) if the required
deposit of the corresponding payment is not made on that same date, to
return the payment deposited to the party that paid it into escrow. The
party that elects to have payments made in escrow shall pay the costs of
the escrow arrangements and shall cause those arrangements to provide that
the intended recipient of the payment due to be deposited first shall be
entitled to interest on that deposited payment for each day in the period
of its deposit at the rate offered by the escrow agent for that day for
overnight deposits in the relevant currency in the office where it holds
that deposited payment (at 11:00 a.m. local time on that day) if that
payment is not released by 5:00 p.m. local time on the date it is deposited
for any reason other than the intended recipient's failure to make the
escrow deposit it is required to make hereunder in a timely fashion.
(o) Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of the
Agreement or affecting the validity or enforceability of such provision in
any other jurisdiction. The parties hereto shall endeavor in good faith
negotiations to replace the prohibited or unenforceable provision with a
valid provision, the economic effect of which comes as close as possible to
that of the prohibited or enforceable provision.
(p) Telephonic Recording. The parties agree that, with respect
to Transactions, each party may electronically record all telephonic
conversations between them and that any such tape recordings may be
submitted in evidence to any court or in any proceedings relating to this
Agreement.
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(q) Joint and Several Obligations. The obligations of each of
the two counterparties collectively referred to herein as Party B are joint
and several. References to "Party B, "it" and similar terms when used in
this Agreement shall be deemed to refer NRG Generating (Newark)
Cogeneration Inc. and NRG Generating (▇▇▇▇▇▇) Cogeneration Inc. both
singularly and collectively.
Accepted and agreed:
CREDIT SUISSE, NRG GENERATING (NEWARK)
acting through its New York COGENERATION INC.
Branch
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Title: President
Title: Associate
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇ Title: President
Title: Associate
15
