exv10w6



 





Exhibit 10.6




ISDA®




International Swaps and Derivatives Association, Inc.




2002 MASTER AGREEMENT




dated as of February 22, 2007




STANDARD BANK PLC and GRAN TIERRA ENERGY INC.



have entered and/or anticipate entering into one or more transactions (each a “Transaction”) that
are or will be governed by this 2002 Master Agreement, which includes the schedule (the
“Schedule”), and the documents and other confirming evidence (each a “Confirmation”) exchanged
between the parties or otherwise effective for the purpose of confirming or evidencing those
Transactions. This 2002 Master Agreement and the Schedule are together referred to as this “Master
Agreement”.




Accordingly, the parties agree as follows:—



1. Interpretation



(a) Definitions. The terms defined in Section 14 and elsewhere in this Master Agreement will have
the meanings therein specified 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, 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.



ISDA® 2002




1









 






(iii) Each obligation of each party under Section 2(a)(i) is subject to (1) the condition
precedent that no Event of Default or Potential Event of Default with respect to the other
party has occurred and is continuing, (2) the condition precedent that no Early Termination
Date in respect of the relevant Transaction has occurred or been effectively designated and
(3) each other condition specified in this Agreement to be a condition precedent for the
purpose of this Section 2(a)(iii).


(b) Change of Account. Either party may change its account for receiving a payment or delivery by
giving notice to the other party at least five Local Business Days prior to the Scheduled
Settlement Date for the payment or delivery to which such change applies unless such other party
gives timely notice of a reasonable objection to such change.




(c) Netting of Payments. If on any date amounts would otherwise be payable:—




     (i) in the same currency; and



     (ii) in respect of the same Transaction,


by each party to the other, then, on such date, each party’s obligation to make payment of any such
amount will be automatically satisfied and discharged and, if the aggregate amount that would
otherwise have been payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party by which the larger
aggregate amount would have been payable to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount.



The parties may elect in respect of two or more Transactions that a net amount and payment
obligation will be determined in respect of all amounts payable on the same date in the same
currency in respect of those Transactions, regardless of whether such amounts are payable in
respect of the same Transaction. The election may be made in the Schedule or any Confirmation by
specifying that “Multiple Transaction Payment Netting” applies to the Transactions identified as
being subject to the election (in which case clause (ii) above will not apply to such
Transactions). If Multiple Transaction Payment Netting is applicable to Transactions, it will
apply to those Transactions with effect from the starting date specified in the Schedule or such
Confirmation, or, if a starting date is not specified in the Schedule or such Confirmation, the
starting date otherwise agreed by the parties in writing. This election may be made separately for
different groups of Transactions and will apply separately to each pairing of Offices through which
the parties make and receive payments or deliveries.



(d) Deduction or Withholding for Tax.





(i) Gross-Up. All payments under this Agreement will be made without any deduction or
withholding for or on account of any Tax unless such deduction or withholding is required by
any applicable law, as modified by the practice of any relevant governmental revenue
authority, then in effect. If a party is so required to deduct or withhold, then that party
(“X”) will:—




(1) promptly notify the other party (“Y”) of such requirement;




(2) pay to the relevant authorities the full amount required to be deducted or
withheld (including the full amount required to be deducted or withheld from any
additional amount paid by X to Y under this Section 2(d)) promptly upon the earlier
of determining that such deduction or withholding is required or receiving notice
that such amount has been assessed against Y;




(3) promptly forward to Y an official receipt (or a certified copy), or other
documentation reasonably acceptable to Y, evidencing such payment to such
authorities; and




(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the payment to
which Y is otherwise entitled under this Agreement, such additional amount as is
necessary to ensure that the net amount actually received by Y (free and clear of
Indemnifiable Taxes, whether assessed against



 









 







X or Y) will equal the full amount Y would have received had no such deduction or
withholding been required. However, X will not be required to pay any additional
amount to Y to the extent that it would not be required to be paid but for:—




(A) the failure by Y to comply with or perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d); or




(B) the failure of a representation made by Y pursuant to Section 3(f) to be
accurate and true unless such failure would not have occurred but for (I) any
action taken by a taxing authority, or brought in a court of competent
jurisdiction, after a Transaction is entered into (regardless of whether such
action is taken or brought with respect to a party to this Agreement) or (II)
a Change in Tax Law.



     (ii) Liability. If:—




(1) X is required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, to make any deduction or withholding in respect of
which X would not be required to pay an additional amount to Y under Section
2(d)(i)(4);




(2) X does not so deduct or withhold; and




(3) a liability resulting from such Tax is assessed directly against X,




then, except to the extent Y has satisfied or then satisfies the liability resulting from
such Tax, Y will promptly pay to X the amount of such liability (including any related
liability for interest, but including any related liability for penalties only if Y has
failed to comply with or perform any agreement contained in Section 4(a)(i), 4(a)(iii) or
4(d)).



3. Representations



Each party makes the representations contained in Sections 3(a), 3(b), 3(c), 3(d), 3(e) and 3(f)
and, if specified in the Schedule as applying, 3(g) to the other party (which representations will
be deemed to be repeated by each party on each date on which a Transaction is entered into and, in
the case of the representations in Section 3(f), at all times until the termination of this
Agreement). If any “Additional Representation” is specified in the Schedule or any Confirmation as
applying, the party or parties specified for such Additional Representation will make and, if
applicable, be deemed to repeat such Additional Representation at the time or times specified for
such Additional Representation.




(a) Basic Representations.





(i) Status. It is duly organised and validly existing under the laws of the jurisdiction of
its organisation or incorporation and, if relevant under such laws, in good standing;




(ii) Powers. It has the power to execute this Agreement and any other documentation
relating to this Agreement to which it is a party, to deliver this Agreement and any other
documentation relating to this Agreement that it is required by this Agreement to deliver
and to perform its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;




(iii) No Violation or Conflict. Such execution, delivery and performance do not violate or
conflict with any law applicable to it, any provision of its constitutional documents, any
order or judgment of any court or other agency of government applicable to it or any of its
assets or any contractual restriction binding on or affecting it or any of its assets;



 









 






(iv) Consents. All governmental and other consents that are required to have been obtained
by it with respect to this Agreement or any Credit Support Document to which it is a party
have been obtained and are in full force and effect and all conditions of any such consents
have been complied with; and




(v) Obligations Binding. Its obligations under this Agreement and any Credit Support
Document to which it is a party constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting creditors’ rights generally
and subject, as to enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in equity or at law)).


(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, any
of its Credit Support Providers or any of its applicable Specified Entities any action, suit or
proceeding at law or in equity or before any court, tribunal, governmental body, agency or official
or any arbitrator that is likely to affect the legality, validity or enforceability against it of
this Agreement or any Credit Support Document to which it is a party or its ability to perform its
obligations under this Agreement or such Credit Support Document.



(d) Accuracy of Specified Information. All applicable information that is furnished in writing by
or on behalf of it to the other party and is identified for the purpose of this Section 3(d) in the
Schedule is, as of the date of the information, true, accurate and complete in every material
respect.



(e) Payer Tax Representation. Each representation specified in the Schedule as being made by it
for the purpose of this Section 3(e) is accurate and true.



(f) Payee Tax Representations. Each representation specified in the Schedule as being made by it
for the purpose of this Section 3(f) is accurate and true.



(g) No Agency. It is entering into this Agreement, including each Transaction, as principal and
not as agent of any person or entity.



4. Agreements



Each party agrees with the other that, so long as either party has or may have any obligation under
this Agreement or under any Credit Support Document to which it is a party:—



(a) Furnish Specified Information. It will deliver to the other party or, in certain cases under
clause (iii) below, to such government or taxing authority as the other party reasonably directs:—





(i) any forms, documents or certificates relating to taxation specified in the Schedule or
any Confirmation;




(ii) any other documents specified in the Schedule or any Confirmation; and




(iii) upon reasonable demand by such other party, any form or document that may be required
or reasonably requested in writing in order to allow such other party or its Credit Support
Provider to make a payment under this Agreement or any applicable Credit Support Document
without any deduction or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or submission of such
form or document would not materially prejudice the legal or commercial position of the
party in receipt of such demand), with any such form or document to be



 









 







accurate and completed in a manner reasonably satisfactory to such other party and to be
executed and to be delivered with any reasonably required certification,


in each case by the date specified in the Schedule or such Confirmation or, if none is specified,
as soon as reasonably practicable.



(b) Maintain Authorisations. It will use all reasonable efforts to maintain in full force and
effect all consents of any governmental or other authority that are required to be obtained by it
with respect to this Agreement or any Credit Support Document to which it is a party and will use
all reasonable efforts to obtain any that may become necessary in the future.



(c) Comply With Laws. It will comply in all material respects with all applicable laws and orders
to which it may be subject if failure so to comply would materially impair its ability to perform
its obligations under this Agreement or any Credit Support Document to which it is a party.



(d) Tax Agreement. It will give notice of any failure of a representation made by it under Section
3(f) to be accurate and true promptly upon learning of such failure.



(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax levied or imposed upon
it or in respect of its execution or performance of this Agreement by a jurisdiction in which it is
incorporated, organised, managed and controlled or considered to have its seat, or where an Office
through which it is acting for the purpose of this Agreement is located (“Stamp Tax Jurisdiction”),
and will indemnify the other party against any Stamp Tax levied or imposed upon the other party or
in respect of the other party’s execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the other party.



5. Events 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 (subject to Sections 5(c) and 6(e)(iv)) an event of default (an “Event of
Default”) with respect to such party:—





(i) Failure to Pay or Deliver. Failure by the party to make, when due, any payment under
this Agreement or delivery under Section 2(a)(i) or 9(h)(i)(2) or (4) required to be made by
it if such failure is not remedied on or before the first Local Business Day in the case of
any such payment or the first Local Delivery Day in the case of any such delivery after, in
each case, notice of such failure is given to the party;




(ii) Breach of Agreement; Repudiation of Agreement.




(1) Failure by the party to comply with or perform any agreement or obligation
(other than an obligation to make any payment under this Agreement or delivery under
Section 2(a)(i) or 9(h)(i)(2) or (4) or to give notice of a Termination Event or any
agreement or obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied
with or performed by the party in accordance with this Agreement if such failure is
not remedied within 30 days after notice of such failure is given to the party; or




(2) the party disaffirms, disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, this Master Agreement, any Confirmation executed and
delivered by that party or any Transaction evidenced by such a Confirmation (or such
action is taken by any person or entity appointed or empowered to operate it or act
on its behalf);




(iii) Credit Support Default.




(1) Failure by the party or any Credit Support Provider of such party to comply with
or perform any agreement or obligation to be complied with or performed by it in
accordance with any



 









 







Credit Support Document if such failure is continuing after any applicable grace
period has elapsed;




(2) the expiration or termination of such Credit Support Document or the failing or
ceasing of such Credit Support Document, or any security interest granted by such
party or such Credit Support Provider to the other party pursuant to any such Credit
Support Document, to be in full force and effect for the purpose of this Agreement
(in each case other than in accordance with its terms) prior to the satisfaction of
all obligations of such party under each Transaction to which such Credit Support
Document relates without the written consent of the other party; or




(3) the party or such Credit Support Provider disaffirms, disclaims, repudiates or
rejects, in whole or in part, or challenges the validity of, such Credit Support
Document (or such action is taken by any person or entity appointed or empowered to
operate it or act on its behalf);




(iv) Misrepresentation. A representation (other than a representation under Section 3(e) or
3(f)) made or repeated or deemed to have been made or repeated by the party or any Credit
Support Provider of such party in this Agreement or any Credit Support Document proves to
have been incorrect or misleading in any material respect when made or repeated or deemed to
have been made or repeated;




(v) Default Under Specified Transaction. The party, any Credit Support Provider of such
party or any applicable Specified Entity of such party:—




(l) defaults (other than by failing to make a delivery) under a Specified
Transaction or any credit support arrangement relating to a Specified Transaction
and, after giving effect to any applicable notice requirement or grace period, such
default results in a liquidation of, an acceleration of obligations under, or an
early termination of, that Specified Transaction;




(2) defaults, after giving effect to any applicable notice requirement or grace
period, in making any payment due on the last payment or exchange date of, or any
payment on early termination of, a Specified Transaction (or, if there is no
applicable notice requirement or grace period, such default continues for at least
one Local Business Day);




(3) defaults in making any delivery due under (including any delivery due on the
last delivery or exchange date of) a Specified Transaction or any credit support
arrangement relating to a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, such default results in a liquidation
of, an acceleration of obligations under, or an early termination of, all
transactions outstanding under the documentation applicable to that Specified
Transaction; or




(4) disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges
the validity of, a Specified Transaction or any credit support arrangement relating
to a Specified Transaction that is, in either case, confirmed or evidenced by a
document or other confirming evidence executed and delivered by that party, Credit
Support Provider or Specified Entity (or such action is taken by any person or
entity appointed or empowered to operate it or act on its behalf);




(vi) Cross-Default. If “Cross-Default” is specified in the Schedule as applying to the
party, the occurrence or existence of:—




(l) a default, event of default or other similar condition or event (however
described) in respect of such party, any Credit Support Provider of such party or
any applicable Specified Entity of such party under one or more agreements or
instruments relating to Specified Indebtedness of any of them (individually or
collectively) where the aggregate principal amount of such agreements or
instruments, either alone or together with the amount, if any, referred to in clause
(2) below, is not less than the applicable Threshold Amount (as specified in the
Schedule) which has resulted in such Specified Indebtedness becoming, or becoming
capable at such time of being declared, due



 









 







and payable under such agreements or instruments before it would otherwise have been
due and payable; or




(2) a default by such party, such Credit Support Provider or such Specified Entity
(individually or collectively) in making one or more payments under such agreements
or instruments on the due date for payment (after giving effect to any applicable
notice requirement or grace period) in an aggregate amount, either alone or together
with the amount, if any, referred to in clause (1) above, of not less than the
applicable Threshold Amount;




(vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable
Specified Entity of such party:—




(l) is dissolved (other than pursuant to a consolidation, amalgamation or merger);
(2) becomes insolvent or is unable to pay its debts or fails or admits in writing
its inability generally to pay its debts as they become due; (3) makes a general
assignment, arrangement or composition with or for the benefit of its creditors;
(4)(A) institutes or has instituted against it, by a regulator, supervisor or any
similar official with primary insolvency, rehabilitative or regulatory jurisdiction
over it in the jurisdiction of its incorporation or organisation or the jurisdiction
of its head or home office, a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or other
similar law affecting creditors’ rights, or a petition is presented for its
winding-up or liquidation by it or such regulator, supervisor or similar official,
or (B) has instituted against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or other
similar law affecting creditors’ rights, or a petition is presented for its
winding-up or liquidation, and such proceeding or petition is instituted or
presented by a person or entity not described in clause (A) above and either (I)
results in a judgment of insolvency or bankruptcy or the entry of an order for
relief or the making of an order for its winding-up or liquidation or (II) is not
dismissed, discharged, stayed or restrained in each case within 15 days of the
institution or presentation thereof; (5) has a resolution passed for its winding-up,
official management or liquidation (other than pursuant to a consolidation,
amalgamation or merger); (6) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator, receiver, trustee, custodian or
other similar official for it or for all or substantially all its assets; (7) has a
secured party take possession of all or substantially all its assets or has a
distress, execution, attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its assets and such secured
party maintains possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 15 days thereafter; (8) causes or is subject to
any event with respect to it which, under the applicable laws of any jurisdiction,
has an analogous effect to any of the events specified in clauses (l) to (7) above
(inclusive); or (9) takes any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the foregoing acts; or




(viii) Merger Without Assumption. The party or any Credit Support Provider of such party
consolidates or amalgamates with, or merges with or into, or transfers all or substantially
all its assets to, or reorganises, reincorporates or reconstitutes into or as, another
entity and, at the time of such consolidation, amalgamation, merger, transfer,
reorganisation, reincorporation or reconstitution:—




(l) the resulting, surviving or transferee entity fails to assume all the
obligations of such party or such Credit Support Provider under this Agreement or
any Credit Support Document to which it or its predecessor was a party; or




(2) the benefits of any Credit Support Document 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 (subject to Section 5(c)) an Illegality if the event is specified in clause (i)
below, a Force Majeure Event if the event is specified in clause (ii) below, a Tax Event if the
event is specified in clause (iii) below, a Tax Event Upon Merger if the event is specified in
clause (iv) below, and, if specified to be applicable, a Credit Event Upon Merger if the event is
specified pursuant to clause (v) below or an Additional Termination Event if the event is specified
pursuant to clause (vi) below:—





(i) Illegality. After giving effect to any applicable provision, disruption fallback or
remedy specified in, or pursuant to, the relevant Confirmation or elsewhere in this
Agreement, due to an event or circumstance (other than any action taken by a party or, if
applicable, any Credit Support Provider of such party) occurring after a Transaction is
entered into, it becomes unlawful under any applicable law (including without limitation the
laws of any country in which payment, delivery or compliance is required by either party or
any Credit Support Provider, as the case may be), on any day, or it would be unlawful if the
relevant payment, delivery or compliance were required on that day (in each case, other than
as a result of a breach by the party of Section 4(b)):—




(1) for the Office through which such party (which will be the Affected Party) makes
and receives payments or deliveries with respect to such Transaction to perform any
absolute or contingent obligation to make a payment or delivery in respect of such
Transaction, to receive a payment or delivery in respect of such Transaction or to
comply with any other material provision of this Agreement relating to such
Transaction; or




(2) for such party or any Credit Support Provider of such party (which will be the
Affected Party) to perform any absolute or contingent obligation to make a payment
or delivery which such party or Credit Support Provider has under any Credit Support
Document relating to such Transaction, to receive a payment or delivery under such
Credit Support Document or to comply with any other material provision of such
Credit Support Document;




(ii) Force Majeure Event. After giving effect to any applicable provision, disruption
fallback or remedy specified in, or pursuant to, the relevant Confirmation or elsewhere in
this Agreement, by reason of force majeure or act of state occurring after a Transaction is
entered into, on any day:—




(1) the Office through which such party (which will be the Affected Party) makes and
receives payments or deliveries with respect to such Transaction is prevented from
performing any absolute or contingent obligation to make a payment or delivery in
respect of such Transaction, from receiving a payment or delivery in respect of such
Transaction or from complying with any other material provision of this Agreement
relating to such Transaction (or would be so prevented if such payment, delivery or
compliance were required on that day), or it becomes impossible or impracticable for
such Office so to perform, receive or comply (or it would be impossible or
impracticable for such Office so to perform, receive or comply if such payment,
delivery or compliance were required on that day); or




(2) such party or any Credit Support Provider of such party (which will be the
Affected Party) is prevented from performing any absolute or contingent obligation
to make a payment or delivery which such party or Credit Support Provider has under
any Credit Support Document relating to such Transaction, from receiving a payment
or delivery under such Credit Support Document or from complying with any other
material provision of such Credit Support Document (or would be so prevented if such
payment, delivery or compliance were required on that day), or it becomes impossible
or impracticable for such party or Credit Support Provider so to perform, receive or
comply (or it would be impossible or impracticable for such party or Credit Support
Provider so to perform, receive or comply if such payment, delivery or compliance
were required on that day),



 









 







so long as the force majeure or act of state is beyond the control of such Office, such
party or such Credit Support Provider, as appropriate, and such Office, party or Credit
Support Provider could not, after using all reasonable efforts (which will not require such
party or Credit Support Provider to incur a loss, other than immaterial, incidental
expenses), overcome such prevention, impossibility or impracticability;




(iii) Tax Event. Due to (1) any action taken by a taxing authority, or brought in a court
of competent jurisdiction, after a Transaction is entered into (regardless of whether such
action is taken or brought with respect to a party to this Agreement) or (2) a Change in Tax
Law, the party (which will be the Affected Party) will, or there is a substantial likelihood
that it will, on the next succeeding Scheduled Settlement Date (A) be required to pay to the
other party an additional amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4)
(except in respect of interest under Section 9(h)) or (B) receive a payment from which an
amount is required to be deducted or withheld for or on account of a Tax (except in respect
of interest under Section 9(h)) and no additional amount is required to be paid in respect
of such Tax under Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A) or (B));




(iv) Tax Event Upon Merger. The party (the “Burdened Party”) on the next succeeding
Scheduled Settlement Date will either (1) be required to pay an additional amount in respect
of an Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under
Section 9(h)) or (2) receive a payment from which an amount has been deducted or withheld
for or on account of any Tax in respect of which the other party is not required to pay an
additional amount (other than by reason of Section 2(d)(i)(4)(A) or (B)), in either case as
a result of a party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets (or any substantial part of the assets
comprising the business conducted by it as of the date of this Master Agreement) to, or
reorganising, reincorporating or reconstituting into or as, another entity (which will be
the Affected Party) where such action does not constitute a Merger Without Assumption;




(v) Credit Event Upon Merger. If “Credit Event Upon Merger” is specified in the Schedule as
applying to the party, a Designated Event (as defined below) occurs with respect to such
party, any Credit Support Provider of such party or any applicable Specified Entity of such
party (in each case, “X”) and such Designated Event does not constitute a Merger Without
Assumption, and the creditworthiness of X or, if applicable, the successor, surviving or
transferee entity of X, after taking into account any applicable Credit Support Document, is
materially weaker immediately after the occurrence of such Designated Event than that of X
immediately prior to the occurrence of such Designated Event (and, in any such event, such
party or its successor, surviving or transferee entity, as appropriate, will be the Affected
Party). A “Designated Event” with respect to X means that:—




(1) X consolidates or amalgamates with, or merges with or into, or transfers all or
substantially all its assets (or any substantial part of the assets comprising the
business conducted by X as of the date of this Master Agreement) to, or reorganises,
reincorporates or reconstitutes into or as, another entity;




(2) any person, related group of persons or entity acquires directly or indirectly
the beneficial ownership of (A) equity securities having the power to elect a
majority of the board of directors (or its equivalent) of X or (B) any other
ownership interest enabling it to exercise control of X; or




(3) X effects any substantial change in its capital structure by means of the
issuance, incurrence or guarantee of debt or the issuance of (A) preferred stock or
other securities convertible into or exchangeable for debt or preferred stock or (B)
in the case of entities other than corporations, any other form of ownership
interest; or




(vi) Additional Termination Event. If any “Additional Termination Event” is specified in
the Schedule or any Confirmation as applying, the occurrence of such event (and, in such
event, the Affected Party or Affected Parties will be as specified for such Additional
Termination Event in the Schedule or such Confirmation).



 









 





(c) Hierarchy of Events.





(i) An event or circumstance that constitutes or gives rise to an Illegality or a Force
Majeure Event will not, for so long as that is the case, also constitute or give rise to an
Event of Default under Section 5(a)(i), 5(a)(ii)(1) or 5(a)(iii)(1) insofar as such event or
circumstance relates to the failure to make any payment or delivery or a failure to comply
with any other material provision of this Agreement or a Credit Support Document, as the
case may be.




(ii) Except in circumstances contemplated by clause (i) above, if an event or circumstance
which would otherwise constitute or give rise to an Illegality or a Force Majeure Event also
constitutes an Event of Default or any other Termination Event, it will be treated as an
Event of Default or such other Termination Event, as the case may be, and will not
constitute or give rise to an Illegality or a Force Majeure Event.




(iii) If an event or circumstance which would otherwise constitute or give rise to a Force
Majeure Event also constitutes an Illegality, it will be treated as an Illegality, except as
described in clause (ii) above, and not a Force Majeure Event.


(d) Deferral of Payments and Deliveries During Waiting Period. If an Illegality or a Force Majeure
Event has occurred and is continuing with respect to a Transaction, each payment or delivery which
would otherwise be required to be made under that Transaction will be deferred to, and will not be
due until:—





(i) the first Local Business Day or, in the case of a delivery, the first Local Delivery Day
(or the first day that would have been a Local Business Day or Local Delivery Day, as
appropriate, but for the occurrence of the event or circumstance constituting or giving rise
to that Illegality or Force Majeure Event) following the end of any applicable Waiting
Period in respect of that Illegality or Force Majeure Event, as the case may be; or




(ii) if earlier, the date on which the event or circumstance constituting or giving rise to
that Illegality or Force Majeure Event ceases to exist or, if such date is not a Local
Business Day or, in the case of a delivery, a Local Delivery Day, the first following day
that is a Local Business Day or Local Delivery Day, as appropriate.


(e) Inability of Head or Home Office to Perform Obligations of Branch. If (i) an Illegality or a
Force Majeure Event occurs under Section 5(b)(i)(1) or 5(b)(ii)(1) and the relevant Office is not
the Affected Party’s head or home office, (ii) Section 10(a) applies, (iii) the other party seeks
performance of the relevant obligation or compliance with the relevant provision by the Affected
Party’s head or home office and (iv) the Affected Party’s head or home office fails so to perform
or comply due to the occurrence of an event or circumstance which would, if that head or home
office were the Office through which the Affected Party makes and receives payments and deliveries
with respect to the relevant Transaction, constitute or give rise to an Illegality or a Force
Majeure Event, and such failure would otherwise constitute an Event of Default under Section
5(a)(i) or 5(a)(iii)(1) with respect to such party, then, for so long as the relevant event or
circumstance continues to exist with respect to both the Office referred to in Section 5(b)(i)(1)
or 5(b)(ii)(1), as the case may be, and the Affected Party’s head or home office, such failure will
not constitute an Event of Default under Section 5(a)(i) or 5(a)(iii)(1).



6. Early Termination; Close-Out Netting



(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 other than a Force Majeure Event occurs, an Affected
Party will, promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction, and will also give the other
party such other information about that Termination Event as the other party may reasonably
require. If a Force Majeure Event occurs, each party will, promptly upon becoming aware of
it, use all reasonable efforts to notify the other party, specifying the nature of that
Force Majeure Event, and will also give the other party such other information about that
Force Majeure Event as the other party may reasonably require.




(ii) Transfer to Avoid Termination Event. If a Tax Event occurs and there is only one
Affected Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the Affected
Party, the Affected Party will, as a condition to its right to designate an Early
Termination Date under Section 6(b)(iv), use all reasonable efforts (which will not require
such party to incur a loss, other than immaterial, incidental expenses) to transfer within
20 days after it gives notice under Section 6(b)(i) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another of its Offices or
Affiliates so that such Termination Event ceases to exist.




If the Affected Party is not able to make such a transfer it will give notice to the other
party to that effect within such 20 day period, whereupon the other party may effect such a
transfer within 30 days after the notice is given under Section 6(b)(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 a Tax Event occurs and there are two Affected Parties, each
party will use all reasonable efforts to reach agreement within 30 days after notice of such
occurrence is given under Section 6(b)(i) to avoid that Termination Event.




(iv) Right to Terminate.




(1) If:—




(A) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to all
Affected Transactions within 30 days after an Affected Party gives notice
under Section 6(b)(i); or




(B) a Credit Event Upon Merger or an Additional Termination Event occurs, or
a Tax Event Upon Merger occurs and the Burdened Party is not the Affected
Party,




the Burdened Party in the case of a Tax Event Upon Merger, any Affected Party in the
case of a Tax Event or an Additional Termination Event if there are two Affected
Parties, or the Non-affected Party in the case of a Credit Event Upon Merger or an
Additional Termination Event if there is only one Affected Party may, if the
relevant Termination Event is then continuing, by not more than 20 days notice to
the other party, designate a day not earlier than the day such notice is effective
as an Early Termination Date in respect of all Affected Transactions.




(2) If at any time an Illegality or a Force Majeure Event has occurred and is then
continuing and any applicable Waiting Period has expired:—



 









 






(A) Subject to clause (B) below, either party may, by not more than 20 days
notice to the other party, designate (I) a day not earlier than the day on
which such notice becomes effective as an Early Termination Date in respect
of all Affected Transactions or (II) by specifying in that notice the
Affected Transactions in respect of which it is designating the relevant day
as an Early Termination Date, a day not earlier than two Local Business Days
following the day on which such notice becomes effective as an Early
Termination Date in respect of less than all Affected Transactions. Upon
receipt of a notice designating an Early Termination Date in respect of less
than all Affected Transactions, the other party may, by notice to the
designating party, if such notice is effective on or before the day so
designated, designate that same day as an Early Termination Date in respect
of any or all other Affected Transactions.




(B) An Affected Party (if the Illegality or Force Majeure Event relates to
performance by such party or any Credit Support Provider of such party of an
obligation to make any payment or delivery under, or to compliance with any
other material provision of, the relevant Credit Support Document) will only
have the right to designate an Early Termination Date under Section
6(b)(iv)(2)(A) as a result of an Illegality under Section 5(b)(i)(2) or a
Force Majeure Event under Section 5(b)(ii)(2) following the prior designation
by the other party of an Early Termination Date, pursuant to Section
6(b)(iv)(2)(A), in respect of less than all Affected Transactions.



(c) Effect of Designation.





(i) If notice designating an Early Termination Date is given under Section 6(a) or 6(b), the
Early Termination Date will occur on the date so designated, whether or not the relevant
Event of Default or Termination Event is then continuing.




(ii) Upon the occurrence or effective designation of an Early Termination Date, no further
payments or deliveries under Section 2(a)(i) or 9(h)(i) in respect of the Terminated
Transactions will be required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early Termination Date will be
determined pursuant to Sections 6(e) and 9(h)(ii).



(d) Calculations; Payment Date.





(i) Statement. On or as soon as reasonably practicable following the occurrence of an Early
Termination Date, each party will make the calculations on its part, if any, contemplated by
Section 6(e) and will provide to the other party a statement (l) showing, in reasonable
detail, such calculations (including any quotations, market data or information from
internal sources used in making such calculations), (2) specifying (except where there are
two Affected Parties) any Early Termination Amount payable and (3) giving details of the
relevant account to which any amount payable to it is to be paid. In the absence of written
confirmation from the source of a quotation or market data obtained in determining a
Close-out Amount, the records of the party obtaining such quotation or market data will be
conclusive evidence of the existence and accuracy of such quotation or market data.




(ii) Payment Date. An Early Termination Amount due in respect of any Early Termination Date
will, together with any amount of interest payable pursuant to Section 9(h)(ii)(2), be
payable (1) on the day on which notice of the amount payable is effective in the case of an
Early Termination Date which is designated or occurs as a result of an Event of Default and
(2) on the day which is two Local Business Days after the day on which notice of the amount
payable is effective (or, if there are two Affected Parties, after the day on which the
statement provided pursuant to clause (i) above by the second party to provide such a
statement is effective) in the case of an Early Termination Date which is designated as a
result of a Termination Event.



 









 




(e) Payments on Early Termination. If an Early Termination Date occurs, the amount, if any,
payable in respect of that Early Termination Date (the “Early Termination Amount”) will be
determined pursuant to this Section 6(e) and will be subject to Section 6(f).





(i) Events of Default. If the Early Termination Date results from an Event of Default, the
Early Termination Amount will be an amount equal to (1) the sum of (A) the Termination
Currency Equivalent of the Close-out Amount or Close-out Amounts (whether positive or
negative) determined by the Non-defaulting Party for each Terminated Transaction or group of
Terminated Transactions, as the case may be, and (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Non-defaulting Party less (2) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party. If the Early Termination
Amount is a positive number, the Defaulting Party will pay it to the Non-defaulting Party;
if it is a negative number, the Non-defaulting Party will pay the absolute value of the
Early Termination Amount to the Defaulting Party.




(ii) Termination Events. If the Early Termination Date results from a Termination Event:—




(1) One Affected Party. Subject to clause (3) below, if there is one Affected
Party, the Early Termination Amount will be determined in accordance with Section
6(e)(i), except that references to the Defaulting Party and to the Non-defaulting
Party will be deemed to be references to the Affected Party and to the Non-affected
Party, respectively.




(2) Two Affected Parties. Subject to clause (3) below, if there are two Affected
Parties, each party will determine an amount equal to the Termination Currency
Equivalent of the sum of the Close-out Amount or Close-out Amounts (whether positive
or negative) for each Terminated Transaction or group of Terminated Transactions, as
the case may be, and the Early Termination Amount will be an amount equal to (A) the
sum of (I) one-half of the difference between the higher amount so determined (by
party “X”) and the lower amount so determined (by party “Y”) and (II) the
Termination Currency Equivalent of the Unpaid Amounts owing to X less (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to Y. If the Early
Termination Amount is a positive number, Y will pay it to X; if it is a negative
number, X will pay the absolute value of the Early Termination Amount to Y.




(3) Mid-Market Events. If that Termination Event is an Illegality or a Force
Majeure Event, then the Early Termination Amount will be determined in accordance
with clause (1) or (2) above, as appropriate, except that, for the purpose of
determining a Close-out Amount or Close-out Amounts, the Determining Party will:—




(A) if obtaining quotations from one or more third parties (or from any of
the Determining Party’s Affiliates), ask each third party or Affiliate (I)
not to take account of the current creditworthiness of the Determining Party
or any existing Credit Support Document and (II) to provide mid-market
quotations; and




(B) in any other case, use mid-market values without regard to the
creditworthiness of the Determining Party.




(iii) Adjustment for Bankruptcy. In circumstances where an Early Termination Date occurs
because Automatic Early Termination applies in respect of a party, the Early Termination
Amount will be subject to such adjustments as are appropriate and permitted by applicable
law to reflect any payments or deliveries made by one party to the other under this
Agreement (and retained by such other party) during the period from the relevant Early
Termination Date to the date for payment determined under Section 6(d)(ii).




(iv) Adjustment for Illegality or Force Majeure Event. The failure by a party or any Credit
Support Provider of such party to pay, when due, any Early Termination Amount will not
constitute an Event of Default under Section 5(a)(i) or 5(a)(iii)(1) if such failure is due
to the occurrence of an event or



 









 







circumstance which would, if it occurred with respect to payment, delivery or compliance
related to a Transaction, constitute or give rise to an Illegality or a Force Majeure Event.
Such amount will (1) accrue interest and otherwise be treated as an Unpaid Amount owing to
the other party if subsequently an Early Termination Date results from an Event of Default,
a Credit Event Upon Merger or an Additional Termination Event in respect of which all
outstanding Transactions are Affected Transactions and (2) otherwise accrue interest in
accordance with Section 9(h)(ii)(2).




(v) Pre-Estimate. The parties agree that an amount recoverable under this Section 6(e) is a
reasonable pre-estimate of loss and not a penalty. Such amount is payable for the loss of
bargain and the loss of protection against future risks, and, except as otherwise provided
in this Agreement, neither party will be entitled to recover any additional damages as a
consequence of the termination of the Terminated Transactions.


(f) Set-Off. Any Early Termination Amount payable to one party (the “Payee”) by the other party
(the “Payer”), in circumstances where there is a Defaulting Party or where there is one Affected
Party in the case where either a Credit Event Upon Merger has occurred or any other Termination
Event in respect of which all outstanding Transactions are Affected Transactions has occurred,
will, at the option of the Non-defaulting Party or the Non-affected Party, as the case may be (“X”)
(and without prior notice to the Defaulting Party or the Affected Party, as the case may be), be
reduced by its set-off against any other amounts (“Other Amounts”) payable by the Payee to the
Payer (whether or not arising under this Agreement, matured or contingent and irrespective of the
currency, place of payment or place of booking of the obligation). To the extent that any Other
Amounts are so set off, those Other Amounts will be discharged promptly and in all respects. X
will give notice to the other party of any set-off effected under this Section 6(f).



For this purpose, either the Early Termination Amount or the Other Amounts (or the relevant portion
of such amounts) may be converted by X into the currency in which the other is denominated at the
rate of exchange at which such party would be able, in good faith and using commercially reasonable
procedures, to purchase the relevant amount of such currency.



If an obligation is unascertained, X may in good faith estimate that obligation and set off in
respect of the estimate, subject to the relevant party accounting to the other when the obligation
is ascertained.



Nothing in this Section 6(f) will be effective to create a charge or other security interest. This
Section 6(f) will be without prejudice and in addition to any right of set-off, offset, combination
of accounts, lien, right of retention or withholding or similar right or requirement to which any
party is at any time otherwise entitled or subject (whether by operation of law, contract or
otherwise).




7. Transfer



Subject to Section 6(b)(ii) and to the extent permitted by applicable law, neither this Agreement
nor any interest or obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the other party, except
that:—



(a) a party may make such a transfer of this Agreement pursuant to a consolidation or amalgamation
with, or merger with or into, or transfer of all or substantially all its assets to, another entity
(but without prejudice to any other right or remedy under this Agreement); and



(b) a party may make such a transfer of all or any part of its interest in any Early Termination
Amount payable to it by a Defaulting Party, together with any amounts payable on or with respect to
that interest and any other rights associated with that interest pursuant to Sections 8, 9(h) and
11.



Any purported transfer that is not in compliance with this Section 7 will be void.




 









 







8. Contractual Currency



(a) Payment in the Contractual Currency. Each payment under this Agreement will be made in the
relevant currency specified in this Agreement for that payment (the “Contractual Currency”). To
the extent permitted by applicable law, any obligation to make payments under this Agreement in the
Contractual Currency will not be discharged or satisfied by any tender in any currency other than
the Contractual Currency, except to the extent such tender results in the actual receipt by the
party to which payment is owed, acting in good faith and using commercially reasonable procedures
in converting the currency so tendered into the Contractual Currency, of the 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 clause (i) or (ii) above, the party seeking recovery, after
recovery in full of the aggregate amount to which such party is entitled pursuant to the judgment
or order, will be entitled to receive immediately from the other party the amount of any shortfall
of the Contractual Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the Contractual Currency
received by such party as a consequence of sums paid in such other currency if such shortfall or
such excess arises or results from any variation between the rate of exchange at which the
Contractual Currency is converted into the currency of the judgment or order for the purpose of
such judgment or order and the rate of exchange at which such party is able, acting in good faith
and using commercially reasonable procedures in converting the currency received into the
Contractual Currency, to purchase the Contractual Currency with the amount of the currency of the
judgment or order actually received by such party.



(c) Separate Indemnities. To the extent permitted by applicable law, the indemnities in this
Section 8 constitute separate and independent obligations from the other obligations in this
Agreement, will be enforceable as separate and independent causes of action, will apply
notwithstanding any indulgence granted by the party to which any payment is owed and will not be
affected by judgment being obtained or claim or proof being made for any other sums payable in
respect of this Agreement.



(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient for a party to
demonstrate that it would have suffered a loss had an actual exchange or purchase been made.



9. Miscellaneous



(a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the
parties with respect to its subject matter. Each of the parties acknowledges that in entering into
this Agreement it has not relied on any oral or written representation, warranty or other assurance
(except as provided for or referred to in this Agreement) and waives all rights and remedies which
might otherwise be available to it in respect thereof, except that nothing in this Agreement will
limit or exclude any liability of a party for fraud.



(b) Amendments. An amendment, modification or waiver in respect of this Agreement will only be
effective if in writing (including a writing evidenced by a facsimile transmission) and executed by
each of the parties or confirmed by an exchange of telexes or by an exchange of electronic messages
on an electronic messaging system.



(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations
of the parties under this Agreement will survive the termination of any Transaction.




 









 







(d) Remedies Cumulative. Except as provided in this Agreement, the rights, powers, remedies and
privileges provided in this Agreement are cumulative and not exclusive of any rights, powers,
remedies and privileges provided 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 and by
electronic messaging system), each of which will be deemed an original.




(ii) The parties intend that they are legally bound by the terms of each Transaction from
the moment they agree to those terms (whether orally or otherwise). A Confirmation will be
entered into as soon as practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of telexes, by an
exchange of electronic messages on an electronic messaging system or by an exchange of
e-mails, which in each case will be sufficient for all purposes to evidence a binding
supplement to this Agreement. The parties will specify therein or through another effective
means that any such counterpart, telex, electronic message or e-mail constitutes a
Confirmation.


(f) No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect
of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of
any right, power or privilege will not be presumed to preclude any subsequent or further exercise,
of that right, power or privilege or the exercise of any other right, power or privilege.



(g) Headings. The headings used in this Agreement are for convenience of reference only and are
not to affect the construction of or to be taken into consideration in interpreting this Agreement.



(h) Interest and Compensation.





(i) Prior to Early Termination. Prior to the occurrence or effective designation of an
Early Termination Date in respect of the relevant Transaction:—




(1) Interest on Defaulted Payments. If a party defaults in the performance of any
payment obligation, it will, to the extent permitted by applicable law and subject
to Section 6(c), pay interest (before as well as after judgment) on the overdue
amount to the other party on demand in the same currency as the overdue amount, for
the period from (and including) the original due date for payment to (but excluding)
the date of actual payment (and excluding any period in respect of which interest or
compensation in respect of the overdue amount is due pursuant to clause (3)(B) or
(C) below), at the Default Rate.




(2) Compensation for Defaulted Deliveries. If a party defaults in the performance
of any obligation required to be settled by delivery, it will on demand (A)
compensate the other party to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement and (B) unless otherwise provided in the relevant
Confirmation or elsewhere in this Agreement, to the extent permitted by applicable
law and subject to Section 6(c), pay to the other party interest (before as well as
after judgment) on an amount equal to the fair market value of that which was
required to be delivered in the same currency as that amount, for the period from
(and including) the originally scheduled date for delivery to (but excluding) the
date of actual delivery (and excluding any period in respect of which interest or
compensation in respect of that amount is due pursuant to clause (4) below), at the
Default Rate. The fair market value of any obligation referred to above will be
determined as of the originally scheduled date for delivery, in good faith and using
commercially reasonable procedures, by the party that was entitled to take delivery.



 









 






(3) Interest on Deferred Payments. If:—




(A) a party does not pay any amount that, but for Section 2(a)(iii), would
have been payable, it will, to the extent permitted by applicable law and
subject to Section 6(c) and clauses (B) and (C) below, pay interest (before
as well as after judgment) on that amount to the other party on demand (after
such amount becomes payable) in the same currency as that amount, for the
period from (and including) the date the amount would, but for Section
2(a)(iii), have been payable to (but excluding) the date the amount actually
becomes payable, at the Applicable Deferral Rate;




(B) a payment is deferred pursuant to Section 5(d), the party which would
otherwise have been required to make that payment will, to the extent
permitted by applicable law, subject to Section 6(c) and for so long as no
Event of Default or Potential Event of Default with respect to that party has
occurred and is continuing, pay interest (before as well as after judgment)
on the amount of the deferred payment to the other party on demand (after
such amount becomes payable) in the same currency as the deferred payment,
for the period from (and including) the date the amount would, but for
Section 5(d), have been payable to (but excluding) the earlier of the date
the payment is no longer deferred pursuant to Section 5(d) and the date
during the deferral period upon which an Event of Default or Potential Event
of Default with respect to that party occurs, at the Applicable Deferral
Rate; or




(C) a party fails to make any payment due to the occurrence of an Illegality
or a Force Majeure Event (after giving effect to any deferral period
contemplated by clause (B) above), it will, to the extent permitted by
applicable law, subject to Section 6(c) and for so long as the event or
circumstance giving rise to that Illegality or Force Majeure Event continues
and no Event of Default or Potential Event of Default with respect to that
party has occurred and is continuing, pay interest (before as well as after
judgment) on the overdue amount to the other party on demand in the same
currency as the overdue amount, for the period from (and including) the date
the party fails to make the payment due to the occurrence of the relevant
Illegality or Force Majeure Event (or, if later, the date the payment is no
longer deferred pursuant to Section 5(d)) to (but excluding) the earlier of
the date the event or circumstance giving rise to that Illegality or Force
Majeure Event ceases to exist and the date during the period upon which an
Event of Default or Potential Event of Default with respect to that party
occurs (and excluding any period in respect of which interest or compensation
in respect of the overdue amount is due pursuant to clause (B) above), at the
Applicable Deferral Rate.




(4) Compensation for Deferred Deliveries. If:—




(A) a party does not perform any obligation that, but for Section 2(a)(iii),
would have been required to be settled by delivery;




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




(C) a party fails to make a delivery due to the occurrence of an Illegality
or a Force Majeure Event at a time when any applicable Waiting Period has
expired,




the party required (or that would otherwise have been required) to make the delivery
will, to the extent permitted by applicable law and subject to Section 6(c),
compensate and pay interest to the other party on demand (after, in the case of
clauses (A) and (B) above, such delivery is required) if and to the extent provided
for in the relevant Confirmation or elsewhere in this Agreement.



 









 






(ii) Early Termination. Upon the occurrence or effective designation of an Early
Termination Date in respect of a Transaction:—




(1) Unpaid Amounts. For the purpose of determining an Unpaid Amount in respect of
the relevant Transaction, and to the extent permitted by applicable law, interest
will accrue on the amount of any payment obligation or the amount equal to the fair
market value of any obligation required to be settled by delivery included in such
determination in the same currency as that amount, for the period from (and
including) the date the relevant obligation was (or would have been but for Section
2(a)(iii) or 5(d)) required to have been performed to (but excluding) the relevant
Early Termination Date, at the Applicable Close-out Rate.




(2) Interest on Early Termination Amounts. If an Early Termination Amount is due in
respect of such Early Termination Date, that amount will, to the extent permitted by
applicable law, be paid together with interest (before as well as after judgment) on
that amount in the Termination Currency, for the period from (and including) such
Early Termination Date to (but excluding) the date the amount is paid, at the
Applicable Close-out Rate.




(iii) Interest Calculation. Any interest pursuant to this Section 9(h) will be calculated
on the basis of daily compounding and the actual number of days elapsed.



10. Offices; Multibranch Parties



(a) If Section 10(a) is specified in the Schedule as applying, each party that enters into a
Transaction through an Office other than its head or home office represents to and agrees with the
other party that, notwithstanding the place of booking or its jurisdiction of incorporation or
organisation, its obligations are the same in terms of recourse against it as if it had entered
into the Transaction through its head or home office, except that a party will not have recourse to
the head or home office of the other party in respect of any payment or delivery deferred pursuant
to Section 5(d) for so long as the payment or delivery is so deferred. This representation and
agreement will be deemed to be repeated by each party on each date on which the parties enter into
a Transaction.



(b) If a party is specified as a Multibranch Party in the Schedule, such party may, subject to
clause (c) below, enter into a Transaction through, book a Transaction in and make and receive
payments and deliveries with respect to a Transaction through any Office listed in respect of that
party in the Schedule (but not any other Office unless otherwise agreed by the parties in writing).



(c) The Office through which a party enters into a Transaction will be the Office specified for
that party in the relevant Confirmation or as otherwise agreed by the parties in writing, and, if
an Office for that party is not specified in the Confirmation or otherwise agreed by the parties in
writing, its head or home office. Unless the parties otherwise agree in writing, the Office
through which a party enters into a Transaction will also be the Office in which it books the
Transaction and the Office through which it makes and receives payments and deliveries with respect
to the Transaction. Subject to Section 6(b)(ii), neither party may change the Office in which it
books the Transaction or the Office through which it makes and receives payments or deliveries with
respect to a Transaction without the prior written consent of the other party.



11. Expenses



A Defaulting Party will on demand indemnify and hold harmless the other party for and against all
reasonable out-of-pocket expenses, including legal fees, execution fees and Stamp Tax, incurred by
such other party by reason of the enforcement and protection of its rights under this Agreement or
any Credit Support Document to which the Defaulting Party is a party or by reason of the early
termination of any Transaction, including, but not limited to, costs of collection.




 









 







12. Notices



(a) Effectiveness. Any notice or other communication in respect of this Agreement may be given in
any manner described below (except that a notice or other communication under Section 5 or 6 may
not be given by electronic messaging system or e-mail) to the address or number or in accordance
with the electronic messaging system or
e-mail details provided (see the Schedule) and will be deemed effective as indicated:—





(i) if in writing and delivered in person or by courier, on the date it is delivered;




(ii) if sent by telex, on the date the recipient’s answerback is received;




(iii) if sent by facsimile transmission, on the date it is received by a responsible
employee of the recipient in legible form (it being agreed that the burden of proving
receipt will be on the sender and will not be met by a transmission report generated by the
sender’s facsimile machine);




(iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent
(return receipt requested), on the date it is delivered or its delivery is attempted;




(v) if sent by electronic messaging system, on the date it is received; or




(vi) if sent by e-mail, on the date it is delivered,


unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a
Local Business Day or that communication is delivered (or attempted) or received, as applicable,
after the close of business on a Local Business Day, in which case that communication will be
deemed given and effective on the first following day that is a Local Business Day.



(b) Change of Details. Either party may by notice to the other change the address, telex or
facsimile number or electronic messaging system or e-mail details at which notices or other
communications are to be given to it.



13. Governing Law and Jurisdiction



(a) Governing Law. This Agreement will be governed by and construed in accordance with the law
specified in the Schedule.



(b) Jurisdiction. With respect to any suit, action or proceedings relating to any dispute arising
out of or in connection with this Agreement (“Proceedings”), each party irrevocably:—





(i) submits:—




(1) if this Agreement is expressed to be governed by English law, to (A) the
non-exclusive jurisdiction of the English courts if the Proceedings do not involve a
Convention Court and (B) the exclusive jurisdiction of the English courts if the
Proceedings do involve a Convention Court; or




(2) if this Agreement is expressed to be governed by the laws of the State of New
York, to the non-exclusive jurisdiction of the courts of the State of New York and
the United States District Court located in the Borough of Manhattan in New York
City;




(ii) waives any objection which it may have at any time to the laying of venue of any
Proceedings brought in any such court, waives any claim that such Proceedings have been
brought in an inconvenient forum and further waives the right to object, with respect to
such Proceedings, that such court does not have any jurisdiction over such party; and



 









 






(iii) agrees, to the extent permitted by applicable law, that the bringing of Proceedings in
any one or more jurisdictions will not preclude the bringing of Proceedings in any other
jurisdiction.


(c) Service of Process. Each party irrevocably appoints the Process Agent, if any, specified
opposite its name in the Schedule to receive, for it and on its behalf, service of process in any
Proceedings. If for any reason any party’s Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process agent acceptable to
the other party. The parties irrevocably consent to service of process given in the manner
provided for notices in Section 12(a)(i), 12(a)(iii) or 12(a)(iv). Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted by applicable law.



(d) Waiver of Immunities. Each party irrevocably waives, to the extent permitted by applicable
law, with respect to itself and its revenues and assets (irrespective of their use or intended
use), all immunity on the grounds of sovereignty or other similar grounds from (i) suit, (ii)
jurisdiction of any court, (iii) relief by way of injunction or order for specific performance or
recovery of property, (iv) attachment of its assets (whether before or after judgment) and (v)
execution or enforcement of any judgment to which it or its revenues or assets might otherwise be
entitled in any Proceedings in the courts of any jurisdiction and irrevocably agrees, to the extent
permitted by applicable law, that it will not claim any such immunity in any Proceedings.



14. Definitions



As used in this Agreement:—



“Additional Representation” has the meaning specified in Section 3.



“Additional Termination Event” has the meaning specified in Section 5(b).



“Affected Party” has the meaning specified in Section 5(b).



“Affected Transactions” means (a) with respect to any Termination Event consisting of an
Illegality, Force Majeure Event, Tax Event or Tax Event Upon Merger, all Transactions affected by
the occurrence of such Termination Event (which, in the case of an Illegality under Section
5(b)(i)(2) or a Force Majeure Event under Section 5(b)(ii)(2), means all Transactions unless the
relevant Credit Support Document references only certain Transactions, in which case those
Transactions and, if the relevant Credit Support Document constitutes a Confirmation for a
Transaction, that Transaction) and (b) with respect to any other Termination Event, all
Transactions.



“Affiliate” means, subject to the Schedule, in relation to any person, any entity controlled,
directly or indirectly, by the person, any entity that controls, directly or indirectly, the person
or any entity directly or indirectly under common control with the person. For this purpose,
“control” of any entity or person means ownership of a majority of the voting power of the entity
or person.



“Agreement” has the meaning specified in Section 1(c).



“Applicable Close-out Rate” means:—



(a) in respect of the determination of an Unpaid Amount:—





(i) in respect of obligations payable or deliverable (or which would have been but for
Section 2(a)(iii)) by a Defaulting Party, the Default Rate;




(ii) in respect of obligations payable or deliverable (or which would have been but for
Section 2(a)(iii)) by a Non-defaulting Party, the Non-default Rate;




(iii) in respect of obligations deferred pursuant to Section 5(d), if there is no Defaulting
Party and for so long as the deferral period continues, the Applicable Deferral Rate; and



 









 






(iv) in all other cases following the occurrence of a Termination Event (except where
interest accrues pursuant to clause (iii) above), the Applicable Deferral Rate; and



(b) in respect of an Early Termination Amount:—





(i) for the period from (and including) the relevant Early Termination Date to (but
excluding) the date (determined in accordance with Section 6(d)(ii)) on which that amount is
payable:—




(1) if the Early Termination Amount is payable by a Defaulting Party, the Default
Rate;




(2) if the Early Termination Amount is payable by a Non-defaulting Party, the
Non-default Rate; and




(3) in all other cases, the Applicable Deferral Rate; and




(ii) for the period from (and including) the date (determined in accordance with Section
6(d)(ii)) on which that amount is payable to (but excluding) the date of actual payment:—




(1) if a party fails to pay the Early Termination Amount due to the occurrence of an
event or circumstance which would, if it occurred with respect to a payment or
delivery under a Transaction, constitute or give rise to an Illegality or a Force
Majeure Event, and for so long as the Early Termination Amount remains unpaid due to
the continuing existence of such event or circumstance, the Applicable Deferral
Rate;




(2) if the Early Termination Amount is payable by a Defaulting Party (but excluding
any period in respect of which clause (1) above applies), the Default Rate;




(3) if the Early Termination Amount is payable by a Non-defaulting Party (but
excluding any period in respect of which clause (1) above applies), the Non-default
Rate; and




(4) in all other cases, the Termination Rate.



“Applicable Deferral Rate” means:—



(a) for the purpose of Section 9(h)(i)(3)(A), the rate certified by the relevant payer to be a rate
offered to the payer by a major bank in a relevant interbank market for overnight deposits in the
applicable currency, such bank to be selected in good faith by the payer for the purpose of
obtaining a representative rate that will reasonably reflect conditions prevailing at the time in
that relevant market;



(b) for purposes of Section 9(h)(i)(3)(B) and clause (a)(iii) of the definition of Applicable
Close-out Rate, the rate certified by the relevant payer to be a rate offered to prime banks by a
major bank in a relevant interbank market for overnight deposits in the applicable currency, such
bank to be selected in good faith by the payer after consultation with the other party, if
practicable, for the purpose of obtaining a representative rate that will reasonably reflect
conditions prevailing at the time in that relevant market; and



(c) for purposes of Section 9(h)(i)(3)(C) and clauses (a)(iv), (b)(i)(3) and (b)(ii)(1) of the
definition of Applicable Close-out Rate, a rate equal to the arithmetic mean of the rate determined
pursuant to clause (a) above and a rate per annum equal to the cost (without proof or evidence of
any actual cost) to the relevant payee (as certified by it) if it were to fund or of funding the
relevant amount.



“Automatic Early Termination” has the meaning specified in Section 6(a).



“Burdened Party” has the meaning specified in Section 5(b)(iv).




 









 







“Change in Tax Law” means the enactment, promulgation, execution or ratification of, or any change
in or amendment to, any law (or in the application or official interpretation of any law) that
occurs after the parties enter into the relevant Transaction.



“Close-out Amount” means, with respect to each Terminated Transaction or each group of Terminated
Transactions and a Determining Party, the amount of the losses or costs of the Determining Party
that are or would be incurred under then prevailing circumstances (expressed as a positive number)
or gains of the Determining Party that are or would be realised under then prevailing circumstances
(expressed as a negative number) in replacing, or in providing for the Determining Party the
economic equivalent of, (a) the material terms of that Terminated Transaction or group of
Terminated Transactions, including the payments and deliveries by the parties under Section 2(a)(i)
in respect of that Terminated Transaction or group of Terminated Transactions that would, but for
the occurrence of the relevant Early Termination Date, have been required after that date (assuming
satisfaction of the conditions precedent in Section 2(a)(iii)) and (b) the option rights of the
parties in respect of that Terminated Transaction or group of Terminated Transactions.



Any Close-out Amount will be determined by the Determining Party (or its agent), which will act in
good faith and use commercially reasonable procedures in order to produce a commercially reasonable
result. The Determining Party may determine a Close-out Amount for any group of Terminated
Transactions or any individual Terminated Transaction but, in the aggregate, for not less than all
Terminated Transactions. Each Close-out Amount will be determined as of the Early Termination Date
or, if that would not be commercially reasonable, as of the date or dates following the Early
Termination Date as would be commercially reasonable.



Unpaid Amounts in respect of a Terminated Transaction or group of Terminated Transactions and legal
fees and out-of-pocket expenses referred to in Section 11 are to be excluded in all determinations
of Close-out Amounts.



In determining a Close-out Amount, the Determining Party may consider any relevant information,
including, without limitation, one or more of the following types of information:—



(i) quotations (either firm or indicative) for replacement transactions supplied by one or more
third parties that may take into account the creditworthiness of the Determining Party at the time
the quotation is provided and the terms of any relevant documentation, including credit support
documentation, between the Determining Party and the third party providing the quotation;



(ii) information consisting of relevant market data in the relevant market supplied by one or more
third parties including, without limitation, relevant rates, prices, yields, yield curves,
volatilities, spreads, correlations or other relevant market data in the relevant market; or



(iii) information of the types described in clause (i) or (ii) above from internal sources
(including any of the Determining Party’s Affiliates) if that information is of the same type used
by the Determining Party in the regular course of its business for the valuation of similar
transactions.



The Determining Party will consider, taking into account the standards and procedures described in
this definition, quotations pursuant to clause (i) above or relevant market data pursuant to clause
(ii) above unless the Determining Party reasonably believes in good faith that such quotations or
relevant market data are not readily available or would produce a result that would not satisfy
those standards. When considering information described in clause (i), (ii) or (iii) above, the
Determining Party may include costs of funding, to the extent costs of funding are not and would
not be a component of the other information being utilised. Third parties supplying quotations
pursuant to clause (i) above or market data pursuant to clause (ii) above may include, without
limitation, dealers in the relevant markets, end-users of the relevant product, information
vendors, brokers and other sources of market information.



Without duplication of amounts calculated based on information described in clause (i), (ii) or
(iii) above, or other relevant information, and when it is commercially reasonable to do so, the
Determining Party may in addition consider in calculating a Close-out Amount any loss or cost
incurred in connection with its terminating, liquidating


 









 






or re-establishing any hedge related to a Terminated Transaction or group of Terminated
Transactions (or any gain resulting from any of them).



Commercially reasonable procedures used in determining a Close-out Amount may include the
following:—



(1) application to relevant market data from third parties pursuant to clause (ii) above or
information from internal sources pursuant to clause (iii) above of pricing or other valuation
models that are, at the time of the determination of the Close-out Amount, used by the Determining
Party in the regular course of its business in pricing or valuing transactions between the
Determining Party and unrelated third parties that are similar to the Terminated Transaction or
group of Terminated Transactions; and



(2) application of different valuation methods to Terminated Transactions or groups of Terminated
Transactions depending on the type, complexity, size or number of the Terminated Transactions or
group of Terminated Transactions.



“Confirmation” has the meaning specified in the preamble.



“consent” includes a consent, approval, action, authorisation, exemption, notice, filing,
registration or exchange control consent.



“Contractual Currency” has the meaning specified in Section 8(a).



“Convention Court” means any court which is bound to apply to the Proceedings either Article 17 of
the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters or Article 17 of the 1988 Lugano Convention on Jurisdiction and the Enforcement
of Judgments in Civil and Commercial Matters.



“Credit Event Upon Merger” has the meaning specified in Section 5(b).



“Credit Support Document” means any agreement or instrument that is specified as such in this
Agreement.



“Credit Support Provider” has the meaning specified in the Schedule.



“Cross-Default” means the event specified in Section 5(a)(vi).



“Default Rate” means a rate per annum equal to the cost (without proof or evidence of any actual
cost) to the relevant payee (as certified by it) if it were to fund or of funding the relevant
amount plus 1% per annum.



“Defaulting Party” has the meaning specified in Section 6(a).



“Designated Event” has the meaning specified in Section 5(b)(v).



“Determining Party” means the party determining a Close-out Amount.



“Early Termination Amount” has the meaning specified in Section 6(e).



“Early Termination Date” means the date determined in accordance with Section 6(a) or 6(b)(iv).



“electronic messages” does not include e-mails but does include documents expressed in markup
languages, and “electronic messaging system” will be construed accordingly.



“English law” means the law of England and Wales, and “English” will be construed accordingly.



“Event of Default” has the meaning specified in Section 5(a) and, if applicable, in the Schedule.




 









 







“Force Majeure Event” has the meaning specified in Section 5(b).



“General Business Day” means a day on which commercial banks are open for general business
(including dealings in foreign exchange and foreign currency deposits).



“Illegality” has the meaning specified in Section 5(b).



“Indemnifiable Tax” means any Tax other than a Tax that would not be imposed in respect of a
payment under this Agreement but for a present or former connection between the jurisdiction of the
government or taxation authority imposing such Tax and the recipient of such payment or a person
related to such recipient (including, without limitation, a connection arising from such recipient
or related person being or having been a citizen or resident of such jurisdiction, or being or
having been organised, present or engaged in a trade or business in such jurisdiction, or having or
having had a permanent establishment or fixed place of business in such jurisdiction, but excluding
a connection arising solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this Agreement or a Credit
Support Document).



“law” includes any treaty, law, rule or regulation (as modified, in the case of tax matters, by the
practice of any relevant governmental revenue authority), and “unlawful” will be construed
accordingly.



“Local Business Day” means (a) in relation to any obligation under Section 2(a)(i), a General
Business Day in the place or places specified in the relevant Confirmation and a day on which a
relevant settlement system is open or operating as specified in the relevant Confirmation or, if a
place or a settlement system is not so specified, as otherwise agreed by the parties in writing or
determined pursuant to provisions contained, or incorporated by reference, in this Agreement, (b)
for the purpose of determining when a Waiting Period expires, a General Business Day in the place
where the event or circumstance that constitutes or gives rise to the Illegality or Force Majeure
Event, as the case may be, occurs, (c) in relation to any other payment, a General Business Day in
the place where the relevant account is located and, if different, in the principal financial
centre, if any, of the currency of such payment and, if that currency does not have a single
recognised principal financial centre, a day on which the settlement system necessary to accomplish
such payment is open, (d) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), a General Business Day (or a day that would have been a General
Business Day but for the occurrence of an event or circumstance which would, if it occurred with
respect to payment, delivery or compliance related to a Transaction, constitute or give rise to an
Illegality or a Force Majeure Event) in the place specified in the address for notice provided by
the recipient and, in the case of a notice contemplated by Section 2(b), in the place where the
relevant new account is to be located and (e) in relation to Section 5(a)(v)(2), a General Business
Day in the relevant locations for performance with respect to such Specified Transaction.



“Local Delivery Day” means, for purposes of Sections 5(a)(i) and 5(d), a day on which settlement
systems necessary to accomplish the relevant delivery are generally open for business so that the
delivery is capable of being accomplished in accordance with customary market practice, in the
place specified in the relevant Confirmation or, if not so specified, in a location as determined
in accordance with customary market practice for the relevant delivery.



“Master Agreement” has the meaning specified in the preamble.



“Merger Without Assumption” means the event specified in Section 5(a)(viii).



“Multiple Transaction Payment Netting” has the meaning specified in Section 2(c).



“Non-affected Party” means, so long as there is only one Affected Party, the other party.



“Non-default Rate” means the rate certified by the Non-defaulting Party to be a rate offered to the
Non-defaulting Party by a major bank in a relevant interbank market for overnight deposits in the
applicable currency, such bank to


 









 






be selected in good faith by the Non-defaulting Party for the purpose of obtaining a representative
rate that will reasonably reflect conditions prevailing at the time in that relevant market.



“Non-defaulting Party” has the meaning specified in Section 6(a).



“Office” means a branch or office of a party, which may be such party’s head or home office.



“Other Amounts” has the meaning specified in Section 6(f).



“Payee” has the meaning specified in Section 6(f).



“Payer” has the meaning specified in Section 6(f).



“Potential Event of Default” means any event which, with the giving of notice or the lapse of time
or both, would constitute an Event of Default.



“Proceedings” has the meaning specified in Section 13(b).



“Process Agent” has the meaning specified in the Schedule.



“rate of exchange” includes, without limitation, any premiums and costs of exchange payable in
connection with the purchase of or conversion into the Contractual Currency.



“Relevant Jurisdiction” means, with respect to a party, the jurisdictions (a) in which the party is
incorporated, organised, managed and controlled or considered to have its seat, (b) where an Office
through which the party is acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) in relation to any payment, from or through which such payment is
made.



“Schedule” has the meaning specified in the preamble.



“Scheduled Settlement Date” means a date on which a payment or delivery is to be made under Section
2(a)(i) with respect to a Transaction.



“Specified Entity” has the meaning specified in the Schedule.



“Specified Indebtedness” means, subject to the Schedule, any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect of borrowed money.



“Specified Transaction” means, subject to the Schedule, (a) any transaction (including an agreement
with respect to any such transaction) now existing or hereafter entered into between one party to
this Agreement (or any Credit Support Provider of such party or any applicable Specified Entity of
such party) and the other party to this Agreement (or any Credit Support Provider of such other
party or any applicable Specified Entity of such other party) which is not a Transaction under this
Agreement but (i) which is a rate swap transaction, swap option, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction,
currency option, credit protection transaction, credit swap, credit default swap, credit default
option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase
transaction, buy/sell-back transaction, securities lending transaction, weather index transaction
or forward purchase or sale of a security, commodity or other financial instrument or interest
(including any option with respect to any of these transactions) or (ii) which is a type of
transaction that is similar to any transaction referred to in clause (i) above that is currently,
or in the future becomes, recurrently entered into in the financial markets (including terms and
conditions incorporated by reference in such agreement) and which is a forward, swap, future,
option or other derivative on one or more rates, currencies, commodities, equity securities or
other equity instruments, debt securities or other debt instruments, economic indices or measures
of economic risk


 









 






or value, or other benchmarks against which payments or deliveries are to be made, (b) any
combination of these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.



“Stamp Tax” means any stamp, registration, documentation or similar tax.



“Stamp Tax Jurisdiction” has the meaning specified in Section 4(e).



“Tax” means any present or future tax, levy, impost, duty, charge, assessment or fee of any nature
(including interest, penalties and additions thereto) that is imposed by any government or other
taxing authority in respect of any payment under this Agreement other than a stamp, registration,
documentation or similar tax.



“Tax Event” has the meaning specified in Section 5(b).



“Tax Event Upon Merger” has the meaning specified in Section 5(b).



“Terminated Transactions” means, with respect to any Early Termination Date, (a) if resulting from
an Illegality or a Force Majeure Event, all Affected Transactions specified in the notice given
pursuant to Section 6(b)(iv), (b) if resulting from any other Termination Event, all Affected
Transactions and (c) if resulting from an Event of Default, all Transactions in effect either
immediately before the effectiveness of the notice designating that Early Termination Date or, if
Automatic Early Termination applies, immediately before that Early Termination Date.



“Termination Currency” means (a) if a Termination Currency is specified in the Schedule and that
currency is freely available, that currency, and (b) otherwise, euro if this Agreement is expressed
to be governed by English law or United States Dollars if this Agreement is expressed to be
governed by the laws of the State of New York.



“Termination Currency Equivalent” means, in respect of any amount denominated in the Termination
Currency, such Termination Currency amount and, in respect of any amount denominated in a currency
other than the Termination Currency (the “Other Currency”), the amount in the Termination Currency
determined by the party making the relevant determination as being required to purchase such amount
of such Other Currency as at the relevant Early Termination Date, or, if the relevant Close-out
Amount is determined as of a later date, that later date, with the Termination Currency at the rate
equal to the spot exchange rate of the foreign exchange agent (selected as provided below) for the
purchase of such Other Currency with the Termination Currency at or about 11:00 a.m. (in the city
in which such foreign exchange agent is located) on such date as would be customary for the
determination of such a rate for the purchase of such Other Currency for value on the relevant
Early Termination Date or that later date. The foreign exchange agent will, if only one party is
obliged to make a determination under Section 6(e), be selected in good faith by that party and
otherwise will be agreed by the parties.



“Termination Event” means an Illegality, a Force Majeure Event, a Tax Event, a Tax Event Upon
Merger or, if specified to be applicable, a Credit Event Upon Merger or an Additional Termination
Event.



“Termination Rate” means a rate per annum equal to the arithmetic mean of the cost (without proof
or evidence of any actual cost) to each party (as certified by such party) if it were to fund or of
funding such amounts.



“Threshold Amount” means the amount, if any, specified as such in the Schedule.



“Transaction” has the meaning specified in the preamble.





 









 







“Unpaid Amounts” owing to any party means, with respect to an Early Termination Date, the aggregate
of (a) in respect of all Terminated Transactions, the amounts that became payable (or that would
have become payable but for Section 2(a)(iii) or due but for Section 5(d)) to such party under
Section 2(a)(i) or 2(d)(i)(4) on or prior to such Early Termination Date and which remain unpaid as
at such Early Termination Date, (b) in respect of each Terminated Transaction, for each obligation
under Section 2(a)(i) which was (or would have been but for Section 2(a)(iii) or 5(d)) required to
be settled by delivery to such party on or prior to such Early Termination Date and which has not
been so settled as at such Early Termination Date, an amount equal to the fair market value of that
which was (or would have been) required to be delivered and (c) if the Early Termination Date
results from an Event of Default, a Credit Event Upon Merger or an Additional Termination Event in
respect of which all outstanding Transactions are Affected Transactions, any Early Termination
Amount due prior to such Early Termination Date and which remains unpaid as of such Early
Termination Date, in each case together with any amount of interest accrued or other compensation
in respect of that obligation or deferred obligation, as the case may be, pursuant to Section
9(h)(ii)(1) or (2), as appropriate. The fair market value of any obligation referred to in clause
(b) above will be determined as of the originally scheduled date for delivery, in good faith and
using commercially reasonable procedures, by the party obliged to make the determination under
Section 6(e) or, if each party is so obliged, it will be the average of the Termination Currency
Equivalents of the fair market values so determined by both parties.



“Waiting Period” means:—



(a) in respect of an event or circumstance under Section 5(b)(i), other than in the case of Section
5(b)(i)(2) where the relevant payment, delivery or compliance is actually required on the relevant
day (in which case no Waiting Period will apply), a period of three Local Business Days (or days
that would have been Local Business Days but for the occurrence of that event or circumstance)
following the occurrence of that event or circumstance; and



(b) in respect of an event or circumstance under Section 5(b)(ii), other than in the case of
Section 5(b)(ii)(2) where the relevant payment, delivery or compliance is actually required on the
relevant day (in which case no Waiting Period will apply), a period of eight Local Business Days
(or days that would have been Local Business Days but for the occurrence of that event or
circumstance) following the occurrence of that event or circumstance.



IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below
with effect from the date specified on the first page of this document.




	 	 	 	 	 	 	 
	For and on behalf of STANDARD BANK PLC	 	For and on behalf of

GRAN TIERRA ENERGY INC.
	 
	 	 	 	 	 	 
	By:

	 	/s/ SJ Branchflower
	 	By:
	 	/s/ Dana Coffield
	 

	 	 
	 	 	 	 
	 

	 	Name: SJ Branchflower
	 	 	 	Name:
	 

	 	Title: Senior Manager
	 	 	 	Title:
	 

	 	Date:
	 	 	 	Date: 21 Feb 07
	 
	 	 	 	 	 	 
	By:

	 	/s/ Manuel Gonzalez-Spahr	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	Date:	 	 	 	 






ISDA
Master Agreement



 









 





SCHEDULE



to the



2002 Master Agreement




dated as of February 22, 2007

between




STANDARD BANK PLC (“Party A”)




and




GRAN TIERRA ENERGY INC. (“Party B”)




Part 1. Termination Provisions.





	(a)	 	“Specified Entity” means in relation to Party A for the purpose of: -





	 	 	 
	Section 5(a)(v),

	 	Not Applicable
	Section 5(a)(vi),

	 	Not Applicable
	Section 5(a)(vii),

	 	Not Applicable
	Section 5(b)(v),

	 	Not Applicable
	 
	 	 
	and in relation to Party B for the purpose of: -
	 	 
	 
	 	 
	Section 5(a)(v),

	 	Its Affiliates
	Section 5(a)(vi),

	 	Its Affiliates
	Section 5(a)(vii), 

Section 5(b)(v),

	 	Its Affiliates

Its Affiliates







	(b)	 	“Specified Transaction” will have the meaning specified in Section 14 of this Agreement.
	 
	(c)	 	The “Cross-Default” provisions of Section 5(a)(vi) of this Agreement will apply to Party A
and will apply to Party B; provided that, for so long as the Credit Agreement is in
full force and effect, the Cross Default provision of Section 5(a)(vi) of this Agreement will
not have the meaning as defined in this Agreement with respect to Party B. For so long as the
Credit Agreement is in full force and effect, a Cross Default under Section 5(a)(vi) of this
Agreement will only occur with respect to Party B if an “Event of Default” under the Credit
Agreement occurs.
	 
	 	 	“Specified Indebtedness” will have the meaning specified in Section 14 of this Agreement,
but will exclude indebtedness in respect of bank deposits received in the ordinary course of
business.
	 
	 	 	“Threshold Amount” means in relation to Party A, an amount equal to 3% of Party A’s
shareholders’ equity as specified in Party A’s latest published audited accounts, and in
relation to Party B, the greater of (i) USD 2,000,000 and (ii) an amount equal to 3% of
Party B’s shareholders’ equity as specified in Party B’s latest published audited accounts.
	 
	(d)	 	The “Credit Event Upon Merger” provisions of Section 5(b)(v) will apply to Party A and Party B.




1









 






	(e)	 	The “Automatic Early Termination” provision of Section 6(a) will not apply to Party A and
will apply to Party B.
	 
	(f)	 	“Termination Currency” means United States Dollars.
	 
	(g)	 	Additional Termination Event will apply. If the Credit Agreement ceases to be in full force
and effect, the following will constitute an Additional Termination Event with Party B as the
Affected Party, and all Transactions shall be Affected Transactions and Party A shall, at its
option, designate an Early Termination Date:






	 	(i)	 	the occurrence of any event or circumstance which, in the opinion of Party A,
could reasonably be expected to have a material adverse effect on, or result in a
material adverse change in, the business, operations, condition (financial or
otherwise), assets, liabilities or capitalization of Party B or any of its Affiliates
or which could reasonably be expected to have a material adverse effect on the ability
of Party B or any of its Affiliates to perform any of its outstanding financial
obligations under this Agreement.





Part 2. Tax Representations.





	(a)	 	Payer Representations. For the purpose of Section 3(e) of this Agreement, Party A and Party
B each make the following representation: -






	 	(i)	 	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 9(h) of this Agreement) 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 representations made by the other party pursuant to Section 3(f) of this
Agreement, (ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of any document provided
by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii)
the satisfaction of the agreement of the other party contained in Section 4(d) of this
Agreement, except that it will not be a breach of this representation where reliance is
placed on clause (ii) above and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice to its legal or commercial
position.






	(b)	 	Payee Representations. For the purpose of Section 3(f) of this Agreement, Party A and Party
B do not make any representations.





Part 3. Agreement to Deliver Documents.



For the purpose of Sections 4(a)(i) and 4(a)(ii) of this Agreement, each party agrees to deliver
the following documents, as applicable: -




Documents to be delivered are: -




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Covered by
	Party required to	 	Form/Document/	 	Date by which	 	Section 3(d)
	deliver document	 	Certificate	 	to be delivered	 	Representation
	Party A & B

	 	Signing authority
being evidence of
authority,
incumbency and
specimen signature
of each person
executing any
document on its
behalf in
connection with
this Agreement
	 	On execution of
this Agreement, and
if requested, any
Confirmation
	 	Yes






2









 






	 	 	 	 	 	 	 
	 	 	 	 	 	 	Covered by
	Party required to	 	Form/Document/	 	Date by which	 	Section3(d)
	deliver document	 	Certificate	 	to be delivered	 	Representation
	Party A & B

	 	A copy of the
annual report and
consolidated
accounts for the
most recently ended
financial year
	 	As soon as
practicable after
request
	 	Yes
	 
	 	 	 	 	 	 
	Party B

	 	A copy of the
letter from Party
B’s process agent
confirming
acceptance of
appointment
	 	On execution of
this Agreement
	 	Yes
	 
	 	 	 	 	 	 
	Party B

	 	A certified copy of
the resolution of
Party B’s board of
directors (or
equivalent)
authorizing the
execution and
delivery of this
Agreement and each
Confirmation and
performance of its
obligations
hereunder
	 	As soon as
practicable after
request
	 	Yes
	 
	 	 	 	 	 	 
	Party B

	 	A certified copy of
Party B’s
memorandum and
articles of
association (or
equivalent
constitutive
documents)
	 	As soon as
practicable after
request
	 	Yes
	 
	 	 	 	 	 	 
	Party B

	 	Notification of the
occurrence of any
Additional
Termination Event
with respect to
which Party B is
the Affected Party
	 	Within one General
Business Day of
such occurrence
	 	Yes
	 
	 	 	 	 	 	 
	Party B

	 	Any other
information which
Party A may
reasonably request
from Party B from
time to time
	 	Upon request of
Party A
	 	Yes






Part 4. Miscellaneous.




(a) Addresses for Notices. For the purpose of Section 12(a) of this Agreement: -



Address for notices or communications to Party A: -



Address: Standard Bank Plc, Cannon Bridge House, 25 Dowgate Hill, London EC4R 2SB, United Kingdom

Attention: Legal and Documentation Department

Telephone No.: +44 (20) 7815 3000

Facsimile No.: +44 (20) 7815 3099

Telex No.: 911787

Answerback: SBILON G



SWIFT: SBLL GB2L



With a copy to:

1211 Avenue of the Americas

New York, NY 10022

United States of America

Attention: Energy Finance Head — Americas

Tel: +1 (212) 407 5000

Fax: +1 (212) 407 5178




3









 







Address for notices or communications to Party B: -



Address: Gran Tierra Energy Inc., 300, 611 10th Avenue SW, Calgary, Alberta, Canada T2R OB2

Attention: Martin Eden

Telephone No.: +403 265 3221

Facsimile No.: +403 265 3242





	(b)	 	Process Agent. For the purpose of Section 13(c) of this Agreement: -
	 
	 	 	Party A appoints as its Process Agent: Standard New York Securities, Inc., 19th
Floor, 320 Park Avenue, New York, NY 10022, United States of America
	 
	 	 	Party B appoints as its Process Agent: CT Corporation System, located at 111 Eighth Avenue,
New York, NY 10011, United States of America
	 
	(c)	 	Offices. The provisions of Section 10(a) will not apply to this Agreement.
	 
	(d)	 	Multibranch Party. For the purpose of Section 10(b) of this Agreement: -
	 
	 	 	Party A is not a Multibranch Party.

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; provided that if an Event of
Default has occurred and is continuing with respect to Party A, Party B shall be the
Calculation Agent.
	 
	(f)	 	Credit Support Document. Details of any Credit Support Document: — Credit Support Documents
means in relation to Party A, none, and in relation to Party B, Section 6 of the Credit
Agreement and each Security Document (as defined in the Credit Agreement).
	 
	(g)	 	Credit Support Provider. Credit Support Provider means in relation to Party A, none, and in
relation to Party B, each Guarantor (as defined in the Credit Agreement).
	 
	(h)	 	Governing Law and Waiver of Jury Trial. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to its conflict of law
provisions, except for Section 5-1401 and Section 5-1402 of the New York General Obligations
Law). Each of Party A and Party B hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out of
or relating to this Agreement or each Transaction contemplated hereby.
	 
	(i)	 	Netting of Payments. Either party may notify the other in writing, not less than one Local
Business Day in advance of one or more Scheduled Settlement Dates, that with regard to
payments due on that date, Multiple Transaction Payment Netting will apply. Except to the
extent that such advance written notice shall have been given, subparagraph Multiple
Transaction Payment Netting will not apply for purposes of Section 2(c) of this Agreement.
	 
	(j)	 	“Affiliate” will have the meaning specified in Section 14 of this Agreement in relation to
Party A, and in relation to Party B, shall mean Gran Tierra Energy Inc. and each Restricted
Subsidiary (as defined in the Credit Agreement).
	 
	(k)	 	Absence of Litigation. For the purpose of Section 3(c): -




4









 






	 	 	“Specified Entity” means in relation to Party A, none.

“Specified Entity” means in relation to Party B, none.
	 
	(l)	 	No Agency. The provisions of Section 3(g) will apply to this Agreement.
	 
	(m)	 	Additional Representation will apply. For the purpose of Section 3 of this Agreement, the
following will constitute an Additional Representation: -






	 	(i)	 	Each party makes the following representations 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): -






	 	(1)	 	Non-Reliance. It is acting for its own account, and it has made
its own independent decisions to enter into that Transaction and as to whether
that Transaction is appropriate or proper for it based upon its own judgement
and upon advice from such advisers as it has deemed necessary. It is not
relying on any communication (written or oral) of the other party as investment
advice or as a recommendation to enter into that Transaction; it being
understood that information and explanations related to the terms and conditions
of a Transaction will not be considered investment advice or a recommendation to
enter into that Transaction. No communication (whether written or oral)
received from the other party shall be deemed to be an assurance or guarantee as
to the expected results of that Transaction.
	 
	 	(2)	 	Assessment and Understanding. It is capable of assessing the
merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms, conditions and
risks of that Transaction. It is also capable of assuming, and assumes, the
risks of that Transaction.
	 
	 	(3)	 	Status of Parties. The other party is not acting as a fiduciary
for or an adviser to it in respect of that Transaction.
	 
	 	(4)	 	Eligible Contract Participants. Each party represents to the
other party that it is an “eligible contract participant” within the meaning of
the Commodity Exchange Act (as amended by the Commodity Futures Modernization
Act of 2000).






	 	(ii)	 	Party B alone makes the following representations to Party A (which
representations will be deemed to be repeated by Party B at all times until the
termination of this Agreement): -






	 	(1)	 	Risk Management. This Agreement has been, and each Transaction
hereunder has been or will be, as the case may be, entered into for the purpose
of managing its borrowings or investments, hedging its underlying assets or
liabilities, or in connection with its line of business and not for the purposes
of speculation.
	 
	 	(2)	 	Authorizations. Party B has obtained, complied with the terms of
and maintained all authorizations, approvals, licences and consents required to
enable it to lawfully to enter into and perform its obligations under this
Agreement and Transactions and to ensure the legality, validity, enforceability
or admissibility in evidence of this Agreement in the relevant jurisdiction
where Party B’s office is located.






	(n)	 	Recording of Conversations. Each party (i) consents to the recording of telephone
conversations between the trading, marketing and other relevant personnel of the parties in
connection with this Agreement or any potential Transaction, (ii) agrees to obtain any
necessary consent of, and give any necessary notice of such recording to, its relevant
personnel and (iii) agrees, to the extent permitted by applicable law, that recordings may be
submitted in evidence in any Proceedings.




5









 











Part 5. Other Provisions.





	(a)	 	Definitions and Scope of Agreement. This Agreement, each Confirmation and each Transaction
is subject to the 2000 ISDA Definitions, as published by the International Swaps and
Derivatives Association, Inc. (“ISDA”), and/or any other relevant definitions booklets
published by or in conjunction with ISDA, as amended, supplemented or updated from time to
time (together, the “Definitions”). In addition, unless otherwise specified in a
Confirmation, this Agreement, each Confirmation and each Transaction incorporates, and is
subject to and governed by the 2005 Commodity Definitions, as the same may be amended,
supplemented, updated, and restated from time to time, as published by ISDA (the “Commodity
Definitions”). In the event of any inconsistency between the provisions of this Agreement and
the Commodity Definitions, this Agreement will prevail. In the event of any inconsistency
between the provisions of any Confirmation and this Agreement or the Commodity Definitions,
such Confirmation will prevail for the purpose of the relevant Transaction.






	(b)	 	Additional Definitions. As used in this Agreement, the following terms shall have the
following meanings:






	 	(i)	 	“Credit Agreement” means that certain agreement constituting a borrowing base
revolving loan facility of up to $50,000,000, dated on or about the date of this
Agreement (as amended, restated or supplemented from time to time) among Gran Tierra
Energy Inc. (as borrower), Gran Tierra Energy Colombia, Ltd. (formerly Argosy Energy
International) and Argosy Energy Corp. (as original guarantors), the lenders party
thereto, and Standard Bank Plc (as arranger, letter of credit issuer and administrative
agent).






	(c)	 	Payment Instructions. All payments to be made hereunder in respect of foreign exchange
transactions and currency option transactions shall be made in accordance with standing
payment instructions provided by the parties (or as otherwise specified in a Confirmation).






	(d)	 	Change of Account. Section 2(b) of this Agreement is hereby amended by the addition of the
following after the word “delivery” in the first line thereof: -
	 
	 	 	“to another account in the same tax jurisdiction as the original account”






	(e)	 	Escrow Payments. If (whether by reason of the time difference between the cities in which
payments are to be made or otherwise) 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 that payments on that date are to
be made in escrow. In such a case, deposit of the payment due earlier on that date shall be
made by 2:00 p.m. (local time at the place for the earlier payment) on that date with an
escrow agent selected by the notifying party, accompanied by irrevocable payment 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 on the same
date accompanied by the irrevocable payment instructions to the same effect or (ii) if the
required deposit of the corresponding payment with is not made on the 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 all costs of the escrow arrangements.






	(f)	 	Rights of Third Parties. A person who is not a party to this Agreement has no rights to
enforce any term of this Agreement.






	(g)	 	Consent to Disclosure. Party B consents to Party A effecting such disclosure as Party A may
deem appropriate to enable Party A to transfer Party B’s records and information to process
and execute Party B’s instructions, or in pursuance of Party A’s or Party B’s commercial
interest, to any of its Affiliates. For the avoidance of doubt, Party B’s consent to
disclosure includes the right on the part of Party A to allow access to any intended recipient
of Party B’s information, to the records of Party A by any means. Any third party to whom
Party A transmits or makes available any information with respect to Party B must first be




6









 






	 	 	obligated to maintain such information in confidence as would be prudent with respect to
commercial or financial information of the type disclosed or made available.





[Remainder of page left blank intentionally]





7









 







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.




	 	 	 	 	 	 	 
	For and on behalf of STANDARD BANK PLC	 	For and on behalf of GRAN TIERRA ENERGY INC.
	 
	 	 	 	 	 	 
	By:

	 	/s/ SJ Branchflower
	 	By:
	 	 /s/ Dana Coffield
	 

	 	 
	 	 	 	 
	 

	 	Name: SJ Branchflower
	 	 	 	Name: Dana Coffield
	 

	 	Title: Senior Manager
	 	 	 	Title: President & CEO
	 

	 	Date:
	 	 	 	Date: 21 Feb 07
	 
	 	 	 	 	 	 
	By:

	 	/s/ Manuel Gonzalez-Spahr	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	Date:	 	 	 	 






ISDA Schedule