Common use of Hedging Transactions Clause in Contracts

Hedging Transactions. (a) Pursuant to Section 4.1(i), Liberty is entitled to engage in one or more Hedging Transactions, provided that: (i) no shares of Class B Common Stock shall be used for a Hedging Transaction unless such shares are first converted into shares of Common Stock in accordance with Section 4.4(b) (after Xxxxxx has had the opportunity to exercise his right to exchange such shares of Class B Common Stock for shares of Common Stock pursuant to Section 4.4); and (ii) the shares of Common Stock subject to any Hedging Transaction shall remain subject to the Liberty Proxy and no Hedging Transaction shall, prior to the settlement of such Hedging Transaction, impair Xxxxxx’x right to vote any shares of the Common Stock pursuant to Section 3.3 (it being understood that a settlement of a Hedging Transaction may result in a disposition of the shares subject to such Hedging Transaction and that, upon such disposition and the termination of all of Liberty’s legal and beneficial ownership with respect to and economic interests in such shares, Xxxxxx will not have the right to vote such shares); provided that such right shall not be deemed to be impaired to the extent that a counterparty to a Hedging Transaction to whom Common Stock has been pledged has obtained the right to vote or take consensual action with respect to the Common Stock so pledged as a result of an event of default or termination event with respect to the Liberty Stockholder Group under the Hedging Transaction; provided, further, that the terms of such pledging arrangement shall permit the Liberty Stockholder Group to exercise voting rights and to take consensual action with respect to the Common Stock so pledged in circumstances where no event of default or termination event has occurred; (b) Liberty will use its reasonable efforts to ensure that it will not be deemed part of a Group with a counterparty to a Hedging Transaction; and (c) a Hedging Transaction shall not be deemed to be a Block Sale; provided that if the settlement of a Hedging Transaction that is permitted pursuant to this Agreement would otherwise qualify as a Block Sale, then upon the written request of Liberty delivered prior to the settlement of such Hedging Transaction, such Transfer at settlement will be treated as a Block Sale pursuant to this Agreement and the Governance Agreement.

Hedging Transactions. (a) Pursuant to Section 4.1(i)No Borrower will, Liberty is entitled to engage in one or more Hedging Transactionsand will not permit any Subsidiary to, provided thatenter into any Swap Agreement with any Person other than: (i) no shares Swap Agreements with an Approved Counterparty in respect of Class B Common Stock shall be used commodities entered into not for a Hedging Transaction unless such shares are first converted into shares of Common Stock speculative purposes the notional volumes for which (when aggregated with other commodity Swap Agreements then in accordance with Section 4.4(b) (after Xxxxxx has had the opportunity to exercise his right to exchange such shares of Class B Common Stock for shares of Common Stock effect other than basis differential swaps on volumes already hedged pursuant to Section 4.4)other Swap Agreements) do not exceed, as of the date such Swap Agreement is entered into: ninety percent (90%) of the reasonably anticipated projected production from Proved Hydrocarbon Interests from Oil and Gas Properties constituting Proved Hydrocarbon Interests (as such production is projected in the most recent Reserve Report delivered pursuant to the terms of this Agreement) for each month during such period for each of crude oil, natural gas and natural gas liquids, calculated separately; provided, that (A) put option contracts or floors that are not related to corresponding calls, collars or swaps shall not be included in calculating such percentage threshold and (B) such Swap Agreements shall not, in any case, have a tenor of greater than four (4) years. It is understood that Swap Agreements in respect of commodities which may, from time to time, “hedge” the same volumes, but different elements of commodity risk thereof, shall not be aggregated together when calculating the foregoing limitations on notional volumes; and (ii) Swap Agreements in respect of interest rates with an Approved Counterparty, which effectively convert interest rates from floating to fixed, the shares notional amounts of Common Stock subject to any Hedging Transaction shall remain subject to the Liberty Proxy and no Hedging Transaction shall, prior to the settlement of such Hedging Transaction, impair Xxxxxx’x right to vote any shares which (when aggregated with all other Swap Agreements of the Common Stock pursuant Borrowers and their Subsidiaries then in effect effectively converting interest rates from floating to Section 3.3 (it being understood that a settlement of a Hedging Transaction may result in a disposition fixed) do not exceed 100% of the shares subject to such Hedging Transaction and that, upon such disposition and the termination then outstanding principal amount of all of Liberty’s legal and beneficial ownership with respect to and economic interests in such shares, Xxxxxx will not have the right to vote such shares); provided that such right shall not be deemed to be impaired to the extent that a counterparty to a Hedging Transaction to whom Common Stock has been pledged has obtained the right to vote or take consensual action with respect to the Common Stock so pledged as a result of an event of default or termination event with respect to the Liberty Stockholder Group under the Hedging Transaction; provided, further, that the terms of such pledging arrangement shall permit the Liberty Stockholder Group to exercise voting rights and to take consensual action with respect to the Common Stock so pledged in circumstances where no event of default or termination event has occurred;Loans. (b) Liberty will use its reasonable efforts In no event shall any Swap Agreement contain any requirement, agreement or covenant for any Borrower or any Subsidiary thereof to ensure that it will post collateral or margin to secure their obligations under such Swap Agreement or to cover market exposures (other than under the Collateral Documents); (c) Swap Agreements shall only be entered into in the ordinary course of business (and not be deemed part of a Group with a counterparty to a Hedging Transactionfor speculative purposes); and (cd) a Hedging Transaction If, after the end of any calendar month, the aggregate volume of all Swap Agreements in respect of commodities for which settlement payments were calculated in such calendar month (other than puts, floors, and basis differential swaps on volumes hedged by other Swap Agreements) exceeded 100% of actual production of crude oil, natural gas and natural gas liquids, calculated separately, in such calendar month, then, to the extent necessary, the Borrowers shall promptly (and in any event within 30 days of the end of such calendar month, which in such event, it shall not be deemed constitute a violation of this Section 6.05(d)), terminate, create off-setting positions, allocate volumes to be a Block Sale; provided that if other production the settlement Borrowers or any Subsidiaries are marketing, or otherwise unwind existing Swap Agreements such that, at such time, future hedging volumes will not exceed 100% of a Hedging Transaction that is permitted pursuant to this Agreement would otherwise qualify as a Block Salereasonably anticipated projected production of crude oil, then upon natural gas and natural gas liquids, calculated separately, for the written request of Liberty delivered prior to the settlement of such Hedging Transaction, such Transfer at settlement will be treated as a Block Sale pursuant to this Agreement then-current and the Governance Agreementany succeeding calendar months.

Hedging Transactions. (a) Pursuant to Section 4.1(i), Liberty is entitled to engage in one or more Hedging Transactions, provided that: (i) no shares of Class B Common Stock Seller shall be used for a Hedging Transaction unless such shares are first converted into shares of Common Stock in accordance with Section 4.4(b) (after Xxxxxx has had the opportunity to exercise his right to exchange such shares of Class B Common Stock for shares of Common Stock pursuant to Section 4.4); and (ii) the shares of Common Stock subject to any Hedging Transaction shall remain subject to the Liberty Proxy and no Hedging Transaction shall, prior to the settlement of such Hedging Transaction, impair Xxxxxx’x right to vote any shares of the Common Stock pursuant to Section 3.3 (it being understood that a settlement of a Hedging Transaction may result in a disposition of the shares subject to such Hedging Transaction and that, upon such disposition and the termination of all of Liberty’s legal and beneficial ownership with respect to and economic interests in such shares, Xxxxxx will not have the right to vote such shares); provided that such right shall not be deemed to be impaired to the extent that a counterparty to a Hedging Transaction to whom Common Stock has been pledged has obtained the right to vote or take consensual action with respect to the Common Stock so pledged as a result of an event of default or termination event with respect to the Liberty Stockholder Group under the Hedging Transaction; provided, further, that the terms of such pledging arrangement shall permit the Liberty Stockholder Group to exercise voting rights and to take consensual action with respect to the Common Stock so pledged in circumstances where no event of default or termination event has occurred; (b) Liberty will use its reasonable efforts to ensure that it enter into, on behalf of and in consultation with Xxxxx, certain assignable hedging transactions covering production from the Properties as described herein. Upon execution of this Agreement, representatives from each of Seller and Xxxxx shall jointly obtain quotations from at least two (2) counterparties chosen by Xxxxx from the parties with whom Seller has current ISDA agreements for straight swaps for quantities of the future proved developed producing oil and gas reserves attributable to the Assets and for reasonable terms to be provided by Buyer at the time of the execution of the Hedging Transactions. Upon receipt of oral instructions from the Buyer directing Seller which swaps to enter into and with which counterparty, subject to the indemnities set forth herein, Seller shall use its reasonable efforts to execute, on behalf of and for the benefit and liability of Buyers, such transactions with the counterparty providing the terms acceptable to the Buyers as set forth in such instructions (the “Hedging Transactions”). Immediately thereafter, Xxxxxx will not provide written confirmation to Seller confirming Buyers’ oral instructions. At Closing, or as soon thereafter as practicable, all such hedging arrangements shall be deemed part transferred to or novated in favor of a Group with a counterparty Xxxxxx. Whether the Closing occurs or not, Buyers shall pay, be responsible for and indemnify and hold Seller harmless from and against any and all costs, expenses and other liabilities arising from or attributable to a the Hedging Transaction; and Transactions. In any event, Seller will liquidate or novated in favor of Xxxxx (cas Xxxxx’s election) a the Hedging Transaction shall no later than March 31, 2010. In the event the closing of the transaction contemplated herein has not be deemed to be a Block Sale; provided that if the settlement of a Hedging Transaction that is permitted pursuant to occurred on or before March 31, 2010 or this Agreement would otherwise qualify as a Block Sale, then upon the written request of Liberty delivered is terminated for any reason prior to the settlement closing of such the transactions contemplated herein, Buyers shall indemnify and hold Seller harmless from and against any and all losses, costs, expenses or other liabilities arising from or related to the Hedging Transaction, such Transfer at settlement will be treated as a Block Sale pursuant to this Agreement and the Governance AgreementTransactions within in ten (10) days after receipt of invoice with respect thereto.

Hedging Transactions. (a) Pursuant Each Lender agrees that as long as it or any of its Affiliates holds any Securities it shall not, and such Lender shall cause it Affiliates not to, hold any short sale position or any hedging position with respect to Section 4.1(i), Liberty is entitled to engage any Company Securities in one or more Hedging Transactions, excess of $25,000; provided that: , notwithstanding the foregoing, any such Lender or such Affiliates may enter into any such short position or hedging position (i) no shares of Class B prior to the Effective Date, at any time during any period that that the bid price for the Common Stock as reported by the Reporting Service is equal to or greater than $0.25 (and such Lender or such Affiliate shall be used entitled to hold such short position or hedging position entered into pursuant to this clause (i) even if the bid price for a Hedging Transaction unless such shares are first converted into shares of the Common Stock in accordance with Section 4.4(bdeclines to less than $0.25) (after Xxxxxx has had the opportunity to exercise his right to exchange such shares of Class B Common Stock for shares of Common Stock pursuant to Section 4.4); and and (ii) in connection with a conversion under the shares Debenture or an exercise of Common Stock subject the Warrants. Each Lender agrees that it shall not transfer any Securities unless the transferee thereof explicitly agrees in writing to any Hedging Transaction shall remain subject be bound by the terms hereof, except in connection with transfers of Shares that are not Registrable Securities. The Company agrees that unless and until (i) the Company has affirmatively demonstrated by the use of specific clear and convincing evidence that a Lender has traded in securities of the Company in violation of applicable federal securities laws and (ii) there has been issued against such Lender a final non-appealable decision from a court of competent jurisdiction to the Liberty Proxy and no Hedging Transaction shall, prior to the settlement of effect that such Hedging Transaction, impair Xxxxxx’x right to vote any shares of the Common Stock pursuant to Section 3.3 (it being understood that a settlement of a Hedging Transaction may result in a disposition of the shares subject to such Hedging Transaction and that, upon such disposition and the termination of all of Liberty’s legal and beneficial ownership Lender has violated applicable federal securities laws with respect to and economic interests in its trading of the Company's securities, such shares, Xxxxxx will not have the right to vote such shares); provided that such right Lender shall not be deemed assumed to be impaired in compliance with such laws and the Company shall remain obligated to fulfill all of its obligations under each of the extent that a counterparty to a Hedging Transaction to whom Common Stock has been pledged has obtained the right to vote or take consensual action with respect to the Common Stock so pledged as a result of an event of default or termination event with respect to the Liberty Stockholder Group under the Hedging TransactionAgreements; provided, further, that the terms Company shall under no circumstances be entitled to request or demand that a Lender affirmatively demonstrate that it has not engaged in any such violations as a condition to the Company's fulfillment of its obligations under any of the Transaction Agreements and shall not assert, whether as an affirmative claim or a defense to any claim made against the Company, that such Lender's failure to demonstrate such absence of such pledging arrangement shall permit violations (including, but not limited to, its failure to provide any trading or other records, it being specifically agreed that the Liberty Stockholder Group Company, directly or indirectly, will request such Lender or any of its agents, advisors, brokers or representatives to exercise voting rights and to take consensual action with respect to the Common Stock so pledged provide such records in circumstances where no event of default or termination event has occurred; (bany forum) Liberty will use its reasonable efforts to ensure that it will not be deemed part of a Group with a counterparty to a Hedging Transaction; and (c) a Hedging Transaction shall not be deemed to be a Block Sale; provided that if the settlement of a Hedging Transaction that is permitted pursuant to this Agreement would otherwise qualify serves either as a Block Sale, then upon defense to any breach of the written request Company's obligations under any of Liberty delivered prior to the settlement Transaction Agreements or otherwise reflects adversely in any manner on the legality of any action taken by such Hedging Transaction, such Transfer at settlement will be treated as a Block Sale pursuant to this Agreement and the Governance AgreementLender.

Hedging Transactions. (a) Pursuant Lender agrees that as long as it or any of its Affiliates holds any Securities it shall not, and Lender shall cause it Affiliates not to, hold any short sale position or any hedging position with respect to Section 4.1(i)any Company Securities in excess of $25,000; provided that any such short sale or hedging transaction may only be made in connection with a conversion under the Debenture or an exercise of the Warrants. Lender agrees that it shall not transfer any Securities unless the transferee thereof explicitly agrees in writing to be bound by the terms hereof, Liberty is entitled to engage except in one or more Hedging Transactions, provided that: connection with transfers of Shares that are not Registrable Securities. The Company agrees that unless and until (i) no shares the Company has affirmatively demonstrated by the use of Class B Common Stock shall be used for a Hedging Transaction unless such shares are first converted into shares specific clear and convincing evidence that the Lender has traded in securities of Common Stock the Company in accordance with Section 4.4(b) (after Xxxxxx has had the opportunity to exercise his right to exchange such shares violation of Class B Common Stock for shares of Common Stock pursuant to Section 4.4); and applicable federal securities laws and (ii) there has been issued against the shares Lender a final non-appealable decision from a court of Common Stock subject to any Hedging Transaction shall remain subject competent jurisdiction to the Liberty Proxy and no Hedging Transaction shall, prior to effect that the settlement of such Hedging Transaction, impair Xxxxxx’x right to vote any shares of the Common Stock pursuant to Section 3.3 (it being understood that a settlement of a Hedging Transaction may result in a disposition of the shares subject to such Hedging Transaction and that, upon such disposition and the termination of all of Liberty’s legal and beneficial ownership Lender has violated applicable federal securities laws with respect to and economic interests in such sharesits trading of the Company's securities, Xxxxxx will not have the right to vote such shares); provided that such right Lender shall not be deemed assumed to be impaired in compliance with such laws and the Company shall remain obligated to fulfill all of its obligations under each of the extent that a counterparty to a Hedging Transaction to whom Common Stock has been pledged has obtained the right to vote or take consensual action with respect to the Common Stock so pledged as a result of an event of default or termination event with respect to the Liberty Stockholder Group under the Hedging TransactionAgreements; provided, further, that the terms Company shall under no circumstances be entitled to request or demand that the Lender affirmatively demonstrate that it has not engaged in any such violations as a condition to the Company's fulfillment of its obligations under any of the Transaction Agreements and shall not assert, whether as an affirmative claim or a defense to any claim made against the Company, that the Lender's failure to demonstrate such absence of such pledging arrangement shall permit violations (including, but not limited to, its failure to provide any trading or other records, it being specifically agreed that the Liberty Stockholder Group Company, directly or indirectly, will request the Lender or any of its agents, advisors, brokers or representatives to exercise voting rights and to take consensual action with respect to the Common Stock so pledged provide such records in circumstances where no event of default or termination event has occurred; (bany forum) Liberty will use its reasonable efforts to ensure that it will not be deemed part of a Group with a counterparty to a Hedging Transaction; and (c) a Hedging Transaction shall not be deemed to be a Block Sale; provided that if the settlement of a Hedging Transaction that is permitted pursuant to this Agreement would otherwise qualify serves either as a Block Sale, then upon defense to any breach of the written request Company's obligations under any of Liberty delivered prior to the settlement Transaction Agreements or otherwise reflects adversely in any manner on the legality of such Hedging Transaction, such Transfer at settlement will be treated as a Block Sale pursuant to this Agreement and any action taken by the Governance AgreementLender.

Hedging Transactions. (a) Pursuant to Section 4.1(i), Liberty is entitled to engage in one or more Hedging Transactions, provided that: (i) no shares of Class B Common Stock Seller shall be used for a Hedging Transaction unless such shares are first converted into shares of Common Stock in accordance with Section 4.4(b) (after Xxxxxx has had the opportunity to exercise his right to exchange such shares of Class B Common Stock for shares of Common Stock pursuant to Section 4.4); and (ii) the shares of Common Stock subject to any Hedging Transaction shall remain subject to the Liberty Proxy and no Hedging Transaction shall, prior to the settlement of such Hedging Transaction, impair Xxxxxx’x right to vote any shares of the Common Stock pursuant to Section 3.3 (it being understood that a settlement of a Hedging Transaction may result in a disposition of the shares subject to such Hedging Transaction and that, upon such disposition and the termination of all of Liberty’s legal and beneficial ownership with respect to and economic interests in such shares, Xxxxxx will not have the right to vote such shares); provided that such right shall not be deemed to be impaired to the extent that a counterparty to a Hedging Transaction to whom Common Stock has been pledged has obtained the right to vote or take consensual action with respect to the Common Stock so pledged as a result of an event of default or termination event with respect to the Liberty Stockholder Group under the Hedging Transaction; provided, further, that the terms of such pledging arrangement shall permit the Liberty Stockholder Group to exercise voting rights and to take consensual action with respect to the Common Stock so pledged in circumstances where no event of default or termination event has occurred; (b) Liberty will use its reasonable efforts to ensure that it enter into, on behalf of and in consultation with Buyer, certain assignable hedging transactions covering production from the Properties as described herein. Upon execution of this Agreement, representatives from each of Seller and Buyer shall jointly obtain quotations from at least two (2) counterparties chosen by Buyer from the parties with whom Seller has current ISDA agreements for straight swaps for quantities of the future proved developed producing oil and gas reserves attributable to the Assets and for reasonable terms to be provided by Buyer at the time of the execution of the Hedging Transactions. Upon receipt of oral instructions from the Buyer directing Seller which swaps to enter into and with which counterparty, subject to the indemnities set forth herein, Seller shall use its reasonable efforts to execute, on behalf of and for the benefit and liability of Buyers, such transactions with the counterparty providing the terms acceptable to the Buyers as set forth in such instructions (the “Hedging Transactions”). Immediately thereafter, Buyers will not provide written confirmation to Seller confirming Buyers’ oral instructions. At Closing, or as soon thereafter as practicable, all such hedging arrangements shall be deemed part transferred to or novated in favor of a Group with a counterparty Buyers. Whether the Closing occurs or not, Buyers shall pay, be responsible for and indemnify and hold Seller harmless from and against any and all costs, expenses and other liabilities arising from or attributable to a the Hedging Transaction; and Transactions. In any event, Seller will liquidate or novated in favor of Buyer (cas Buyer’s election) a the Hedging Transaction shall no later than March 31, 2010. In the event the closing of the transaction contemplated herein has not be deemed to be a Block Sale; provided that if the settlement of a Hedging Transaction that is permitted pursuant to occurred on or before March 31, 2010 or this Agreement would otherwise qualify as a Block Sale, then upon the written request of Liberty delivered is terminated for any reason prior to the settlement closing of such the transactions contemplated herein, Buyers shall indemnify and hold Seller harmless from and against any and all losses, costs, expenses or other liabilities arising from or related to the Hedging Transaction, such Transfer at settlement will be treated as a Block Sale pursuant to this Agreement and the Governance AgreementTransactions within in ten (10) days after receipt of invoice with respect thereto.