EXHIBIT 10.52
ISDA
----(R)
International Swap Dealers Association, Inc.
INTEREST RATE
AND
CURRENCY EXCHANGE AGREEMENT
April 1, 1993
Dated as of
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CAMDEN XXXXX X.X. GENERAL ELECTRIC CAPITAL
(Party A) and CORPORATION (Party B)
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have entered and/or anticipate entering into one or more transactions (each a
"Swap Transaction"). The parties agree that each Swap Transaction will be
governed by the terms and conditions set forth in this document (which includes
the schedule (the "Schedule")) and in the documents (each a "Confirmation")
exchanged between the parties confirming such Swap Transactions. Each
Confirmation constitutes a supplement to and forms part of this document and
will be read and construed as one with this document, so that this document and
all the Confirmations constitute a single agreement between the parties
(collectively referred to as this "Agreement"). The parties acknowledge that all
Swap Transactions are entered into in reliance on the fact that this document
and all Confirmations will form a single agreement between the parties, it being
understood that the parties would not otherwise enter into any Swap
Transactions.
Accordingly, the parties agree as follows:-
1. INTERPRETATION
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
any Confirmation and this document, such Confirmation will prevail for the
purpose of the relevant Swap Transaction.
2. PAYMENTS
(a) Obligations and Conditions.
(i) Each party will make each payment specified in each Confirmation as
being payable by it.
(ii) Payments under this Agreement will be made not later than 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.
(iii) Each obligation of each party to pay any amount due 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 and (2) each other applicable condition precedent
specified in this Agreement.
(b) Change of Account. Either party may change its account by giving notice to
the other party at least five days prior to the due date for payment for
which such change applies.
(c) Netting. If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Swap Transaction.
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
If the parties specify "Net Payments - Corresponding Payment Dates" in a
Confirmation or otherwise in this Agreement, sub-paragraph (ii) above will cease
to apply to all Swap Transactions with effect from the date so specified (so
that a net amount will be determined in respect of all amounts due on the same
date in the same currency, regardless of whether such amounts are payable in
respect of the same Swap Transaction); provided that, in such case, this Section
2(c) will apply separately to each Office through which a party makes and
receives payments as set forth in Section 10.
(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 Indemnifinable 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) 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 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) or (d)).
(e) Default Interest. A party that defaults in the payment of any amount due
will, to the extent permitted by law, be required to pay interest (before as
well as after judgment) on such 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,
at the Default Rate. Such interest will be calculated on the basis of daily
compounding and the actual number of days elapsed.
3. REPRESENTATIONS
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Swap Transaction is entered
into and, in the case of the representations in Section 3(f), at all times until
the termination of this Agreement) that:-
(a) Basic Representations.
(i) Status. It is duly 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 and 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 or any of its Affiliates any action, suit or
proceeding at law or in equity or before any court, tribunal, governmental
body, agency or official or any arbitrator that purports to draw into
question, or 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 paragraph 2 of Part 3 of
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 Part 2 of the
Schedule as being made by it for the purpose of this Section 3(e) is
accurate and true.
(f) Payee Tax Representation. Each representation specified in Part 2 of the
Schedule as being made by it for the purpose of this Section 3(f) is
accurate and true.
4. AGREEMENTS
Each party agrees with the other that, so long as it 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:-
(i) any forms, documents or certificates relating to taxation specified in
Part 3 of the Schedule or any Confirmation and
(ii) any other documents specified in Part 3 of the Schedule or any
Confirmation, by the date specified in Part 3 of the Schedule or such
Confirmation or, if none is specified, as soon as 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. 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 in which a branch or office through which it is acting for
the purpose of this Agreement is located ("Stamp Tax Jurisdiction") and will
indemnify the other party against any Stamp Tax levied or imposed upon the other
party or in respect of the other party's execution or performance of this
Agreement by any such Stamp Tax Jurisdiction which is not also a Stamp Tax
Jurisdiction with respect to the other party.
5. EVENTS OF DEFAULT AND TERMINATION EVENTS
(a) Events of Default. The occurrence at any time with respect to a party
or, if applicable, any Specified Entity of such party, of any of the following
events constitutes an event of default (an "Event of Default") with respect to
such party:-
(i) Failure to Pay. Failure by the party to pay, when due any amount
required to be paid by it under this Agreement if such failure is not
remedied on or before the third Business Day after notice of such failure to
pay is given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or perform any
agreement or obligation (other than an obligation to pay any amount required
to be paid by it under this Agreement or to give notice of a Termination
Event or any agreement or obligation under Section 4(a)(i) or 4(d)) to be
complied with or performed by the party in accordance with this Agreement if
such failure is not remedied on or before the thirtieth day after notice of
such failure is given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any applicable Specified Entity to
comply with or perform any agreement or obligation to be complied with
or performed by the party or such Specified Entity 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 ceasing of such Credit Support Document to be in full force and
effect, prior to the final Scheduled Payment Date of each Swap
Transaction to which such Credit Support Document relates without the
written consent of the other party; or
(3) the party or such Specified Entity repudiates, or challenges the
validity of, such Credit Support Document.
(iv) Misrepresentation. A representation (other than a representation under
Section 3(e) or (f) made or repeated or deemed to have been made or repeated
by the party or any applicable Specified Entity in this Agreement or any
Credit Support Document relating to this Agreement 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 Swaps. The occurrence of an event of default in
respect of the party or any applicable Specified Entity under a Specified
Swap which, following the giving of any
applicable notice or the lapse of any applicable grace period has
resulted in the designation or occurrence of an early termination date in
respect of such Specified Swap:
(vi) CROSS DEFAULT. If "Cross Default" is specified in Part 1 of the
Schedule as applying to the party; (1) the occurrence or existence of an
event or condition in respect of such party or any applicable Specified
Entity, under one or more agreements or instruments, relating to Specified
Indebtedness of such party or any such Specified Entity in an aggregate
amount of not less than the Threshold Amount as specified in Part 1 of 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) the failure by such party or any such Specified Entity to
make one or more payments at maturity in an aggregate amount of not less
than the Threshold Amount under such agreements or instruments (after giving
effect to any applicable grace period).
(vii) BANKRUPTCY. The party or any applicable Specified Entity:-
(1) is dissolved; (2) becomes insolvent or fails or is unable or
admits in writing its inability generally to pay its debts as they
become due; (3) makes a general assignment arrangement or composition
with or for the benefit of its creditors; (4) institutes or has
instituted against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law
or other similar law affecting creditors rights or a petition is
presented for the winding-up or liquidation of the party or any such
Specified Entity and in the case of any such proceeding or petition
instituted or presented against it such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for the winding-up or
liquidation of the party of such Specified Entity or (B) is not
dismissed, discharged, stayed or restrained in each case within 30
days of the institution or presentation thereof; (5) has a resolution
passed for its winding-up or liquidation; (6) seeks or becomes subject
to the appointment of an administrator, receiver, trustee, custodian
or other similar official for it or for all or substantially all its
assets regardless of how brief such appointment may be or whether any
obligations are promptly assumed by another entity or whether any
other event described in this clause (6) has occurred and is
continuing; (7) any event occurs with respect to the party or any such
Specified Entity which under the applicable laws of any jurisdiction
has an analogous effect to any of the events specified in clauses (1)
to (6) (inclusive) or; (8) takes any action in furtherance of or
indicating its consent to approval of or acquiescence in any of the
foregoing acts;
other than in the case of clause (1) or (5) or to the extent it relates to
those clauses, clause (8), for the purpose of a consolidation amalgamation
or merger which would not constitute an event described in (viii) below: or
(viii) MERGER WITHOUT ASSUMPTION. The party consolidates or amalgamates
with or merges into, or transfers all or substantially all its assets to
another entity and, at the time of such consolidation, amalgamation, merger
or transfer:-
(1) the resulting, surviving or transferee entity fails to assume all
the obligations of such party under this Agreement by operation of law
or pursuant to an agreement reasonably satisfactory to the other party
to this Agreement: or
(2) the benefits of any Credit Support Document relating to this
Agreement fail to extend (without the consent to the other party) to
the performance by such resulting surviving or transferee of its
obligations under this Agreement.
(b) TERMINATION EVENTS. The occurrence at any time with respect to a party or,
if applicable, any Specified Entity of such party of any event specified below
constitutes an Illegality if the event is specified in (i) below, a Tax Event if
the event is specified in (ii) below, a Tax Event Upon Merger if the event is
specified in (iii) below or a Credit Event Upon Merger if the event is specified
in (iv) below:-
(i) ILLEGALITY. Due to the adoption of, or any change in, any applicable law
after the date on which such Swap Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court, tribunal
or regulatory authority with competent jurisdiction of any applicable law
after such date, it becomes unlawful (other than as a result of a breach by
the party of Section 4(b) for such party (which will be the Affected
Party):-
(1) to perform any absolute or contingent obligation to make a payment
or to receive a payment in respect of such Swap Transaction or to
comply with any other material provision of this Agreement relating to
such Swap Transaction; or
(2) to perform or for any applicable Specified Entity to perform, any
contingent or other obligation which the party (or such Specified
Entity) has under any Credit Support Document relating to such Swap
Transaction:
(ii) TAX EVENT.
(1) The party (which will be the Affected Party) will be required on
the next succeeding Scheduled Payment Date to pay to the other party
an additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2 (e)) as a
result of a Change in Tax Law; or
(2) there is a substantial likelihood that the party (which will be the
Affected Party will be required on the next succeeding Scheduled
Payment Date to pay to the other party an additional amount in respect
of an Indemnifiable Tax under Section 2(d)(i)(4) except in respect of
interest under Section 2(e)) and such substantial likelihood results
from an action taken by a taxing authority, or brought in a court of
competent jurisdiction, or after the date on which such Swap
Transaction was entered into (regardless of whether such action was
taken or brought with respect to a party to this Agreement):
(iii) TAX EVENT UPON MERGER. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e)) or (2) receive
a payment from which an amount has been deducted or withheld for or on
account of any Indemnifiable Tax in respect of which the other party is not
required to pay an additional amount in either case as a result of a party
consolidating or amalgamating with or merging into or transferring all or
substantially all its assets to another entity (which will be the Affected
Party) where such action does not constitute an event described in Section
5(a)(viii); or
(iv) CREDIT EVENT UPON MERGER. If "Credit Event Upon Merger" is specified in
Part 1 of the Schedule as applying to the party, such party ("X")
consolidates or amalgamates with or merges into or transfers all or
substantially all its assets to another entity and such action does not
constitute an event described in Section 5(a)(viii) but the creditworthiness
of the resulting, surviving or transferee entity (which will be the Affected
Party) is materially weaker than that of X immediately prior to such action.
(c) EVENT OF DEFAULT AND ILLEGALITY. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality it will be treated as an Illegality and will not constitute an Event
of Default.
6. EARLY TERMINATION
(a) RIGHT TO TERMINATE FOLLOWING EVENT OF DEFAULT. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party 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 Swap Transactions. However, an Early Termination
Date will be deemed to have occurred in respect of all Swap Transactions
immediately upon the occurrence of any Event of Default specified in Section
5(a)(vii) (1), (2), (3), (5), (6), (7) or (8) and as of the time immediately
preceding the institution of the relevant proceeding or the presentation of the
relevant petition upon the occurrence of any Event of Default specified in
Section 5(a)(vii)(4).
(b) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
(i) Notice. Upon the occurrence of a Termination Event, an Affected Party
will, promptly upon becoming aware of the same, notify the other party
thereof, specifying the nature of such Termination Event and the Affected
Transactions relating thereto. The Affected Party will also give such other
information to the other party with regard to such Termination Event as the
other party may reasonably require.
(ii) TRANSFER TO AVOID TERMINATION EVENT. If either an Illegality under
Section 5(b)(i)( 1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv) use all
reasonable efforts (which
will not require such party to incur a loss, excluding immaterial,
incidental expenses) to transfer within 20 days after it gives notice under
Section 6(b)(i) all its rights and obligations under this Agreement in
respect of the Affected Transactions to another of its offices, branches 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, where-
upon 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 swap transactions on the terms proposed.
(iii) TWO AFFECTED PARTIES. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will use all
reasonable efforts to reach agreement within 30 days after notice thereof is
given under Section 6(b)(i) on action that would cause such Termination
Event to cease to exist.
(iv) RIGHT TO TERMINATE. If:-
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party gives
notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2) or a Credit Event Upon
Merger occurs, or a Tax Event Upon Merger occurs and the Burdened Party
is not the Affected Party.
either party in the case of an Illegality, the Burdened Party in the case of a
Tax Event Upon Merger, any Affected Party in the case of a Tax Event, or the
party which is not the Affected Party in the case of a Credit Event Upon Merger
may by not more than 20 days notice to the other party and provided that the
relevant Termination Event is then continuing, designate a day not earlier than
the day such notice is effective as an Early Termination Date in respect of all
Affected Transactions.
(C) EFFECT OF DESIGNATION.
(i) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so designated
whether or not the relevant Event of Default or Termination Event is
continuing on the relevant Early Termination Date.
(ii) Upon the effectiveness of notice designating an Early Termination Date
(or the deemed occurrence of an Early Termination Date), the obligations of
the parties to make any further payments under Section 2(a)(i) in respect of
the Terminated Transactions will terminate. but without prejudice to the
other provisions of this Agreement.
(d) CALCULATIONS.
(i) STATEMENT. Following the occurrence of an Early Termination Date, each
party will make the calculations (including calculation of applicable
interest rates) on its part contemplated by Section 6(e) and will provide to
the other party a statement (1) showing, in reasonable detail, such
calculations (including all relevant quotations) and (2) giving details of
the relevant account to which any payment due to it under Section 6(e) is to
be made. In the absence of written confirmation of a quotation obtained in
determining a Market Quotation from the source providing such quotation, the
records of the party obtaining such quotation will be conclusive evidence of
the existence and accuracy of such quotation.
(ii) DUE DATE. The amount calculated as being payable under Section 6(e)
will be due on the day that notice of the amount payable is effective (in
the case of an Early Termination Date which is designated or deemed to occur
as a result of an Event of Default) and not later than the day which is two
Business Days after the day on which notice of the amount payable is
effective (in the case of an Early Termination Date which is designated as a
result of a Termination Event). Such amount will be paid together with (to
the extent permitted under applicable law) interest thereon in the
Termination Currency from (and including) the relevant Early Termination
Date to (but excluding) the relevant due date, calculated as follows:-
(1) if notice is given designating an Early Termination Date or if
an Early Termination Date is deemed to occur in either case as a
result of an Event of Default, at the Default Rate; or
(2) if notice is given designating an Early Termination Date as a
result of a Termination Event, at the Default Rate minus 1% per annum.
Such interest will be calculated on the basis of daily compounding and
the actual number of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION.
(i) DEFAULTING PARTY OR ONE AFFECTED PARTY. If notice is given designating
an Early Termination Date or if an Early Termination Date is deemed to occur
and there is a Defaulting Party or only one Affected Party, the other party
will determine the Settlement Amount in respect of the Terminated
Transactions and:-
(1) if there is a Defaulting Party, the Defaulting Party will pay to the
other party the excess, if a positive number, of (A) the sum of such
Settlement Amount and the Termination Currency Equivalent of the Unpaid
Amounts owing to the other party over (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party; and
(2) if there is an Affected Party, the payment to be made will be equal
to (A) the sum of such Settlement Amount and the Termination Currency
Equivalent of the Unpaid Amounts owing to the party determining the
Settlement Amount ("X") less (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the party not determining the Settlement
Amount ("Y").
(ii) TWO AFFECTED PARTIES. If notice is given of an Early Termination Date
and there are two Affected Parties, each party will determine a Settlement
Amount in respect of the Terminated Transactions and the payment to be made
will be equal to (1) the sum of (A) one-half of the difference between the
Settlement Amount of the party with the higher Settlement Amount ("X") and
the Settlement Amount of the party with the lower Settlement Amount ("Y")
and (B) the Termination Currency Equivalent of the Unpaid Amounts owing to X
less (2) the Termination Currency Equivalent of the Unpaid Amounts owing to
Y.
(iii) PARTY OWING. If the amount calculated under Section 6(e)(i)2) or (ii)
is a positive number, Y will pay such amount to X, if such amount is a
negative number, X will pay the absolute value of such amount to Y.
(iv) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an Early Termination
Date is deemed to occur, the amount determined under Section 6(c)(i) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments made by one party to the other under this Agreement
(and retained by such other party) during the period from the relevant Early
Termination Date to the date for payment determined under Section 6(d)(ii).
(v) PRE-ESTIMATE OF LOSS. The parties agree that the amounts recoverable
under this Section 6(e) are a reasonable pre-estimate of loss and not a
penalty. Such amounts are payable for the loss of bargain and the loss of
protection against future risks and except as otherwise provided in this
Agreement neither party will be entitled to recover any additional damages
as a consequence of such losses.
7. TRANSFER
Subject to Section 6(b) and to any exception provided in the Schedule, neither
this Agreement nor any interest or obligation in or under this Agreement may be
transferred by either party without the prior written consent of the other party
(other than pursuant to a consolidation or amalgamation with or merger into or
transfer of all or substantially all its assets to, another entity) and any
purported transfer without such consent will be void.
8. CONTRACTUAL CURRENCY
(a) PAYMENT IS THE CONTRACTUAL CURRENCY. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amount, due 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 due 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 due 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 judgement 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 judgement or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgement 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 judgement or order for the purposes of such
judgement or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgement or order actually received by such
party. The term "rate of exchange" includes, without limitation, any premiums
and costs of exchange payable in connection with the purchase of or conversion
into the Contractual Currency.
(C) SEPARATE INDEMNITIES. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums due 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 panics with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing and executed by each of the
parties or confirmed by an exchange of telexes.
(c) SURVIVAL OF OBLIGATIONS. Except as provided in Section 6(c)(ii), the
obligations of the parties under this agreement will survive the termination of
any Swap 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 may be executed in counterparts, each of which will be
deemed an original.
(ii) A Confirmation maybe executed in counterparts or be created by an
exchange of telexes, which in either case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. Any such
counterpart or telex will specify that it 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 arc not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. MULTIBRANCH PARTIES
If a party is specified as a Multibranch Party in Part 4 of the Schedule, such
Multibranch Party may make and receive payments under any Swap Transaction
through any of its branches or offices listed in the Schedule (each an
"Office"). The Office through which it so makes and receives payments for the
purpose of any Swap Transaction will be specified in the relevant Confirmation
and any change of Office for such purpose requires the prior written consent of
the other party. Each Multibranch Party, represents to the other party that,
notwithstanding the place of payment, the obligation of each Office are for all
purposes under this Agreement the obligations of such Multibranch Party. This
representation will be deemed to be repeated by such Multibranch Party on each
date on which a Swap Transaction is entered into.
11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or by reason of the early,
termination of any Swap Transaction, including, but not limited to, costs of
collection.
12. NOTICES
(a) EFFECTIVENESS. Any notice or communication in respect of this Agreement
will be sufficiency given to a party if in writing and delivered in person,
sent by certified or registered mail (airmail, if overseas) or the
equivalent (with return receipt requested) or by overnight courier or given
by telex (with answerback received) at the address or telex number specified
in Part 4 of the Schedule. A notice or communication will be effective:-
(i) if delivered by hand or sent by overnight courier, on the day it is
delivered (or if that day is not a day on which commercial banks are open
for business in the city specified in the address for notice provided by the
recipient (a "Local Banking Day"), or if delivered after the close of
business on a Local Banking Day, on the first following day that is a Local
Banking Day;
(ii) if sent by telex, on the day the recipient's answerback is received (or
if that day is not a Local Banking Day, or if after the close of business on
a Local Banking Day on the first following day that is a Local Banking Day);
or
(iii) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), three Local Banking Days after
despatch if the recipient's address for notice is in the same country as the
place of despatch and otherwise seven Local Banking Days after despatch.
(b) CHANGE OF ADDRESSES. Either party may by notice to the other change the
address or telex number at which notices or communications are to be given to
it.
13. GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the law specified in Part 4 of the Schedule.
(b) JURISDICTION. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:-
(i) submits to the jurisdiction of the English courts if this Agreement is
expressed to be governed by english law, or to, the non-exclusive
jurisdiction of the courts of the State of New york and the united states
District Court located in the Borough of Manhattan in New York City, if this
Agreement is expressed to be governed by the laws of the State of New York;
and
(ii) waives any 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 jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 10) of the Civil
Jurisdiction and Judgements Xxx 0000 or any modification extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) SERVICE OF PROCESS. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in Part 4 of the Schedule to receive, for it
and an 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. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) WAIVER OF IMMUNITIES. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution 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:-
"AFFECTED PARTY" has the meaning specified in Section 5(b).
"AFFECTED TRANSACTIONS" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all Swap
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Swap Transactions.
"AFFILIATE" means, subject to Part 4 of 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 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.
"BURDENED PARTY" has the meaning specified in Section 5(b).
"BUSINESS DAY" means (a) in relation to any payment due under Section 2(a)(i), a
day on which commercial banks and foreign exchange markets are open for business
in the place(s) specified in the relevant Confirmation and (b) in relation to
any other payment, a day on which commercial banks and foreign exchange markets
are open for business in the place where the relevant account is located and, if
different, in the principal financial center of the currency of such payment.
"CHANGE IN TAX LAW" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Swap Transaction is entered into.
"CONSENT" includes a consent, approval, action, authorization, exemption,
notice, filing, registration or exchange control consent.
"CREDIT EVENT UPON MERGER" has the meaning specified in Section 5(b).
"CREDIT SUPPORT DOCUMENT" means any agreement or instrument which is specified
as such in this Agreement.
"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) of
funding the relevant amount plus 1% per annum.
"DEFAULTING PARTY" has the meaning specified in Section 6(a).
"EARLY TERMINATION DATE" means the date specified as such in a notice given
under Section 6(a) or 6(b)(iv).
"EVENT OF DEFAULT" has the meaning specified in Section 5(a).
"ILLEGALITY" has the meaning specified in Section 5(b).
"INDEMNIFIABLE TAX" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organized present or engaged in a trade or business in
such jurisdiction or having or having had a permanent establishment or fixed
place of business in such jurisdiction but excluding a connection arising solely
from such recipient or related person having executed, delivered, performed its
obligations or received a payment
under, or enforced, this Agreement or a Credit Support Document).
"LAW" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters. by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"LOSS" means, with respect to a Terminated Transaction and a party, an amount
equal to the total amount (expressed as a positive amount) required as
determined as of the relevant Early Termination Date (or, if an Early
Termination Date is deemed to occur, as of a time as soon thereafter as
practicable) by the party in good faith, to compensate it, for any issues and
costs, including loss of bargain and costs (including loss of bargain and costs
of funding but excluding legal fees and other out-of-pocket expenses) that it
may incur as a result of the early termination of the obligations of the parties
in respect of such Terminated Transaction. If a party determines that it would
gain or benefit from such early termination, such party's Loss will be an amount
(expressed as a negative amount) equal to the amount of the gain or benefit as
determined by such party.
"MARKET QUOTATION" means, with respect to a Terminated Transaction and a party
to such Terminated Transaction making the determination an amount (which may be
negative) determined on the basis of quotations from Reference Market-makers for
the amount that would be or would have been payable on the relevant Early
Termination Date either by the party to the Terminated Transaction making the
determination (to be expressed as a positive amount) or to such party (to be
expressed as a negative amount) in consideration of an agreement between such
party and the quoting Reference Market-maker and subject to such documentation
as they may in good faith agree with the relevant Early Termination Date as the
date of commencement of such agreement (or if later the date specified as the
effective date of such Terminated Transaction in the relevant Confirmation) that
would have the effect of preserving for such party the economic equivalent of
the payment obligations of the parties under Section 2(a)(i) in respect of such
Terminated Transaction that would. but for the occurrence of the relevant Early
Termination Date fall due after such Early Termination Date (excluding any
Unpaid Amounts in respect of such Terminated Transaction but including, without
limitation, any amounts that would but for the occurrence of the relevant Early
Termination Date have been payable (assuming each applicable condition precedent
had been satisfied) after such Early Termination Date by reference to any period
in which such Early Termination Date occurs). The party making the determination
(or its agent) will request each Reference Market-maker to provide its quotation
to the extent practicable as of the same time (without regard to different time
zones) on the relevant Early Termination Date (or, if an Early Termination Date
is deemed to occur as of a time as soon thereafter as practicable). The time as
of which such quotations are to be obtained 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. If more than three such
quotations are provided. the Market Quotation will be the arithmetic mean of the
Termination Currency Equivalent of the quotations. without regard to the
quotations having the highest and lowest values. If exactly three such
quotations are provided. the Market Quotation will be the quotation remaining
after disregarding the quotations having the highest and lowest values. If fewer
than three quotations are provided. it will be deemed that the market quotation
in respect of such terminated transaction cannot be determined.
"OFFICE" has the meaning specified in Section 10.
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"REFERENCE MARKET-MAKERS" means four leading dealers in the relevant swap market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and N to the extent practicable. from among such dealers
having an office in the same city.
"RELEVANT JURISDICTION" means. with respect to a party, the jurisdictions (a) in
which the party is incorporated, organized. managed and controlled or considered
to have its seat, (b) where a branch or office through which the party is acting
for purposes of this agreement is located (c) in which the party executes this
Agreement and (d) in relation to any payment. from or through which such payment
is made.
"SCHEDULED PAYMENT DATE" means a date on which a payment is due under Section
2(a)(i) with respect to a Swap Transaction.
"SETTLEMENT AMOUNT" means, with respect to a party and any Early Termination
Date, the sum of:-
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction for which a Market
Quotation is determined; and
(b) for each Terminated Transaction for which a Market Quotation is not, or
cannot be, determined the Termination Currency Equivalent of such party's Loss
(whether positive or negative);
provided that if the parties agree that an amount may be payable under Section
6(e) to a Defaulting, Party by the other party, no account shall be taken of a
Settlement Amount expressed as a negative number.
"SPECIFIED ENTITY" has the meaning specified in Part I of the Schedule.
"SPECIFIED INDEBTEDNESS" means, subject to Part I of the Schedule, any
obligation (whether present or future, contingent or otherwise, as principal or
surety or otherwise) in respect of borrowed money.
"SPECIFIED SWAP" means, subject to Part I of the Schedule, any rate swap or
currency exchange transaction now existing or hereafter entered into between
one party to this Agreement (or any applicable Specified Entity) and the other
party to this Agreement (or any applicable Specified Entity).
"STAMP TAX" means any stamp, registration, documentation or similar tax.
"TAX" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"TAX EVENT" has the meaning specified in Section 5(b).
"TAX EVENT UPON MERGER" has the meaning specified in Section 5(b).
"TERMINATED TRANSACTIONS" means (a) with respect to any Early Termination Date
occurring as a result of a Termination Event, all Affected Transactions and (b)
with respect to any Early Termination Date occurring as a result of an Event of
Default, all Swap Transactions, which in either case are in effect as of the
time immediately preceding the effectiveness of the notice designating such
Early Termination Date (or, in the case of an Event of Default specified in
Section 5(a)(vii), in effect as of the time immediately preceding such Early
Termination Date).
"TERMINATION CURRENCY" has the meaning specified in Part 1 of the Schedule.
"TERMINATION CURRENCY EQUIVALENT" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date 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 the relevant Early Termination 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 the party and otherwise will be agreed by the parties,
"TERMINATION EVENT" means an Illegality, a Tax Event, a Tax Event Upon Merger or
a Credit Event Upon Merger.
"UNPAID AMOUNTS" owing to any party means, with respect to any Early Termination
Date, the aggregate of the amounts that became due and payable (or that would
have become due and payable but for Section 2(a)(iii) or the designation or
occurrence of such Early Termination Date) to such party under Section 2(a)(i)
in respect of all Terminated Transactions by reference to all periods ended on
or prior to such Early Termination Date and which remain unpaid as at such Early
Termination Date, together with (to the extent permitted under applicable law
and in lieu of any interest calculated under Section 2(e)) interest thereon, in
the currency of such amounts, from (and including) the date such amounts became
due and payable or would have become due and payable to (but excluding) such
Early Termination Date, calculated as follows:-
(a) in the case of notice of an Early Termination Date given as a result of an
Event of Default:-
(i) interest on such amounts due and payable by a Defaulting Party will be
calculated at the Default Rate, and
(ii) interest on such amounts due and payable by the other party will be
calculated at a rate per annum equal to the cost to such other party (as
certified by it) if it were to fund such amounts (without proof or evidence
of any actual cost), and
(b) in the case of notice of an Early Termination Date given as a result of a
Termination Event, interest on such amounts due and payable by either party will
be calculated at a rate per annum equal to the arithmetic mean of the cost
(without proof or evidence of any actual cost) to each party (as certified by
such party and regardless of whether due and payable by such party) if it were
to fund or of funding such amounts.
Such amounts of interest will be calculated on the basis of daily compounding
and the actual number of days elapsed.
IN WITNESS WHEREOF the parties have executed this document as of the date
specified on the first page of this document.
CAMDEN XXXXX X.X. GENERAL ELECTRIC CAPITAL CORPORATION
------------------------------ ------------------------------------
(Name of party) (Name of party)
By: Cogen Technologies Camden
G.P. Limited Partnership,
as its sole general partner
By: Cogen Technologies Camden, By: /s/ Xxxxx Xxxxxxx
Inc., as its Sole general ----------------------------------
partner
Name: Xxxxx Xxxxxxx
By: /s/ [Signature appears here]
------------------------------ Title: Associate General Counsel,
Treasury Operations and
Title: Vice President Assistant Secretary
---------------------------
SCHEDULE
TO THE
INTEREST RATE AND CURRENCY EXCHANGE AGREEMENT
DATED AS OF APRIL 1, 1993
BETWEEN CAMDEN XXXXX X.X.,
A DELAWARE LIMITED PARTNERSHIP ("PARTY A")
AND
GENERAL ELECTRIC CAPITAL CORPORATION ("PARTY B")
PART 1
TERMINATION PROVISIONS
In this Agreement -
(1) "SPECIFIED ENTITY" means in relation to Party A and Party B for the purpose
of Sections 5(a)(iii), (iv), (v), (vi) and (vii) and Section 5(b)(i): Not
applicable
(2) "SPECIFIED SWAP" will have the meaning specified in Section 14 unless
another meaning is specified here:
"SPECIFIED SWAP" means, any rate swap or currency exchange
transaction (other than this Agreement and any Swap Transaction entered
into pursuant to this Agreement), any rate cap agreement, any rate collar
agreement any rate floor agreement any forward rate agreement or any
forward foreign exchange agreement, or any option with respect to any such
transactions, however designated, now existing or hereafter entered into,
to which both Party A and Party B are a party.
(3) Sections 5(a)(i) and (ii) are amended in their entirety as follows:
(i) "FAILURE TO PAY" means failure by the party to pay, when due, any
amount required to be paid by it under this Agreement if such failure is
not remedied on or before the fifth Business Day after notice of such
failure to pay is given to the party.
(ii) "BREACH OF AGREEMENT" means; failure by the party to comply with
or perform any agreement or obligation (other than obligation to pay any
amount required to be paid by it under this Agreement or to give notice of
a Termination Event or any agreement or obligation under Section 4(a)(i) or
4(d) to be complied with or performed by the party in accordance with this
Agreement if such failure is not
2
remedied on or before the thirtieth day after notice of such failure is
given to the party; provided, however, that if such failure is susceptible
to cure, such 30 day period shall be "tended for such additional period of
time (not to exceed 60 days) during which such party shall be diligently
using its best efforts to cure such default.
(4) The "CREDIT SUPPORT DEFAULT" provisions of Section 5(a)(iii) will not apply
to Part A or Party B.
(5) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will not apply to Party
B but will apply to Party A. For such purpose, Section 5(a)(vi) is amended
by deleting subclauses (1) and (2) in their entirety and replacing them
with the following:
The acceleration of any "Obligations" as defined in the Amendment and
Restatement dated as of April 1, 1993 of the Construction and Term Loan
Agreement dated as of February 4, 1992 (as amended, supplemented or
otherwise modified from time to time, the "Loan Agreement") among Party A,
General Electric Capital Corporation, as Agent, General Electrical Capital
Corporation, as Senior Tranche Agent, General Electrical Capital
Corporation, as Junior Tranche Agent and the financial institutions parties
thereto from time to time as lenders (collectively, the "Lenders") pursuant
to the occurrence and during the continuance of an "Event of Default" (as
defined in the Loan Agreement).
(6) Sections 5(a)(vii) and (viii) are amended by deleting the words "The party"
appearing therein and substituting in lieu thereof, "Party B".
(7) "TERMINATION CURRENCY" means United States Dollars.
(8) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv):
will not apply to Party A
will not apply to Party B
(9) Title "TAX EVENT" provisions of Section 5(b)(ii):
will not apply to Party A
will not apply to Party B
The "TAX EVENT UPON MERGER" provisions of Section 5(b)(iii):
will not apply to Party A
will not apply to Party B
(10) Section 6(a) is amended in its entirely as follows:
(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 may, by not more than 20 days
notice to the Defaulting
3
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 Swap Transactions. However, an Early Termination
Date will be deemed to have occurred in respect of all Swap Transactions
immediately upon the occurrence of, with respect to Party B, any Event of
Default specified in Section 5(a)(vii)(1), (2), (3), (5), (6), (7) or (8),
or with respect to Party A, any "Event of Default" regarding Party A
specified in paragraph (f) or paragraph (g) of Section 9 of the Loan
Agreement (as defined in the ISDA Schedule), and with respect to Party B,
as of the time immediately preceding the institution of the relevant
proceeding or the presentation of the relevant petition upon the occurrence
of any Event of Default specified in Section 5(a)(vii)(4), or with respect
to Party A, the relevant proceeding or the presentation of the relevant
petition upon the occurrence of any "Event of Default" specified in the
corresponding subparagraphs of paragraph (f) or paragraph (g) of Section 9
of the Loan Agreement.
PART 2
TAX REPRESENTATIONS
No representations will apply
PART 3
DOCUMENTS TO BE DELIVERED
For the purpose of Section 4(a):
(1) Tax forms, documents or certificates to be delivered are: Not applicable
(2) Other documents to be delivered are:
DATE BY COVERED BY
PARTY REQUIRED FORM/DOCUMENT/ WHICH TO (S)(3)(D)
TO DELIVER CERTIFICATE BE DELIVERED REPRESENTATION
-------------- -------------- ------------ --------------
Party A & B Financial Information See Part 5 Yes
described in Part 5(l)
Party A & B Evidence of execution See Part 5 Yes
and delivery as
described in Part 5(2)
Party A Opinion of Counsel in At execution No
form and substance or promptly
satisfactory to Party B following
4
PART 4
MISCELLANEOUS
(1) GOVERNING LAW. This Agreement will be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(2) PROCESS AGENT. For the purpose of Section 13(c):
Party A appoints as its Process Agent: CT Corporation System.
Party B appoints as its Process Agent: Not applicable
(3) "AFFILIATE" will have the meaning specified in Section 14; provided,
however, P shall not be deemed an Affiliate of Party B.
(4) MULTIBRANCH PARTY. For the purpose of Section 10:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(5) For the purpose of Section 12(a):
Address for notices or communications to Party A:
Address: Camden Xxxxx X.X.
c/o Cogen Technologies
0000 Xxxxx Xxxxxx
Xxxxx 0000, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with copies to: General Electric Capital Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: V.P. Energy Project Operations, Transportation and
Industrial Financing Division,
with a copy to Xxxxxxxx Xxx, Assistant Treasurer
Telecopy: (000) 000-0000
5
Address for notices or communications to Party B:
Address: General Electric Capital Corporation
000 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxxx Xxx, Assistant Treasurer
Telex No.: 211440
Answerback: GECCSUR
Facsimile: (000) 000-0000
(6) CREDIT SUPPORT DOCUMENT: Each of the documents identified on Annex A hereto
shall be a Credit Support Document to the extent it relates to or secures
any Swap Transaction. Details of any Credit Support Document:
Party A: At the execution of the Swap Agreement, Party A shall deliver to
Party B duly executed copies of each of the Credit Support
Documents identified on Annex A hereto and not previously
delivered to Party B.
Party B: None
(7) NETTING OF PAYMENTS. If indicated here, "Net Payments--Corresponding
Payment Dates" will apply for the purpose of Section 2(c) with effect from
the date of this Agreement: Yes
(8) Confirmation by Telecopier. Section 9(b) of the Agreement is modified by
adding "(which shall include communications by telecopy)" after the word
"parties". Section 9(e)(i) of the Agreement is modified by adding "(which
counterparts may be in telecopy form)" after the word "counterparts".
Section 9(e)(ii) of the Agreement is modified by adding "(which
counterparts may be in telecopy form)" after the word "counterparts" in the
first sentence.
PART 5
OTHER PROVISIONS
(1) Upon request of Party B, Party A agrees to furnish to Party B a copy of any
financial or other information that is made available to any of the Lenders
party to the Loan Agreement pursuant to Section 7.13 thereof a copy of
which section is attached hereto as Annex B. Upon the request of Party A
and within a reasonable time after public availability, Party B agrees to
furnish to Party A a copy of Party B's Form 10-K as
6
filed with the Securities and Exchange Commission for the last fiscal year
and a copy of Party B's Form 10-Q as filed with the Securities and Exchange
Commission with respect to the first three quarters of Party B's fiscal
year.
(2) The parties agree that, at or promptly following the execution and delivery
of this Agreement, and, if a Confirmation so requires on or before the date
set forth therein, each party shall deliver to the other evidence,
reasonably satisfactory in form and substance to the receiving party,
concerning the due execution and delivery of this Agreement or such
Confirmation.
(3) Transfer. Section 7 is modified to read in its entirety as follows:
Neither this Agreement nor any interest or obligation in or under this
Agreement may be transferred by either party without the prior written
consent of the other party (which shall not be unreasonably withheld)
(other than pursuant to a consolidation or amalgamation with, or merger
into, or transfer of all or substantially all its assets to another entity)
and any purported transfer without such consent win be void, except that
Party A may assign its rights hereunder to General Electric Capital
Corporation, as Agent, pursuant to the Security Agreement listed as Item
(ii) on Annex A hereto.
(4) CONFIRMATIONS. Notwithstanding anything to the contrary in the Agreement:
(a) The parties hereto agree that with respect to each Swap
Transaction hereunder, a legally binding agreement shall exist from the
moment that the parties hereto agree on the essential terms of such Swap
Transaction, which the parties anticipate will occur by telephone.
(b) For each Swap Transaction Party A and Party B agree to enter into
hereunder, Party B shall promptly send to Party A a telex or facsimile
transmission (a "Preliminary Confirmation") setting forth the essential
terms of such Swap Transaction. Party A shall respond to such terms by
confirming them or by requesting correction of any error via telex or
facsimile transmission.
(c) As soon as possible after agreement regarding a Swap Transaction
as set forth above, Party A shall complete a Confirmation in substantially
the form of Annex C hereto setting forth the terms agreed by the parties
and shall execute and send two copies of Such Final Confirmation to Party
B. Upon execution and return of one copy of the Final Confirmation by Party
B, the terms set forth in the Final Confirmation shall supersede and
replace the telephone agreement and/or the Preliminary Confirmation, and
such telephone agreement or Preliminary Confirmation shall thereafter cease
to be of any legal force or effect. Failure of Party B to sign and return a
Final Confirmation shall not affect the validity or enforceability of the
relevant Swap Transaction.
(d) A Preliminary Confirmation or a Final Confirmation shall
constitute a Confirmation for purposes of this Agreement.
7
(5) CURRENCY EXCHANGE DEFINITIONS. Reference is hereby made to the 1991
Interest Rate and Currency Exchange Definitions (the "Currency Exchange
Definitions") published by the International Swap Dealers Association, Inc.
(without regard to any amendments thereto subsequent to the date hereof),
which are hereby incorporated by reference herein. Any terms used and not
otherwise defined herein which are contained in the Currency Exchange
Definitions shall have the meaning set forth therein.
(6) CALCULATION AGENT. The Calculation Agent shall be Party B.
(7) INCONSISTENCY. In the event of any inconsistency between the provisions of
this Schedule, the printed form of Agreement of which it is a part or the
Currency Exchange Definitions, the provisions set forth in this Schedule
will prevail, and in the event of any inconsistency between the provisions
of a Confirmation and this Schedule, the printed form of Agreement or the
Currency Exchange Definitions, the provisions set forth in the Confirmation
will prevail.
(8) LIMITATION OF LIABILITY. Party B agrees that the liability of Party A under
this Agreement shall be limited to the Collateral (as defined in the Loan
Agreement) and the rights and remedies of Party B against the Collateral
pursuant to the Collateral Security Documents, and in no event shall Party
A or any officer, director, partner or Affiliate (as defined in the Loan
Agreement) thereof be personally liable or obligated for any such
obligations. Nothing herein shall limit the full recourse of Party B to the
Collateral pursuant to the Collateral Security Documents or be deemed to
constitute a waiver of liability, if any, of any Person for damages for
fraud or for any knowing misrepresentation made by such Person herein or in
any other Basic Document (as defined in the Loan Agreement) or in any
certificate or other document delivered pursuant hereto or thereto.
(9) ACKNOWLEDGMENT OF SWAP AGREEMENT. The parties hereby agree that this
Agreement constitutes the "Interest Rate Hedging Agreement" under and as
defined in the Loan Agreement.
(10) UNDERTAKING OF CALCULATION AGENT. Promptly after making each calculation
hereunder, the Calculation Agent shall deliver to Party A shall certificate
setting forth such calculation which shall be conclusive and binding on
Party A in the absence of manifest error.
8
Please confirm your agreement to the terms of the foregoing Schedule by signing
below.
CAMDEN XXXXX X.X.
By: Cogen Technologies Camden G.P. Limited Partnership,
as its sole general partner
By: Cogen Technologies Camden, Inc., as its sole
general partner
By__________________________________
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By ________________________________
Title: Vice President and Treasurer
ANNEX A TO
ISDA SCHEDULE
-------------
CREDIT SUPPORT DOCUMENTS
------------------------
The Collateral Security Documents as defined in the Loan Agreement (as
defined in the ISDA Schedule), namely, (i) the Mortgage, (ii) the Security
Agreement, (iii) the Security Deposit Agreement, (iv) the Assignments, (v) the
Consents to Assignment, (vi) the Cogen Pledge Agreement and (vii) any other
agreement or instrument specifically identified in writing by the Borrower and
an Agent to be a Collateral Security Document.
ANNEX B TO
ISDA SCHEDULE
-------------
7.13 Financial Statements./1/ The Borrower shall furnish or cause to
be furnished to the Agent and each Lender:
(a) as soon as available, but in any event within 120 days after the
end of each fiscal year of each Reporting Participant, a copy of the
balance sheet of such Reporting Participant as of the end of such fiscal
year and the related statements of income, partners' capital and statements
of changes in partners' capital and cash flow of such Reporting Participant
for such fiscal year, setting forth, after fiscal year 1991, in each case
in comparative form the figures for the previous fiscal year, certified
without qualification or exception as to the scope of its audit by
independent public accountants of national standing reasonably acceptable
to the Agent; and
(b) as soon as available, but in any event within 60 days after the
end of each quarterly period of each fiscal year of each Reporting
Participant (other than the last quarterly period of each such fiscal
year), the unaudited balance sheet of such Reporting Participant as of the
end of such quarterly period and the related unaudited statements of income
and partners' capital and statements of changes in partners' capital and
cash flow of such Reporting Participant for such quarterly period and for
the portion of the fiscal year then ended, setting forth, after fiscal year
1991, in each case in comparative form the figures for the previous period,
certified by the chief executive officer or chief financial officer of such
Reporting Participant (subject to normal year-end audit adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein (except for
changes approved or required by the independent public accountants certifying
such statements and disclosed therein).
--------------------
/1/ Capitalized terms used in this Annex B Without definition shall have the
meanings assigned to such terms in the Loan Agreement.
CAMDEN XXXXX XX.
c/o Camden Technologies
0000 Xxxxx Xxxxxx
Xxxxx 0000, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
April 21, 1993
Swap Transaction
General Electric Capital Corporation
000 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Vice President and Treasurer
Ladies and Gentlemen:
The purpose of this communication is to set forth the terms and
conditions of the Swap Transaction entered into between Camden Xxxxx X.X.,
(being referred to herein as "Party A") and General Electric Capital Corporation
("Party B") on the Trade Date specified below (the "Swap Transaction"). This
communication will constitute a "Confirmation" as referred to in the Interest
Rate and Currency Exchange Agreement specified below.
The definitions and provisions contained in the 1991 Interest Rate and
Currency Exchange Definitions, (as published by the International Swap Dealers
Association, Inc. ("ISDA")) (the "Definitions") are incorporated by reference
into this Confirmation. In the event of any inconsistency between the
Definitions and this Confirmation, this Confirmation will govern.
1. This Confirmation supplements, forms part of and is subject to the
Interest Rate and Currency Exchange Agreement dated as of April 1, 1993 (as
amended and supplemented from time to time, the "Swap Agreement") between
you and us. All provisions contained in the Swap Agreement will govern this
Confirmation except as expressly modified below.
2. Tie terms of the particular Swap Transaction to which this
confirmation relates are as follows:
2
Notional Amount: As set forth on Schedule I hereto
Trade Date: April 21, 1993
Effective Date: April 23, 1993
Termination Date: May 1, 2007, subject to adjustment in accordance
with the Modified Following Business Day
Convention
Fixed Amounts:
Fixed Rate Payer: Party A
Fixed Rate Payer
Payment Dates: February 1, May 1, August 1 and November 1 of each
year to and including May 1, 2007, subject to
adjustment in accordance with the Modified Following
Business Day Convention
Fixed Rate: 5.945%
Fixed Rate Day Count
Fraction: Actual/360
Floating Amounts:
Floating Rate Payer: Party B
Floating Rate Payer
Payment Dates: February 1, May 1, August 1 and November 1 of each
year to and including May 1, 2007, subject to
adjustment in accordance with the Modified Following
Business Day Convention
Floating Rate Option: USD-LIBOR BBA Telerate Page 3750
Designated Maturity: Three months
Floating Rate Day
Count Fraction: Actual/360
3
Compounding: Inapplicable
Business Days: New York
Calculation Agent: Party B
3. Account Details
Payments to Party A.
Midlantic National Bank, as Security Agent (the "Security Agent") under
that certain Amended and Restated Security Deposit Agreement, dated as of April
1, 1993, among Party A, General Electric Capital Corporation and the other
parties named therein, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention:
Corporate Trust Department
For Deposit in the "Camden Xxxxx X.X. Debt Service Account"
Account Number: 1101-5206
ABA No: 000-000-000
Attention: X. Xxxxxxx
Telephone: (000) 000-0000
Payments to Party B:
Bankers Trust Company
New York, N.Y.
ABA # 0000-0000-0
GECC/T&I Depository Account
Account No. 00-000-000
4. Offices
a. The Office of Party A for the Swap Transaction is 0000 Xxxxx Xxxxxx,
Xxxxx 0000, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000.
b. The Office of Party B for the Swap Transaction is 000 Xxxxxxxxx Xxxx,
Xxxxxxxx, XX 00000.
4
5. Prepayments of Loans
If for any reason Party A prepays any of the Tranche A Term Loans pursuant
to Section 4.2 of the Loan Agreement (i) the Notional Amount set forth on
Schedule I shall be adjusted to conform to the revised amortization schedule
established under the Loan Agreement after giving effect to such prepayment and
(ii) in the sole discretion of Party B such prepayment shall be treated as an
Event of Default by Party A under this Swap Transaction to the extent of such
change in the Notional Amount hereunder.
Please promptly confirm that the foregoing correctly sets forth the terms
of our agreement by executing the copy of this confirmation enclosed for that
purpose and returning it to us.
Yours sincerely,
CAMDEN XXXXX X.X.
By: Cogen Technologies Camden G.P.,
Limited Partnership,
as its sole general partner
By: Cogen Technologies Camden
Inc., as its sole general
partner
By: /s/ X.X. Xxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and
Chief Financial Officer
Confirmed as of the date first written:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
SCHEDULE I
SCHEDULE I TO ISDA SWAP CONFIRMATION
------------------------------------
NATIONAL
DATE AMOUNT
---- ------
01 -Aug-93 81,600,000
01 -Nov-93 81,600,000
01 -Feb-94 80,826,763
01 -May-94 80,041,226
01 -Aug-94 79,243,194
01 -Nov-94 78,432,466
01 -Feb-95 77,608,842
01 -May-95 76,772 113
01 -Aug-95 75,922,O73
01 -Nov-95 75,043,753
01 -Feb-96 74,151,458
01 -May-96 73,244,964
01 -Aug-96 72,324,045
01 -Nov-96 71,349,126
01 -Feb-97 70,358,691
01 -May-97 69,352,492
01 -Aug-97 68,330,277
01 -Nov-97 67,252,446
01 -Feb-98 66,157,457
01 -May-98 65,045,036
01 -Aug-98 63,914,904
01 -Nov-98 62,727,434
01 -Feb-99 61,521,057
01 -May-99 60,295,469
01 -Aug-99 59,050,364
01 -Nov-99 57,746,087
01 -Feb-2000 56,421,036
01 -May-2000 55,074,881
01 -Aug-2000 53,707,284
01 -Nov-2000 52,278,559
01 -Feb-2001 50,827,073
01 -May-2001 49,352,464
01 -Aug-2001 47,854,361
01 -Nov-2001 46,293,044
01 -Feb-2002 44,706,850
01 -May-2002 43,095,381
01 -Aug-2002 41,458,232
01 -Nov-2002 39,755,647
01 -Feb-2003 38,025,928
01 -May-2003 36,268,641
01 -Aug-2003 34,483,343
01 -Nov-2003 32,630,243
01 -Feb-2004 30,747,641
01 -May-2004 28,834,950
01 -Aug-2004 26,891,803
01 -Nov-2004 24,878.332
01 -Feb-2005 22,832,756
01 -May-2005 20,754,563
01 -Aug-2005 18,643,230
01 -Nov-2005 16,458,882
01 -Feb-2006 14,239,699
01 -May-2006 11,985,122
01 -Aug-2006 9,694,585
01 -Nov-2006 7,328,167
01 -Feb-2007 4,924,002
01 -May-2007 2,481,484
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of December 22, 1993 (the "Amendment"), to
Schedule to the Interest Rate and Currency Exchange Agreement dated as of April
1, 1993 (as amended, modified or otherwise supplemented and in effect on the
date hereof, the "Swap Agreement"), between Camden Xxxxx X.X., a Delaware
limited partnership ("Party All") and General Electric Capital Corporation
("Party B").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the parties hereto wish to amend the make the amendments set
forth below:
NOW THEREFORE, in consideration of the premises and the mutual
covenants set forth below, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms that
are defined in the Swap Agreement are used herein as so defined.
SECTION 2. Amendment of Part 4. Clause (5) of Part 4 of the Schedule
is hereby amended by deleting the phrase "Xxxxxxxx X. Xxxxxx" therefrom and
substituting in lieu thereof "Xxxxxxx X. Xxxxxxxx."
SECTION 3. Amendment of Part 5. Clause (3) of Part 5 of the Schedule
is hereby amended by deleting the phrase "(which shall not be unreasonably
withheld)" therefrom and substituting in lieu thereof the phrase "((i) which
consent from Party B shall not be unreasonably withheld, and (ii) which consent
from Party A shall be made in its sole discretion, provided that in the event,
and solely in the event, that compliance by Party B with effective and in force
regulatory requirements that are directly applicable to Party B and to the swap
obligations of Party B which are of the nature and type provided for in this
Confirmation, and which regulatory requirements, when applied to Party B and
such swap obligations, would have a material adverse effect on the economic
benefit of this transaction to Party B, then in such event, Party A will not
unreasonably withhold its consent to an assignment by Party B to any of its
rights and liabilities hereunder to an assignee, which assignee shall have a
credit standing equal to the higher of (i) that of Party B at the time of such
assignment and (ii) a Standard & Poor's credit rating of at least "A")".
SECTION 4. Continuing Effect; Amendment Limited. Except as expressly
amended hereby, the Swap Agreement and Schedule shall continue to be and shall
remain in full force and effect in accordance with its terms.
2
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be an original but all of which together
shall constitute one agreement.
IN WITNESS WHEREOF, each party has caused this Amendment to be
executed and delivered by its respective duly authorized officer as of the day
and year first above written.
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ [Signature Appears Here]
----------------------------------------
Title: Senior Vice President of Treasury
and Global Funding Operation
CAMDEN XXXXX X.X.
By: Cogen Technologies Camden
G.P. Limited Partnership, as its
sole general partner
By: Cogen Technologies Camden,
Inc., as its sole general
partner
By: /s/ [Signature Appears Here]
-------------------------------
Title:
