EXHIBIT 10.49
SCHEDULE
TO THE
ISDA MASTER AGREEMENT
DATED AS OF
NOVEMBER 30, 2006
BETWEEN
X. XXXX & COMPANY,
A GENERAL PARTNERSHIP ORGANIZED UNDER THE LAWS OF THE STATE OF NEW YORK
("XXXX"),
AND
PACIFIC ENERGY RESOURCES LTD.
A DELAWARE CORPORATION
("COUNTERPARTY").
PART 1. TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY"
(i) means, in relation to Aron, Goldman, Sachs & Co., Xxxxxxx Xxxxx
Capital Markets, L.P., Xxxxxxx Sachs International, Xxxxxxx Xxxxx
(Japan) Ltd., Xxxxxxx Sachs International Bank, Xxxxxxx Xxxxx
(Asia) Finance, Xxxxxxx Sachs Financial Markets, L.P., Xxxxxxx
Xxxxx Xxxxx Inc. et Cie, Xxxxxxx Xxxxx Mitsui Marine Derivative
Products, L.P., Xxxxxxx, Sachs & Co. oHG, X. Xxxx & Company
(Singapore) Pte., and X. Xxxx & Company (U.K.) for the purpose of
Section 5(a)(v), and shall not apply for purposes of Sections
5(a)(vi), 5(a)(vii) and 5(b)(iv); and
(ii) means, in relation to Counterparty, all Affiliates of Counterparty
for the purpose of Sections 5(a)(v), 5(a)(vi), 5(a)(vii) and
5(b)(iv).
(b) "SPECIFIED TRANSACTION". The term "Specified Transaction" in Section 14
of the Agreement is amended in its entirety as follows:
"SPECIFIED TRANSACTION" means, subject to the Schedule, (a) any
transaction (including an agreement with respect thereto) now existing or
hereafter entered into between one party to this Agreement (or any Credit
Support Provider of such party or any applicable Specified Entity of such
party) and the other party to this Agreement (or any Credit Support
Provider of such other party or any applicable Specified Entity of such
other party) (i) which is a rate swap transaction, swap option, basis
swap, forward rate transaction, commodity swap, commodity option,
commodity spot transaction, equity or equity index swap, equity or equity
index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option, weather swap, weather derivative, weather option, credit
protection transaction, credit swap, credit default swap, credit default
option, total return swap, credit spread transaction, repurchase
transaction, reverse repurchase transaction, buy/sell-back transaction,
securities lending transaction, or forward purchase or sale of a
security, commodity or other financial instrument or interest (including
any option with respect to any of these transactions) or (ii) which is a
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type of transaction that is similar to any transaction referred to in
clause (i) that is currently, or in the future becomes, recurrently
entered into the financial markets (including terms and conditions
incorporated by reference in such agreement) and that is a forward, swap,
future, option or other derivative on one or more rates, currencies,
commodities, equity securities or other equity instruments, debt
securities or other debt instruments, or economic indices or measures of
economic risk or value, (b) any combination of these transactions and (c)
any other transaction identified as a Specified Transaction in this
agreement or the relevant confirmation."
(c) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply to Xxxx and
will apply to Counterparty, provided that with respect to Xxxx only, (i)
the phrase "or becoming capable at such time of being declared" shall be
deleted from clause (1) of such Section 5(a)(vi); and (ii) the following
language shall be added to the end thereof: "Notwithstanding the
foregoing, a default under subsection (2) hereof shall not constitute an
Event of Default if (i) the default was caused solely by error or
omission of an administrative or operational nature; (ii) funds were
available to enable the party to make the payment when due; and (iii) the
payment is made within two Local Business Days of such party's receipt of
written notice of its failure to pay."
"SPECIFIED INDEBTEDNESS" will have the meaning specified in Section 14 of
the Agreement.
"THRESHOLD AMOUNT" means in relation to Xxxx, US$50,000,000 (or its
equivalent in another currency) and in relation to Counterparty,
US$1,000,000 (or its equivalent in another currency).
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) will apply
to Xxxx and will apply to Counterparty.
(e) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not
apply to Xxxx and will not apply to Counterparty.
(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e):
(i) Loss will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means United States Dollars.
(h) The parties agree to amend the following subsections of Section 5(a) as
follows:
(i) clause (i): in the third line of this clause, delete the word
"third" and insert the word "first;"
(ii) clause (ii): in the fifth line of this clause, delete the word
"thirtieth" and insert the word "fifth;" and
(iii) clause (vii)(4): delete, following the word "liquidation" in line
9, the clause beginning with "and, in the case of and ending with
the word "thereof' in line 13; and in Clause (vii)(7): delete,
following the word "assets" in line 19, the clause beginning with
"and such secured party" and ending with the word "thereafter" in
line 21, to eliminate the 30- day grace period.
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(iv) The parties also agree to add a new clause (ix) as follows:
(ix) ADEQUATE ASSURANCE. A party ("X") fails to provide adequate
assurance of its ability to perform all of its outstanding
obligations hereunder to the other party ("Y") on or before
48 hours after a request for such assurance is made by Y
when Y has reasonable grounds for insecurity.
(i) ADDITIONAL TERMINATION EVENT will apply. It will constitute an Additional
Termination Event hereunder upon the occurrence of any of the following
events:
(i) Any of the following occurs with respect to Counterparty's
obligations to Xxxx under this Agreement:
(A) such obligations shall cease to be subject to a perfected
first priority Lien (as defined in the Senior Credit Agreement) on
the Collateral (as defined in the Senior Credit Agreement)
pursuant to and in accordance with the Senior Credit Agreement and
the Security Documents (as defined in the Senior Credit
Agreement);
(B) such obligations shall cease to be equally and ratably secured
with Counterparty's obligations to the Secured Parties holding a
first priority Lien pursuant to and in accordance with the Senior
Credit Agreement and the Security Documents;
(C) such obligations shall cease to rank at least pari passu with
Counterparty's obligations to the Secured Parties holding a first
priority Lien pursuant to and in accordance with the Senior Credit
Agreement and the Security Documents; or
(D) such obligations shall cease to be guaranteed pursuant to the
guarantees from each of the Guarantors in favor of the Secured
Parties pursuant to and in accordance with the Senior Credit
Agreement;
(iv) Any collateral under the Security Documents is released at any
time, unless Xxxx shall have consented in writing prior to such
release as set forth in the Security Documents; or
(v) The Senior Credit Agreement is replaced by another credit
facility, or amended and/or amended and restated to increase the
funded indebtedness (from such amount as of the date of this
Agreement) or commitments or to add borrowing tranches or Xxxx or
its affiliates is not a lender under such facility, and Xxxx or
its affiliates indicated its agreement to be such a lender but
such agreement was declined by Counterparty or any Affiliate of
Counterparty or by any administrative agent, syndication agent,
documentation agent, bookrunner or any comparable party with the
right to decline participation in such facility; provided,
however, that any such event shall not constitute an Additional
Termination Event if such terms are acceptable to Xxxx in its sole
discretion.
For the purpose of the foregoing Termination Events, the Affected Party shall be
Counterparty.
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As used herein and throughout this Agreement, the following terms shall have the
following meanings:
"SENIOR CREDIT AGREEMENT" means that certain Credit and Guaranty
Agreement, dated as of the date hereof, by and among Counterparty and
certain Subsidiaries of Counterparty, as Borrower, various Lenders party
thereto, X. Xxxx & Company, as Lead Arranger and Syndication Agent and X.
Xxxx & Company, as Administrative Agent, as such Senior Credit Agreement
is in effect on the date hereof and without giving effect to any further
amendments, modifications or supplements thereto, or waiver or
termination thereof, after the date hereof, PROVIDED that if Xxxx (in its
sole discretion) consents to any such amendment, modification, supplement
or waiver expressly for purposes this Agreement, then the term "Senior
Credit Agreement" shall refer to the Senior Credit Agreement as so
amended, modified, supplemented or waived.
(j) EARLY TERMINATION. Notwithstanding anything to the contrary in Section
6(a) or Section 6(b), the parties agree that, except with respect to
Transactions (if any) that are subject to Automatic Early Termination
under Section 6(a), the Non-defaulting Party or the party that is not the
Affected Party (in a case where a Termination Event under Section
5(b)(iv) , or an Additional Termination Event for which there is a single
Affected Party, has occurred) is not required to terminate the
Transactions on a single day, but rather may terminate the Transactions
over a commercially reasonable period of time (not to exceed ten days)
(the "Early Termination Period"). The last day of the Early Termination
Period shall be the Early Termination Date for purposes of Section 6;
provided, however, that interest shall accrue on the Transactions
terminated during the Early Termination Period prior to the Early
Termination Date at the Non- default Rate.
(k) Each of the Events of Default (as such term is defined in the Senior
Credit Agreement) contained in Section 8 (together with the relevant
provisions of any other Section or Sections to which they refer,
including definitions) of the Senior Credit Agreement is hereby
incorporated herein by this reference and made a part of this Agreement
to the same extent as if the Senior Credit Agreement were set forth in
full herein, provided that any reference in such Events of Default to the
"Agent", "Bank", "Administrative Agent", "Lender(s)", or the "Required
Lenders", or other like term, shall be deemed to be a reference to Xxxx.
The occurrence at any time of any such Event of Default under the Senior
Credit Agreement will constitute an Event of Default with respect to
Counterparty for the purposes of Section 5(a) of the Agreement. If for
any reason such Senior Credit Agreement should for any reason terminate,
such Events of Default will be incorporated herein as they existed
immediately prior to such event.
PART 2. TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS. For the purposes of Section 3(e), Xxxx and
Counterparty make the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from
any payment (other than interest under Section 2(e), 6(d)(ii), or 6(e) of
this Agreement) to be made by it to the other party under this Agreement.
In making this
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representation, it may rely on (i) the accuracy of any representations
made by the other party pursuant to Section 3(f) of this Agreement, (ii)
the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement, and the accuracy and effectiveness of any
document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of this Agreement, and (iii) the satisfaction of the agreement
of the other party contained in Section 4(d) of this Agreement, provided
that it shall not be a breach of this representation where reliance is
placed on clause (ii) and the other party does not deliver a form or
document under Section 4(a)(iii) by reason of material prejudice to its
legal or commercial position.
(b) PAYEE TAX REPRESENTATIONS. For the purposes of Section 3(f), Counterparty
makes the following representations:
(i) It is not acting as an agent or intermediary for any foreign
person with respect to the payments received or to be received by
it in connection with this Agreement.
(ii) It is a United States person within the meaning of Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended.
PART 3. AGREEMENT TO DELIVER DOCUMENTS
(a) For the purpose of Section 4(a), Tax forms, documents, or certificates to
be delivered are:
TAX FORMS, DOCUMENTS, OR CERTIFICATES TO BE DELIVERED ARE:
PARTY REQUIRED TO FORMS/DOCUMENTS/CERTIFICATES DATE BY WHICH
DELIVER DOCUMENT TO BE DELIVERED
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Counterparty United States Internal Revenue (i) On a date which is before the first
Service Form W-9, or any successor Scheduled Payment Date under this
form. Agreement, (ii) promptly upon
reasonable
demand by
Xxxx, and
(iii)
promptly
upon
learning
that any
such form
previously
provided
by
Counterparty
has become
obsolete,
incorrect,
or
ineffective.
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(b) Other documents to be delivered are:
COVERED BY
PARTY REQUIRED FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE SECTION 3(d)
TO DELIVER DELIVERED REPRESENTATION
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Xxxx and Evidence of authority of Upon or promptly Yes
Counterparty signatories following execution of
this Agreement
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Xxxx Any Credit Support Document Within three (3) No
specified in Part 4(f) herein Business Days
following execution of
this Agreement
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COVERED BY
PARTY REQUIRED FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE SECTION 3(d)
TO DELIVER DELIVERED REPRESENTATION
--------------------------------------------------------------------------------------------------------------
Counterparty Any Credit Support Document On the date of No
specified in Part 4(f) herein execution of this
Agreement
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Xxxx and Most recent annual audited and Promptly following Yes
Counterparty quarterly financial statements of the reasonable demand by
party or, with respect to Xxxx, its the other party
Credit Support Provider
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Counterparty Certified resolutions of its board of Upon execution of this Yes
directors or other governing body Agreement
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Counterparty Such documents, reports and At such times such Yes
certificates as the Counterparty shall documents, reports or
be required to provide to the Lender certificates, as the
under the Senior Credit Agreement case may be, are
required to be
delivered by the
Counterparty under the
Senior Credit
Agreement
--------------------------------------------------------------------------------------------------------------
Counterparty Legal opinion with respect to Upon execution of this Yes
Counterparty Agreement
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PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):
(i) Address for notices or communications to Xxxx:
Address: X. Xxxx & Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Energy Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) Address for notices or communications to Counterparty:
Address:
Attention:
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Telephone:
Facsimile:
(b) PROCESS AGENT. For the purpose of Section 13(c):
Xxxx appoints as its Process Agent, not applicable.
Counterparty appoints as its Process Agent: in the Borough of Manhattan,
City, County and State of New York:
C. T. CORPORATION SYSTEM 000 XXXXXX XXXXXX
00XX XXXXX
XXX XXXX, XXX XXXX 00000
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c):
Xxxx is not a Multibranch Party.
Counterparty is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Xxxx.
(f) CREDIT SUPPORT DOCUMENT. Any guaranty or other form of credit support
provided on behalf of Counterparty at any time shall constitute a Credit
Support Document with respect to the obligations of Counterparty. Details
of any other Credit Support Document, each of which is incorporated by
reference in, and made part of, this Agreement and each Confirmation
(unless provided otherwise in a Confirmation) as if set forth in full in
this Agreement or such Confirmation:
(i) Guaranty by The Xxxxxxx Xxxxx Group, Inc. ("Goldman Group") in
favor of Counterparty as beneficiary thereof shall constitute a
Credit Support Document with respect to the obligations of Xxxx.
(ii) the Senior Credit Agreement and the Security Documents.
(iii) each of the Guaranties (as defined in the Senior Credit
Agreement).
(g) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Xxxx, Goldman Group.
Credit Support Provider means in relation to Counterparty, the Guarantors
(as defined in the Senior Credit Agreement) and any party that at any
time provides a guaranty or other form of credit support on behalf of
Counterparty.
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(h) GOVERNING LAW. Section 13(a) is hereby replaced with the following:
(a) GOVERNING LAW. This Agreement and each Transaction entered into
hereunder will be governed by, and construed and enforced in
accordance with, the law of the State of New York without
reference to its choice of law doctrine.
(i) JURISDICTION. Section 13(b) is hereby amended by:
(i) deleting in the second line of subparagraph (i) thereof the word
"non-"; and
(ii) deleting the final paragraph thereof.
(j) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) will not apply to
Transactions. Notwithstanding anything to the contrary in Section 2(c),
unless otherwise expressly agreed by the parties, the netting provided
for in Section 2(c) will not apply separately to any pairings of branches
or Offices through which the parties make and receive payments or
deliveries.
PART 5. OTHER PROVISIONS
(a) ACCURACY OF SPECIFIED INFORMATION. Section 3(d) is hereby amended by
adding in the third line thereof after the word "respect" and before the
period, the phrase "or, in the case of audited or unaudited financial
statements, a fair presentation of the financial condition of the
relevant person."
(b) SCOPE OF AGREEMENT. Any transaction outstanding between the parties at
the date this Agreement comes into force or entered into by the parties
at or after the date this Agreement comes into force that is: (1) an FX
Transaction or a Currency Option Transaction as defined in the 1998 FX
and Currency Option Definitions (the "FX Definitions"), as published by
the International Swaps and Derivatives Association, Inc. ("ISDA"), the
Emerging Markets Traders Association, and the Foreign Exchange Committee,
unless otherwise specified in the relevant confirmation, and (2) a
transaction between the parties of the type set forth in the definition
of "Specified Transaction" herein unless otherwise specified in the
relevant confirmation relating to such Specified Transaction or unless
otherwise agreed by the parties, will constitute a "Transaction" for the
purposes of this Agreement. Transactions of the type set forth in (1)
above will be deemed to incorporate the FX Definitions.
(c) ADDITIONAL REPRESENTATIONS. The parties agree to amend Section 3 by
adding new Sections 3(g), (h), (i), and (j) as follows:
(g) ELIGIBLE CONTRACT PARTICIPANT. It is an "eligible contract
participant" as defined in the U.S. Commodity Exchange Act.
(h) NON-RELIANCE. It is acting for its own account, and it has made
its own independent decisions to enter into that Transaction and
as to whether that Transaction is appropriate or proper for it
based upon its own judgment and upon advice from such advisers as
it has deemed necessary. It is not relying on any communication
(written or oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being understood
that information and explanations related to the terms and
conditions of a Transaction shall not be considered investment
advice or a recommendation to enter into that Transaction. No
communication (written or oral) received from the other party
shall be deemed to be an assurance or guarantee as to the expected
results of that Transaction.
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(i) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the
merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the
terms, conditions and risks of that Transaction. It is also
capable of assuming, and assumes, the risks of that Transaction.
(j) STATUS OF PARTIES. The other party is not acting as a fiduciary
for or an adviser to it in respect of that Transaction.
(d) TRANSFER. The following amendments are hereby made to Section 7:
(i) In the third line, insert the words "which consent will not be
arbitrarily withheld or delayed," immediately before the word
"except"; and
(ii) in clause (a), insert the words "or reorganization, incorporation,
reincorporation, or reconstitution into or as," immediately before
the word "another."
(e) CONSENT TO RECORDING. Each party consents to the recording of telephone
conversations between the trading, marketing and other relevant personnel
of the parties, with or without the use of a warning tone, and their
Affiliates in connection with this Agreement or any potential
Transaction.
(f) DEFINITIONS. The following amendments are hereby made to Section 14:
(i) The definition of "TERMINATION CURRENCY EQUIVALENT" in Section 14
is hereby amended by deleting in its entirety the text after the
first three lines thereof and replacing it with the following:
"by the party making the relevant determination in any
commercially reasonable manner as being required to purchase such
amount of such Other Currency as at the relevant Early Termination
Date, or, if the relevant amount determined in accordance with
Section 6(e) is determined as of a later date, that later date,
for value on the date the payment or settlement payment is due."
(g) SET-OFF. The parties agree to amend Section 6 by adding a new Section
6(f) as follows:
"(f) Upon the occurrence of an Event of Default or Termination Event
under Section 5(b)(iv) with respect to a party ("X"), the other party
("Y") will have the right (but not be obliged) without prior notice to X
or any other person to set-off or apply any obligation of X owed to Y (or
any Affiliate of Y) (whether or not matured or contingent and whether or
not arising under this Agreement, and regardless of the currency, place
of payment or booking office of the obligation) against any obligation of
Y (or any Affiliate of Y) owed to X (whether or not matured or contingent
and whether or not arising under this Agreement, and regardless of the
currency, place of payment or booking office of the obligation). Y will
give notice to the other party of any setoff effected under this Section
6(f).
Amounts (or the relevant portion of such amounts) subject to set-off may
be converted by Y into the Termination Currency at the rate of exchange
at which such party would be able, acting in a reasonable manner and in
good faith, to purchase the relevant amount of such currency.
If any obligation is unascertained, Y may in good faith estimate that
obligation and set-off in respect of the estimate, subject to the
relevant party accounting to the other when the obligation is
ascertained.
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Nothing in this Section 6(f) shall be effective to create a charge or
other security interest. This Section 6(f) shall be without prejudice and
in addition to any right of set-off, combination of accounts, lien or
other right to which any party is at any time otherwise entitled (whether
by operation of law, contract or otherwise)."
(h) DEFINITIONS. This Agreement, each Confirmation and each Transaction is
subject to the 1993 ISDA Commodity Derivatives Definitions as
supplemented by the 2000 Supplement to the 1993 ISDA Commodity
Derivatives Definitions, as published by ISDA (together, the
"Definitions"), and will be governed in all respects by the Definitions
(except that references to "Swap Transactions" in the Definitions will be
deemed to be references to "Transactions"). The Definitions are
incorporated by reference in, and made part of, this Agreement and each
Confirmation as if set forth in full in this Agreement and such
Confirmations. In the event of any inconsistency between the provisions
of this Agreement and the Definitions, this Agreement will prevail.
Subject to Section 1(b), in the event of any inconsistency between the
provisions of any Confirmation, this Agreement, and the Definitions, such
Confirmation will prevail for the purpose of the relevant Transaction.
(i) INCORPORATION OF COVENANTS BY REFERENCE. Each of the covenants contained
in Sections 5 and 6 (together with the relevant provisions of any other
Section or Sections to which they refer, including definitions) of the
Senior Credit Agreement is hereby incorporated herein by this reference
and made a part of this Agreement to the same extent as if the Senior
Credit Agreement were set forth in full herein, provided that any
reference in such provisions to, "Bank", "Deposit Bank", the
"Administrative Agent," the "Agent", the "Required Lenders" and the
"Lenders" shall be deemed to be a reference to Xxxx. If for any reason
such Senior Credit Agreement should for any reason terminate, such
covenants will be incorporated herein as they existed immediately prior
to such event. Each such incorporated covenant will be deemed an
agreement or obligation for the purposes of Section 5(a)(ii) of the
Agreement.
(j) WAIVER OF TRIAL BY JURY. Each party hereby irrevocably waives any and all
right to trial by jury in any Proceeding.
(k) CONFIRMATIONS. Counterparty shall be deemed to have agreed to the terms
contained in any Confirmation (as amended and revised) sent by Xxxx to
Counterparty unless Counterparty objects to such terms within three (3)
Business Days of receipt.
PART 6. DISRUPTION FALLBACKS
The following "DISRUPTION FALLBACKS" specified in Section 7.5(c) of the
Definitions shall apply, in the following order, except as otherwise
specified in the relevant Confirmation:
(i) "Fallback Reference Price";
(ii) "Postponement", with two (2) Commodity Business Days as the
Maximum Days of Disruption;
(iii) Negotiated Fallback;
(iv) "Fallback Reference Dealers"; and
(v) "Calculation Agent Determination".
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IN WITNESS WHEREOF, the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
X. XXXX & COMPANY PACIFIC ENERGY RESOURCES LTD.,
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx Xxxxx
------------------------------- ---------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxx Xxxxx
Title: Managing Director Title: President
Date: Date:
