(Multicurrency-Cross Border)
ISDA(R)
INTERNATIONAL SWAPS AND DERIVATIVES ASSOCIATION, INC.
MASTER AGREEMENT
DATED AS OF 8TH NOVEMBER 2006
CITIGROUP CAPITAL AND SACYR VALLEHERMOSO
MARKETS LIMITED PARTICIPACIONES
MOBILIARIAS, S.L.U.
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:-
1. INTERPRETATION
(a) DEFINITIONS. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) INCONSISTENCY. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) SINGLE AGREEMENT. All Transactions are entered into in reliance on the fact
that this Master Agreement and all Confirmations form a single agreement between
the parties (collectively referred to as this "Agreement"), and the parties
would not otherwise enter into any Transactions.
2. OBLIGATIONS
(a) GENERAL CONDITIONS
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other
than by payment), such delivery will be made for receipt on the due
date in the manner customary for the
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relevant obligation unless otherwise specified in the relevant
Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to (1)
the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred or is continuing,
(2) the condition precedent that no Early Termination Date in respect
of the relevant Transaction has occurred or been effectively
designated and (3) each other applicable condition precedent specified
in this Agreement.
(b) CHANGE OF ACCOUNT. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) NETTING. If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) DEDUCTION OR WITHHOLDING FOR TAX
(i) GROSS-UP. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as
modified by the practice of any relevant governmental revenue
authority, then in effect. If a party is so required to deduct or
withhold, then that party ("X") will:-
(1) promptly notify the other party ("Y") of such requirement;
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(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that such
deduction or withholding is required or receiving notice that such
amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes, whether
assessed against X or Y) will equal the full amount Y would have
received had no such deduction or withholding been required. However,
X will not be required to pay any additional amount to Y to the extent
that it would not be required to be paid but for:-
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to Section
3(f) to be accurate and true unless such failure would not have
occurred but for (I) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect to a party
to this Agreement) or (II) a Change in Tax Law.
(ii) LIABILITY. If:-
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any deduction
or withholding in respect of which X would not be required to pay an
additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) DEFAULT INTEREST; OTHER AMOUNTS. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount
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to the other party on demand in the same currency as such overdue amount, for
the period from (and including) the original due date for payment to (but
excluding) the date of actual payment, at the Default Rate. Such interest will
be calculated on the basis of daily compounding and the actual number of days
elapsed. If, prior to the occurrence or effective designation of an Early
Termination Date in respect of the relevant Transaction, a party defaults in the
performance of any obligation required to be settled by delivery, it will
compensate the other party on demand if and to the extent provided for in the
relevant Confirmation or elsewhere in this Agreement.
3. REPRESENTATIONS
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:-
(a) BASIC REPRESENTATIONS.
(i) STATUS. It is duly organised and validly existing under the laws of the
jurisdiction of its organisation or incorporation and, if relevant under
such laws, in good standing;
(ii) POWERS. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to deliver
this Agreement and any other documentation relating to this Agreement that
it is required by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any Credit Support
Document to which it is a party and has taken all necessary action to
authorize 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, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding in
equity or at law)).
(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.
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(c) ABSENCE OF LITIGATION. There is no pending or, to its knowledge, threatened
against it or any of its Affiliates any action, suit or proceeding at law or in
equity or before any court, tribunal, governmental body, agency or official or
any arbitrator that is likely to affect the legality, validity or enforceability
against it of this Agreement or any Credit Support Document to which it is a
party or its ability to perform its obligations under this Agreement or such
Credit Support Document.
(d) ACCURACY OF SPECIFIED INFORMATION. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) PAYER TAX REPRESENTATION. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) PAYEE TAX REPRESENTATIONS. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. AGREEMENTS
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:-
(a) FURNISH SPECIFIED INFORMATION. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:-
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation; and
(iii) upon reasonable demand by such other party, any form or document that
may be required or reasonably requested in writing in order to allow such
other party or its Credit Support Provider to make a payment under this
Agreement or any applicable Credit Support Document without any deduction
or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the
legal or commercial position of the party in receipt of such demand), with
any such form or document to be accurate and completed in a manner
reasonably satisfactory to such other party and to be executed and to be
delivered with any reasonably required certification,in each case by the
date specified in the Schedule or such Confirmation or, if none is
specified, as soon as reasonably practicable.
(b) MAINTAIN 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
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with respect to this Agreement or any Credit Support Document to which it is a
party and will use all reasonable efforts to obtain any that may become
necessary in the future.
(c) COMPLY WITH LAWS. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) TAX AGREEMENT. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) PAYMENT OF STAMP TAX. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated,
organised, managed and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of this Agreement is
located ("Stamp Tax Jurisdiction") and will indemnify the other party against
any Stamp Tax levied or imposed upon the other party or in respect of the other
party's execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the
other party.
5. EVENTS OF DEFAULT AND TERMINATION EVENTS
(a) EVENTS OF DEFAULT. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:-
(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) BREACH OF AGREEMENT. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(ii) or 4(d) to be complied with or performed by the party in
accordance with this Agreement if such failure is not remedied on or before
the thirtieth day after notice of such failure is given to the party;
(iii) CREDIT SUPPORT DEFAULT
(1) Failure by the party or any Credit Support Provider of such party
to comply with or perform any agreement or obligation to be complied
with or performed by it in accordance with any Credit Support Document
if such failure is continuing after any applicable grace period has
elapsed;
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(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction of
all obligations of such party under each Transaction to which such
Credit Support Document relates without the written consent of the
other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the validity
of, such Credit Support Document;
(iv) MISREPRESENTATION. A representation (other than a representation under
Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) DEFAULT UNDER SPECIFIED TRANSACTION. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party (1)
defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) CROSS DEFAULT. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (howeverdescribed) in
respect to such party, any Credit Support Provider of such party or any
applicable Specified Entity of such party under one or more agreements or
instruments relating to Specified Indebtedness of any of them (individually
or collectively) in an aggregate amount of not less than the applicable
Threshold Amount (as specified in the Schedule) which has resulted in such
Specified Indebtedness becoming, or becoming capable at such time of being
declared, due and payable under such agreements or instruments, before it
would otherwise have been due and payable or (2) a default by such party,
such Credit Support Provider or such Specified Entity (individually or
collectively) in making one or more payments on the due date thereof in an
aggregate amount of not less than the applicable Threshold Amount under
such agreements or instruments (after giving effect to any applicable
notice requirement or grace period);
(vii) BANKRUPTCY. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:-
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(1) is dissolved (other than pursuant to a consolidation, amalgamation
or merger); (2) becomes insolvent or is unable to pay its debts or
fails or admits in writing its inability generally to pay its debts as
they become due; (3) makes a general assignment, arrangement or
composition with or for the benefit of its creditors; (4) institutes
or has instituted against it a proceeding seeking a judgment of
insolvency or bankruptcy or any other relief under any bankruptcy or
insolvency law or other similar law affecting creditors' rights, or a
petition is presented for its winding-up or liquidation, and, in the
case of any such proceeding or petition instituted or presented
against it, such proceeding or petition (A) results in a judgment of
insolvency or bankruptcy or the entry of an order for relief or the
making of an order for its winding-up or liquidation or (B) is not
dismissed, discharged, stayed or restrained in each case within 30
days of the institution or presentation thereof; (5) has a resolution
passed for its winding-up, official management or liquidation (other
than pursuant to a consolidation, amalgamation or merger); (6) seeks
or become subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other similar
official for it or for all or substantially all its assets; (7) has a
secured party take possession of all or substantially all its assets
or has a distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or substantially
all its assets and such secured party maintains possession, or any
such process is not dismissed, discharged, stayed or restrained, in
each case within 30 days thereafter; (8) causes or is subject to any
event with respect to it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events specified
in clauses (1) to (7) (inclusive); or (9) takes any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts; or
(viii) MERGER WITHOUT ASSUMPTION. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer:-
(1) the resulting, surviving or transferee entity fails to assume all
the obligations of such party or such Credit Support Provider under
this Agreement or any Credit Support Document to which it or its
predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) TERMINATION EVENTS. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event
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Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below:-
(i) ILLEGALITY. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a result
of a breach by the party of Section 4(b)) for such party (which will be the
Affected Party);-
(1) to perform any absolute or contingent obligation to make a payment
or delivery or to receive a payment or delivery in respect of such
Transactions or to comply with any other material provision of this
Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) TAX EVENT. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on which
a Transaction is entered into (regardless of whether such action is taken
or brought with respect to a party to this Agreement) or (y) a Change in
Tax Law, the party (which will be the Affected Party) will, or there is a
substantial likelihood that it will, on the next succeeding Scheduled
Payment Date (1) be required to pay to the other party an additional amount
in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount is required to be deducted or withheld for or
on account of a Tax (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) and no additional amount is required to be paid in
respect of such Tax under Section 2(d)(i)(4) (other than by reason of
Section 2(d)(i)(4)(A) or (B));
(iii) TAX EVENT UPON MERGER. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which the
other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)); in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) CREDIT EVENT UPON MERGER. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit
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Support Provider or such Specified Entity, as the case may be, immediately
prior to such action (and, in such event, X or its successor or transferee,
as appropriate, will be the Affected Party); or
(v) ADDITIONAL TERMINATION EVENT. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence
of such event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the Schedule
or such Confirmation).
(c) EVENT OF DEFAULT AND ILLEGALITY. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
6. EARLY TERMINATION
(a) RIGHT TO TERMINATE FOLLOWING EVENT OF DEFAULT. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
event analogous thereto, (8), and as of the time immediately proceeding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
(i) NOTICE. If a Termination Event occurs, an Affected Party will, promptly
upon becoming aware of it, notify the other party, specifying the nature of
that Termination Event and each Affected Transaction and will also give
such other information about that Termination Event as the other party may
reasonably require.
(ii) TRANSFER TO AVOID TERMINATION EVENT. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days after
it gives notice under Section 6(b)(1) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another of its
Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
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Any such transfer by a party under this Section 6(b)(ii) will be subject to
and conditional upon the prior written consent of the other party, which
consent will not be withheld if such other party's policies in effect at
such time would permit it to enter into transactions with the transferee on
the terms proposed.
(iii) TWO AFFECTED PARTIES. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) RIGHT TO TERMINATE. If:-
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party gives
notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger
or an Additional Termination Event occurs, or a Tax Event Upon Merger
occurs and the Burdened Party is not the Affected Party.
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a Credit
Event Upon Merger or an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice to the other party and
provided that the relevant Termination Event is then continuing, designate
a day not earlier than the day such notice is effective as an Early
Termination Date in respect of all Affected Transactions.
(c) EFFECT OF DESIGNATION.
(i) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount, if
any, payable in respect of an Early Termination Date shall be determined
pursuant to Section 6(e).
(d) CALCULATIONS.
(i) STATEMENT. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to
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which any amount payable to it is to be paid. In the absence of written
confirmation from the source of a quotation obtained in determining a
Market Quotation, the records of the party obtaining such quotation will be
conclusive evidence of the existence and accuracy of such quotation.
(ii) PAYMENT DATE. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early Termination
Date to (but excluding) the date such amount is paid, at the Applicable
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss," and a payment method,
either the "First Method," or the "Second Method." If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method," as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) EVENTS OF DEFAULT. If the Early Termination Date results from an Event
of Default:-
(1) FIRST METHOD AND MARKET QUOTATION. If the First Method and Market
Quotation apply, the Defaulting Party will pay to the Non-defaulting
Party the excess, if a positive number, of (A) the sum of the
Settlement Amount (determined by the Non-defaulting Party) in respect
of the Terminated Transactions and the Termination Currency Equivalent
of the Unpaid Amounts owing to the Non-defaulting Party over (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Defaulting Party.
(2) FIRST METHOD AND LOSS. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this Agreement.
(3) SECOND METHOD AND MARKET QUOTATION. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the sum
of the Settlement Amount (determined by theNon-defaulting Party) in
respect of the Terminated Transactions and the Termination Currency
Equivalent of the Unpaid Amounts owing to the Non-defaulting Party
less (B) the Termination Currency Equivalent of the Unpaid Amounts
owing to the Defaulting Party. If that amount is a positive number,
the Defaulting Party will pay it to the Non-defaulting Party; if it is
a negative number,
12
the Non-defaulting Party will pay the absolute value of that amount to
the Defaulting Party.
(4) SECOND METHOD AND LOSS. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party, if it is a
negative number, the Non-defaulting Party will pay the absolute value
of that amount to the Defaulting Party.
(ii) TERMINATION EVENTS. If the Early Termination Date results from a
Termination Event:-
(1) ONE AFFECTED PARTY. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(c)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and to
the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the Transactions
are being terminated, Loss shall be calculated in respect of all
Terminated Transactions.
(2) TWO AFFECTED PARTIES. If there are two Affected Parties:-
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions, and
an amount will be payable equal to (I) 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 (II) the Termination Currency Equivalent of the Unpaid
Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the Transactions
are being terminated, in respect of all Terminated Transactions)
and an amount will be payable equal to one-half of the difference
between the Loss of the party with the higher Loss ("X") and the
Loss of the party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it is a
negative number, X will pay the absolute value of that amount to Y.
(iii) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
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(iv) PRE-ESTIMATE. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
7. TRANSFER
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. CONTRACTUAL CURRENCY
(a) PAYMENT IN THE CONTRACTUAL CURRENCY. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect to this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) JUDGMENTS. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is tendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
14
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) SEPARATE INDEMNITIES. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owned and will not be affected by judgment being
obtained or claim or proof being made for any other sums payable in respect of
this Agreement.
(d) EVIDENCE OF LOSS. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
9. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) SURVIVAL OF OBLIGATIONS. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) REMEDIES CUMULATIVE. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) COUNTERPARTS AND CONFIRMATIONS.
(i) This Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable and
may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of
15
telexes or by an exchange of electronic messages on an electronic messaging
system, which in each case will be sufficient for all purposes to evidence
a binding supplement to this Agreement. The parties will specify therein or
through another effective means that any such counterpart, telex, or
electronic message constitutes a Confirmation.
(f) NO WAIVER OF RIGHTS. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) HEADINGS. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. OFFICES; MULTIBRANCH PARTIES
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document to
which the Defaulting Party is a party or by reason of the early termination of
any Transaction, including, but not limited to, costs of collection.
12. NOTICES
(a) EFFECTIVENESS. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:-
16
(i) if in writing and delivered in person or by courier, on the date it is
delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the receipt in legible form (it being
agreed that the burden of proving receipt will be on the sender and will
not be met by a transmission report generated by the sender's facsimile
machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) CHANGE OF ADDRESSES. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) JURISDICTION. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:-
(i) submits to the jurisdiction of the English courts, if this Agreement is
expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any 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 have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting Shares, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Xxx 0000 or any modification, extension or
re-enactment thereof for the time being in force) nor will the
17
bringing of Proceedings in any one or more jurisdictions preclude the bringing
of Proceedings in any other jurisdiction.
(c) SERVICE OF PROCESS. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for anyreason 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 in any Proceedings in the courts of any
jurisdiction and irrevocably agrees, to the extent permitted by applicable law,
that it will not claim any such immunity in any Proceedings.
14. DEFINITIONS
As used in this Agreement:-
"ADDITIONAL TERMINATION EVENT" has the meaning specified in Section 5(b).
"AFFECTED PARTY" has the meaning specified in Section 5(b).
"AFFECTED TRANSACTIONS" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"AFFILIATE" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"APPLICABLE RATE" means:-
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
18
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"BURDENED PARTY" has the meaning specified in Section 5(b).
"CHANGE IN TAX LAW" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"CONSENT" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"CREDIT EVENT UPON MERGER" has the meaning specified in Section 5(b).
"CREDIT SUPPORT DOCUMENT" means any agreement or instrument that is specified as
such in this Agreement.
"CREDIT SUPPORT PROVIDER" has the meaning specified in the Schedule.
"DEFAULT RATE" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"DEFAULTING PARTY" has the meaning specified in Section 6(a).
"EARLY TERMINATION DATE" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"EVENT OF DEFAULT" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"ILLEGALITY" has the meaning specified in Section 5(b).
"INDEMNIFIABLE TAX" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"LAW" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
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"LOCAL BUSINESS DAY" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"LOSS" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"MARKET QUOTATION" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group of
Terminated Transactions are to be excluded but, without limitation, any payment
or delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included. The Replacement Transaction would
be subject to such documentation as such party and the Reference Market-maker
may, in
20
good faith, agree. The party making the determination (or its agent) will
request each Reference Market-maker to provide its quotation to the extent
reasonably practicable as of the same day and time (without regard to different
time zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be
obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the
Market Quotation will be the arithmetic mean of the quotations, without regard
to the quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if more
than one quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If fewer than three quotations are provided, it
will be deemed that the Market Quotation in respect of such Terminated
Transaction or group of Terminated Transactions cannot be determined.
"NON-DEFAULT RATE" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"NON-DEFAULTING PARTY" has the meaning specified in Section 6(a).
"OFFICE" means a branch or office of a party, which may be such party's head or
home office.
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"REFERENCE MARKET-MAKERS" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"RELEVANT JURISDICTION" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"SCHEDULED PAYMENT DATE" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"SET-OFF" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"SETTLEMENT AMOUNT" means, with respect to a party and any Early Termination
Date, the sum of:-
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(a) the Termination Currency Equivalent of the Market Quotation (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to
any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"SPECIFIED ENTITY" has the meaning specified in the Schedule.
"SPECIFIED INDEBTEDNESS" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"SPECIFIED TRANSACTION" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"STAMP TAX" means any stamp, registration, documentation or similar tax.
"TAX" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"TAX EVENT" has the meaning specified in Section 5(b).
"TAX EVENT UPON MERGER" has the meaning specified in Section 5(b).
"TERMINATED TRANSACTIONS" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"TERMINATION CURRENCY" has the meaning specified in the Schedule.
22
"TERMINATION CURRENCY EQUIVALENT" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"TERMINATION EVENT" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"TERMINATION RATE" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"UNPAID AMOUNTS" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market value of that which was (or would have been) required to be
delivered as of the originally scheduled date for delivery, in each case
together with (to the extent permitted under applicable law) interest, in the
currency of such amounts, from (and including) the date such amounts or
obligations were or would have been required to have been paid or performed to
(but excluding) such Early Termination Date, at the Applicable Rate. Such
amounts of interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. The fair market value of any obligation referred
to in clause (b) above shall be reasonably determined by the party obliged to
make the determination under Section 6(e) or, if each party is so obliged, it
shall be the average of the Termination Currency Equivalents of the fair market
values reasonably determined by both parties.
23
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.
CITIGROUP SACYR VALLEHERMOSO
GLOBAL MARKETS PARTICIPACIONES
LIMITED MOBILIARIAS, S.L.U.
By: /s/ Xxxxx Xxxxxx By: /s/
................................ ................................
Name: Xxxxx Xxxxxx Name:
Title: Authorised Signatory Title:
Date: 11/08/06 Date:
By: /s/ By:
................................ ................................
Name: Name:
Title: Title:
Date: Date:
24
SCHEDULE
to the
ISDA Master Agreement
dated as of 8th November, 2006,
between
CITIGROUP GLOBAL MARKETS LIMITED,
a company incorporated with limited liability in England
("Party A")
and
SACYR VALLEHERMOSO PARTICIPACIONES MOBILIARIAS, S.L.U.,
a corporation organized and existing under the laws of Spain
("Party B")
PART 1
TERMINATION PROVISIONS
In this Agreement:
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:
Section 5 (a)(v), Not applicable.
Section 5 (a)(vi), Not applicable.
Section 5 (a)(vii), Not applicable.
Section 5(b)(iv), Not applicable.
In relation to Party B for the purpose of:
Section 5 (a)(v), Any Affiliate.
Section 5 (a)(vi), Any Affiliate.
Section 5 (a)(vii), Any Affiliate.
Section 5(b)(iv), Sacyr Vallehermoso, S.A.
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of
this Agreement.
19
(c) The "CROSS DEFAULT" provisions of Section 5(a)(vi) of this Agreement
will apply to both parties, but shall exclude any payment default that
results solely from wire transfer difficulties or an error or omission of
an administrative or operational nature (so long as sufficient funds are
available to the relevant party on the relevant date), provided that
payment is made within three Business Days after such transfer difficulties
have been corrected or the error or omission has been discovered..
For purposes of Section 5(a)(vi), the following provisions apply:
"SPECIFIED INDEBTEDNESS" shall have the meaning set forth in section 14 of
the Agreement.
"THRESHOLD AMOUNT" means
(i) with respect to Party A, 3% of the stockholders' equity of Citigroup
Inc.; and
(ii) with respect to Party B, 3% of Party B's shareholders' equity on a
consolidated basis, as reported in its most recently audited financial
statements.
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) of this
Agreement will apply to Party A and will apply to Party B.
(e) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) will not
apply to Party A and will not apply to Party B.
(f) For the purpose of the "PAYMENTS ON EARLY TERMINATION" provisions of
Section 6(e):
(i) The Second Method will apply; and
(ii) Market Quotation will apply.
(g) "TERMINATION CURRENCY" means any single currency of any Transaction as may
be selected by the party which is not the Defaulting Party or the Affected
Party (as the case may be), or, in circumstances where there is more than
one Affected Party, such currency of any Transaction as may be mutually
agreed between the parties hereto or otherwise, failing such mutual
agreement or in the event that such currency is not freely available and
convertible, Euro ((euro)).
(h) ADDITIONAL TERMINATION EVENT will not apply
20
PART 2
TAX REPRESENTATIONS
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this Agreement,
Party A will make the following representation and Party B will make the
following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of this
Agreement, (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and effectiveness
of any document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of this Agreement and (iii) the satisfaction of the agreement of
the other party contained in Section 4(d) of this Agreement, 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 documents under
Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
(b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of the Agreement,
Party A and Party B make the representations specified below, if any:
The following representation will not apply to Party A and will apply to
Party B:
If, with respect to any Transaction, a party is acting through an Office
located outside the United Kingdom, it is fully eligible for the benefits
of the "Business Profits" or "Industrial and Commercial Profits" provision,
as the case may be, the "Interest" provision or the "Other Income"
provision (if any) of the Specified Treaty with respect to any payment
described in such provisions and received or to be received by it in
connection with this Agreement and no such payment is attributable to a
trade or business carried on by it through a permanent establishment in the
Specified Jurisdiction.
For purposes of the foregoing representation:
"Specified Treaty" means The Double Tax Treaty between the United Kingdom
and Spain, as amended.
"Specified Jurisdiction" means the United Kingdom.
21
PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Section 4(a) of this Agreement:
(a) TAX FORMS, DOCUMENTS OR CERTIFICATES TO BE DELIVERED ARE:
Party required
to deliver Form/Document/ Date by which to
document Certificate be delivered
------------------------------------------------------------------------------
Party A and Party B Any form, document or certificate As soon as practicable
reasonably requested by the other following written
party in order for such party to demand
be able to make payments hereunder
without withholding taxes being
deducted.
(b) OTHER DOCUMENTS TO BE DELIVERED ARE:
Party required
to deliver Form/Document/ Date by which to Covered
document Certificate be delivered by Section 3(d)
------------------------------------------------------------------------------
(i) Party A and Such proof of the As soon as Yes
Party B names, true practicable after
signatures and execution of this
authority of persons Agreement and, if
signing this requested by the
Agreement on its other party, as
behalf as the other soon as
party may reasonably practicable after
request. execution of any
Confirmation of
any other
Transaction.
(ii) Party B A duly signed copy of Upon execution of
the Credit Support this Agreement.
Document referred to
in Part 4 of this
Schedule.
(iii) Party B Party B's annual Promptly upon Yes
report containing request.
audited consolidated
financial statements
prepared in
accordance with
accounting principles
that are generally
accepted in such
party's country of
organization and
certified by
independent certified
public accountants
for each fiscal year.
22
Party required
to deliver Form/Document/ Date by which to Covered
document Certificate be delivered by Section 3(d)
------------------------------------------------------------------------------
(iv) Party B Party B's unaudited Promptly upon Yes
consolidated request.
financial statements,
the consolidated
balance sheet and
related statements of
income for each
fiscal quarter,
prepared in
accordance with
accounting principles
that are generally
accepted in such
party's country of
organization.
23
PART 4
MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this Agreement:
ADDRESS FOR NOTICES OR COMMUNICATIONS TO PARTY A:
With respect to a particular Transaction, all notices or communications to
Party A shall be sent to the address or facsimile number indicated in the
Confirmation of that Transaction.
In addition, in the case of notices or communications relating to Section
5, 6, 11 or 13 of this Agreement, a copy of any such notice or
communication shall be addressed to the attention of:
Address: Citigroup Centre, 00 Xxxxxx Xxxxxx, Xxxxxx X00 0XX
Attention: Head of Trading Legal Services, Europe
Facsimile No: x00 000 000 0000/9
and:
Address: 0 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Head of Legal Department
Facsimile No.: x0 000 000 0000
ADDRESS FOR NOTICES OR COMMUNICATIONS TO PARTY B:
Address: SACYR VALLEHERMOSO PARTICIPACIONES MOBILIATIAS, S.L.U.
Xx xx xx Xxxxxxxxxx, 00-00
00000 Xxxxxx
Attention: Xxxx Xxxxxxx Xxxxx
Tel: x00 00 000 0000
Facsimile No: x00 00 000 0000
(b) EFFECTIVENESS OF NOTICE. Section 12(a) is hereby amended by deleting the
words "facsimile transmission or" in line 3 thereof.
(c) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party B appoints as its Process Agent: to be advised
(d) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(e) MULTIBRANCH PARTY. For the purpose of Section 10(b) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
24
(f) CALCULATION AGENT. The Calculation Agent will be Party A unless otherwise
specified in a Confirmation in reference to the relevant Transaction.
(g) CREDIT SUPPORT DOCUMENT. The Credit Support Document means: With respect
to Party A, not applicable; and with respect to Party B, the Guarantee
given by the Credit Support Provider in favor of Party A and substantially
in the form of Exhibit I.
(h) CREDIT SUPPORT PROVIDER. Credit Support Provider means: With respect to
Party A, not applicable; and with respect to Party B, Sacyr Vallehermoso,
S.A.
(i) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of England and Wales.
(j) JURISDICTION. Section 13(b) of the Agreement is hereby amended as follows:
(i) by inserting in line 1 of Section 13(b)(i) the word "exclusive"
immediately after the phrase "submits to the"; and
(ii) by deleting the final paragraph thereof and replacing it with,
"Nothing in this provision shall prohibit a party from bringing an
action to enforce a money judgment in any other jurisdiction."
(k) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement provided, however that with regard to Party A, the term
"Affiliate" shall not include any entity that controls or is under common
control with Citigroup Global Markets Holdings Inc., but in any event such
term shall include Citigroup Global Markets Holdings Inc. and any entity
controlled by it.
(l) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this Agreement
will apply to all Transactions.
25
PART 5
OTHER PROVISIONS
(a) ISDA DEFINITIONS The definitions and provisions contained in the 2000 ISDA
Definitions (published by the International Swaps and Derivatives
Association, Inc.) (the "Definitions") are incorporated into any
Confirmation which supplements and forms part of the Agreement; and all
capitalized terms used in a Confirmation shall have the meaning set forth
in the Definitions, unless otherwise defined in a Confirmation. In the
event of any conflict between the provisions of the Definitions and the
provisions of this Agreement, the provisions of this Agreement shall apply,
and in the event of any conflict between the provisions of this Agreement
and the Confirmation, the provisions of the Confirmation shall apply.
(b) CHANGE OF ACCOUNT Section 2(b) of this Agreement is hereby amended by the
addition of the following after the word "delivery" in the first line
hereof:
"to another account in the same legal and tax jurisdiction as the original
account"
(c) ESCROW PAYMENTS. If by reason of the time difference between the cities in
which payments are to be made, it is not possible for simultaneous payments
to be made on any date on which both parties are required to make payments
hereunder, either party may at its option and in its sole discretion notify
the other party that payments on that date are to be made in escrow. In
this case the deposit of the payment due earlier on that date shall be made
by 2:00 p.m. (local time at the place for the earlier payment) on that date
with an escrow agent selected by the party giving the notice, accompanied
by irrevocable payment instructions (i) to release the deposited payment to
the intended recipient upon receipt by the escrow agent of the required
deposit of the corresponding payment from the other party on the same date
accompanied by the irrevocable payment instructions to the same effect or
(ii) if the required deposit of the corresponding payment is not made on
that same date, to return the payment deposited to the party that paid it
into escrow. The party that elects to have payments made in escrow shall
pay the costs of the escrow arrangements and shall cause those arrangements
to provide that the intended recipient of the payment due to be deposited
first shall be entitled to interest on that deposited payment for each day
in the period of its deposit at the rate offered by the escrow agent for
that day for overnight deposits in the relevant currency in the office
where it holds that deposited payment (at 11:00 am. local time on that day)
if that payment is not released by 5:00 p.m. on the date it is deposited
for any reason other than the intended recipients' failure to make the
escrow deposit it is required to make hereunder in a timely fashion.
(d) SET-OFF. Each party to this Agreement (such party, "Party X") agrees
that, upon the insolvency of Party X or any of its Affiliates or the
default of Party X or any of its Affiliates under any transaction with the
other party hereto or any of such other party's Affiliates (such other
party or any of its Affiliates, a "Non-Defaulting Party"), each
Non-Defaulting Party may, without prior notice to Party X: (a) liquidate
any transaction between Party X and any Non-Defaulting Party (which
liquidation may include the conversion of amounts denominated in multiple
currencies into a single currency if deemed necessary or desirable by the
Non-Defaulting Party), (b) reduce any amounts due and owing to Party X
under any transaction between Party X and any Non-Defaulting Party by
setting off against such amounts any amounts due and owing to a
Non-Defaulting Party by Party X, and (c) treat all security for, and all
amounts due and owing to Party X under, any transaction between Party X and
any Non-Defaulting Party as security for all transactions between Party X
and any Non-Defaulting Party; PROVIDED, HOWEVER, that the exercise of the
remedies described in clauses (a), (b) and (c) above (or in any other
similar provision in any agreement between the parties) shall be deemed to
occur immediately subsequent to, but independent of, the exercise of any
netting, liquidation, set-off or other similar provision contained in any
master agreement between the parties; PROVIDED FURTHER that each
26
provision and agreement hereof shall be treated as independent from any
other provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or
agreement.
(e) ADDITIONAL REPRESENTATIONS. For purposes of Section 3 of this Agreement,
the following shall be added, immediately following paragraph (f) thereof:
"(g) NO 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 advisors 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. It has not received from the other party any
assurance or guarantee as to the expected results of that Transaction.
(h) EVALUATION AND UNDERSTANDING. It is capable of evaluating 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
financial and other risks of that Transaction.
(i) STATUS OF PARTIES. The other party is not acting as a fiduciary or an
advisor for it in respect of hat Transaction.
(j) NO AGENCY. It is entering into this Agreement and each Transaction as
principal and not as agent.
(k) RISK MANAGEMENT. Party B alone represents that this Agreement has
been, and each Transaction hereunder has been or will be, as the case
may be, entered into for the purpose of managing its borrowings or
investments, hedging its underlying assets or liabilities or in
connection with its line of business (including financial
intermediation services) and not for the purpose of speculation."
(f) RECORDING OF CONVERSATIONS. Each party (i) consents to the recording of the
telephone conversations of its trading and marketing personnel in
connection with this Agreement or any potential Transaction; (ii) agrees to
obtain any necessary consent of, and give notice of such recording to, such
personnel and (iii) agrees that any such recordings may be submitted in
evidence in any Proceeding relating to this Agreement.
(g) ELECTRONIC CONFIRMATIONS Where a Transaction is confirmed by means of an
electronic messaging system that the parties have elected to use to confirm such
Transaction (i) such Confirmation will constitute a "Confirmation" as referred
to in this Agreement even when not so specified in the confirmation, (ii) such
Confirmation will supplement, form part of , and be subject to this Agreement
(unless such Confirmation expressly states otherwise) and (iii) the definitions
and provisions contained in the 1998 ISDA FX and Currency Option Definitions (as
published by the International Swaps and Derivatives Association, Inc) will be
incorporated into the Confirmation if the Transaction is an FX Transaction or a
Currency Option. In the event of any inconsistency between the Definitions
applicable pursuant to clause (iii) of this subsection and this Agreement, the
Confirmation will prevail for th purpose of the relevant Transaction.
27
(h) LIMITATION OF LIABILITY. Without prejudice to the definition of 'Loss' and
payments calculated by reference to the provisions in Section 6(e), no
party shall be required to pay or be liable to the other party for any
consequential, indirect or punitive damages, opportunity costs or lost
profits (whether arising from its negligence or breach of contract or
otherwise), save only that nothing shall exclude liability for fraud.
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.
CITIGROUP GLOBAL MARKETS LIMITED SACYR VALLEHERMOSO
PARTICIPACIONES MOBILIARIAS,
S.L.U.
By: -------------------------------- By: --------------------------------
Print Name: ------------------------ Print Name: ------------------------
Title: ----------------------------- Title: -----------------------------
Date: ------------------------------ Date: ------------------------------
By: --------------------------------
Print Name: ------------------------
Title: -----------------------------
Date: ------------------------------
28
EXHIBIT 1
GARANTIA
GARANTIA de fecha de 8 de Noviembre de 2006 otorgada por Sacyr Vallerhermoso,
S.A. (en lo sucesivo, el "Garante"), a favor de Citigroup Global Markets Limited
(en adelante "CGML"), en relacion con las Operaciones (tal y como se define a
continuacion) que este realizara con Sacyr Vallehermoso Participaciones
Mobiliarias, S.L.U. (en lo sucesivo, la "Compania"). Por "Operaciones" se
entenderan todas aquellas Operaciones singulares que se cierren entre las partes
al xxxxxx del ISDA Master Agreement de fecha 8 de Noviembre de 2006 entre
Citigroup y la Compania.
1. GARANTIA. La presente Garantia tiene naturaleza de garantia a primera
demanda, incondicional e irrevocable. Las obligaciones del Garante son
solidarias con respecto de la Compania de xxx xxxxxx que responde al mismo
nivel que la Compania como obligado principal ante Citigroup.
El Garante garantiza con caracter incondicional, irrevocable y a primera
demanda a Citigroup, sus entidades sucesoras y/o cesionarios, el pago al
vencimiento de todas y cada una de las obligaciones y responsabilidades de
la Compania con Citigroup derivadas de las Operaciones (en adelante, "las
Obligaciones"), bastando para su reclamacion la simple notificacion por
Citigroup al Garante, sin necesidad de justificar el motivo del
incumplimiento.
2. CONSENTIMIENTO, RENUNCIAS Y RENOVACIONES. El Garante acepta que Citigroup
podra recurrir a ellos para el pago de cualesquiera de las Obligaciones,
independientemente de que Citigroup haya recurrido a cualquier garantia o
colateral o haya procedido legalmente contra cualquier otro obligado
principal o secundario respecto a cualesquiera de dichas Obligaciones.
3. GASTOS. El Garante se compromete a reembolsar a la vista cualquier gasto
relacionado directamente con la ejecucion o proteccion de los derechos de
Citigroup en virtud de la presente Garantia.
4. SUBROGACION. El Garante se compromete a no ejercer ningun derecho que
pudiera corresponderle frente a la Compania hasta que la totalidad de las
Obligaciones ante Citigroup se hayan liquidado por completo. Si cualquier
importe se hubiera pagado al Garante contraviniendo el compromiso anterior,
dicho importe se mantendra en deposito en beneficio de Citigroup y sera
entregado a este para su aplicacion a las Obligaciones.
5. VALIDEZ DE LA GARANTIA. La presente Garantia tiene caracter de
incondicional, irrevocable y a primera demanda, y permanecera en vigor y
sera vinculante para el Garante, sus sucesores y cesionarios hasta que la
totalidad de la Obligaciones se hayan liquidado por completo.
6. LEY Y JURISDICCION. La presente Garantia esta sometida a Derecho espanol.
29
7. NOTIFICACIONES. La direccion del Garante a efectos de notificaciones es la
siguiente:
Sacyr Vallehermoso S.A.
P(o) de la Castellana n(o) 83/85
28046 Madrid
Atencion: Xxxx Xxxxxxx Xxxxx
Tel 00 00 000 00 00
Fax: 00 00 000 0000
8. MODIFICACIONES. No surtira efecto ninguna modificacion de la presente
Garantia a menos que se efectue por escrito, con la firma del Garante, la
Compania y Citigroup.
Sacyr Vallehermoso S.A.
Fdo.:_________________
30
[CITIGROUP LOGO]
November 8, 2006
TO:
SACYR VALLEHERMOSO PARTICIPACIONES MOBILIARIAS, S.L.
Attn:
Tel:
Fax:
FROM:
Documentation Unit
Telephone: 00 00 000 000 0000 / 1598
Facsimile: 00 44 207 508 1673 / 1674
Our Ref:
TRANSACTION
The purpose of this letter agreement (this 'Confirmation') is to confirm the
terms and conditions of the Transaction entered into between SACYR VALLEHERMOSO
PARTICIPACIONES MOBILIARIAS, S.L. ('Counterparty') and Citigroup Global Markets
Limited ('Citigroup') on the Trade Date specified below (the 'Transaction').
This Confirmation constitutes a "Confirmation" as referred to in the ISDA Master
Agreement specified below.
Citigroup Global Markets Limited is authorised and regulated by the Financial
Services Authority. Citigroup Global Markets Limited is entering into this
Transaction as principal and not as an agent for any other party.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Swap Definitions") and in the 2002 ISDA Equity Derivatives Definitions (the
"Equity Definitions", and together with the Swap Definitions, the
"Definitions"), in each case as published by the International Swaps and
Derivatives Association, Inc., are incorporated into this Confirmation. In the
event of any inconsistency between the Swap Definitions and the Equity
Definitions, the Equity Definitions will govern. In the event of any
inconsistency between either set of Definitions and this Confirmation, this
Confirmation will govern.
References in the Swap Definitions to the term "Swap Transaction" shall be
deemed to be references to the term "Transaction" for the purposes of this
Confirmation..
This Confirmation evidences a complete and binding agreement between you and us
as to the terms of the Transaction to which this Confirmation relates. In
addition, you and we agree to use all reasonable efforts promptly to negotiate,
execute and deliver an agreement in the form of an ISDA Master Agreement, with
such modifications as you and we will in good faith agree. Upon the execution by
you and us of such an agreement, this Confirmation will supplement, form part
of, and be subject to that agreement. All provisions contained in, or
incorporated by reference in, that agreement upon its execution will govern this
Confirmation except as expressly modified below. Until we execute and deliver
that agreement, this Confirmation, together with all other documents referring
to an ISDA Master Agreement (each a 'Confirmation') confirming transactions
(each a 'Transaction') entered into between us (notwithstanding anything to the
contrary in a Confirmation), shall supplement, form a part of, and be subject
to, a single agreement (the 'Agreement') in the pre-printed form of the 1992
ISDA Master Agreement (Multicurrency - Cross Border) (the 'ISDA Form') as if, on
the Trade Date of the first such Transaction between us, we had executed a
single agreement in such form (but without any Schedule except for the election
of English Law as the governing law, USD as the Termination Currency, Credit
Event Upon Merger, Second Method and Market Quotation as applying and basic
Set-
Citigroup Global Markets Limited
Registered Office: Citigroup Centre, Canada Square, Xxxxxx Xxxxx,
Xxxxxx X00 0XX
Registered in England Registered Number: 1763297
Authorised and regulated by the Financial Services Authority
Off provision contained in Section V A. of the User's Guide to the 1992 ISDA
Master Agreements - 1993 Edition published by ISDA being incorporated by
reference). The Agreement shall contain such other modifications (including
additional elections) to the ISDA Form (each, an 'Agreement Modification') as
may be agreed by the parties from time to time. Any Agreement Modification may
be set forth in any Confirmation (whether or not it would form part of the
Schedule to the ISDA Master Agreement and notwithstanding the termination or
expiry of the Transaction(s) detailed in any such Confirmation). To the extent
of any inconsistency between the provisions of the ISDA Form and this
Confirmation, this Confirmation will prevail for the purposes of this
Transaction. To the extent of any inconsistency between any Agreement
Modification and a prior Agreement Modification, the terms of the Agreement
Modification set forth in the most recent Confirmation shall govern.
Unless specified herein, information about the time of dealing and the amount or
basis of any charges shared with any third party in connection with this
Transaction will be made available on request.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
GENERAL TERMS:
Trade Date: 8 November 2006
Effective Date: 13 November 2006
Termination Date: The Settlement Date
Shares: The ordinary shares of REPSOL YPF S.A (RIC:
XXX.XX)
Exchange: Madrid Stock Exchange
Related Exchange: MEFF
EQUITY AMOUNT(S):
Equity Amount Payer: Citigroup
Equity Amount Receiver: Counterparty
Number of Shares: 38,625,904
Initial Price 27.8312
Equity Notional Amount: EUR 1,075,005,259,40(being on the Trade Date the
Number of Shares multiplied by Initial Price.)
Valuation Date: January 9, 2007
FLOATING AMOUNT(S):
Floating Amount Payer: Counterparty
Notional Amount: The Equity Notional Amount
Payment Date: The Settlement Date
Floating Rate Option: EUR-EURIBOR-Telerate
Designated Maturity: Three months
-2/6-
Spread: Plus 0.25 per cent
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Business Days: TARGET Settlement Days
Business Day Convention Modified Following
SETTLEMENT TERMS:
Physical Settlement: Applicable
Settlement Currency: EUR
Settlement Date: Three Currency Business Days after the Valuation
Date
Settlement Method
Election: Not Applicable
DIVIDENDS:
Dividend Period: Second Period
Dividend Amount: The Country Percentage of the gross cash dividend
per Share paid by the Issuer during the relevant
Dividend Period to holders of record of a Share
multiplied by the Number of Shares
Country Percentage: 85%
Dividend Payment Date: The Settlement Date
Extraordinary Dividend: The characterization of a dividend or portion
thereof as an Extraordinary Dividend shall be
determined by the Calculation Agent
Re-investment of
Dividends: Not Applicable
ADJUSTMENTS:
Method of Adjustment: Calculation Agent Adjustment
EXTRAORDINARY EVENTS:
Consequences of Merger
Events:
a) Share for Share: Modified Calculation Agent Adjustment
b) Share for Other: Modified Calculation Agent Adjustment
c) Share for Combined: Modified Calculation Agent Adjustment
Determining Party: Citigroup
-3/6-
Tender Offer: Applicable including, for the avoidance of doubt,
the Tender Offers already launched over the
Shares or any modifications thereof.
Consequences of Tender Offer:
a) Share for Share: Modified Calculation Agent Adjustment
b) Share for Other: Modified Calculation Agent Adjustment
c) Share for Combined: Modified Calculation Agent Adjustment
Determining Party: Citigroup
Composition of Combined
Consideration: Not Applicable
Nationalization,
Insolvency
or Delisting: Cancellation and Payment
Determining Party: Citigroup
ADDITIONAL DISRUPTION EVENTS:
Change in Law: Applicable.
Section 12.9(a)(ii) of the Equity Definitions is
replaced in its entirety by the words:
'Change in Law' means that, on or after the Trade
Date (A) due to the adoption of or any change in
any applicable law or regulation (including,
without limitation, any tax law), or (B) 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 or regulation (including any
action taken by a taxing authority), the
Calculation Agent determines (following
receipt of a request from either party for such a
determination) in good faith (X) that it has
become illegal for a party to this Transaction to
hold, acquire or dispose of Hedge Positions
relating to this Transaction, or (Y) a party will
incur a materially increased cost in performing
its obligations under such Transaction (including,
without limitation, due to any increase in tax
liability, decrease in tax benefit or other
adverse effect on its tax position), provided
that this Section 12.9(a)(ii) shall not apply if
the Calculation Agent determines that such party
could have taken reasonable steps to avoid such
illegality.
Insolvency Filing: Applicable
Failure to Deliver: Applicable
Determining Party: Citigroup with respect to all Additional Disruption
Events
OPTIONAL TERMIANTION:
(a) Counterparty may elect to terminate this Transaction (an "Optional
Termination") (provided that no Event of Default with respect to Counterparty,
or event which, with the giving of notice or the lapse of time, or both, would
constitute such an Event of Default, shall have occurred and be continuing, and
provided that no Early Termination Date has been designated), by giving
telephonic notice (the "Termination Notice") to Citigroup of such election not
less than two Scheduled Trading Days prior to
-4/6-
the early Valuation Date (the "Early Valuation Date") designated in the
Termination Notice and such Termination Notice shall be irrevocable. The Early
Valuation Date may be any Scheduled Trading Day prior to 9 January 2007. The
Termination Notice will be confirmed in writing by the terminating party
promptly after making such election, provided that failure to do so shall not in
any way affect or suspend the effectiveness of the Termination Notice.
(b) In the event that a Termination Notice is given pursuant to the immediately
preceding paragraph, (i) the Early Valuation Date shall be the Valuation Date
and the day which is three Currency Business Days following the Early Valuation
Date (the "New Termination Date") shall be both the Settlement Date and the
Termination Date; and (ii) the Calculation Period that commenced on the Floating
Amount Payer Period End Date immediately preceding the New Termination Date (or
that commenced on the Effective Date if the New Termination Date is a day on or
prior to the first Reset Date) shall be the final Calculation Period, the New
Termination Date shall be the Floating Amount Payer Period End Date for such
Calculation Period and the Floating Amount in respect of such Calculation Period
shall be payable on the New Termination Date.
(c) The operation of the paragraphs contained within this section shall not
affect or suspend any obligation of the parties hereto arising under this
Transaction on or prior to the New Termination Date. Upon the payment of all
amounts that are due and unpaid as of the New Termination Date (including
amounts required to be paid pursuant to the paragraphs within this section), the
obligation of each party to make any further payments with respect to this
Transaction will terminate.
OTHER TERMS:
Non-Reliance: Applicable
Agreements and Acknowledgments
Regarding Hedging Activities: Applicable
Additional Acknowledgments: Applicable
Calculation Agent: Citigroup
ACCOUNT DETAILS:
Payments to Citigroup: To be advised prior to payment
Payments to Counterparty: Please advise to expedite payment
If you have any questions regarding this letter agreement, please contact
the Derivatives Operations Department at the telephone numbers indicated or the
facsimile numbers indicated on this Confirmation.
Please 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.
Very truly yours,
CITIGROUP GLOBAL MARKETS LIMITED
By: -----------------------------------
Name:
Title:
-5/6-
Accepted and confirmed as
of the Trade Date:
SACYR VALLEHERMOSO PARTICIPACIONES MOBILIARIAS, S.L.
/s/
By: -----------------------------------
Name:
Title:
-6/6-
[CITIGROUP LOGO]
November 9, 2006
TO:
SACYR VALLEHERMOSO PARTICIPACIONES MOBILIARIAS, S.L.
Attn:
Tel:
Fax:
FROM:
Documentation Unit
Telephone: 00 00 000 000 0000 / 1598
Facsimile: 00 44 207 508 1673 / 1674
Our Ref:
TRANSACTION
The purpose of this letter agreement (this 'Confirmation') is to confirm the
terms and conditions of the Transaction entered into between SACYR VALLEHERMOSO
PARTICIPACIONES MOBILIARIAS, S.L. ('Counterparty') and Citigroup Global Markets
Limited ('Citigroup') on the Trade Date specified below (the 'Transaction').
This Confirmation constitutes a "Confirmation" as referred to in the ISDA Master
Agreement specified below.
Citigroup Global Markets Limited is authorised and regulated by the Financial
Services Authority. Citigroup Global Markets Limited is entering into this
Transaction as principal and not as an agent for any other party.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Swap Definitions") and in the 2002 ISDA Equity Derivatives Definitions (the
"Equity Definitions", and together with the Swap Definitions, the
"Definitions"), in each case as published by the International Swaps and
Derivatives Association, Inc., are incorporated into this Confirmation. In the
event of any inconsistency between the Swap Definitions and the Equity
Definitions, the Equity Definitions will govern. In the event of any
inconsistency between either set of Definitions and this Confirmation, this
Confirmation will govern.
References in the Swap Definitions to the term "Swap Transaction" shall be
deemed to be references to the term "Transaction" for the purposes of this
Confirmation..
This Confirmation evidences a complete and binding agreement between you and us
as to the terms of the Transaction to which this Confirmation relates. In
addition, you and we agree to use all reasonable efforts promptly to negotiate,
execute and deliver an agreement in the form of an ISDA Master Agreement, with
such modifications as you and we will in good faith agree. Upon the execution by
you and us of such an agreement, this Confirmation will supplement, form part
of, and be subject to that agreement. All provisions contained in, or
incorporated by reference in, that agreement upon its execution will govern this
Confirmation except as expressly modified below. Until we execute and deliver
that agreement, this Confirmation, together with all other documents referring
to an ISDA Master Agreement (each a 'Confirmation') confirming transactions
(each a 'Transaction') entered into between us (notwithstanding anything to the
contrary in a Confirmation), shall supplement, form a part of, and be subject
to, a single agreement (the 'Agreement') in the pre-printed form of the 1992
ISDA Master Agreement (Multicurrency - Cross Border) (the 'ISDA Form') as if, on
the Trade Date of the first such Transaction between us, we had executed a
single agreement in such form (but without any Schedule except for the election
of English Law as the governing law, USD as the Termination Currency, Credit
Event Upon Merger, Second Method and Market Quotation as applying and basic
Set-
Citigroup Global Markets Limited
Registered Office: Citigroup Centre, Canada Square, Xxxxxx Xxxxx,
Xxxxxx X00 0XX
Registered in England Registered Number: 1763297
Authorised and regulated by the Financial Services Authority
Off provision contained in Section V A. of the User's Guide to the 1992 ISDA
Master Agreements - 1993 Edition published by ISDA being incorporated by
reference). The Agreement shall contain such other modifications (including
additional elections) to the ISDA Form (each, an 'Agreement Modification') as
may be agreed by the parties from time to time. Any Agreement Modification may
be set forth in any Confirmation (whether or not it would form part of the
Schedule to the ISDA Master Agreement and notwithstanding the termination or
expiry of the Transaction(s) detailed in any such Confirmation). To the extent
of any inconsistency between the provisions of the ISDA Form and this
Confirmation, this Confirmation will prevail for the purposes of this
Transaction. To the extent of any inconsistency between any Agreement
Modification and a prior Agreement Modification, the terms of the Agreement
Modification set forth in the most recent Confirmation shall govern.
Unless specified herein, information about the time of dealing and the amount or
basis of any charges shared with any third party in connection with this
Transaction will be made available on request.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
GENERAL TERMS:
Trade Date: 9 November 2006
Effective Date: 14 November 2006
Termination Date: The Settlement Date
Shares: The ordinary shares of REPSOL YPF S.A (RIC:
XXX.XX)
Exchange: Madrid Stock Exchange
Related Exchange: MEFF
EQUITY AMOUNT(S):
Equity Amount Payer: Citigroup
Equity Amount Receiver: Counterparty
Number of Shares: 3,945,000
Initial Price 27.8460
Equity Notional Amount: EUR 109,852,541.80(being on the Trade Date the
Number of Shares multiplied by Initial Price.)
Valuation Date: January 9, 2007
FLOATING AMOUNT(S):
Floating Amount Payer: Counterparty
Notional Amount: The Equity Notional Amount
Payment Date: The Settlement Date
Floating Rate Option: EUR-EURIBOR-Telerate
Designated Maturity: Three months
-2/6-
Spread: Plus 0.25 per cent
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Business Days: TARGET Settlement Days
Business Day Convention Modified Following
SETTLEMENT TERMS:
Physical Settlement: Applicable
Settlement Currency: EUR
Settlement Date: Three Currency Business Days after the Valuation
Date
Settlement Method
Election: Not Applicable
DIVIDENDS:
Dividend Period: Second Period
Dividend Amount: The Country Percentage of the gross cash dividend
per Share paid by the Issuer during the relevant
Dividend Period to holders of record of a Share
multiplied by the Number of Shares
Country Percentage: 85%
Dividend Payment Date: The Settlement Date
Extraordinary Dividend: The characterization of a dividend or portion
thereof as an Extraordinary Dividend shall be
determined by the Calculation Agent
Re-investment of
Dividends: Not Applicable
ADJUSTMENTS:
Method of Adjustment: Calculation Agent Adjustment
EXTRAORDINARY EVENTS:
Consequences of Merger
Events:
a) Share for Share: Modified Calculation Agent Adjustment
b) Share for Other: Modified Calculation Agent Adjustment
c) Share for Combined: Modified Calculation Agent Adjustment
Determining Party: Citigroup
-3/6-
Tender Offer: Applicable including, for the avoidance of doubt,
the Tender Offers already launched over the
Shares or any modifications thereof.
Consequences of Tender Offer:
a) Share for Share: Modified Calculation Agent Adjustment
b) Share for Other: Modified Calculation Agent Adjustment
c) Share for Combined: Modified Calculation Agent Adjustment
Determining Party: Citigroup
Composition of Combined
Consideration: Not Applicable
Nationalization,
Insolvency
or Delisting: Cancellation and Payment
Determining Party: Citigroup
ADDITIONAL DISRUPTION EVENTS:
Change in Law: Applicable.
Section 12.9(a)(ii) of the Equity Definitions is
replaced in its entirety by the words:
'Change in Law' means that, on or after the Trade
Date (A) due to the adoption of or any change in
any applicable law or regulation (including,
without limitation, any tax law), or (B) 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 or regulation (including any
action taken by a taxing authority), the
Calculation Agent determines (following
receipt of a request from either party for such a
determination) in good faith (X) that it has
become illegal for a party to this Transaction to
hold, acquire or dispose of Hedge Positions
relating to this Transaction, or (Y) a party will
incur a materially increased cost in performing
its obligations under such Transaction (including,
without limitation, due to any increase in tax
liability, decrease in tax benefit or other
adverse effect on its tax position), provided
that this Section 12.9(a)(ii) shall not apply if
the Calculation Agent determines that such party
could have taken reasonable steps to avoid such
illegality.
Insolvency Filing: Applicable
Failure to Deliver: Applicable
Determining Party: Citigroup with respect to all Additional Disruption
Events
OPTIONAL TERMIANTION:
(a) Counterparty may elect to terminate this Transaction (an "Optional
Termination") (provided that no Event of Default with respect to Counterparty,
or event which, with the giving of notice or the lapse of time, or both, would
constitute such an Event of Default, shall have occurred and be continuing, and
provided that no Early Termination Date has been designated), by giving
telephonic notice (the "Termination Notice") to Citigroup of such election not
less than two Scheduled Trading Days prior to
-4/6-
the early Valuation Date (the "Early Valuation Date") designated in the
Termination Notice and such Termination Notice shall be irrevocable. The Early
Valuation Date may be any Scheduled Trading Day prior to 9 January 2007. The
Termination Notice will be confirmed in writing by the terminating party
promptly after making such election, provided that failure to do so shall not in
any way affect or suspend the effectiveness of the Termination Notice.
(b) In the event that a Termination Notice is given pursuant to the immediately
preceding paragraph, (i) the Early Valuation Date shall be the Valuation Date
and the day which is three Currency Business Days following the Early Valuation
Date (the "New Termination Date") shall be both the Settlement Date and the
Termination Date; and (ii) the Calculation Period that commenced on the Floating
Amount Payer Period End Date immediately preceding the New Termination Date (or
that commenced on the Effective Date if the New Termination Date is a day on or
prior to the first Reset Date) shall be the final Calculation Period, the New
Termination Date shall be the Floating Amount Payer Period End Date for such
Calculation Period and the Floating Amount in respect of such Calculation Period
shall be payable on the New Termination Date.
(c) The operation of the paragraphs contained within this section shall not
affect or suspend any obligation of the parties hereto arising under this
Transaction on or prior to the New Termination Date. Upon the payment of all
amounts that are due and unpaid as of the New Termination Date (including
amounts required to be paid pursuant to the paragraphs within this section), the
obligation of each party to make any further payments with respect to this
Transaction will terminate.
OTHER TERMS:
Non-Reliance: Applicable
Agreements and Acknowledgments
Regarding Hedging Activities: Applicable
Additional Acknowledgments: Applicable
Calculation Agent: Citigroup
ACCOUNT DETAILS:
Payments to Citigroup: To be advised prior to payment
Payments to Counterparty: Please advise to expedite payment
If you have any questions regarding this letter agreement, please contact
the Derivatives Operations Department at the telephone numbers indicated or the
facsimile numbers indicated on this Confirmation.
Please 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.
Very truly yours,
CITIGROUP GLOBAL MARKETS LIMITED
By: -----------------------------------
Name:
Title:
-5/6-
Accepted and confirmed as
of the Trade Date:
SACYR VALLEHERMOSO PARTICIPACIONES MOBILIARIAS, S.L.
/s/
By: -----------------------------------
Name:
Title:
-6/6-
[CITIGROUP LOGO]
November 10, 2006
TO:
SACYR VALLEHERMOSO PARTICIPACIONES MOBILIARIAS, S.L.
Attn:
Tel:
Fax:
FROM:
Documentation Unit
Telephone: 00 00 000 000 0000 / 1598
Facsimile: 00 44 207 508 1673 / 1674
Our Ref:
TRANSACTION
The purpose of this letter agreement (this 'Confirmation') is to confirm the
terms and conditions of the Transaction entered into between SACYR VALLEHERMOSO
PARTICIPACIONES MOBILIARIAS, S.L. ('Counterparty') and Citigroup Global Markets
Limited ('Citigroup') on the Trade Date specified below (the 'Transaction').
This Confirmation constitutes a "Confirmation" as referred to in the ISDA Master
Agreement specified below.
Citigroup Global Markets Limited is authorised and regulated by the Financial
Services Authority. Citigroup Global Markets Limited is entering into this
Transaction as principal and not as an agent for any other party.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Swap Definitions") and in the 2002 ISDA Equity Derivatives Definitions (the
"Equity Definitions", and together with the Swap Definitions, the
"Definitions"), in each case as published by the International Swaps and
Derivatives Association, Inc., are incorporated into this Confirmation. In the
event of any inconsistency between the Swap Definitions and the Equity
Definitions, the Equity Definitions will govern. In the event of any
inconsistency between either set of Definitions and this Confirmation, this
Confirmation will govern.
References in the Swap Definitions to the term "Swap Transaction" shall be
deemed to be references to the term "Transaction" for the purposes of this
Confirmation..
This Confirmation evidences a complete and binding agreement between you and us
as to the terms of the Transaction to which this Confirmation relates. In
addition, you and we agree to use all reasonable efforts promptly to negotiate,
execute and deliver an agreement in the form of an ISDA Master Agreement, with
such modifications as you and we will in good faith agree. Upon the execution by
you and us of such an agreement, this Confirmation will supplement, form part
of, and be subject to that agreement. All provisions contained in, or
incorporated by reference in, that agreement upon its execution will govern this
Confirmation except as expressly modified below. Until we execute and deliver
that agreement, this Confirmation, together with all other documents referring
to an ISDA Master Agreement (each a 'Confirmation') confirming transactions
(each a 'Transaction') entered into between us (notwithstanding anything to the
contrary in a Confirmation), shall supplement, form a part of, and be subject
to, a single agreement (the 'Agreement') in the pre-printed form of the 1992
ISDA Master Agreement (Multicurrency - Cross Border) (the 'ISDA Form') as if, on
the Trade Date of the first such Transaction between us, we had executed a
single agreement in such form (but without any Schedule except for the election
of English Law as the governing law, USD as the Termination Currency, Credit
Event Upon Merger, Second Method and Market Quotation as applying and basic
Set-
Citigroup Global Markets Limited
Registered Office: Citigroup Centre, Canada Square, Xxxxxx Xxxxx,
Xxxxxx X00 0XX
Registered in England Registered Number: 1763297
Authorised and regulated by the Financial Services Authority
Off provision contained in Section V A. of the User's Guide to the 1992 ISDA
Master Agreements - 1993 Edition published by ISDA being incorporated by
reference). The Agreement shall contain such other modifications (including
additional elections) to the ISDA Form (each, an 'Agreement Modification') as
may be agreed by the parties from time to time. Any Agreement Modification may
be set forth in any Confirmation (whether or not it would form part of the
Schedule to the ISDA Master Agreement and notwithstanding the termination or
expiry of the Transaction(s) detailed in any such Confirmation). To the extent
of any inconsistency between the provisions of the ISDA Form and this
Confirmation, this Confirmation will prevail for the purposes of this
Transaction. To the extent of any inconsistency between any Agreement
Modification and a prior Agreement Modification, the terms of the Agreement
Modification set forth in the most recent Confirmation shall govern.
Unless specified herein, information about the time of dealing and the amount or
basis of any charges shared with any third party in connection with this
Transaction will be made available on request.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
GENERAL TERMS:
Trade Date: 10 November 2006
Effective Date: 15 November 2006
Termination Date: The Settlement Date
Shares: The ordinary shares of REPSOL YPF S.A (RIC:
XXX.XX)
Exchange: Madrid Stock Exchange
Related Exchange: MEFF
EQUITY AMOUNT(S):
Equity Amount Payer: Citigroup
Equity Amount Receiver: Counterparty
Number of Shares: 5,215,000
Initial Price 27.8212
Equity Notional Amount: EUR 145,087,523.58(being on the Trade Date the
Number of Shares multiplied by Initial Price.)
Valuation Date: January 9, 2007
FLOATING AMOUNT(S):
Floating Amount Payer: Counterparty
Notional Amount: The Equity Notional Amount
Payment Date: The Settlement Date
Floating Rate Option: EUR-EURIBOR-Telerate
Designated Maturity: Three months
-2/6-
Spread: Plus 0.25 per cent
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Business Days: TARGET Settlement Days
Business Day Convention Modified Following
SETTLEMENT TERMS:
Physical Settlement: Applicable
Settlement Currency: EUR
Settlement Date: Three Currency Business Days after the Valuation
Date
Settlement Method
Election: Not Applicable
DIVIDENDS:
Dividend Period: Second Period
Dividend Amount: The Country Percentage of the gross cash dividend
per Share paid by the Issuer during the relevant
Dividend Period to holders of record of a Share
multiplied by the Number of Shares
Country Percentage: 85%
Dividend Payment Date: The Settlement Date
Extraordinary Dividend: The characterization of a dividend or portion
thereof as an Extraordinary Dividend shall be
determined by the Calculation Agent
Re-investment of
Dividends: Not Applicable
ADJUSTMENTS:
Method of Adjustment: Calculation Agent Adjustment
EXTRAORDINARY EVENTS:
Consequences of Merger
Events:
a) Share for Share: Modified Calculation Agent Adjustment
b) Share for Other: Modified Calculation Agent Adjustment
c) Share for Combined: Modified Calculation Agent Adjustment
Determining Party: Citigroup
-3/6-
Tender Offer: Applicable including, for the avoidance of doubt,
the Tender Offers already launched over the
Shares or any modifications thereof.
Consequences of Tender Offer:
a) Share for Share: Modified Calculation Agent Adjustment
b) Share for Other: Modified Calculation Agent Adjustment
c) Share for Combined: Modified Calculation Agent Adjustment
Determining Party: Citigroup
Composition of Combined
Consideration: Not Applicable
Nationalization,
Insolvency
or Delisting: Cancellation and Payment
Determining Party: Citigroup
ADDITIONAL DISRUPTION EVENTS:
Change in Law: Applicable.
Section 12.9(a)(ii) of the Equity Definitions is
replaced in its entirety by the words:
'Change in Law' means that, on or after the Trade
Date (A) due to the adoption of or any change in
any applicable law or regulation (including,
without limitation, any tax law), or (B) 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 or regulation (including any
action taken by a taxing authority), the
Calculation Agent determines (following
receipt of a request from either party for such a
determination) in good faith (X) that it has
become illegal for a party to this Transaction to
hold, acquire or dispose of Hedge Positions
relating to this Transaction, or (Y) a party will
incur a materially increased cost in performing
its obligations under such Transaction (including,
without limitation, due to any increase in tax
liability, decrease in tax benefit or other
adverse effect on its tax position), provided
that this Section 12.9(a)(ii) shall not apply if
the Calculation Agent determines that such party
could have taken reasonable steps to avoid such
illegality.
Insolvency Filing: Applicable
Failure to Deliver: Applicable
Determining Party: Citigroup with respect to all Additional Disruption
Events
OPTIONAL TERMIANTION:
(a) Counterparty may elect to terminate this Transaction (an "Optional
Termination") (provided that no Event of Default with respect to Counterparty,
or event which, with the giving of notice or the lapse of time, or both, would
constitute such an Event of Default, shall have occurred and be continuing, and
provided that no Early Termination Date has been designated), by giving
telephonic notice (the "Termination Notice") to Citigroup of such election not
less than two Scheduled Trading Days prior to
-4/6-
the early Valuation Date (the "Early Valuation Date") designated in the
Termination Notice and such Termination Notice shall be irrevocable. The Early
Valuation Date may be any Scheduled Trading Day prior to 9 January 2007. The
Termination Notice will be confirmed in writing by the terminating party
promptly after making such election, provided that failure to do so shall not in
any way affect or suspend the effectiveness of the Termination Notice.
(b) In the event that a Termination Notice is given pursuant to the immediately
preceding paragraph, (i) the Early Valuation Date shall be the Valuation Date
and the day which is three Currency Business Days following the Early Valuation
Date (the "New Termination Date") shall be both the Settlement Date and the
Termination Date; and (ii) the Calculation Period that commenced on the Floating
Amount Payer Period End Date immediately preceding the New Termination Date (or
that commenced on the Effective Date if the New Termination Date is a day on or
prior to the first Reset Date) shall be the final Calculation Period, the New
Termination Date shall be the Floating Amount Payer Period End Date for such
Calculation Period and the Floating Amount in respect of such Calculation Period
shall be payable on the New Termination Date.
(c) The operation of the paragraphs contained within this section shall not
affect or suspend any obligation of the parties hereto arising under this
Transaction on or prior to the New Termination Date. Upon the payment of all
amounts that are due and unpaid as of the New Termination Date (including
amounts required to be paid pursuant to the paragraphs within this section), the
obligation of each party to make any further payments with respect to this
Transaction will terminate.
OTHER TERMS:
Non-Reliance: Applicable
Agreements and Acknowledgments
Regarding Hedging Activities: Applicable
Additional Acknowledgments: Applicable
Calculation Agent: Citigroup
ACCOUNT DETAILS:
Payments to Citigroup: To be advised prior to payment
Payments to Counterparty: Please advise to expedite payment
If you have any questions regarding this letter agreement, please contact
the Derivatives Operations Department at the telephone numbers indicated or the
facsimile numbers indicated on this Confirmation.
Please 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.
Very truly yours,
CITIGROUP GLOBAL MARKETS LIMITED
By: -----------------------------------
Name:
Title:
-5/6-
Accepted and confirmed as
of the Trade Date:
SACYR VALLEHERMOSO PARTICIPACIONES MOBILIARIAS, S.L.
/s/
By: -----------------------------------
Name:
Title:
-6/6-
[CITIGROUP LOGO]
November 13, 2006
TO:
SACYR VALLEHERMOSO PARTICIPACIONES MOBILIARIAS, S.L.
Attn:
Tel:
Fax:
FROM:
Documentation Unit
Telephone: 00 00 000 000 0000 / 1598
Facsimile: 00 44 207 508 1673 / 1674
Our Ref:
TRANSACTION
The purpose of this letter agreement (this 'Confirmation') is to confirm the
terms and conditions of the Transaction entered into between SACYR VALLEHERMOSO
PARTICIPACIONES MOBILIARIAS, S.L. ('Counterparty') and Citigroup Global Markets
Limited ('Citigroup') on the Trade Date specified below (the 'Transaction').
This Confirmation constitutes a "Confirmation" as referred to in the ISDA Master
Agreement specified below.
Citigroup Global Markets Limited is authorised and regulated by the Financial
Services Authority. Citigroup Global Markets Limited is entering into this
Transaction as principal and not as an agent for any other party.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Swap Definitions") and in the 2002 ISDA Equity Derivatives Definitions (the
"Equity Definitions", and together with the Swap Definitions, the
"Definitions"), in each case as published by the International Swaps and
Derivatives Association, Inc., are incorporated into this Confirmation. In the
event of any inconsistency between the Swap Definitions and the Equity
Definitions, the Equity Definitions will govern. In the event of any
inconsistency between either set of Definitions and this Confirmation, this
Confirmation will govern.
References in the Swap Definitions to the term "Swap Transaction" shall be
deemed to be references to the term "Transaction" for the purposes of this
Confirmation..
This Confirmation evidences a complete and binding agreement between you and us
as to the terms of the Transaction to which this Confirmation relates. In
addition, you and we agree to use all reasonable efforts promptly to negotiate,
execute and deliver an agreement in the form of an ISDA Master Agreement, with
such modifications as you and we will in good faith agree. Upon the execution by
you and us of such an agreement, this Confirmation will supplement, form part
of, and be subject to that agreement. All provisions contained in, or
incorporated by reference in, that agreement upon its execution will govern this
Confirmation except as expressly modified below. Until we execute and deliver
that agreement, this Confirmation, together with all other documents referring
to an ISDA Master Agreement (each a 'Confirmation') confirming transactions
(each a 'Transaction') entered into between us (notwithstanding anything to the
contrary in a Confirmation), shall supplement, form a part of, and be subject
to, a single agreement (the 'Agreement') in the pre-printed form of the 1992
ISDA Master Agreement (Multicurrency - Cross Border) (the 'ISDA Form') as if, on
the Trade Date of the first such Transaction between us, we had executed a
single agreement in such form (but without any Schedule except for the election
of English Law as the governing law, USD as the Termination Currency, Credit
Event Upon Merger, Second Method and Market Quotation as applying and basic
Set-
Citigroup Global Markets Limited
Registered Office: Citigroup Centre, Canada Square, Xxxxxx Xxxxx,
Xxxxxx X00 0XX
Registered in England Registered Number: 1763297
Authorised and regulated by the Financial Services Authority
Off provision contained in Section V A. of the User's Guide to the 1992 ISDA
Master Agreements - 1993 Edition published by ISDA being incorporated by
reference). The Agreement shall contain such other modifications (including
additional elections) to the ISDA Form (each, an 'Agreement Modification') as
may be agreed by the parties from time to time. Any Agreement Modification may
be set forth in any Confirmation (whether or not it would form part of the
Schedule to the ISDA Master Agreement and notwithstanding the termination or
expiry of the Transaction(s) detailed in any such Confirmation). To the extent
of any inconsistency between the provisions of the ISDA Form and this
Confirmation, this Confirmation will prevail for the purposes of this
Transaction. To the extent of any inconsistency between any Agreement
Modification and a prior Agreement Modification, the terms of the Agreement
Modification set forth in the most recent Confirmation shall govern.
Unless specified herein, information about the time of dealing and the amount or
basis of any charges shared with any third party in connection with this
Transaction will be made available on request.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
GENERAL TERMS:
Trade Date: 13 November 2006
Effective Date: 16 November 2006
Termination Date: The Settlement Date
Shares: The ordinary shares of REPSOL YPF S.A (RIC:
XXX.XX)
Exchange: Madrid Stock Exchange
Related Exchange: MEFF
EQUITY AMOUNT(S):
Equity Amount Payer: Citigroup
Equity Amount Receiver: Counterparty
Number of Shares: 5,590,000
Initial Price 27.7841
Equity Notional Amount: EUR 155,312,874.72(being on the Trade Date the
Number of Shares multiplied by Initial Price.)
Valuation Date: January 9, 2007
FLOATING AMOUNT(S):
Floating Amount Payer: Counterparty
Notional Amount: The Equity Notional Amount
Payment Date: The Settlement Date
Floating Rate Option: EUR-EURIBOR-Telerate
Designated Maturity: Three months
-2/6-
Spread: Plus 0.25 per cent
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Business Days: TARGET Settlement Days
Business Day Convention Modified Following
SETTLEMENT TERMS:
Physical Settlement: Applicable
Settlement Currency: EUR
Settlement Date: Three Currency Business Days after the Valuation
Date
Settlement Method
Election: Not Applicable
DIVIDENDS:
Dividend Period: Second Period
Dividend Amount: The Country Percentage of the gross cash dividend
per Share paid by the Issuer during the relevant
Dividend Period to holders of record of a Share
multiplied by the Number of Shares
Country Percentage: 85%
Dividend Payment Date: The Settlement Date
Extraordinary Dividend: The characterization of a dividend or portion
thereof as an Extraordinary Dividend shall be
determined by the Calculation Agent
Re-investment of
Dividends: Not Applicable
ADJUSTMENTS:
Method of Adjustment: Calculation Agent Adjustment
EXTRAORDINARY EVENTS:
Consequences of Merger
Events:
a) Share for Share: Modified Calculation Agent Adjustment
b) Share for Other: Modified Calculation Agent Adjustment
c) Share for Combined: Modified Calculation Agent Adjustment
Determining Party: Citigroup
-3/6-
Tender Offer: Applicable including, for the avoidance of doubt,
the Tender Offers already launched over the
Shares or any modifications thereof.
Consequences of Tender Offer:
a) Share for Share: Modified Calculation Agent Adjustment
b) Share for Other: Modified Calculation Agent Adjustment
c) Share for Combined: Modified Calculation Agent Adjustment
Determining Party: Citigroup
Composition of Combined
Consideration: Not Applicable
Nationalization,
Insolvency
or Delisting: Cancellation and Payment
Determining Party: Citigroup
ADDITIONAL DISRUPTION EVENTS:
Change in Law: Applicable.
Section 12.9(a)(ii) of the Equity Definitions is
replaced in its entirety by the words:
'Change in Law' means that, on or after the Trade
Date (A) due to the adoption of or any change in
any applicable law or regulation (including,
without limitation, any tax law), or (B) 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 or regulation (including any
action taken by a taxing authority), the
Calculation Agent determines (following
receipt of a request from either party for such a
determination) in good faith (X) that it has
become illegal for a party to this Transaction to
hold, acquire or dispose of Hedge Positions
relating to this Transaction, or (Y) a party will
incur a materially increased cost in performing
its obligations under such Transaction (including,
without limitation, due to any increase in tax
liability, decrease in tax benefit or other
adverse effect on its tax position), provided
that this Section 12.9(a)(ii) shall not apply if
the Calculation Agent determines that such party
could have taken reasonable steps to avoid such
illegality.
Insolvency Filing: Applicable
Failure to Deliver: Applicable
Determining Party: Citigroup with respect to all Additional Disruption
Events
OPTIONAL TERMIANTION:
(a) Counterparty may elect to terminate this Transaction (an "Optional
Termination") (provided that no Event of Default with respect to Counterparty,
or event which, with the giving of notice or the lapse of time, or both, would
constitute such an Event of Default, shall have occurred and be continuing, and
provided that no Early Termination Date has been designated), by giving
telephonic notice (the "Termination Notice") to Citigroup of such election not
less than two Scheduled Trading Days prior to
-4/6-
the early Valuation Date (the "Early Valuation Date") designated in the
Termination Notice and such Termination Notice shall be irrevocable. The Early
Valuation Date may be any Scheduled Trading Day prior to 9 January 2007. The
Termination Notice will be confirmed in writing by the terminating party
promptly after making such election, provided that failure to do so shall not in
any way affect or suspend the effectiveness of the Termination Notice.
(b) In the event that a Termination Notice is given pursuant to the immediately
preceding paragraph, (i) the Early Valuation Date shall be the Valuation Date
and the day which is three Currency Business Days following the Early Valuation
Date (the "New Termination Date") shall be both the Settlement Date and the
Termination Date; and (ii) the Calculation Period that commenced on the Floating
Amount Payer Period End Date immediately preceding the New Termination Date (or
that commenced on the Effective Date if the New Termination Date is a day on or
prior to the first Reset Date) shall be the final Calculation Period, the New
Termination Date shall be the Floating Amount Payer Period End Date for such
Calculation Period and the Floating Amount in respect of such Calculation Period
shall be payable on the New Termination Date.
(c) The operation of the paragraphs contained within this section shall not
affect or suspend any obligation of the parties hereto arising under this
Transaction on or prior to the New Termination Date. Upon the payment of all
amounts that are due and unpaid as of the New Termination Date (including
amounts required to be paid pursuant to the paragraphs within this section), the
obligation of each party to make any further payments with respect to this
Transaction will terminate.
OTHER TERMS:
Non-Reliance: Applicable
Agreements and Acknowledgments
Regarding Hedging Activities: Applicable
Additional Acknowledgments: Applicable
Calculation Agent: Citigroup
ACCOUNT DETAILS:
Payments to Citigroup: To be advised prior to payment
Payments to Counterparty: Please advise to expedite payment
If you have any questions regarding this letter agreement, please contact
the Derivatives Operations Department at the telephone numbers indicated or the
facsimile numbers indicated on this Confirmation.
Please 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.
Very truly yours,
CITIGROUP GLOBAL MARKETS LIMITED
By: -----------------------------------
Name:
Title:
-5/6-
Accepted and confirmed as
of the Trade Date:
SACYR VALLEHERMOSO PARTICIPACIONES MOBILIARIAS, S.L.
/s/
By: -----------------------------------
Name:
Title:
-6/6-
[CITIGROUP LOGO]
November 14, 2006
TO:
SACYR VALLEHERMOSO PARTICIPACIONES MOBILIARIAS, S.L.
Attn:
Tel:
Fax:
FROM:
Documentation Unit
Telephone: 00 00 000 000 0000 / 1598
Facsimile: 00 44 207 508 1673 / 1674
Our Ref:
TRANSACTION
The purpose of this letter agreement (this 'Confirmation') is to confirm the
terms and conditions of the Transaction entered into between SACYR VALLEHERMOSO
PARTICIPACIONES MOBILIARIAS, S.L. ('Counterparty') and Citigroup Global Markets
Limited ('Citigroup') on the Trade Date specified below (the 'Transaction').
This Confirmation constitutes a "Confirmation" as referred to in the ISDA Master
Agreement specified below.
Citigroup Global Markets Limited is authorised and regulated by the Financial
Services Authority. Citigroup Global Markets Limited is entering into this
Transaction as principal and not as an agent for any other party.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Swap Definitions") and in the 2002 ISDA Equity Derivatives Definitions (the
"Equity Definitions", and together with the Swap Definitions, the
"Definitions"), in each case as published by the International Swaps and
Derivatives Association, Inc., are incorporated into this Confirmation. In the
event of any inconsistency between the Swap Definitions and the Equity
Definitions, the Equity Definitions will govern. In the event of any
inconsistency between either set of Definitions and this Confirmation, this
Confirmation will govern.
References in the Swap Definitions to the term "Swap Transaction" shall be
deemed to be references to the term "Transaction" for the purposes of this
Confirmation..
This Confirmation evidences a complete and binding agreement between you and us
as to the terms of the Transaction to which this Confirmation relates. In
addition, you and we agree to use all reasonable efforts promptly to negotiate,
execute and deliver an agreement in the form of an ISDA Master Agreement, with
such modifications as you and we will in good faith agree. Upon the execution by
you and us of such an agreement, this Confirmation will supplement, form part
of, and be subject to that agreement. All provisions contained in, or
incorporated by reference in, that agreement upon its execution will govern this
Confirmation except as expressly modified below. Until we execute and deliver
that agreement, this Confirmation, together with all other documents referring
to an ISDA Master Agreement (each a 'Confirmation') confirming transactions
(each a 'Transaction') entered into between us (notwithstanding anything to the
contrary in a Confirmation), shall supplement, form a part of, and be subject
to, a single agreement (the 'Agreement') in the pre-printed form of the 1992
ISDA Master Agreement (Multicurrency - Cross Border) (the 'ISDA Form') as if, on
the Trade Date of the first such Transaction between us, we had executed a
single agreement in such form (but without any Schedule except for the election
of English Law as the governing law, USD as the Termination Currency, Credit
Event Upon Merger, Second Method and Market Quotation as applying and basic
Set-
Citigroup Global Markets Limited
Registered Office: Citigroup Centre, Canada Square, Xxxxxx Xxxxx,
Xxxxxx X00 0XX
Registered in England Registered Number: 1763297
Authorised and regulated by the Financial Services Authority
Off provision contained in Section V A. of the User's Guide to the 1992 ISDA
Master Agreements - 1993 Edition published by ISDA being incorporated by
reference). The Agreement shall contain such other modifications (including
additional elections) to the ISDA Form (each, an 'Agreement Modification') as
may be agreed by the parties from time to time. Any Agreement Modification may
be set forth in any Confirmation (whether or not it would form part of the
Schedule to the ISDA Master Agreement and notwithstanding the termination or
expiry of the Transaction(s) detailed in any such Confirmation). To the extent
of any inconsistency between the provisions of the ISDA Form and this
Confirmation, this Confirmation will prevail for the purposes of this
Transaction. To the extent of any inconsistency between any Agreement
Modification and a prior Agreement Modification, the terms of the Agreement
Modification set forth in the most recent Confirmation shall govern.
Unless specified herein, information about the time of dealing and the amount or
basis of any charges shared with any third party in connection with this
Transaction will be made available on request.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
GENERAL TERMS:
Trade Date: 14 November 2006
Effective Date: 17 November 2006
Termination Date: The Settlement Date
Shares: The ordinary shares of REPSOL YPF S.A (RIC:
XXX.XX)
Exchange: Madrid Stock Exchange
Related Exchange: MEFF
EQUITY AMOUNT(S):
Equity Amount Payer: Citigroup
Equity Amount Receiver: Counterparty
Number of Shares: 7,415,000
Initial Price 28.1264
Equity Notional Amount: EUR 208,557,391.84(being on the Trade Date the
Number of Shares multiplied by Initial Price.)
Valuation Date: January 9, 2007
FLOATING AMOUNT(S):
Floating Amount Payer: Counterparty
Notional Amount: The Equity Notional Amount
Payment Date: The Settlement Date
Floating Rate Option: EUR-EURIBOR-Telerate
Designated Maturity: Three months
-2/6-
Spread: Plus 0.25 per cent
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Business Days: TARGET Settlement Days
Business Day Convention Modified Following
SETTLEMENT TERMS:
Physical Settlement: Applicable
Settlement Currency: EUR
Settlement Date: Three Currency Business Days after the Valuation
Date
Settlement Method
Election: Not Applicable
DIVIDENDS:
Dividend Period: Second Period
Dividend Amount: The Country Percentage of the gross cash dividend
per Share paid by the Issuer during the relevant
Dividend Period to holders of record of a Share
multiplied by the Number of Shares
Country Percentage: 85%
Dividend Payment Date: The Settlement Date
Extraordinary Dividend: The characterization of a dividend or portion
thereof as an Extraordinary Dividend shall be
determined by the Calculation Agent
Re-investment of
Dividends: Not Applicable
ADJUSTMENTS:
Method of Adjustment: Calculation Agent Adjustment
EXTRAORDINARY EVENTS:
Consequences of Merger
Events:
a) Share for Share: Modified Calculation Agent Adjustment
b) Share for Other: Modified Calculation Agent Adjustment
c) Share for Combined: Modified Calculation Agent Adjustment
Determining Party: Citigroup
-3/6-
Tender Offer: Applicable including, for the avoidance of doubt,
the Tender Offers already launched over the
Shares or any modifications thereof.
Consequences of Tender Offer:
a) Share for Share: Modified Calculation Agent Adjustment
b) Share for Other: Modified Calculation Agent Adjustment
c) Share for Combined: Modified Calculation Agent Adjustment
Determining Party: Citigroup
Composition of Combined
Consideration: Not Applicable
Nationalization,
Insolvency
or Delisting: Cancellation and Payment
Determining Party: Citigroup
ADDITIONAL DISRUPTION EVENTS:
Change in Law: Applicable.
Section 12.9(a)(ii) of the Equity Definitions is
replaced in its entirety by the words:
'Change in Law' means that, on or after the Trade
Date (A) due to the adoption of or any change in
any applicable law or regulation (including,
without limitation, any tax law), or (B) 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 or regulation (including any
action taken by a taxing authority), the
Calculation Agent determines (following
receipt of a request from either party for such a
determination) in good faith (X) that it has
become illegal for a party to this Transaction to
hold, acquire or dispose of Hedge Positions
relating to this Transaction, or (Y) a party will
incur a materially increased cost in performing
its obligations under such Transaction (including,
without limitation, due to any increase in tax
liability, decrease in tax benefit or other
adverse effect on its tax position), provided
that this Section 12.9(a)(ii) shall not apply if
the Calculation Agent determines that such party
could have taken reasonable steps to avoid such
illegality.
Insolvency Filing: Applicable
Failure to Deliver: Applicable
Determining Party: Citigroup with respect to all Additional Disruption
Events
OPTIONAL TERMIANTION:
(a) Counterparty may elect to terminate this Transaction (an "Optional
Termination") (provided that no Event of Default with respect to Counterparty,
or event which, with the giving of notice or the lapse of time, or both, would
constitute such an Event of Default, shall have occurred and be continuing, and
provided that no Early Termination Date has been designated), by giving
telephonic notice (the "Termination Notice") to Citigroup of such election not
less than two Scheduled Trading Days prior to
-4/6-
the early Valuation Date (the "Early Valuation Date") designated in the
Termination Notice and such Termination Notice shall be irrevocable. The Early
Valuation Date may be any Scheduled Trading Day prior to 9 January 2007. The
Termination Notice will be confirmed in writing by the terminating party
promptly after making such election, provided that failure to do so shall not in
any way affect or suspend the effectiveness of the Termination Notice.
(b) In the event that a Termination Notice is given pursuant to the immediately
preceding paragraph, (i) the Early Valuation Date shall be the Valuation Date
and the day which is three Currency Business Days following the Early Valuation
Date (the "New Termination Date") shall be both the Settlement Date and the
Termination Date; and (ii) the Calculation Period that commenced on the Floating
Amount Payer Period End Date immediately preceding the New Termination Date (or
that commenced on the Effective Date if the New Termination Date is a day on or
prior to the first Reset Date) shall be the final Calculation Period, the New
Termination Date shall be the Floating Amount Payer Period End Date for such
Calculation Period and the Floating Amount in respect of such Calculation Period
shall be payable on the New Termination Date.
(c) The operation of the paragraphs contained within this section shall not
affect or suspend any obligation of the parties hereto arising under this
Transaction on or prior to the New Termination Date. Upon the payment of all
amounts that are due and unpaid as of the New Termination Date (including
amounts required to be paid pursuant to the paragraphs within this section), the
obligation of each party to make any further payments with respect to this
Transaction will terminate.
OTHER TERMS:
Non-Reliance: Applicable
Agreements and Acknowledgments
Regarding Hedging Activities: Applicable
Additional Acknowledgments: Applicable
Calculation Agent: Citigroup
ACCOUNT DETAILS:
Payments to Citigroup: To be advised prior to payment
Payments to Counterparty: Please advise to expedite payment
If you have any questions regarding this letter agreement, please contact
the Derivatives Operations Department at the telephone numbers indicated or the
facsimile numbers indicated on this Confirmation.
Please 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.
Very truly yours,
CITIGROUP GLOBAL MARKETS LIMITED
By: -----------------------------------
Name:
Title:
-5/6-
Accepted and confirmed as
of the Trade Date:
SACYR VALLEHERMOSO PARTICIPACIONES MOBILIARIAS, S.L.
/s/
By: -----------------------------------
Name:
Title:
-6/6
[CITIGROUP LOGO]
November 15, 2006
TO:
SACYR VALLEHERMOSO PARTICIPACIONES MOBILIARIAS, S.L.
Attn: Xxxx Xxxxxxx Xxxxx
Tel: x0000 000 0000
Fax: x0000 000 0000
FROM:
Documentation Unit
Telephone: 00 00 000 000 0000 / 1598
Facsimile: 00 44 207 508 1673 / 1674
Our Ref:
TRANSACTION
The purpose of this letter agreement (this 'Confirmation') is to confirm the
terms and conditions of the Transaction entered into between SACYR VALLEHERMOSO
PARTICIPACIONES MOBILIARIAS, S.L. ('Counterparty') and Citigroup Global Markets
Limited ('Citigroup') on the Trade Date specified below (the 'Transaction').
This Confirmation constitutes a "Confirmation" as referred to in the ISDA Master
Agreement specified below.
Citigroup Global Markets Limited is authorised and regulated by the Financial
Services Authority. Citigroup Global Markets Limited is entering into this
Transaction as principal and not as an agent for any other party.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Swap Definitions") and in the 2002 ISDA Equity Derivatives Definitions (the
"Equity Definitions", and together with the Swap Definitions, the
"Definitions"), in each case as published by the International Swaps and
Derivatives Association, Inc., are incorporated into this Confirmation. In the
event of any inconsistency between the Swap Definitions and the Equity
Definitions, the Equity Definitions will govern. In the event of any
inconsistency between either set of Definitions and this Confirmation, this
Confirmation will govern.
References in the Swap Definitions to the term "Swap Transaction" shall be
deemed to be references to the term "Transaction" for the purposes of this
Confirmation..
This Confirmation evidences a complete and binding agreement between you and us
as to the terms of the Transaction to which this Confirmation relates. In
addition, you and we agree to use all reasonable efforts promptly to negotiate,
execute and deliver an agreement in the form of an ISDA Master Agreement, with
such modifications as you and we will in good faith agree. Upon the execution by
you and us of such an agreement, this Confirmation will supplement, form part
of, and be subject to that agreement. All provisions contained in, or
incorporated by reference in, that agreement upon its execution will govern this
Confirmation except as expressly modified below. Until we execute and deliver
that agreement, this Confirmation, together with all other documents referring
to an ISDA Master Agreement (each a 'Confirmation') confirming transactions
(each a 'Transaction') entered into between us (notwithstanding anything to the
contrary in a Confirmation), shall supplement, form a part of, and be subject
to, a single agreement (the 'Agreement') in the pre-printed form of the 1992
ISDA Master Agreement (Multicurrency - Cross Border) (the 'ISDA Form') as if, on
the Trade Date of the first such Transaction between us, we had executed a
single agreement in such form (but without any Schedule except for the election
of English Law as the governing law, USD as the Termination Currency, Credit
Event Upon Merger, Second Method and Market Quotation as applying and basic
Set-
Citigroup Global Markets Limited
Registered Office: Citigroup Centre, Canada Square, Xxxxxx Xxxxx,
Xxxxxx X00 0XX
Registered in England Registered Number: 1763297
Authorised and regulated by the Financial Services Authority
Off provision contained in Section V A. of the User's Guide to the 1992 ISDA
Master Agreements - 1993 Edition published by ISDA being incorporated by
reference). The Agreement shall contain such other modifications (including
additional elections) to the ISDA Form (each, an 'Agreement Modification') as
may be agreed by the parties from time to time. Any Agreement Modification may
be set forth in any Confirmation (whether or not it would form part of the
Schedule to the ISDA Master Agreement and notwithstanding the termination or
expiry of the Transaction(s) detailed in any such Confirmation). To the extent
of any inconsistency between the provisions of the ISDA Form and this
Confirmation, this Confirmation will prevail for the purposes of this
Transaction. To the extent of any inconsistency between any Agreement
Modification and a prior Agreement Modification, the terms of the Agreement
Modification set forth in the most recent Confirmation shall govern.
Unless specified herein, information about the time of dealing and the amount or
basis of any charges shared with any third party in connection with this
Transaction will be made available on request.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
GENERAL TERMS:
Trade Date: 15 November 2006
Effective Date: 20 November 2006
Termination Date: The Settlement Date
Shares: The ordinary shares of REPSOL YPF S.A (RIC:
XXX.XX)
Exchange: Madrid Stock Exchange
Related Exchange: MEFF
EQUITY AMOUNT(S):
Equity Amount Payer: Citigroup
Equity Amount Receiver: Counterparty
Number of Shares: 252,269
Initial Price 27.7960
Equity Notional Amount: EUR 7,012,061.10
Valuation Date: January 9, 2007
FLOATING AMOUNT(S):
Floating Amount Payer: Counterparty
Notional Amount: The Equity Notional Amount
Payment Date: The Settlement Date
Floating Rate Option: EUR-EURIBOR-Telerate
Designated Maturity: Three months
Spread: Plus 0.25 per cent
-2/6-
Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Business Days: TARGET Settlement Days
Business Day Convention Modified Following
SETTLEMENT TERMS:
Physical Settlement: Applicable
Settlement Currency: EUR
Settlement Date: Three Currency Business Days after the Valuation
Date
Settlement Method
Election: Not Applicable
DIVIDENDS:
Dividend Period: Second Period
Dividend Amount: The Country Percentage of the gross cash dividend
per Share paid by the Issuer during the relevant
Dividend Period to holders of record of a Share
multiplied by the Number of Shares
Country Percentage: 85%
Dividend Payment Date: The Settlement Date
Extraordinary Dividend: The characterization of a dividend or portion
thereof as an Extraordinary Dividend shall be
determined by the Calculation Agent
Re-investment of
Dividends: Not Applicable
ADJUSTMENTS:
Method of Adjustment: Calculation Agent Adjustment
EXTRAORDINARY EVENTS:
Consequences of Merger
Events:
a) Share for Share: Modified Calculation Agent Adjustment
b) Share for Other: Modified Calculation Agent Adjustment
c) Share for Combined: Modified Calculation Agent Adjustment
Determining Party: Citigroup
-3/6-
Tender Offer: Applicable including, for the avoidance of doubt,
the Tender Offers already launched over the
Shares or any modifications thereof.
Consequences of Tender Offer:
a) Share for Share: Modified Calculation Agent Adjustment
b) Share for Other: Modified Calculation Agent Adjustment
c) Share for Combined: Modified Calculation Agent Adjustment
Determining Party: Citigroup
Composition of Combined
Consideration: Not Applicable
Nationalization,
Insolvency
or Delisting: Cancellation and Payment
Determining Party: Citigroup
ADDITIONAL DISRUPTION EVENTS:
Change in Law: Applicable.
Section 12.9(a)(ii) of the Equity Definitions is
replaced in its entirety by the words:
'Change in Law' means that, on or after the Trade
Date (A) due to the adoption of or any change in
any applicable law or regulation (including,
without limitation, any tax law), or (B) 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 or regulation (including any
action taken by a taxing authority), the
Calculation Agent determines (following
receipt of a request from either party for such a
determination) in good faith (X) that it has
become illegal for a party to this Transaction to
hold, acquire or dispose of Hedge Positions
relating to this Transaction, or (Y) a party will
incur a materially increased cost in performing
its obligations under such Transaction (including,
without limitation, due to any increase in tax
liability, decrease in tax benefit or other
adverse effect on its tax position), provided
that this Section 12.9(a)(ii) shall not apply if
the Calculation Agent determines that such party
could have taken reasonable steps to avoid such
illegality.
Insolvency Filing: Applicable
Failure to Deliver: Applicable
Determining Party: Citigroup with respect to all Additional Disruption
Events
OPTIONAL TERMIANTION:
(a) Counterparty may elect to terminate this Transaction (an "Optional
Termination") (provided that no Event of Default with respect to Counterparty,
or event which, with the giving of notice or the lapse of time, or both, would
constitute such an Event of Default, shall have occurred and be continuing, and
provided that no Early Termination Date has been designated), by giving
telephonic notice (the "Termination Notice") to Citigroup of such election not
less than two Scheduled Trading Days prior to
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the early Valuation Date (the "Early Valuation Date") designated in the
Termination Notice and such Termination Notice shall be irrevocable. The Early
Valuation Date may be any Scheduled Trading Day prior to 9 January 2007. The
Termination Notice will be confirmed in writing by the terminating party
promptly after making such election, provided that failure to do so shall not in
any way affect or suspend the effectiveness of the Termination Notice.
(b) In the event that a Termination Notice is given pursuant to the immediately
preceding paragraph, (i) the Early Valuation Date shall be the Valuation Date
and the day which is three Currency Business Days following the Early Valuation
Date (the "New Termination Date") shall be both the Settlement Date and the
Termination Date; and (ii) the Calculation Period that commenced on the Floating
Amount Payer Period End Date immediately preceding the New Termination Date (or
that commenced on the Effective Date if the New Termination Date is a day on or
prior to the first Reset Date) shall be the final Calculation Period, the New
Termination Date shall be the Floating Amount Payer Period End Date for such
Calculation Period and the Floating Amount in respect of such Calculation Period
shall be payable on the New Termination Date.
(c) The operation of the paragraphs contained within this section shall not
affect or suspend any obligation of the parties hereto arising under this
Transaction on or prior to the New Termination Date. Upon the payment of all
amounts that are due and unpaid as of the New Termination Date (including
amounts required to be paid pursuant to the paragraphs within this section), the
obligation of each party to make any further payments with respect to this
Transaction will terminate.
OTHER TERMS:
Non-Reliance: Applicable
Agreements and Acknowledgments
Regarding Hedging Activities: Applicable
Additional Acknowledgments: Applicable
Calculation Agent: Citigroup
ACCOUNT DETAILS:
Payments to Citigroup: To be advised prior to payment
Payments to Counterparty: Please advise to expedite payment
If you have any questions regarding this letter agreement, please contact
the Derivatives Operations Department at the telephone numbers indicated or the
facsimile numbers indicated on this Confirmation.
Please 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.
Very truly yours,
CITIGROUP GLOBAL MARKETS LIMITED
By: -----------------------------------
Name:
Title:
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Accepted and confirmed as
of the Trade Date:
SACYR VALLEHERMOSO PARTICIPACIONES MOBILIARIAS, S.L.
/s/
By: -----------------------------------
Name:
Title:
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