Hedging Contracts No Restricted Person will be a party to or in any manner be liable on any Hedging Contract except:
(a) Hedging Contracts (excluding Floor Contracts covered by the following subsection (b)) entered into with the purpose and effect of fixing prices on oil, natural gas, or natural gas liquids expected to be produced by Restricted Persons, provided that at all times: (i) no such Hedging Contract fixes a price for a period later than 60 months after such contract is entered into; (ii) the aggregate monthly production covered by all such contracts (determined, in the case of contracts that are not settled on a monthly basis, by a monthly proration acceptable to Administrative Agent) for any single month does not in the aggregate exceed 85% of Restricted Persons’ aggregate Projected Oil and Gas Production (calculated separately for oil, natural gas, and natural gas liquids) anticipated (at the time such Hedging Contract is entered into) to be sold in the ordinary course of the Restricted Persons’ businesses for such month, determined separately with respect to oil and gas, (iii) except for the Collateral under the Security Documents with respect to Lender Hedging Obligations, no such contract requires any Restricted Person to put up money, assets, or other security against the event of its nonperformance prior to actual default by such Restricted Person in performing its obligations thereunder, and (iv) each such contract is with an Approved Counterparty;
(b) Floor Contracts, provided that (i) no such contract has a term of more than 60 months after such contract is entered into, (ii) the aggregate monthly production covered by all such contracts for any single month does not in the aggregate exceed 100% of Restricted Persons’ aggregate Projected Oil and Gas Production anticipated (at the time such Hedging Contract is entered into) to be sold in the ordinary course of the Restricted Persons’ businesses for such month, and (iii) each such contract is with an Approved Counterparty; and
(c) Hedging Contracts entered into by a Restricted Person with the purpose and effect of fixing interest rates on a principal amount of indebtedness of such Restricted Person that is accruing interest at a variable rate, provided that (i) at the time such Hedging Contract is entered into, the aggregate notional amount of such contracts does not exceed 75% of the anticipated outstanding principal balance of the indebtedness to be hedged by such contracts or an average of such principal balances calculated using a generally accepted method of matching interest swap contracts to declining principal balances, (ii) the floating rate index of each such contract generally matches the index used to determine the floating rates of interest on the corresponding indebtedness to be hedged by such contract and (iii) each such contract is with an Approved Counterparty.
Banking Services and Swap Agreements Each Lender or Affiliate thereof providing Banking Services for, or having Swap Agreements with, any Loan Party or any Subsidiary or Affiliate of a Loan Party shall deliver to the Administrative Agent, promptly after entering into such Banking Services or Swap Agreements, written notice setting forth the aggregate amount of all Banking Services Obligations and Swap Agreement Obligations of such Loan Party or Subsidiary or Affiliate thereof to such Lender or Affiliate (whether matured or unmatured, absolute or contingent). In furtherance of that requirement, each such Lender or Affiliate thereof shall furnish the Administrative Agent, from time to time after a significant change therein or upon a request therefor, a summary of the amounts due or to become due in respect of such Banking Services Obligations and Swap Agreement Obligations. The most recent information provided to the Administrative Agent shall be used in determining which tier of the waterfall, contained in Section 2.18(b), such Banking Services Obligations and/or Swap Agreement Obligations will be placed.
SUB-CONTRACTS (a) The Administrator may sub-contract or delegate the performance of all or any of its powers and obligations under this Agreement, provided that (but subject to Clause 3.2(b) herein):
(i) the prior written consent of the Mortgages Trustee and Funding to the proposed arrangement (including, if Funding considers it necessary after consulting with the Security Trustee, approving any contract which sets out the terms on which such arrangements are to be made) has been obtained, the Security Trustee has been consulted and notification has been given to each of the Rating Agencies;
(ii) where the arrangements involve the custody or control of any Mortgage Loan Files and/or Title Deeds relating to the Mortgage Portfolio for the purpose of performing any delegated Services, the sub-contractor or delegate has executed an acknowledgement in writing acceptable to Funding and the Security Trustee to the effect that any such Mortgage Loan Files and/or Title Deeds are and will be held to the order of the Mortgages Trustee (as trustee for the Beneficiaries);
(iii) where the arrangements involve or may involve the receipt by the sub-contractor or delegate of monies belonging to the Beneficiaries which, in accordance with this Agreement, are to be paid into the relevant Collection Account, the sub-contractor or delegate has executed a declaration in writing acceptable to the Beneficiaries that any such monies held by it or to its order are held on trust for the Beneficiaries and will be paid forthwith into the relevant Collection Account in accordance with the terms of the Mortgages Trust Deed;
(iv) any such sub-contractor or delegate has executed a written waiver of any Security Interest arising in connection with such delegated Services (to the extent that such Security Interest relates to the Mortgage Portfolio or any amount referred to in (iii) above); and
(v) neither the Mortgages Trustee, the Security Trustee nor the Beneficiaries shall have any liability for any costs, charges or expenses payable to or incurred by such sub-contractor or delegate or arising from the entering into, the continuance or the termination of any such arrangement.
(b) The provisos to Clause 3.2(a) (i), (ii) and (iii) herein shall not apply:
(i) to the engagement by the Administrator of:
(1) any receiver, solicitor, insurance broker, valuer, surveyor, accountant, estate agent, insolvency practitioner, auctioneer, bailiff, debt counsellor, tracing agent, property management agent, licensed or qualified conveyancer or other professional adviser acting as such; or
(2) any locksmith, builder or other contractor acting as such in relation to a Mortgaged Property, in any such case being a person or persons whom the Administrator would be willing to appoint in respect of its own mortgages in connection with the performance by the Administrator of any of its obligations or functions or in connection with the exercise of its powers under this Agreement; or
(ii) to any delegation to any wholly-owned subsidiary of the Seller from time to time.
(c) The Mortgages Trustee and/or Funding and the Security Trustee may require the Administrator to assign to the Mortgages Trustee any rights which the Administrator may have against any sub-contractor or delegate arising from the performance of services by such person in association with any matter contemplated by this Agreement and the Administrator acknowledges that such rights assigned to the Mortgages Trustee will be exercised by the Mortgages Trustee as trustee for the Beneficiaries subject to the terms of the Mortgages Trust Deed.
(d) Notwithstanding any sub-contracting or delegation of the performance of the Administrator's obligations under this Agreement:
(i) the Administrator shall not thereby be released or discharged from any liability hereunder;
(ii) the Administrator shall remain responsible for the performance of the obligations of the Administrator under this Agreement;
(iii) the performance or non-performance or the manner of performance of any sub-contractor or delegate of any of the Services shall not affect the Administrator's obligations under this Agreement;
(iv) any breach in the performance of the Services by any sub-contractor or delegate shall, subject to the Administrator being entitled for a period of twenty (20) Business Days from receipt of notice of the breach to remedy such breach by any sub-contractor or delegate, be treated as a breach of this Agreement by the Administrator; and
(v) the Security Trustee shall have no liability for any act or omission of the sub-contractor or delegate and shall have no responsibility for monitoring or investigating the suitability of any such sub-contractor or delegate.
Deposit Account Transactions (a) The Bank or its Subcustodians will make payments from the Deposit Account upon receipt of Instructions which include all information required by the Bank.
(b) In the event that any payment to be made under this Section 5 exceeds the funds available in the Deposit Account, the Bank, in its discretion, may advance the Customer such excess amount which shall be deemed a loan payable on demand, bearing interest at the rate customarily charged by the Bank on similar loans.
(c) If the Bank credits the Deposit Account on a payable date, or at any time prior to actual collection and reconciliation to the Deposit Account, with interest, dividends, redemptions or any other amount due, the Customer will promptly return any such amount upon oral or written notification: (i) that such amount has not been received in the ordinary course of business or (ii) that such amount was incorrectly credited. If the Customer does not promptly return any amount upon such notification, the Bank shall be entitled, upon oral or written notification to the Customer, to reverse such credit by debiting the Deposit Account for the amount previously credited. The Bank or its Subcustodian shall have no duty or obligation to institute legal proceedings, file a claim or a proof of claim in any insolvency proceeding or take any other action with respect to the collection of such amount, but may act for the Customer upon Instructions after consultation with the Customer.
Hedge Transactions The Loan Parties will not, and will not permit any of their Subsidiaries to, enter into any Hedge Transaction, other than Hedge Transactions entered into in the ordinary course of business to hedge or mitigate risks to which the Loan Parties are exposed in the conduct of their business or the management of their liabilities. Solely for the avoidance of doubt, the Borrower acknowledges that a Hedge Transaction entered into for speculative purposes or of a speculative nature (which shall be deemed to include any Hedge Transaction under which any Loan Party is or may become obliged to make any payment (i) in connection with the purchase by any third party of any common stock or any Debt or (ii) as a result of changes in the market value of any common stock or any Debt) is not a Hedge Transaction entered into in the ordinary course of business to hedge or mitigate risks.
