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Title:

Isda Master Agreement

Entities:

McGraw-Hill Companies Inc.; Union Bank of California, NA; International Swaps & Derivatives Association, Inc.; Society of Petroleum Engineers; Bank of America, NA; Goldman Sachs Group Inc.

Date:

2005

Size:

138KB total

Price:

$51

ID:

#870282

Start of Preview

(a)

Specified Entity

(i)

means, in relation to Aron, Goldman, Sachs & Co., Goldman Sachs Capital Markets, L.P., Goldman Sachs International, Goldman Sachs (Japan) Ltd., Goldman Sachs International Bank, Goldman Sachs (Asia) Finance, Goldman Sachs Financial Markets, L.P., Goldman Sachs Paris Inc. et Cie, Goldman Sachs Mitsui Marine Derivative Products, L.P., Goldman, Sachs & Co. oHG, J. Aron & Company (Singapore) Pte., and J. Aron & Company (U.K.) for the purpose of Section 5(a)(v), and shall not apply for purposes of Sections 5(a)(vi), 5(a)(vii) and 5(b)(iv); and

(ii)

means, in relation to Counterparty, all Affiliates of Counterparty for the purpose of Sections 5(a)(v), 5(a)(vi), 5(a)(vii) and 5(b)(iv).

(b)

Specified Transaction. The term Specified Transaction in Section 14 of the Agreement is amended in its entirety as follows:

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(c)

The Cross Default provisions of Section 5(a)(vi) will apply to Aron and will apply to Counterparty, provided that (i) the phrase or becoming capable at such time of being declared shall be deleted from clause (1) of such Section 5(a)(vi); and (ii) the following language shall be added to the end thereof: Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (i) the default was caused solely by error or omission of an administrative or operational nature; (ii) funds were available to enable the party to make the payment when due; and (iii) the payment is made within two Local Business Days of such partys receipt of written notice of its failure to pay.

(d)

The Credit Event Upon Merger provisions of Section 5(b)(iv) will apply to Aron and will apply to Counterparty.

(e)

The Automatic Early Termination provision of Section 6(a) will not apply to Aron and will not apply to Counterparty.

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(f)

Payments on Early Termination. For the purpose of Section 6(e):

(i)

Loss will apply.

(ii)

The Second Method will apply.

(g)

Termination Currency means United States Dollars.

(h)

The parties agree to amend the following subsections of Section 5(a) as follows:

(i)

clause (i): in the third line of this clause, delete the word third and insert the word first;

(ii)

clause (vii)(4): delete, following the word liquidation in line 9, the clause beginning with and, in the case of and ending with the word thereof in line 13; and in Clause (vii)(7): delete, following the word assets in line 19, the clause beginning with and such secured party and ending with the word thereafter in line 21, to eliminate the 30-day grace period.

(i)

Additional Termination Event will not apply.

(j)

Early Termination. Notwithstanding anything to the contrary in Section 6(a) or Section 6(b), the parties agree that, except with respect to Transactions (if any) that are subject to Automatic Early Termination under Section 6(a), the Non-defaulting Party or the party that is not the Affected Party (in a case where a Termination Event under Section 5(b)(iv) has occurred) is not required to terminate the Transactions on a single day, but rather may terminate the Transactions over a commercially reasonable period of time (not to exceed ten days) (the Early Termination Period). The last day of the Early Termination Period shall be the Early Termination Date for purposes of Section 6; provided, however, that interest shall accrue on the Transactions terminated during the Early Termination Period prior to the Early Termination Date at the Non-default Rate.

(k)

Additional Events of Default. Each Event of Default set forth in Part 7 below or in the Credit Support Annex will constitute an Event of Default with respect to Counterparty for the purposes of Section 5(a) of the Agreement.

(a)

Payer Tax Representations. For the purposes of Section 3(e), Aron and Counterparty make the following representation:

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(b)

Payee Tax Representations. For the purposes of Section 3(f), Aron and Counterparty make the following representations:

(a)

For the purpose of Section 4(a), Tax forms, documents, or certificates to be delivered are:

Party required to deliver document

Forms/Documents/Certificates

Date by which

to be delivered

Aron and Counterparty

United States Internal Revenue Service Form W-9, or any successor form.

(i) On a date which is before the first Scheduled Payment Date under this Agreement, (ii) promptly upon reasonable demand by either party, and (iii) promptly upon learning that any such form previously provided by either party has become obsolete, incorrect, or ineffective.

(b)

Other documents to be delivered are:

Party required to deliver

Form/Document/Certificate

Date by which to be delivered

Covered by Section 3(d) Representation

Aron and Counterparty

Evidence of authority of signatories

Upon or promptly following execution of this Agreement

Yes

Aron and Counterparty

A duly executed and delivered copy of each Credit Support Document specified in Part 4(f) herein

Upon execution of this Agreement and from time to time thereafter as required under Part 7 below

No

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Counterparty

A copy of the resolution of each Credit Support Provider's board of directors (or other managers of such entity) approving the entering into of the applicable Credit Support Document and a copy of each Credit Support Provider's constituent documents, each certified by an appropriately authorized officer of the Credit Support Provider to the effect that such documents are up to date and in full force and effect and that Aron or Counterparty, as applicable may continue to rely thereon.

Upon execution of this Agreement and with respect to Counterparty only, from time to time thereafter as required under Part 7 below

Yes

Aron and Counterparty

Most recent annual audited and quarterly financial statements of the party or, with respect to Aron, its Credit Support Provider

Promptly following reasonable demand by the other party

Yes

Counterparty

Certified resolutions of its board of directors or other governing body

Upon execution of this Agreement

Yes

Counterparty

Each other document required under Part 7 below

From time to time as required under Part 7 below

Yes, unless otherwise expressly stated in Part 7 below

(a)

Addresses for Notices. For the purpose of Section 12(a):

(i)

Address for notices or communications to Aron:

Address:

J. Aron & Company

Attention:

Energy Operations

Telephone:

(212) 357-0326

Facsimile:

(212) 493-9849

(ii)

Address for notices or communications to Counterparty:

Address:

Chesapeake Energy Corporation

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Attention:

Pat Pope

Telephone:

(405) 879-9288

Facsimile:

(405) 879-9576

(b)

Process Agent. For the purpose of Section 13(c):

Corporation Service Company

80 State Street

Albany, New York 12207-2543

(c)

Offices. The provisions of Section 10(a) will apply to this Agreement.

(d)

Multibranch Party. For the purpose of Section 10(c):

(e)

Calculation Agent. The Calculation Agent is Aron.

(f)

Credit Support Document. Any guaranty or other form of credit support provided on behalf of Counterparty (including each of the documents stated to be a Credit Support Document in Part 7 below) at any time shall constitute a Credit Support Document with respect to the obligations of Counterparty. Details of any other Credit Support Document, each of which is incorporated by reference in, and made part of, this Agreement and each Confirmation (unless provided otherwise in a Confirmation) as if set forth in full in this Agreement or such Confirmation:

(i)

Guaranty by The Goldman Sachs Group, Inc. (Goldman Group) in favor of Counterparty as beneficiary thereof shall constitute a Credit Support Document with respect to the obligations of Aron.

ii)

Credit Support Annex in the form attached hereto as Annex B dated the date hereof between Aron and Agent shall constitute a Credit Support Document with respect to the obligations of Counterparty and Aron.

(g)

Credit Support Provider.

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(h)

Governing Law.

Section 13(a) is hereby replaced with the following:

(a)

Governing Law. This Agreement and each Transaction entered into hereunder will be governed by, and construed and enforced in accordance with, the law of the State of New York without reference to its choice of law doctrine.

(i)

Jurisdiction. Section 13(b) is hereby amended by:

(i)

deleting in the second line of subparagraph (i) thereof the word non- and

(ii)

deleting the final paragraph thereof.

(j)

Netting of Payments. Subparagraph (ii) of Section 2(c) will not apply to Transactions. Notwithstanding anything to the contrary in Section 2(c), unless otherwise expressly agreed by the parties, the netting provided for in Section 2(c) will not apply separately to any pairings of branches or Offices through which the parties make and receive payments or deliveries.

(a)

Accuracy of Specified Information. Section 3(d) is hereby amended by adding in the third line thereof after the word respect and before the period, the phrase or, in the case of audited or unaudited financial statements, a fair presentation of the financial condition of the relevant person.

(b)

Scope of Agreement. Subject to Part 7(c), any transaction outstanding between the parties at the date this Agreement comes into force or entered into by the parties at or after the date this Agreement comes into force that is a transaction between the parties of the type set forth in the definition of Specified Transaction herein unless otherwise specified in the relevant confirmation relating to such Specified Transaction or unless otherwise agreed by the parties, will constitute a Transaction for the purposes of this Agreement.

(c)

Additional Representations. The parties agree to amend Section 3 by adding new Sections 3(g), (h), (i), (j) and (k) as follows:

(g)

Eligible Contract Participant. It is an eligible contract participant as defined in the U.S. Commodity Exchange Act.

(h)

Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into that Transaction and as to whether that Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into that Transaction; it being understood that information and explanations related to the terms and conditions of a Transaction shall not be considered investment advice or a recommendation to enter into that Transaction. No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of that Transaction.

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(i)

Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of that Transaction. It is also capable of assuming, and assumes, the risks of that Transaction.

(j)

Status of Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of that Transaction.

(k)

Certain Certifications. Upon delivery of each Volume Report hereunder, Counterparty shall be deemed to have certified (with such certification under no circumstances conflicting with any similar certificate provided by Counterparty or any of its Affiliates to other parties under any credit agreement or other financing arrangement) that (x) the information set forth therein is true and correct on and as of the date on which such Volume Report is delivered and (y) the Budget Basis Projected Production reported therein is based on reasonable estimates, information and assumptions and that such Financial Officer has no reason to believe that such Budget Basis Projected Production is incorrect or misleading in any material respect.

(l)

Each Counterparty represents and warrants and shall be deemed to represent and warrant to Aron at all times until the termination of this Agreement that:

(i)

Agent, on behalf of itself and each other Counterparty, has the power to execute this Agreement and any other documentation relating to this Agreement and to deliver this Agreement and any other documentation relating to this Agreement that it is required by this Agreement to deliver; and

(ii)

Agent, on behalf of itself and each other Counterparty, is authorized to enter into and perform the Covered Transactions contemplated by this Agreement and to bind Counterparty in connection with all obligations in connection therewith and under this Agreement, including without limitation any Credit Support Documents; and

(iii)

Such execution, delivery and performance by Agent on behalf of itself and each other Counterparty does not conflict with any law or regulation applicable to Counterparty, any provision of the constitutional documents of Counterparty, any order or judgment of any court or other agency of government applicable to Counterparty or any of the assets of Counterparty or any contractual restriction binding on or affecting Counterparty or any assets of Counterparty; and

(iv)

Aron is entitled to rely conclusively upon any request, instruction, certificate, representation or other document furnished to Aron, or action taken, by any employee or agent of the Agent in connection with this Agreement and the Covered Transactions hereunder, as though the same had been given or made by Counterparty, until such time as Counterparty delivers written notice to Aron affirmatively revoking, terminating or modifying such authorization.

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