EXHIBIT 10.33
MASTER AGREEMENT DATED JANUARY 11, 1999 BY AND BETWEEN
TURBOCHE TECHNOLOGIES, INC. AND AIG FINANCIAL SERVICES CORP.
EXHIBIT 10.33
ISDA(R)
International Swap Dealers Association. Inc.
MASTER AGREEMENT
dated as of January 11, 1999
TURBOCHEF TECHNOLOGIES,INC and BANQUE AIG, LONDON BRANCH
have entered an/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 its 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 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 and 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 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;
(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.
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(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 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 authorise such execution, delivery
and performance;
(iii) NO VIOLATION OR CONFLICT. Such execution, delivery and performance do
not violate or conflict with any law applicable to it any provision
of its constitutional documents, any order or judgment of any court
or other agency of government applicable to it or any of its assets
or any contractual restriction binding on or affecting it or any of
its assets;
(iv) CONSENTS. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party have been obtained and
are in full force and effect and all conditions of any such consents
have been complied with; and
(v) OBLIGATIONS BINDING. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal,
valid and binding obligations, enforceable in accordance with their
respective terms subject to applicable bankruptcy, reorganisation,
insolvency, moratorium or similar laws affecting creditors' right
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)).
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(b) ABSENCE OF CERTAIN EVENTS. No Event of Default or Potential Event of
Default or to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement; or any
Credit Support Document to which it is a party.
(c) ABSENCE OF LITIGATION. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that 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 reasonable 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
arc required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) COMPLY WITH LAWS. It will comply in all material respects with all
applicable laws and orders to which it may he 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.
(c) PAYMENT OF STAMP TAX. Subject to Section II, it will pay and 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.
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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)(iii) 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;
(2) the expiration or termination of such Credit Support Document 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;
(v) 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 (however
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described) in respect of 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
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:--
(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 becomes
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 (I) to (71 (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
(vii) 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 Transaction 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
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
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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)(l), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding 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)(i)
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).
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)(I)
or a Tax Event occurs and there are two Affected Parties, each
party will use all reasonable efforts to reach agreement within 30
days alter notice thereof is given under Section 6(b)(ii) on action to
avoid that Termination Event.
(iv) Right to Terminate. If.--
(1) a transfer under Section 6(h)(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
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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 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 judgement) 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.
(C) 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 Methods 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 the
9
Non-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, 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(e)(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).
(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.
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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 of 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 rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a 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
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 owed 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.
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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
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
12
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:--
(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 recipient 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 not 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 States, 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 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 any
13
reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to service
of process given in the manner provided for notices in Section 12. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) WAIVER OF IMMUNITIES. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. DEFINITIONS
As used in this Agreement:--
"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;
(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.
14
"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.
"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 II. 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
15
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 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:--
(a) the Termination Currency Equivalent of the Market Quotations (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.
16
"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.
"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
17
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.
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.
TURBOCHEF TECHNOLOGIES, INC. BANQUE AIG. LONDON BRANCH
----------------------------- -----------------------------
(NAME OF PARTY) (NAME OF PARTY)
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxxxx Xxxxxx
................................. ................................
Name: XXXXXX X. XXXXXXX Name: XXXXXXXXX XXXXXXX
Title: EVP-CFO Title: MANAGING DIRECTOR
Date: JAN 11, 1999 Date:
18
(Multicurrency--Cross Border)
ISDA
International Swap and Derivatives Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of January 11, 1999
between BANQUE AIG, LONDON BRANCH and TURBOCHEF TECHNOLOGIES, INC
("Party A") ("Party B")
Part 1. TERMINATION PROVISIONS.
(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.
and in relation to Party B 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.
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of
this Agreement.
(c) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply to Party A and
Party B.
"SPECIFIED INDEBTEDNESS" will have the meaning specified in Section 14 of
this Agreement.
"THRESHOLD AMOUNT" means, with respect to Party A, USD 25,000,000 or its
equivalent in any currency, and, with respect to Party B, USD 1,000,000
or its equivalent in any currency.
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) 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.
NY!2524: 36580.3
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:--
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means United States Dollars.
(h) ADDITIONAL TERMINATION EVENT will apply. The following shall constitute
an Additional Termination Event, with Party B as the Affected Party:--
There shall occur any event that would permit Party A to declare an
acceleration under Article VI of the Variable Stock Agreement, to be
dated on or about January 14, 1999, between Party A and Party B.
For purposes of this Agreement:
"TRANSACTION" means any Transaction entered into pursuant to a
Confirmation delivered pursuant to, and forming a part of, this
Agreement, as amended or modified from time to time.
"ISSUER" means the issuer of the Shares with respect to a Transaction.
Each reference in the definition of "Merger Event" and
"Nationalization or Insolvency" in the Equity Derivatives Definitions
to "all of such Shares outstanding, "all such Shares" or "all the
Shares" shall be deemed to be a reference to "all or a substantial
portion of such Shares outstanding", "all or a substantial portion of
such Shares" or "all or a substantial portion of the Shares" as the
case may be. The reference in the definition of "Merger Date" in the
Equity Derivatives Definition to "all holders of the relevant Shares"
shall be deemed a reference to "holders of all or a substantial
portion of the relevant Shares." Also, as used herein the term "Merger
Event" shall be deemed to include, in addition to the transactions
described in the definition thereof in the Equity Derivatives
Definitions, any mandatory share exchange or other similar transaction
involving the Issuer and another entity.
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 of the other
party contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided
2
by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of this
Agreement and (iii) the satisfaction of the agreement of the other party
contained in Section 4(d) of this Agreement, provided that it shall not be a
breach of this representation where reliance is placed on clause (ii) and
the other party does not deliver a form or document under Section 4(a)(iii)
by reason of material prejudice to its legal or commercial position.
(b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of this Agreement,
Party A makes no representations and Party B makes no representations.
Part 3. AGREEMENT TO DELIVER DOCUMENTS.
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:--
(a) Tax forms, documents or certificates to be delivered are:--
Each party agrees to complete, accurately and in a manner reasonably
satisfactory to the other party (or any Credit Support Provider thereof),
execute, arrange for any required certification of, and deliver to the other
party (or any Credit Support Provider thereof) or such government or taxing
authority as the other party (or any Credit Support Provider thereof) directs,
any form or document that may be required or reasonably requested in order to
assist or enable the other party (or any Credit Support Provider thereof) to
secure the benefit of any available exemption or relief from any deduction or
withholding for or on account of any Tax or, if there is no available exemption
or relief as aforesaid, to secure the benefit of any reduced rate of deduction
or withholding in respect of any payment under this Agreement (or any Credit
Support Document) promptly upon the earlier of: (i) reasonable demand by the
other party (or any Credit Support Provider thereof); and (ii) learning that the
form or document is required.
(b) Other documents to be delivered are:--
PARTY REQUIRED FORM/DOCUMENT/ DATE BY WHICH TO BE COVERED BY
TO DELIVER CERTIFICATE DELIVERED SECTION 3(D)
DOCUMENT REPRESENTATION
Party A Guarantee of At execution No
American
International Group,
Inc. (the "Guarantor")
in substantially the
form attached hereto as
Exhibit A
3
PARTY REQUIRED FORM/DOCUMENT/ DATE BY WHICH TO BE COVERED BY
TO DELIVER CERTIFICATE DELIVERED SECTION 3(D)
DOCUMENT REPRESENTATION
Evidence of the At execution Yes
authority of a
specified person or
persons to execute
this Agreement,
including any and all
Confirmations, on
behalf of Party A
Annual Financial On demand of Party Yes
Statements of the B, in respect of the
Guarantor latest publicly
available financial
statements prior to
the date of this
Agreement and in respect
of financial statements
that hereafter become
publicly available
Party B Annual Financial Within 90 days of the Yes
Statements last day of each calendar
year, with respect to
financial statements
relating to such
calendar year
Opinion of counsel At execution No
satisfactory to
Party A
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:--
Address: 0 Xxxxxxxxx, 0xx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Managing Director
Telex: 94016840 Answerback: AIGF
4
Facsimile No.: (011) (00000) 000-0000
Electronic Messaging System Details: Not Applicable.
With a copy to:
AIG Financial Products Corp.
000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Xxxxxx Xxxxxx of America
Attention: Chief Financial Officer (with a copy to the General
Counsel)
Telex No.: 910240 9432 Answerback: AIGFPC
Facsimile No.: (000) 000-0000
Electronic Messaging System Details: Not Applicable.
Address for notices or communications to Party B:--
Address: 00000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telex No.: Not Applicable Answerback: Not Applicable
Facsimile No.: (000) 000-0000 Telephone No.: (000) 000-0000
Electronic Messaging System Details: Not Applicable
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:--
Party A appoints as its Process Agent: Not Applicable.
Party B appoints as its Process Agent: Not Applicable.
(c) OFFICES. The provisions of Section 10(a) will not apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:--
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
5
(e) CALCULATION AGENT. The Calculation Agent is Party A.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
In the case of Party A, the Guarantee of Party A's obligations hereunder by
the Guarantor dated as of the date hereof.
In the case of Party B. the Pledge Agreement, dated as of the date hereof,
between Party A and Party B.
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means in relation to Party
A: American International Group, Inc.
Credit Support Provider means in relation to Party B: Not Applicable.
(h) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH NEW YORK LAW.
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this Agreement
will not apply to any Transactions under this Agreement.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this Agreement
Part 5. OTHER PROVISIONS.
(a) DEFINITIONS. This Agreement, each Confirmation and each Transaction are
subject to the 1991 ISDA Definitions and the 1996 ISDA Equity Derivatives
Definitions (the "Equity Derivatives Definitions") (each as published by
the International Swaps and Derivatives Association, Inc. (formerly the
International Swap Dealers Association, Inc.)) (collectively, the
"Definitions"), and will be governed in all respects by the provisions set
forth in the Definitions, without regard to any amendments to the
Definitions subsequent to the date thereof. The provisions of the
Definitions are incorporated by reference in, and shall be deemed to be
part of, this Agreement and each Confirmation, as if set forth in full in
this Agreement or in that Confirmation. In the event of any inconsistency
between the provisions of this Agreement and the Definitions, this
Agreement will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Agreement. such Confirmation will
prevail for the purpose of the relevant Transaction.
(b) GROSS UP. The third line of Section 2(d)(i) of this Agreement is hereby
amended by the insertion before the phrase "of any relevant governmental
revenue authority" of the words ", application or official interpretation"
and the insertion of the words "(either generally or with respect to a
party to this Agreement)" after such phrase.
(c) ANNUAL FINANCIAL STATEMENTS. "Annual Financial Statements" means, in
respect of each of American International Group, Inc. and Party B, a copy
of the annual report of such party containing audited consolidated
financial statements for such party's fiscal year certified by independent
certified
6
public accountants and prepared in accordance with accounting principles
that are generally accepted in the United States of America.
(d) Set-off. Any amount (the "Early Termination Amount") payable to Party B by
Party A under Section 6(e), in circumstances where Party B is the
Defaulting Party or the only Affected Party in the case where a Termination
Event has occurred, will, at the option of Party A (and without prior
notice to Party B), be reduced by its set-off against any amount(s) (the
"Other Agreement Amount") payable (whether at such time or in the future or
upon the occurrence of a contingency) by Party B to Party A (irrespective
of the currency, place of payment or booking office of the obligation)
under any other agreement(s) between Party A and Party B or instrument(s)
or undertaking(s) issued or executed by Party B to, or in favor of, Party A
(and the Other Agreement Amount will be discharged promptly and in all
respects to the extent it is so set-off). Party A will give notice to Party
B of any set-off effected under this Part 5(d).
For this purpose, either the Early Termination Amount or the Other
Agreement Amount (or the relevant portion of such amounts) may be converted
by Party A into the currency in which the other is denominated at the rate
of exchange at which Party A would be able, acting in a reasonable manner
and in good faith, to purchase the relevant amount of such currency.
If an obligation is unascertained, Party A may in good faith estimate that
obligation and set-off in respect of the estimate, subject to Party A
accounting to Party B when the obligation is ascertained.
Nothing in this Part 5(d) shall be effective to create a charge or other
security interest. This Part 5(d) shall be without prejudice and in
addition to any right of set-off, combination of accounts, lien or other
right to which Party A is at any time otherwise entitled (whether by
operation of law, contract or otherwise).
Party B shall not have any right of set-off against Party A.
(e) REPRESENTATIONS. Section 3 is hereby amended by (i) adding the following
sentence at the end of subparagraph (c) of Section 3 of the Agreement:
"Without limitation of the foregoing, Party B has made any and all filings
or reports required to be made by it under applicable laws and regulations
in connection with its ownership of any Shares that are the subject of any
Transaction entered into under this Agreement"; and (ii) adding at the end
thereof the following subparagraphs (g) and (h):
(g) ELIGIBLE SWAP PARTICIPANT. It constitutes an "eligible swap
participant" as such term is defined in Rule 35.1(b)(2) of the Commodity
Futures Trading Commission, 17 C.F.R. (S)35.1(b)(2)(1993).
(h) LINE OF BUSINESS. It has entered into this Agreement (including each
Transaction entered into hereunder) in conjunction with its line of
business (including financial intermediation services) or the financing of
its business.
(f) PARTY B REPRESENTATIONS. Party B hereby represents to Party A (which
representations will be deemed to be repeated by Party B on each date on
which a Transaction is entered into and at all times until the termination
of the Agreement unless otherwise specified in the Confirmation for any
Transaction) that:--
7
(i) Party B is not, and for a period of not less than three months has
not been, an affiliate (as defined in Rule 144 ("Rule 144") under the
Securities Act of 1933, as amended (the "Securities Act")) of the Issuer.
At least six months have elapsed since the date on which Party B acquired
any Shares and at least three months have elapsed since the date on which
Party B acquired any securities that are convertible into or exchangeable
for Shares (other than any Shares or convertible or exchangeable securities
that may be freely resold by Party B without restriction as to the amount
or timing of sale and without registration under the Securities Act) (with
the three and six-month periods referenced in this sentence being measured
as provided in Rule 144).
(ii) All of the Shares owned by Party B are either (i) freely transferable
by Party B under the Securities Act without restriction as to the amount or
timing of sale and without registration under the Securities Act, or (ii)
subject to the expiration of any required holding period under Rule 144(d),
eligible for resale by Party B pursuant to Rule 144.
(iii) Party B is not an affiliate (as defined in Rule 144) of the Issuer.
Party B is not in possession of, and does not have special access to, any
material non-public information regarding the Issuer.
(iv) Party B is not, and during the term of any Transaction will not
become, the beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), but treating any
securities beneficially owned by Party B that are convertible, exchangeable
or exercisable for equity securities of the Issuer as if they had been
converted, exchanged or exercised) of more than 5 per cent of the
outstanding shares of any class or series of equity securities of the
Issuer. For purposes of this representation, Party B shall be deemed to
have beneficial ownership of any securities it beneficially owns within the
meaning of said Rule 13d-3 whether such beneficial ownership is direct or
indirect and whether it is based on securities individually owned by Party
B or securities owned as a member of a "group" within the meaning of Rule
13d-5(b) under the Exchange Act.
(v) Party B is not and has not been subject to the reporting obligations
of Section 16 of the Exchange Act with respect to the Issuer.
(vi) Party B has filed or caused to be filed all tax returns that are
required to be filed by Party B and has paid all taxes shown to be due and
payable on said returns or on any assessment made against Party B or any of
Party B's property and all other taxes, assessments, fees, liabilities or
other charges imposed on Party B or any of Party B's property by any
governmental authority (other than any taxes, assessments, fees,
liabilities or other changes contested by Party B in good faith).
(vii) (a) Party B is solely responsible for Party B's trading or
investment decisions with respect to this Agreement and each Transaction
entered into under this Agreement; and (b) Party B is not relying on Party
A in connection with any such decisions, and Party A is not acting as an
advisor to or fiduciary of Party B in connection with any Transaction under
this Agreement, regardless of whether Party A provides it from time to time
with market information or views.
(viii) Party B has sufficient knowledge, experience and access to
professional advice to make Party B's own legal, tax, accounting and
financial evaluation of the merits and risks of entering into this
Agreement and each Transaction hereunder, has reviewed the documentation
relating to this
8
Agreement and each Transaction hereunder carefully with Party B's
financial, legal and tax advisors and has determined that entering into
this Agreement and each Transaction hereunder is consistent with Party B's
objectives. Without limitation of the foregoing, or of any other provisions
of this Agreement, Party B acknowledges and understands that Transactions
entered into under this Agreement may involve complex legal, tax and
regulatory considerations that are highly dependent on facts and
circumstances related to Party B, that Party A will have insufficient
information regarding such facts and circumstances to determine the legal,
tax and regulatory consequences of such Transactions for Party B and that
Party B, together with its legal, tax and financial advisors, will be
solely responsible for determining and evaluating such consequences and
making its own independent decisions with respect to such Transactions
based on such determinations and evaluations and any other factors or
considerations deemed relevant by Party B or its advisors.
(ix) Party B has provided to Party A copies of all agreements or contracts
to which it is a party, or by which it is bound, that relate to the Shares
or any securities that are convertible, exchangeable or exercisable for
Shares.
(x) Any Shares beneficially owned by Party B, and any securities
beneficially owned by Party B that are convertible, exercisable or
exchangeable for Shares, are not subject to any restrictions on transfer
other than those arising under state securities laws (if any) and no such
Shares or other securities are entitled to the benefits of any registration
rights agreement or similar agreement.
(xi) Party B acknowledges that it has received and executed a copy of the
Option Account Agreement and Approval Form (the "Account Form") and
related Representation Letter of AIG Financial Securities Corp. and has
reviewed the related disclosures. Party B hereby makes for the benefit of
Party A all representations and undertakings made by it in the Account
Form and such Representation Letter.
(g) ADDITIONAL COVENANTS. The following paragraphs (f) and (g) are hereby added
at the end of Section 4 of this Agreement:
(f) NOTICE OF TAX LIENS. Promptly upon (and in any event within three days
of) becoming aware that any filing of a federal lien in respect of Party B
or any of Party B's property has been made in the United States of America,
or that the United States Internal Revenue Service intends to make or
contemplates making any such filing, Party B shall give notice of such
occurrence to Party A. specifying the nature and status of such filing.
(g) CONFIDENTIALITY. Party A considers its participation in each and any
Transaction and the details thereof (collectively, the "Information") to
constitute confidential and valuable business information. Accordingly,
Party B agrees to keep the Information strictly confidential and not to
disclose it (or any portion thereof) to any third party. Party B may,
however, disclose any Information to the extent such disclosure is required
by law, provided that Party B (i) notifies Party A reasonably in advance of
any requirement or pending request for the disclosure of any Information,
and (ii) prior to disclosure consults with Party A as to the advisability
of seeking means to preserve the confidentiality of such Information.
9
(h) ADDITIONAL EVENT OF DEFAULT. Section 5(a) of the Agreement is hereby
amended by replacing the period at the end thereof with "; or" and adding
the following paragraph (ix) immediately thereafter:
(ix) TAX LIENS. With respect to Party B only, (i) a federal tax lien is
filed against Party B or any of Party B's property in the United States of
America, or (ii) Party B fails to comply with Party B's obligations
pursuant to Section 4(f) of this Agreement.
(i) TRANSFER. Section 7 of this Agreement is replaced in its entirety with the
following:
(a) Neither this Agreement nor any interest or obligation in or under this
Agreement or any Transaction may be transferred by Party B without the
prior written consent of Party A and any purported transfer without such
consent will be void.
(b) Subject to Section 6(b)(ii) of this Agreement, and except as expressly
provided herein, neither this Agreement nor any interest or obligation in
or under this Agreement or any Transaction may be transferred by Party A
without the prior written consent of Party B (other than pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of
all or substantially all of Party A's assets to, another entity) and any
purported transfer without such consent will be void. Party A may transfer
the Agreement, any of its interests and obligations in and under this
Agreement or all, but not fewer than all Transactions, to another of Party
A's offices, branches or Affiliates on two Business Days' prior written
notice; provided, however, that (i) if such transfer is to an entity other
than American International Group, Inc., such notice shall be accompanied
by a Guarantee of American International Group, Inc. of such transferee's
obligations in substantially the form of the Guarantee of American
International Group, Inc. referred to in Part 4(f) of this Schedule or by
an agreement in writing of American International Group, Inc. that such
Guarantee will apply to the obligations of such transferee under this
Agreement, (ii) Party B will not, as a result of such transfer, be required
under tax laws in effect on the date of transfer to pay to the transferee
on the next succeeding Scheduled Payment Date an amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of default
interest) greater than the amount which Party B would have been required to
pay to Party A in the absence of such transfer, (iii) the transferee will
not, as a result of such transfer, be required under laws in effect on the
date of transfer to withhold or deduct on the next succeeding Scheduled
Payment Date on account of Indemnifiable Tax under Section 2(d)(i) (except
in respect of default interest) amounts in excess of that which Party A
would, on the next succeeding Scheduled Payment Date, have been required to
so withhold or deduct in the absence of such transfer unless the transferee
would be required to make additional payments pursuant to Section
2(d)(i)(4) corresponding to such excess and (iv) a Termination Event or
Event of Default does not occur as a result of such transfer. With respect
to the result described in subclauses (ii) and (iii), Party A agrees to
cause such transferee to make, and Party B agrees to make, such Payee Tax
Representations and Payer Tax Representation as may be reasonably requested
by the other party in order to permit such other party to determine that
such result will not occur after such transfer.
(j) BINDING EFFECT.
The following paragraph (h) is hereby added at the end of Section 9 of
this Agreement:
10
(h) BINDING EFFECT. This Agreement shall bind and inure to the benefit of
Party A and Party B and their respective permitted successors and assigns.
(k) DEFINITIONS.
(i) For all purposes of this Agreement, "Contractual Currency" means United
States Dollars.
(ii) The definition of "law" in Section 14 of this Agreement is hereby
amended by the insertion of the words "either generally or with respect to
a party to this agreement" after the phrase "any relevant governmental
revenue authority" and the addition of the words "Change in Tax Law,"
before the word "lawful" in the second line.
(l) DEALINGS IN THE SHARES. Party B hereby acknowledges and agrees that Party A
will hedge its exposure with respect to the Transactions; that such hedging
may involve effecting purchases, long sales or short sales in any or all of
the classes of Shares that are the subject of a Transaction or in options
or other derivatives in respect of any such classes of Shares; that at any
time before, during or after the term of any Transaction Party A may change
or alter its hedge position: that such hedging transactions may affect the
market price of any such class or classes of Shares and thus the amounts
payable by Party A under one or more Transactions and that Party A shall
have no obligation to purchase or sell, or to refrain from purchasing or
selling, any class of Shares, or to refrain from entering into, any hedging
transaction, at any time.
11
IN WITNESS WHEREOF, the parties have executed this document as of the
date specified on the first page hereof.
Party A
-------
BANQUE AIG, LONDON BRANCH
By: /s/ Xxxxxxxxx Xxxxxxx
-------------------------
Name: XXXXXXXXX XXXXXXX
Title: MANAGING DIRECTOR
Date:
Party B
-------
TURBOCHEF TECHNOLOGIES, INC.
/s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: XXXXXX X. XXXXXXX
Title: EVP-CFO
Date: JAN. 11, 1999
12
Exhibit A
---------
GUARANTEE OF AMERICAN INTERNATIONAL GROUP. INC.
-----------------------------------------------
Guarantee, dated as of January 11, 1999, by American
International Group, Inc., a Delaware corporation (the "Guarantor"), in favor of
TurboChef Technologies, Inc., a Delaware corporation (the "Guaranteed Party").
1. GUARANTEE. To induce the Guaranteed Party to enter into (i) a
Master Agreement, dated as of the date hereof, pursuant to which the Guaranteed
Party and Banque AIG, London Branch (the "Bank"), have entered and/or anticipate
entering into one or more Transactions (as defined therein), the confirmation of
each of which supplements, forms a part of, and will be read and construed as
one with, such Master Agreement (as amended or modified from time to time, such
Master Agreement together with such confirmations are collectively referred to
herein as the "Master Agreement"), and (ii) a Variable Stock Agreement, to dated
on or about January 14, 1999, pursuant to which the Guaranteed Party will sell
to the Bank certain securities at the time and on the terms specified therein
(as amended or modified from time to time, the "Stock Agreement"), the Guarantor
absolutely, unconditionally and irrevocably guarantees to the Guaranteed Party
and its successors, endorsees and assigns, the prompt payment when due of all
present and future payment obligations of the Bank to the Guaranteed Party
arising out of (i) Transactions entered into under the Master Agreement, or (ii)
the Stock Agreement (collectively, the "Obligations"). This Guarantee is a
Credit Support Document as contemplated in the Master Agreement.
2. NATURE OF GUARANTEE. The Guarantor's obligations hereunder shall
not be affected by the existence, validity, enforceability, perfection or extent
of any collateral therefor or by any other circumstance relating to the
Obligations that might otherwise constitute a legal or equitable discharge of or
defense to the Guarantor not available to the Bank. The Guarantor agrees that
the Guaranteed Party may resort to the Guarantor for payment of any of the
Obligations whether or not the Guaranteed Party shall have resorted to any
collateral therefor or shall have proceeded against the Bank or any other
obligor principally or secondarily obligated with respect to any of the
Obligations. The Guaranteed Party shall not be obligated to file any claim
relating to the Obligations in the event that the Bank becomes subject to a
bankruptcy, reorganization or similar proceeding, and the failure of the
Guaranteed Party to so file shall not affect the Guarantor's obligations
hereunder. In the event that any payment to the Guaranteed Party in respect of
any Obligations is rescinded or must otherwise be returned for any reason
whatsoever, the Guarantor shall remain liable hereunder with respect to such
Obligations as if such payment had not been made. The Guarantor reserves the
right to (a) set-off against any payment owing hereunder any amounts owing by
the Guaranteed Party to the Bank and (b) assert defenses which the Bank may have
to payment of any Obligations other than defenses arising from the bankruptcy or
insolvency of the Bank and other defenses expressly waived hereby.
3. CHANGES IN OBLIGATIONS, COLLATERAL THEREFOR AND AGREEMENTS
RELATING THERETO; WAIVER OF CERTAIN NOTICES. The Guarantor agrees that the
Guaranteed Party may at any time and from time to time, either before or after
the maturity thereof, without notice to or further consent of the Guarantor,
extend the time of payment of, exchange or surrender any collateral for, or
renew any of the Obligations, and may also make any agreement with the Bank or
with any other party to or person liable on any of the Obligations or interested
therein, for the extension, renewal, payment, compromise, discharge or release
thereof, in whole or in part, or for any modification of the terms thereof or of
any agreement between the Guaranteed Party and the Bank or any such other party
or person without in any way impairing or affecting this Guarantee. The
Guarantor waives notice of the acceptance of this Guarantee and of the
Obligations, presentment, demand for payment, notice of dishonor and protest.
4. EXPENSES. The Guarantor agrees to pay on demand all fees and out
of pocket expenses (including the reasonable fees and expenses of the Guaranteed
Party's counsel) in any way relating to the enforcement or protection of the
rights of the Guaranteed Party hereunder; provided that the Guarantor shall not
be liable for any expenses of the Guaranteed Party if no payment under this
Guarantee is due.
5. SUBROGATION. Upon payment of any of the Obligations, the
Guarantor shall be subrogated to the rights of the Guaranteed Party against the
Bank with respect to such Obligations, and the Guaranteed Party agrees to take
at the Guarantor's expense such steps as the Guarantor may reasonably request to
implement such subrogation.
6. NO WAIVER; CUMULATIVE RIGHTS. No failure on the part of the
Guaranteed Party to exercise, and no delay in exercising, any right, remedy or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise by the Guaranteed Party of any right, remedy or power hereunder
preclude any other or future exercise of any right, remedy or power. Each and
every right, remedy and power hereby granted to the Guaranteed Party or allowed
it by law or other agreement shall be cumulative and not exclusive of any other,
and may be exercised by the Guaranteed Party at any time or from time to time.
7. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents
and warrants that:
(a) the Guarantor is duly organized, validly existing and in good
standing under the laws of the State of Delaware and has full corporate
power to execute, deliver and perform this Guarantee;
(b) the execution, delivery and performance of this Guarantee have
been and remain duly authorized by all necessary corporate action and do
not contravene any provision of the Guarantor's certificate of
incorporation or by-laws, as amended to date, or any law,
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regulation, rule, decree, order, judgment or contractual restriction
binding on the Guarantor or its assets;
(c) all consents, licenses, clearances, authorizations and
approvals of, and registrations and declarations with, any governmental
authority or regulatory body necessary for the due execution, delivery
and performance of this Guarantee have been obtained and remain in full
force and effect and all conditions thereof have been duly complied
with, and no other action by, and no notice to or filing with, any
governmental authority or regulatory body is required in connection with
the execution, delivery or performance of this Guarantee; and
(d) this Guarantee constitutes a legal, valid and binding
obligation of the Guarantor enforceable against the Guarantor in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
8. ASSIGNMENT. Neither the Guarantor nor the Guaranteed Party may
assign its rights, interests or obligations hereunder to any other person
(except by operation of law) without the prior written consent of the Guarantor
or the Guaranteed Party, as the case may be, provided, however, that the
Guaranteed Party may assign its rights, interests and obligations hereunder
(insofar as such rights, interests and obligations pertain to the Master
Agreement) to an assignee or transferee to which it has transferred its
interests and obligations under the Master Agreement pursuant to Section 7
thereof and may assign its rights, interests and obligations hereunder (insofar
as such rights, interests and obligations pertain to the Stock Agreement) to an
assignee or transferee to which it has transferred its interests and obligations
under the Stock Agreement pursuant to Section 7.6 thereof.
9. NOTICES. All notices or demands on the Guarantor shall be deemed
effective when received, shall be in writing and shall be delivered by hand or
by registered mail, or by facsimile transmission promptly confirmed by
registered mail, addressed to the Guarantor at:
American International Group, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
Fax (000) 000-0000
or such other address or facsimile number as the Guarantor shall have notified
the Guaranteed Party in a written notice delivered to the Guaranteed Party in
accordance with the Agreement.
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10. CONTINUING GUARANTEE. Subject to the provisions of Section 11
hereof, this Guarantee shall remain in full force and effect and shall be
binding on the Guarantor, its successors and assigns until all of the
Obligations have been satisfied in full.
11. TERMINATION. The Guarantee may be terminated by the Guarantor
upon 5 days' written notice to the Guaranteed Party, provided that this
Guarantee shall remain in full force and effect with respect to Obligations
incurred by the Bank pursuant to the Stock Agreement or incurred as a result of
Transactions entered into prior to the effective date of such termination.
12. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
IN WITNESS WHEREOF, this Guarantee has been duly executed and
delivered by the Guarantor to the Guaranteed Party as of the date first above
written.
AMERICAN INTERNATIONAL GROUP, INC.
By:_______________________________
By:_______________________________
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BANQUE AIG [LOGO OF AIG APPEARS HERE]
London Branch EXHIBIT X
0xx Xxxxx, 0 Xxxxxxxxx, Xxxxxx XX0X 0XX
Tel: 0000-000 0000 Fax: 0000-000 0000
and 0000-000 0000 and 0000-000 0000
A member of the SFA
DATE: 14 January, 1999
TO: TURBOCHEF TECHNOLOGIES, INC.
00000 XXXXXX XXXXX
XXXXX 000
XXXXXX, XXXXX 00000
TEL: 000-000-0000
FAX: 000-000-0000
ATTENTION: XX. XXXXXX XXXXXXX
CC: AIG FINANCIAL SECURITIES CORP.
Xxxx Xxxxxx
FROM: BANQUE AIG, LONDON BRANCH
SUBJECT: SHARE OPTION TRANSACTION
--------------------------------------------------------------------------------
Dear Xx. Xxxxxxx:
The purpose of this letter agreement is to set forth the terms and
conditions of the share option transaction entered into on the Trade Date
referred to below (the "Option Transaction") between Banque AIG, London
Branch ("Banque AIG") (guaranteed by American International Group, Inc.
("AIG") and TurboChef Technologies Inc. ("Counterparty"). We are treating
Counterparty for the purposes of the rules of the Securities and Futures
Authority as an Ordinary Business Investor within paragraph (a) of the
definition of an Ordinary Business Investor contained in these rules, and
your confirmation of this transaction in the manner referred to below will
constitute a confirmation and warranty that you are such an Ordinary
Business Investor. This letter agreement constitutes a "Confirmation" as
referred to in the Master Agreement specified below.
1. This Confirmation is subject to and incorporates the 1991 ISDA
Definitions and the 1996 ISDA Equity Derivatives Definitions, each
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions"). This Confirmation supplements, forms a part of and is
subject to the ISDA Master Agreement dated as of 11 January 1999 between
Banque AIG, London Branch and Counterparty that (i) incorporates the
Definitions (whether directly or by means of this Confirmation) and (ii)
sets forth general terms and conditions applicable to interest rate swap
transactions between us (the "Master Agreement"). All provisions contained
in, or incorporated by reference to, such Master Agreement shall govern
this Confirmation except as expressly modified below.
2. The terms of the particular Option Transaction to which this
Confirmation relates are as follows:
General Terms:
Trade Date: 14 January 1999.
Option Style: European.
Option Type: Put.
Seller: Banque AIG.
Buyer: Counterparty.
Strike Price: 90% of the Initial Price.
Shares: Common Shares, $1.25 par value per
share, of Maytag Corporation (Cusip
Number: 578592107).
Number of Options: 221,846.
Option Entitlement: One Share per Option.
Premium: 10.45% of the Initial Price per Option.
Premium Payment Date: One Currency Business Day following the
Final Hedge Date (as defined below).
Initial Price: Weighted average price at which Banque
AIG or an affiliate sells Shares short
on or following the Trade Date in an
amount sufficient to hedge (at its sole
discretion) its position pursuant to the
Option Transaction (and any other option
transaction entered into by Banque AIG
and the Counterparty on the Trade Date).
Counterparty acknowledges and agrees
that (i) Banque AIG or an affiliate
will, on the basis of this Confirmation
and without seeking further agreement
from Counterparty, seek to sell Shares
short to hedge the Option Transaction,
such hedging transactions to be executed
by Banque AIG or an affiliate in its
sole discretion, (ii) Banque will notify
Counterparty of the "Initial Price"
promptly following the final day on
which such short sales are completed
(the "Final Hedge Date"), and (iii)
Banque AIG and Counterparty shall be
bound by the terms of this Confirmation
and such notice.
In the event Banque AIG or its
affiliates do not complete short sales
(including related borrowings of Shares)
sufficient to hedge its position
pursuant to the Option Transaction (in a
manner determined by it in its sole
discretion to be satisfactory), it shall
promptly give notice thereof to
Counterparty, and upon such
notification, at the election of Banque
AIG (set forth in such notice), either
(i) the Number of Options subject to the
Option Transaction to which this
Confirmation relates shall be reduced to
such number as Banque AIG or its
affiliate has sufficiently hedged
through short sales actually completed
(determined by Banque AIG in its sole
discretion), such revised Number of
Options to be set forth in such notice,
or (ii) the Option Transaction shall
terminate with the same effect as if the
Option Transaction were never entered
into.
2
Banque AIG will make a good faith effort
to complete hedging of its position
under the Option Transactions within 5
Exchange Business Days from and
including the Trade Date.
Exchange: NYSE.
Related Exchange(s): CBOE.
Procedure for Exercise:
Expiration Time: The official closing time at which the
Exchange closes.
Expiration Date: 14 January 2002, or if such day is not
an Exchange Business Day, the next
following Exchange Business Day.
Automatic Exercise: Applicable.
Seller's Agents Telephone
Number and Telex and/or
Facsimile Number and Contact
Details for Purpose of Giving
Notice: Xxxxxxx Xxxxxxxx/Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Valuation:
Valuation Time: The close of trading on the Exchange.
Valuation Date: The Expiration Date.
Settlement Terms:
Cash Settlement: Applicable; provided that Counterparty
may, by written notice to Banque AIG
received not fewer than 15 Exchange
Trading Days prior to the Expiration
Date, elect that Physical Settlement
shall be applicable, in which event the
Reference Price shall be the Settlement
Price, the Clearance System shall be The
Depository Trust Company ("DTC"), and
Counterparty shall be obligated to
deliver Shares that are freely
transferable as determined by Banque AIG
in its sole discretion. Counterparty
acknowledges that not all of the Shares
it currently holds are eligible in their
current form for clearance through DTC.
Settlement Price: The closing ask price per share for
Shares as reported by the Exchange on
the Valuation Date.
Cash Settlement Amount: The Number of Options multiplied by the
Option Entitlement multiplied by the
Strike Price Differential.
3
Strike Price Differential: The greater of (a) the excess of the Strike Price over the Settlement Price,
and (b) zero.
Cash Settlement Payment Date: Three Currency Business Days after the Valuation Date.
Adjustments:
Method of Adjustment: Calculation Agent Adjustment.
Extraordinary Events:
Consequences of Merger Events:
(a) Share-for-Share: Alternative Obligation. In the case of any such event, Counterparty shall be
deemed to have made, as of the effective date of such event, each of the
representations of Counterparty set forth in Section 3 of the Master
Agreement (except for the representation set forth in Part 3(f)(i) to the
Schedule thereto, relating to holding periods).
(b) Share-for-Other: Cancellation and Payment.
(c) Share-for-Combined: Cancellation and Payment.
Nationalization or Insolvency: Cancellation and Payment.
Currency Business Days: New York.
Calculation Agent: Banque AIG.
Governing Law: New York.
Documentation: The Master Agreement.
Credit Support Documents: The Guarantee of AIG provided by Banque AIG, and the Pledge Agreement
provided by Counterparty.
Payment Instructions for
Banque AIG: Swiss Bank Corp., New York
ABA No. 0260-07993.
A/C Banque AIG, London Branch.
A/C # 1O1WA-182-850-000
Banque AIG Settlements: Xxxxxxx Xxxxxxxx/Xxxxxxx Xxxxxx
Westport, Connecticut
Tel: (000) 000-0000
Fax: (000) 000-0000
4
3. Please confirm that the foregoing correctly sets forth the terms of our
agreement with respect to the Option Transaction by signing in the space
provided below and returning a copy of the executed Confirmation to Xxxxxx
Xxxxx, Counsel, Banque AIG, London Branch.
It has been a pleasure working with you on this transaction, and we look forward
to working with you again in the future.
Yours sincerely,
Banque AIG, London Branch
By: /s/ T. Vakker
---------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Director
Agreed and accepted by:
TurboChef Technologies, Inc.
By /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: XXXXXX X. XXXXXXX
Title EVA CFO
5
AIG FINANCIAL SECURITIES CORP. [LOGO OF AIG APPEARS HERE]
000 Xxxxx Xxxx, Xxxxxxxx, XX 00000
(000) 000-0000 (000) 000-XXXX
Fax: (000) 000-0000 Telex: 910-2409432 AIG FPC
February 4, 1999
Xx. Xxxxxx Xxxxxxx
Executive Vice President, Chief Financial Officer, Secretary and Treasurer
TurboChef Technologies
00000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Dear Xxxxxx:
At your request I have enclosed the original AIG Guarantee. If you
have any questions, please do not hesitate to call me.
Sincerely,
/s/ Xxxxxx Xxxxxxxxxxxxx
Xxxxxx Xxxxxxxxxxxxx
Managing Director, North America
GUARANTEE OF AMERICAN INTERNATIONAL GROUP, INC.
-----------------------------------------------
Guarantee, dated as of January 11, 1999, by American
International Group, Inc., a Delaware corporation (the "Guarantor"), in favor of
TurboChef Technologies, Inc., a Delaware corporation (the "Guaranteed Party").
1. GUARANTEE. To induce the Guaranteed Party to enter into (i) a
Master Agreement, dated as of the date hereof, pursuant to which the Guaranteed
Party and Banque AIG, London Branch (the "Bank"), have entered and/or anticipate
entering into one or more Transactions (as defined therein), the confirmation of
each of which supplements, forms a part of, and will be read and construed as
one with, such Master Agreement (as amended or modified from time to time, such
Master Agreement together with such confirmations are collectively referred to
herein as the "Master Agreement"), and (ii) a Variable Stock Agreement, to dated
on or about January 14, 1999, pursuant to which the Guaranteed Party will sell
to the Bank certain securities at the time and on the terms specified therein
(as amended or modified from time to time, the "Stock Agreement"), the Guarantor
absolutely, unconditionally and irrevocably guarantees to the Guaranteed Party
and its successors, endorsees and assigns, the prompt payment when due of all
present and future payment obligations of the Bank to the Guaranteed Party
arising out of(i) Transactions entered into under the Master Agreement, or (ii)
the Stock Agreement (collectively, the "Obligations"). This Guarantee is a
Credit Support Document as contemplated in the Master Agreement.
2. NATURE OF GUARANTEE. The Guarantor's obligations hereunder shall
not be affected by the existence, validity, enforceability, perfection or extent
of any collateral therefor or by any other circumstance relating to the
Obligations that might otherwise constitute a legal or equitable discharge of or
defense to the Guarantor not available to the Bank. The Guarantor agrees that
the Guaranteed Party may resort to the Guarantor for payment of any of the
Obligations whether or not the Guaranteed Party shall have resorted to any
collateral therefor or shall have proceeded against the Bank or any other
obligor principally or secondarily obligated with respect to any of the
Obligations. The Guaranteed Party shall not be obligated to file any claim
relating to the Obligations in the event that the Bank becomes subject to a
bankruptcy, reorganization or similar proceeding, and the failure of the
Guaranteed Party to so file shall not affect the Guarantor's obligations
hereunder. In the event that any payment to the Guaranteed Party in respect of
any Obligations is rescinded or must otherwise be returned for any reason
whatsoever, the Guarantor shall remain liable hereunder with respect to such
Obligations as if such payment had not been made. The Guarantor reserves the
right to (a) set-off against any payment owing hereunder any amounts owing by
the Guaranteed Party to the Bank and (b) assert defenses which the Bank may have
to payment of any Obligations other than defenses arising from the bankruptcy or
insolvency of the Bank and other defenses expressly waived hereby.
3. CHANGES IN OBLIGATIONS, COLLATERAL THEREFOR AND AGREEMENTS
RELATING THERETO; WAIVER OF CERTAIN NOTICES. The Guarantor agrees that the
Guaranteed Party may at any time and from time to time, either before or after
the maturity thereof, without notice to or further consent of the Guarantor,
extend the time of payment of, exchange or surrender any collateral for, or
renew any of the Obligations, and may also make any agreement with the Bank or
with any other party to or person liable on any of the Obligations or interested
therein, for the extension, renewal, payment, compromise, discharge or release
thereof, in whole or in part, or for any modification of the terms thereof or of
any agreement between the Guaranteed Party and the Bank or any such other party
or person without in any way impairing or affecting this Guarantee. The
Guarantor waives notice of the acceptance of this Guarantee and of the
Obligations, presentment, demand for payment, notice of dishonor and protest.
4. EXPENSES. The Guarantor agrees to pay on demand all fees and out
of pocket expenses (including the reasonable fees and expenses of the Guaranteed
Party's counsel) in any way relating to the enforcement or protection of the
rights of the Guaranteed Party hereunder; provided that the Guarantor shall not
be liable for any expenses of the Guaranteed Party if no payment under this
Guarantee is due.
5. SUBROGATION. Upon payment of any of the Obligations, the
Guarantor shall be subrogated to the rights of the Guaranteed Party against the
Bank with respect to such Obligations, and the Guaranteed Party agrees to take
at the Guarantor's expense such steps as the Guarantor may reasonably request to
implement such subrogation.
6. NO WAIVER; CUMULATIVE RIGHTS. No failure on the part of the
Guaranteed Party to exercise, and no delay in exercising, any right, remedy or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise by the Guaranteed Party of any right, remedy or power hereunder
preclude any other or future exercise of any right, remedy or power. Each and
every right, remedy and power hereby granted to the Guaranteed Party or allowed
it by law or other agreement shall be cumulative and not exclusive of any other,
and may be exercised by the Guaranteed Party at any time or from time to time.
7. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents
and warrants that:
(a) the Guarantor is duly organized, validly existing and in good
standing under the laws of the State of Delaware and has full corporate
power to execute, deliver and perform this Guarantee;
(b) the execution, delivery and performance of this Guarantee have
been and remain duly authorized by all necessary corporate action and do
not contravene any provision of the Guarantor's certificate of
incorporation or by-laws, as amended to date, or any law,
-2-
regulation, rule, decree, order, judgment or contractual restriction
binding on the Guarantor or its assets;
(c) all consents, licenses, clearances, authorizations and
approvals of, and registrations and declarations with, any governmental
authority or regulatory body necessary for the due execution, delivery
and performance of this Guarantee have been obtained and remain in full
force and effect and all conditions thereof have been duly complied
with, and no other action by, and no notice to or filing with, any
governmental authority or regulatory body is required in connection with
the execution, delivery or performance of this Guarantee; and
(d) this Guarantee constitutes a legal, valid and binding
obligation of the Guarantor enforceable against the Guarantor in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
8. ASSIGNMENT. Neither the Guarantor nor the Guaranteed Party may
assign its rights, interests or obligations hereunder to any other person
(except by operation of law) without the prior written consent of the Guarantor
or the Guaranteed Party, as the case may be, provided, however, that the
Guaranteed Party may assign its rights, interests and obligations hereunder
(insofar as such rights, interests and obligations pertain to the Master
Agreement) to an assignee or transferee to which it has transferred its
interests and obligations under the Master Agreement pursuant to Section 7
thereof and may assign its rights, interests and obligations hereunder (insofar
as such rights, interests and obligations pertain to the Stock Agreement) to an
assignee or transferee to which it has transferred its interests and obligations
under the Stock Agreement pursuant to Section 7.6 thereof.
9. NOTICES. All notices or demands on the Guarantor shall be deemed
effective when received, shall be in writing and shall be delivered by hand or
by registered mail, or by facsimile transmission promptly confirmed by
registered mail, addressed to the Guarantor at:
American International Group, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
Fax (000) 000-0000
or such other address or facsimile number as the Guarantor shall have notified
the Guaranteed Party in a written notice delivered to the Guaranteed Party in
accordance with the Agreement.
-3-
10. CONTINUING GUARANTEE. Subject to the provisions of Section 11
hereof, this Guarantee shall remain in full force and effect and shall be
binding on the Guarantor, its successors and assigns until all of the
Obligations have been satisfied in full.
11. TERMINATION. The Guarantee may be terminated by the Guarantor
upon 5 days' written notice to the Guaranteed Party, provided that this
Guarantee shall remain in full force and effect with respect to Obligations
incurred by the Bank pursuant to the Stock Agreement or incurred as a result of
Transactions entered into prior to the effective date of such termination.
12. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
IN WITNESS WHEREOF, this Guarantee has been duly executed and
delivered by the Guarantor to the Guaranteed Party as of the date first above
written.
AMERICAN INTERNATIONAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------
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