EX-10.5 8 d844520dex105.htm EX-10.5 EXECUTION COPY AMENDMENT No. 1 to THE ISDA® 2002 MASTER AGREEMENT
Exhibit 10.5
EXECUTION COPY
AMENDMENT No. 1
to
THE ISDA® 2002 MASTER AGREEMENT
THIS AMENDMENT NO. 1, dated as of October 26, 2012 (this “Amendment”), between BANK OF AMERICA, N.A. (“Party A”) and BOJANGLES’ RESTAURANTS, INC. and each entity listed on Appendix A to the Agreement (defined below) (collectively “Party B”) and
WHEREAS, Party A and Party B have previously entered into a certain ISDA 2002 Master Agreement, dated as of June 30, 2009 (the “Master Agreement”), and the Schedule to the Master Agreement, dated as of June 30, 2009 (the “Schedule”) (the Master Agreement and the Schedule, collectively, the “Agreement”); and
(1) | Amendments. The Agreement shall be amended as follows: |
(a) | Annex A; Appendix A. Annex A to the Master Agreement and Appendix A to the Schedule are hereby amended by deleting “Bojangles’ Holdings, Inc.” appearing therein and replacing it for each with the following: “BHI Intermediate Holding Corp.” |
(c) | Threshold Amount with respect to Party B. The Threshold Amount with respect to each Party B Group Member in Part 1(c) of the Schedule is hereby amended by deleting “one million ($1,000,000)” appearing therein, and replacing it with the following “five million ($5,000,000)”. |
(d) | Payee Tax Representations for Party A. Part 2(b)(i) of the Schedule is hereby amended by deleting it in its entirety and replacing it with the following: |
“(i) The following representations will apply to Party A:
“Party A is a national banking association organized and existing under the laws of the United States of America, is an exempt recipient under Treasury Regulation Section 1.6049- 4(c)(1)(ii)(M), and its federal taxpayer identification number is 00-0000000.
“Party A is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of United States Treasury Regulations) for U.S. federal income tax purposes.”
(e) | Payee Tax Representations for Party B. Part 2(b)(ii) of the Schedule is hereby amended by: |
(i) | deleting, in its entirety, the sentence beginning with “Bojangles’ Holdings, Inc.”; and |
(ii) | adding the following new paragraphs before the end thereof: |
“BHI Intermediate Holding Corp. is a Delaware corporation and the federal taxpayer identification number is 00-0000000.
“Each Party B Group Member is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of United States Treasury Regulations) for U.S. federal income tax purposes.”
(f) | Tax Forms. Part 3(a) is hereby amended by adding, after the words, “Upon execution and delivery of this Agreement”, the following: “and promptly upon reasonable demand by Party A.” |
(g) | FATCA. Part 5 of the Schedule shall be amended to add the following new Part 5(n) before the end thereof: |
“(n) | Withholding Tax imposed on payments to non-US counterparties under the United States Foreign Account Tax Compliance Act. “Tax” as used in Part 2(a) of this Schedule (Payer Tax Representation) and “Indemnifiable Tax” as defined in Section 14 of this Agreement shall not include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of this Agreement. |
This Part 5(n) shall replace any “Express Provisions” where “Express Provisions” means any provisions expressly set out in any confirmation of a Transaction that supplements, forms a part of, and is subject to, this Agreement that provide for amendments to (i) any Payer Tax Representation contained in this Agreement, (ii) Section 2(d) of this Agreement, or (iii) the definition of “Indemnifiable Tax” in this Agreement, in each case, only in relation to FATCA Withholding Tax.”
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(6) | Governing Law. This Amendment and any and all controversies arising out of or in relation to this Amendment shall be governed by and construed in accordance with the laws of the State of New York (without reference to its conflict of laws doctrine other than Section 5-1401 of the New York General Obligations Law). |
(7) | Counterparts. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. |
[Signature Page Follows]
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EXECUTION COPY
BANK OF AMERICA, N.A. | BOJANGLES’ RESTAURANTS, INC. | |||||||
By: | /s/ Xxx Xxxxxxx Gillard | By: | /s/ X. X. Xxxxxx | |||||
Name: | Xxx Xxxxxxx Gillard | Name: | X. X. Xxxxxx | |||||
Title: | Vice President | Title: | Senior Vice President & CFO | |||||
BHI EXCHANGE, INC. BHI INTERMEDIATE HOLDING CORP. | ||||||||
By: | /s/ M. Xxxx Xxxxxx | |||||||
Name: | M. Xxxx Xxxxxx | |||||||
Title: | Chief Financial Officer | |||||||
BJ GEORGIA, LLC BOJANGLES’ INTERNATIONAL, LLC BJ RESTAURANT DEVELOPMENT, LLC | ||||||||
By: | /s/ M. Xxxx Xxxxxx | |||||||
Name: | M. Xxxx Xxxxxx | |||||||
Title: | Manager |
[Bojangles’/BofA ISDA Amendment No. 1 - Signature Page]