INTERNATIONAL FOREIGN EXCHANGE MASTER AGREEMENT
MASTER AGREEMENT dated as of December 9, 1996, by and between BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"), a national banking association
and its subsidiaries and related entities set forth in Part II of the Schedule,
and XXXXXXXX, INC., a Delaware corporation.
SECTION 1. DEFINITIONS.
Unless otherwise required by the context, the following terms shall have the
following meanings in the Agreement:
"Agreement" has the meaning given to it in Section 2.2.
"Base Currency" means as to a Party the Currency agreed as such in relation to
it in Part VIII of the Schedule hereto.
"Base Currency Rate" means as to a Party and any amount the cost (expressed as a
percentage rate per annum) at which that Party would be able to fund that amount
from such sources and for such periods as it may in its reasonable discretion
from time to time decide, as determined in good faith by it.
"Business Day" means (i) a day which is a Local Banking Day for the applicable
Designated Office of both Parties, or (ii) solely in relation to delivery of a
Currency, a day which is a Local Banking Day in relation to that Currency.
"Close-Out Amount" has the meaning given to it in Section 5.1.
"Close-Out Date" means a day on which, pursuant to the provisions of Section
5.1, the Non-Defaulting Party closes out and liquidates Currency Obligations or
such a closeout and liquidation occurs automatically.
"Closing Gain" means, as to the Non-Defaulting Party, the difference described
as such in relation to a particular Value Date under the provisions of Section
5.1.
"Closing Loss" means, as to the Non-Defaulting Party, the difference described
as such in relation to a particular Value Date under the provisions of Section
5.1.
"Confirmation" means a writing (including telex, facsimile or other electronic
means from which it is possible to produce a hard copy) evidencing an FX
Transaction governed by the Agreement which shall specify (i) the Parties
thereto and their Designated Offices through which they are respectively acting,
(ii) the amounts of the Currencies being bought or sold and by which Party,
(iii) the Value Date, and (iv) any other term generally included in such a
writing in accordance with the practice of the relevant foreign exchange market.
"Credit Support Document" means, as to a Party (the "first Party"), a guaranty,
hypothecation agreement, margin or security agreement or document, or any other
document containing an obligation of a third party ("Credit Support Provider")
or of the first Party in favor of the other Party supporting any obligations of
the first Party hereunder.
"Credit Support Provider" has the meaning given to it in the definition of
Credit
Support Document.
"Currency" means money denominated in the lawful currency of any country or the
ECU.
"Currency Obligation" means any obligation of a Party to deliver a Currency
pursuant
to an FX Trans-action governed by the Agreement, or pursuant to the application
of
Sections 3.3(a) or 3.3(b).
"Custodian" has the meaning given to it in the definition of Event of Default.
"Defaulting Party" has the meaning given to it in the definition of Event of
Default.
"Designated Office(s)" means, as to a Party, the office(s) specified in Part II
of the Schedule hereto, as such Schedule may be modified from time to time by
agreement of the Parties.
"Effective Date" means the date of this Master Agreement.
"Event of Default" means the occurrence of any of the following with respect to
a Party (the "Defaulting Party", the other Party being the "Non Defaulting
Party"):
(i) the Defaulting Party shall default in any payment under the Agreement to the
Non- Defaulting Party with respect to any sum when due under any Currency
Obligation or pursuant to the Agreement and such failure shall continue for two
(2) Business Days after written notice of non payment given by the Non
Defaulting Party to the Defaulting Party;
(ii) the Defaulting Party shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other similar relief with respect to
itself or to its debts under any bankruptcy, insolvency or similar law, or
seeking the appointment of a trustee, receiver, liquidator, conservator,
administrator, custodian or other similar official (each, a "Custodian") of it
or any substantial part of its assets; or shall take any corporate action to
authorize any of the foregoing;
(iii) an involuntary case or other proceeding shall be commenced against the
Defaulting Party seeking liquidation, reorganization or other similar relief
with respect to it or its debts under any bankruptcy, insolvency or similar law
or seeking the appointment of a Custodian of it or any substantial part of its
assets, and such involuntary case or other proceeding is not dismissed within
five (5) days of its institution or presentation;
(iv) the Defaulting Party is bankrupt or insolvent, as defined under any
bankruptcy
or insolvency law applicable to such Party;
(v) the Defaulting Party shall otherwise be unable to pay its debts as they
become
due;
(vi) the Defaulting Party or any Custodian acting on behalf of the Defaulting
Party shall disaffirm, disclaim or repudiate any Currency Obligation;
(vii) (a) any representation or warranty made or deemed made by the Defaulting
Party pursuant to the Agreement or pursuant to any Credit Support Document shall
prove to have been false or misleading in any material respect as at the time it
was made or given and one (1) Business Day has elapsed after the Non Defaulting
Party has given the Defaulting Party written notice thereof, or (b) the
Defaulting Party fails to perform or comply with any obligation assumed by it
under the Agreement (other than an obligation to make payment of the kind
referred to in Clause (i) of this definition of Event of Default), and such
failure is continuing thirty (30) days after the Non Defaulting Party has given
the Defaulting Party written notice thereof;
(viii) the Defaulting Party consolidates or amalgamates with or merges into or
transfers all or substantially all its assets to another entity and (a) the
creditworthiness of the resulting, surviving or transferee entity is materially
weaker than that of the Defaulting Party prior to such action, or (b) at the
time of such consolidation, amalgamation, merger or transfer the resulting,
surviving or transferee entity fails to assume all of the obligations of the
Defaulting Party under the
Agreement by operation of law or pursuant to an agreement satisfactory to the
Non
Defaulting Party;
(ix) by reason of any default, or event of default or other similar condition or
event, any Specified Indebtedness (being Specified Indebtedness of an amount
which, when expressed in the Currency of the Threshold Amount, is in aggregate
equal to or in excess of the Threshold Amount) of the Defaulting Party or any
Credit Support Provider in relation to it: (a) is not paid on the due date
therefor and remains unpaid after any applicable grace period has elapsed, or
(b) becomes, or becomes capable at any time of being declared, due and payable
under agreements or instruments evidencing such Specified Indebtedness before it
would otherwise have been due and payable;
(x) the Defaulting Party is in breach of or default under any Specified
Transaction and any applicable grace period has elapsed, and there occurs any
liquidation or early termination of, or acceleration of obligations under that
Specified Transaction or the Defaulting Party (or any Custodian on its behalf)
disaffirms, disclaims or repudiates the whole or any part of a Specified
Transaction; or
(xi) (a) any Credit Support Provider in relation to the Defaulting Party or the
Defaulting Party itself fails to comply with or perform any agreement or
obligation to be complied with or performed by it in accordance with the
applicable Credit Support Document and such failure is continuing after any
applicable grace period has elapsed; (b) any Credit Support Document relating to
the Defaulting Party expires or ceases to be in full force and effect prior to
the satisfaction of all obligations of the Defaulting Party under the Agreement,
unless otherwise agreed in writing by the Non Defaulting Party; (c) the
Defaulting Party or its Credit Support Provider (or, in either case, any
Custodian acting on its behalf) disaffirms, disclaims or repudiates, in whole or
in part, or challenges the validity of, the Credit Support Document; (d) any
representation or warranty made or deemed made by any Credit Support Provider
pursuant to any Credit Support Document shall prove to have been false or
misleading in any material respect as at the time it was made or given or deemed
made or given and one (1) Business Day has elapsed after the Non Defaulting
Party has given the Defaulting Party written notice thereof; or (e) any event
set out in (ii) to (vi) or (viii) to (x) above occurs in respect of the Credit
Support Provider.
"FX Transaction" means any transaction between the Parties for the purchase by
one Party of an agreed amount in one Currency against the sale by it to the
other of an agreed amount in another Currency both such amounts being
deliverable on the same Value Date, and in respect of which transaction the
Parties have agreed (whether orally, electronically or in writing): the
Currencies involved, the amounts of such Currencies to be purchased and sold,
which Party will purchase which Currency and the Value Date.
"Local Banking Day" means (i) for any Currency, a day on which commercial banks
effect deliveries of that Currency in accordance with the market practice of the
relevant foreign exchange market, and (ii) for any Party, a day in the location
of the applicable Designated Office of such Party on which commercial banks in
that location are not authorized or required by law to close.
"Master Agreement" means the terms and conditions set forth in this master
agreement.
"Matched Pair Novation Netting Office(s)" means in respect of a Party the
Designated Office(s) specified in Part V of the Schedule, as such Schedule may
be modified from time to time by agreement of the Parties.
"Non-Defaulting Party" has the meaning given to it in the definition of Event of
Default.
"Novation Netting Office(s)" means in respect of a Party the Designated
Office(s) specified in Part IV of the Schedule, as such Schedule may be modified
from time to time by agreement of the Parties.
"Parties" means the parties to the Agreement and shall include their successors
and permitted assigns (but without prejudice to the application of Clause (viii)
of the definition of Event of Default); and the term "Party" shall mean
whichever of the Parties is appropriate in the context in which such expression
may be used.
"Proceedings" means any suit, action or other proceedings relating to the
Agreement.
"Settlement Netting Office(s)" means, in respect of a Party, the Designated
Office(s) specified in Part III of the Schedule, as such Schedule may be
modified from time to time by agreement of the Parties.
"Specified Indebtedness" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect of
borrowed money, other than in respect of deposits received.
"Specified Transaction" means any transaction (including an agreement with
respect thereto) between one Party to the Agreement (or any Credit Support
Provider of such Party) and the other Party to the Agreement (or any Credit
Support Provider of such Party) which is a rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity
linked 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) or any combination of any of the forgoing
transactions.
"Split Settlement" has the meaning given to it in the definition of Value Date.
"Threshold Amount" means the amount specified as such for each Party in Part IX
of the Schedule.
"Value Date" means, with respect to any FX Transaction, the Business Day (or
where market practice in the relevant foreign exchange market in relation to the
two Currencies involved provides for delivery of one Currency on one date which
is a Local Banking Day in relation to that Currency but not to the other
Currency and for delivery of the other Currency on the next Local Banking Day in
relation to that other Currency ("Split Settlement") the two Local Banking Days
in accordance with that market practice) agreed by the Parties for delivery of
the Currencies to be purchased and sold pursuant to such FX Transaction, and,
with respect to any Currency Obligation, the Business Day (or, in the case of
Split Settlement, Local Banking Day) upon which the obligation to deliver
Currency pursuant to such Currency Obligation is to be performed.
SECTION 2. FX TRANSACTIONS.
2.1 Scope of the Agreement. (a) Unless otherwise agreed in writing by the
Parties, each FX Transaction entered into between two Designated Offices of the
Parties on or after the Effective Date shall be governed by the Agreement. (b)
All FX Transactions between any two Designated Offices of the Parties
outstanding on the Effective Date which are identified on Part I of the Schedule
shall be FX Transactions governed by the Agreement and every obligation of the
Parties thereunder to deliver a Currency shall be a Currency Obligation under
the Agreement.
2.2 Single Agreement. This Master Agreement, the particular terms agreed between
the Parties in relation to each and every FX Transaction governed by this Master
Agreement (and, insofar as such terms are recorded in a Confirmation, each such
Confirmation), the Schedule to this Master Agreement and all amendments to any
of such items shall together form the agreement between the Parties (the
"Agreement") and shall together constitute a single agreement between the
Parties. The Parties acknowledge that all FX Transactions governed by the
Agreement are entered into in reliance upon the fact
that all items constitute a single agreement between the Parties.
2.3 Confirmations. FX Transactions governed by the Agreement shall be promptly
confirmed by the Parties by Confirmations exchanged by mail, telex, facsimile or
other electronic means. The failure by a Party to issue a Confirmation shall not
prejudice or invalidate the terms of any FX Transaction governed by the
Agreement.
SECTION 3. SETTLEMENT AND NETTING.
3.1 Settlement. Subject to Section 3.2, each Party shall deliver to the other
Party the amount of the Currency to be delivered by it under each Currency
Obligation on the Value Date for such Currency Obligation.
3.2 Net Settlement/Payment Netting. If on any Value Date more than one delivery
of a particular Currency is to be made between a pair of Settlement Netting
Offices, then each Party shall aggregate the amounts of such Currency
deliverable by it and only the difference between these aggregate amounts shall
be delivered by the Party owing the larger aggregate amount to the other Party,
and, if the aggregate amounts are equal, no delivery of the Currency shall be
made.
3.3 Novation Netting.
(a) By Currency. If the Parties enter into an FX Transaction governed by the
Agreement through a pair of Novation Netting Offices giving rise to a Currency
Obligation for the same Value Date and in the same Currency as a then existing
Currency Obligation between the same pair of Novation Netting Offices, then
immediately upon entering into such FX Transaction, each such Currency
Obligation shall automatically and without further action be individually
cancelled and simultaneously replaced by a new Currency Obligation for such
Value Date determined as follows: the amounts of such Currency that would
otherwise have been deliverable by each Party on such Value Date shall be
aggregated and the Party with the larger aggregate amount shall have a new
Currency Obligation to deliver to the other Party the amount of such Currency by
which its aggregate amount exceeds the other Party's aggregate amount, provided
that if the aggregate amounts are equal, no new Currency Obligation shall arise.
This Clause (a) shall not affect any other Currency Obligation of a Party to
deliver any different Currency on the same Value Date.
(b) By Matched Pair. If the Parties enter into an FX Transaction governed by the
Agreement between a pair of Matched Pair Novation Netting Offices then the
provisions of Section 3.3(a) shall apply only in respect of Currency Obligations
arising by virtue of FX Transactions governed by the Agreement entered into
between such pair of Matched Pair Novation Netting Offices and involving the
same pair of Currencies and the same Value Date.
3.4 General.
(a) Inapplicability of Sections 3.2 and 3.3. The provisions of Sections 3.2 and
3.3 shall not apply if a Close Out Date has occurred or an involuntary case or
other proceeding of the kind described in Clause (iii) of the definition of
Event of Default has occurred without being dismissed in relation to either
Party.
(b) Failure to Record. The provisions of Section 3.3 shall apply notwithstanding
that either Party may fail to record the new Currency Obligations in its books.
(c) Cutoff Date and Time. The provisions of Section 3.3 are subject to any
cut-off date and cut-off time agreed between the applicable Novation Netting
Offices and Matched Pair Novation Netting Offices of the Parties.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
4.1 Representations and Warranties. Each Party represents and warrants to the
other Party as of the date of the Agreement and as of the date of each FX
Transaction governed by the Agreement that: (i) it has authority to enter into
the Agreement and such FX Transaction; (ii) the persons executing the Agreement
and entering into such FX Transaction have been duly authorized to do so; (iii)
the Agreement and the Currency Obligations created under the Agreement are
binding upon it and enforceable against it in accordance with their terms
(subject to applicable principles of equity) and do not and will not violate the
terms of any agreements to which such Party is bound; (iv) no Event of Default
has occurred and is continuing with respect to it; and (v) it acts as principal
in entering into each and every FX Transaction governed by the Agreement.
4.2 Covenants. Each Party covenants to the other Party that: (i) it will at all
times obtain and comply with the terms of and do all that is necessary to
maintain in full force and effect all authorizations, approvals, licenses and
consents required to enable it to lawfully perform its obligations under the
Agreement; and (ii) it will promptly notify the other Party of the occurrence of
any Event of Default with respect to itself or any Credit Support Provider in
relation to it.
SECTION 5. CLOSE OUT AND LIQUIDATION.
5.1 Circumstances of Close-Out and Liquidation. If an Event of Default has
occurred and is continuing, then the Non Defaulting Party shall have the right
to close out and liquidate in the manner described below all, but not less than
all, outstanding Currency Obligations (except to the extent that in the good
faith opinion of the Non Defaulting Party certain of such Currency Obligations
may not be closed-out and liquidated under applicable law), by notice to the
Defaulting Party. If "Automatic Termination" is specified as applying to a Party
in Part VI of the Schedule, then, in the case of an Event of Default specified
in Clauses (ii) or (iii) of the definition thereof with respect to such Party,
such close-out and liquidation shall be automatic as to all outstanding Currency
Obligations. Where such close out and liquidation is to be effected, it shall be
effected by:
(i) closing out each outstanding Currency Obligation (including any Currency
Obligation which has not been performed and in respect of which the Value Date
is on or precedes the Close-Out Date) so that each such Currency Obligation is
cancelled and the Non Defaulting Party shall calculate in good faith with
respect to each such cancelled Currency Obligation, the Closing Gain or, as
appropriate, the Closing Loss, as follows: (x) for each Currency Obligation in a
Currency other than the Non-Defaulting Party's Base Currency calculate a
"Close-Out Amount" by converting:
(A)
in the case of a Currency Obligation whose Value Date is the same as or is later
than the Close-Out Date, the amount of such Currency Obligation; or
(B)
in the case of a Currency Obligation whose Value Date precedes the Close-Out
Date, the amount of such Currency Obligation increased, to the extent permitted
by applicable law, by adding interest thereto from the Value Date to the
Close-Out Date at the rate representing the cost (expressed as a percentage rate
per annum) at which the Non- Defaulting Party would have been able, on such
Value Date, to fund the amount of such Currency Obligation for the period from
the Value Date to the Close-Out Date
into such Base Currency at the rate of exchange at which the Non-Defaulting
Party can buy or sell, as appropriate, such Base Currency with or against the
Currency of such Currency Obligation for delivery on the Value Date of that
Currency Obligation, or if such Value Date precedes the Close-Out Date, for
delivery on the Close-Out Date; and
(y) determine in relation to each Value Date: (A) the sum of all Close-Out
Amounts
relating to Currency Obligations under which, and of all Currency Obligations in
the Non-Defaulting Party's Base Currency under which, the Non-Defaulting Party
would otherwise have been obliged to deliver the relevant amount to the
Defaulting Party on that Value Date, adding (to the extent permitted by
applicable law), in the case of a Currency Obligation in the Non-Defaulting
Party's Base Currency whose Value Date precedes the Close-Out Date, interest for
the period from the Value Date to the CloseOut Date at the Non-Defaulting
Party's Base Currency Rate as at such Value Date for such period; and (B) the
sum of all Close-Out Amounts relating to Currency Obligations under which, and
of all Currency Obligations in the Non-Defaulting Party's Base Currency under
which, the Non-Defaulting Party would otherwise have been entitled to receive
the relevant amount on that Value Date, adding (to the extent permitted by
applicable law), in the case of a Currency Obligation in the Non-Defaulting
Party's Base Currency whose Value Date precedes the Close-Out Date, interest for
the period from the Value Date to the Close-Out Date at the Non-Defaulting
Party's Base Currency Rate as at such Value Date for such period;
(z) if the sum determined under (y)(A) is greater than the sum determined under
(y)(B), the difference shall be the Closing Loss for such Value Date; if the sum
determined under (y)(A) is less than the sum determined under (y)(B), the
difference shall be the Closing Gain for such Value Date;
(ii) to the extent permitted by applicable law, adjusting the Closing Gain or
Closing Loss for each Value Date falling after the Close-Out Date to present
value by discounting the Closing Gain or Closing Loss from the Value Date to the
Close Out Date, at the Non Defaulting Party's Base Currency Rate, or at such
other rate as may be prescribed by applicable law;
(iii) aggregating the following amounts so that all such amounts are netted into
a single liquidated amount payable by or to the Non Defaulting Party: (x) the
sum of the Closing Gains for all Value Dates (discounted to present value, where
appropriate, in accordance with the provisions of Clause (ii) of this Section
5.1) (which for the purposes of this aggregation shall be a positive figure) and
(y) the sum of the Closing Losses for all Value Dates (discounted to present
value, where appropriate, in accordance with the provisions of Clause (ii) of
this Section 5.1) (which for the purposes of the aggregation shall be a negative
figure); and
(iv) if the resulting net amount is positive, it shall be payable by the
Defaulting Party to the Non Defaulting Party, and if it is negative, then the
absolute value of such amount shall be payable by the Non Defaulting Party to
the Defaulting Party.
5.2 Calculation of Interest. Any addition of interest or discounting required
under Clause (i) or (ii) of Section 5.1 shall be calculated on the basis of the
actual number of days elapsed and of a year of such number of days as is
customary for transactions involving the relevant Currency in the relevant
foreign exchange market.
5.3 Other FX Transactions. Where close-out and liquidation occurs in accordance
with Section 5.1, the Non Defaulting Party shall also be entitled to close-out
and liquidate, to the extent permitted by applicable law, any other FX
Transactions entered into between the Parties which are then outstanding in
accordance with the provisions of Section 5.1, as if each obligation of a Party
to deliver a Currency thereunder were a Currency Obligation.
5.4 Payment and Late Interest. The amount payable by one Party to the other
Party pursuant to the provisions of Sections 5.1 and 5.3 shall be paid by the
close of business on the Business Day following such close out and liquidation
(converted as required by applicable law into any other Currency, any costs of
such conversion to be borne by, and deducted from any payment to, the Defaulting
Party). To the extent permitted by applicable law, any amounts required to be
paid under Sections 5.1 or 5.3 and not paid on the due date therefor, shall bear
interest at the Non-Defaulting Party's Base Currency Rate plus 1% per annum (or,
if conversion is required by applicable law into some other Currency, either (x)
the average rate at which
overnight deposits in such other Currency are offered by major banks in the
London interbank market as of 11:00 a.m. (London time) plus 1% per annum or (y)
such other rate as may be prescribed by such applicable law) for each day for
which such amount remains unpaid.
5.5 Suspension of Obligations. Without prejudice to the foregoing, so long as a
Party shall be in default in payment or performance to the Non Defaulting Party
under the Agreement and so long as the Non Defaulting Party has not exercised
its rights under Section 5.1, the Non Defaulting Party may, at its election and
without penalty, suspend its obligation to perform under the Agreement.
5.6 Expenses. The Defaulting Party shall reimburse the Non Defaulting Party in
respect of all out of pocket expenses incurred by the Non Defaulting Party
(including fees and disbursements of counsel, including attorneys who may be
employees of the Non Defaulting Party) in connection with any reasonable
collection or other enforcement proceedings related to the payments required
under this Section 5.
5.7 Reasonable Pre-Estimate. The Parties agree that the amounts recoverable
under this Section 5 are a reasonable pre estimate of loss and not a penalty.
Such amounts are payable for the loss of bargain and the loss of protection
against future risks and, except as otherwise provided in the Agreement, neither
Party will be entitled to recover any additional damages as a consequence of
such losses.
5.8 No Limitation of Other Rights; Set-Off. The Non Defaulting Party's rights
under this Section 5 shall be in addition to, and not in limitation or exclusion
of, any other rights which the Non Defaulting Party may have (whether by
agreement, operation of law or otherwise). To the extent not prohibited by
applicable law, the Non Defaulting Party shall have a general right of set off
with respect to all amounts owed by each Party to the other Party, whether due
and payable or not due and payable (provided that any amount not due and payable
at the time of such set-off shall, if appropriate, be discounted to present
value in a commercially reasonable manner by the Non-Defaulting Party). The Non
Defaulting Party's rights under this Section 5.8 are subject to Section 5.7.
SECTION 6. ILLEGALITY, IMPOSSIBILITY AND FORCE MAJEURE.
If either Party is prevented from or hindered or delayed by reason of force
majeure or act of State in the delivery or receipt of any Currency in respect of
a Currency Obligation or if it becomes or, in the good faith judgment of one of
the Parties, may become unlawful or impossible for either Party to deliver or
receive any Currency which is the subject of a Currency Obligation, then either
Party may, by notice to the other Party, require the close-out and liquidation
of each affected Currency Obligation in accordance with the provisions of
Sections 5.1, 5.2 and 5.4 and, for the purposes of enabling the calculations
prescribed by Sections 5.1, 5.2 and 5.4 to be effected, the Party unaffected by
such force majeure, act of State, illegality or impossibility (or if both
Parties are so affected, whichever Party gave the relevant notice) shall effect
the relevant calculations as if it were the Non-Defaulting Party. Nothing in
this Section 6 shall be taken as indicating that the Party treated as the
Defaulting Party for the purposes of calculations required hereby has committed
any breach or default.
SECTION 7. PARTIES TO RELY ON THEIR OWN EXPERTISE.
Each Party shall enter into each FX Transaction governed by the Agreement in
reliance only upon its own judgment. Neither Party holds itself out as advising,
or any of its employees or agents as having the authority to advise, the other
Party as to whether or not it should enter into any such FX Transaction or as to
any subsequent actions relating thereto or on any other commercial matters
concerned with any FX Transaction governed by the Agreement, and neither Party
shall have any responsibility or
liability whatsoever in respect of any advice of this nature given, or views
expressed, by it or any of such persons to the other Party, whether or not such
advice is given or such views are expressed at the request of the other Party.
SECTION 8. MISCELLANEOUS.
8.1 Currency Indemnity. The receipt or recovery by either Party (the "first
Party") of any amount in respect of an obligation of the other Party (the
"second Party") in a Currency other than that in which such amount was due,
whether pursuant to a judgment of any court or pursuant to Section 5 or 6, shall
discharge such obligation only to the extent that on the first day on which the
first Party is open for business immediately following such receipt, the first
Party shall be able, in accordance with normal banking practice, to purchase the
Currency in which such amount was due with the Currency received. If the amount
so purchasable shall be less than the original amount of the Currency in which
such amount was due, the second Party shall, as a separate obligation and
notwithstanding any judgment of any court, indemnify the first Party against any
loss sustained by it. The second Party shall in any event indemnify the first
Party against any costs incurred by it in making any such purchase of Currency.
8.2 Assignments. Neither Party may assign, transfer or charge, or purport to
assign, transfer or charge, its rights or its obligations under the Agreement or
any interest therein without the prior written consent of the other Party, and
any purported assignment, transfer or charge in violation of this Section 8.2
shall be void.
8.3 Telephonic Recording. The Parties agree that each may electronically record
all telephonic conversations between them and that any such tape recordings may
be submitted in evidence in any Proceedings relating to the Agreement. In the
event of any dispute between the Parties as to the terms of an FX Transaction
governed by the Agreement or the Currency Obligations thereby created, the
Parties may use electronic recordings between the persons who entered into such
FX Transaction as the preferred evidence of the terms of such FX Transaction,
notwithstanding the existence of any writing to the contrary.
8.4 No Obligation. Neither Party to this Agreement shall be required to enter
into
any FX Transaction with the other.
8.5 Notices. Unless otherwise agreed, all notices, instructions and other
communications to be given to a Party under the Agreement shall be given to the
address, telex (if confirmed by the appropriate answerback), facsimile
(confirmed if requested) or telephone number and to the individual or department
specified by such Party in Part VII of the Schedule attached hereto. Unless
otherwise specified, any notice, instruction or other communication given in
accordance with this Section 8.5 shall be effective upon receipt.
8.6 Termination. Each of the Parties hereto may terminate this Agreement at any
time by seven days' prior written notice to the other Party delivered as
prescribed above, and termination shall be effective at the end of such seventh
day; provided, however, that any such termination shall not affect any
outstanding Currency Obligations, and the provisions of the Agreement shall
continue to apply until all the obligations of each Party to the other under the
Agreement have been fully performed.
8.7 Severability. In the event any one or more of the provisions contained in
the Agreement should be held invalid, illegal or unenforceable in any respect
under the law of any jurisdiction, the validity, legality and enforceability of
the remaining provisions under the law of such jurisdiction, and the validity,
legality and enforceability of such and any other provisions under the law of
any other jurisdiction, shall not in any way be affected or impaired thereby.
8.8 Waiver. No indulgence or concession granted by a Party and no omission or
delay on the part of a Party in exercising any right, power or privilege under
the Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
8.9 Master Agreement. Where one of the Parties to the Agreement is domiciled
in the
United States, the Parties intend that the Agreement shall be a master
agreement, as
defined in 11 U.S.C. Section 101(53B)(C) and 12 U.S.C. Section 1821
(e)(8)(D)(vii).
8.10 Time of Essence. Time shall be of the essence in the Agreement.
8.11 Headings. Headings in the Agreement are for ease of reference only.
8.12 Wire Transfers. Every payment or delivery of Currency to be made by a Party
under the Agreement shall be made by wire transfer, or its equivalent, of same
day (or immediately available) and freely transferable funds to the bank account
designated by the other Party for such purposes.
8.13 Adequate Assurances. If the Parties have so agreed in Part X of the
Schedule, the failure by a Party ("first Party") to give adequate assurances of
its ability to perform any of its obligations under the Agreement within two (2)
Business Days of a written request to do so when the other Party ("second
Party") has reasonable grounds for insecurity shall be an Event of Default under
the Agreement, in which case during the pendency of a reasonable request by the
second Party to the first Party for adequate assurances of the first Party's
ability to perform its obligations under the Agreement, the second Party may, at
its election and without penalty, suspend its obligations under the Agreement.
8.14 FDICIA Representation. If the Parties have so agreed in Part XI of the
Schedule, each Party represents and warrants to the other Party that it is a
financial institution under the provisions of Title IV of the Federal Deposit
Insurance Corporation Improvement Act of 1991 ("FDICIA"), and the Parties agree
that this Agreement shall be a netting contract, as defined in FDICIA, and each
receipt or payment or delivery obligation under the Agreement shall be a covered
contractual payment entitlement or covered contractual payment obligation,
respectively, as defined in and subject to FDICIA.
8.15 Confirmation Procedures. In relation to Confirmations, unless either Party
objects to the terms contained in any Confirmation within three (3) Business
Days of receipt thereof, or such shorter time as may be appropriate given the
Value Date of the FX Transaction, the terms of such Confirmation shall be deemed
correct and accepted absent manifest error, unless a corrected Confirmation is
sent by a Party within such three Business Days, or shorter period, as
appropriate, in which case the Party receiving such corrected Confirmation shall
have three (3) Business Days, or shorter period, as appropriate, after receipt
thereof to object to the terms contained in such corrected Confirmation. In the
event of any conflict between the terms of a Confirmation and this Master
Agreement, the terms of this Master Agreement shall prevail, and the
Confirmation shall not modify the terms of this Master Agreement.
8.16 Amendments. No amendment, modification or waiver of the Agreement will be
effective unless in writing executed by each of the Parties.
SECTION 9. LAW AND JURISDICTION.
9.1 Governing Law. The Agreement shall be governed by and construed in
accordance
with the laws of the State of New York without giving effect to conflict of laws
provisions.
9.2 Consent to Jurisdiction. With respect to any Proceedings, each Party
irrevocably (i) submits 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, 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 jurisdiction over such Party. Nothing in the
Agreement precludes either party from bringing Proceedings in any other
jurisdiction nor will the bringing of Proceedings in any one or more
jurisdictions preclude the bringing of Proceedings in any other jurisdiction.
9.3 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
courts, (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. Each
Party consents generally in respect of any Proceedings to the giving of any
relief or the issue of any process in connection with such Proceedings,
including, without limitation, the making, enforcement or execution against any
property whatsoever of any order or judgment which may be made or given in such
Proceedings.
9.4 Waiver of Jury Trial. Each Party hereby irrevocably waives any and all
right to
trial by jury in any Proceedings.
IN WITNESS WHEREOF, the Parties have caused the Agreement to be duly executed by
their respective authorized officers as of the date first written above.
XXXXXXXX, INC.
By:\s\ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Chairman
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:_________________________
Name:_______________________
Title:______________________
BofA Subsidiaries and Related Entities
BANK OF AMERICA CANADA
By:_________________________
Name:_______________________
Title:______________________
BANK OF AMERICA, S.A.
By:_________________________
Name:_______________________
Title:______________________
SCHEDULE TO INTERNATIONAL FOREIGN EXCHANGE MASTER AGREEMENT BETWEEN
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA") AND ITS
SUBSIDIARIES AND RELATED ENTITIES AND XXXXXXXX, INC. ("Customer")
DATED DECEMBER 9, 1996
Part I:
Scope of Agreement
The Agreement shall apply to all FX Transactions outstanding between any two
Designated Offices of the Parties on the Effective Date.
This Master Agreement has been signed by multiple parties; namely, BofA and each
of its subsidiaries and related entities identified below and Customer (each a
"Signer"). The Signers have signed one document for administrative convenience
and to avoid a multiplicity of documents. Notwithstanding any other provision of
this Master Agreement, the Signers expressly intend that this document will
function and be construed as if each of BofA and its subsidiaries and related
entities identified below had signed a separate bilateral Master Agreement with
Customer.
Except as may be specifically agreed in writing, each Signer shall be liable
only for its own obligations and no Signer shall be a guarantor of or jointly
liable for the obligations of another Signer.
Part II:
Designated Offices
Each of the following shall be a Designated Office for BofA:
BofA Branches and Offices:
UNITED STATES San Francisco Head Xxxxxx 000 Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 Xxxxxx Xxxxxx UNITED KINGDOM London Branch Bank of America
House 0 Xxxx Xxxxxx Xxxxxx X0 0XX Xxxxxxx XXXXXX XXXXXX Los Angeles Office 300
South Grand 00xx Xxxxx Xxx Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxx Xxxxxx XXXXXX XXXXXX
New York Office 40 East 52nd Street Fifth Floor New York, New York 10022 United
States AUSTRALIA Sydney Branch.135 King Street Bank of America Centre Sydney ,
NSW 2000 Australia AUSTRALIA Xxxxxxxxx Xxxxxx.000 Xxxxxxx Xxxxxx 37th Floor
Rialto Xxxxx xxxxx Xxxxxxxxx , XXX 0000 Xxxxxxxxx XXXXXXXXX Buenos Aires Branch
537 00 xx Xxxx Xxxxxx Xxxxxx Xxxxx, 0000 Xxxxxxxxx BELGIUM Brussels Corporate
Office Avenue Xxxxxx 480 Brussels Belgium FRANCE Paris Branch 00/00 Xxxxxx xx xx
Xxxxx Xxxxxx-00000 Paris, Cedex 16,France GERMANY Frankfurt Branch Xxxxxxxxxxxx
00X.X. Xxx 000000 Xxxxxxxxx Xxxxxxx XXXXXX Athens Branch 00 Xxxxxxxxxxxxx Xxxxxx
X.X. Xxx 000 Xxxxxx Xxxxxx HONG KONG Hong Kong Branch Bank of America Tower,
23rd Floor 00 Xxxxxxxx Xxxx X.X.X. Xxx 000 Xxxx Xxxx XXXXX Bombay Branch Express
Towers, Nariman Point P.O. Box 10080 Bombay 000-000 Xxxxx INDIA Calcutta Branch
8 India Exchange Place P.O. Box 518 Calcutta 000-000 Xxxxx INDIA Madras Branch
748 Xxxx Xxxxx Xxxx X.X. Xxx 000 Xxxxxx 000-000 Xxxxx INDIA New Delhi BranchDCM
Building 00 Xxxxxxxxxx Xxxx X.X. Xxx 000 Xxx Xxxxx 000-000 Xxxxx INDONESIA
Jakarta Branch J1 Medan Merdeka Xxxxxxx Xx. 00X.X. Xxx 0000 Xxxxxxx 00000
Xxxxxxxxx IRELAND Dublin Xxxxxx Xxxxxxx Court St. Stephen's Green Dublin 2
Republic of Ireland ITALY Milan Branch Xxxxx Xxxxxxxxx 00 Xxxxxx 00000 Xxxxx
XXXXX Tokyo Branch ARK Xxxx Xxxxxxxx, 00xx Xxxxx 00-00 Xxxxxxx, 1-chome,
Minato-ku
Tokyo 000 Xxxxx
KOREA Seoul Branch Hyonam Building 1 Changkyo-Dong, Chung-ku X.X.X. Xxx 0000
Xxxxx Xxxxx Xxxxx XXXXXXXXXXX Amsterdam Branch Herengracht 4691017 BS Amsterdam
The Netherlands PAKISTAN Xxxxxxxxx Xxxxxx Xxxx Xxxxxx/0-X/Xxxx Xxxx Xxxxxxxxx
Xxxxxxxx PHILIPPINES Manila Branch BA- Lepanto Building 8747 Paseo de Roxas X.X.
Xxx 000 Xxxxxx, Xxxxx Xxxxxx X-000 Xxxxxxxxxxx SINGAPORE Singapore Branch 00
Xxxxxxx Xxx #00-00X.X. Xxx 000000 Xxxxxxxxx 0207 Singapore SWITZERLAND Zurich
Branch Xxxxxxxxxx xxxxxxx 00 X.X. Xxx 0000XX-0000 Xxxxxx Xxxxxxxxxxx TAIWAN
Taipei Branch 000 Xxx Xxx Xxxxx Xxxx Xxxxxx 000 Xxxxxx XXXXXXXX Bangkok Branch
0/0 Xxxxxxxx Xxxx X.X.X. Xxx 000 Xxxxxxx 00000 Xxxxxxxx
BofA Subsidiaries and Related Entities:
BANK OF AMERICA CANADA Bank of America Canada Montreal Corporate Services 0000
Xxxx Xxxxxxxx/0000 Xxxxxxxx Xxxxxx BANK OF AMERICA CANADA Bank of America
Canada, Calgary 000 0xx Xxxxxx XX/0000 Xxxxxxx Xxxxxx BANK OF AMERICA CANADA
Bank of America Canada, Head Office Simcoe Place 000 Xxxxx
Xxxxxx Xxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxx, Xxxxxx X0X0X0
BANK OF AMERICA CANADA Bank of America Canada, Vancouver Corporate Services
Xxxxxx 0000 Xxxxxxxx Xxxxxx #000 X.X. Xxx 00000 Xxxxxxxxx Xxxxxx BANK OF AMERICA
CANADA Foreign Currency Services Simcoe Place 000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X0X0 BANK OF AMERICA CANADA Foreign Currency Services
- New York- Corporate and Institutional Sales 000 Xxxxxxx Xxxxxx/Xxxxxxxxx Xxx
Xxxx, Xxx Xxxx 00000 Xxxxxx Xxxxxx BANK OF AMERICA, X.X.Xxxx of America
S.A.-Madrid Branch Xxxxx Xxx Xxxxxxx Xxxx 0 Xxxxxx Xxxxx
Customer Offices:
Xxxxxxxx, Inc.
0000 Xxxxx Xxxxxx--Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Part III:
Settlement Netting Offices
Net settlement provisions of Section 3.2 shall apply to the following Settlement
Netting Offices:
None
Part IV:
Novation Netting Offices
Netting by novation provisions of Section 3.3(a) shall apply to the following
Novation Netting Offices and shall apply to all FX Transactions:
None
Part V:
Matched Pair Novation Netting Offices
Matched pair netting by novation provisions of Section 3.3(b) shall apply to the
following Matched Pair Novation Netting Offices and shall apply to all FX
Transactions:
None
Part VI:
Automatic Termination
The "Automatic Termination" provision in Section 5.1 shall not apply to BofA and
its subsidiaries and related entities and Customer.
Part VII:
Notices
For BofA and its subsidiaries and related entities:
Bank of America National Trust and Savings Association
0000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
Telex and Answerback: 6734148 BASFX
Facsimile Number: (000) 000-0000
Telephone Number: (000) 000-0000
SWIFT: XXXXXX0X
Attention: Foreign Exchange Operations #5554
For Customer:
Name:
Xxxxxxxx, Inc.
Address:
0000 Xxxxx Xxxxxx--Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Telex and Answerback:
Facsimile Number: (000) 000-0000
Telephone Number: (000) 000-0000 or (000) 000-0000
SWIFT ID Number:
Attention: Mr. Xxxx Xxxxxx, Chief Financial Officer
Part VIII:
Base Currency
For BofA and its subsidiaries and related entities: United States Dollars
For Customer: United States Dollars
Part IX:
Threshold Amount
Shareholders' Equity means with respect to an entity, at any time, the sum (as
shown in the most recent annual audited financial statements of such entity) of
(i) its capital stock (including preferred stock) outstanding, taken at par
value, (ii) its capital surplus and (iii) its retained earnings, minus (iv)
treasury stock, each to be determined in accordance with generally accepted
accounting principles.
Threshold Amount means (i) with respect to the Customer, two percent (2%) of its
Shareholders' Equity and, (ii) with respect to BofA and its subsidiaries and
related entities, two percent (2%) of the Shareholders Equity of BankAmerica
Corporation.
Part X:
Adequate Assurances. The provisions of Section 8.13 shall apply to the
Agreement.
Part XI:
FDICIA Representation. The provisions of Section 8.14 shall apply to the
Agreement with respect to BofA.
Part XII:
Cash Before Delivery.
The Parties hereby agree to delete Section 3.1 of the Agreement and replace such
section with the following section: "3.1 Settlement. Settlement of all FX
Transactions between Customer and BofA will be on a cash before delivery basis.
For each FX Transaction, Customer shall pay Customer's settlement payment to
BofA at least one (1) business day before the value date of such FX Transaction.
Payment shall be in the form of immediately available funds. If Customer has an
account with BofA, Customer hereby authorizes BofA to debit such account for the
amount of Customer's settlement payment on or after the date one (1) business
day before the value date. In the event Customer's settlement payment is not in
U.S. Dollars and Customer pays such payment to a foreign correspondent bank of
BofA ("Correspondent Bank"), it shall be Customer's responsibility to ensure
that at least one (1) business day before the value date such Correspondent Bank
notifies BofA of its receipt from Customer of Customer's settlement payment.
Provided that no Event of Default has occurred with respect to Customer and BofA
has received Customer's settlement payment (or a Correspondent Bank has received
such settlement payment and has notified BofA of such receipt), then on the
value date BofA shall pay BofA's settlement payment to Customer. Customer's
failure (I) to pay Customer's settlement payment to BofA at least one (1)
business day before the value date, (ii) in the case where Customer has an
account with BofA and BofA debits such account for the amount of Customer's
settlement payment, to have sufficient collected funds in such account to
satisfy the debit, or (iii) to ensure that any Correspondent Bank properly
notifies BofA of its receipt from Customer of Customer's settlement payment,
shall permit BofA to suspend its obligation to delivery BofA's settlement
payment to Customer and shall constitute an Event of Default under the
Agreement.
The Parties hereby agree to amend the first sentence of the definition of Event
of Default in Section 1 so that it reads as follows: "Event of Default means the
occurrence of any of the following with respect to a Party (the "Defaulting
Party", the other Party being the "Non-Defaulting Party") or the occurrence of
(i), (ii), or (iii) of Section 3.1 of the Agreement, as amended above.
Part XIII:
Credit Support Provider.
Credit Support Provider means in relation to Party A:
Xxxxxxxx Store I, Inc.
Xxxxxxxx Store II, Inc.
Xxxxxxxx International, Inc.
Xxxxxxxx U.K., Ltd.
Credit Support Provider means in relation to Party B:
Not Applicable
Part XIX:
Credit Support Documents.
Party A agrees that the security interest in collateral granted to Party B under
the Credit Support Documents shall secure the obligations of Party A under this
Agreement. Credit Support Documents include, but are not limited to, the
following documents:
(i) Security Agreement (Receivables, Inventory and Equipment) dated as of
October
27, 1995, made by Xxxxxxxx, Inc. in favor of Bank of America National Trust and
Savings Association.
(ii) Security Agreement (Receivables, Inventory and Equipment) dated as of
March 18,
1996, made by Xxxxxxxx Store I, Inc. in favor of Bank of America National
Trust and
Savings Association.
(iii) Security Agreement (Receivables, Inventory and Equipment) dated as of
March 18,
1996, made by Xxxxxxxx Store II, Inc. in favor of Bank of America National
Trust and
Savings Association.
(iv) Each other document securing the Business Loan Agreement dated as of
___________, among Bank of America National Trust and Savings Association,
Xxxxxxxx, Inc., Xxxxxxxx Store I, Inc., Xxxxxxxx Store II, Inc., Xxxxxxxx
International, Inc., and Xxxxxxxx U.K., Ltd.
(x) Each amendment, supplement, modification, renewal, replacement,
consolidation, substitution and extension to the foregoing.
Part XX:
Authorized Persons; Miscellaneous.
The persons named below are authorized to enter into FX Transactions on behalf
of Customer:
Name Title
Xxxxxx X. Xxxxxxx Chairman
Xxxxxxx X. Xxxxxxx President and Chief Executive Officer
Xxxx Xxxxxx Chief Financial Officer
In addition to being authorized to enter into oral or written FX Transactions,
the persons named above are also authorized on behalf of Customer to amend,
renew or extend such FX Transactions, deposit margin and other collateral with
BofA as security for such FX Transactions, and enter into other agreements which
relate to such FX Transactions, including but not limited to master agreements,
margin agreements, netting agreements and security agreements. Customer has
authorized each of these persons to determine the character, amount, timing and
purpose of FX Transactions.
The persons named below are authorized to execute confirmations of FX
Transactions on behalf of Customer:
Name Title Signature
Xxxxxx X. Xxxxxxx Chairman /s/Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx President and Chief /s/Xxxxxxx X. Xxxxxx
Executive Officer
Xxxx Xxxxxx Chief Financial Officer /a/Xxxx Xxxxxx
Customer will notify BofA in writing of any changes to the above lists;
provided, however, that in the absence of written notice BofA may assume that
persons who BofA reasonably believes hold the titles shown above or who BofA
reasonably believes replace or succeed to the positions held by persons named
above are authorized to act on behalf of Customer.
Customer will deliver to BofA as soon as they are available copies of Customer's
audited annual financial statements and unaudited quarterly financial
statements. Upon BofA's oral or written request from time to time, Customer will
deliver promptly to BofA such other information relating to the business and
financial condition of Customer as BofA may reasonably request.
Customer represents and warrants to BofA as of the date hereof and as of the
date of each FX Transaction that Customer's total assets exceed $10,000,000.
EXHIBIT 10(r)(3)
