EXHIBIT (b)
SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF JANUARY 14, 2002
BETWEEN
X.X. XXXX, LLC
A LIMITED LIABILITY COMPANY
ORGANIZED OR FORMED UNDER THE LAWS OF THE STATE OF ARKANSAS
("PARTY A")
AND
BANK ONE, NA,
A NATIONAL BANKING ASSOCIATION WITH ITS MAIN OFFICE LOCATED IN CHICAGO, ILLINOIS
("PARTY B")
PART 1. TERMINATION PROVISIONS AND CERTAIN OTHER MATTERS
In this Agreement:
(a) "SPECIFIED ENTITY" will apply to Party A and will mean, for
purposes of Sections 5(a)(v), 5(a)(vi), 5(a)(vii) and 5(b)(ii)
of this Agreement, any Affiliate of Party A and will not apply to
Party B.
(b) "SPECIFIED TRANSACTION" includes (solely with Party A as a potential
Defaulting Party) with respect to Party A, in addition to the
transactions specified in Section 12 of this Agreement, any
transaction between Party A (or any Affiliate of Party A), on the one
hand, and Party B (or any Affiliate of Party B), on the other, and
with respect to Party B shall have the meaning specified in
Section 12 of this Agreement.
(c) The "CROSS DEFAULT" provisions of Section 5(a)(vi) of this Agreement
will not apply to Party B and will apply to Party A and, with respect
thereto, "SPECIFIED INDEBTEDNESS" will have the meaning specified in
Section 12 of this Agreement and "THRESHOLD AMOUNT" will mean $0 (or
its equivalent in another currency).
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(ii) will
apply to Party A and will not apply to Party B.
(e) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not
apply to Party A or Party B.
(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e),
"LOSS" and the "SECOND METHOD" will apply.
(g) ADDITIONAL TERMINATION EVENT. It shall be an Additional Termination
Event hereunder with respect to Party A, as the Affected Party, if at
any time, a default occurs (however described) under the Loan
Agreement (hereinafter defined).
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PART 2. AGREEMENT TO DELIVER DOCUMENTS
Documents to be delivered by party A:
(a) upon execution of this Agreement:
(i) a duly completed and executed Internal Revenue Service Form W-9
(revised December 2000);
(ii) evidence reasonably satisfactory to Party B of Party A's authority
to execute, deliver and perform under this Agreement;
(iii) evidence reasonably satisfactory to Party B of the authority and
genuine signature of the individual(s) executing this Agreement on
behalf of Party A; and
(iv) upon demand by Party B, an opinion of counsel in relation to the
representations made by Party A under Section 3(a), in form and
substance reasonably satisfactory to Party B.
(b) within thirty days after demand by Party B:
(i) evidence reasonably satisfactory to Party B of the authority and
genuine signature of the individual(s) executing any Confirmations
entered into from time to time hereunder on behalf of Party A; and
(ii) copies of audited, publicly available financial statements or call
reports (1) of Party A or, as appropriate, (2) in which Party A's
financial position is consolidated and reported together with that
of certain of its Affiliates.
PART E. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 10(a) of this Agreement:
ADDRESS FOR NOTICES OR COMMUNICATIONS TO PARTY A:
000 X. Xxxxxxx 00
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx May
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
ADDRESS FOR NOTICES OR COMMUNICATIONS TO PARTY B:
Address for notices relating to confirmations, floating interest rate
resets, payment calculations and payment instructions to Party B:
Bank One, NA
1 Bank Xxx Xxxxx -- Xxxxx XX0-0000
Xxxxxxx, XX 00000
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For confirmations:
Attn: CMS Department Manager
Fax: (000) 000-0000
For floating interest rate resets, payment calculations
and payment instructions:
Attn: CMS Department Manager
Fax: (000) 000-0000
Address for all other notices or communications to Party B:
Bank One, NA
1 Bank Xxx Xxxxx - Xxxxx XX0-0000
Xxxxxxx, XX 00000
Attn: Capital Markets Credit or Credit Trading Products
Fax: (000) 000-0000
(b) CALCULATION AGENT. The Calculation Agent is Party B, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(c) CREDIT SUPPORT DOCUMENT. With respect to Party A, means the "RELATED
DOCUMENTS" as defined in the Loan Agreement, and any other document
which by its terms secures, guarantees or otherwise supports the full
and timely performance of Party A's obligations under this Agreement
from time to time, and with respect to Party B, does not apply.
Party A represents to Party B at all times hereunder that its
obligations under this Agreement remain secured under the Credit
Support Document(s).
(d) CREDIT SUPPORT PROVIDER. With respect to Party A, means each party to
any Credit Support Document of Party A other than (i) Party A or Party
B, (ii) any Affiliate of Party B, or (iii) any other secured party
under any such Credit Support Document, and with respect to Party B,
does not apply.
(e) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference
to choice of law doctrine).
(f) WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING IN CONNECTION WITH THIS
AGREEMENT OR ANY TRANSACTION.
(g) NETTING OF PAYMENTS. Section 2(c)(ii) shall apply; provided that
either party may cause payments due on the same day in the same
currency (between the same Offices) but under different Transactions
to be discharged and replaced with a single, netted payment obligation
by providing the other party with a written statement detailing the
calculation of such net amount payable not later than two Business
Days prior to the relevant due date.
(h) "AFFILIATE" means, with respect to each party, any entity that,
directly or indirectly, controls, is controlled by, or is under common
control with such party. For this purpose, a person shall be deemed to
"control" any entity if such person, directly or indirectly or acting
through one or more other persons, (a) owns, controls or has the power
to vote 50% or more of any class of voting securities of such entity,
(b) is a general partner of such entity, (c) controls in any manner
the election of a majority of the directors, trustees or other similar
officials of such entity, or (d) otherwise exercises a controlling
influence over the management or policies of such entity.
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PART 4. OTHER PROVISIONS
(a) ADDITIONAL REPRESENTATIONS. In addition to the representations made in
Section 3 of the Agreement, each party hereby represents and warrants
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) as
follows:
(i) It qualifies as an "eligible contract participant" under the
Commodity Exchange Act;
(ii) It is not relying (for purposes of making any investment
decision or otherwise) upon any advice, counsel or
representations (whether written or oral) of the other party
to this Agreement, other than the representations expressly
set forth in this Agreement, each Credit Support Document and
in any Confirmation;
(iii) It has consulted with its own legal, regulatory, tax,
business, investment, financial and accounting advisors to the
extent it has deemed necessary, and has made its own
investment, hedging and trading decisions (including decisions
regarding the suitability of any Transaction pursuant to this
Agreement) based upon its own judgment and upon any advice
from such advisors as it has deemed necessary and not upon any
view expressed by the other party to this Agreement;
(iv) It has a full understanding of all the terms, conditions and
risks (economic and otherwise) of this Agreement, each Credit
Support Document and each Transaction, and is capable of
assuming and willing to assume (financially and otherwise)
such risks;
(v) It is entering into this Agreement, each Credit Support
Document and each Transaction for the purposes of managing its
borrowings or investments, hedging its underlying assets or
liabilities or in connection with a line of business, and not
for purposes of speculation; and
(vi) It is entering into this Agreement and will enter into all
Transactions as principal and in connection with its business
or the management of its business, and not as agent or in any
other capacity, fiduciary or otherwise.
(b) SET-OFF.
(i) Any amount (the "Early Termination Amount") payable to one
party (the "Payee") by the other party (the "Payer") under
Section 6(e), in circumstances where there is a Defaulting
Party or one Affected Party in the case where a Termination
Event under Section 5(b)(ii) has occurred, will, at the option
of the party ("X") other than the Defaulting Party or the
Affected Party (and without prior notice to the Defaulting
Party or the Affected Party), 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 the Payee to the Payer or any of the
Payer's Affiliates (irrespective of the currency, place of
payment or booking office of the obligation, the "Other
Payee") under any other agreement(s) between the Payee and the
Other Payee or instrument(s) or undertaking(s) issued or
executed by one such entity to, or in favor of, the other (and
the Other Agreement Amount will be discharged promptly and in
all respects to the extent it is so set-off). X will give
notice to the other party of any set-off effected under this
Part 4(b).
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(ii) If an obligation is unascertained, X may in good faith
estimate that obligation and set-off in respect of an
estimate, subject to the relevant party accounting to the
other when the obligation is ascertained.
(iii) Nothing in this Part 4 (b) shall be effective to create a
security interest. This Part 4 (b) shall be without prejudice
and in addition to any right of set-off, combination of
accounts, lien or other right to which any party is at any
time otherwise entitled (whether by operation of law, contract
or otherwise).
(iv) If the Payer is a Non-defaulting Party and the Payee is a
Defaulting Party, then it shall be a condition precedent to
the Payer's obligation to pay the Early Termination Amount to
the Payee that all Other Agreement Amounts have been paid in
full or satisfied by offset as set forth above.
(c) RECORDED CONVERSATIONS. Each party may electronically record any and
all telephone conversations between itself and the other party in
connection with this Agreement (including any Transaction) and agrees
that any such recordings may be submitted in evidence to any court or
in any proceeding for the purpose of establishing any matters pertinent
thereto.
(d) INCORPORATION. Each Transaction entered into under this Agreement will
be subject to, and governed by the provisions of, the 2000 ISDA
Definitions and the Annex to the 2000 ISDA Definitions (collectively,
the "Definitions"), each published by the International Swaps and
Derivatives Association, Inc., without regard to any amendments to the
Definitions subsequent to the date hereof.
(e) INCONSISTENCY. In the event of any inconsistency between the provisions
of this Schedule and the Definitions, this Schedule shall prevail. In
the event of any inconsistency between the provisions of a Confirmation
and the Definitions, the Confirmation shall prevail for purposes of the
Transaction evidenced thereby.
(f) LOAN AGREEMENT. Until all of Party A's obligations (whether absolute or
contingent) under this Agreement have been satisfied in full, Party A
will at all times perform, comply with and observe all covenants and
agreements of the Loan Agreement applicable to it, which covenants and
agreements, together with related definitions and ancillary provisions,
and hereby incorporated by reference (mutatis mutandis) and, for the
avoidance of doubt, shall be construed to apply hereunder for the
benefit of Party B as though (i) all references therein to the party or
parties making loans, extensions of credit or financial accommodations
thereunder or commitments therefor ("Financings") were to Party B and
(ii) to the extent that such covenants and agreements are conditioned
on or relate to the existence of such Financings or Party A having any
obligations arising out of or in connection therewith, all references
to such Financings or obligations were to Party A's obligations under
this Agreement.
"Loan Agreement" means that certain Business Loan Agreement dated as of
January 16, 2001, by and among Party A and Party B, as the same may be
amended form time to time in accordance with its terms, but without
regard to any termination or cancellation thereof, whether by reason of
payment of all indebtedness incurred thereunder or otherwise, and any
waiver or consent given thereunder with respect to the provisions
thereof shall be deemed to be a waiver or consent given with respect to
such provisions as such provisions have been incorporated herein by
reference.
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(g) ACH AUTHORIZATION. Party A hereby authorizes Party B to initiate debit and
credit entries via ACH to/from the account specified in the Confirmation
for each Transaction. This authorization shall remain in full force and
effect until Party B has received written notification from Party A of
its termination in such time and in such manner as to afford Party B and
Party A's depository financial institution a reasonable opportunity to act
on it.
(h) PAYEE TAX REPRESENTATION. The following representation will apply to
Party A and will apply to Party B:
It is a US person for US federal income tax purposes.
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized officers as of the date hereof.
X.X. XXXX, LLC BANK ONE, NA
(Main Office, Chicago)
By: /s/ X.X. XXXX By: /s/ XXXX X. XXXXXX
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Name: X.X. Xxxx Name: Xxxx X. Xxxxxx
Title: Managing Member Title: First Vice President
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