EXHIBIT 10.2
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Date: April 21, 2005
To: XXXXXX EXPRESS CORPORATION Attn: Xxxxxx Xxxxxxx Phone 000-000-0000 Fax:
000-000-0000
From: Citibank N.A., New York
Confirmations Unit
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000, XXX
Phone:
0-000-000-0000
Fax:
0-000-000-0000
Our ref:
M052165
Your ref:
TRANSACTION
The purpose of this letter agreement (this 'Confirmation') is to set forth the
terms and conditions of the Transaction entered into between XXXXXX EXPRESS
CORPORATION ('Counterparty') and Citibank N.A., New York ('Citibank') on the
Trade Date specified below (the 'Transaction').
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
'Definitions') (as published by the International Swaps and Derivatives
Association, Inc.) are incorporated into this Confirmation. References herein to
a 'Transaction' shall be deemed to be references to a 'Swap Transaction' for the
purposes of the Definitions.
This Confirmation evidences a complete and binding agreement between you and us
as to the terms of the Transaction to which this Confirmation relates. In
addition, you and we agree to use all reasonable efforts promptly to negotiate,
execute and deliver an agreement in the form of an ISDA Master Agreement, with
such modifications as you and we will in good faith agree. Upon the execution by
you and us of such an agreement, this Confirmation will supplement, form part
of, and be subject to that agreement. All provisions contained in, or
incorporated by reference in, that agreement upon its execution will govern this
Confirmation except as expressly modified below. Until we execute and deliver
that agreement, this Confirmation, together with all other documents referring
to an ISDA Master Agreement (each a 'Confirmation') confirming transactions
(each a 'Transaction') entered into between us (notwithstanding anything to the
contrary in a Confirmation), shall supplement, form a part of, and be subject
to, a single agreement (the Agreement) in the pre-printed form of the 1992 ISDA
Master Agreement (Multicurrency Cross Border) (the ISDA Form) as if, on the
Trade Date of the first such Transaction between us, we had executed a single
agreement in such form (but without any Schedule except for the election of the
laws of the State of New York as the governing law, USD as the Termination
Currency, Credit Event Upon Merger, Second Method and Market Quotation as
applying and basic Set-Off provision contained in Section V A. of the User's
Guide to the 1992 ISDA Master Agreements 1993 Edition published by ISDA being
incorporated by reference). The Agreement shall contain such other modifications
(including additional elections) to the
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ISDA Form (each, an Agreement Modification) as may be agreed by the parties from
time to time. Any Agreement Modification may be set forth in any Confirmation
(whether or not it would form part of the Schedule to the ISDA Master Agreement
and notwithstanding the termination or expiry of the Transaction(s) detailed in
any such Confirmation). To the extent of any inconsistency between the
provisions of the ISDA Form and this Confirmation, this Confirmation will
prevail for the purposes of this Transaction. To the extent of any inconsistency
between any Agreement Modification and a prior Agreement Modification, the terms
of the Agreement Modification set forth in the most recent Confirmation shall
govern.
THIS CONFIRMATION WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE,
PROVIDED THAT THIS PROVISION WILL BE SUPERSEDED BY ANY CHOICE OF LAW PROVISION
IN THE MASTER AGREEMENT.
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE
ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM
WITH RESPECT TO THESE COURTS
U.S. Federal law requires Citibank to obtain, verify and record customer
identification information.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Trade Date: April 20, 2005
Effective Date: April 22, 2005
Termination Date: April 23, 2007, subject to adjustment in
accordance with the Modified Following Business
Day Convention
FIXED AMOUNTS
Fixed Rate Payer: Counterparty
Notional Amount: With respect to each Calculation Period,
the amount set forth in EXHIBIT I attached
hereto opposite such Calculation Period under
the heading 'Notional Amount'
Fixed Rate Payer Payment Dates:
The 22nd calendar day of each month commencing May 22, 2005 through and
including the Termination Date
Fixed Rate: 3.83800 percent
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Fixed Rate Day Count Fraction:
Business Days:
Business Day Convention:
FLOATING AMOUNTS
Floating Rate Payer:
Notional Amount:
Floating Rate Payer Payment Dates:
Floating Rate Option:
Designated Maturity:
Spread:
Floating Rate Day Count Fraction:
Reset Dates: Compounding:
Business Days: Actual/360
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New York, London
Modified Following
Citibank
With respect to each Calculation Period, the amount set forth in EXHIBIT I
attached hereto opposite such Calculation Period under the heading 'Notional
Amount'
The 22nd calendar day of each month commencing May 22, 2005, through and
including the Termination Date
USD-LIBOR-BBA
One month
None
Actual/360
The first day of each Floating Rate Payer Calculation Period
Inapplicable
New York, London
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Business Day Convention: Modified Following
Calculation Agent: As per Master Agreement.
3. Representations:
Each party represents to the other party that:
(a) Non-Reliance. It is acting for its own account, and it has made its own
independent decisions to enter into this Transaction and as to whether this
Transaction is appropriate or proper for it based upon its own judgment and upon
advice from such advisors as it has deemed necessary. It is not relying on any
communication (written or oral) of the other party as investment advice or as a
recommendation to enter into this Transaction; it being understood that
information and explanations related to the terms and conditions of this
Transaction shall not be considered investment advice or a recommendation to
enter into this Transaction. It has not received from the other party any
assurance or guarantee as to the expected results of this Transaction.
(b) Evaluation and Understanding. It is capable of evaluating and understanding
(on its own behalf or through independent professional advice), and understands
and accepts, the terms, conditions and risks of this Transaction. It is also
capable of assuming, and assumes, the financial and other risks of this
Transaction.
(c) Status of Parties. The other party is not acting as a fiduciary or an
advisor for it in respect of this Transaction.
(d) Risk Management. It has entered into this Transaction for the purpose of (i)
managing its borrowings or investments, (ii) hedging its underlying assets or
liabilities or (iii) in connection with its line of business.
4. Account Details
Payments to Citibank
in USD: CITIBANK N.A. NEW YORK
BIC:
ACCOUNT NO
ACCOUNT NAME: FINANCIAL FUTURES
Payments to Counterparty: Please provide to expedite payment
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If you have any questions regarding this letter agreement, please contact the
Swap Operations Department at the telephone numbers or the facsimile numbers
indicated on this Confirmation.
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
Very truly yours,
Citibank N.A., New York
SIGNATURE_MARK
By:______________________
Accepted and confirmed as
of the Trade Date:
XXXXXX EXPRESS CORPORATION
By: ____________________
Authorized Signatory
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EXHIBIT I-AMORTIZATION SCHEDULE Our Reference: M052165
Calculation Period* USD
From and including To but excluding Notional Amount
22 Apr 2005 23 May 2005 70,000,000.00
23 May 2005 22 Jun 2005 70,000,000.00
22 Jun 2005 22 Jul 2005 70,000,000.00
22 Jul 2005 22 Aug 2005 70,000,000.00
22 Aug 2005 22 Sep 2005 70,000,000.00
22 Sep 2005 24 Oct 2005 70,000,000.00
24 Oct 2005 22 Nov 2005 60,000,000.00
22 Nov 2005 22 Dec 2005 60,000,000.00
22 Dec 2005 23 Jan 2006 60,000,000.00
23 Jan 2006 22 Feb 2006 60,000,000.00
22 Feb 2006 22 Mar 2006 60,000,000.00
22 Mar 2006 24 Apr 2006 60,000,000.00
24 Apr 2006 22 May 2006 50,000,000.00
22 May 2006 22 Jun 2006 50,000,000.00
22 Jun 2006 24 Jul 2006 50,000,000.00
24 Jul 2006 22 Aug 2006 50,000,000.00
22 Aug 2006 22 Sep 2006 50,000,000.00
22 Sep 2006 23 Oct 2006 50,000,000.00
23 Oct 2006 22 Nov 2006 40,000,000.00
22 Nov 2006 22 Dec 2006 40,000,000.00
22 Dec 2006 22 Jan 2007 40,000,000.00
22 Jan 2007 22 Feb 2007 40,000,000.00
22 Feb 2007 22 Mar 2007 40,000,000.00
22 Mar 2007 23 Apr 2007 40,000,000.00
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