EXHIBIT 99.2
(XX XXXXXX LOGO)
JPMorgan Chase Bank, National Association
X.X. Xxx 000
60 Victoria Embankment
Xxxxxx XX0X 0XX
England
July 29, 2005
To: CSK AUTO, INC.
000 X. Xxxxxxxx Xxx., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Re: Call Option Transaction
The purpose of this letter agreement is to confirm the terms and
conditions of the Transaction entered into among JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, LONDON BRANCH ("JPMORGAN"), CSK AUTO, INC., an Arizona corporation
(the "COUNTERPARTY"), and CSK AUTO CORPORATION, a Delaware corporation and a
parent company of the Counterparty (the "PARENT") on the Trade Date specified
below (the "TRANSACTION"). This letter agreement constitutes a "Confirmation" as
referred to in the ISDA Master Agreement specified below. This Confirmation
shall replace any previous letter and serve as the final documentation for this
Transaction.
The definitions and provisions contained in the 1996 ISDA Equity
Derivatives Definitions (the "EQUITY DEFINITIONS"), as published by the
International Swaps and Derivatives Association, Inc., are incorporated into
this Confirmation. In the event of any inconsistency between the Equity
Definitions and this Confirmation, this Confirmation shall govern. Certain
defined terms used herein have the meanings assigned to them in the Offering
Memorandum dated July 25, 2005 (the "OFFERING MEMORANDUM") relating to the USD
110 million principal amount of 3 3/8% Senior Exchangeable Notes due August 15,
2025, (the "EXCHANGEABLE NOTES" and each USD 1,000 principal amount of
Exchangeable Notes, an "EXCHANGEABLE NOTE") issued by the Counterparty pursuant
to an Indenture dated July 29, 2005 between Counterparty and The Bank of New
York, as trustee (the "INDENTURE"), and guaranteed by the guarantors named
therein. In the event of any inconsistency between the terms defined in the
Offering Memorandum and this Confirmation, the Confirmation shall govern.
Each party is hereby advised, and each such party acknowledges, that
the other party has engaged in, or refrained from engaging in, substantial
financial transactions and has taken other material actions in reliance upon the
parties' entry into the Transaction to which this Confirmation relates on the
terms and conditions set forth below.
1. This Confirmation evidences a complete and binding agreement between
JPMorgan, the Counterparty and the Parent as to the terms of the Transaction to
which this Confirmation relates. This Confirmation shall supplement, form a part
of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement
(the "AGREEMENT") as if JPMorgan and the Counterparty had executed an agreement
in such form (but without any Schedule except for (i) the election of the laws
of the State of New York as the governing law, (ii) with respect to the
Counterparty, the inclusion of Exchangeable Notes as the only "Specified
Transaction" and (iii) the election of United States dollars as the Termination
Currency) on the Trade Date. In the event of any inconsistency between
provisions of that Agreement and this Confirmation, this Confirmation will
prevail for the purpose of the Transaction to which this Confirmation relates.
The
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
(XX XXXXXX LOGO)
parties hereby agree that no Transaction other than the Transaction to which
this Confirmation relates shall be governed by the Agreement.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
General Terms:
Trade Date: July 29, 2005
Option Style: "Modified American", as set forth under "Exercise and Valuation" below
Option Type: Call
Buyer: Counterparty
Seller: JPMorgan
Shares: The common stock of the Parent, par value USD 0.01 per Share
(Exchange symbol "CAO")
Number of Options: 110,000. For the avoidance of doubt, the Number of Options
shall be reduced by any Options exercised by Counterparty.
In no event will the Number of Options be less than zero.
Option Entitlement: As of any date, a number equal to the Exchange
Rate as of such date (as defined in the Indenture, but
without regard to any adjustments to the Exchange Rate
pursuant to Section 14.01(e) or to Section 14.05(g) of the
Indenture), for each Exchangeable Note.
Strike Price: USD 23.09
Premium: USD 24,040,000
Premium Payment Date: July 29, 2005
Exchange: The New York Stock Exchange
Related Exchange(s): The principal exchange(s) for options contracts or futures contracts,
if any, with respect to the Shares
Exercise and Valuation:
Exercise Period: Notwithstanding the Equity Definitions, the Exercise Period
with respect to Exchangeable Notes surrendered to the
Counterparty for exchange shall be, in respect of the
Exercise Options (as defined below), each period commencing
from the date a notice of exchange is submitted to the
Counterparty by a holder of Exchangeable Notes to and
including the Exchange Business Day
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
HEAD XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
0
(XX XXXXXX LOGO)
immediately following the receipt of such notice; provided
that if by July 10, 2010 the Counterparty has specified
August 15, 2010 as a redemption date for the Exchangeable
Notes pursuant to the terms of the Indenture, the final day
of the Exercise Period with respect to any Exchangeable
Notes surrendered for exchange following Counterparty's
notice of such redemption shall be on or prior to the third
Exchange Business Day immediately preceding the redemption
date; provided further that if Counterparty has not
specified August 15, 2010 as a redemption date for the
Exchangeable Notes pursuant to the terms of the Indenture,
notices of exchange received by Counterparty from holders of
Exchangeable Notes following the date that is twenty-two
(22) Exchange Business Days prior to August 15, 2010 shall
not result in the commencement of an Exercise Period and no
Exercise Options will be exercised or deemed exercised in
respect of such notices of exchange of Exchangeable Notes.
Exercise Options: In respect of any Exercise Period, a number of Options, as
specified in Counterparty's Notice of Exercise, no greater
than the lesser of (i) the Number of Options and (ii) the
number of Exchangeable Notes surrendered to Counterparty for
exchange.
Expiration Time: The Valuation Time
Expiration Date: Subject to the second proviso in the definition of Exercise
Period above, in respect of any Exercise Options, the
earlier of August 15, 2010 and the final day of the Exercise
Period in respect of such Exercise Options.
Multiple Exercise: Applicable, as described under Exercise Options above.
Automatic Exercise: Applicable; and means that, in respect of an Exercise
Period, a number of Options not previously exercised
hereunder equal to the Exercise Options shall be deemed to
be exercised on the Expiration Date for the Exercise Period
relating to such Exercise Options; provided that such
Options shall be deemed to be exercised only to the extent,
that Counterparty has provided a Notice of Exercise to
JPMorgan.
Notice of Exercise: Notwithstanding anything to the contrary in the Equity
Definitions, in order to exercise any Options, Counterparty
must notify JPMorgan (in writing or orally) at least one
Exchange Business Day prior to the first day of the Cash
Settlement Averaging Period for the Options being exercised
of (i) the number of such Options and (ii) the first day of
the Cash Settlement Averaging Period and (iii) the
Settlement Date; provided
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
HEAD XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
0
(XX XXXXXX LOGO)
that if the Counterparty has specified August 15, 2010 as a
redemption date for the Exchangeable Notes pursuant to the
terms of the Indenture, such notice may be given on or prior
to the Expiration Date for such Exercise Options and need
only specify the number of such Exercise Options.
Valuation Time: At the close of trading of the regular trading session on the Exchange
Settlement Terms:
Settlement Method: Net Share Settlement
Net Share Settlement: JPMorgan will deliver to the Counterparty, on the Settlement
Date, a number of Shares equal to the Net Shares in respect
of the Option exercise. In no event will the Net Shares be
less than zero.
Net Shares: In respect of any Option exercised or deemed exercised, for
each Option, a number of Shares equal to (i) the Option
Entitlement multiplied by (ii) the sum of the quotients, for
each Valid Day during the Cash Settlement Averaging Period
for such Option, of (A) the Relevant Price, less the Strike
Price, divided by (B) the Reference Price on such Valid Day,
divided by (iii) 20. JPMorgan will deliver cash in lieu of
any fractional Shares valued at the Relevant Price;
provided, however, that if the calculation contained in
clause (A) above results in a negative number, such number
shall be replaced with the number "zero".
So long as, pursuant to Section 14.03(c) of the Indenture,
the Counterparty's obligation to deliver Shares upon
exchange of Exchangeable Notes is limited to 3.5 million]
Shares in the aggregate, the Net Shares that JPMorgan shall
be obligated to deliver hereunder shall be calculated as set
forth above, but based on an Option Entitlement of 28
Shares.
JPMorgan shall have the right to effect the deliveries of
any Shares hereunder pursuant to escrow arrangements
reasonably satisfactory to JPMorgan such that JPMorgan shall
deliver Shares to an escrow agent (which may not be the
Counterparty or any agent of the Counterparty) on the
Settlement Date and the escrow agent shall return to
JPMorgan such Shares not actually delivered by Counterparty
to holders of Exchangeable Notes on the related settlement
date for such Exchangeable Notes.
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
4
(XX XXXXXX LOGO)
Valid Day: An Exchange Business Day on which the Exchange is open for
trading during its regular trading session and there is no
Market Disruption Event with respect to the Shares.
Relevant Price: In respect of any Option exercised or deemed
exercised, the average of the Reference Prices for each
Valid Day during the Cash Settlement Averaging Period for
such Options.
Reference Price: The official closing price per Share on the Exchange at the
Valuation Time.
Cash Settlement Averaging Period: For any Exercise Options relating to the exchange of
Exchangeable Notes, (x) if the Counterparty has not
specified August 15, 2010 as a redemption date for the
Exchangeable Notes pursuant to the terms of the Indenture,
the twenty (20) consecutive Valid Days commencing on and
including the second Exchange Business Day following the
receipt by the Counterparty of a notice of voluntary
exchange by a holder of Exchangeable Notes or (y) if the
Counterparty has specified August 15, 2010 as a redemption
date for the Exchangeable Notes pursuant to the terms of the
Indenture, the twenty (20) consecutive Valid Days commencing
on and including the twenty-third scheduled Exchange
Business Day prior to the redemption date.
Settlement Date: For any Exercise Options, the Settlement Date shall be the
Exchange Business Day following the last day of the Cash
Settlement Averaging Period.
Failure to Deliver: Applicable
Other Applicable Provisions: The provisions of Sections 6.6, 6.7, 6.8, 6.9 and 6.10 of
the Equity Definitions will be applicable, except that all
references in such provisions to "Physically-Settled" shall
be read as references to "Net Share Settled". "Net Share
Settled" in relation to any Option means that Net Share
Settlement is applicable to that Option.
3. Additional Terms applicable to the Transaction:
Adjustments applicable to the Transaction:
Potential Adjustment Events: Notwithstanding Section 9.1(e) of the Equity Definitions, a
"Potential Adjustment Event" means any occurrence of any
event or condition, as set forth in Section 14.05 of the
Indenture that would result in an adjustment to the Exchange
Rate of the Exchangeable Notes; provided that in
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
5
(XX XXXXXX LOGO)
no event shall there be any adjustment hereunder as a result
of an adjustment to the Exchange Rate pursuant to Section
14.01(e), Section 14.05(g) or Section 14.07 of the
Indenture.
Method of Adjustment: Calculation Agent Adjustment, and means that,
notwithstanding Section 9.1(c) of the Equity Definitions,
upon any adjustment to the Exchange Rate of the Exchangeable
Notes pursuant to the Indenture (other than 14.01(e),
Section 14.05(g) or Section 14.07 of the Indenture), the
Calculation Agent will make a corresponding adjustment to
any one or more of the Strike Price, Number of Options,
Option Entitlement and any other variable relevant to the
exercise, settlement or payment for the Transaction.
Extraordinary Events applicable to the Transaction:
Merger Events: Notwithstanding Section 9.2(a) of the Equity Definitions, a
"Merger Event" means the occurrence of any event or
condition set forth in Section 11.01 of the Indenture.
Consequence of Merger Events: Notwithstanding Section 9.3 of the Equity Definitions, upon
the occurrence of a Merger Event, the Calculation Agent
shall make a corresponding adjustment in respect of any
adjustment under the Indenture to any one or more of the
nature of the Shares, Strike Price, Number of Options,
Option Entitlement and any other variable relevant to the
exercise, settlement or payment for the Transaction;
provided, however that such adjustment shall (a) assume
that, in the case of a "Public Acquirer Change of Control"
(as defined in the Indenture), the Counterparty does not
make the election provided in Section 14.07 of the Indenture
and (b) be made without regard to any adjustment to the
Exchange Rate for the issuance of additional shares as set
forth in Section 14.01(e) of the Indenture.
Additional Termination Events: If an event of default with respect to the Counterparty shall
occur under the terms of the Exchangeable Notes as set forth in
Section 6.01 of the Indenture or the related guarantees, then
such event shall constitute an Additional Termination Event
applicable to this Transaction and, with respect to such event
(i) the Counterparty shall be deemed to be the sole Affected
Party and the Transaction shall be the sole affected transaction
and (ii) JPMorgan shall be the party entitled to designate an
Early Termination Date pursuant to Section 6(b) of the Agreement.
4. Calculation Agent: JPMorgan. Whenever the Calculation Agent is required to act or to
exercise judgment in any way with respect to this Transaction, it
will do so in good faith and in a commercially reasonable manner.
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
6
(XX XXXXXX LOGO)
5. Account Details:
(a) Account for payments to the Counterparty:
US Bank
ABA: 000000000
Acct: CSK Auto, Inc.
Acct No.: 153910004966
Account for delivery of Shares to the Counterparty:
DTC: (CUSIP 125965-10-3 in DWAC system)
(b) Account for payments to JPMorgan:
JPMorgan Chase Bank, N.A., New York
ABA: 021 000 021
Favour: JPMorgan Chase Bank, N.A. - London
A/C: 0010962009 XXXXXX00
Account for delivery of Shares from JPMorgan:
DTC 060
6. Offices:
The Office of Counterparty for the Transaction is: Inapplicable, the
Counterparty is not a Multibranch Party.
The Office of JPMorgan for the Transaction is: New York
JPMorgan Chase Bank, N.A.
London Branch
P.O. Box 161
60 Victoria Embankment
London EC4Y 0JP
England
7. Notices: For purposes of this Confirmation:
(a) Address for notices or communications to the Counterparty and
the Parent:
CSK Auto Inc.
CSK Auto Corporation
000 X. Xxxxxxxx Xxx., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Treasurer
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
7
(XX XXXXXX LOGO)
(b) Address for notices or communications to JPMorgan:
JPMorgan Chase Bank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
EDG Corporate Marketing
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
8. Representations and Warranties of Counterparty
The representations and warranties of the Counterparty and the Parent set forth
in Section 4 of the Purchase Agreement (the "PURCHASE AGREEMENT") dated as of
July 25, 2005 between the Counterparty, the Parent, certain of the Parent's
subsidiaries and X.X. Xxxxxx Securities Inc. as representative of the Initial
Purchasers are true and correct and are hereby deemed to be repeated to JPMorgan
as of the date hereof as if set forth herein. Each of the Counterparty and the
Parent hereby further represents and warrants to JPMorgan as of the date hereof
that:
(a) Each of the Parent and the Counterparty has all necessary corporate
power and authority to execute, deliver and perform its obligations
in respect of this Transaction; such execution, delivery and
performance have been duly authorized by all necessary corporate
action on the Counterparty's and the Parent's part; and this
Confirmation has been duly and validly executed and delivered by
each of the Parent and the Counterparty and constitutes its valid
and binding obligation, enforceable against the Counterparty or the
Parent in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally, and subject, as to enforceability, to general principles
of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought
in a proceeding at law or in equity) and except that rights to
indemnification and contribution thereunder may be limited by
federal or state securities laws or public policy relating thereto.
(b) Neither the execution and delivery of this Confirmation nor the
incurrence or performance of obligations of the Counterparty or the
Parent hereunder will conflict with or result in a breach of (i) the
certificate of incorporation or by-laws (or any equivalent
documents) of the Counterparty or the Parent, (ii) any applicable
law or regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or (iii) any agreement or
instrument to which the Counterparty, the Parent or any of its
Significant Subsidiaries (within the meaning of Regulation S-X
promulgated under the Securities Act of 1933, as amended (the
"SECURITIES ACT")) is a party or by which the Counterparty, the
Parent or any of its Significant Subsidiaries is bound or to which
the Counterparty, the Parent or any of its Significant Subsidiaries
is subject, or constitute a default under, or result in the creation
of any lien under, any such agreement or instrument, except, in the
cases of clauses (ii) and (iii), for such conflicts, breaches,
defaults and liens that would not reasonably be expected to have a
material adverse effect on the financial condition, business,
properties or results of operations of the Parent and its
subsidiaries taken as a whole.
(c) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required on the part
of the Counterparty in connection with the execution, delivery or
performance by the Counterparty or the Parent of this
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
8
(XX XXXXXX LOGO)
Confirmation, except such as have been obtained or made and such as
may be required under the Securities Act or state securities or Blue
Sky laws.
(d) It is an "eligible contract participant" (as such term is defined in
Section 1(a)(12) of the Commodity Exchange Act, as amended (the
"CEA") because one or more of the following is true:
It is a corporation, partnership, proprietorship, organization,
trust or other entity and:
(A) it has total assets in excess of USD 10,000,000;
(B) its obligations hereunder are guaranteed, or otherwise
supported by a letter of credit or keepwell, support or other
agreement, by an entity of the type described in Section
1a(12)(A)(i) through (iv), 1a(12)(A)(v)(I), 1a(12)(A)(vii) or
1a(12)(C) of the CEA; or
(C) it has a net worth in excess of USD 1,000,000 and has entered
into this Agreement in connection with the conduct of its
business or to manage the risk associated with an asset or
liability owned or incurred or reasonably likely to be owned
or incurred by it in the conduct of its business.
(e) Each of it and its affiliates is not, on the date hereof, in
possession of any material non-public information with respect to
the Parent.
9. Other Provisions:
(a) Opinions. Each of the Counterparty and the Parent shall deliver to
JPMorgan an opinion of counsel, dated as of the Trade Date, with
respect to the matters set forth in Sections 8(a) through (c) of
this Confirmation, with modifications and qualifications as agreed
by the parties.
(b) Amendment. If the Initial Purchasers party to the Purchase Agreement
exercise their right to purchase additional Exchangeable Notes as
set forth therein, then, at the discretion of the Counterparty,
JPMorgan, the Counterparty and the Parent will either enter into a
new confirmation or amend this Confirmation to provide for such
increase in Exchangeable Notes (but on pricing terms acceptable to
JPMorgan and the Counterparty) (such additional confirmation or
amendment to this Confirmation to provide for the payment by the
Counterparty to JPMorgan of the additional premium related thereto).
(c) No Reliance, etc. Each party represents that (i) it is entering into
the Transaction evidenced hereby as principal (and not as agent or
in any other capacity); (ii) neither the other party nor any of its
agents are acting as a fiduciary for it; (iii) it is not relying
upon any representations except those expressly set forth in the
Agreement or this Confirmation; (iv) it has not relied on the other
party for any legal, regulatory, tax, business, investment,
financial, and accounting advice, and it has made its own
investment, hedging, and trading decisions based upon its own
judgment and upon any view expressed by the other party or any of
its agents; and (v) it is entering into this Transaction with a full
understanding of the terms, conditions and risks thereof and it is
capable of and willing to assume those risks.
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
9
(XX XXXXXX LOGO)
(d) Share De-listing Event. If at any time during the period from and
including the Trade Date, to and including the Expiration Date, the
Shares cease to be listed or quoted on the Exchange (a "SHARE
DE-LISTING") for any reason (other than a Merger Event as a result
of which the shares of common stock underlying the Options are
listed or quoted on The New York Stock Exchange, The American Stock
Exchange or the NASDAQ National Market (or their respective
successors) (the "SUCCESSOR EXCHANGE")) and are not immediately
re-listed or quoted as of the date of such de-listing on the
Successor Exchange, then Cancellation and Payment (as defined in
Section 9.6 of the Equity Definitions treating the "ANNOUNCEMENT
DATE" as the date of first public announcement that the Share
De-Listing will occur and the "MERGER DATE" as the date of the Share
De-Listing) shall apply, and the date of the de-listing shall be
deemed the date of termination for purposes of calculating any
payment due from one party to the other in connection with the
cancellation of this Transaction; provided that, for the avoidance
of doubt, settlement of such payment obligation shall be subject to
clause (p) hereof. If the Shares are immediately re-listed on a
Successor Exchange upon their de-listing from the Exchange, this
Transaction shall continue in full force and effect, provided that
the Successor Exchange shall be deemed to be the Exchange for all
purposes hereunder. In addition, the Calculation Agent shall make
any adjustments it reasonably deems necessary to the terms of the
Transaction to reflect the effect of such re-listing (including,
without limitation, the liquidity and volatility of the Shares upon
re-listing) in accordance with Calculation Agent Adjustment method
as defined under Section 9.1(c) of the Equity Definitions.
(e) Repurchases. Each of the Counterparty and the Parent shall, three
Business Days prior to any day on which it intends to effect any
repurchase of Shares, give JPMorgan a written notice of such
intended repurchase (a "REPURCHASE NOTICE") if following such
repurchase, the Options Equity Percentage as determined on such day
is greater by 0.5% than the Options Equity Percentage included in
the immediately preceding Repurchase Notice (or, in the case of the
first such Repurchase Notice, greater than the Options Equity
Percentage as of the date hereof). The "OPTIONS EQUITY PERCENTAGE"
as of any day is the fraction (A) the numerator of which is the
product of the Number of Options and the Option Entitlement and (B)
the denominator of which is the number of Shares outstanding on such
day. Each of the Counterparty and the Parent agrees to indemnify and
hold harmless JPMorgan and its affiliates and their respective
officers, directors, employees, affiliates, advisors, agents and
controlling persons (each, an "INDEMNIFIED PERSON") from and against
any and all losses (including losses relating to JPMorgan's hedging
activities as a consequence of becoming a Section 16 "insider",
including without limitation, any forbearance from hedging
activities or cessation of hedging activities and any losses in
connection therewith with respect to this Transaction), claims,
damages, judgments, liabilities and expenses (including reasonable
attorney's fees), joint or several, which an Indemnified Person may
become subject to, as a result of the Counterparty's or the Parent's
failure to comply with the provisions of the first sentence of this
paragraph, and to reimburse, within 30 days, upon written request,
each of such Indemnified Persons for any reasonable legal or other
expenses incurred in connection with investigating, preparing for,
providing testimony or other evidence in connection with or
defending any of the foregoing. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or
demand shall be brought or asserted against the Indemnified Person,
such Indemnified Person shall promptly notify the Counterparty and
the Parent in writing, and the Counterparty or the Parent, upon
request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified
Person and any others the Counterparty or the Parent may designate
in such proceeding and shall pay the fees and expenses of such
counsel
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
10
(XX XXXXXX LOGO)
related to such proceeding. Neither the Counterparty nor the Parent
shall be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Counterparty and
the Parent agree to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or
judgment. Neither the Counterparty nor the Parent shall, without the
prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the
subject matter of such proceeding on terms reasonably satisfactory
to such Indemnified Person. If the indemnification provided for in
this paragraph (c) is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then the Counterparty or the Parent
under such paragraph, in lieu of indemnifying such Indemnified
Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages
or liabilities. The remedies provided for in this paragraph (c) are
not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Party at law or in equity.
The indemnity and contribution agreements contained in this
paragraph (c) shall remain operative and in full force and effect
regardless of the termination of this Transaction.
(f) Regulation M. Neither the Counterparty nor the Parent was on the
Trade Date and is not on the date hereof engaged in a distribution,
as such term is used in Regulation M under the Securities Exchange
Act of 1934, as amended ("EXCHANGE ACT"), of any securities of the
Parent, other than a distribution meeting the requirements of the
exception set forth in sections 101(b)(10) and 102(b)(7) of
Regulation M. Neither the Counterparty nor the Parent shall until
the fifth Exchange Business Day immediately following the Trade
Date, engage in any such distribution.
(g) No Manipulation. Neither the Counterparty nor the Parent is entering
into this Transaction to create actual or apparent trading activity
in the Shares (or any security convertible into or exchangeable for
the Shares) or to raise or depress or otherwise manipulate the price
of the Shares (or any security convertible into or exchangeable for
the Shares).
(h) Number of Purchased Shares. Each of the Counterparty and the Parent
represents that it could have purchased Shares, in an amount equal
to the product of the Number of Options and the Option Entitlement,
on the Exchange or otherwise, in compliance with applicable law, its
organizational documents and any orders, decrees, and, to the extent
permitted under the terms of 7% Senior Subordinated Notes due 2014
issued by the Counterparty, contractual agreements binding upon the
Counterparty or the Parent, on the Trade Date.
(i) Board Authorization. Each of this Transaction and the issuance of
the Exchangeable Notes was approved by its board of directors and
publicly announced, solely for the purposes stated in such board
resolution and public disclosure and, prior to any exercise of
Options hereunder, the Counterparty's and the Parent's board of
directors will have duly authorized any repurchase of Shares
pursuant to this Transaction. Each of the Counterparty and the
Parent further represents that there is no internal policy, whether
written or oral, of the Counterparty or the Parent that would
prohibit the Counterparty or
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
11
(XX XXXXXX LOGO)
the Parent from entering into any aspect of this Transaction,
including, but not limited to, the purchases of Shares to be made
pursuant hereto.
(j) Transfer or Assignment. No party may transfer any of its rights or
obligations under this Transaction without the prior written consent
of the non-transferring party; provided that if, as determined at
JPMorgan's sole discretion, its "beneficial ownership" (within the
meaning of Section 16 of the Exchange Act and rules promulgated
thereunder) exceeds 8% of Parent's outstanding Shares, JPMorgan may
transfer or assign a number of Options sufficient to reduce such
"beneficial ownership" to 7.5% to any third party with a rating for
its long term, unsecured and unsubordinated indebtedness of A+ or
better by Standard and Poor's Rating Group, Inc. or its successor
("S&P"), or A1 or better by Xxxxx'x Investor Service, Inc.
("MOODY'S") or, if either S&P or Moody's ceases to rate such debt,
at least an equivalent rating or better by a substitute agency
rating mutually agreed by Counterparty and JPMorgan. If, in the
discretion of JPMorgan, JPMorgan is unable to effect such transfer
or assignment after its commercially reasonable efforts on pricing
terms reasonably acceptable to JPMorgan and within a time period
reasonably acceptable to JPMorgan, JPMorgan may designate any
Exchange Business Day as an Early Termination Date with respect to a
portion (the "TERMINATED PORTION") of this Transaction, such that
its "beneficial ownership" following such partial termination will
be equal to or less than 8%. In the event that JPMorgan so
designates an Early Termination Date with respect to a portion of
this Transaction, a payment shall be made pursuant to Section 6 of
the Agreement as if (i) an Early Termination Date had been
designated in respect of a Transaction having terms identical to
this Transaction and a Number of Options equal to the Terminated
Portion, (ii) the Counterparty shall be the sole Affected Party with
respect to such partial termination and (iii) such Transaction shall
be the only Terminated Transaction. Notwithstanding any other
provision in this Confirmation to the contrary requiring or allowing
JPMorgan to purchase, sell, receive or deliver any shares or other
securities to or from the Counterparty, JPMorgan may designate any
of its affiliates to purchase, sell, receive or deliver such shares
or other securities and otherwise to perform JPMorgan's obligations
in respect of this Transaction and any such designee may assume such
obligations. JPMorgan shall be discharged of its obligations to
Counterparty to the extent of any such performance.
(k) Staggered Settlement. If (i) JPMorgan, acting in good faith,
reasonably determines that any acquisition by JPMorgan of the Shares
for the purpose of delivery to the Counterparty hereunder would
cause JPMorgan's "beneficial ownership" (within the meaning of
Section 16 of the Exchange Act and rules promulgated thereunder) on
any Settlement Date to exceed 8% of Parent's outstanding Shares,
(ii) there is a Market Disruption Event during the Cash Settlement
Averaging Period or (iii) JPMorgan, acting in good faith, reasonably
determines that there is not sufficient liquidity in the borrow
market for the Shares, JPMorgan may, by notice to the Counterparty
on or prior to any Settlement Date (a "NOMINAL SETTLEMENT DATE"),
elect to deliver the Shares on two or more dates (each, a "STAGGERED
SETTLEMENT DATE") as follows:
(a) in such notice, JPMorgan will specify to the Counterparty the
related Staggered Settlement Dates (the first of which will be
such Nominal Settlement Date and the last of which will be no
later than the twentieth (20th) Exchange Business Day
following such Nominal Settlement Date) and the number of
Shares that it will deliver on each Staggered Settlement Date
on a payment versus delivery basis;
(b) the aggregate number of Shares that JPMorgan will deliver to
the Counterparty hereunder on all such Staggered Settlement
Dates will equal the number of
A SUBSIDIARY OF X.X. XXXXXX CHASE & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
12
(XX XXXXXX LOGO)
Shares that JPMorgan would otherwise be required to deliver on
such Nominal Settlement Date; and
(c) if the Net Share Settlement terms set forth above were to
apply on the Nominal Settlement Date, then the Net Share
Settlement terms will apply on each Staggered Settlement Date,
except that the Net Shares will be allocated among such
Staggered Settlement Dates as specified by JPMorgan in the
notice referred to in clause (a) above.
(l) Damages. Neither party shall be liable under Section 6.10 of the
Equity Definitions for special, indirect or consequential damages,
even if informed of the possibility thereof.
(m) Role of Agent. Each party agrees and acknowledges that (i) X.X.
Xxxxxx Securities Inc., an affiliate of JPMorgan ("JPMSI"), has
acted solely as agent and not as principal with respect to this
Transaction and (ii) JPMSI has no obligation or liability, by way of
guaranty, endorsement or otherwise, in any manner in respect of this
Transaction (including, if applicable, in respect of the settlement
thereof). Each party agrees it will look solely to the other party
(or any guarantor in respect thereof) for performance of such other
party's obligations under this Transaction.
(n) Additional Provisions.
Notwithstanding Section 9.7 of the Equity Definitions, everything in
the first paragraph of Section 9.7(b) of the Equity Definitions
after the words "Calculation Agent" in the third line through the
remainder of such Section 9.7 shall be deleted and replaced with the
following:
"based on an amount representing the Calculation Agent's
determination of the fair value to Buyer of an option with terms
that would preserve for Buyer the economic equivalent of any payment
or delivery (assuming satisfaction of each applicable condition
precedent) by the parties in respect of the relevant Transaction
that would have been required after that date but for the occurrence
of the Nationalization or De-Listing Event, as the case may be."
(o) Setoff. In addition to and without limiting any rights of set-off
that a party hereto may have as a matter of law, pursuant to
contract or otherwise, upon the occurrence of an Early Termination
Event, JPMorgan shall have the right to set off any obligation that
it may have to the Counterparty under this Confirmation, including
without limitation any obligation to make any payment of cash or
delivery of Shares to the Counterparty, against any obligation the
Counterparty, the Parent or any of its subsidiaries may have to
JPMorgan under any other agreement between JPMorgan and the
Counterparty, the Parent or any of its subsidiaries relating to
Shares (each such contract or agreement, a "SEPARATE AGREEMENT"),
including without limitation any obligation to make a payment of
cash or a delivery of Shares or any other property or securities.
For this purpose, JPMorgan shall be entitled to convert any
obligation (or the relevant portion of such obligation) denominated
in one currency into another currency at the rate of exchange at
which it would be able to purchase the relevant amount of such
currency, and to convert any obligation to deliver any non-cash
property into an obligation to deliver cash in an amount calculated
by reference to the market value of such property as of the Early
Termination Date, as determined by the Calculation Agent in its
reasonable sole discretion; provided that in the case of a set-off
of any obligation to release or deliver assets against any right to
receive fungible assets, such obligation and right shall be
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
13
(XX XXXXXX LOGO)
set off in kind and; provided further that in determining the value
of any obligation to deliver Shares, the value at any time of such
obligation shall be determined by reference to the market value of
the Shares at such time, as reasonably determined in good faith by
the Calculation Agent. If an obligation is unascertained at the time
of any such set-off, the Calculation Agent may in good faith
estimate the amount or value of such obligation, in which case
set-off will be effected in respect of that estimate, and the
relevant party shall account to the other party at the time such
obligation or right is ascertained.
(p) Alternative Calculations and Payment on Early Termination and on
Certain Extraordinary Events If in respect of this Transaction, an
amount is payable by JPMorgan to Counterparty (i) pursuant to
Section 9.7 of the Equity Definitions or (ii) pursuant to Section
6(d)(ii) of the Agreement (a "PAYMENT OBLIGATION"), the Counterparty
may request JPMorgan to satisfy any such Payment Obligation by the
Share Termination Alternative (as defined below) (except that the
Counterparty may not make such an election in the event of a
Nationalization or Insolvency or a Merger Event, in each case, in
which the consideration to be paid to holders of Shares consists
solely of cash, or an Event of Default in which Counterparty is the
Defaulting Party or a Termination Event in which the Counterparty is
the Affected Party, other than an Event of Default of the type
described in Section 5(a)(iii), (v), (vi), (vii) or (viii) of the
Agreement or a Termination Event of the type described in Section
5(b)(i), (ii), (iii), (iv), (v) or (vi) of the Agreement in each
case that resulted from an event or events outside Counterparty's
control) and shall give irrevocable telephonic notice to JPMorgan,
confirmed in writing within one Currency Business Day, no later than
12:00 p.m. New York local time on the Merger Date, the date of the
occurrence of the Nationalization or Insolvency or the Early
Termination Date, as applicable; provided that if the Counterparty
does not validly request JPMorgan to satisfy its Payment Obligation
by the Share Termination Alternative, JPMorgan shall have the right,
in its sole discretion, to satisfy its Payment Obligation by the
Share Termination Alternative, notwithstanding Counterparty's
election to the contrary. In calculating any amounts under Section
6(e) of the Agreement, notwithstanding anything to the contrary in
the Agreement, (1) separate amounts shall be calculated as set forth
in Section 6(e) with respect to (i) this Transaction and (ii) all
other Transactions, and (2) such separate amounts shall be payable
pursuant to Section 6(d)(ii) of the Agreement.
Share Termination Alternative: Applicable and means that
JPMorgan shall deliver to
Counterparty the Share
Termination Delivery
Property on the date when
the Payment Obligation
would otherwise be due
pursuant to Section 9.7 of
the Equity Definitions or
Section 6(d)(ii) and 6(e)
of the Agreement, as
applicable (the "SHARE
TERMINATION DELIVERY
DATE"), in satisfaction of
the Payment Obligation in
the manner reasonably
requested by Counterparty
free of payment.
Share Termination Delivery Property: A number of Share
Termination Delivery
Units, as calculated by
the Calculation Agent,
equal to the Payment
Obligation divided by the
Share Termination Unit
Price. The Calculation
Agent shall adjust the
Share Termination Delivery
Property by
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
14
(XX XXXXXX LOGO)
replacing any fractional
portion of a security
therein with an amount of
cash equal to the value of
such fractional security
based on the values used to
calculate the Share
Termination Unit Price.
Share Termination Unit Price: The value to JPMorgan of
property contained in
one Share Termination
Delivery Unit on the
date such Share
Termination Delivery
Units are to be
delivered as Share
Termination Delivery
Property, as determined
by the Calculation Agent
in its discretion by
commercially reasonable
means and notified by
the Calculation Agent to
JPMorgan at the time of
notification of the
Payment Obligation.
Share Termination Delivery Unit: One Share or, if a Merger
Event has occurred and a
corresponding adjustment to
this Transaction has been
made, a unit consisting of
the number or amount of
each type of property
received by a holder of one
Share (without
consideration of any
requirement to pay cash
or other consideration in
lieu of fractional amounts
of any securities) in such
Merger Event, as determined
by the Calculation Agent.
Failure to Deliver: Applicable
Other applicable provisions: If this Transaction is to
be Share Termination
Settled, the provisions of
Sections 6.6, 6.7, 6.8,
6.9 and 6.10 (as modified
above) of the Equity
Definitions will be
applicable, except that
all references in such
provisions to
"Physically-Settled" shall
be read as references to
"Share Termination
Settled" and all
references to "Shares"
shall be read as
references to "Share
Termination Delivery
Units". "Share Termination
Settled" in relation to
this Transaction means
that Share Termination
Settlement is applicable
to this Transaction.
(q) Governing Law. New York law (without reference to choice of law
doctrine).
(r) Waiver of Jury Trial. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by
jury in respect of any suit, action or proceeding relating to this
Transaction. Each party (i) certifies that no representative, agent
or attorney of either party has represented, expressly or otherwise,
that such other party would not, in the event of such a suit, action
or proceeding, seek to enforce the foregoing
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
15
(XX XXXXXX LOGO)
waiver and (ii) acknowledges that it and the other party have been
induced to enter into this Transaction, as applicable, by, among
other things, the mutual waivers and certifications provided herein.
(s) Tax Disclosure. Counterparty acknowledges and understands that, in
connection with certain disclosure and list maintenance regulations
promulgated by the Internal Revenue Service (the "IRS"), JPMorgan
will retain documents related to this Transaction and other
information. The relevant regulations cover many transactions,
including certain transactions that create book-tax differences.
Upon request from the IRS, JPMorgan expects to provide such
documents and information to the IRS. In addition, Counterparty
shall consult with its tax advisors with respect to any disclosure
obligations that Counterparty may have.
(t) Right to Extend. JPMorgan may extend any Settlement Date or any
other date of delivery by JPMorgan, with respect to some or all of
the Options hereunder, if JPMorgan determines, in its reasonable
discretion, that such extension is reasonably necessary to enable
JPMorgan to effect purchases of Shares in connection with its
hedging activity hereunder in a manner that would be in compliance
with applicable legal and regulatory requirements.
(u) Registration. Each of the Counterparty and the Parent hereby agrees
that if, in the good faith reasonable judgment of JPMorgan, the
Shares ("HEDGE SHARES") acquired by JPMorgan for the purpose of
hedging its obligations pursuant to this Transaction cannot be sold
in the public market by JPMorgan without registration under the
Securities Act, the Parent shall, at its election, either (i) in
order to allow JPMorgan to sell the Hedge Shares in a registered
offering, make available to JPMorgan an effective registration
statement under the Securities Act and enter into an agreement, in
form and substance satisfactory to JPMorgan, substantially in the
form of an underwriting agreement; provided, however, that if
JPMorgan, in its sole reasonable discretion, is not satisfied with
access to due diligence materials relating to the Counterparty and
the Parent, the results of its due diligence investigation, or the
procedures and documentation for the registered offering referred to
above, then clause (ii) or clause (iii) of this Section 9(u) shall
apply at the election of the Parent, (ii) in order to allow JPMorgan
to sell the Hedge Shares in a private placement, enter into a
private placement agreement substantially similar to private
placement purchase agreements customary for private placements of
equity securities, in form and substance satisfactory to JPMorgan
(in which case, the Calculation Agent shall make any adjustments to
the terms of this Transaction which are necessary, in its reasonable
judgment, to compensate JPMorgan for any discount from the public
market price of the Shares incurred on the sale of Hedge Shares in a
private placement), or (iii) the Counterparty and the Parent jointly
and severally purchase the Hedge Shares from JPMorgan at the Closing
Price on such Trading Days, and in the amounts, requested by
JPMorgan.
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
16
(XX XXXXXX LOGO)
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing this Confirmation and returning it to EDG Confirmation
Group, X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000-0000, or by fax on 000 000 0000.
Very truly yours,
X.X. XXXXXX SECURITIES INC.,
AS AGENT FOR JPMORGAN CHASE
BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxxxxxxx
-------------------------
Authorized Signatory
Name: Xxxxxxx Xxxxxxxxxxx
Vice President
Accepted and confirmed
as of the Trade Date:
CSK AUTO, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------
Authorized Signatory
Name: Xxxxxx Xxxxxx
Title: President and Chief Operating Officer
CSK AUTO CORPORATION
By: /s/ Xxxxxx Xxxxxx
----------------------------
Authorized Signatory
Name: Xxxxxx Xxxxxx
Title: President and Chief Operating Officer
A SUBSIDIARY OF X.X. XXXXXX XXXXX & CO.
ORGANIZED AS A NATIONAL BANK ASSOCIATION WITH LIMITED LIABILITY
UNDER THE UNITED STATES NATIONAL BANK ACT
REGISTERED IN ENGLAND BRANCH NUMBER BR000746. AUTHORISED BY THE FSA.
REGISTERED BRANCH ADDRESS 000 XXXXXX XXXX, XXXXXX, XX0X 0XX.
XXXX XXXXXX 000 XXXX XXXXXX, XXX XXXX, XXX.
