Swap Agreement From CIBC 1
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Date: November 8, 2001
To: WinsLoew Furniture, Inc. From: Canadian Imperial Bank of Commerce
(hereinafter referred (hereinafter referred to as CIBC)
to as Counterparty)
Attention: Xxxxx Xxxxxxx Contact: Sarvneet Kohli
Phone Number: (000) 000-0000 Phone Number: (000) 000-0000
Facsimile Number: (000) 000-0000 Facsimile Number: (000) 000-0000
Re: CIBC Reference # 424100
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The purpose of this letter (this Confirmation) is to confirm the terms and
conditions of the Swap Transaction entered into between us on the Trade Date
specified below.
The definitions and provisions contained in the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc. are
incorporated into this Confirmation. In the event of any inconsistency between
those definitions and provisions and this Confirmation, this Confirmation will
govern.
This Confirmation evidences a complete and binding agreement between you and us
as to the terms of the Swap 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 the ISDA Master Agreement
(Multicurrency Cross Border) (the ISDA Form), 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 a 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 the ISDA Form (each a
Confirmation) confirming transactions (each a Transaction) entered into
between you and us (notwithstanding anything to the contrary in a Confirmation),
shall supplement, form a part of, and be subject to, an agreement in the form of
the ISDA Form as if we had executed an 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 and USD as the Termination Currency) on the Trade Date of the
first such Transaction between us. In the event of any inconsistency between the
provisions of that agreement and this Confirmation, this Confirmation will
prevail for purposes of this Swap Transaction.
1. The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Notional Amount: USD 100,000,000 (see attached Amortization Schedule)
Trade Date: August 2, 2001
Effective Date: August 6, 2001
Termination Date: March 31, 2005, subject to adjustment in accordance
with the Modified Following Business Day Convention.
FIXED AMOUNTS:
Fixed Rate Payer: Counterparty
Fixed Rate Payer
Payment Dates: The Last day of each March, June, September and
December commencing on September 30, 2001 up to and
including the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
Notwithstanding section 4.13 of the Definitions,
the Fixed Amount with respect to the initial
Calculation Period shall accrue from and including
August 6, 2001 up to but excluding September 30,
2001
Fixed Rate: 5.09%
Fixed Rate Day
Count Fraction: Actual/360
FLOATING AMOUNTS:
Floating Rate Payer: CIBC
Floating Rate Payer
Payment Dates: The Last day of each March, June, September and
December commencing on September 30, 2001 up to and
including the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
Notwithstanding section 4.13 of the Definitions,
the Floating Amount with respect to the initial
Calculation Period shall accrue from and including
August 6, 2001 up to but excluding September 30,
2001
Floating Rate
for initial
Calculation Period: 3.69%
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 3 months
Spread: None
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first Business Day of each Calculation Period.
Compounding: Inapplicable
Business Days: New York and London
Calculation Agent: CIBC
2. ACCOUNT DETAILS:
Payments to CIBC:
Account for Payments: Chase Manhattan Bank, New York
For the Account of: Canadian Imperial Bank of Commerce, Toronto
Account No: 000-000-000
ABA No: 021 000 021
Payments to Counterparty:
Account for Payments: Please Advise.
3. OTHER PROVISIONS:
Transfer: Unless otherwise specified in the Master Agreement,
neither the Swap Transaction nor any interest or
obligation in or under the Swap Transaction may be
transferred (whether by way of security or
otherwise) by either party without the prior written
consent of the other party. Any purported transfer
that is not in compliance with this provision will
be void.
4. OFFICES:
(a) The Office of CIBC for the Swap Transaction is
(b) The Office of Counterparty for the Swap Transaction is
000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000.
5. BROKER/ARRANGER: None
6. This Confirmation may be executed in one or more counterparts, either in
original or facsimile form, each of which shall constitute an original and all
of which together shall constitute one and the same agreement. When executed by
the parties through facsimile transmission, this Confirmation shall constitute
the original agreement between the parties and the parties hereby adopt the
signatures printed by the receiving facsimile machine as the original signatures
of the parties.
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Entering into a derivative transaction involves certain risks. An identification
of the principal risks is provided in the CIBC World Markets Risk Disclosure
Statement, which has been delivered to you. If you have not received a copy,
please let us know and one will be provided to you. You should always consider
those risks in determining whether to enter into derivatives transactions.
Except as if expressly agreed to by you or us in writing, neither of us has
acted as advisor to the other with respect to the desirability or
appropriateness of entering into the Swap Transaction confirmed hereby or with
respect to the other partys risk management needs generally. This pertains not
only to the financial and market risk management risks and consequences of the
confirmed or any proposed Swap Transaction, but also to any legal, regulatory,
tax, accounting and credit issues generated by such transactions, which each
party must evaluate for itself and in reliance on its own professional advisors.
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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 or by sending to us a letter or telex substantially
similar to this letter, which letter or telex sets forth the material terms of
the Swap Transaction to which this Confirmation relates and indicates your
agreement to those terms.
Yours Sincerely,
Canadian Imperial Bank of Commerce
By: _________________________________
Name: Xxxx X. Xxxxx
Title: Executive Director
Confirmed as of the date first above written:
WINSLOEW FURNITURE, INC.
By: _________________________________
Name:
Title:
