EXHIBIT 10.38
SWAP AGREEMENT BETWEEN THE COMPANY AND UNION BANK
Union Bank of California
Global Markets Group
Securities Funding Operations
000 Xxxxx Xxxxxxxx Xxxxxx X00-000
Xxx Xxxxxxx, XX 00000
Date: July 24, 2001
To: Diodes, Inc.
Attn: Xxxx Xxxxx
Phone No: (000) 000-0000 xxx: 000
Fax No: (000) 000-0000
FROM: XXXXXXXX XXXXXXX
DERIVATIVES OPERATIONS OFFICER
Phone No: (000) 000-0000
Fax No.: (000) 000-0000
RE: SWAP TRANSACTION
The purpose of this facsimile (this "Confirmation") is to confirm the
terms and conditions of the Swap Transaction entered into between Union Bank of
California, N.A. ("Party A") and Diodes, Inc. ("Party B") 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 the provisions of this Confirmation, this Confirmation
will govern.
1. ISDA AGREEMENT
This Confirmation evidences a complete and binding agreement between 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
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 California as the
governing law and US Dollars as the Termination Currency) on the Trade Date
specified below. In the event of any inconsistency between the provisions of
that agreement and this Confirmation, this Confirmation will prevail for the
purpose of this Swap Transaction.
2. SWAP TRANSACTION
The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Trade Date: July 24, 2001
Effective Date: July 31, 2001
Termination Date: November 30, 2004, subject to adjustment in accordance with the
Modified Following Business Day Convention
Notional Amount: USD 7,500,000 amortizing in accordance with the Outstanding Notional
Balance Schedule attached hereto
Business Days: New York and London
Calculation Agent: Party A
FIXED AMOUNTS:
Fixed Rate Payer: Party B
Fixed Rate: 4.70 percent
Fixed Rate Day Count Fraction: Actual/360
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Fixed Rate Payer Payment Dates: Last day of each month, from August 31, 2001 to the Termination Date
inclusive, subject to adjustment in accordance with the Modified
Following Business Day Convention
FLOATING AMOUNTS:
Floating Rate Payer: Party A
Floating Rate Payer Payment Dates: Last day of each month, from August 31, 2001 to the Termination Date
inclusive, subject to adjustment in accordance with the Modified
Following Business Day Convention
Floating Rate for the
Initial Calculation Period: To be determined on July 27, 2001
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 1 month
Spread: None
Floating Rate Day Count Fraction: Actual/360
RESET DATES: THE FIRST DAY OF EACH CALCULATION PERIOD
Method of Averaging: Inapplicable
Compounding: Inapplicable
3. ACCOUNT DETAILS
Payments to Party A: PLEASE ADVISE
Bank: Union Bank of California, N.A.
Account Name: ___________________
Account Number: ___________________
Payments to Party B: PLEASE ADVISE
Bank: Union Bank of California, N.A.
Account Name: __________________
Account Number: __________________
PARTY A OPERATIONS CONTACT
Name: Xxxxxxxx Xxxxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
PARTY B OPERATIONS CONTACT
Name: Xxxx Xxxxx
Tel. No: (000) 000-0000 xxx: 000
Fax No: (000) 000-0000
4. OFFICES
The Office of Party A for this Swap Transaction is Los Angeles,
California.
The Office of Party B for this Swap Transaction is Westlake Village,
California.
5. OTHER PROVISIONS
Each party represents and warrants to the other party that, in
connection with this Swap Transaction, (i) it has and will continue to consult
with its own legal, regulatory, tax, business, investment, financial and
accounting advisors to the extent it deems necessary, and it has and will
continue to make its own investment, hedging and trading decisions (including,
without limitation, decisions regarding the appropriateness and/or suitability
of this Swap Transaction) based upon its own independent judgment and upon any
advice or recommendation from such advisors as it deems necessary, and not in
reliance upon the other party hereto or any of its Affiliates or any of their
respective officers, directors or employees, or any view expressed by any of
them, (ii) it has evaluated and it fully understands all the terms, conditions
and risks of this Swap Transaction, and it is willing to assume (financially and
otherwise) all such risks, (iii) it has and will continue to act as principal
and not agent of any person, and the other party hereto and its Affiliates have
not and will not be acting as fiduciary or financial, investment, commodity
trading or other advisor to it, and (iv) it is entering into this Swap
Transaction in connection with its line of business.
Please confirm that this facsimile correctly sets forth the terms of the Swap
Transaction by executing the copy of this Confirmation for that purpose and
returning it to us by facsimile transmission at (000) 000-0000.
Union Bank of California, N.A. Diodes, Inc.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxx Xxxxx
Name: Xxxxxxx Xxxxxxxx Name: Xxxx Xxxxx
Title: Assistant Vice President Title: CFO
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