SCHEDULE to the MASTER AGREEMENT dated as of September 19, 2008 between WACHOVIA BANK, NATIONAL ASSOCIATION (“Party A”) and LAKELAND INDUSTRIES, INC. (“Party B”)
Exhibit
10.1
SCHEDULE
to
the
dated as
of September 19, 2008 between
WACHOVIA BANK, NATIONAL
ASSOCIATION (“Party A”)
and LAKELAND INDUSTRIES, INC.
(“Party B”)
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Part
1.
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Termination
Provisions
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(a)
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“Specified Entity” means
each party’s Affiliates for purposes of Section
5(a)(v).
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(b)
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“Specified Transaction”
has its meaning as defined in Section
14.
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(c)
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“Cross Default” applies
to both parties. With respect to Party B, “Cross Default” is amended by
inserting at the end of Section 5(a)(vi): “or (3) any default, event of
default or other similar condition or event (however described) under any
existing or future agreement or instrument relating to any loan or
extension of credit from Party A (or any of its Affiliates) to Party B
(whether or not anyone else is a party
thereto).”
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“Specified Indebtedness” means
any obligation (whether present, future, contingent or otherwise, as principal
or surety or otherwise) in respect of borrowed money or relating to the payment
or delivery of funds, securities or other property (including, without
limitation, collateral), other than indebtedness in respect of any bank deposits
received in the ordinary course of business by any foreign branch of a party the
repayment of which is prevented, hindered or delayed by any governmental or
regulatory action or law unrelated to the financial condition or solvency of
such party or that foreign branch.
“Threshold Amount” means, with
respect to Party A, an amount (including its equivalent in another currency)
equal to the higher of $10,000,000 or 2% of its stockholders’ equity as
reflected on its most recent financial statements or call reports, and with
respect to Party B, any amount of Specified Indebtedness.
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(d)
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“Credit Event Upon
Merger” applies to both
parties.
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(e) “Automatic Early Termination”
does not apply to either party.
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(f)
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Payments on Early
Termination. Except as otherwise provided herein,
“Market Quotation” and the “Second Method” apply, provided that with
respect to the following types of Transactions, a Market Quotation shall
not be determined or included under clause (a) of the definition of
Settlement Amount, and instead a “Loss” shall be determined and included
under clause (b) of the definition of Settlement Amount with respect to
the following types of Transactions: (i) any FX Transactions and Currency
Option Transactions, and (ii) any Transactions which are commodity swaps,
commodity options, commodity forwards or any other commodity derivative
transactions.
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In the
case of any Terminated Transaction that is, or is subject to, any unexercised
option, the words “economic equivalent of any payment or delivery” appearing in
the definition of “Market Quotation” shall be construed to take into account the
economic equivalent of the option.
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(g)
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“Termination Currency”
means U.S. Dollars.
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(h)
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“Additional Termination
Event” does not apply to either
party.
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1
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Part
2.
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Tax
Representations
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(a)
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Payer Tax
Representations. For the purpose of Section 3(e) of this
Agreement, each party makes the following
representation:
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It is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made
by it to the other party under this Agreement.
In making
this representation, a party may rely on (i) the accuracy of any representations
made by the other party pursuant to Section 3(f) of this Agreement, (ii) the
satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of this
Agreement, and the accuracy and effectiveness of any document provided by the
other party pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement, and
(iii) the satisfaction of the agreement of the other party contained in Section
4(d) of this Agreement, provided that it shall not be a breach of this
representation where reliance is placed on clause (ii) above and the other party
does not deliver a form or document under Section 4(a)(iii) by reason of
material prejudice to its legal or commercial position.
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(b)
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Payee Tax Representations.
For the purpose of Section 3(f) of this
Agreement:
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(i) Party
A makes the following representation(s):
(A) It is
a national banking association organized or formed under the laws of the United
States and is a United States resident for United States federal income tax
purposes.
(B) Party
A makes no other Payee Tax Representations.
(ii)
Party B makes the following representation(s):
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(A)
It is organized or formed under the laws of a state within the United
States, and it is (or, if Party B is disregarded for United States federal
income tax purposes, its beneficial owner is) a United States resident for
United States federal income tax
purposes.
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(B) Party B makes no other Payee Tax
Representations.
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Part
3.
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Documents
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(a)
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Tax
Forms.
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(i)
Delivery of Tax
Forms. For the purpose of Section 4(a)(i), and without
limiting Section 4(a)(iii), each party agrees to duly complete, execute
and deliver to the other party the tax forms specified below with respect
to it (A) before the first Payment Date under this Agreement, (B) promptly
upon reasonable demand by the other party and (C) promptly upon learning
that any such form previously provided by the party has become obsolete or
incorrect.
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2
(ii)
Tax Forms to be Delivered by
Party A:
None
specified.
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(iii)
Tax forms to be Delivered
by Party B:
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(A) If
Party B is (or, if Party B is disregarded for United States federal income tax
purposes, its beneficial owner is) treated as a corporation for United States
federal income tax purposes whose name includes “Incorporated”, “Inc.”,
“Corporation”, “P.C.”, “Insurance Company” “Indemnity Company”, “Reinsurance
Company”, or “Assurance Company”:
None
specified, unless any amount payable to Party B under this Agreement is to be
paid to an account outside the United States, in which case the tax form to be
delivered by Party B shall be a correct, complete and duly executed U.S.
Internal Revenue Service Form W-9 (or successor thereto) that eliminates U.S.
federal backup withholding tax on payments to Party B under this
Agreement.
(B) In
all other cases:
A
correct, complete and duly executed U.S. Internal Revenue Service Form W-9 (or
successor thereto) that eliminates U.S. federal backup withholding tax on
payments to Party B under this Agreement.
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(b)
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Delivery of Documents.
When it delivers this Agreement, each party shall also deliver its Closing
Documents to the other party in form and substance reasonably satisfactory
to the other party. For each Transaction, a party shall
deliver, promptly upon request, a duly executed incumbency certificate for
the person(s) executing the Confirmation for that Transaction on behalf of
that party.
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(i) For
Party A, “Closing Documents” means (A) a copy, certified by the secretary or
assistant secretary of Party A, of the resolutions of Party A’s board of
directors authorizing the execution, delivery and performance by Party A of this
Agreement and authorizing Party A to enter into Transactions hereunder and (B) a
duly executed certificate of the secretary or assistant secretary of Party A
certifying the name, true signature and authority of each person authorized to
execute this Agreement and enter into Transactions for Party A.
(ii) For
Party B, “Closing Documents” means an opinion of counsel covering Party B’s
Basic Representations under Section 3(a) as they relate to this Agreement, or in
lieu thereof, (I) a copy, certified by the secretary or assistant secretary of
Party B, of resolutions of Party B’s board of directors authorizing the
execution, delivery and performance of this Agreement and authorizing Party B to
enter into Transactions hereunder and (II) a duly executed certificate of the
secretary or assistant secretary of Party B certifying the name, true signature
and authority of each person authorized to execute this Agreement and enter into
Transactions for Party B.
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Part
4.
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Miscellaneous
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(a)
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Addresses for
Notices.
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(i)
For purposes of Section 12(a) of this Agreement, all notices to Party A
shall, with respect to any particular Transaction, be sent to the address,
telex number or facsimile number specified by Party A in the relevant
Confirmation (or as specified below if not specified in the relevant
Confirmation), provided that any notice under Section 5 or 6 of this
Agreement shall be sent to Party A at its head office address specified
below.
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3
Head
Office
WACHOVIA
BANK, N.A.
000 Xxxxx
Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx,
XX 00000-0000
Attention:
Derivatives Documentation Group
Fax:
(000) 000-0000
Phone:
(000) 000-0000
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(ii)
For purposes of Section 12(a) of this Agreement, all notices to Party B
shall, with respect to any particular Transaction, be sent to the address,
telex number or facsimile number specified by Party B in the relevant
Confirmation (or as specified below if not specified in the relevant
Confirmation), provided that any notice under Section 5 or 6 of this
Agreement shall be sent to Party B at its head office address specified
below.
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LAKELAND
INDUSTRIES, INC.
000
Xxxxxxx Xxxxxx, Xxxxx 0
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxxxxxx
Fax:
000-000-0000
Phone:
631-981-9700 ext. 14
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(b)
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Process
Agent. For the purpose of Section 13(c) of this
Agreement, neither party appoints a Process Agent
hereunder.
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(c)
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Offices. Section
10(a) applies.
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(d)
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Multibranch
Party.
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(i) Party
A is a Multibranch Party and may act through the following Offices: its
Charlotte Head Office and its London Branch.
(ii)
Party B is not a Multibranch Party.
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(e)
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“Calculation Agent”
means Party A.
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(f)
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“Credit Support
Document” means, with respect to Party B, each document (whether
now existing or hereafter executed) which by its terms secures, guarantees
or otherwise supports Party B’s obligations under this Agreement from time
to time, whether or not this Agreement, any Transaction, or any type of
Transaction entered into hereunder is specifically referenced or described
in any such document.
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“Credit Support Default” is
amended by adding at the end of Section 5(a)(iii)(1):
“, any
default, event of default or other similar condition or event (however
described) exists under any Credit Support Document, any action is taken to
realize upon any collateral provided to secure such party’s obligations
hereunder or under any Transaction, or the other party fails at any time to have
a valid and perfected first priority security interest in any such
collateral;”
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(g)
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“Credit Support
Provider” means, with respect to Party B, each party to a Credit
Support Document that
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4
provides
or is obligated to provide security, a guaranty or other credit support for
Party B’s obligations under this Agreement.
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(h)
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(i)
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Waiver of Jury
Trial. To the extent permitted by applicable law, each
party irrevocably waives any and all right to trial by jury in any legal
proceeding in connection with this Agreement, any Credit Support Document
to which it is a party, or any
Transaction.
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(j)
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Netting of
Payments. Section 2(c)(ii) will apply in respect of all
Transactions from the date of this Agreement, provided that Section
2(c)(ii) will not apply with respect to any Transactions or group of
Transactions for which the parties mutually agree shall be netted
operationally.
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(k) “Affiliate” has its meaning as
defined in Section 14.
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Part
5.
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Other
Provisions
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(a)
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ISDA
Publications.
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(i) 2006 ISDA Definitions. This
Agreement and each Transaction are subject to the 2006 ISDA Definitions
published by the International Swaps and Derivatives Association, Inc. (the
“2006 ISDA Definitions”) and will be governed by the provisions of the 2006 ISDA
Definitions. The provisions of the 2006 ISDA Definitions are incorporated by
reference in, and shall form part of, this Agreement and each Confirmation. Any
reference to a “Swap Transaction” in the 2006 ISDA Definitions is deemed to be a
reference to a “Transaction” for purposes of this Agreement or any Confirmation,
and any reference to a “Transaction” in this Agreement or any Confirmation is
deemed to be a reference to a “Swap Transaction” for purposes of the 2006 ISDA
Definitions. The provisions of this Agreement (exclusive of the 2006 ISDA
Definitions) shall prevail in the event of any conflict between such provisions
and the 2006 ISDA Definitions.
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(ii)
EMU Protocol. If a
present or future European Union member state adopts the euro as its
lawful currency to replace its national currency (including, without
limitation, Sterling, Danish Krone and Swedish Krona), then Annexes 1
through 5 (inclusive) and Section 6 of the EMU Protocol published on May
6, 1998 by the International Swaps and Derivatives Association, Inc. (i)
shall be deemed to apply to any Transaction involving that member state’s
national currency (which shall be considered a Legacy Transaction under
the EMU Protocol), (ii) shall be construed in a manner consistent with the
purpose of the EMU Protocol notwithstanding that the start of the third
stage of European Economic and Monetary Union has already occurred, and
(iii) are hereby incorporated by reference in, and shall form part of,
this Agreement. References in the EMU Protocol to “ISDA Master Agreement”
will be deemed references to this
Agreement.
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(b)
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Scope of Agreement. Any
Specified Transaction now existing or hereafter entered into between the
parties (whether or not evidenced by a Confirmation) shall constitute a
“Transaction” under this Agreement and shall be subject to, governed by,
and construed in accordance with the terms of this Agreement, unless the
confirming document(s) for that Specified Transaction provide(s)
otherwise. For any such Specified Transaction not evidenced by
a Confirmation, Section 2(a)(i) of this Agreement is amended to read as
follows: “(i) Each party will make each payment or delivery to be made by
it under each Transaction, as specified in each Confirmation (or otherwise
in accordance with the terms of that Transaction if not evidenced by a
Confirmation), subject to the other provisions of this
Agreement.”
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5
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(c)
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Additional
Representations. In addition to the representations
under Section 3, the following representations will
apply:
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(i) Relationship Between
Parties. Each party will be deemed to represent to the other
party on the date on which it enters into a Relevant Agreement
that:
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(1)
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Non-Reliance. It is acting
for its own account, and it has made its own independent decisions to
enter into the Relevant Agreement and as to whether the Relevant Agreement
is appropriate or proper for it based solely upon its own judgment and
upon advice from such advisers as it has deemed necessary. It
is not relying on any communication (written or oral) of the other party
or any of its affiliates (or its respective representatives) as investment
advice or as a recommendation to enter into the Relevant Agreement, it
being understood that information and explanations related to the terms
and conditions of any Relevant Agreement will not be considered investment
advice or a recommendation to enter into the Relevant
Agreement. No communication (written or oral) received from the
other party or any of its affiliates (or its respective representatives)
will be deemed to be an assurance or guarantee as to the expected results
of the Relevant Agreement.
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(2)
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Assessment and
Understanding. It is
capable of assessing the merits of and understanding (on its own behalf or
through independent professional advice), and understands and accepts, the
terms, conditions and risks of the Relevant Agreement based solely upon
its own evaluation of the Relevant Agreement (including the present and
future results, consequences, risks, and benefits thereof, whether
financial, accounting, tax, legal, or otherwise) or that of its own
advisers. It is also capable of assuming, and assumes, the
risks of the Relevant Agreement. It also understands that the
terms under which any Transaction may be terminated early are set forth in
this Agreement (or in the relevant Confirmation), and any early
termination of a Transaction other than pursuant to such terms is subject
to mutual agreement of the parties confirmed in writing, the terms of
which may require one party to pay an early termination fee to the other
party based upon market conditions prevailing at the time of early
termination.
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(3)
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Status of
Parties. The other party is not acting as a fiduciary
for or an adviser to it in respect of the Relevant Agreement, and any
agency, brokerage, advisory or fiduciary services that the other party (or
any of its affiliates) may otherwise provide to the party (or to any of
its affiliates) excludes the Relevant
Agreement.
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“Relevant
Agreement” means this Agreement, each Transaction, each Confirmation, any Credit
Support Document, or any agreement (including any amendment, modification,
transfer or early termination) between the parties relating to this Agreement or
to any Transaction, Confirmation or Credit Support Document.
(ii)
Eligibility. Each
party will be deemed to represent to the other party on the date on which it
enters into a Transaction that it is an “eligible contract participant” within
the meaning of the Commodity Exchange Act.
(iii)
ERISA. Each
party represents to the other party at all times hereunder that it is not (i) an
employee benefit plan as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), or a plan as defined in
Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), subject to Title I of ERISA or Section 4975 of the Code, or a plan as
so defined but which is not subject to Title I of ERISA or Section 4975 of the
Code but is subject to another law materially similar to Title I of ERISA or
Section 4975 of the Code (each of which, an “ERISA Plan”), (ii) a person or
entity acting on behalf of an ERISA Plan, or (iii) a person or entity the assets
of which constitute assets of an ERISA Plan.
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(d)
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Set-off. Any
amount (“Early Termination Amount”) payable to one party (“Payee”) by the
other party (“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)(iv) 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 means of set off against any amount(s) (“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 to any Affiliate
of the Payer (irrespective of the currency, place of payment or booking
office of the obligation) under any other agreement(s) between the Payee
and the Payer (or between the Payee and any Affiliate of the Payer) or
instrument(s) or undertaking(s) issued or executed by the Payee to, or in
the favor of, the Payer or any Affiliate of the Payer (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
paragraph.
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For this
purpose, either the Early Termination Amount or the Other Agreement Amount (or
the relevant portion of such amounts) may be converted by X into the currency in
which the other is denominated at the rate of exchange at which such party would
be able, acting in a reasonable manner and in good faith, to purchase the
relevant amount of such currency. The term “rate of exchange”
includes, without limitation, any premiums and costs of exchange payable in
connection with the purchase of or conversion into the relevant
currency.
Nothing
in this paragraph shall be effective to create a charge or other security
interest. This paragraph 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).
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(e)
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Escrow. If
payments denominated in different currencies are due hereunder by both
parties on the same day and a party has reasonable cause to believe that
the other party will not meet its payment obligation, then as reasonable
assurance of performance the party may notify the other party that
payments on that date are to be made in escrow. In this case, deposit of
the payment due earlier on that date shall be made by 2.00 p.m. (local
time at the place for the earlier payment) on that date with any escrow
agent selected by the party giving the notice from among major commercial
banks independent of either party (and its affiliates), accompanied by
irrevocable payment instructions (i) to release the deposited payment to
the intended recipient upon receipt by the escrow agent of the required
deposit of the corresponding payment from the other party on the same date
accompanied by irrevocable payment instructions to the same effect or (ii)
if the required deposit of the corresponding payment is not made on the
same date, to return the payment deposited to the party that paid in
escrow. The party that elects to have payments made in escrow
shall pay the costs of the escrow arrangements and shall make arrangements
to provide that the intended recipient of the amount due to be deposited
first shall be entitled to interest on the deposited payment for each day
in the period of its deposit at the rate offered by the escrow agent for
that day for overnight deposits in the relevant currency in the office
where it holds that deposited payment (at 11.00 a.m. local time on that
day) if that payment is not released by 5.00 p.m. local time on the date
it is deposited for any reason other than the intended recipient’s failure
to make the escrow deposit it is required to make hereunder in a timely
fashion.
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(f)
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Change of
Account. Any account designated by a party pursuant to
Section 2(b) shall be in the same legal and tax jurisdiction as the
original account.
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(g)
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Recording of
Conversations. Each party (i) consents to the recording
of telephone conversations between the trading, marketing and other
relevant personnel of the parties or any of their Affiliates in connection
with this Agreement or any Transaction or potential Transaction, (ii)
agrees to obtain any necessary consent of, and give any necessary notice
of such recording to, its relevant personnel and those of its Affiliates
and (iii) agrees, to the extent permitted by applicable law, that such
recordings may be submitted in evidence in any
Proceedings.
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(h)
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Confirmation
Procedures. Upon receipt thereof, Party B shall examine
the terms of each Confirmation sent by Party A, and unless Party B objects
to the terms within three New York business days after receipt of that
Confirmation, those terms shall be deemed accepted and correct absent
manifest error, in which case that Confirmation will be sufficient to form
a binding supplement to this Agreement notwithstanding Section 9(e)(ii) of
this Agreement.
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(i)
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Covenants of Financial
Agreements.
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(i) Party
B shall provide Party A at all times hereunder with the same covenant protection
as Party B provides Party A (or any of its Affiliates) under Financial
Agreements. Therefore, in addition to the Cross Default provisions of
this Agreement, and notwithstanding the satisfaction of any obligation or
promise to pay money to Party A (or any of its Affiliates) under any Financial
Agreement, or the termination or cancellation of any Financial Agreement, Party
B hereby agrees to perform, comply with and observe for the benefit of Party A
hereunder all affirmative and negative covenants contained in each Financial
Agreement applicable to Party B (excluding any obligation or promise to pay
money under any Financial Agreement) at any time Party B has any obligation
(whether absolute or contingent) under this Agreement.
(ii) For
purposes hereof: (A) the affirmative and negative covenants of each Financial
Agreement applicable to Party B (together with related definitions and ancillary
provisions, but in any event excluding any obligation or promise to pay money
under any Financial Agreement) are incorporated by reference herein (mutatis
mutandis); (B) if lenders or creditors other than Party A are parties to any
Financial Agreement, then references therein to the lenders or creditors shall
be deemed references to Party A; and (C) for any such covenant applying only
when any loan, other extension of credit, obligation or commitment under any
Financial Agreement is outstanding, that covenant shall be deemed to apply
hereunder at any time Party B has any obligation (whether absolute or
contingent) under this Agreement.
(iii)
Notwithstanding the foregoing, if the incorporation of any provision by
reference from any Financial Agreement would result in the violation by Party B
of the terms of that Financial Agreement, or be in violation of any law, rule or
regulation (as interpreted by any court of competent jurisdiction), then this
Agreement shall not incorporate that provision.
“Financial Agreement” means
each existing or future agreement or instrument relating to any loan or
extension of credit from Party A (or any of its Affiliates) to Party B (whether
or not anyone else is a party thereto), as the same exists when executed and
without regard to (i) any termination or cancellation thereof or Party A (or any
of its Affiliates) ceasing to be a party thereto (whether as a result of
repayment thereof or otherwise), or (ii) unless consented to in writing by Party
A (or any of its Affiliates), any amendment, modification, addition, waiver or
consent thereto or thereof.
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(j)
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Transfer. Notwithstanding
anything contained in Section 7 of this Agreement, if the rights of Party
A (or any of its Affiliates) in any loan or extension of credit under any
Financial Agreement are sold, assigned or otherwise transferred to any
purchaser, assignee or transferee to which Party A (or its relevant
Affiliate) may lawfully make such sale, assignment or transfer, then Party
A may transfer without recourse its rights and obligations in or under
this Agreement (and any Credit Support Document) to any such purchaser,
assignee or transferee, provided that Party B is provided with written
notice of such transfer and a written acknowledgement of the purchaser,
assignee or transferee stating that it has acquired such rights and
obligations of Party A and is bound by the terms of this Agreement (and
any Credit Support Document) as Party A’s successor hereunder (and
thereunder).
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(k)
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Independent
Obligations. (i) Although Party B may be entering into
one or more Transactions under this Agreement to hedge against the
interest expense of, or other risk associated with, an existing or future
loan or other financing, this Agreement and each Transaction shall be an
independent obligation of Party B separate and apart from any such loan or
other financing, and therefore: (A) each party’s obligations under this
Agreement or any Transaction shall not be contingent on whether any loan
or other financing closes, is outstanding or is repaid, in whole or in
part, at any time; (B) subject to paragraph (ii) below, any repayment,
acceleration, satisfaction, discharge or release of, and any amendment,
modification or waiver with respect to, any loan or other financing,
whether in whole or in part, at any time, shall not in any way affect this
Agreement, any Transaction or either party’s obligations under this
Agreement or any Transaction; (C) payments that become due under this
Agreement or any Transaction shall be due whether or not (1) the Notional
Amount of any Transaction at any time is different from the principal
amount of any loan or other financing, (2) the Termination Date of any
Transaction occurs before or after the maturity date of any loan or other
financing, or (3) any other terms of any loan or other financing are
different from the terms of this Agreement or any Transaction; (D) nothing
in this Agreement or in any Confirmation is intended to be, nor shall
anything herein or therein be construed as, a prepayment penalty, charge
or premium for purposes of any loan or other financing, nor shall any
terms of any loan or other financing be deemed a waiver of or otherwise
impair any amount due or that may become due under this Agreement or under
any Transaction; (E) if Party B at any time receives from Party A (or any
of its affiliates) any payoff statement or other written statement
regarding any loan or other financing, nothing in such statement shall be
deemed to apply to this Agreement or any Transaction except as otherwise
expressly provided in that statement and then only to the extent so
provided; (F) the terms under which any Transaction may be terminated
early are set forth in this Agreement (including any Confirmation of such
Transaction), and any early termination of a Transaction other than
pursuant to the provisions of this Agreement (including any such
Confirmation) is subject to mutual agreement of the parties confirmed in
writing, the terms of which may require one party to pay an early
termination fee to the other party based upon market conditions prevailing
at the time of early termination; and (G) if at any time any existing or
future collateral or other credit support secures or otherwise supports
both this Agreement (or any Transaction hereunder) and any loan or other
financing (whether this Agreement or any Transaction hereunder is
specifically identified in the collateral or credit support documents, or
instead is referred to therein generically), then Party A (or its agent)
shall be entitled to continue to hold such collateral or other credit
support, and such collateral or other credit support shall
continue to secure or otherwise support Party B’s obligations under this
Agreement (or any Transaction hereunder), until such time as all such
obligations of Party B are completely satisfied notwithstanding any
repayment, acceleration, satisfaction, discharge or release of any such
loan or other financing.
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(ii)
Nothing in paragraph (i) above shall be construed as impairing or limiting: any
set-off rights; any cross default, credit support default or other provisions
contained in this Agreement or any Confirmation to the extent such provisions
refer to any repayment or acceleration of any loan or other financing; any
rights or obligations under any Credit Support Documents; or any obligations of
Party B under any covenant incorporated in this Schedule by reference from any
loan or other financing (provided that any amendment, modification or waiver
executed and delivered by Party A in writing with respect to any such covenant
shall be deemed to apply hereunder to that covenant as so incorporated unless
otherwise expressly provided in such writing).
9
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Part
6.
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Additional
Terms for FX Transactions and Currency
Options
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(a)
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ISDA FX and Currency Option
Definitions. The 1998 FX and Currency Option Definitions
published by the International Swaps and Derivatives Association, Inc.,
the Emerging Markets Traders Association and The Foreign Exchange
Committee (the “1998 FX and Currency Option Definitions”) are hereby
incorporated by reference in, and shall form part of, this Agreement and
each Confirmation relating to any “Currency Option Transaction” or “FX
Transaction” as defined in the 1998 FX and Currency Option Definitions,
except as otherwise specifically provided herein or in the relevant
Confirmation.
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(b)
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FX
Transactions.
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Netting of FX
Transactions. Section 2(c) shall not apply to FX
Transactions. Instead, the following provision will apply to FX
Transactions:
If
amounts in the same currency would be due by both parties in respect of the same
Settlement Date (or other payment or delivery date) under two or more FX
Transactions between the same pair of Offices of the parties (assuming
satisfaction of each condition precedent), then the obligations of the parties
for those amounts will be discharged automatically, and if one party’s
obligation in that currency would have been greater, replaced by an obligation
of that party to pay or deliver the amount of that difference to the other party
on that Settlement Date or date.
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(c)
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Currency Option
Transactions.
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(i) Currency Option Transaction
Premiums. If any Premium of a Currency Option Transaction is
not received on the Premium Payment Date, then the Seller may elect to either
(A) accept late payment of that Premium, or (B) give written notice of that
nonpayment and, if that payment is not received within three Local Business Days
of that notice, either (1) treat the related Currency Option Transaction as
void, or (2) treat that non-payment as an Event of Default under Section 5(a)(i)
of this Agreement. If the Seller elects to act under clause (A) or
(B)(1) of the preceding sentence, then the Buyer shall pay on demand all
out-of-pocket costs and actual damages incurred by the Seller in connection with
that unpaid or late Premium or void Currency Option Transaction, including,
without limitation, interest on that Premium in the same currency as that
Premium at the Default Rate and any other costs or expenses incurred by the
Seller to compensate it for its loss of bargain, cost of funding or loss
incurred as a result of terminating, liquidating, obtaining or re-establishing a
delta hedge or other related trading position with respect to that Currency
Option Transaction.
(ii)
Netting of Currency Option
Transactions. Section 2(c) of this Agreement shall not apply
to Currency Option Transactions. Instead, the following provisions
will apply to Currency Option Transactions:
(A) If
Premiums in the same currency would be due by both parties in respect of the
same Premium Payment Date under two or more Currency Option Transactions between
the same pair of Offices of the parties (assuming satisfaction of each condition
precedent), then the obligations of the parties for those Premiums will be
discharged automatically, and if one party’s obligation in that currency would
have been greater, replaced by an obligation of that party to pay or deliver the
amount of that difference to the other party.
(B) If
amounts in the same currency (other than Premiums) would be due by both parties
in respect of the same Settlement Date (or other payment or delivery date) under
two or more Currency Option Transactions between the same pair of Offices of the
parties (assuming satisfaction of each condition precedent), then the
obligations of the parties for those amounts will be discharged automatically,
and if one party’s obligation in that currency would have been greater, replaced
by an obligation of that party to pay or deliver the amount of that difference
to the other party on that Settlement Date or date.
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(C) For
matching Currency Option Transactions, any unexercised Call or Put written by a
party will automatically be terminated and discharged, in whole or in part, as
applicable, against any unexercised Call or Put, respectively, written by the
other party upon the payment in full of both Currency Option Transaction
Premiums. Currency Option Transactions are “matching” only if both (i) are
granted for the same Put Currency, Call Currency, Expiration Date, Expiration
Time, and Strike Price, (ii) have the same exercise style (e.g., American,
European or Asian) including the same exercise terms, and (iii) are entered into
by the same pair of Offices of the parties. For any partial
termination and discharge (where the Currency Option Transactions are for
different amounts of the Currency Pair), the remaining portion of the Currency
Option Transaction shall continue to be a Currency Option Transaction under this
Agreement.
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(d)
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Notice of
Exercise. Notwithstanding Section 3.5 (g) of the 1998 FX
and Currency Option Definitions, a Notice of Exercise may be delivered by
facsimile for purposes of exercising a Currency Option only if, after
reasonable efforts have been made by the Buyer to deliver such Notice of
Exercise orally by telephone, Buyer is unable to reach an appropriate
person at the Seller by telephone on the relevant day for purposes of
exercising such Currency Option on that day. Whenever a Notice
of Exercise has been given orally by telephone, a confirmation of such
Notice of Exercise may be delivered in writing by facsimile or by any
other means specified therefore in the relevant
Confirmation.
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IN WITNESS WHEREOF, the
parties have executed this Schedule by their duly authorized signatories as of
the date hereof.
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WACHOVIA
BANK, NATIONAL ASSOCIATION
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By:
/s/ Xxxx
Xxxxxxxxxxx
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Name:
Xxxx Xxxxxxxxxxx
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Title:
Director
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LAKELAND
INDUSTRIES, INC.
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By:
/s/ Xxxx
Xxxxxxxx
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Name:
Xxxx Xxxxxxxx
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Title:
Chief Financial Officer
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11
