EXHIBIT 10.6
[LETTERHEAD OF SUNTRUST EQUITABLE SECURITIES]
June 1, 2001
Confirmation of Interest Rate Transaction
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THIS LETTER AGREEMENT SHOULD BE REVIEWED, EXECUTED BY AN AUTHORIZED
PERSON(S), AND RETURNED IMMEDIATELY VIA FAX TO 000-000-0000.
(Please direct any questions to Xxx Xxxxxxxxxx at 000-000-0000.)
Xxxxx Xxxxxxx
Chief Financial Officer
X.X.X. Transport, Inc.
Highway 412 West
000 Xxxxx XxXxxxx Xxxx.
Tontitown, Arkansas 72770
Ph#: 000-000-0000
Fax#: 000-000-0000
REF: 13210
Dear Xx. Xxxxxxx:
The purpose of this letter agreement is to set forth the terms and
conditions of the Rate Transaction entered into between X.X.X. Transport, Inc.
("Counterparty" or "you") and SunTrust Bank ("SunTrust" or "us") on the Trade
Date specified below (the "Transaction"). SunTrust Equitable Securities
Corporation acts as agent on behalf of SunTrust with respect to this
Transaction. This letter agreement constitutes a "Confirmation" as referred to
in the ISDA Master Agreement entered into by the parties hereto and dated
February 28, 2001.
The definitions and provisions contained in the 1991 ISDA Definitions
published by the International Swap and Derivatives Association, Inc. ("ISDA"),
as amended and supplemented by the 1998 Supplement to the 1991 ISDA Definitions
(the "Definitions"), are incorporated by reference into this Confirmation. In
the event of any inconsistency between the Definitions and this Confirmation,
this Confirmation shall govern.
This Confirmation supplements, forms a part of, and is subject to the ISDA
Master Agreement, as amended and supplemented from time to time (the "Swap
Agreement"), between you and us. All provisions contained or incorporated by
reference in the Swap Agreement shall govern this Confirmation except as
expressly modified below.
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 in the Transaction to which this Confirmation relates on the
terms and conditions set forth below.
This Confirmation shall be governed by and construed in accordance with
the laws of the State of New York without reference to choice of law doctrine.
Page 2
1. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Type of Transaction: Swap Transaction
Notional Amount: $5,000,000.00
Trade Date: May 31, 2001
Effective Date: June 4, 2001
Termination Date: June 2, 2006, with
adjustment in accordance
with the Modified
Following Business Day
Convention (subject to
Section 2(d) below)
Fixed Amounts:
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Fixed Rate Payer: Counterparty
Fixed Rate Payer Payment Dates: The 2/nd/ day of each
month, beginning July
2, 2001, through and
including the
Termination Date,
subject to adjustment in
accordance with the
Modified Following
Business Day Convention
Fixed Rate: 4.83% per annum
Fixed Rate Day Count Fraction: Actual/360
Adjustment to Period End Dates: Applicable
Floating Amounts:
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Floating Rate Payer: SunTrust
Floating Rate Payer Payment Dates: The 2/nd/ day of each
month, beginning July
2, 2001, through and
including the
Termination Date,
subject to adjustment in
accordance with the
Modified Following
Business Day Convention
Floating Rate for initial Calculation Period: 4.0575% per annum
Floating Rate Day Count Fraction: Actual/360
Designated Maturity: 1 month
Floating Rate Option: USD-LIBOR-BBA
Spread: Inapplicable
Adjustment to Period End Dates: Applicable
Page 3
Reset Dates: The first day of each
Floating Rate Payer
Calculation Period
Calculation Agent: SunTrust
Business Days: New York
2. Other Provisions
(a) You agree to provide us (i) corporate resolutions, and (ii) a
certificate of incumbency with respect to the individual(s) executing this
Confirmation, both documents evidencing your authority to enter into this
Transaction. This provision (2)(a) shall constitute an additional
Agreement for the purpose of Section 4 of the Swap Agreement.
(b) By signing this Confirmation, you acknowledge that you have
received and understand the SunTrust Bank "Terms of Dealing for OTC Risk
Management Transactions" and the "Risk Disclosure Statement for OTC Risk
Management Transactions" (each attached hereto and incorporated by
reference into this Confirmation).
(c) "Loan Agreement" shall mean each agreement, related by its terms
to this Transaction, to which you (as borrower) and SunTrust (or one of
its Affiliates) are or hereafter become parties (and to which other
lenders may be parties) involving the making of loans, extensions of
credit or financial accommodations thereunder or commitments therefor, in
the form existing on the date when that agreement is executed and without
regard to any termination or cancellation thereof, whether by reason of
payment of all indebtedness incurred thereunder or otherwise, as such Loan
Agreement may be amended, supplemented, otherwise modified, replaced, or
substituted.
(d) SunTrust shall have the right, but not the obligation, to terminate
("Option to Terminate") this Transaction on June 2, 2003, subject to
adjustment in accordance with the Modified Following Business Day
Convention ("Optional Termination Date"). In order to exercise its Option
to Terminate, SunTrust shall notify Counterparty two New York Business
Days prior to the Optional Termination Date by telephone, which notice
shall be deemed to be irrevocable and shall be confirmed in writing (which
writing may be transmitted by facsimile) by SunTrust to Counterparty no
later than the following Business Day. Upon exercise by SunTrust of its
Option to Terminate as aforesaid, all rights and obligations arising out
of this Transaction following the Optional Termination Date shall be
deemed to have been terminated and both parties shall be under no further
liability to each other with respect to the Transaction. The amount
payable on the Optional Termination Date will be the amount that would,
had this Transaction not been terminated, have been paid by SunTrust or
Counterparty as the case may be.
3. Account Details
Payment to Counterparty:
Depository: [PLEASE ADVISE]
ABA #
Favor of:
Account #
Page 4
Payments to SunTrust:
SunTrust Bank
ABA # 000000000
FBO: Bond Wire Clearing
Account # 0000-0000-00
Attn: Financial Risk Management, Operations
4. Offices
(a) The Office of Counterparty for the Transaction is its Tontitown
office; and
(b) The Office of SunTrust for the Transaction is its Atlanta office.
By signing below, you also acknowledge and agree that we have explained to
you the risks involved in this Transaction, which risks include but are not
limited to the following:
.. Market Risk: The risk that the Transaction may increase or decrease in
value with a change in, among other things, interest rates or the yield
curve; and
.. Liquidity Risk: The risk that the Transaction cannot be closed out or
disposed of quickly at or near its value.
You further acknowledge and agree that you understand these risks and the
Transaction as a whole, that you are capable of managing the risks associated
with this Transaction, that the risks involved in this Transaction are
consistent with your financial goals, policies and procedures, and risk
tolerance, and that you have determined that this Transaction is appropriate
for you.
Please confirm that the foregoing correctly sets forth the terms of our
agreement by signing this copy of this Confirmation and immediately returning
it to SunTrust Equitable Securities Corporation via fax at the number indicated
on Page 1.
Very truly yours, Accepted and Confirmed as of the date first written:
SUNTRUST BANK X.X.X. TRANSPORT, INC.
By:/s/ Xxxx X. Xxxxx By:/s/ Xxxxx X. Xxxxxxx
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Xxxx X. Xxxxx Name: Xxxxx X. Xxxxxxx
Vice President Title: Vice President - Finance
