SCHEDULE
TO THE
MASTER AGREEMENT
dated as of July 11, 1997
between
BOMBARDIER INC. ("Party A")
and
ATLANTIC COAST AIRLINES ("Party B")
I. PART TERMINATION PROVISIONS
A. "Specified Entity" means in relation of Party A for the purposes of:
Section 5(a)(v) (Default under Specified
Transaction): Not applicable
Section 5(a)(vi) (Cross Default): Not applicable
Section 5(a)(vii) (Bankruptcy): Not applicable
Section 5(b)(iv) (Credit Event upon Merger):
Not applicable
and in relation to Party B for purposes of:
Section 5(a)(v) (Default under Specified
Transaction): Not applicable
Section 5(a)(vi) (Cross Default): Atlantic Coast Airlines, Inc.
Section 5(a)(vii) (Bankruptcy): Atlantic Coast Airlines, Inc.
Section 5(b)(iv) (Credit Event upon Merger):
Affiliates
A. "Specified Transaction" will have the meaning specified in Section 14 of this Agreement.
A. The "Cross Default" provisions of Section 5(a)(vi)
shall apply to Party A, Party B and the Specified Entities of
Party B.
"Specified Indebtedness" will have the meaning specified in
Section 14 of this Agreement; provided that with respect to
Party B only, "Specified Indebtedness" shall include, without
limitation, the Purchase Agreement No. RJ-0350 dated January
8, 1997 between Party A and Party B and any agreement entered
into between Party A and Party B in connection therewith.
"Threshold Amount" means
1. with respect to Party A, an amount equal to three
and one-half per cent (3 1/2%) of Party A's total
stockholders' equity (as specified from time to time
in its most recently audited annual financial
statements prepared in accordance with generally
accepted accounting principles), or its equivalent in
any other currency; and
1. with respect to Party B, the lesser of (A)
$1,000,000 or (B) an amount equal to three and
one-half per cent (3 1/2%) of Party B's total
stockholders' equity (as specified from time to time
in its most recently audited financial statements
prepared in accordance with generally accepted
accounting principles).
A. The "Credit Event Upon Merger" provisions of
Section 5(b)(iv) will only apply to Party B.
A. The "Automatic Early Termination" provisions of Section 6(a) will not apply to either party.
A. Payments on Early Termination. For the purpose of Section 6(e) of this Agreement:
1. Market Quotation will apply.
2. Second Method (Full Two-Way Payment) will apply.
A. "Termination Currency" means the currency selected
by the non-Defaulting Party or the non-Affected Party, as the
case may be, or in circumstances where there are two Affected
Parties, United States Dollars.
I. PART TAX REPRESENTATIONS.
A. Payer Tax Representations. For purposes of Section 3(e) of this Agreement, Party A and Party B
each makes the following representation:
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, it 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) 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.
A. Payee Tax Representations. For purposes of Section 3(f) of this Agreement, Party A and Party B
each make the following representation:
It is fully eligible for the benefits of the "Business
Profits" provision, the "Interest" provision and the "Other
Income" provision of the Specified Treaty with respect to any
payment described in such provisions and received or to be
received by it in connection with this Agreement, and no such
payment is attributable to a trade or business carried on by
it through a permanent establishment in the jurisdiction of
the Payer.
"Specified Treaty" means, with respect to a Transaction, the
tax treaty applicable between the United States and Canada.
I. PART AGREEMENT TO DELIVER DOCUMENTS
For the purposes of Sections 4(a)(i) and (iii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
A. Tax forms, documents or certificates to be delivered are:
Each party agrees to complete, accurately and in a manner
reasonably satisfactory to the other party, and to execute,
arrange for any required certification of, and deliver to the
other party (or to such governmental or taxing authority as
the other party reasonably directs), any form or document that
may be required or reasonably requested in order to allow the
other party to make a payment under this Agreement without any
deduction or withholding for or on account of any Tax or with
such deduction or withholding for or on account of any Tax or
with such deduction or withholding at a reduced rate, (i)
promptly upon the earlier of (A) reasonable demand by the
other party and (B) learning that the form or document is
required and (ii) prior to the expiration or obsolescence of
any previously delivered form.
A. Other documents to be delivered are:
Party required to deliver Form / Document / Date by which to be Covered by Section 3(d)
document Certificate delivered Representation
Party A and Party B Certified evidence of Upon execution of this Yes
the authority, Agreement and, in
incumbency and specimen connection with each
signature of each Confirmation, promptly
authorized person following the request of
executing this Agreement the other party
and any Confirmation
Party B Audited annual Upon request of Party A Yes
consolidated financial promptly following
statements, prepared in availability of such
accordance with statements
accounting principles
that are generally
accepted for
institutions of its type
in the jurisdiction of
its organization and
certified by independent
public accountants
Party B Unaudited interim Upon request of Party A Yes
consolidated financial promptly following
statements prepared in availability of such
accordance with statements
accounting principles
that are generally
accepted for
institutions of its type
in the jurisdiction of
its organization
I. PART MISCELLANEOUS.
A. Addresses for Notices. For purposes of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Bombardier Inc.
000 xxxx, Xxxx-Xxxxxxxx ouest
Xxxxxxxx (Xxxxxx)
X0X 0X0
Attention: Vice President and Treasurer
Facsimile No.: (000) 000-0000
Telephone No. for Confirmation: (000) 000-0000
Telex No.: 055 62129
Answerback: BOMCORPOFF MTL
Addresses for notices or communications to Party B:
000X Xxxx Xxxx
Xxxxxx, XX 00000
Attention: Director of Treasury Management
Facsimile No.: (000) 000-0000
Telephone No. for Confirmation: (000) 000-0000
A. Process Agent. For purposes of Section 13(c) of this Agreement:
1. Party A appoints as its Process Agent: Not Applicable.
1. Party B appoints as its Process Agent: Not Applicable.
A. Offices. Not applicable.
A. Multibranch Party. For the purposes of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
A. Calculation Agent. The Calculation Agent is Party A, unless otherwise specified in the
applicable Confirmation.
A. Credit Support Document:
With respect to Party A, the following shall constitute Credit Support Documents:
Not applicable
With respect to Party B, the following shall constitute Credit
Support Documents:
1. Guaranty dated as of July 11, 1997 by Atlantic Coast
Airlines, Inc.
A. Credit Support Provider.
Credit Support Provider means in relation to Party A:
Not applicable
Credit Support Provider means in relation to Party B:
Atlantic Coast Airlines, Inc.
A. Governing Law. This Agreement will be governed by and construed in accordance with the laws of
the State of New York (without reference to choice of law doctrine).
A. Netting of Payments. Section 2(c)(ii) of this
Agreement will apply to any Transaction from the date of this
Agreement (i.e., no netting) (other than with respect to the
payments of the premiums).
A. "Affiliate" will have the meaning specified in Section 14 of this Agreement.
I. PART OTHER PROVISIONS
A. ISDA Definitions. The 1991 ISDA Definitions (the
"Definitions") and the 1992 ISDA FX and Currency Option
Definitions (the "FX Definitions" and, collectively with the
1991 Definitions, the "Definitions"), as published by the
International Swaps and Derivatives Association, Inc., shall
be deemed a part of this Agreement as if fully set forth
herein.
A. Inconsistency. Unless expressly provided
otherwise, in the event of any inconsistency between any of
the documents listed below, the document listed first will
prevail: (i) the Confirmation; (ii) the Schedule; (iii) the
printed form of ISDA Master Agreement; and (iv) the
Definitions, including: (A) the FX Definitions and (B) the
1991 Definitions.
A. Right of Set-Off. Any amount (the "Early
Termination Amount") payable to Party B by Party A under
Section 6(e), in circumstances where Party B is a Defaulting
Party will at the option of Party A (and without prior notice
to Party B), be reduced by its set-off against any amount(s)
(the "Other Agreement Amount") payable (whether at such time
or in the future or upon the occurrence of a contingency) by
Party B (irrespective of the currency, place of payment or
booking office of the obligation) under any other agreement(s)
between Party A and Party B or instrument(s) or undertaking(s)
issued or executed by one party to, or in favor of, the other
party (and the Other Agreement Amount will be discharged
promptly and in all respects to the extent it is so set-off).
Party A will give notice to Party B of any set-off effected
hereunder.
For this purpose, either the Early Termination Amount or the
Other Agreement Amount (or the relevant portion of such
amounts) may be converted by Party A 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.
If an obligation is unascertained, Party A may in good faith
estimate that obligation and set-off in respect of the
estimate, subject to the relevant party accounting to the
other when the obligation is ascertained.
Nothing in this Part 5(c) shall be effective to create a
charge or other security interest. This Part 5(c) 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).
A. Deduction or Withholding for Tax. Neither Party A
nor Party B shall have an obligation to make payments to the
other under Section 2(d)(i)(4) of this Agreement to the extent
the obligation to make such payment arises as a result of a
Change in Tax Law.
A. Confirmations. Each Confirmation shall be in the
standard form attached hereto as Exhibit A. With respect to
each Transaction, Party A shall, on or promptly after the
Trade Date, send Party B a Confirmation which shall be
promptly acknowledged by Party B.
A. Illegality. The "Illegality" provisions of Section
5(b)(i) shall be expanded to include the obligation of either
party to comply with any directive, direction or similar order
of any applicable governmental agency or authority (whether or
not having the force of law) which specifically prohibits its
performance under this Agreement.
A. Additional Representations. Section 3(a) is hereby amended by deleting the word "and" at the
end of Section 3(a)(iv) and adding the following after Section 3(a)(v):
" (vi) Non-Reliance. It is acting for its own
account, and it has made its own independent
decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for
it based 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 as investment advice or as a
recommendation to enter into that Transaction; it
being understood that information and explanations
related to the terms and conditions of a Transaction
shall not be considered investment advice or a
recommendation to enter into that Transaction. No
communication (written or oral) received from the
other party shall be deemed to be an assurance or
guarantee as to the expected results of that
Transaction.
(vii) 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 that Transaction.
It is also capable of assuming, and assumes, the
risks of that Transaction.
(viii) Status of Parties. The other party is
not acting as a fiduciary for or an adviser to it in
respect of that Transaction."
A. Equivalency Clause. For purposes of disclosure
pursuant to the Interest Act (Canada), the yearly rate of
interest to which any rate of interest payable under this
Agreement or any Confirmation, which is to be calculated on
any basis other than a full calendar year, is equivalent may
be determined by multiplying such rate by a fraction the
numerator of which is the number of days in the calendar year
in which the period for which interest at such rate is payable
ends and the denominator of which is the number of days
comprising such other basis.
A. Impossibility. The occurrence of an Impossibility
shall also be a Termination Event, as to which the Affected
Party shall be the party subject to an Impossibility. For
purposes of this Agreement, "Impossibility" shall mean the
occurrence of a natural or man-made disaster, armed conflict,
act of terrorism, riot, labour disruption or any other
circumstance beyond its control after the date on which a
Transaction is entered into which makes it impossible (other
than as a result of its own misconduct) for such a party:
1. to perform any absolute or
contingent obligation, to make a payment or delivery
or to receive a payment or delivery in respect of
such Transaction or to comply with any other material
provision of this Agreement relating to such
Transaction; or
1. to perform, or for any Credit
Support Provider of such party to perform any
contingent or other obligation which the party (or
such Credit Support Provider) has under any Credit
Support Document relating to such Transaction.
All terms and conditions of this Agreement applicable
to an Illegality shall be equally applicable to an
Impossibility and the definition of Termination Event shall be
amended to include Impossibility.
A. Consent to Recording. Each party consents to the recording of the telephone conversations of
relevant personnel of the parties in connection with this Agreement or any Transaction or potential Transaction.
A. Waiver of Jury Trial. To the fullest extent
permitted by law, each party irrevocably waives its right to
trial by jury in any legal proceeding instituted in connection
with this Agreement or any Transaction.
A. Severability. If any term, provision, covenant or
condition of this Agreement, or the application thereof to any
party or circumstance, shall be held to be invalid or
unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants and conditions shall
continue in full force and effect as if this Agreement had
been executed with the invalid or unenforceable portion
eliminated, so long as this Agreement as so modified continues
to express, without material change, the original intention of
the parties as to the subject matter of this Agreement, and
the deletion of such portion of this Agreement does not
substantially impair the respective benefits or expectations
of the parties to this Agreement.
A. Transfer. An exception to the Transfer provisions
of Section 7 is that consent to transfer shall not be required
for a transfer by Party B (with prior written notice to Party
A) to a United States market maker in transactions of the type
covered by this Agreement in connection with a transaction by
Party B intended to unwind a transaction herein.
BOMBARDIER INC. ATLANTIC COAST AIRLINES
By:____________________________ By:____________________________
Name: Name:
Title: Title:
By:____________________________
Name:
Title:
EXHIBIT A (Call Option)
FORM OF CONFIRMATION
[Letterhead of Bombardier Inc.]
[Date]
Atlantic Coast Airlines
000X Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Director of Treasury Management
Fax No.: (000) 000-0000
Re: Bombardier Reference Number ______
Bond Option Transaction (Call)
Ladies and Gentlemen:
The purpose of this confirmation is to confirm the terms and conditions
of the Bond Option Transaction entered into between us, Bombardier Inc. ("Party
A") and you, Atlantic Coast Airlines ("Party B") on the Trade Date specified
below (the "Transaction").
This confirmation is a "Confirmation" as referred to in the Agreement specified
below.
The definitions and provisions contained in the 1991 ISDA Definitions
(the "Definitions"), as published by the International Swaps and Derivatives
Association, Inc., formerly known as the International Swap Dealers Association
("ISDA"), are hereby incorporated into this Confirmation by reference. In the
event of any inconsistency between the Definitions and this Confirmation, this
Confirmation will govern. Capitalized terms not otherwise defined shall have the
meanings given to them in the Agreement (including the Definitions and other
documents incorporated therein by reference).
This Confirmation supplements, forms part of, and is subject to, the
ISDA Master Agreement dated as of July 11, 1997, as amended and supplemented
from time to time (the "Agreement"), between you and us. All provisions
contained in the Agreement govern this Confirmation, except as expressly
modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
1. General Terms:
Trade Date: [date]
Option Style: European
Option Type: Call
Seller: Atlantic Coast Airlines
Buyer: Bombardier Inc.
Reference Bonds: U.S. Treasury 6.625% due May 15, 2007
Number of Options: One per Expiration Date.
Bond Entitlement: For any Expiration Date, the amount set forth
for such date under the caption "Bond
Entitlement" on Schedule 1 attached hereto.
Partial Exercise: Not applicable
Option Strike Price: For any Expiration Date, the amount set forth
for such date under the caption "Option Strike
Price" on Schedule 1 attached hereto.
Premium: See Letter Agreement dated July __, 1997
between Party A and Party B.
Seller Business Day: Any day
on which commercial
banks are open for
business (including
dealings in foreign
exchange and foreign
currency deposits) in
Toronto/Montreal,
Canada and New York,
New York.
Exchange Business Day:~Any day that is a Seller Currency Business Day:
Business Day and is a trading day on the Canadian
Exchange other than a day on which trading such exchange is scheduled to close
prior to its regular weekday closing time and is a day on which U.S. Treasury
Markets are open for business in New York, New York.
Any day on which commercial banks are open for Local Business Day: business
(including dealings in foreign exchange and foreign currency deposits) in
Toronto/Montreal, Canada and New York, New York.
Any day on which commercial banks are open for Calculation Agent: business
(including dealings in foreign exchange and foreign currency deposits) in the
city specified in the address for notice provided by the recipient.
Bombardier Inc., whose determinations and 2. Procedure for Exercise:
calculations shall be binding in the absence of
manifest error.
Expiration Date:
Each of the dates set forth on Schedule 1 attached Automatic Exercise: hereto,
or if that date is not an Exchange Business Day, the first following day that is
an Exchange Business Day.
An Option will be deemed to be automatically In-the-Money: exercised on the
Expiration Date for such Option if such Option is In-the-Money, as determined by
the Calculation Agent.
An Option will be "In-the-Money" if the Settlement Reference Price: Amount
yields a positive amount.
For any Option, the price for the Bonds equal in an amount to the Bond
Entitlement as determined in good faith by the Calculation Agent on the
Expiration Date for such Option by obtaining the offered side price quoted by
"Xxxxxx-Xxxxxxxxxx" on page 500 of Telerate at 11:00 a.m., provided that the bid
offer spread is at or within 3/32 in price. If the Reference Bond is not quoted
on p. 500 of Telerate, then Bloomberg, page PX7 [U.S. Bond 7-15 years] shall be
used as a replacement quotation.
3. Settlement Terms:
Settlement: Cash Settlement
Settlement Date: For any Option, one Currency Business Day
following the Expiration Date for such Option.
Settlement Amount: For any
Option, on the
Settlement Date for
such Option, Seller
shall pay to Buyer the
amount by which the
Bond Payment for such
Option exceeds the
Call Amount for such
Option.
Bond Payment: For any
Option, the product of
the Reference Price
for such Option
multiplied by the Bond
Entitlement for such
Option multiplied by
the number of Options
exercised on the
Expiration Date for
such Option.
Call Amounts: For any
Option, the product of
the Option Strike
Price for such Option
multiplied by the Bond
Entitlement for such
Option multiplied by
the number of Options
exercised on the
Expiration Date for
such Option.
Failure to Deliver: Failure by a party to deliver, when due, any
payment under this Option shall constitute an
Event of Default only, if on or before the
third Local Business Day after notice of the
failure is given to the party it does not
remedy such failure.
4. Account Details:
Account details of Buyer: National Bank of Canada
000 Xxxx 00xx Xxxxxx Account details of Seller:
Xxx Xxxx, XX 00000-0000
ABA No. 000000000
Account No. 015370001
Crestar Bank
Alexandria, VA
ABA No. 000000000
Account No. 000000000
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 within two Business Days after your receipt hereof or
return it to us within two Business Days indicating revisions needed to
accurately reflect our agreement. If your reply is not received by us within
this time period, the terms stated in this Confirmation will constitute
conclusive and binding evidence of the terms of the Transaction to which this
Confirmation relates, absent manifest error.
Yours sincerely,
BOMBARDIER INC.
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
Confirmed as of the date first above written:
ATLANTIC COAST AIRLINES
By:__________________________
Name:
Title:
Schedule 1
July 11, 0000
Xxxxxxxx Xxxxx Airlines
000X Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Director of Treasury Management
Fax No.: (000) 000-0000
Re: Bombardier Reference Number ACA-2
Bond Option Transaction (Call)
Ladies and Gentlemen:
The purpose of this confirmation is to confirm the terms and conditions
of the Bond Option Transaction entered into between us, Bombardier Inc. ("Party
A") and you, Atlantic Coast Airlines ("Party B") on the Trade Date specified
below (the "Transaction").
This confirmation is a "Confirmation" as referred to in the Agreement specified
below.
The definitions and provisions contained in the 1991 ISDA Definitions
(the "Definitions"), as published by the International Swaps and Derivatives
Association, Inc., formerly known as the International Swap Dealers Association
("ISDA"), are hereby incorporated into this Confirmation by reference. In the
event of any inconsistency between the Definitions and this Confirmation, this
Confirmation will govern. Capitalized terms not otherwise defined shall have the
meanings given to them in the Agreement (including the Definitions and other
documents incorporated therein by reference).
This Confirmation supplements, forms part of, and is subject to, the
ISDA Master Agreement dated as of July 11, 1997, as amended and supplemented
from time to time (the "Agreement"), between you and us. All provisions
contained in the Agreement govern this Confirmation, except as expressly
modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
1. General Terms:
Trade Date: July 11, 1997
Option Style: European
Option Type: Call
Seller: Atlantic Coast Airlines
Buyer: Bombardier Inc.
Reference Bonds: U.S. Treasury 6.625% due May 15, 2007
Number of Options: One per Expiration Date.
Bond Entitlement: For any Expiration Date, the amount set forth
for such date under the caption "Bond
Entitlement" on Schedule 1 attached hereto.
Partial Exercise: Not applicable
Option Strike Price: For any Expiration Date, the amount set forth
for such date under the caption "Option Strike
Price" on Schedule 1 attached hereto.
Premium: See Letter Agreement dated July 11, 1997
between Party A and Party B.
Seller Business Day: Any day
on which commercial
banks are open for
business (including
dealings in foreign
exchange and foreign
currency deposits) in
Toronto/Montreal,
Canada and New York,
New York.
Exchange Business Day: Any day that is a Seller Business Day and is a
trading day on the Canadian Exchange other than
a day on which trading such exchange is
scheduled to close prior to its regular weekday
closing time and is a day on which U.S.
Treasury Markets are open for business in New
York, New York.
Currency Business Day: Any day
on which commercial
banks are open for
business (including
dealings in foreign
exchange and foreign
currency deposits) in
Toronto/Montreal,
Canada and New York,
New York.
Local Business Day: Any day
on which commercial
banks are open for
business (including
dealings in foreign
exchange and foreign
currency deposits) in
the city specified in
the address for notice
provided by the
recipient.
Calculation Agent: Bombardier Inc., whose determinations and
calculations shall be binding in the absence of
manifest error.
2. Procedure for Exercise:
Expiration Date: Each of the dates set forth on Schedule 1
attached hereto, or if that date is not an
Exchange Business Day, the first following day
that is an Exchange Business Day.
Automatic Exercise: An Option will be deemed to be automatically
exercised on the Expiration Date for such
Option if such Option is In-the-Money, as
determined by the Calculation Agent.
In-the-Money: An Option will be "In-the-Money" if the
Settlement Amount yields a positive amount.
Reference Price: For any Option, the price for the Bonds equal
in an amount to the Bond Entitlement as
determined in good faith by the Calculation
Agent on the Expiration Date for such Option by
obtaining the offered side price quoted by
"Xxxxxx-Xxxxxxxxxx" on page 500 of Telerate at
11:00 a.m., provided that the bid offer spread
is at or within 3/32 in price. If the
Reference Bond is not quoted on p. 500 of
Telerate, then Bloomberg, page PX7 [U.S. Bond
7-15 years] shall be used as a replacement
quotation.
3. Settlement Terms:
Settlement: Cash Settlement
Settlement Date: For any Option, one Currency Business Day
following the Expiration Date for such Option.
Settlement Amount: For any
Option, on the
Settlement Date for
such Option, Seller
shall pay to Buyer the
amount by which the
Bond Payment for such
Option exceeds the
Call Amount for such
Option.
Bond Payment: For any
Option, the product of
the Reference Price
for such Option
multiplied by the Bond
Entitlement for such
Option multiplied by
the number of Options
exercised on the
Expiration Date for
such Option.
Call Amounts: For any
Option, the product of
the Option Strike
Price for such Option
multiplied by the Bond
Entitlement for such
Option multiplied by
the number of Options
exercised on the
Expiration Date for
such Option.
Failure to Deliver: Failure by a party to deliver, when due, any
payment under this Option shall constitute an
Event of Default only, if on or before the
third Local Business Day after notice of the
failure is given to the party it does not
remedy such failure.
4. Account Details:
Account details of Buyer: National Bank of Canada
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
ABA No. 000000000
Account No. 015370001
Account details of Seller: Crestar Bank
Alexandria, VA
ABA No. 000000000
Account No. 051000020
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 within two Business Days after your receipt hereof or
return it to us within two Business Days indicating revisions needed to
accurately reflect our agreement. If your reply is not received by us within
this time period, the terms stated in this Confirmation will constitute
conclusive and binding evidence of the terms of the Transaction to which this
Confirmation relates, absent manifest error.
Yours sincerely,
BOMBARDIER INC.
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
Confirmed as of the date
first above written:
ATLANTIC COAST AIRLINES
By:__________________________
Name:
Title:
Terms of Call Option
Option Bond Entitlement Option Strike Price
March 16, 1998 $ 6,645,757 102 15/32
April 15, 1998 6,659,432 102 11/32
May 15, 1998 6,579,357 102 10/32
July 15, 1998 6,613,850 102 4/32
August 17, 1998 6,627,540 102 2/32
September 15, 1998 6,641,231 102 4/32
EXHIBIT A (Put Option)
FORM OF CONFIRMATION
[Letterhead of Bombardier Inc.]
[Date]
Atlantic Coast Airlines
000X Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Director of Treasury Management
Fax No.: (000) 000-0000
Re: Bombardier Reference Number ______
Bond Option Transaction (Put)
Ladies and Gentlemen:
The purpose of this confirmation is to confirm the terms and conditions
of the Bond Option Transaction entered into between us, Bombardier Inc. ("Party
A") and you, Atlantic Coast Airlines ("Party B") on the Trade Date specified
below (the "Transaction").
This confirmation is a "Confirmation" as referred to in the Agreement specified
below.
The definitions and provisions contained in the 1991 ISDA Definitions
(the "Definitions"), as published by the International Swaps and Derivatives
Association, Inc., formerly known as the International Swap Dealers Association
("ISDA"), are hereby incorporated into this Confirmation by reference. In the
event of any inconsistency between the Definitions and this Confirmation, this
Confirmation will govern. Capitalized terms not otherwise defined shall have the
meanings given to them in the Agreement (including the Definitions and other
documents incorporated therein by reference).
This Confirmation supplements, forms part of, and is subject to, the
ISDA Master Agreement dated as of July 11, 1997, as amended and supplemented
from time to time (the "Agreement"), between you and us. All provisions
contained in the Agreement govern this Confirmation, except as expressly
modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
1. General Terms:
Trade Date: [date]
Option Style: European
Option Type: Put
Seller: Bombardier Inc.
Buyer: Atlantic Coast Airlines
Reference Bonds: U.S. Treasury 6.625% due May 15, 2007
Number of Options: One per Expiration Date.
Bond Entitlement: For any Expiration Date, the amount set forth
for such date under the caption "Bond
Entitlement" on Schedule 1 attached hereto.
Partial Exercise: Not applicable
Option Strike Price: For any Expiration Date, the amount set forth
for such date under the caption "Option Strike
Price" on Schedule 1 attached hereto.
Premium: See Letter Agreement dated July __, 1997
between Party A and Party B.
Seller Business Day: Any day
on which commercial
banks are open for
business (including
dealings in foreign
exchange and foreign
currency deposits) in
Toronto/Montreal,
Canada and New York,
New York.
Exchange Business Day:~Any day that is a Seller Currency Business Day:
Business Day and is a trading day on the Canadian
Exchange other than a day on which trading such exchange is scheduled to close
prior to its regular weekday closing time and is a day on which U.S. Treasury
Markets are open for business in New York, New York.
Any day on which commercial banks are open for Local Business Day: business
(including dealings in foreign exchange and foreign currency deposits) in
Toronto/Montreal, Canada and New York, New York.
Any day on which commercial banks are open for Calculation Agent: business
(including dealings in foreign exchange and foreign currency deposits) in the
city specified in the address for notice provided by the recipient.
Bombardier Inc., whose determinations and 2. Procedure for Exercise:
calculations shall be binding in the absence of
manifest error.
Expiration Date:
Each of the dates set forth on Schedule 1 attached Automatic Exercise: hereto,
or if that date is not an Exchange Business Day, the first following day that is
an Exchange Business Day.
An Option will be deemed to be automatically In-the-Money: exercised on the
Expiration Date for such Option if such Option is In-the-Money, as determined by
the Calculation Agent.
An Option will be "In-the-Money" if the Settlement Reference Price: Amount
yields a positive amount.
For any Option, the price for the Bonds equal in an amount to the Bond
Entitlement as determined in good faith by the Calculation Agent on the
Expiration Date for such Option by obtaining the offered side price quoted by
"Xxxxxx-Xxxxxxxxxx" on page 500 of Telerate at 11:00 a.m., provided that the bid
offer spread is at or within 3/32 in price. If the Reference Bond is not quoted
on page 500 of Telerate, then Bloomberg, page PX7 [U.S. Bond 7-15 years] shall
be used as a replacement quotation.
3. Settlement Terms:
Settlement: Cash Settlement
Settlement Date: For any Option, one Currency Business Day
following the Expiration Date for such Option.
Settlement Amount: For any Option, on the Settlement Date, Seller
shall pay to Buyer the amount by which the Put
Amount for such Option exceeds the Bond Payment
for such Option.
Bond Payment: For any
Option, the product of
the Reference Price
for such Option
multiplied by the Bond
Entitlement for such
Option multiplied by
the number of Options
exercised on the
Expiration Date for
such Option.
Put Amount: For any
Option, the product of
the Option Strike
Price for such Option
multiplied by the Bond
Entitlement for such
Option multiplied by
the number of Options
exercised on the
Expiration Date for
such Option.
Failure to Deliver: Failure by a party to deliver, when due, any
payment under this Option shall constitute an
Event of Default only, if on or before the
third Local Business Day after notice of the
failure is given to the party it does not
remedy such failure.
4. Account Details:
Account details of Seller: National Bank of Canada
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000 Account details of Buyer:
ABA No. 000000000
Account No. 015370001
Crestar Bank
Alexandria, VA
ABA No. 000000000
Account No. 000000000
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 within two Business Days after your receipt hereof or
return it to us within two Business Days indicating revisions needed to
accurately reflect our agreement. If your reply is not received by us within
this time period, the terms stated in this Confirmation will constitute
conclusive and binding evidence of the terms of the Transaction to which this
Confirmation relates, absent manifest error.
Yours sincerely,
BOMBARDIER INC.
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
Confirmed as of the date first above written:
ATLANTIC COAST AIRLINES
By:__________________________
Name:
Title:
Schedule 1
Terms of Put Option
Option
Option Bond Entitlement Strike Price
July 11, 0000
Xxxxxxxx Xxxxx Airlines
000X Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Director of Treasury Management
Fax No.: (000) 000-0000
Re: Bombardier Reference Number ACA-1
Bond Option Transaction (Put)
Ladies and Gentlemen:
The purpose of this confirmation is to confirm the terms and conditions
of the Bond Option Transaction entered into between us, Bombardier Inc. ("Party
A") and you, Atlantic Coast Airlines ("Party B") on the Trade Date specified
below (the "Transaction").
This confirmation is a "Confirmation" as referred to in the Agreement specified
below.
The definitions and provisions contained in the 1991 ISDA Definitions
(the "Definitions"), as published by the International Swaps and Derivatives
Association, Inc., formerly known as the International Swap Dealers Association
("ISDA"), are hereby incorporated into this Confirmation by reference. In the
event of any inconsistency between the Definitions and this Confirmation, this
Confirmation will govern. Capitalized terms not otherwise defined shall have the
meanings given to them in the Agreement (including the Definitions and other
documents incorporated therein by reference).
This Confirmation supplements, forms part of, and is subject to, the
ISDA Master Agreement dated as of July 11, 1997, as amended and supplemented
from time to time (the "Agreement"), between you and us. All provisions
contained in the Agreement govern this Confirmation, except as expressly
modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
1. General Terms:
Trade Date: July 11, 1997
Option Style: European
Option Type: Put
Seller: Bombardier Inc.
Buyer: Atlantic Coast Airlines
Reference Bonds: U.S. Treasury 6.625% due May 15, 2007
Number of Options: One per Expiration Date.
Bond Entitlement: For any Expiration Date, the amount set forth
for such date under the caption "Bond
Entitlement" on Schedule 1 attached hereto.
Partial Exercise: Not applicable
Option Strike Price: For any Expiration Date, the amount set forth
for such date under the caption "Option Strike
Price" on Schedule 1 attached hereto.
Premium: See Letter Agreement dated July 11, 1997
between Party A and Party B.
Seller Business Day: Any day
on which commercial
banks are open for
business (including
dealings in foreign
exchange and foreign
currency deposits) in
Toronto/Montreal,
Canada and New York,
New York.
Exchange Business Day: Any day that is a Seller Business Day and is a
trading day on the Canadian Exchange other than
a day on which trading such exchange is
scheduled to close prior to its regular weekday
closing time and is a day on which U.S.
Treasury Markets are open for business in New
York, New York.
Currency Business Day: Any day
on which commercial
banks are open for
business (including
dealings in foreign
exchange and foreign
currency deposits) in
Toronto/Montreal,
Canada and New York,
New York.
Local Business Day: Any day
on which commercial
banks are open for
business (including
dealings in foreign
exchange and foreign
currency deposits) in
the city specified in
the address for notice
provided by the
recipient.
Calculation Agent: Bombardier Inc., whose determinations and
calculations shall be binding in the absence of
manifest error.
2. Procedure for Exercise:
Expiration Date: Each of the dates set forth on Schedule 1
attached hereto, or if that date is not an
Exchange Business Day, the first following day
that is an Exchange Business Day.
Automatic Exercise: An Option will be deemed to be automatically
exercised on the Expiration Date for such
Option if such Option is In-the-Money, as
determined by the Calculation Agent.
In-the-Money: An Option will be "In-the-Money" if the
Settlement Amount yields a positive amount.
Reference Price: For any Option, the price for the Bonds equal
in an amount to the Bond Entitlement as
determined in good faith by the Calculation
Agent on the Expiration Date for such Option by
obtaining the offered side price quoted by
"Xxxxxx-Xxxxxxxxxx" on page 500 of Telerate at
11:00 a.m., provided that the bid offer spread
is at or within 3/32 in price. If the
Reference Bond is not quoted on page 500 of
Telerate, then Bloomberg, page PX7 [U.S. Bond
7-15 years] shall be used as a replacement
quotation.
3. Settlement Terms:
Settlement: Cash Settlement
Settlement Date: For any Option, one Currency Business Day
following the Expiration Date for such Option.
Settlement Amount: For any Option, on the Settlement Date, Seller
shall pay to Buyer the amount by which the Put
Amount for such Option exceeds the Bond Payment
for such Option.
Bond Payment: For any
Option, the product of
the Reference Price
for such Option
multiplied by the Bond
Entitlement for such
Option multiplied by
the number of Options
exercised on the
Expiration Date for
such Option.
Put Amount: For any
Option, the product of
the Option Strike
Price for such Option
multiplied by the Bond
Entitlement for such
Option multiplied by
the number of Options
exercised on the
Expiration Date for
such Option.
Failure to Deliver: Failure by a party to deliver, when due, any
payment under this Option shall constitute an
Event of Default only, if on or before the
third Local Business Day after notice of the
failure is given to the party it does not
remedy such failure.
4. Account Details:
Account details of Seller: National Bank of Canada
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
ABA No. 000000000
Account No. 015370001
Account details of Buyer: Crestar Bank
Alexandria, VA
ABA No. 000000000
Account No. 051000020
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 within two Business Days after your receipt hereof or
return it to us within two Business Days indicating revisions needed to
accurately reflect our agreement. If your reply is not received by us within
this time period, the terms stated in this Confirmation will constitute
conclusive and binding evidence of the terms of the Transaction to which this
Confirmation relates, absent manifest error.
Yours sincerely,
BOMBARDIER INC.
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
Confirmed as of the date first above written:
ATLANTIC COAST AIRLINES
By:__________________________
Name:
Title:
Terms of Put Option
Option
Option Bond Entitlement Strike Price
March 16, 1998 $ 6,645,757 100 3/32
April 15, 1998 6,659,432 99 30/32
May 15, 1998 6,579,357 99 26/32
July 15, 1998 6,613,850 99 17/32
August 17, 1998 6,627,540 99 12/32
September 15, 1998 6,641,231 99 8/32
