EXHIBIT 10.4
ISDA(R)
International Swaps and Derivatives Association, Inc.
SCHEDULE TO THE 2002 MASTER AGREEMENT
dated as of April 20, 2005
between
FLEET NATIONAL BANK,
a national banking association organized and existing under the
laws of the United States of America,
("Party A")
and
XXXXXX EXPRESS CORPORATION,
a corporation organized and existing under the laws of the State of Delaware,
("Party B")
PART 1: TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of
Sections 5(a)(v), 5(a)(vi), 5(a)(vii) and 5(b)(v):
None;
"SPECIFIED ENTITY" means in relation to Party B for the purpose of
Sections 5(a)(v), 5(a)(vi), 5(a)(vii) and 5(b)(v):
Any Subsidiary Guarantor as defined in the Credit Agreement dated as of
February 22, 2005 by and among Party A, the other lenders named a party
thereto, and Party B (as amended, extended, supplemented or otherwise
modified in writing from time to time) (the "Credit Agreement").
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14.
(c) The "CROSS-DEFAULT" provisions of Section 5(a)(vi) (as amended in Part
5(d)) will apply to Party A and will apply to Party B.
In connection therewith, "SPECIFIED INDEBTEDNESS" will have the meaning
specified in Section 14, except that such term shall not include
obligations in respect of deposits
received in the ordinary course of a party's banking business.
"THRESHOLD AMOUNT" means with respect to Party A an amount equal to three
percent (3%) of the Shareholders' Equity of Bank of America Corporation as
shown in its most recent audited financial statements and with respect to
Party B, $5,000,000.00.
"SHAREHOLDERS' EQUITY" means with respect to an entity, at any time, the
sum (as shown in the most recent annual audited financial statements of
such entity) of (i) its capital stock (including preferred stock)
outstanding, taken at par value, (ii) its capital surplus and (iii) its
retained earnings, minus (iv) treasury stock, each to be determined in
accordance with generally accepted accounting principles.
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(v) will apply to
Party A will apply to Party B.
(e) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not apply
to Party A will not apply to Party B.
(f) "TERMINATION CURRENCY" means United States Dollars.
(g) A new Section 9(h) shall be added to this Agreement as follows:
"ASSIGNMENT ON PARTY A CEASING TO BE A LENDER UNDER THE CREDIT AGREEMENT
If Party A's obligation to lend under the Credit Agreement is terminated
or Party A ceases to be a party to the Credit Agreement, Party A shall be
entitled to assign and transfer all of its rights and obligations under
this Agreement and each Transaction entered into hereunder subject to
receipt of consent from Party B which consent may not be unreasonably
withheld or delayed by Party B."
PART 2: TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B will make 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 9(h) 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, except
that it will 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.
(b) PAYEE TAX REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement, Party A and Party B will make the following representations specified
below, if any:
(i) The following representations will apply to Party A:
Party A is a national banking association created or organized under
the laws of the United States of America and the federal taxpayer
identification number is
00-0000000.
Party A is a resident of United Kingdom for the purpose of applying
any existing tax treaties between United Kingdom and those countries
where Party B's offices are located.
(ii) The following representations will apply to Party B:
Party B is a corporation created or organized under the laws of the
State of Delaware and the federal taxpayer identification number is
00-0000000.
PART 3: AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver the following documents:
(a) Tax forms, documents or certificates to be delivered are:
PARTY REQUIRED TO
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
Party B Internal Revenue Service Upon execution and delivery of this Agreement
Form W-9
(b) Other documents to be delivered are:
PARTY FORM/DOCUMENT/CERTIFICATE REQUIRED TO DELIVER DOCUMENT
Party A Annual Report of Bank of America Corporation containing
audited, consolidated financial statements certified by
independent certified public accountants and prepared in
accordance with generally accepted accounting principles in
the country in which such party is organized
Party B Annual Report of Party B containing audited, consolidated
financial statements certified by independent certified public
accountants and prepared in accordance with generally accepted
accounting principles in the country in which such party is
organized
Party A Quarterly Financial Statements of Bank of America
Corporation containing unaudited, consolidated financial
statements of such party's fiscal quarter prepared in
accordance with generally accepted accounting principles in
the country in which such party is organized
DATE BY
WHICH TO BE DELIVERED
To be made available on xxx.xxxxxxxxxxxxx.xx m/investor/ as soon as available
and in any event within 90 days after the end of each fiscal year of Party A
Upon request, but in any event, no earlier than required to be delivered under
the Credit Agreement and provided, however, that Party B shall be deemed to have
satisfied such delivery requirement by making such report available to the
general public by publication thereof on its website or on the U.S. Securities
and Exchange Commission XXXXX information retrieval system.
To be made available on xxx.xxxxxxxxxxxxx.xx m/investor/ as soon as available
and in any event within 30 days after the end of each fiscal quarter of Party A
COVERED BY SECTION 3(d) REPRESENTATION
Yes
Yes
Yes
PARTY FORM/DOCUMENT/CERTIFICATE REQUIRED TO DELIVER DOCUMENT
Party B Quarterly Financial Statements of Party B thereof containing
unaudited, consolidated financial statements of such party's
fiscal quarter prepared in accordance with generally accepted
accounting principles in the country in which such party is
organized
Party A and Certified copies of all
Party B corporate, partnership or membership authorizations, as the
case may be, and any other documents with respect to the
execution, delivery and performance of this Agreement
Party A and Certificate of authority and
Party B specimen signatures of individuals executing this Agreement BY
DATE
WHICH TO BE DELIVERED
Upon request, but in any event, no earlier than required to be delivered under
the Credit Agreement and provided, however, that Party B shall be deemed to have
satisfied such delivery requirement by making such report available to the
general public by publication thereof on its website or on the U.S. Securities
and Exchange Commission XXXXX information retrieval system.
Upon execution and delivery of this Agreement
Upon execution and delivery of this Agreement and thereafter upon request of the
other party
COVERED
BY SECTION
3(d)
REPRESENTATION
Yes
Yes
Yes
PART 4: MISCELLANEOUS
(a) ADDRESS FOR NOTICES. For the purpose of Section 12(a)
Address for notice or communications to Party A:
Bank of America, N.A. Sears Tower 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Attention: Swap Operations Telephone No.:
312.234.2732 Facsimile No.: 312.234.3603
With a copy to:
Bank of America, N.A. 000 Xxxxxxx Xx., MA5-100-13-08 Xxxxxx,
Xxxxxxxxxxxxx 00000 Attention: Capital Markets Documentation
Facsimile No.: 617.434.3085 of this Agreement:
Address for financial statements to Party A if requested:
Bank of America, X.X. Xxx Xxxxxxxx Xxxxxx Xxxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx, Credit Product Officer Telephone No.:
207.874.5310 Facsimile No.: 207.874.5167
Address for notice or communications to Party B:
Xxxxxx Express Corporation 00 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxx, Xxxxx
00000 Attention: Xxxxxxx X. Xxxxxxx, Chief Financial Officer
Telephone No.: 000-000-0000 Facsimile No.: 207.523.7797
(b) PROCESS AGENT. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(b) of this Agreement:
Party A is a Multibranch Party and may enter into a Transaction through
its Charlotte, North Carolina, Chicago, Illinois, San Francisco,
California, New York, New York, Boston, Massachusetts or London, England
Office or such other Office as may be agreed to by the parties in
connection with a Transaction.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
Each of the following, as amended, extended, supplemented or otherwise
modified in writing from time to time, is a "Credit Support Document": Not
applicable.
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means in relation to
Party A: Not applicable. Credit Support Provider means in relation to Party B:
Not applicable.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to its
choice of laws provisions, except for Sections 5- 1401 and 5-1402 of the New
York General Obligations Law).
(i) NETTING OF PAYMENTS. Unless the parties otherwise so agree, "Multiple
Transaction Payment Netting" will apply for the purpose of Section 2(c) of this
Agreement, starting as of the date of this Agreement, within the following group
of Transactions, and not otherwise:
FX Transactions (as defined in the FX Definitions) and Currency Option
Transactions (as defined in the FX Definitions) (but excluding payments
with respect to option premiums and cash settled options); and
Transactions (as defined in the 1993 Commodity Derivatives Definitions,
published by the International Swaps and Derivatives Association, Inc.)
(but excluding payments with respect to option premiums).
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
(k) ABSENCE OF LITIGATION. For the purpose of Section 3(c): "Specified Entity"
means in relation to Party A, none;
"Specified Entity" means in relation to Party B, any Affiliate of Party B.
(l) NO AGENCY. The provisions of Section 3(g) will apply to this Agreement.
(m) ADDITIONAL REPRESENTATION will apply. For the purpose of Section 3 of this
Agreement, each of the following will constitute an Additional Representation:
RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to represent to
the other party on the date on which it enters into a Transaction that
(absent a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
(A) 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 advisors 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 will be deemed to be an assurance or guarantee as to the
expected results of that Transaction.
(B) 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.
(C) STATUS OF PARTIES. The other party is not acting as a fiduciary for or an
advisor to it in respect of that Transaction.
(D) ELIGIBLE CONTRACT PARTICIPANT. It is an "eligible contract participant" as
defined in Section 1a(12) of the U.S. Commodity Exchange Act, 7 U.S.C. Section
1a(12).
(n) RECORDING OF CONVERSATIONS. Each party (i) consents to the recording of
telephone conversations between the trading, marketing and other relevant
personnel of the parties in connection with this Agreement or any potential
Transaction and (ii) agrees, to the extent permitted by applicable law, that
recordings may be submitted in evidence in any Proceedings.
PART 5: OTHER PROVISIONS
(a) DELIVERY OF CONFIRMATIONS. For each Transaction entered into hereunder,
Party A shall promptly send to Party B a Confirmation (which may be via
facsimile transmission). Party B agrees to respond to such Confirmation within
five Local Business Days, either confirming agreement thereto or requesting a
correction of any error(s) contained therein. Failure by Party A to send a
Confirmation or of Party B to respond within such period shall not affect the
validity or enforceability of such Transaction. Absent manifest error, there
shall be a presumption that the terms contained in such Confirmation are the
terms of the Transaction.
(b) FURNISHING SPECIFIED INFORMATION. Section 4(a)(iii) is hereby amended by
inserting "promptly upon the earlier of (1)" in lieu of the word "upon" at the
beginning thereof and
inserting "or (2) such party learning that the form or document is required"
before the word "any" on the first line thereof.
(c) WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT, ANY CREDIT SUPPORT DOCUMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(d) CROSS DEFAULT. Section 5(a)(vi) of this Agreement is hereby amended (i) by
deleting the words "or being capable at such time of being declared" from Clause
(1) of Section 5(a)(vi) and (ii) by adding the following after the semicolon at
the end thereof:
"provided, however, that notwithstanding the foregoing, an Event of
Default shall not occur under either (1) or (2) above if the default, event of
default or other similar condition or event referred to in (1) or the failure to
pay referred to in (2) is caused not (even in part) by the unavailability of
funds but is caused solely due to a technical or administrative error which has
been remedied within three Local Business Days after notice of such failure is
given to the party."
(e) 2002 MASTER AGREEMENT PROTOCOL. Annexes 1 to 18 and Section 6 of the ISDA
2002 Master Agreement Protocol as published by the International Swaps and
Derivatives Association, Inc. on July 15, 2003 are incorporated into and apply
to this Agreement. References in those definitions and provisions to any ISDA
Master Agreement will be deemed to be references to this Master Agreement.
(f) CONSENT TO DISCLOSURE. Party B consents to Party A effecting such
disclosure as Party A may deem appropriate to enable Party A to transfer Party
B's records and information to process and execute Party B's instructions, or in
pursuance of Party A's or Party B's commercial interest, to any of its
Affiliates. For the avoidance of doubt, Party B's consent to disclosure includes
the right on the part of Party A to allow access to any intended recipient of
Party B's information, to the records of Party A by any means.
(g) USA PATRIOT ACT NOTICE. Party A hereby notifies Party B that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies Party B, which information includes the name and
address of Party B and other information that will allow Party A to identify
Party B in accordance with the Act.
PART 6: ADDITIONAL TERMS FOR FOREIGN EXCHANGE AND FOREIGN EXCHANGE OPTION
TRANSACTIONS
(a) INCORPORATION OF DEFINITIONS. The 1998 FX and Currency Option Definitions
(the "FX Definitions"), published by the International Swaps and Derivatives
Association, Inc., the Emerging Markets Traders Association and The Foreign
Exchange Committee, are hereby incorporated by reference with respect to FX
Transactions (as defined in the FX Definitions) and Currency Option Transactions
(as defined in the FX Definitions). Terms defined in the FX Definitions shall
have the same meanings in this Part 6.
(b) SCOPE. Unless otherwise agreed in writing by the parties, each FX
Transaction and Currency Option Transaction entered into between the parties
before, on or after the date of this Agreement shall be a Transaction under this
Agreement and shall be part of, subject to and governed by this Agreement. FX
Transactions and Currency Option Transactions shall be part of, subject to and
governed by this Agreement even if the Confirmation in respect thereof does not
state that such FX Transaction or Currency Option Transaction is subject to or
governed by this Agreement or does not otherwise reference this Agreement.
(c) PREMIUM NETTING. If, on any date, and unless otherwise mutually agreed by
the parties, Premiums would otherwise be payable hereunder in the same Currency
between the same
respective offices of the parties, then, on such date, each party's obligation
to make payment of such Premiums will be automatically satisfied and discharged
and, if the aggregate Premiums that would otherwise have been payable by such
office of one party exceeds the aggregate Premiums that would otherwise have
been payable by such office of the other party, replaced by an obligation upon
the party by whom the larger aggregate Premiums would have been payable to pay
the other party the excess of the larger aggregate Premiums over the smaller
aggregate Premiums, and if the aggregate Premiums are equal, no payment shall be
made.
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized officers as of the date hereof.
FLEET NATIONAL BANK XXXXXX EXPRESS CORPORATION
Name: Xxxxxx X. Xxxxxxx Name:
Title: Vice President Title:
