TERMINATION AGREEMENT
EXHIBIT 10.3
This Termination Agreement (the “Termination Agreement”) is made and entered into as
of 27 September, 2010 by and among Primus Financial Products, LLC (“Counterparty”), Xxxxxx
Brothers Special Financing Inc. (“Xxxxxx”) and Xxxxxx Brothers Holdings Inc.
(“Holdings”), as credit support provider of Xxxxxx (each of the foregoing a “Party”
and collectively the “Parties”).
RECITALS:
WHEREAS, the Parties entered into one or more transactions (each a “Transaction” and,
together, the “Transactions”) that were governed by a 1992 Multicurrency — Cross Border
ISDA Master Agreement, dated as of June 13, 2002 (the “ISDA Master Agreement”), which
included certain schedules, documents, confirmations and a guaranty of the obligations of Xxxxxx by
Holdings (collectively, the “Agreement Documents”).
WHEREAS, commencing on September 15, 2008 and thereafter, Holdings and certain of its
affiliates, including Xxxxxx, each filed voluntary petitions for relief under chapter 11 of title
11 of the United States Code (collectively, the “Bankruptcy Cases”).
WHEREAS, the Parties wish to terminate and/or acknowledge the termination of each Transaction
under the Agreement Documents as of the effective date of this Termination Agreement.
WHEREAS, on December 16, 2008 the court having jurisdiction over the Bankruptcy Cases (the
“Bankruptcy Court”) entered an Order Pursuant to Sections 105 and 365 of the Bankruptcy
Code to Establish Procedures for the Settlement or Assumption or Assignment of Prepetition
Derivative Contracts (the “Order”).
WHEREAS, as of the date hereof, the Parties have agreed a settlement amount in favor of Xxxxxx
in the amount of $17,500,000 (the “Settlement Amount”) in respect of the claims arising
under the Agreement Documents.
NOW, THEREFORE, in consideration of the recitals set forth above and promises made herein, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
Section 1. Payment and Release. Counterparty shall pay the Settlement Amount, without
deduction, set-off or counterclaim, to Xxxxxx within one (1) business days of the date hereof. In
consideration of each other Party’s execution of this Termination Agreement and payment of the
Settlement Amount without deduction, set-off or counterclaim to Xxxxxx, each Party on behalf of
itself and any other party, person or entity claiming under or through it, hereby generally
releases, discharges and acquits each other Party, and its respective current and former
agents, servants, officers, directors, shareholders, employees, subsidiaries, divisions,
branches, units, affiliates, parents, attorneys, successors, predecessors, heirs, personal
representatives, and assigns (each of the foregoing, a “Released Party”), from all manners
of action, causes of action, judgments, executions, debts, demands, rights, damages, costs,
expenses, and claims of every kind, nature, and character whatsoever, whether in law or in equity,
whether based on contract (including, without limitation, quasi-contract or estoppel), statute,
regulation, tort (including, without limitation, intentional torts, fraud, misrepresentation,
defamation, breaches of alleged fiduciary duty, recklessness, gross negligence, or negligence) or
otherwise, accrued or unaccrued, known or unknown, matured, unmatured, liquidated or unliquidated,
certain or contingent, that such releasing Party ever had or claimed to have, or now has or claims
to have presently or at any future date, against any Released Party arising under or related to the
Agreement Documents or the Transactions thereunder, their negotiation, execution, performance, any
breaches thereof, or their termination including, for the avoidance of doubt, any claim for a
payment in relation to an Early Termination Date under Section 6 of the ISDA Master Agreement or
relating to any Credit Event under the ISDA Master Agreement.
Section 2. Representations. Each Party represents and warrants to each other Party
that (i) the execution, delivery, and performance by such Party of this Termination Agreement are
within the powers of such Party and have been duly authorized by all necessary action on the part
of such Party, (ii) this Termination Agreement has been duly executed and delivered by such Party
and constitutes a valid and binding obligation of such Party, enforceable against such Party in
accordance with the terms hereof, (iii) it is not relying upon any statements, understandings,
representations, expectations, or agreements other than those expressly set forth in this
Termination Agreement, (iv) it has had the opportunity to be represented and advised by legal
counsel in connection with this Termination Agreement, which it enters voluntarily and of its own
choice and not under coercion or duress, (v) it has made its own investigation of the facts and is
relying upon its own knowledge and the advice of its counsel, (vi) in negotiating this Termination
Agreement it has not relied on any expectation that any of the other Parties would disclose facts
material to the Agreement Documents or this Termination Agreement, (vii) it has not assigned,
transferred or conveyed to any person or entity any right, title, interest or claim it may have or
may have had in the Agreement Documents or any other matter covered by the releases in Section 1 of
this Termination Agreement and (viii) it knowingly waives any and all claims that this Termination
Agreement was induced by any misrepresentation or non-disclosure and knowingly waives any and all
rights to rescind or avoid this Termination Agreement based upon presently existing facts, known or
unknown. Additionally, Xxxxxx and Holdings represent and warrant to Counterparty that this
Termination Agreement is being entered into in accordance with the terms of the Order. The Parties
agree and stipulate that each Party is relying upon the representations and warranties in this
Section in entering into the Termination Agreement. Furthermore, the Parties agree that these
representations and warranties are a material inducement for entering into this Termination
Agreement. These representations and warranties shall survive the execution of this Termination
Agreement indefinitely without regard to statutes of limitations.
Section 3. Execution in Counterparts. This Termination Agreement may be executed in
any number of counterparts and by different Parties in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken together shall
constitute but one and the same instrument. Delivery of an executed counterpart of a
signature page by facsimile or PDF transmission shall be as effective as delivery of a
manually executed counterpart.
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Section 4. Effectiveness. This Termination Agreement shall become effective upon
execution hereof by each of the Parties and the payment, without deduction, set-off or
counterclaim, of the Settlement Amount to Xxxxxx. The Transactions that are not already terminated
according to their terms will terminate as of the effective date of this Termination Agreement.
Section 5. Related Claims. In order to reflect the entry into this Termination
Agreement, the Parties hereto acknowledge and agree that (i) Xxxxxx may object through a filing
with the Bankruptcy Court to any proofs of claim filed by Counterparty against Xxxxxx in relation
to the Agreement Documents or the Transactions and (ii) Holdings may object through a filing with
the Bankruptcy Court to any proofs of claim filed by Counterparty against Holdings in relation to
the Agreement Documents or the Transactions. Pending the filing of such objections, such proofs of
claim and related Derivative Questionnaires and/or Guarantee Questionnaire shall be deemed so
amended. Counterparty agrees not to challenge or object to such objections when filed.
Section 6. Governing Law. This Termination Agreement will be construed and enforced
in accordance with, and the rights of the Parties shall be governed by, the laws of the State of
New York (including Section 5-1401 of the New York General Obligations Law), without regard to
conflicts of laws principles that would require the application of the law of another jurisdiction.
The Bankruptcy Court shall have exclusive jurisdiction over any action or proceeding with respect
to this Termination Agreement and each Party agrees to submit to such jurisdiction and to waive any
defense based on the location or jurisdiction of such court.
Section 7. Confidentiality. Counterparty shall not disclose this Termination
Agreement or its terms, including the Settlement Amount (“Confidential Information”), to
any person other than to its shareholders, directors, officers, employees, counsel, accountants and
other advisors and the shareholders, directors, officers, counsel, accountants and other advisors
of Primus Guaranty, Ltd. (hereinafter, collectively, the “Related Parties”), in each case
who need to know such information solely for the purpose of effecting this Termination Agreement
(it being understood that Counterparty shall ensure that such Related Parties will be informed in
advance of the confidential nature of the Confidential Information and will be directed to maintain
the confidentiality of such Confidential Information and Counterparty shall be responsible if any
such Related Party fails to comply with any such confidentiality obligations), except as may be
required by law, including but not limited to as may be required of Counterparty or any of its
Related Parties by United States federal securities and bankruptcy laws, rules and regulations.
Counterparty agrees that, when it enters into a confidentiality agreement with respect to
Confidential Information, it shall promptly provide Xxxxxx with a copy of said agreement.
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If Counterparty or any Related Party becomes legally obligated (whether by court or regulatory
order or otherwise), other than due to compliance with United States federal securities or
bankruptcy laws, rules and regulations, to disclose any of the Confidential Information,
Counterparty or such Related Party, as the case may be, will promptly provide
Xxxxxx, if permitted by law, with notice of such proposed disclosure so that Xxxxxx may seek a
protective order or other appropriate remedy. If such a protective order or other protective
remedy is not obtained, Counterparty or such Related Party, as the case may be, will disclose only
that portion of the Confidential Information which is legally required, in the opinion of its own
counsel, and Counterparty or such Related Party, as the case may be, will exercise its reasonable
efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential
Information.
Section 8. Successors and Assigns. The provisions of this Termination Agreement will
be binding upon and inure to the benefit of the Parties and their respective successors and
assigns.
Section 9. Amendment. This Termination Agreement may only be amended, modified,
superseded or canceled and any of the terms, covenants, representations, warranties or conditions
hereof may be waived only by an instrument in writing signed by each of the Parties.
Section 10. Entire Agreement. This Termination Agreement constitutes the entire
agreement and understanding of the Parties relating to the subject matter hereof and supersedes all
prior agreements and understandings relating to the subject matter hereof.
Section 11. Construction. This Termination Agreement has been negotiated by the
Parties and their respective legal counsel, and legal or equitable principles that might require
the construction of this Termination Agreement or any of its provisions against the Party
responsible for drafting this Termination Agreement will not apply in any construction or
interpretation of this Termination Agreement.
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this
Termination Agreement as of the date first written above.
| PRIMUS FINANCIAL PRODUCTS, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXXX BROTHERS SPECIAL FINANCING INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXXX BROTHERS HOLDINGS INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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