EXHIBIT 10.7
LETTER AGREEMENT, DATED AS OF OCTOBER 11, 2000, AMENDED AS OF
NOVEMBER 3, 2000, BETWEEN SCOTIABANK AND TP HOLDINGS CORP.,
REGARDING
(i) USD 27,500,000.00MM INTEREST RATE SWAP TRANSACTION (REF: S24041)
AND
(ii) USD 25,000,000.00 MM INTEREST RATE SWAP TRANSACTION (REF: S24042)
SCOTIABANK
THE BANK OF NOVA SCOTIA
International Banking Division
Derivative Products
00 Xxxx Xx. Xxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
(416) 86~5-54l5
October 11, 2000
Amended November 3, 2000
TP HOLDINGS CORP
0000 X. Xxxxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
ATTENTION: XXXXXX XXXXXXX, CFO
Re: The Bank of Nova Scotia ("Party A")/TP Holdings
Corp ("Party B") Swap Transaction Our Reference
No. S24042 (Previously S23703)
-----------------------------------------------
Dear Sirs,
This transaction was affected through Scotia Capital (USA) Inc.,
a U.S. broker-dealer subsidiary of the Bank of Nova Scotia (BNS), who acted as
agent in the transaction.
The purpose of this letter is to confirm the terms and conditions
of the transaction entered into between us on the Trade Date specified below
(the "Transaction"). This letter agreement constitutes a "Confirmation" as
referred to in the ISDA Agreement specified below.
The definitions and provisions contained in the 1991 ISDA
Definitions (as amended and supplemented by the 1998 Supplement to the 1991 ISDA
Definitions) as published by the International Swaps and Derivatives
Association, Inc. ("ISDA") are incorporated into this Confirmation. This
Confirmation is subject to and incorporates the definitions contained in Section
14 of the form of the 1992 ISDA Master Agreement (Multicurrency - Cross Border),
but without any Schedule or other modification thereto, as published by ISDA
(the "ISDA Agreement"). In the event of any inconsistency between the
definitions contained in Section 14 of the ISDA Agreement and this Confirmation,
this Confirmation will govern. Until such time as an ISDA Agreement is entered
into between you and us, this Confirmation evidences a complete binding
agreement between you and us as to the terms of the Transaction to which this
Confirmation relates. Upon execution by you and us of an ISDA Agreement, with
such ISDA Agreement incorporating such modifications as you and we shall in good
faith agree, this Confirmation will supplement, form part of, and be subject to,
the ISDA Agreement. All provisions contained in the ISDA Agreement upon its
execution shall govern this Confirmation except as expressly modified below.
1. Each party will make each payment specified in this
Confirmation as being payable by it, not later than the due date for value on
that date in the place specified below, in freely transferable funds and in the
manner customary for such payments in the required
-2-
currency. If on any date amounts would otherwise be payable in the same currency
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
2. The following provisions will govern this Transaction until
such time as an ISDA Agreement is entered into between you and us whereupon such
provisions shall be replaced by the terms of the ISDA Agreement:
(a) If at any time, a party hereto shall (i) fail to make,
when due, any payment required of it under this Confirmation and if such
failure is not remedied within three Business Days following written notice
of such failure; (ii) fail to deliver, when due, any Collateral (as defined
below) required of it under this Confirmation; or (iii) becomes subject to
a Bankruptcy (as defined in Section 5(a)(vii) of the ISDA Agreement) (such
party being hereinafter referred to as the "Defaulting Party"), then the
other party (hereinafter referred to as the "Non-defaulting Party"), shall
have the right to early terminate and liquidate this Transaction, together
with all other Specified Transaction entered into between Party A and Party
B (collectively the "Terminated Transactions") and determine a net amount
due in respect of the Terminated Transactions in accordance with the early
termination payment calculation provisions of Section 6(e)(i) of the ISDA
Agreement based on a payment measure of Loss and a payment method of Second
Method. For purposes of giving effect to the foregoing, the Termination
Currency shall be United States Dollars.
(b) The Non-defaulting Party may exercise its right to early
termination and liquidate the Terminated Transactions by written notice to
the Defaulting Party, which notice shall set forth the amount of the
termination payment derived by the Non-defaulting Party as set forth above;
provided that, in the event the Defaulting Party becomes subject to a
Bankruptcy in the nature of any one of the events specified in Section
5(a)(vii) (1), (3), (4), (5), (6) or, to the extent analogous thereto, (8),
of the ISDA Agreement and any court, tribunal or regulatory authority with
competent jurisdiction acting pursuant to any bankruptcy or insolvency law
or other similar law affecting the Defaulting Party makes an order which
has or purports to have the effect of prohibiting the Non-defaulting Party
from terminating the Terminated Transactions at any time after the
occurrence of any such events, then the Terminated Transactions shall be
deemed to have been terminated immediately upon the occurrence of any of
the events specified in Section 5(a)(vii) (1) (3), (5), (6) or, to the
extent analogous thereto, (8) and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition in respect of Section 5(a)(vii) (4) or, to the extent analogous
thereto, (8).
(c) In the event the termination payment derived in
accordance with the foregoing represents an amount owing by the
Non-defaulting Party to the Defaulting Party, the Non-defaulting Party
shall have the right to set off such termination payment against any
amounts payable (whether at such time or in the future or upon the
-3-
occurrence of a contingency) by the Defaulting Party to the Non-defaulting
Party (irrespective of the currency or the place of payment of the
obligation) under any other agreement between the Defaulting Party and the
Non-defaulting Party (the "Other Agreement Amount"). For this purpose, the
termination payment of the Other Agreement Amount may be converted into the
currency in which the other is denominated by the Non-defaulting Party
acting in a commercially reasonable manner. If all or part of the Other
Agreement Amount is not then due, such Other Agreement Amount, or part
thereof, may be present-valued by the Non-defaulting Party acting in a
commercially reasonable manner. If all or part of the Other Agreement
Amount is unascertained, the Non-defaulting Party may in good faith
estimate such amount and set off in respect of the estimate subject to
accounting to the Defaulting Party when the obligation is ascertained.
3. Each of the parties hereto makes to the other each of the
"Basic Representations" contained in Section 3(a) and (c) of the ISDA Agreement.
4. Neither this Confirmation nor any interest or obligation in or
under this Confirmation may be transferred (whether by way of security or
otherwise) by either party without the prior written consent of the other party
and any purported transfer in violation hereof shall be void.
5. The Confirmation will be governed and construed in accordance
with the laws of the State of New York.
6. The terms of the particular Transaction to which this
Confirmation relates are as follows:
Notional Amount: USD 25,000,000.00
Trade Date: Oct 11, 2000
Effective Date: Oct 13, 2000
Termination Date Mar 31, 2003; subject to adjustment in accordance with
the Modified Following Business Day Convention
FIXED AMOUNTS:
Fixed Rate Payer: TP HOLDINGS CORP
Fixed Rate Payer Adjusted in accordance with the Modified Following
Payment Dates: Business Day Convention.
Dec 29, 2000 Mar 30, 2001 Jun 29, 2001 Sep 28, 2001
Dec 31, 2001 Mar 28, 2002 Jun 28, 2002 Sep 30, 2002
Dec 31, 2002 Mar 31, 2003
-4-
Fixed Rates: 6.60% Paid Quarterly
Fixed Rate Day
Count Fraction: Actual/36O
Business Days
for Payments London, New York
F1OATING AMOUNTS:
Floating Rate Payer: THE BANK OF NOVA SCOTIA
Floating Rate Payer
Payment Dates: Adjusted in accordance with the Modified
Following Business Day Convention.
Dec 29, 2000 Mar 30, 2001 Jun 29, 2001 Sep 28, 2001
Dec 3l, 2001 Mar 28, 2002 Jun 28, 2002 Sep 30, 2002
Dec 31, 2002 Mar 31, 2003
Floating Rate for initial
Calculation Period: 6.65% (For the period Oct 13, 2000 to
Dec 29, 2000)
Floating Rate Option: USD-LIBOR-BBA
Floating Rate Day
Count Fraction: Actual/360
Designated Maturity: 3-month
Spread: None
Reset Dates: The first date of the relevant
Calculation period.
Compounding: Inapplicable
'Business Days
for Payments: London, New York
Business Days
for Rate Resets: London
Calculation Agent: The Bank of Nova Scotia
-5-
7. Credit Support Documents: As per Credit Agreement Dated as of
July 27, 2000
8. Relationship Between Parties:
Each party will be deemed to represent to the other on the date
of this Confirmation on which it enters into a Transaction that (absent a
written agreement between the parties that expressly imposes affirmative
obligations to the contrary for the 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 advise from such advisors as it has deemed
necessary. It is not relying on any communication (written or oral) of the
other party as investment advise 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 advise or a recommendation to enter into that Transaction. It
has not received from the other party any 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 advise), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable of assuming
and assumes, the risk of that Transaction.
(c) STATUS OF PARTIES. The other party is not acting as a
fiduciary for or as an advisor to it in respect of that Transaction.
(d) COMMITMENT TO UNWIND. Neither party has committed to
unwind any Transaction.
9. Offices
(a) For purposes of this Transaction, the Office of The
Bank of Nova Scotia is Toronto, Ontario.
(b) For purposes of this Transaction, the Office of TP
Holdings Corp is Dallas, Texas.
10. Account Details
Payments to THE BANK OF NOVA SCOTIA:
Accounts for payments in USD: The Bank of Nova Scotia
New York Agency
1 Liberty Plaza, 000 Xxxxxxxx
00xx Xxxxx, X.X., Xxx Xxxx
XXX 0000-00000 A/C 6027-36
Attn: Derivative Products
-6-
Payments to TP HOLDINGS CORP:
Accounts for payments in USD: (Please provide upon return fax to
ensure prompt payment procedures)
11. The parties hereto agree that this Confirmation, whether
received in original or facsimile form, may be executed in counterparts, which
execution may be effected by means of facsimile transmission, and which when
taken together shall constitute a single and original agreement between the
parties and a binding supplement to the Agreement. Where execution is effected
by means of facsimile transmission, the parties agree that the sender's
signature as printed by the recipient's facsimile machine shall be deemed to be
the sender's original signature.
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.
Yours sincerely,
THE BANK OF NOVA SCOTIA
By:/s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager
By:/s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Confirmation Officer
Confirmed as of the date first written:
TP HOLDINGS CORP
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: CFO
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Controller
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SCOTIABANK
THE BANK OF NOVA SCOTIA
International Banking Division
Derivative Products
00 Xxxx Xx. Xxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
(416) 865-54l5
October 11, 2000
Amended November 3, 2000
TP HOLDINGS CORP
0000 X. Xxxxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
ATTENTION: XXXXXX XXXXXXX, CFO
Re: The Bank of Nova Scotia ("Party A")/TP Holdings
Corp ("Party B") Swap Transaction Our Reference
No. S24041 (Previously S23702)
-----------------------------------------------
Dear Sirs,
This transaction was affected through Scotia Capital (USA) Inc.,
a U.S. broker-dealer subsidiary of the Bank of Nova Scotia (BNS), who acted as
agent in the transaction.
The purpose of this letter is to confirm the terms and conditions
of the transaction entered into between us on the Trade Date specified below
(the "Transaction"). This letter agreement constitutes a "Confirmation" as
referred to in the ISDA Agreement specified below.
The definitions and provisions contained in the 1991 ISDA
Definitions (as amended and supplemented by the 1998 Supplement to the 1991 ISDA
Definitions) as published by the International Swaps and Derivatives
Association, Inc. (ISDA") are incorporated into this Confirmation. This
Confirmation is subject to and incorporates the definitions contained in Section
14 of the form of the 1992 ISDA Master Agreement (Multicurrency - Cross Border),
but without any Schedule or other modification thereto, as published by ISDA
(the "ISDA Agreement"). In the event of any inconsistency between the
definitions contained in Section 14 of the ISDA Agreement and this Confirmation,
this Confirmation will govern. Until such time as an ISDA Agreement is entered
into between you and us, this Confirmation evidences a complete binding
agreement between you and us as to the terms of the Transaction to which this
Confirmation relates. Upon execution by you and us of an ISDA Agreement, with
such ISDA Agreement incorporating such modifications as you and we shall in good
faith agree, this Confirmation will supplement, form part of, and be subject to,
the ISDA Agreement. All provisions contained in the ISDA Agreement upon its
execution shall govern this Confirmation except as expressly modified below.
1. Each party will make each payment specified in this
Confirmation as being payable by it, not later than the due date for value on
that date in the place specified below, in freely transferable funds and in the
manner customary for such payments in the required
currency. If on any date amounts would otherwise be payable in the same currency
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
2. The following provisions will govern this Transaction until
such time as an ISDA Agreement is entered into between you and us whereupon such
provisions shall be replaced by the terms of the ISDA Agreement:
(a) If at any time, a party hereto shall (i) fail to make,
when due, any payment required of it under this Confirmation and if such
failure is not remedied within three Business Days following written notice
of such failure; (ii) fail to deliver, when due, any Collateral (as defined
below) required of it under this Confirmation; or (iii) becomes subject to
a Bankruptcy (as defined in Section 5(a)(vii) of the ISDA Agreement) (such
party being hereinafter referred to as the "Defaulting Party"), then the
other party (hereinafter referred to as the "Non-defaulting Party"), shall
have the right to early terminate and liquidate this Transaction, together
with all other Specified Transaction entered into between Party A and Party
B (collectively the "Terminated Transactions") and determine a net amount
due in respect of the Terminated Transactions in accordance with the early
termination payment calculation provisions of Section 6(e)(i) of the ISDA
Agreement based on a payment measure of Loss and a payment method of Second
Method. For purposes of giving effect to the foregoing, the Termination
Currency shall be United States Dollars.
(b) The Non-defaulting Party may exercise its right to
early termination and liquidate the Terminated Transactions by written
notice to the Defaulting Party, which notice shall set forth the amount of
the termination payment derived by the Non-defaulting Party as set forth
above; provided that, in the event the Defaulting Party becomes subject to
a Bankruptcy in the nature of any one of the events specified in Section
5(a)(vii) (1), (3), (4), (5), (6) or, to the extent analogous thereto, (8),
of the ISDA Agreement and any court, tribunal or regulatory authority with
competent jurisdiction acting pursuant to any bankruptcy or insolvency law
or other similar law affecting the Defaulting Party makes an order which
has or purports to have the effect of prohibiting the Non-defaulting Party
from terminating the Terminated Transactions at any time after the
occurrence of any such events, then the Terminated Transactions shall be
deemed to have been terminated immediately upon the occurrence of any of
the events specified in Section 5(a)(vii) (1), (3), (5), (6) or, to the
extent analogous thereto, (8) and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition in respect of Section 5(a)(vii) (4) or, to the extent analogous
thereto, (8).
(c) In the event the termination payment derived in
accordance with the foregoing represents an amount owing by the
Non-defaulting Party to the Defaulting Party, the Non-defaulting Party
shall have the right to set off such termination payment against any
amounts payable (whether at such time or in the future or upon the
-2-
occurrence of a contingency) by the Defaulting Party to the Non-defaulting
Party (irrespective of the currency or the place of payment of the
obligation) under any other agreement between the Defaulting Party and the
Non-defaulting Party (the "Other Agreement Amount"). For this purpose, the
termination payment of the Other Agreement Amount may be converted into the
currency in which the other is denominated by the Non-defaulting Party
acting in a commercially reasonable manner. If all or part of the Other
Agreement Amount is not then due, such Other Agreement Amount, or part
thereof, may be present-valued by the Non-defaulting Party acting in a
commercially reasonable manner. If all or part of the Other Agreement
Amount is unascertained, the Non-defaulting Party may in good faith
estimate such amount and set off in respect of the estimate subject to
accounting to the Defaulting Party when the obligation is ascertained.
3. Each of the parties hereto makes to the other each of the
"Basic Representations" contained in Section 3(a) and (c) of the ISDA Agreement.
4. Neither this Confirmation nor any interest or obligation in or
under this Confirmation may be transferred (whether by way of security or
otherwise) by either party without the prior written consent of the other party
and any purported transfer in violation hereof shall be void.
5. The Confirmation will be governed and construed in accordance
with the laws of the State of New York.
6. The terms of the particular Transaction to which this
Confirmation relates are as follows:
Notional Amount: USD 27,500,000.00
Trade Date: Oct 11, 2000
Effective Date: Oct 13, 2000
Termination Date Mar 31, 2003; subject to adjustment in
accordance with the Modified Following
Business Day Convention
FIXED AMOUNTS:
Fixed Rate Payer: TP HOLDINGS CORP
Fixed Rate Payer Adjusted in accordance with the Modified
Payment Dates: Following Business Day Convention.
Dec 29, 2000 Mar 30, 2001 Jun 29, 2001 Sep 28, 2001
Dec 31, 2001 Mar 28, 2002 Jun 28, 2002 Sep 30, 2002
Dec 31, 2002 Mar 31, 2003
-3-
Fixed Rates: 6.6% Paid Quarterly
Fixed Rate Day
Count Fraction: Actual/360
Business Days
for Payments London, New York
F1OATING AMOUNTS:
Floating Rate Payer: THE BANK OF NOVA SCOTIA
Floating Rate Payer
Payment Dates: Adjusted in accordance with the Modified
Following Business Day Convention.
Dec 29, 2000 Mar 30, 2001 Jun 29, 2001 Sep 28, 2001
Dec 31, 2001 Mar 28, 2002 Jun 28, 2002 Sep 30, 2002
Dec 31, 2002 Mar 31, 2003
Floating Rate for initial
Calculation Period: 6.65% (For the period Oct 13, 2000 to
Dec 29, 2000)
Floating Rate Option: USD-LIBOR-BBA
Floating Rate Day
Count Fraction: Actual/360
Designated Maturity: 3-month
Spread: None
Reset Dates: The first date of the relevant Calculation
period.
Compounding: Inapplicable
Business Days
for Payments: London, New York
Business Days
for Rate Resets: London
Calculation Agent: The Bank of Nova Scotia
-4-
7. Credit Support Documents: As per Credit Agreement Dated as of
July 27, 2000
8. Relationship Between Parties:
Each party will be deemed to represent to the other on the date
of this Confirmation on which it enters into a Transaction that (absent a
written agreement between the parties that expressly imposes affirmative
obligations to the contrary for the 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 advise from such advisors as it has deemed
necessary. It is not relying on any communication (written or oral) of the
other party as investment advise 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 advise or a recommendation to enter into that Transaction. It
has not received from the other party any 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 advise), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable of assuming
and assumes, the risk of that Transaction.
(c) STATUS OF PARTIES. The other party is not acting as a
fiduciary for or as an advisor to it in respect of that Transaction.
(d) COMMITMENT TO UNWIND. Neither party has committed to
unwind any Transaction.
9. Offices
(a) For purposes of this Transaction, the Office of The
Bank of Nova Scotia is Toronto, Ontario.
(b) For purposes of this Transaction, the Office of TP'
Holdings Corp is Dallas, Texas.
10. Account Details
Payments to THE BANK OF NOVA SCOTIA:
Accounts for payments in USD: The Bank of Nova Scotia
New York Agency
1 Liberty Plaza, 000 Xxxxxxxx
00xx Xxxxx, X.X., Xxx Xxxx
XXX 0000-00000 A/C 6027-36
Attn: Derivative Products
-5-
Payments to TP HOLDINGS CORP:
Accounts for payments in USD: (Please provide upon return fax to
ensure prompt payment procedures)
11. The parties hereto agree that this Confirmation, whether
received in original or facsimile form, may be executed in counterparts, which
execution may be effected by means of facsimile transmission, and which when
taken together shall constitute a single and original agreement between the
parties and a binding supplement to the Agreement. Where execution is effected
by means of facsimile transmission, the parties agree that the sender's
signature as printed by the recipient's facsimile machine shall be deemed to be
the sender's original signature.
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.
Yours sincerely,
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Confirmation Officer
Confirmed as of the date first written:
TP HOLDINGS CORP
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: CFO
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Controller
-6-
