EXHIBIT 4
DEUTSCHE BANK [LOGO]
Sebastian Holdings Inc. Deutsche Bank AG London
Britannic House Winchester House
Providenciales ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Turks and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
27 January, 2005
Internal Reference:
SHARE SWAP TRANSACTION (PHYSICAL SETTLEMENT) - OUR TRANSACTION REFERENCE
NUMBER: [ ]
Dear Sir / Madam,
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the Transaction entered into between Deutsche Bank AG
acting through its London branch ("PARTY A") and Sebastian Holdings Inc
("PARTY B") on the Trade Date specified below (the "Transaction").
The definitions and provisions contained in the 2000 ISDA Definitions (the
"2000 Definitions") and in the 2002 ISDA Equity Derivatives Definitions (the
"Equity Definitions", and together with the 2000 Definitions, the
"Definitions"), in each case as published by the International Swaps and
Derivatives Association, Inc. are incorporated into this Confirmation. In
the event of any inconsistency between the 2000 Definitions and the Equity
Definitions, the Equity Definitions will govern. In the event of any
inconsistency between the Definitions and this Confirmation, this
Confirmation will govern. References herein to a "Transaction" shall be
deemed to be references to a "Swap Transaction" for the purposes of the 2000
Definitions.
1. This Confirmation evidences a complete and binding agreement
between you and us as to the terms of the Transaction to which this
Confirmation relates. It shall, together with all other documents
referring to the form of the ISDA 2002 Master Agreement (the "ISDA Form"
or the "Agreement") (each a "Confirmation") and confirming transactions
(each a "Transaction") entered into between us, be deemed to supplement,
form part of, and be subject to an agreement in the form of the ISDA
Form as if we had executed an agreement on the Trade Date of the first
such Transaction between us in such form with the Schedule thereto (i)
specifying only that (a) the governing law is English law and (b) the
Termination Currency is Euro, (ii) incorporating the addition to the
definition of Indemnifiable Tax" contained in page 49 of the ISDA "Users
Guide to the ISDA 2002 Master Agreement" and (iii) incorporating any
other modifications to the ISDA Form specified below (see Schedule One
hereto). All provisions contained or incorporated by reference in that
Agreement will govern this Confirmation and in the event of any
inconsistency between the terms of this Confirmation and the terms of
that Agreement, this Confirmation will prevail for the purposes of this
Transaction. In the event that an
Chairman of the Supervisory Board: Deutsche Bank AB is regulated by the
Rolf-E ▇▇▇▇▇▇ FSA for the conduct of designated
Board of Managing Directors: investment business in the UK, a
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Clemens Borsig, member of The London Stock Exchange
▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and is a stock corporation
von Heydebreck incorporated in the Federal Republic
of Germany HRB ▇▇. ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇; Branch
Registration No. in England
BR000005.
agreement in the form of the ISDA Form is subsequently executed between
the parties, this Confirmation will supplement, form part of, and be
subject to that agreement, and all provisions contained or incorporated by
reference in that agreement upon its execution will govern this
Confirmation and in the event of any inconsistency between the terms of
this Confirmation and the terms of that agreement, this Confirmation will
prevail for the purposes of this Transaction, save that the "Modifications
to the ISDA Form" provisions detailed herein and the terms set out in (i)
to (iii) of this paragraph will be superseded by the provisions of that
agreement.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
GENERAL TERMS:
Trade Date: 27 January 2005
Effective Date: Trade Date + 3 Business Days
Termination Date: 20 May, 2005 subject to
adjustment in accordance with
the Modified Following Business
Day Convention
Shares: Common Shares of ▇▇▇▇▇ ▇▇ (ISIN
Number: FR0000121881) (the
"Issuer")
Exchange(s): Euronext Paris SA
Related Exchange(s): Marche des Options Negociables
de Paris ("MONEP")
Clearance System(s): Euroclear France SA
Calculation Agent: Party A
STRUCTURING FEE:
Structuring Fee Payment Date: the Trade Date.
Structuring Fee Amount: Party B, in consideration for
Party A structuring this
Transaction, will pay Party A a
structuring fee equal to 65
basis points of the Equity
Notional Amount on the
Structuring Fee Payment Date.
EQUITY AMOUNTS PAYABLE:
Equity Amount Payer: Party B
Equity Amount Receiver: Party A
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Number of Shares: 9,500,000
Equity Notional Amount: Initial Price x Number of Shares
Equity Notional Reset: Inapplicable
Equity Amount: An amount payable in the
Settlement Currency as
determined by the Calculation
Agent in accordance with the
following formula.
B = Equity Notional Amount x
(FINAL PRICE - INITIAL PRICE)
-------------------------------
( Initial Price )
x Multiplier
Initial Price: The official closing price per
Share, as published by the
Exchange, on the Trade Date
Final Price: The official closing price per
Share, as published by the
Exchange, at the Valuation Time
on the Valuation Date
Valuation Time: The time at which the official
closing price per Share is
published and announced by the
Exchange
Valuation Date(s): Termination Date
Type of Return: Total Return
Multiplier: One
FIXED AMOUNTS PAYABLE:
Fixed Amount Payer: Party B
Notional Amount: The Equity Notional Amount
Payment Dates: The last day of each calendar
month during the period from and
including 28 February 2005 to
and including the Termination
Date, subject to adjustment in
accordance with the Modified
Following Business Day Convention
Fixed Amount: In respect of each Payment Date,
an amount (calculated on a per
annum basis) equal to the
Notional Amount x Fixed Rate x
Fixed Rate Day Count Fraction
Fixed Date: 6.5%, subject to adjustment in
accordance with
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the following procedure:
In the event of the occurrence
of an Underlying Adjustment
Event, Party A shall be entitled
to adjust the Fixed Rate upon
written notice thereof (the
"Adjustment Notice") to Party
B. Such adjustment shall take
effect, and shall be binding
upon both Party A and Party B,
on the day immediately following
the date of party A's Adjustment
Notice.
Party B Termination Right: In the event that Party A gives
an Adjustment Notice to Party B,
Party B shall have the right,
for a period of 5 days from the
date of the Adjustment Notice,
to request, on one Business
Day's written notice to Party A,
the termination of this
Transaction.
Underlying Adjustment Event: Means the:
1. announcement, proposal or
actual occurrence of any
merger or acquisition to
which the Issuer or any of
its Affiliates is a party;
2. issuance of an equity or
equity derivative by, or
in respect of the shares
of, the Issuer or any of
its Affiliates (including,
without limitation, local
shares, ADRs and GDRs); or
3. occurrence of a Disruption
Event having a material
adverse effect (as
determined by the
Calculation Agent) with
respect France, or the
French or international
advertising/media
industries (all as
determined by the
Calculation Agent).
Disruption Event: Means a natural or man-made
disaster, armed conflict, act of
terrorism, riot, labour
disruption or any other
circumstance whereby it becomes
impossible to perform any
absolute or contingent
obligation, to make a payment or
delivery or to receive a payment
or delivery in respect of the
Transaction or to comply with
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any other material provision of
the Agreement relating to the
Transaction, or any
circumstances whereby it becomes
impossible to perform the
foregoing or make any such
payment as a result of any law
(other than bankruptcy,
insolvency or similar laws),
order or other act or threat of
any authority (de jure or de
facto).
Affiliate: Means any entity controlled,
directly or indirectly, by the
Issuer, any entity that
controls, directly or
indirectly, the Issuer or any
entity directly or indirectly
under common control with the
Issuer. For this purpose,
"control" of any entity or
person means ownership of a
majority of the voting power of
the entity or person.
Fixed Rate Day Count Actual / 360
Fraction:
Business Days: Paris, Geneva and London
INITIAL EXCHANGE AMOUNTS PAYABLE:
Party A Initial Exchange Equity Notional Amount
Amount:
Party A Initial Exchange Trade Date + 3 Business Days
Date:
Party B Initial Exchange Not Applicable
Amount:
Party B Initial Exchange Not Applicable
Date:
FINAL EXCHANGE AMOUNTS PAYABLE:
Party A Final Exchange Not Applicable
Amount:
Party A Final Exchange Date: Not Applicable
Party B Final Exchange Equity Notional Amount
Amount:
Party B Final Exchange Date: Settlement Date
SETTLEMENT TERMS:
Physical Settlement: Applicable
Settlement Currency: EUR
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Settlement Date: Termination Date + 3 Business
Days
Settlement Method Election: Applicable
Electing Party: Party A
Settlement Method Election Termination Date
Date:
Default Settlement Method: Physical Settlement
Settlement Date: Termination Date + 3 Business
Days (if Cash Settlement is
elected)
DIVIDENDS:
Dividend Period First Period
Dividend Amount(s): Record Amount
Dividend Payment Date(s): 1 Business Day following receipt
by Party B of the relevant
dividend
Re-investment of Dividends: Inapplicable
SHARE ADJUSTMENTS:
Method of Adjustment Calculation Agent Adjustment
EXTRAORDINARY EVENTS:
Consequences of Merger Events:
(a) Share-for-Share: Modified Calculation Agent
Adjustment
(b) Share-for-Other: Modified Calculation Agent
Adjustment
(c) Share-for-Combined: Modified Calculation Agent
Adjustment
Determining Party: Party A
Tender Offer: Applicable
Consequences of Tender Offers:
(a) Share-for-Share: Modified Calculation Agent
Adjustment
(b) Share-for-Other: Modified Calculation Agent
Adjustment
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(c) Share-for-Combined: Modified Calculation Agent
Adjustment
Determining Party: Party A
Composition of
Combined
Consideration: Inapplicable
Nationalisation, Insolvency Cancellation and Payment
or De-listing:
Determining Party: Party A
ADDITIONAL DISRUPTION EVENTS:
Change in Law: Applicable, except that Section
12.9(a)(ii) is amended by the
replacement of the word "Shares"
with "Hedge Positions" and the
replacement of the words in the
last three lines starting "or
(Y) it will incur..." to "...on
its tax position)" with the
words "unless the illegality is
due to an act or omission of the
party seeking to elect
termination of the Transaction.
Failure to Deliver: Applicable
Insolvency Filing: Applicable
Hedging Disruption: Applicable
Hedging Party: Party A
Increased Cost of Hedging: Inapplicable
Hedging Party: Party A
Hedging Party: Party A
Determining Party: Party A
COLLATERAL:
As security for all of Party B's obligations to Party A under this
Transaction, Party B shall execute the pledge agreement attached hereto as
Schedule Two in favour of Party A (such pledge agreement shall for purposes
of the Agreement be regarded as a Credit Support Document).
-7-
REPRESENTATIONS:
Non-Reliance: Notwithstanding any communication that each
party (and/or its Affiliates) may have had
with the other party, each party to a
Transaction represents to the other party
that:
(a) it is entering into such Transaction
as principal (and not as agent or in
any other capacity);
(b) neither the other party nor any of its
Affiliates or agents are acting as
fiduciary for it;
(c) it is not relying upon any
representations except those whose
expressly set forth herein or in the
ISDA Master Agreement (including the
related Confirmations between them);
(d) it has consulted with its own legal,
regulatory, tax, business, investments,
financial, and accounting advisors to
the extent that it has deemed
necessary, and it has made its own
investment, hedging, and trading
decisions based upon its own judgment
and upon any advice from such advisors
as it has deemed necessary and not upon
any view expressed by the other party
or any of its Affiliates or agents; and
(e) it is entering into such Transaction
with a full understanding of the terms,
conditions and risks thereof and it is
capable of and willing to assume those
risks.
Agreement and Acknowledgments
Regarding Hedging Activities: Applicable
Additional Acknowledgments: Applicable
(1) Party B is an Offshore Client. For purposes hereof "Offshore
Client" means Party B, or any entity which beneficially owns
substantially all of Party B's outstanding voting securities, is
not organized or incorporated under the laws of the US and not
engaged in a trade or business in the US for US federal income tax
purposes; and
(2) For Transactions involving securities other than Foreign
Securities, the person making the investment decision and/or
placing the order ("Decision Maker") on behalf of the Party B for
the Transaction is not located or present in the U.S. For purposes
hereof, "Foreign Securities" means (i) a security issued by an
issuer not organized or incorporated under the laws of the US when
the transaction in such security is not effected on a US exchange
or through the NASDAQ system or (ii) a debt security (including a
convertible debt security) issued by an issuer organized or
incorporated in the US in connection with a distribution conducted
-8-
outside the US; or (iii) any OTC derivative, the reference security
of which is either (i) or (ii); and
(3) Party B is neither a "United States person" nor a "Foreign person
controlled by or acting on behalf of or in conjunction with a
United States person" as such terms are used in Regulation X issued
by the Board of Governors of the Federal Reserve System under the
United States Securities Exchange Act of 1934. Reg. X defines
"United States person" to include: "a person which is organized or
exists under the laws of any state [of the United States] or, in
the case of a natural person, a citizen or resident of the United
States; a domestic estate; or a trust in which one or more of the
foregoing persons has a cumulative direct or indirect beneficial
interest in excess of 50% of the value of the trust." Reg X defines
"Foreign person controlled by a United States person" to include
"any noncorporate entity in which United States persons directly or
indirectly have more than a 50% beneficial interest, and any
corporation in which one or more United States persons, directly or
indirectly, own stock possessing more than 50% of the total
combined voting power of all classes of stock entitled to vote, or
more than 50% of the total value of shares of all classes of stock."
PARTY B REPRESENTATIONS. Party B represents with Party A, that:
(1) (i) Party B has (and will at all times during the Transaction
have) the capacity and authority to invest directly in the shares
underlying the Transaction, and has not entered into any
Transaction with the intent of avoiding any regulatory filings; and
(ii) Party B has acquired the shares underlying the Transaction for the
purpose of ... enhancing the value of our existing in the company by
adding voting rights.
(2) on behalf of itself and on behalf of each Relevant Individual (as
defined below), that --
(a) Neither Party B nor any individual who is an officer,
director or employee of Party B or of its subsidiaries or of
its holding company or of any subsidiary of its holding
company who has knowledge of the Transaction (each a
"Relevant Individual") is in possession of information
relating to, or to the securities of the Issuer which has
not been made public and which if it were made public would
be likely to have a significant effect on the price
(including the value) of any such securities ("price
sensitive information").
(b) Neither Party B nor any Relevant Individual is, or at any
time up until immediately after the termination of the
Transaction will be, engaged in insider dealing for the
purposes of the UK Criminal Justice ▇▇▇ ▇▇▇▇ or comparable
legislation of any other applicable jurisdiction.
(c) Neither Party B nor any Relevant Individual know of any
plans (which are not in the public domain) to announce any
transaction or matter
-9-
which might have a significant effect on, or be likely
materially to affect, the price of the securities of the
Issuer.
(d) Party B and each Relevant Individual has and will at all
times fully comply with all applicable laws and regulations
in each relevant jurisdiction with regard to the
Transaction, including without limitation, those obligations
arising with regard to disclosure under the UK Companies ▇▇▇
▇▇▇▇, the City Code on Takeovers and Mergers, the Rules
Governing Substantial Acquisition of Shares (this
representation and warranty shall be deemed to be continuing
and repeated for the period up until immediately after the
termination of the Transaction).
(e) Without prejudice to (d) above, in entering in to the
Transaction, neither Party B nor any Relevant Individual is,
or at any time up until immediately after the termination of
a Transaction will be, engaged in market abuse for the
purposes of the Financial Services and Markets ▇▇▇ ▇▇▇▇ or
any comparable applicable legislation..
(f) Party B has taken independent legal advice with regard to
the Transaction and to the warranties, representations and
undertakings made herein and its obligations under all
applicable laws and regulations and agreements entered into
by Party B.
(g) Party B has fully disclosed to Party A its reasons and
objectives in entering into the Transaction, which it hereby
confirms are within its corporate powers and constitute a
genuine and legitimate business and commercial purpose.
(h) The Transaction itself will not lead to Party A possessing
price sensitive information in relation to the Issuer.
(i) Party B will comply with all applicable laws and regulations
in each applicable jurisdiction with regard to the
Transaction.
(j) Neither Party B nor any of the companies in its Group nor
any Relevant Individual to whom privileged information
(within the meaning of article 465-1 of the French Code
Monetaire et Financier and articles 621-1, 621-2 and 621-3
of the General Regulations of the Autorite des Marches
Financiers) relating to the Issuer, the Issuer's securities
or the Transaction has been disclosed, or who is in
possession of such privileged information shall:
(A) in breach of article 465-1 of the French CODE MONETAIRE
ET FINANCIER and articles 622-1 and 622-2 of the
General Regulations of the AUTORITE DES MARCHES
FINANCIERS (i) deal or trade in, directly or
indirectly, or cause or procure any other person to
deal or trade in, any shares or convertible
-10-
bonds of the Issuer or other securities or
financial instruments linked to such shares, or
convertible bonds or other securities, (ii) offer or
agree to enter into any other acquisition or other
transaction relating to the Issuer, or (iii) disclose
such privileged information to any person;
(B) in breach of article 465-2 of the French CODE MONETAIRE
et FINANCIER and article 632-1 of the General
Regulations of the AUTORITE DES MARCHES FINANCIERS
disclose or disseminate false, incorrect or misleading
information relating to the Issuer or do, or procure or
cause any person to do any act which could mislead any
other person and/or prevent the proper functioning of a
financial instruments exchange on which the Issuer's
securities are listed;
(C) in breach of articles 631-1 and 631-2 of the General
Regulations of the AUTORITE DES MARCHES FINANCIERS
engage in market manipulation with respect to the
Issuer's securities.
"Group" shall mean in relation to a Party, that company,
its holding company, its subsidiaries and the subsidiaries
of its holding company for the time being.
(k) Neither Party B nor any Relevant Individual:
(A) is entering into this Transaction for the purpose of
affecting (or with the intent to affect) the market
price of the securities of the Issuer or derivatives
(or other financial instruments) relating to the
securities of the Issuer (the "Relevant Securities");
and/or
(B) will enter into any transactions with the purpose of
affecting (or with the intent to affect) the market
price of the Relevant Securities; and/or
(C) has the intention or purpose, in entering into this
Transaction, to cause the Price of Relevant Securities
to increase with a view to benefit from such increase
by disposing of its holding of Relevant Securities.
For purposes of this section "RELEVANT RULES" refers to the UK
Companies ▇▇▇ ▇▇▇▇ and the UK Listings Rules.
3. ACCOUNT DETAILS:
Payments to Party A: [REDACTED]
-11-
Beneficiary: Deutsche Bank AG
London
Payments to Party B: To be advised
4. CONTACT NAMES:
CONFIRMATIONS [REDACTED]
Telephone: [REDACTED]
Fax: [REDACTED]
e-mail address: [REDACTED]
ISDA NEGOTIATION [REDACTED]
Telephone: [REDACTED]
Fax: [REDACTED]
PAYMENTS/FIXINGS [REDACTED]
Telephone: [REDACTED]
Fax: [REDACTED]
e-mail address: [REDACTED]
5. OFFICES: The Office of Party A for the
Transaction is London.
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THIS MESSAGE WILL BE THE ONLY FORM OF CONFIRMATION DESPATCHED BY US. PLEASE
EXECUTE AND RETURN IT BY FACSIMILE IMMEDIATELY TO FAX NUMBER ▇▇▇ ▇▇▇ ▇▇▇
4913. IF YOU WISH TO EXCHANGE HARD COPY FORMS OF THIS CONFIRMATION PLEASE
CONTACT US.
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 faithfully,
for and on behalf of
DEUTSCHE BANK AG LONDON
By: By:
--------------------------- -----------------------------------
Name: Name:
Title: Title:
Confirmed as of the date first above written:
SEBASTIAN HOLDINGS INC
By: By:
--------------------------- ------------------------------------
Name: Name:
Title: Title:
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SCHEDULE ONE
OTHER MODIFICATIONS TO THE ISDA FORM
For purposes of the Transaction the following shall apply -
(a) "SPECIFIED ENTITY" means:
(i) in relation to Party A: Not Applicable
(ii) in relation to Party B, or the purposes of:
Section 5(a)(v): Not applicable
Section 5(a)(vi): Not applicable
Section 5(a)(vii): Not applicable
Section 5(b)(v): Not applicable
(b) "SPECIFIED TRANSACTION" has the meaning specified in Section 14 of this
Agreement.
(c) The "Cross Default" provisions of Section 5(a)(vi) will apply to both
parties subject to amendment by adding at the end thereof the following
words:
"provided, however, that, notwithstanding the foregoing, an Event of
Default will not occur under either (1) or (2) above if (A) (I) the
default, or other similar event or condition referred to in (1) or the
failure to pay referred to in (2) is a failure to pay or deliver caused
by an error or omission of an administrative or operational nature, and
(II) funds or the asset to be delivered were available to such party to
enable it to make the relevant payment or delivery when due and (III)
such payment or delivery is made within three (3) Local Business Days
following receipt of written notice from an interested party of such
failure to pay, or (B) such party was precluded from paying, or was
unable to pay, using reasonable means, through the office of the party
through which it was acting for purposes of the relevant Specified
Indebtedness, by reason of force majeure, act of State, illegality or
impossibility."
If such provisions apply:
"Specified Indebtedness" means any obligation (whether present or
future, contingent or otherwise, as principal or surety or otherwise) in
respect of borrowed money other than indebtedness in respect of bank
deposits received in the ordinary course of business.
With regard to Party A, "Threshold Amount" means 1% of its shareholders'
equity (as calculated in accordance with generally accepted accountancy
principles applicable to Party A.)
With regard to Party B, any applicable Specified Entity of Party B or
any Credit Support
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Provider of Party B, "Threshold Amount" means 1% of the shareholders'
equity of Party B (as calculated in accordance with generally accepted
accountancy principles applicable to Party B).
(d) The "CREDIT EVENT UPON MERGER" provision in Section 5(b)(v) will apply
to both parties.
(e) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not
apply to Party A and will apply to Party B.
(f) "ADDITIONAL TERMINATION EVENT" will not apply to either party.
(g) For the purposes of Section 4(a)(ii), the other documents to be
delivered (which will be covered by the representation in Section 3(d)
of the Agreement if specified) are as follows:
------------------------------------------------------------------------
PARTY FORM/DOCUMENT/ DATE BY WHICH COVERED BY
REQUIRED TO CERTIFICATE TO BE DELIVERED SECTION 3(D)
DELIVER REPRESENTATION
DOCUMENTS
------------------------------------------------------------------------
Party B Evidence of the Upon execution Yes
authority, incumbency of this
and specimen signature Agreement or
of each person any
executing this Confirmation
Agreement or any (or,
Confirmation, Credit alternatively
Support Document or in relation to
other document entered a Confirmation,
into in connection upon request),
therewith. Credit Support
Document or
other document
entered into in
connection
therewith, as
the case may be.
------------------------------------------------------------------------
------------------------------------------------------------------------
Party B A copy of (i) the Upon execution Yes.
resolution of the of this
Board of Directors of Agreement.
Party B approving the
entering into of this
Agreement and the
Transactions
contemplated hereby,
(ii) the resolution of
the Board of Directors
of Party B's Credit
Support Provider (if
any) approving the
delivery to Party A of
the Credit Support
Document and (iii) a
copy of the
constituent documents
of Party
-15-
------------------------------------------------------------------------
PARTY FORM/DOCUMENT/ DATE BY WHICH COVERED BY
REQUIRED TO CERTIFICATE TO BE DELIVERED SECTION 3(D)
DELIVER REPRESENTATION
DOCUMENTS
------------------------------------------------------------------------
B and Party B's
Credit Support
Provider (if any), in
each case certified by
an authorised officer
of Party B or the
Credit Support
Provider (as the case
may be) that such
documents are in full
force and effect.
------------------------------------------------------------------------
------------------------------------------------------------------------
Party B Unless otherwise Within one No
agreed by Party A in month of the
writing, legal Trade Date,
opinions in a form unless
satisfactory to Party otherwise
A with respect to (i) agreed in
this Transaction, (ii) writing by
the enforceability of Party A. In
the Credit Support the event Party
Document under Swiss B does not
law, and (iii) the furnish
enforceability of the satisfactory
Credit Support opinions to
Document under French Party A within
Law. such time
frame, Party A
shall be
entitled to
terminate this
Transaction
with immediate
effect at no
cost to Party
A, and to
recover from
Party B (i) all
expenses, fees
and costs by
incurred by
Party A, and
(ii) all
outstanding
fees and other
amounts owed by
Party B to
Party A.
------------------------------------------------------------------------
MISCELLANEOUS
(a) ADDRESS FOR NOTICES. For the purpose of Section 12(a) of this
Agreement, the addresses for notices and communications to Party A and
Party B will be as follows:
TO PARTY A:
All notices to Party A under Section 5 or 6 of the Agreement (other than
notices under Section 5(a)(i)) will be sent to the address of Party A
specified on the confirmation letterhead.
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All other notices to Party A will be sent directly to the Office through
which Party A is acting for the relevant Transaction, using the address
and contact particulars specified in the Confirmation of that
Transaction or otherwise notified.
TO PARTY B: SEBASTIAN HOLDINGS INC.
BRITANNIC HOUSE
PROVIDENCIALES
TURKS AND CAICOS ISLANDS
BRITISH WEST INDIES
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇
Fax No: ▇▇▇▇.▇▇.▇▇.▇▇.▇▇
E-mail: ▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
cc: VIK Brother Inc.
▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
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Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇
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(b) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(c) MULTIBRANCH PARTY. For purpose of Section 10(b) of this Agreement,
neither party is a multibranch party.
OTHER PROVISIONS
(a) SET OFF
Section 6(f) of this Agreement is deleted in its entirety and replaced
with the following:
"(f) Upon the designation of any Early Termination Date, the party that
is not the Defaulting Party or Affected Party ("X") may, without
prior notice to the Defaulting or Affected Party ("Y"), set off any
sum or obligation (whether or not arising under this Agreement,
whether matured or unmatured, whether or not contingent and
irrespective of the currency, place of payment or booking office of
the sum or obligation) owed by Y to X or any Affiliate of X (the "X
Set Off Amount") against any sum or obligation (whether or not
arising under this Agreement, whether matured or unmatured, whether
or not contingent and irrespective of the currency, place of
payment or booking office of the sum or obligation) owed by X or
any Affiliate of X to Y (the "Y Set Off Amount"). X will give
notice to the other party of any set off effected under this
Section 6(f).
For this purpose, either the X Set Off Amount or the Y Set Off
Amount (or the relevant portion of such set off amounts) may be
converted by X into the currency in which the other set off amount
is denominated at the rate of exchange at which X would be able,
acting in a reasonable manner and in good faith, to
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purchase the relevant amount of such currency.
If a sum or obligation is unascertained, X 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 Section 6(f) will be effective to create a charge
or other security interest. This Section 6(f) will be without
prejudice and in addition to any right of set-off, combination of
accounts, lien or other rights to which any party is at any time
otherwise entitled (whether by operation of law, contract or
otherwise)."
(b) COUNTERPARTS AND CONFIRMATIONS
Section 9(e)(i) is modified by the deletion of the words "and by
electronic messaging system".
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SCHEDULE 2
PLEDGE AGREEMENT
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