EX-10.38 3 a80367ex10-38.txt EXHIBIT 10.38 EXHIBIT 10.38 SWAP AGREEMENT BETWEEN THE COMPANY AND UNION BANK Union Bank of California Global Markets Group Securities Funding Operations 445 South Figueroa Street G11-101 Los Angeles, CA 90071 Date: July 24, 2001 To: Diodes, Inc. Attn: Carl Wertz Phone No: (805) 446-4800 ext: 125 Fax No: (805) 446-4850 FROM: CRISELDA SAMILEY DERIVATIVES OPERATIONS OFFICER Phone No: (213) 236-7958 Fax No.: (213) 236-7366 RE: SWAP TRANSACTION The purpose of this facsimile (this "Confirmation") is to confirm the terms and conditions of the Swap Transaction entered into between Union Bank of California, N.A. ("Party A") and Diodes, Inc. ("Party B") on the Trade Date specified below. The definitions and provisions contained in the 2000 ISDA Definitions, as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between those definitions and the provisions of this Confirmation, this Confirmation will govern. 1. ISDA AGREEMENT This Confirmation evidences a complete and binding agreement between us as to the terms of the Swap Transaction to which this Confirmation relates. In addition, you and we agree to use all reasonable efforts promptly to negotiate, execute and deliver an agreement in the form of the ISDA Master Agreement (Multicurrency -- Cross Border) (the "ISDA" Form"), with such modifications as you and we will in good faith agree. Upon the execution by you and us of such an agreement, this Confirmation will supplement, form a part of, and be subject to that agreement. All provisions contained in or incorporated by reference in that agreement upon its execution will govern this Confirmation except as expressly modified below. Until we execute and deliver that agreement, this Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the ISDA Form as if we had executed an agreement in such form (but without any Schedule except for the election of the laws of the State of California as the governing law and US Dollars as the Termination Currency) on the Trade Date specified below. In the event of any inconsistency between the provisions of that agreement and this Confirmation, this Confirmation will prevail for the purpose of this Swap Transaction. 2. SWAP TRANSACTION The terms of the particular Swap Transaction to which this Confirmation relates are as follows: Trade Date: July 24, 2001 Effective Date: July 31, 2001 Termination Date: November 30, 2004, subject to adjustment in accordance with the Modified Following Business Day Convention Notional Amount: USD 7,500,000 amortizing in accordance with the Outstanding Notional Balance Schedule attached hereto Business Days: New York and London Calculation Agent: Party A FIXED AMOUNTS: Fixed Rate Payer: Party B Fixed Rate: 4.70 percent Fixed Rate Day Count Fraction: Actual/360
56 Fixed Rate Payer Payment Dates: Last day of each month, from August 31, 2001 to the Termination Date inclusive, subject to adjustment in accordance with the Modified Following Business Day Convention FLOATING AMOUNTS: Floating Rate Payer: Party A Floating Rate Payer Payment Dates: Last day of each month, from August 31, 2001 to the Termination Date inclusive, subject to adjustment in accordance with the Modified Following Business Day Convention Floating Rate for the Initial Calculation Period: To be determined on July 27, 2001 Floating Rate Option: USD-LIBOR-BBA Designated Maturity: 1 month Spread: None Floating Rate Day Count Fraction: Actual/360 RESET DATES: THE FIRST DAY OF EACH CALCULATION PERIOD Method of Averaging: Inapplicable Compounding: Inapplicable
3. ACCOUNT DETAILS Payments to Party A: PLEASE ADVISE Bank: Union Bank of California, N.A. Account Name: ___________________ Account Number: ___________________ Payments to Party B: PLEASE ADVISE Bank: Union Bank of California, N.A. Account Name: __________________ Account Number: __________________ PARTY A OPERATIONS CONTACT Name: Criselda Samiley Tel. No: (213) 236-7958 Fax No: (213) 236-7366 PARTY B OPERATIONS CONTACT Name: Carl Wertz Tel. No: (805) 446-4800 ext: 125 Fax No: (805) 446-4850 4. OFFICES The Office of Party A for this Swap Transaction is Los Angeles, California. The Office of Party B for this Swap Transaction is Westlake Village, California. 5. OTHER PROVISIONS Each party represents and warrants to the other party that, in connection with this Swap Transaction, (i) it has and will continue to consult with its own legal, regulatory, tax, business, investment, financial and accounting advisors to the extent it deems necessary, and it has and will continue to make its own investment, hedging and trading decisions (including, without limitation, decisions regarding the appropriateness and/or suitability of this Swap Transaction) based upon its own independent judgment and upon any advice or recommendation from such advisors as it deems necessary, and not in reliance upon the other party hereto or any of its Affiliates or any of their respective officers, directors or employees, or any view expressed by any of them, (ii) it has evaluated and it fully understands all the terms, conditions and risks of this Swap Transaction, and it is willing to assume (financially and otherwise) all such risks, (iii) it has and will continue to act as principal and not agent of any person, and the other party hereto and its Affiliates have not and will not be acting as fiduciary or financial, investment, commodity trading or other advisor to it, and (iv) it is entering into this Swap Transaction in connection with its line of business. Please confirm that this facsimile correctly sets forth the terms of the Swap Transaction by executing the copy of this Confirmation for that purpose and returning it to us by facsimile transmission at (213) 236-7366. Union Bank of California, N.A. Diodes, Inc. By: /s/ Jeffrey Hiraishi By: /s/ Carl Wertz Name: Jeffrey Hiraishi Name: Carl Wertz Title: Assistant Vice President Title: CFO 57