EX-10 5 att102swapagreement.txt SWAP AGREEMENT BETWEEN WINSLOEW AND CIBC Swap Agreement From CIBC 1 -------------------------------------------------------------------------------- Date: November 8, 2001 To: WinsLoew Furniture, Inc. From: Canadian Imperial Bank of Commerce (hereinafter referred (hereinafter referred to as CIBC) to as Counterparty) Attention: Randy Raiford Contact: Sarvneet Kohli Phone Number: (205) 408-7600 Phone Number: (212) 885-4413 Facsimile Number: (205) 408-7028 Facsimile Number: (212) 885-4378 Re: CIBC Reference # 424100 -------------------------------------------------------------------------------- The purpose of this letter (this Confirmation) is to confirm the terms and conditions of the Swap Transaction entered into between us 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 provisions and this Confirmation, this Confirmation will govern. This Confirmation evidences a complete and binding agreement between you and 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, together with all other documents referring to the ISDA Form (each a Confirmation) confirming transactions (each a Transaction) entered into between you and us (notwithstanding anything to the contrary in a 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 New York as the governing law and USD as the Termination Currency) on the Trade Date of the first such Transaction between us. In the event of any inconsistency between the provisions of that agreement and this Confirmation, this Confirmation will prevail for purposes of this Swap Transaction. 1. The terms of the particular Swap Transaction to which this Confirmation relates are as follows: Notional Amount: USD 100,000,000 (see attached Amortization Schedule) Trade Date: August 2, 2001 Effective Date: August 6, 2001 Termination Date: March 31, 2005, subject to adjustment in accordance with the Modified Following Business Day Convention. FIXED AMOUNTS: Fixed Rate Payer: Counterparty Fixed Rate Payer Payment Dates: The Last day of each March, June, September and December commencing on September 30, 2001 up to and including the Termination Date, subject to adjustment in accordance with the Business Day Convention. Notwithstanding section 4.13 of the Definitions, the Fixed Amount with respect to the initial Calculation Period shall accrue from and including August 6, 2001 up to but excluding September 30, 2001 Fixed Rate: 5.09% Fixed Rate Day Count Fraction: Actual/360 FLOATING AMOUNTS: Floating Rate Payer: CIBC Floating Rate Payer Payment Dates: The Last day of each March, June, September and December commencing on September 30, 2001 up to and including the Termination Date, subject to adjustment in accordance with the Business Day Convention. Notwithstanding section 4.13 of the Definitions, the Floating Amount with respect to the initial Calculation Period shall accrue from and including August 6, 2001 up to but excluding September 30, 2001 Floating Rate for initial Calculation Period: 3.69% Floating Rate Option: USD-LIBOR-BBA Designated Maturity: 3 months Spread: None Floating Rate Day Count Fraction: Actual/360 Reset Dates: The first Business Day of each Calculation Period. Compounding: Inapplicable Business Days: New York and London Calculation Agent: CIBC 2. ACCOUNT DETAILS: Payments to CIBC: Account for Payments: Chase Manhattan Bank, New York For the Account of: Canadian Imperial Bank of Commerce, Toronto Account No: 544-708-234 ABA No: 021 000 021 Payments to Counterparty: Account for Payments: Please Advise. 3. OTHER PROVISIONS: Transfer: Unless otherwise specified in the Master Agreement, neither the Swap Transaction nor any interest or obligation in or under the Swap Transaction may be transferred (whether by way of security or otherwise) by either party without the prior written consent of the other party. Any purported transfer that is not in compliance with this provision will be void. 4. OFFICES: (a) The Office of CIBC for the Swap Transaction is (b) The Office of Counterparty for the Swap Transaction is 160 Village Street, Birmingham, AL 35242. 5. BROKER/ARRANGER: None 6. This Confirmation may be executed in one or more counterparts, either in original or facsimile form, each of which shall constitute an original and all of which together shall constitute one and the same agreement. When executed by the parties through facsimile transmission, this Confirmation shall constitute the original agreement between the parties and the parties hereby adopt the signatures printed by the receiving facsimile machine as the original signatures of the parties. -------------------------------------------------------------------------------- Entering into a derivative transaction involves certain risks. An identification of the principal risks is provided in the CIBC World Markets Risk Disclosure Statement, which has been delivered to you. If you have not received a copy, please let us know and one will be provided to you. You should always consider those risks in determining whether to enter into derivatives transactions. Except as if expressly agreed to by you or us in writing, neither of us has acted as advisor to the other with respect to the desirability or appropriateness of entering into the Swap Transaction confirmed hereby or with respect to the other partys risk management needs generally. This pertains not only to the financial and market risk management risks and consequences of the confirmed or any proposed Swap Transaction, but also to any legal, regulatory, tax, accounting and credit issues generated by such transactions, which each party must evaluate for itself and in reliance on its own professional advisors. -------------------------------------------------------------------------------- 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 or by sending to us a letter or telex substantially similar to this letter, which letter or telex sets forth the material terms of the Swap Transaction to which this Confirmation relates and indicates your agreement to those terms. Yours Sincerely, Canadian Imperial Bank of Commerce By: _________________________________ Name: Gina S. Ghent Title: Executive Director Confirmed as of the date first above written: WINSLOEW FURNITURE, INC. By: _________________________________ Name: Title: