CUSIP No. 918270-10-9 13D Page 6 of 21 Pages
EXHIBIT 3.3.1
SCHEDULE
to the Interest Rate and Currency Exchange Agreement
dated as of 8th February 1993
between
SWISS BANK CORPORATION, INTEL CORPORATION
ACTING THROUGH ITS LONDON BRANCH and
("Party A") ("Party B")
PART 1
TERMINATION PROVISIONS
In this Agreement:-
(1) "Specified Entity" means
in relation to Party A for the purpose of:-
Section 5(a)(iii) and (iv) and Section 5(b)(i) NONE
Section 5(a)(v) NONE
Section 5(a)(vi) NONE
Section 5(a)(vii) NONE
in relation to Party B for the purpose of:-
Section 5(a)(iii) and (iv) and Section 5(b)(i) NONE
Section 5(a)(v) NONE
Section 5(a)(vi) NONE
Section 5(a)(vii) NONE
(2) "Specified Swap" will have the meaning specified in Section 14 as
supplemented, by Part 6(1) hereof.
(3) The "Cross Default" provisions of Section 5(a)(vi) will apply to both
parties and any Specified Entity but shall exclude any default that
results solely from wire transfer difficulties or an error or omission
of an administrative or operational nature (so long as sufficient
funds are available), or from the general unavailability or
inaccessibility of the currency in which such Specified Indebtedness
is denominated due to exchange controls or similar or other
governmental action (but only if payment is made within three Business
Days after such transfer difficulties have been corrected, the error
or omission has been discovered or such currency becomes available),
or is being contested in good faith by appropriate proceedings.
If such provisions apply:-
"Specified Indebtedness" will have the meaning specified in Section 14.
CUSIP No. 918270-10-9 13D Page 7 of 21 Pages
"Threshold Amount" means
(i) with respect to Party A, 2% of the stockholders equity of
Swiss Bank Corporation as shown on the most recent annual
audited financial statements of Swiss Bank Corporation and
(ii) with respect to Party B U.S. Dollars 25mm.
(4) "Termination Currency" means United States Dollars.
(5) The "Credit Event Upon Merger" provisions of Section 5(b)(iv)
will apply to Party A
will apply to Party B
PART 2
TAX REPRESENTATIONS
Representations of Party A
(1) Payer Tax Representation. For the purpose of Section 3(e), Party A
will make the following representation:-
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e)) to be
made by it to the other party under this Agreement. In making this
representation, it may rely on:
(i) the accuracy of any representation made by the other party pursuant to
Section 3(f);
(ii) the satisfaction of the agreement of the other party contained in
Section 4(a)(i) and the accuracy and effectiveness of any document
provided by the other party pursuant to Section 4(a)(i); and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d).
(2) Payee Tax Representations. For the purpose of Section 3(f), Party A
makes the representation(s) specified below:-
(a) The following representation will not apply:-
It is fully eligible for the benefits of the "Business Profits" or
"Industrial and Commercial Profits" provision, as the case may be, the
"Interest" provision or the "Other Income" provision (if any) of the
Specified Treaty with respect to any payment described in such
provisions and received or to be received by it in connection with
this Agreement and no such payment is attributable to a trade or
business carried on by it through a permanent establishment in the
Specified Jurisdiction.
If such representation applies, then:-
"Specified Treaty" means, NOT APPLICABLE
"Specified Jurisdiction" means, NOT APPLICABLE
CUSIP No. 918270-10-9 13D Page 8 of 21 Pages
(b) The following representation will not apply:-
Each payment received or to be received by it in connection with this
Agreement relates to the regular business operations of the party (and
not to an investment of the party).
(c) The following representation will not apply:-
Each payment received or to be received by it in connection with this
Agreement will be effectively connected with its conduct of a trade or
business in Specified Jurisdiction.
If such representation applies, then "Specified Jurisdiction" means
NOT APPLICABLE.
(d) The following representation will not apply:-
It is a bank recognised by the United Kingdom Inland Revenue as
carrying on a bona fide banking business in the United Kingdom, is
entering into this Agreement in the ordinary course of such business
and will bring into account payments made and received under this
Agreement in computing its income for United Kingdom tax purposes.
(e) Other representations:- NONE
Representations of Party B
(1) Payer Tax Representation. For the purpose of Section 3(e), Party B
will make the following representation:-
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e)) to
be made by it to the other party under this Agreement. In making this
representation, it may rely on:-
(i) the accuracy of any representation made by the other party pursuant to
Section 3(f);
(ii) the satisfaction of the agreement of the other party contained in
Section 4(a)(i) and the accuracy and effectiveness of any document
provided by the other party pursuant to Section 4(a)(i); and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d).
(2) Payee Tax Representations. For the purpose of Section 3(f), Party B
makes the representation(s) specified below:-
(a) The following representation will not apply:-
It is fully eligible for the benefits of the "Business Profits" or
"Industrial and Commercial Profits" provision, as the case may be, the
"Interest" provision or the "Other Income" provision (if any) of the
Specified Treaty with respect to any payment described in such
provisions and received or to be received by it in connection with
this Agreement and no such payment is attributable to a trade or
business carried on by it through a permanent establishment in the
Specified Jurisdiction.
If such representation applies, then:-
"Specified Treaty" means, NOT APPLICABLE
"Specified Jurisdiction" means, NOT APPLICABLE
CUSIP No. 918270-10-9 13D Page 9 of 21 Pages
(b) The following representation will not apply:-
Each payment received or to be received by it in connection with this
Agreement relates to the regular business operations of the party (and
not to an investment of the party).
(c) The following representation will not apply:-
Each payment received or to be received by it in connection with this
Agreement will be effectively connected with its conduct of a trade or
business in Specified Jurisdiction.
If such representation applies, then "Specified Jurisdiction" means
NOT APPLICABLE.
(d) The following representation will not apply:-
It is a bank recognised by the United Kingdom Inland Revenue as
carrying on a bona fide banking business in the United Kingdom, is
entering into this Agreement in the ordinary course of such business
and will bring into account payments made and received under this
Agreement in computing its income for United Kingdom tax purposes.
(e) Other representations:- NONE
PART 3
DOCUMENTS TO BE DELIVERED
For the purpose of Section 4(a):-
(1) Tax forms, documents or certificates to be delivered are:-
Party required to Form/Document/ Date by which
deliver document Certificate to be delivered
----------------------------------------------------------------------------
NONE
(2) Other documents to be delivered are:-
Party required to Form/Document/ Date by which Covered by Section
deliver document Certificate to be delivered 3(d) Representation
------------------------------------------------------------------------------------------------
PARTY A SIGNATURE ON OR BEFORE YES
AND AUTHENTICATION EXECUTION OF THIS
PARTY B SATISFACTORY TO AGREEMENT
THE OTHER PARTY
HERETO
PARTY B RESOLUTION ON OR BEFORE EXECUTION YES
OF THIS AGREEMENT
CUSIP No. 918270-10-9 13D Page 10 of 21 Pages
PART 4
MISCELLANEOUS
(1) Governing Law. This Agreement will be governed by and construed in
accordance with New York law without reference to the choice of laws
doctrine.
(2) Process Agent. For the purpose of Section 13(c):-
Party A appoints as its Process Agent: NOT APPLICABLE
Party B appoints as its Process Agent:
Address: Swiss Bank Corporation, Swiss Bank Tower, PO Box 395,
Church Street Station, New York, NY 10008, USA
Attention: Mary Lou Bartelli
(3) "Affiliate" will have the meaning specified in Section 14.
(4) Multibranch Party. For the purpose of Section 10:-
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(5) Addresses for Notices. For the purposes of Section 12(a):-
Address for notices or communications to Party A:-
Address: Swiss Bank House, 1 High Timber Street, London EC4V
3SB.
Attention: Swaps Group
Telex: 887434 Answerback: SBCO G
Address for notices or communications to Party B:-
Address: [PLEASE ADVISE]
Attention:
Telex: Answerback:
(6) Credit Support Document. Details of any Credit Support Document:-
NONE
(7) Netting of Payments. If indicated here, "Net Payments - Corresponding
Payment Dates" will apply for the purpose of Section
2(c) with effect from the date of this Agreement:- NO
PART 5
OTHER PROVISIONS
(1) Section 7 is amended by the insertion of "(1)" between "Schedule," and
"neither" in line 1 and the insertion of a new paragraph at the end
thereof: "(2) notwithstanding the above Party A may transfer its
rights and obligations under this Agreement in whole (but not in part)
to any full branch of Swiss Bank Corporation provided that no
Illegality, Tax Event, Event of Default or Termination Event would
thereupon occur and that the representations in Section 3(a) would, if
thereupon made by the transferee, be accurate".
(2) The parties hereto in consideration of the mutual agreements contained
herein agree that this Agreement is deemed to be effective from the
date specified on the front page of this Agreement.
CUSIP No. 918270-10-9 13D Page 11 of 21 Pages
PART 6
MAY 1989 ADDENDUM TO SCHEDULE TO
INTEREST RATE AND CURRENCY EXCHANGE AGREEMENT
INTEREST RATE CAPS, COLLARS AND FLOORS
(1) As used in this Agreement or in a Confirmation, (i) "Rate Protection
Transaction" will mean any Swap Transaction that is identified in the
related Confirmation as a Rate Protection Transaction, Rate Cap
Transaction, Rate Floor Transaction or Rate Collar Transaction and
(ii) "Specified Swap" means, notwithstanding Section 14 of this
Agreement but subject to Part 1 of this Schedule, any rate swap, rate
cap, rate floor, rate collar, currency exchange transaction, forward
rate agreement, or other exchange or rate protection transaction, or
any combination of such transactions or agreements or any option with
respect to any such transaction now existing or hereafter entered into
between one part to this Agreement (or any applicable Specified
Entity) and the other party to this Agreement (or any applicable
Specified Entity).
(2) Notwithstanding anything to the contrary in this Agreement or in any
Interest Rate and Currency Exchange Definitions published by the
International Swap Dealers Association, Inc. and incorporated in any
Confirmation, the following provisions will apply with respect to a
Rate Protection Transaction:
(a) The Floating Rate applicable to any Calculation Period will be (i)
with respect to a Floating Rate Payer for which a Cap Rate is
specified, the excess, if any, of the floating Rate calculated as
provided in this Agreement (without reference to this paragraph 2(a))
over the Cap Rate and (ii) with respect to a Floating Rate Payer for
which a Floor Rate is specified, the excess, if any, of the Floor Rate
over the Floating Rate calculated as provided in this Agreement
(without reference to this paragraph 2(a));
(b) "Cap Rate" means, in respect of any Calculation Period, the per annum
rate specified as such for that Calculation Period; and
(c) "Floor Rate" means, in respect of any Calculation Period, the per
annum rate specified as such for that Calculation Period.
(3) For purposes of the determination of a Market Quotation for a
Terminated Transaction in respect of which a party ("X") had,
immediately prior to the designation or occurrence of the relevant
Early Termination Date, no future payment obligations, whether
absolute or contingent, under Section 2(a)(i) of this Agreement with
respect to the Terminated Transaction, (i) the quotations obtained
from Reference Market-makers shall be such as to preserve the economic
equivalent of the payment obligations of the party ("Y") that had,
immediately prior to the designation or occurrence of the relevant
early Termination Date, future payment obligations, whether absolute
or contingent, under Section 2(a)(i) of this Agreement with respect to
the Terminated Transaction and (ii) if X is making the determination
such amounts shall be expressed as positive amounts and if Y is making
the determination such amounts shall be expressed as negative amounts.
(4) Notwithstanding the terms of Sections 5 and 6 of this Agreement, if at
any time and so long as one of the parties to this Agreement ("X")
shall have satisfied in full all its payment obligations under Section
2(a)(i) of this Agreement and shall at the time have no future payment
obligations, whether absolute or contingent, under such Section, then
unless the other party ("Y") is required pursuant to appropriate
proceedings to return to X or otherwise returns to X upon demand of X
any portion of any such payment, (a) the occurrence of an event
described in Section 5(a) of this Agreement with respect to X or any
Specified Entity of X shall not constitute an Event of Default or a
Potential Event of Default with respect to X as the Defaulting Party
and (b) Y shall be entitled to designate an Early Termination Date
pursuant to Section 6 of this Agreement only as a result of the
occurrence of a Termination
CUSIP No. 918270-10-9 13D Page 12 of 21 Pages
Event set forth in (i) either Section 5(b)(i) or 5(b)(ii) of this
Agreement with respect to Y as the Affected Party or (ii) Section
5(b)(iii) of this Agreement with respect to Y as the Burdened Party.
CUSIP No. 918270-10-9 13D Page 13 of 21 Pages
PART 7
JULY 1990 ADDENDUM TO SCHEDULE TO
INTEREST RATE AND CURRENCY EXCHANGE AGREEMENT
OPTIONS
(1) As used in this Agreement or in any Confirmation, "Option" means any
Swap Transaction that is identified in the related Confirmation as an
Option and provides for the grant by Seller to Buyer of (i) the right
to cause an underlying Swap Transaction, the terms of which are
identified in that Confirmation (an "Underlying Swap Transaction"), to
become effective, (ii) the right to cause Seller to pay Buyer pursuant
to Section 2(a)(i) of this Agreement the Cash Settlement Amount, if
any, in respect of the Underlying Swap Transaction on the Cash
Settlement Payment Date, (iii) the right to cause the Optional
Termination Date to become the Termination Date and, if so specified
in the related Confirmation, the Final Exchange Date of the related
Swap Transaction that is identified in that Confirmation (a "Related
Swap Transaction") or (iv) any other right or rights specified in the
related Confirmation. An Option may provide for the grant of one or
more of the foregoing rights, all of which can be identified in a
single Confirmation.
(2) The following capitalised terms, if used in relation to an Option,
have the respective meanings specified in or pursuant to the related
Confirmation (or elsewhere in this Agreement): "Buyer", "Seller",
"Option Premium", "Option Premium Payment Date", "Cash Settlement
Payment Date", "Cash Settlement Amount", "Optional Termination Date",
"Exercise Terms" and "Option Exercise Period".
(3) The following provisions will apply with respect to an Option:
(a) Buyer will pay Seller pursuant to Section 2(a)(i) of this Agreement
the Option Premium, if any, on the Option Premium Payment Date or
Dates.
(b) On the terms set forth in this Agreement (including the related
Confirmation), Seller grants to Buyer pursuant to the Option, (i) if
"Physical Settlement" is specified to be applicable to the Option, the
right to cause the Underlying Swap Transaction to become effective,
(ii) if "Cash Settlement" is specified to be applicable to the Option,
the right to cause Seller to pay Buyer pursuant to Section 2(a)(i) of
this Agreement the Cash Settlement Amount, if any, in respect of the
Underlying Swap Transaction on the cash Settlement Payment Date or
(iii) if "Optional Termination" is specified to be applicable to the
Option, the right to cause the Optional Termination Date to become the
Termination Date and, if so specified in the related confirmation, the
Final Exchange Date of the Related Swap Transaction. The Underlying
Swap Transaction, if any, shall not become effective unless (i)
"Physical Settlement" is specified to be applicable to the Option and
(ii) the right to cause that underlying Swap Transaction to become
effective has been exercised.
(c) Buyer may exercise the right or rights granted pursuant to the Option
only by delivering irrevocable notice (a "Notice of Exercise") to
Seller (which, notwithstanding any other provision of this Agreement,
may be delivered orally (including by telephone)). The Notice of
Exercise must become effective during the Option Exercise Period and
must include the Exercise Terms, if any.
(d) Buyer will, if "Written Confirmation" is specified to be applicable to
the Option or upon demand from Seller (which, notwithstanding any
other provision of this Agreement, may be delivered orally (including
by telephone)), (i) execute a written confirmation confirming the
substance of the Notice of Exercise and deliver the same to Seller or
(ii) issue a telex to Seller setting forth the substance of the Notice
of Exercise. Buyer shall cause such executed written confirmation or
telex to be received by Seller within one Local Banking Day following
the date that the Notice of Exercise or Seller's demand, as the case
may be, becomes effective. If not received within such time, Buyer
will be deemed to have satisfied
2CUSIP No. 918270-10-9 13D Page 14 of 21 Pages
its obligations under the immediately preceding sentence at the time
that such executed written confirmation or telex becomes effective.
(e) Any notice or communication given, and permitted to be given, orally
(including by telephone) in connection with the Option will be
effective when actually received by the recipient.
(4) For purposes of the determination of a Market Quotation for a
Terminated Transaction that is identified as an Option, the quotations
obtained from Reference Market-makers shall take into account, as of
the relevant Early Termination Date, the economic equivalent of the
right or rights granted pursuant to that Option which are or may
become exercisable.