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EXHIBIT 10.3
[ABN-AMRO LOGO]
ABN AMROBANK N.V. ("ABN AMRO")
Operations Amsterdam / Treasury Product Maintenance
P.O. Box 283/AH 1304 E3-25
1000 EA Amsterdam Telephone nr. :+31 20 3830724
The Netherlands Fax nr. :+31 20 6284832
Amsterdam, 24 July 2000 Referencenumber Transaction : X0389428/426
Status Transaction : New
AUTOBYTEL EUROPE HOLDINGS B.V.
POSTBUS 10230
1301 AE ALMERE
Subject Confirmation of a FORWARD EXTRA OPTION Transaction
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Dear Sir/Madam,
The purpose of this letter agreement, which constitutes a "Confirmation" as
referred to in the Agreement specified below, is to confirm the terms and
conditions of the transaction entered into between us on the Trade Date as
specified below (the "Transaction").
The definitions and provisions contained in the 1991 ISDA Definitions (as
amended and supplemented by the 1998 Supplement), as published by the
International Swaps and Derivatives Association, Inc. ("ISDA") (the "1991
Definitions") and in the 1998 FX and Currency Option Definitions, as published
by ISDA, the Emerging Markets Traders Association and The Foreign Exchange
Committee (the "FX and Currency Definitions") as each are amended and
supplemented by the 1998 ISDA Euro Definitions (the "Euro Definitions", and
together with the 1991 Definitions and the FX and Currency Definitions, the
"Definitions") are incorporated into this Confirmation. References herein to the
"Transaction" shall be deemed to be references to the "Swap Transaction" for the
purposes of the 1991 Definitions. In the event of any inconsistency between the
1991 Definitions and the FX and Currency Definitions, the FX and Currency
Definitions will govern. In the event of any inconsistency between the
Definitions and this Confirmation, this Confirmation will govern.
This Confirmation evidences and complete binding agreement between you and us as
to the terms of the Transaction. 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 1992
version) (the "ISDA Master"), with such completions and modifications as you and
we will in good faith agree, including for this purpose any Schedule to the ISDA
Master (as so completed and modified and as the same may be amended or
supplemented from time to time, the "Agreement"). Each party hereunder
represents to the other that it has reviewed and is familiar with the terms of
the ISDA Master. Upon the execution by you and us of such an Agreement, this
Confirmation will supplement, form a part of, and be subject to the Agreement.
All provisions contained or incorporated by reference in the Agreement will
govern this Confirmation except as expressly modified below.
Until such time as you and we execute the Agreement this Confirmation, and all
other written communications between us confirming transactions (each a
"Transaction") which are intended to form part of the Agreement (as evidenced by
reference to the ISDA Master or otherwise) or which do not refer to or
incorporate the terms of any other master agreement or standard terms) shall
each constitute a "Confirmation" for the purposes of, supplement, form a part
of, and be subject to an agreement in the form of the ISDA Master as if we had
executed an agreement in such form on the Trade Date of the first
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[ABN-AMRO LOGO]
such Transaction between us, with the selection of English law under Part 4(h)
of the Schedule, designation of US Dollars as the Termination Currency,
designation of notice particulars as stated above and the selection that
Automatic Early Termination will apply to Counterparty but without any other
completion of or modification to the Schedule. Until execution and delivery of
the Agreement, references herein to the Agreement shall be deemed references to
the ISDA Master so completed.
This particular Transaction has features that differ from the standard Currency
Option, as set forth below.
1. THE TRANSACTION:
1.1 General Terms:
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Trade Date: 20 JUL 00
Buyer: AUTOBYTEL EUROPE HOLDINGS B.V.
Seller: ABN AMRO Bank N.V.
Currency Option Style European
Call Currency and Call Currency
Amount: NLG 11,587,500.00
Put Currency and Put Currency
Amount: USD 5,000,000.00
Strike Price: 2.3175 NLG/USD
Expiration Date: 26 JUN 01
Expiration Time: 10:00 AM NEW YORK TIME
Settlement Date: 28 JUN 01
Premium: ZERO COST
Premium Payment Date: N/A
Forward Trigger Period: The period from the trade time on the
Trade Date to the Expiration Time
on the Expiration Date.
Forward Trigger Price: 2.5040 NLG/USD
Regio Treasury Desk (RTD): RTD AMSTERDAM
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1.2 SPECIAL PROVISIONS IN THE FORWARD EXTRA OPTION:
Notwithstanding anything in the ISDA Master or in the Agreement or in the
Definitions to the contrary, this Forward Extra Option Transaction shall
cease to be exercisable after the occurrence of a Forward Trigger Event as
hereinafter set forth.
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[ABN AMRO LOGO]
FORWARD TRIGGER EVENT (THE "EVENT"):
If the Calculation Agent determines, in good faith and in a commercially
reasonably manner, that at any time during the Forward Trigger Period the
Spot Rate is at a price EQUAL TO OR ABOVE the Forward Trigger Price, an
Event shall thereupon occur. Upon such determination the Calculation Agent
shall promptly give notice to the parties by telephone, promptly confirmed
in writing, provided that failure so to confirm shall not affect the
validity, effectiveness or binding nature of such telephone notice.
In case an Event occurs by which this Forward Extra Option ceases to be
exercisable the following forward contract will automatically arise between
the parties, and they shall be obligated in accordance with the following:
ABN AMRO BANK N.V. sells/THE COUNTERPARTY buys: NLG 11,587,500.00
ABN AMRO BANK N.V. buys/THE COUNTERPARTY sells: USD 5,000,000.00
Settlement Date: 28 JUN 01
For the avoidance of doubt, if the Event does occur during the Forward
Trigger Period, the Buyer will not be entitled to the return of any Premium
paid.
SPOT RATE:
The spot price in the Spot Market at any time during the Forward Trigger
Period for foreign exchange transactions in the relevant Currency Pair in
the relevant amount, as determined by the Calculation Agent in good faith
and in a commercially reasonable manner either by reference to the rates
for the exchange of the relevant Currency Pair or to cross-rates.
SPOT MARKET:
The global spot foreign exchange market, which for the purpose of
determining the Spot Rate, shall be treated as being continuously open from
5:00 a.m. Sydney time on Monday in any week to 5:00 p.m. New York time on
Friday of that week.
1.3 Accounts:
Payments to ABN AMRO Bank Over Account
N.V. in NLG should be made to:
ABN AMRO may but is not required to, and
is hereby authorised to debit amounts
payable by Counterparty hereunder from
Counterparty's account held with ABN
AMRO Bank N.V. Such debit to constitute
payment by Counterparty of the amount so
debited.
Payments to Counterparty in Over Account
NLG should be made to:
Counterparty hereby directs ABN AMRO to
credit amounts payable by ABN AMRO
hereunder to Counterparty's account held
with ABN AMRO Bank N.V. Such credit
shall constitute payment by ABN AMRO of
the amount so credited.
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[ABN AMRO LOGO]
2. CALCULATION AGENT:
ABN AMRO shall be the Calculation Agent with respect to the Transaction.
If a party to the Transaction disputes the Calculation Agent's
determination of one or more Events described in paragraph 1.2, the
Calculation Agent shall provide reasonable evidence of the transaction
which has taken place in the foreign exchange market on which its
determination is based. If the Calculation Agent is unable to supply such
evidence or the disputing party reasonably and in good faith believes that
such evidence is not sufficient to determine the occurrence of such Event,
the Calculation Agent and the other party shall mutually select a
recognised independent leading dealer ("Dispute Resolution Dealer") in the
relevant market, who will determine in good faith whether the Event
described in paragraph 1.2 has been reached.
If the Dispute Resolution Dealer advises the Calculation Agent in writing
that the Event described in paragraph 1.2 has occurred, such occurrence
shall be conclusively presumed. If the Dispute Resolution Dealer does not
advise so, it shall be conclusively presumed that the Event did not occur,
without prejudice to any determination by the Calculation Agent with
respect to a subsequent Event.
3. OFFICES:
ABN AMRO AMSTERDAM
Counterparty: ALMERE
4. RELATIONSHIP BETWEEN THE PARTIES:
Each party will be deemed to represent to the other party on the date on
which it enters into a Transaction that (absent a written agreement between
the parties that expressly imposes affirmative obligations to the contrary
for that 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 advice from such advisers as
it has deemed necessary. It is not relying on any communication
(written or oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being
understood that information and explanation related to the terms
and conditions of a Transaction shall not be considered
investment advice or a recommendation to enter into that
Transaction. No communication (written or oral) received from the
other party shall be deemed to be an 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 advice), and understands and accepts the
terms, conditions and risks of that Transaction. It is also
capable of assuming, and assumes, the risks of that Transaction;
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(c) STATUS OF PARTIES. The other party is not acting as a fiduciary or an
adviser to it in respect of that Transaction;
(d) CONSULTATION. Discussions of termination or limitation of risk with
respect to the Transaction and/or provision by a party of indicative
valuations, financial analyses or other statements of valuation and
risk based on market movements (i) are based only on the party's
business and experience as a provider of financial services, (ii) are
subject only to the duty of each party to act in good faith and to no
other duty and (iii) do not constitute guarantees or assurances of
financial results or commitments to terminate or otherwise limit
exposure under the Transaction, it being understood that each party
undertakes duties, liabilities or obligations under the Agreement or
in respect of the Transaction only through written documentation
expressly so undertaking and signed by its duly authorised officer;
and
(e) AWARENESS. In so far as Counterparty is not acting as a dealer or a
market professional in the relevant market, the transaction is entered
in to in accordance with its authorised policies for purposes of
hedging or managing its assets, liabilities and/or investments or in
connection with a line of business (and not for speculation).
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.
If we do not receive any comments from you in writing within five Business Days,
we assume that you agree with the terms and conditions as mentioned in the
confirmation above and will act accordingly. In the case of discrepancies,
please contact the Regio Treasury Desk, quoting the above reference number.
Yours faithfully
/s/ WILLEM de WAARD /s/ CATHERINE H.M. CLERCX
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ABN AMRO BANK N.V. ABN AMRO BANK N.V.
Name: Willem de Waard Name: Catherine H.M. Clercx
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Title: Enquiries, Fails & Title: Head of Transaction
Claims Treasury Processing Treasury
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Confirmed as of the Trade Date: 20 JUL 00
/s/ JOOP KNOTTENBELT /s/ PH. G.S. SMIT
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AUTOBYTEL EUROPE HOLDING B.V. AUTOBYTEL EUROPE HOLDING B.V.
Name: Joop Knottenbelt Name: Ph. G.S. Smit
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Title: Interim C.E.O. Title: Co-Managing Director
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