Exhibit 10.4
BB&T Branch Banking & Trust Co.
Funds Management Group
Mailcode: 011-16-17-10
200 West Second Street
Winston-Salem, NC 27101
October 20, 2008
Industrial Services of America, Inc.
Attention: Mr. Alan Schroering
Fax: (502) 515-1700 Phone: (502) 214-3710
From: R. Kevin Randal, Vice President
Branch Banking & Trust Company (BB&T)
200 West Second Street, 17th Floor
Winston-Salem, NC 27101
Telephone: (336) 733-2853
Fax #: (336) 733-2883
Re: Confirmation of USD 2,897,114.77 amortizing swap commencing October 15, 2008
Dear Mr. Schroering:
The purpose of this letter agreement is to confirm the terms and conditions of the Transaction entered into between Branch Banking and Trust Company ("BB&T") and Industrial Services of America, Inc. ("Counterparty") on the Trade Date specified below (the "Swap Transaction"). This letter agreement constitutes a "Confirmation" under the ISDA Agreement defined below.
The definitions and provisions contained in the 2006 ISDA Definitions as published by the International Swaps and Derivatives Association, Inc. ("ISDA") are incorporated into this Confirmation. In the event of any inconsistency between those definitions and provisions and this Confirmation, this Confirmation will govern.
1. | This confirmation supplements, forms part of, and is subject to, the ISDA Master Agreement dated as of December 22, 2006 (as amended and supplemented, the "Agreement"), between us. All provisions contained in the Agreement govern this Confirmation except as expressly modified below. Pursuant to ISDA guidelines, the mutual agreement of terms commenced the transaction being confirmed. This facsimile transmission serves as additional evidence of a binding supplement to the Agreement. We request that you sign this Confirmation and return it to us by facsimile. |
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2. | The terms of the particular Swap Transaction to which this Confirmation relates are as follows: |
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| Notional Amount: | (i) USD 2,897,114.77 for the initial Calculation Period, and thereafter (ii) the amounts as detailed in the Schedule of Notional Amounts attached hereto. |
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| Trade Date: | October 15, 2008 |
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| Effective Date: | October 15, 2008 |
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| Termination Date: | May 7, 2013, subject to adjustment in accordance with the Modified Following Business Day Convention. |
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Fixed Amounts: | |
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| Fixed Rate Payer: | Counterparty |
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| Fixed Rate Payer Payment Dates: | The 7th calendar day of each month during the Term of this Transaction, commencing November 7, 2008 and ending on the Termination Date, subject to adjustment in accordance with the Modified Following Business Day Convention. |
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| Fixed Rate: | 5.65000 percent per annum |
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| Fixed Rate Day Count Fraction | Actual / 360 |
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Floating Amounts: | |
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| Floating Rate Payer: | BB&T |
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| Floating Rate Payer Payment
Dates: | The 7th calendar day of each month during the Term of this Transaction, commencing November 7, 2008 and ending on the Termination Date, subject to adjustment in accordance with the Modified Following Business Day Convention. |
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| Floating Rate for initial
Calculation Period: | 5.6275% including spread |
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| Floating Rate Option: | USD-LIBOR-BBA to include spread
For purposes of this Confirmation, the definitions of (i) 'USD-LIBOR-BBA' and (ii) 'USD-LIBOR Reference Banks' in Section 7.1 (ab)(xxii) and Section 7.1 (ab)(xxv), respectively, of the Definitions are hereby amended by deleting all references in such definitions to 'two London Banking Days' and inserting '0 London Business Days' in lieu thereof. |
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| Designated Maturity: | Monthly |
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| Spread: | 162.5 basis points |
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| Floating Rate Day Count
Fraction: | Actual / 360 |
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| Business Days: | New York, London |
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| Business Day Convention: | Modified Following |
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| Reset Dates: | The 1st calendar day of each month, subject to adjustment in accordance with the Preceding Business Day Convention. |
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| Compounding: | Inapplicable |
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| Calculation Agent: | BB&T, unless otherwise specified in Agreement |
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3. | Account Details: | |
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| Payments to BB&T: | Fed Funds to BB&T-ABA NO. 053101121
Acct. No. 9116001188867
Attn: Funds Management Derivative Operations |
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| Payments to Counterparty: | Please provide to expedite payment
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4. | Offices: | |
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| Office of BB&T: | Winston-Salem, NC |
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| Office of Counterparty: | Louisville, KY |
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| Non-Reliance: | Each party represents to the other party that it is acting for its own account, and has made its own independent decisions to enter into this Transaction and as to whether this Transaction is appropriate or proper for it based on its own judgment and upon advice from such advisors 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 this Transaction, it being understood that information and explanations related to the terms and conditions of this Transaction shall not be considered investment advice or a recommendation to enter into this 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 this Transaction. |
Please confirm your agreement to be bound by the terms stated herein by executing the copy of this Confirmation enclosed for that purpose and returning it to us within 5 business days, signed by a vice president or above who is authorized to sign financial instrument contracts on behalf of the Counterparty to:
BB&T Funds Management
Attn: R. Kevin Randal
Fax#: (336) 733-2883
This Confirmation shall be conclusively deemed accurate and complete by Counterparty if not executed and returned to us within the timeframe established above.
| Yours sincerely, |
| Branch Banking & Trust Company |
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| By: | /s/ R. Kevin Randall |
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| Name: | R. Kevin Randall |
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| Title: | Vice President |
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Confirm as of the
Date first above written;
Industrial Services of America, Inc. | | |
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By: | /s/ Harry Kletter | | By: | |
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Name: | Harry Kletter | | Name | |
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Title: | CEO | | Title: | |
Trade ID: 16582NC
Confirmation of USD 2,897,114.77 amortizing swap commencing October 15, 2008
Termination Date May 7, 2013
Industrial Services of America, Inc.
Schedule of Notional Amounts
(In accordance with the Modified Following Business Day Convention)
From and
Including | To but
Excluding | Notional
Amount |
Effective Date | 11/7/2008 | 2,897,114.77 |
11/7/2008 | 12/7/2008 | 2,877,441.23 |
12/7/2008 | 1/7/2009 | 2,857,767.69 |
1/7/2009 | 2/7/2009 | 2,838,094.15 |
2/7/2009 | 3/7/2009 | 2,818,420.61 |
3/7/2009 | 4/7/2009 | 2,798,747.07 |
4/7/2009 | 5/7/2009 | 2,779,073.53 |
5/7/2009 | 6/7/2009 | 2,759,399.99 |
6/7/2009 | 7/7/2009 | 2,739,726.45 |
7/7/2009 | 8/7/2009 | 2,720,052.91 |
8/7/2009 | 9/7/2009 | 2,700,379.37 |
9/7/2009 | 10/7/2009 | 2,680,705.83 |
10/7/2009 | 11/7/2009 | 2,661,032.29 |
11/7/2009 | 12/7/2009 | 2,640,197.22 |
12/7/2009 | 1/7/2010 | 2,619,362.15 |
1/7/2010 | 2/7/2010 | 2,598,527.08 |
2/7/2010 | 3/7/2010 | 2,577,692.01 |
3/7/2010 | 4/7/2010 | 2,556,856.94 |
4/7/2010 | 5/7/2010 | 2,536,021.87 |
5/7/2010 | 6/7/2010 | 2,515,186.80 |
6/7/2010 | 7/7/2010 | 2,494,351.73 |
7/7/2010 | 8/7/2010 | 2,473, 516.66 |
8/7/2010 | 9/7/2010 | 2,452,681.59 |
9/7/2010 | 10/7/2010 | 2,431,846.52 |
10/7/2010 | 11/7/2010 | 2,411,011.45 |
11/7/2010 | 12/7/2010 | 2,388,946.28 |
12/7/2010 | 1/7/2011 | 2,366,881.11 |
1/7/2011 | 2/7/2011 | 2,344,815.94 |
2/7/2011 | 3/7/2011 | 2,322,750.77 |
3/7/2011 | 4/7/2011 | 2,300,685.60 |
4/7/2011 | 5/7/2011 | 2,278,620.43 |
5/7/2011 | 6/7/2011 | 2,256,555.26 |
6/7/2011 | 7/7/2011 | 2,234,490.09 |
7/7/2011 | 8/7/2011 | 2,212,424.92 |
8/7/2011 | 9/7/2011 | 2,190,359.75 |
9/7/2011 | 10/7/2011 | 2,168,294.58 |
10/7/2011 | 11/7/2011 | 2,146,229.41 |
11/7/2011 | 12/7/2011 | 2,122,861.52 |
12/7/2011 | 1/7/2012 | 2,099,493.63 |
1/7/2012 | 2/7/2012 | 2,076,125.74 |
2/7/2012 | 3/7/2012 | 2,052,757.85 |
3/7/2012 | 4/7/2012 | 2,029,389.96 |
4/7/2012 | 5/7/2012 | 2,006,022.07 |
5/7/2012 | 6/7/2012 | 1,982,654.18 |
6/7/2012 | 7/7/2012 | 1,959,286.29 |
7/7/2012 | 8/7/2012 | 1,935,918.40 |
8/7/2012 | 9/7/2012 | 1,912,550.51 |
9/7/2012 | 10/7/2012 | 1,889,182.62 |
10/7/2012 | 11/7/2012 | 1,865,814.73 |
11/7/2012 | 12/7/2012 | 1,841,067.20 |
12/7/2012 | 1/7/2013 | 1,816,319.67 |
1/7/2013 | 2/7/2013 | 1,791,572.14 |
2/7/2013 | 3/7/2013 | 1,766,824.61 |
3/7/2013 | 4/7/2013 | 1,742,077.08 |
4/7/2013 | Termination Date | 1,717,329.55 |
