(Local Currency-Single Jurisdiction)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of March 19, 2001
First Union National Bank CSS Industries, Inc.
.................................... and ......................................
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:-
1. Interpretation
(a) Definitions. The terms defined in Section 12 and in the Schedule will
have the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds and in the manner customary for payments in
the required currency. Where settlement is by delivery (that is, other
than by payment), such delivery will be made for receipt on the due
date in the manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or elsewhere in this
Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event
of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination Date
in respect of the relevant Transaction has occurred or been effectively
designated and (3) each other applicable condition precedent specified
in this Agreement.
Copyright (C) 1992 by International Swap Dealers Association, Inc.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five
Local Business Days prior to the scheduled date for the payment or
delivery to which such change applies unless such other party gives
timely notice of a reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will
apply-separately to each pairing of branches or offices through which the
parties make and receive payments or deliveries.
(d) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment
obligation will, to the extent permitted by law and subject to Section
6(c), be required to pay interest (before as well as after judgment) on
the overdue amount to the other party on demand in the same currency as
such overdue amount, for the period from (and including) the original
due date for payment to (but excluding) the date of actual payment, at
the Default Rate. Such interest will be calculated on the basis of daily
compounding and the actual number of days elapsed. If, prior to the
occurrence or effective designation of an Early Termination Date in
respect of the relevant Transaction, a party defaults in the performance
of any obligation required to be settled by delivery, it will compensate
the other party on demand if and to the extent provided for in the
relevant Confirmation or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered
into) that:-
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to
perform its obligations under this Agreement and any obligations it has
under any Credit Support Document to which it is a party and has taken
all necessary action to authorise such execution, delivery and
performance;
(iii) No Violation or Conflict. Such execution, delivery and
performance do not violate or conflict with any law applicable to it,
any provision of its constitutional documents, any order or judgment of
any court or other agency of government applicable to it or any of its
assets or any contractual restriction binding on or affecting it or any
of its assets;
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(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in
full force and effect and all conditions of any such consents have been
complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal,
valid and binding obligations, enforceable in accordance with their
respective terms (subject to applicable bankruptcy, reorganisation,
insolvency, moratorium or similar laws affecting creditors' rights
generally and subject, as to enforceability, to equitable principles of
general application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of Default
or, to its knowledge, Termination Event with respect to it has occurred and is
continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement or any Credit
Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge, threatened
against it or any of its Affiliates any action, suit or proceeding at law or in
equity or before any court, tribunal, governmental body, agency or official or
any arbitrator that is likely to affect the legality, validity or enforceability
against it of this Agreement or any Credit Support Document to which it is a
party or its ability to perform its obligations under this Agreement or such
Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:-
(a) Furnish Specified Information. It will deliver to the other party any forms,
documents or certificates specified in the Schedule or any Confirmation by the
date specified in the Schedule or such Confirmation or, if none is specified, as
soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of such party or any Specified Entity of
such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:-
(i) Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or
2(d) required to be made by it if such failure is not remedied on or
before the third Local Business Day after notice of such failure is
given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or
perform any agreement or obligation (other than an obligation to make
any payment under this Agreement or delivery under Section 2(a)(i) or
2(d) or to give notice of a Termination Event) to be complied with or
performed
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by the party in accordance with this Agreement if such failure is not remedied
on or before the thirtieth day after notice of such failure is given to the
party;
(ii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such party to
comply with or perform any agreement or obligation to be complied with
or performed by it in accordance with any Credit Support Document if
such failure is continuing after any applicable grace period has
elapsed;
(2) the expiration or termination of such Credit Support Document or the
failing or ceasing of such Credit Support Document to be in full force
and effect for the purpose of this Agreement (in either case other than
in accordance with its terms) prior to the satisfaction of all
obligations of such party under each Transaction to which such Credit
Support Document relates without the written consent of the other party;
or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the validity
of, such Credit Support Document;
(iv) Misrepresentation. A representation made or repeated or deemed to have been
made or repeated by the party or any Credit Support Provider of such party in
this Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have been
made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support Provider
of such party or any applicable Specified Entity of such party (1) defaults
under a Specified Transaction and, after giving effect to any applicable notice
requirement or grace period, there occurs a liquidation of, an acceleration of
obligations under, or an early termination of, that Specified Transaction, (2)
defaults, after giving effect to any applicable notice requirement or grace
period, in making any payment or delivery due on the last payment, delivery or
exchange date of, or any payment on early termination of, a Specified
Transaction (or such default continues for at least three Local Business Days if
there is no applicable notice requirement or grace period) or (3) disaffirms,
disclaims, repudiates or rejects, in whole or in part, a Specified Transaction
(or such action is taken by any person or entity appointed or empowered to
operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as applying
to the party, the occurrence or existence of (1) a default, event of default or
other similar condition or event (however described) in respect of such party,
any Credit Support Provider of such party or any applicable Specified Entity of
such party under one or more agreements or instruments relating to Specified
Indebtedness of any of them (individually or collectively) in an aggregate
amount of not less than the applicable Threshold Amount (as specified in the
Schedule) which has resulted in such Specified Indebtedness becoming, or
becoming capable at such time of being declared, due and payable under such
agreements or instruments, before it would otherwise have been due and payable
or (2) a default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on the due
date thereof in an aggregate amount of not less than the applicable Threshold
Amount under such agreements or instruments (after giving effect to any
applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or any
applicable Specified Entity of such party:-
(1) is dissolved (other than pursuant to a consolidation, amalgamation
or merger); (2) becomes insolvent or is unable to pay its debts or fails
or admits in writing its inability generally to pay its debts as they
become due; (3) makes a general assignment, arrangement or composition
with or for the benefit of its creditors; (4) institutes or has
instituted against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or
other similar law affecting creditors' rights, or a petition is
presented for its
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winding-up or liquidation, and, in the case of any such
proceeding or petition instituted or presented against it, such
proceeding or petition (A) results in a judgment of insolvency or
bankruptcy or the entry of an order for relief or the making of
an order for its winding-up or liquidation or (B) is not
dismissed, discharged, stayed or restrained in each case within
30 days of the institution or presentation thereof; (5) has a
resolution passed for its winding-up, official management or
liquidation (other than pursuant to a consolidation, amalgamation
or merger); (6) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator, receiver,
trustee, custodian or other similar official for it or for all or
substantially all its assets; (7) has a secured party take
possession of all or substantially all its assets or has a
distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged,
stayed or restrained, in each case within 30 days thereafter; (8)
causes or is subject to any event with respect to it which, under
the applicable laws of any jurisdiction, has an analogous effect
to any of the events specified in clauses (1) to (7) (inclusive);
or (9) takes any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the foregoing
acts; or
(viii) Merger Without Assumption. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or merges with
or into, or transfers all or substantially all its assets to, another
entity and, at the time of such consolidation, amalgamation, merger or
transfer:-
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it
or its predecessor was a party by operation of law or pursuant to
an agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by
such resulting, surviving or transferee entity of its obligations
under this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, and, if specified to be applicable, a Credit
Event Upon Merger if the event is specified pursuant to (ii) below or an
Additional Termination Event if the event is specified pursuant to (iii) below:-
(i) Illegality. Due to the adoption of, or any change in, any
applicable law after the date on which a Transaction is entered into,
or due to the promulgation of, or any change in, the interpretation by
any court, tribunal or regulatory authority with competent jurisdiction
of any applicable law after such date, it becomes unlawful (other than
as a result of a breach by the party of Section 4(b)) for such party
(which will be the Affected Party):-
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other material
provision of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party
to perform, any contingent or other obligation which the party
(or such Credit Support Provider) has under any Credit Support
Document relating to such Transaction;
(ii) Credit Event Upon Merger. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party ("X"),
any Credit Support Provider of X or any applicable Specified Entity of
X consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and
such action does not constitute an event described in Section
5(a)(viii) but the creditworthiness of the resulting, surviving or
transferee entity is materially weaker than that of X, such Credit
Support Provider or such Specified Entity, as the case may be,
immediately prior to such action (and, in such event, X or its
successor or transferee, as appropriate, will be the Affected Party);
or
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(iii) Additional Termination Event. If any "Additional Termination
Event" is specified in the Schedule or any Confirmation as applying,
the occurrence of such event (and, in such event, the Affected Party
or Affected Parties shall be as specified for such Additional
Termination Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event
of Default with respect to a party (the "Defaulting Party") has
occurred and is then continuing, the other party (the "Non-defaulting
Party") may, by not more than 20 days notice to the Defaulting Party
specifying the relevant Event of Default, designate a day not earlier
than the day such notice is effective as an Early Termination Date in
respect of all outstanding Transactions. If, however, "Automatic Early
Termination" is specified in the Schedule as applying to a party, then
an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party
of an Event of Default specified in Section 5(a)(vii)( 1), (3), (5),
(6) or, to the extent analogous thereto, (8), and as of the time
immediately preceding the institution of the relevant proceeding or the
presentation of the relevant petition upon the occurrence with respect
to such party of an Event of Default specified in Section 5(a)(vii)(4)
or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying
the nature of that Termination Event and each Affected Transaction
and will also give such other information about that Termination Event
as the other party may reasonably require.
(ii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1)
occurs and there are two Affected Parties, each party will use all
reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that
Termination Event.
(iii) Right to Terminate. If:-
(1) an agreement under Section 6(b)(ii) has not been effected
with respect to all Affected Transactions within 30 days after
an Affected Party gives notice under Section 6(b)(i); or
(2) an Illegality other than that referred to in Section
6(b)(ii), a Credit Event Upon Merger or an Additional
Termination Event occurs,
either party in the case of an Illegality, any Affected Party in the
case of an Additional Termination Event if there is more than one
Affected Party, or the party which is not the Affected Party in the
case of a Credit Event Upon Merger or an Additional Termination Event
if there is only one Affected Party may, by not more than 20 days
notice to the other party and provided that the relevant Termination
Event is then continuing, designate a day not earlier than the day such
notice is effective as an Early Termination Date in respect of all
Affected Transactions.
(c) Effect of Designation.
(i) if notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date
so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
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(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(d) in respect of the Terminated Transactions will be
required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and
specifying any amount payable under Section 6(e)) and (2) giving
details of the relevant account to which any amount payable to it is to
be paid. In the absence of written confirmation from the source of a
quotation obtained in determining a Market Quotation, the records of
the party obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event
of Default) and on the day which is two Local Business Days after the
day on which notice of the amount payable is effective (in the case of
an Early Termination Date which is designated as a result of a
Termination Event). Such amount will be paid together with (to the
extent permitted under applicable law) interest thereon (before as well
as after judgment), from (and including) the relevant Early Termination
Date to (but excluding) the date such amount is paid, at the Applicable
Rate. Such interest will be calculated on the basis of daily
compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default:-
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Unpaid
Amounts owing to the Non-defaulting Party over (B) the Unpaid
Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's Loss in respect of
this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount, will be payable equal to (A)
the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated Transactions
and the Unpaid Amounts owing to the Non-defaulting Party less (B)
the Unpaid Amounts owing to the Defaulting Party. If that amount
is a positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that amount
to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply,
an amount will be payable equal to the Non-defaulting Party's
Loss in respect of this Agreement. If that amount is a positive
number, the Defaulting Party will pay it to the Non-defaulting
Party; if it is a negative
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number, the Non-defaulting Party will pay the absolute value of
that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event:-
(1) One Affected Party. If there is one Affected Party, the
amount payable will be determined in accordance with Section
6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4),
if Loss applies, except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party will be deemed
to be references to the Affected Party and the party which is
not the Affected Party, respectively, and, if Loss applies and
fewer than all the Transactions are being terminated, Loss shall
be calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:-
(A) if Market Quotation applies, each party will
determine a Settlement Amount in respect of the
Terminated Transactions, and an amount will be payable
equal to (I) the sum of (a) one-half of the difference
between the Settlement Amount of the party with the
higher Settlement Amount ("X") and the Settlement Amount
of the party with the lower Settlement Amount ("Y") and
(b) the Unpaid Amounts owing to X less (II) the Unpaid
Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss
in respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable
equal to one-half of the difference between the Loss of
the party with the higher Loss ("X") and the Loss of the
party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X;
if it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies
in respect of a party, the amount determined under this Section 6(e)
will be subject to such adjustments as are appropriate and permitted by
law to reflect any payments or deliveries made by one party to the
other under this Agreement (and retained by such other party) during
the period from the relevant Early Termination Date to the date for
payment determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies
an amount recoverable under this Section 6(e) is a reasonable
pre-estimate of loss and not a penalty. Such amount is payable for the
loss of bargain and the loss of protection against future risks and
except as otherwise provided in this Agreement neither party will be
entitled to recover any additional damages as a consequence of such
losses.
7. Transfer
Neither this Agreement nor any interest or obligation in or under this Agreement
may be transferred (whether by way of security or otherwise) by either party
without the prior written consent of the other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
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8. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including
by facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of
each Transaction from the moment they agree to those terms (whether
orally or otherwise). A Confirmation shall be entered into as soon as
practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of
telexes or by an exchange of electronic messages on an electronic
messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that
any such counterpart, telex or electronic message constitutes a
Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
9. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees,
incurred by such other party by reason of the enforcement and protection of its
rights under this Agreement or any Credit Support Document to which the
Defaulting Party is a party or by reason of the early termination of any
Transaction, including, but not limited to, costs of collection.
10. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:-
(i) if in writing and delivered in person or by courier, on the date
it is delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
9
(iii) if sent by facsimile transmission, on the date that transmission
is received by a responsible employee of the recipient in legible form
(it being agreed that the burden of proving receipt will be on the
sender and will not be met by a transmission report generated by the
sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
11. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:-
(i) submits to the jurisdiction of the English courts, if this
Agreement is expressed to be governed by English law, or to the
non-exclusive jurisdiction of the courts of the State of New York and
the United States District Court located in the Borough of Manhattan in
New York City, if this Agreement is expressed to be governed by the
laws of the State of New York; and
(ii) waives any objection which it may have at any time to the laying
of venue of any Proceedings brought in any such court, waives any claim
that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceedings,
that such court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other Jurisdiction.
(c) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
12. Definitions
As used in this Agreement:-
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
10
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, all Transactions affected by the occurrence of such
Termination Event and (b) with respect to any other Termination Event, all
Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:-
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement. "Credit Support Provider" has the meaning specified in
the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iii).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"law" includes any treaty, law, rule or regulation and "lawful" and "unlawful"
will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located, (c) in
relation to any notice or other communication, including notice contemplated
under Section 5(a)(i), in the city specified in the address for notice provided
by the recipient and, in the case of a notice contemplated by Section 2(b), in
the place where the relevant new account is to be located and (d) in relation to
Section 5(a)(v)(2), in the relevant locations for performance with respect to
such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, an amount that party reasonably
determines in good faith to be its total losses and costs (or gain, in which
case expressed as a negative number) in connection with this Agreement or that
Terminated Transaction or group of Terminated Transactions, as the case may be,
including any loss of bargain, cost of funding or, at the election of such party
but without duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or reestablishing any hedge or related trading position
(or any gain
11
resulting from any of them). Loss includes losses and costs (or gains) in
respect of any payment or delivery required to have been made (assuming
satisfaction of each applicable condition precedent) on or before the relevant
Early Termination Date and not made, except, so as to avoid duplication, if
Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does not include a
party's legal fees and out-of-pocket expenses referred to under Section 9. A
party will determine its Loss as of the relevant Early Termination Date, or, if
that is not reasonably practicable, as of the earliest date thereafter as is
reasonably practicable. A party may (but need not) determine its Loss by
reference to quotations of relevant rates or prices from one or more leading
dealers in the relevant markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or of
Terminated Transactions are to be excluded but, without limitation, any payment
or delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included. The Replacement Transaction would
be subject to such documentation as such party and the Reference Market-maker
may, in faith, agree. The party making the determination (or its agent) will
request each Reference Market-maker to provide its quotation to the extent
reasonably practicable as of the same day and time (without regard to different
time zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be
obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the
Market Quotation will be the arithmetic mean of the quotations, without regard
to the quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if more
than one quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If fewer than three quotations are provided, it
will be deemed that the Market Quotation in respect of such Terminated
Transaction or group of Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Potential Event of Default" means any event which, with the giving, of notice
or the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under
12
this Agreement, another contract, applicable law or otherwise) that is exercised
by, or imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of:-
(a) the Market Quotations (whether positive or negative) for each Terminated
Transaction or group of Terminated Transactions for which a Market Quotation is
determined; and
(b) such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, aLl Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Event" means an Illegality or, if specified to be applicable, a
Credit Event Upon Merger or an Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market value of that which was (or would have been) required to be
delivered as of the originally scheduled date for delivery, in each case
together with (to the extent permitted under applicable law) interest, in the
currency of such amounts, from (and including) the date such amounts or
obligations were or would have been required to have been paid or performed to
(but excluding) such Early Termination Date, at the Applicable Rate. Such
amounts of interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. The fair market value of any obligation referred
to in clause (b) above shall be reasonably determined
13
by the party obliged to make the determination under Section 6(e) or, if each
party is so obliged, it shall be the average of the fair market values
reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
First Union National Bank CSS Industries, Inc.
---------------------- ---------------------
(Name of Party) (Name of Party)
By:/s/ Kim V. Farr By: /s/ Clifford E. Pietrafitta
-------------------- --------------------------
Name: Daniel J. Thomas Name: Clifford E. Pietrafitta
Title: Vice President Title: Vice President Finance
Date: May 8, 2001 Date: May 8, 2001
14
SCHEDULE
to the
MASTER AGREEMENT
dated as of March 19, 2001 between
FIRST UNION NATIONAL BANK ("Party A")
and CSS INDUSTRIES, INC. ("Party B")
Part 1. Termination Provisions
(a) "Specified Entity" means each party's Affiliates for purposes of
Section 5(a)(v).
(b) "Specified Transaction" has its meaning as defined in Section 12.
(c) "Cross Default" applies to both parties. With respect to Party B,
"Cross Default" is amended by inserting at the end of Section 5(a)(vi):
"or (3) any default, event of default or other similar condition or
event (however described) under any Financial Agreement (as defined in
the Schedule)."
"Specified Indebtedness" means any obligation (whether present, future,
contingent or otherwise, as principal or surety or otherwise) in
respect of borrowed money or relating to the payment or delivery of
funds, securities or other property (including, without limitation,
collateral), other than indebtedness in respect of any bank deposits
received in the ordinary course of business by any foreign branch of a
party the repayment of which is prevented, hindered or delayed by any
governmental or regulatory action or law unrelated to the financial
condition or solvency of such party or that foreign branch.
"Threshold Amount" means, with respect to Party A, an amount (including
its equivalent in another currency) equal to the higher of $10,000,000
or 2% of its stockholders' equity as reflected on its most recent
financial statements or call reports, and with respect to Party B,
$500,000, provided that for any Specified Indebtedness payable by Party
B (or any Credit Support Provider of Party B) to Party A or to any of
Party A's Affiliates, Threshold Amount means any amount of such
Specified Indebtedness.
(d) "Credit Event Upon Merger" applies to both parties.
(e) "Automatic Early Termination" does not apply to either party.
(f) Payments on Early Termination. Except as otherwise provided in this
Schedule, "Market Quotation" and the "Second Method" apply. In the case
of any Terminated Transaction that is, or is subject to, any
unexercised option, the words "economic equivalent of any payment or
delivery" appearing in the definition of "Market Quotation" shall be
construed to take into account the economic equivalent of the option.
(g) "Additional Termination Event" does not apply to either party.
(h) Event of Default. An Event of Default shall not occur with respect to a
party under Section 5(a)(v)(1) or (2) or Section 5(a)(vi) when the
failure to pay or deliver, or the default, event of default or other
similar condition or event, as the case may be, arises solely (i) out
of a wire transfer problem or an operational or administrative error or
omission (so long as the required funds or property required to make
that payment or delivery were otherwise available to that party), or
(ii) from the general unavailability of the relevant currency due to
exchange controls or other similar governmental action, but in either
case only if the payment or delivery is made within three Local
Business Days after the problem has been corrected, the error or
omission has been discovered or the currency becomes generally
available.
Part 2. Tax Provisions
(a) Tax Representations.
(i) Party A represents at all times hereunder that (A) it is a national
banking association organized or formed under the laws of the United
States, and (B) it is a United States resident for United States
federal income tax purposes.
(ii) Party B represents at all times hereunder that (A) it is organized
or formed under the laws of the State of Delaware, and (B) it is (or,
if Party B is disregarded for United States federal income tax
purposes, its beneficial owner is) a United States resident for United
States federal income tax purposes.
1
(b) Tax Forms.
(i) Each party agrees to deliver to the other party the tax forms
specified below with respect to it at the following times: before the
first Payment Date under this Agreement; promptly upon reasonable
demand by the other party; and promptly upon learning that any such
form previously provided by the party has become obsolete or incorrect.
(A) Tax Forms to be Delivered by Party A:
None specified.
(B) Tax Forms to be Delivered by Party B:
(I) If Party B is (or, if Party B is disregarded for United
States federal income tax purposes, its beneficial owner is)
treated as a corporation for United States federal income tax
purposes whose name includes "Incorporated", "Inc.",
"Corporation", "P.C.", "Insurance Company", "Indemnity
Company", "Reinsurance Company", or "Assurance Company";
None specified, unless any amount payable to Party B under this
Agreement is to be paid to an account outside the United
States, in which case the tax form to be delivered by Party B
shall be a correct, complete and duly executed U.S. Internal
Revenue Service Form W-9 (or successor thereto) that eliminates
U.S. federal backup withholding tax on payments to Party B
under this Agreement.
(II) In all other cases:
A correct, complete and duly executed U.S. Internal Revenue
Service Form W-9 (or successor thereto) that eliminates U.S.
federal backup withholding tax on payments to Party B under
this Agreement.
(ii) In addition, each party agrees to deliver to the other party, upon
reasonable demand by such other party, any other tax form that may be
required or reasonably requested in writing in order to allow such
other party to make a payment under this Agreement (or under any Credit
Support Document) without any deduction or withholding for or on
account of any tax imposed by any government or other taxing authority
in respect of any such payment (other than a stamp, registration,
documentation or similar tax), or with such deduction or withholding at
a reduced rate, which form shall be correct, complete and duly
executed.
(c) Withholding Tax Liability. A breach of a representation under paragraph
(a) above, or a failure to deliver a required tax form in accordance
with paragraph (b) above, by a party hereunder (the "defaulting payee")
may result in a tax liability on the part of the other party (the
"payor"), as required by the United States Internal Revenue Code and
regulations thereunder, for withholding or backup withholding on any
payment by the payor to the defaulting payee under this Agreement (or
under any Credit Support Document), including a liability to remit to
the U.S. Treasury Department the required amount of withholding and to
pay interest and penalties to the U.S. Treasury Department for amounts
not withheld.
Accordingly, if any such breach or failure by the defaulting payee
results in any such tax liability, then (i) any amount so withheld and
remitted to the U.S. Treasury Department shall discharge the payor's
obligation under this Agreement (or under any Credit Support Document)
to pay to the defaulting payee the portion of any payment so withheld
and remitted (with the payor having no obligation to "gross up" any of
its payments for such withheld amounts), and (ii) if any tax liability
resulting from the defaulting payee's breach or failure is assessed
directly against the payor in respect of any amounts not withheld, the
defaulting payee shall indemnify the payor on demand for the amount of
such tax liability (including interest and penalties). However, any
such breach or failureby the defaulting payee shall not be an "Event of
Default" or a "Potential Event of Default" under this Agreement unless
the defaulting payee fails to so indemnify the payor.
Part 3. Documents
Delivery of Documents. When it delivers this Agreement, each party
shall also deliver its Closing Documents to the other party in form and
substance reasonably satisfactory to the other party. For each
Transaction, a party shall deliver, promptly upon request, a duly
executed incumbency certificate for the person(s) executing the
Confirmation for that Transaction on behalf of that party.
2
(i) For Party A, "Closing Documents" means a duly executed certificate
of the secretary or assistant secretary of Party A certifying the name
and true signature of each person authorized to execute this Agreement
and enter into Transactions for Party A.
(ii) For Party B, "Closing Documents" means an opinion of counsel
covering Party B's Basic Representations under Section 3(a) as they
relate to this Agreement, or in lieu thereof, (A) a copy, certified by
the secretary or assistant secretary of Party B, of the resolutions of
Party B's board of directors authorizing the execution, delivery and
performance by Party B of this Agreement and authorizing Party B to
enter into Transactions hereunder and (B) a duly executed certificate
of the secretary or assistant secretary of Party B certifying the name,
true signature and authority of each person authorized to execute this
Agreement and enter into Transactions for Party B.
Part 4. Miscellaneous
(a) Addresses for Notices. For purposes of Section 10(a) of this Agreement,
all notices to a party shall, with respect to any particular
Transaction, be sent to its address, telex number of facsimile number
specified in the relevant Confirmation, provided that any notice under
Section 5 or 6 of this Agreement, and any notice under this Agreement
not related to a particular Transaction, shall be sent to a party at
its address, telex number or facsimile number specified below.
3
To Party A:
FIRST UNION NATIONAL BANK
301 South College, DC-8
Charlotte, NC 28202-0600
Attention: Bruce M. Young
Senior Vice President, Risk Management
Fax: (704) 383-0575
Phone: (704) 383-8778
To Party B:
CSS INDUSTRIES, INC.
1845 Walnut Street
Suite 800
Philadelphia, PA 19103
Attention: Clifford E. Pietrafitta
Fax: (215) 509-9979
Phone: (215) 569-9900
(b) "Calculation Agent" means Party A.
(c) "Credit Support Document" means each document which by its terms secures,
guarantees or otherwise supports Party B's obligations hereunder from time to
time, whether or not this Agreement, any Transaction, or any type of
Transaction entered into hereunder is specifically referenced or described in
any such document.
"Credit Support Default" is amended by adding at the end of Section
5(a)(iii)(1):
",any default, event of default or other similar condition or event
(however described) exists under any Credit Support Document, any
action is taken to realize upon any collateral provided to secure such
party's obligations hereunder or under any Transaction, or the other
party fails at any time to have a valid and perfected first priority
security interest in any such collateral;"
(d) "Credit Support Provider" means each party to a Credit Support Document
that provides or is obligated to provide security, a guaranty or other credit
support for Party B's obligations hereunder.
(e) Governing Law. This Agreement will be governed by and construed in
accordance with the law (and not the law of conflicts) of the State of New
York.
(f) Waiver of Jury Trial. To the extent permitted by applicable law, each
party irrevocably waives any and all right to trial by jury in any legal
proceeding in connection with this Agreement, any Credit Support Document to
which it is a party, or any Transaction.
(g) Netting of Payments. If payments are due by each party on the same day
under two or more Transactions, then Section 2(c)(ii) will not apply to those
payments if a party gives notice to the other party on or before the second
New York Business Day before that payment date stating that those payments
will be netted or, if given by the Calculation Agent, stating the net amount
due.
(h) "Affiliate" has its meaning as defined in Section 12.
Part 5. Other Provisions
(a) 2000 ISDA Definitions. This Agreement and each Transaction are subject to
the 2000 ISDA Definitions (including its Annex and NCU Supplement) published
by the International Swaps and Derivatives Association, Inc. (together, the
"2000 ISDA Definitions") and will be governed by the provisions of the 2000
ISDA Definitions. The provisions of the 2000 ISDA Definitions are incorporated
by reference in, and shall form part of, this Agreement and each Confirmation.
Any reference to a "Swap Transaction" in the 2000 ISDA Definitions is deemed
to be a reference to a "Transaction" for purposes of this Agreement or any
Confirmation, and any reference to a "Transaction" in this Agreement or any
Confirmation is deemed to be a reference to a
4
"Swap Transaction" for purposes of the 2000 ISDA Definitions. The provisions
of this Agreement (exclusive of the 2000 ISDA Definitions) shall prevail in
the event of any conflict between such provisions and the 2000 ISDA
Definitions.
(b) Scope of Agreement. Any Specified Transaction now existing or hereafter
entered into between the parties (whether or not evidenced by a Confirmation)
which constitutes (i) a swap, cap, collar, floor or option on interest rates
in which the transaction is denominated in U.S. Dollars, (ii) any other
interest rate derivatives transaction denominated in U.S. Dollars, (iii) any
option on or with respect to any of the foregoing, or (iv) any combination of
any of the foregoing, shall constitute a "Transaction" under this Agreement
and shall be subject to, governed by, and construed in accordance with the
terms of this Agreement, unless the confirming document(s) for that Specified
Transaction provide(s) otherwise. In addition, any Specified Transaction
between the parties evidenced by a Confirmation that by its terms specifies
that it is subject to or governed by this Agreement (or an ISDA Master
Agreement between the parties), whether entered into before, on or after the
date of this Agreement, shall constitute a Transaction under this Agreement
and shall be subject to, governed by, and construed in accordance with the
terms of this Agreement.
(c) Additional Representations. Section 3 is amended by adding the following
Sections 3(e), (f), and (g):
"(e) Non-Reliance. For any Relevant Agreement: (i) it acts as principal
and not as agent, (ii) it acknowledges that the other party acts only
arm's length and is not its agent, broker, advisor or fiduciary in any
respect, and any agency, brokerage, advisory or fiduciary services that
the other party (or any of its affiliates) may otherwise provide to the
party (or to any of its affiliates) excludes the Relevant Agreement, (iii)
it is relying solely upon its own evaluation of the Relevant Agreement
(including the present and future results, consequences, risks, and
benefits thereof, whether financial, accounting, tax, legal, or otherwise)
and upon advice from its own professional advisors, (iv) it understands
the Relevant Agreement and those risks, has determined they are
appropriate for it, and willingly assumes those risks, and (v) it has not
relied and will not be relying upon any evaluation or advice (including
any recommendation, opinion, or representation) from the other party, its
affiliates or the representatives or advisors of the other party or its
affiliates (except representations expressly made in the Relevant
Agreement or an opinion of counsel required thereunder).
"Relevant Agreement" means this Agreement, each Transaction, each
Confirmation, any Credit Support Document, and any agreement (including
any amendment, modification, transfer or early termination) between the
parties relating thereto or to any Transaction.
(f) Eligibility. It is an "eligible contract participant" within the
meaning of the Commodity Exchange Act (as amended by the Commodity Futures
Modernization Act of 2000).
(g) ERISA. It is not (i) an employee benefit plan (an "ERISA Plan") as
defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), subject to Title 1 of ERISA of Section 4975 of
the Internal Revenue Code of 1986, as amended, (ii) a person or entity
acting on behalf of an ERISA Plan, or (iii) a person or entity the assets
of which constitute assets of an ERISA Plan.
(d) Set-off. Any amount ("Early Termination Amount") payable to one party
("Payee") by the other party ("Payer") under Section 6(e), in circumstances
where there is a Defaulting Party or one Affected Party in the case where a
Termination Event under Section 5(b)(ii) has occurred, will, at the option of
the party ("X") other than the Defaulting Party or the Affected Party (and
without prior notice to the Defaulting Party or the Affected Party), be
reduced by means of set off against any amount(s) ("Other Agreement Amount")
payable (whether at such time or in the future or upon the occurrence of a
contingency) by the Payee to the Payer or to any Affiliate of the Payer
(irrespective of the currency, place of payment or booking office of the
obligation) under any other agreement(s) between the Payee and the Payer (or
between the Payee and any Affiliate of the Payer) or instrument(s) or
undertaking(s) issued or executed by the Payee to, or in the favor of, the
Payer or any Affiliate of the Payer (and the Other Agreement Amount will be
discharged promptly and in all respects to the extent it is so set-off). X
will give notice to the other party of any set-off effected under this
paragraph.
For this purpose, either the Early Termination Amount or the Other Agreement
Amount (or the relevant portion of such amounts) may be converted by X into
the currency in which the other is denominated at the rate of exchange at
which such party would be able, acting in a reasonable manner and in good
faith, to purchase the relevant amount of such currency. The term "rate of
exchange" includes, without limitation, any premiums and costs of exchange
payable in connection with the purchase of or conversion into the relevant
currency.
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Nothing in this paragraph shall be effective to create a charge or other
security interest. This paragraph shall be without prejudice and in addition
to any right of set-off, combination of accounts, lien or other right to which
any party is at any time otherwise entitled (whether by operation of law,
contract or otherwise).
(e) Change of Account. Any account designated by a party pursuant to Section
2(b) shall be in the same legal and tax jurisdiction as the original account.
(f) Recorded Conversations. Each party and any of its Affiliates may
electronically record any of its telephone conversations with the other party
or with any of the other party's Affiliates in connection with this Agreement
or any Transaction, and any such recordings may be submitted in evidence in
any proceeding to establish any matters pertinent to this Agreement or any
Transaction.
(g) Confirmation Procedures. Upon receipt thereof, Party B shall examine the
terms of each Confirmation sent by Party A, and unless Party B objects to the
terms within three New York business days after receipt of that Confirmation,
those terms shall be deemed accepted and correct absent manifest error, in
which case that Confirmation will be sufficient to form a binding supplement
to this Agreement notwithstanding Section 8(e)(ii) of this Agreement.
(h) Covenants of Financial Agreements.
(i) Party B shall provide Party A at all times hereunder with the same
covenant protection as Party A requires of Party B under Financial
Agreements. Therefore, in addition to the Cross Default provisions of
this Agreement, and notwithstanding the satisfaction of any obligation
or promise to pay money to Party A under any Financial Agreement, or
the termination or cancellation of any Financial Agreement, Party B
hereby agrees to perform, comply with and observe for the benefit of
Party A hereunder all affirmative and negative covenants contained in
each Financial Agreement applicable to Party B (excluding any
obligation or promise
to pay money under any Financial Agreement) at any time Party B has any
obligation (whether absolute or contingent) under this Agreement.
(ii) For purposes hereof: (A) the affirmative and negative covenants of
each Financial Agreement applicable to Party B (together with related
definitions and ancillary provisions, but in any event excluding any
obligation or promise to pay money under any Financial Agreement) are
incorporated (and upon execution of any future Financial Agreement,
shall automatically be incorporated) by reference herein (mutatis
mutandis); (B) if other lenders or creditors are parties to any
Financial Agreement, then references therein to the lenders or
creditors shall be deemed references to Party A; and (C) for any such
covenant applying only when any loan, other extension of credit,
obligation or commitment under the Financial Agreement is outstanding,
that covenant shall be deemed to apply hereunder at any time Party B
has any obligation (whether absolute or contingent) under this
Agreement.
(iii) Notwithstanding the foregoing, if the incorporation of any
provision by reference from any Financial Agreement would result in the
violation by Party B of the terms of that Financial Agreement, or be in
violation of any law, rule or regulation (as interpreted by any court
of competent jurisdiction), then this Agreement shall not incorporate
that provision.
"Financial Agreement" means that certain Loan Agreement dated as of
July 21, 1997 by and among CSS Industries, Inc., the Lending
Institutions listed therein, First Union National Bank (f/k/a
Corestates Bank, N.A.), as the Administrative Agent and Merrill Lynch &
Co., as the Syndication Agent and without regard to (i) any amendment,
modification, addition, waiver or consent thereto or thereof (unless
consented to in writing by Party A), or (ii) any termination or
cancellation thereof (unless replaced or otherwise succeeded by a
Successor Financial Agreement) ("Existing Financial Agreement"),
provided that if at any time the Existing Financial Agreement is
replaced or otherwise succeeded by a Successor Financial Agreement, or
if at any time any Successor Financial Agreement is replaced or
otherwise succeeded by a Successor Financial Agreement, then "Financial
Agreement" means the Successor Financial Agreement most recently
executed and delivered.
"Successor Financial Agreement" means any loan agreement to which Party
A and Party B are parties that is entered into after the date of this
Agreement, as the same exists on the date of execution thereof and
without regard to (i) any amendment, modification, addition, waiver or
consent thereto or thereof (unless consented to in writing by Party A),
or (ii) any termination or cancellation thereof (unless replaced or
otherwise succeeded by a Successor Financial Agreement).
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(i) Transfer. Notwithstanding anything contained in Section 7 of this
Agreement, if Party A's rights in any loan or extension of credit under any
Financial Agreement are sold, assigned or otherwise transferred to any
purchaser, assignee or transferee to which Party A may lawfully make such
sale, assignment or transfer, then Party A may transfer without recourse its
rights and obligations in or under this Agreement (and any
Credit Support Document) to any such purchaser, assignee or transferee,
provided that Party B is provided with written notice of such transfer and a
written acknowledgement of the purchaser, assignee or transferee stating that
it has acquired such rights and obligations of Party A and is bound by the
terms of this Agreement (and any Credit Support Document) as Party A's
successor hereunder (and thereunder).
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized signatories as of the date hereof.
FIRST UNION NATIONAL BANK
By: . . . . . . . . . . .
. . . . . . . . . . . . . .
Name: Kim V. Farr
Title: Vice President
CSS INDUSTRIES, INC.
By: . . . . . . . . . . .
. . . . . . . . . . . . . .
Name: Clifford E.
Pietrafitta
Title: Vice President-
Finance
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