(Multicurrency -- Cross Border)
ISDA(R)
International Swap Dealers Association, Inc
MASTER AGREEMENT
dated as of April 2, 2001
PNC Bank, National Association and CSS Industries Inc 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 14 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 Transactions.
(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
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(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 Offices through which the parties
make and receive payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without
any deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified
by the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that
party ("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required to
be deducted or withheld from any additional amount paid by X to
Y under this Section 2(d)) promptly upon the earlier of
determining that such deduction or withholding is required or
receiving notice that such amount has been assessed against Y:
(3) promptly forward to Y an official receipt for a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition
to the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure
that the net amount actually received by Y (free and clear of
Indemnifiable Taxes, whether assessed against X or Y) will
equal the full amount Y would have received had no such
deduction or withholding been required. However, X will not be
required to pay any additional amount to Y to the extent that
it would not be required to be paid but for:--
(A) the failure by Y to comply with or perform any
agreement contained in Section 4(a)(i), 4(a)(iii) or
4(d); or
(B) the failure of a representation made by Y pursuant
to Section 3(f) to be accurate and true unless such
failure would not have occurred but for (I) any action
taken by taxing authority, or brought in a court of
competent jurisdiction, on or after the date on which a
Transaction is entered into (regardless of whether such
action is taken or brought with respect to a party to
this Agreement) or (II) a Change in Tax Law.
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(ii) Liability. If:--
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority,
to make any deduction or withholding in respect of which
X would not be required to pay an additional amount to Y
under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X.
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the amount
of such liability (including any related liability for interest but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d)).
(e) 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 and, in the case of the representations in Section 3(f), at all times
until the termination of this Agreement 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;
(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.
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(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 o 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.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(f) is accurate and true.
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 or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to
allow such other party or its Credit Support Provider to make a payment
under this Agreement or any applicable Credit Support Document without
any deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of
such demand), with any such form or document to be accurate and
completed in a manner reasonably satisfactory to such other party and
to be executed and to be delivered with any reasonably required
certification,
in each case 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.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of
such failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of
this Agreement by a jurisdiction in which it is incorporated, organised,
managed and controlled or considered to have its seat, or in which a branch or
office through which it is acting for the purpose of this Agreement is located
("Stamp Tax Jurisdiction") and will indemnify the other party against any
Stamp Tax levied or imposed upon the other party or in respect of the other
party's execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the
other party.
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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(e) 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(e) or to give notice of a Termination
Event or any agreement or obligation under Section 4(a)(i),
4(a)(iii) or 4(d)) to be complied with or performed 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;
(iii) 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 (other than a
representation under Section 3(e) or (f)) 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
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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 judgement 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 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 or 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 times 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, a Tax Event if the event is specified in
(ii) below or a Tax Event Upon Merger if the event is specified in (iii)
below, and, if specified to be applicable, a Credit Event Upon Merger if the
event is specified pursuant to (iv) below or an Additional Termination Event
if the event is specified pursuant to (v) 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
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(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) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action
is taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will,
or there is a substantial likelihood that it will, on the next
succeeding Scheduled Payment Date (1) be required to pay to the other
party an additional amount in respect of an indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) or (2) receive a payment from which an amount is
required to be deducted or withheld for or on account of a Tax (except
in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) and no
additional amount is required to be paid in respect of such Tax under
Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A) or
(B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the
next succeeding Scheduled Payment Date will either (1) be required to
pay an additional amount in respect of an Indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) or (2) receive a payment from which an amount has
been deducted or withheld for or on account of any Indemnifiable Tax in
respect of which the other party is not required to pay an additional
amount (other than by reason of Section 2(d)(i)(4)(A) or (B)), in
either case as a result of a party consolidating or amalgamating with,
or merging with or into, or transferring all or substantially all its
assets to, another entity (which will be the Affected Party) where such
action does not constitute an event described in Section 5(a)(viii);
(iv) 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
(v) 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 Defaults. 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 specify 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.
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(ii) Transfer to Avoid Termination Event. If either an illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is
the Affected Party, the Affected Party will, as a condition to its
right to designate an Early Termination Date under Section 6(b)(iv),
use all reasonable efforts (which will not require such party to incur
a loss, excluding immaterial, incidental expenses) to transfer within
20 days after it gives notice under Section 6(b)(i) all its rights and
obligations under this Agreement in respect of the Affected
Transactions to another of its Offices or Affiliates so that such
Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days
after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be
subject to and conditional upon the prior written consent of the other
party, which consent will not be withheld if such other party's
policies in effect at such time would permit it to enter into
transactions with the transferee on the terms proposed.
(iii) Two Affected Parties.If an illegality under Section 5(b)(i)(1) or
a Tax Event 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.
(iv) Right to Terminate. If:--
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, 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 under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax
Event Upon Merger occurs and the Burdened Party is not the
Affected Party,
either party in the case of an illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in the case of a
Tax Event or 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.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(c) 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(c).
(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(a) 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(c)) 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 quotations 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(c) 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 notices of the amount payable is effective (in the
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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) in the Termination Currency, 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 Quotations" 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 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 Termination Currency Equivalent of the Unpaid Amounts owing
to the Non-defaulting Party over (B) the Termination Currency
Equivalent of 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 Termination Currency Equivalent of the Unpaid Amounts owing
to the Non-defaulting Party less (B) the Termination Currency
Equivalent of 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 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)(1)(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 Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of 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
9
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
Subject to Section 6(b)(ii), 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 be from a Defaulting Party under Section 6(c).
Any purported transfer that is not in compliance with this Section will be
void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any lender in any currency
other than the Contractual Currency, except to the extent such lender results
in the actual receipt by the party to which payment is owed, acting in a
reasonable manner and in good faith in converting the currency so tendered
into the Contractual Currency, of the full amount in the Contractual Currency
of all amounts payable in respect of this Agreement. If for any reason the
amount in the Contractual Currency so received falls short of the amount in
the Contractual Currency payable in respect of this Agreement, the party
required to make the payment will, to the extent permitted by applicable law,
immediately pay such additional amount in the Contractual Currency as may be
necessary to compensate for the shortfall. If for any reason the amount in the
Contractual Currency so received exceeds the amount in the Contractual
Currency payable in respect of this Agreement, the party receiving the payment
will refund promptly the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party
is entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency and will refund promptly to the other party any excess of
the Contractual Currency received by such party as a consequence of sums paid
in such other currency if such shortfall or such excess arises or results from
any variation between the rate of exchange at which the Contractual Currency
is converted into the currency of the judgment or order for the purposes of
such judgment or order and the rate of exchange as which such party is able,
acting in a reasonable manner and in good faith in converting the currency
received into the Contractual Currency, to purchase the Contractual Currency
with the amount of the currency of the judgment or order actually
10
received by such party. 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 Contractual Currency.
(c) Separate indemnities. To the extent permitted by applicable law, these
indemnities constitutes separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the
party to which any payment is owed and will not be affected by judgment being
obtained or claim or proof being made for any other sums payable in respect of
this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
9. 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.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking
office or jurisdiction of incorporation or organisation of such party, the
obligations of such party are the same as if it had entered into the
Transaction through its head or home office. This representation will be
deemed to be repeated by such party on each date on which a Transaction is
entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office
11
through which it makes and receives payments or deliveries with respect to a
Transaction will be specified in the relevant Confirmation.
11. 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 and Stamp Tax, 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.
12. 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;
(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.
13. 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.
12
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any reason any party's
Process Agent is unable to act as such, such party will promptly notify the
other party and within 30 days appoint a substitute process agent acceptable
to the other party. The parties irrevocably consent to service of process
given in the manner provided for notices in Section 12. Nothing in this
Agreement will affect the right of either party to serve process in any other
manner permitted by law.
(d) 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.
14. 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)
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an illegality, Tax, Event or Tax Event Upon Merger, 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 of 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.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or after the
date on which the relevant Transaction is entered into.
"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).
13
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"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).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed
in respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to
such recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having
executed, delivered, performed its obligations or received a payment under, or
enforced, this Agreement or a Credit Support Document).
"Law" includes any treaty, law, rule or regulation (as modified, in the case
of tax matters, by the practice of any relevant governmental revenue
authority) 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 and, if different, in the principal financial
centre, if any, of the currency of such payment, (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 Transactions.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be
its total losses and costs for 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 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(c)(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 11. 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 group 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 good 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
14
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).
"Office" means a branch or office of a party, which may be such party's head
or home office.
"Potential Event of Defaults" 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.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a)
in which the party is incorporated, organised, managed and controlled or
considered to have its seat, (b) where an Office through which the party is
acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) in relation to any payment, from or through
which such payment is made.
"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 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 Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined;
(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.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
15
"Tax" means any present or future tax, levy, impost, duty, charge, assessment
or fee of any nature (including interest, penalties and additions thereto)
that is imposed by any government or other taxing authority in respect of any
payment under this Agreement other than a stamp, registration, documentation
or similar tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"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 Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated
in the Termination Currency, such Termination Currency amount and, in respect
of any amount denominated in a currency other than the Termination Currency
(the "Other Currency"), the amount in the Termination Currency determined by
the party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or,
if the relevant Market Quotation or Loss (as the case may be), is determined
as of a later date, that later date, with the Termination Currency at the rate
equal to the spot exchange rate of the foreign exchange agent (selected as
provided below) for the purchase of such Other Currency with the Termination
Currency at or about 11.00 a.m. (in the city in which such foreign exchange
agent is located) on such date as would be customary for the determination of
such a rate for the purchase of such Other Currency for value on the relevant
Early Termination Date or that later date. The foreign exchange agent will, if
only one party is obliged to make a determination under Section 6(e), be
selected in good faith by that party and otherwise will be agreed by the
parties.
"Termination Event" means an illegality, a Tax Event or a Tax Event Upon
Merger 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 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 Termination Currency Equivalents 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.
PNC Bank, National Association CSS Industries, Inc.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Name of Party) (Name of Party)
By: Charlotte B. McLaughlin By: C. Pietrefiffa
----------------------------- -------------------------------
Name: Charlotte B. McLaughlin Name: C. Pietrefiffa
Title: Senior Vice President Title: Vice President - Finance
Date: Date:
16
SCHEDULE
to the
Master Agreement
dated as of April 2, 2001
between
CSS INDUSTRIES, INC. ("CSS")
and
PNC BANK, NATIONAL ASSOCIATION ("PNC")
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to PNC for the purpose of:-
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
and in relation to CSS for the purpose of:-
Section 5(a)(v), Affiliates
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
(b) "Specified Transaction" will have the meaning specified in Section 14
of this Agreement.
(c) The "Cross Default" provisions of Section 5(a)(vi) will apply to CSS
and PNC.
If such provisions apply:-
"Specified Indebtedness" will have the meaning specified in Section 14
of this Agreement, except that, with respect to PNC, such term shall
not include obligations in respect of deposits or letters of credit
issued to the extent they are not paid when due solely as a result of
inadvertence, administrative error or legal prohibition. In addition,
with respect to CSS, "Specified Indebtedness" shall include, without
limitation, the obligations of CSS under a Credit Agreement (as defined
in Section (b)(i) of Part 5 of this Schedule).
"Threshold Amount" shall mean:
In the case of PNC, an amount (or its equivalent in other currencies)
at any time equal to the greater of (a) 3% of the consolidated
stockholders equity of PNC Bank Corp., a Pennsylvania corporation, as
shown in its most recent annual or quarterly financial statements
prepared in accordance with generally accepted accounting principles in
the United States, or (b) $25,000,000.
In the case of CSS, an amount (or its equivalent in other currencies)
at any time equal to $0,00.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will
apply to both parties.
(e) The "Automatic Early Termination" provision of Section 6(a) will not
apply to either party.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:--
(i) Market Quotation will apply.
(ii) The Second Method will apply.
19
(g) "Termination Currency" means United States Dollars.
(h) Additional Termination Event will not apply.
Part 2. Tax Representations. Not applicable to either party.
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:--
(a) Tax forms, documents or certificates to be delivered are:-- Each party
shall, as soon as reasonably practicable after receiving written request for
same, deliver to the other party any form or document reasonably requested by
the other party which is required to enable such other party to make payments
hereunder without deduction or withholding for or on account of Taxes or with
such withholding or deduction at a reduced rate.
(b) Other documents to be delivered by PNC to CSS are as follows:--
(i) Concurrently with the execution and delivery of this Agreement, PNC
shall deliver to CSS the following items, each of which shall be in
form and substance reasonably satisfactory to CSS, and which is covered
by the Section 3(d) representation; Evidence of the authority and
incumbency of, and a specimen signature of each person executing this
Agreement or any other document in connection with this Agreement on
behalf of PNC (at least one of whom shall be an officer with the rank
of Vice President or higher) and of each person authorized to execute
Confirmations on behalf of PNC.
(ii) With respect to any Transaction, PNC shall furnish to CSS the
following items (each of which shall be in form and substance
reasonably satisfactory to CSS, and which are covered by the Section
3(d) representation) from time to time at the written request of CSS,
as soon as reasonably practical after receipt of such request; Evidence
of the authority and incumbency of, and a specimen signature of, each
person executing the Confirmation with respect to such Transaction on
behalf of PNC (at least one of whom shall be an officer with the rank
of Vice President or higher).
(iii) Promptly following request in writing from time to time by CSS,
PNC shall furnish to CSS the following items (which are covered by the
Section 3(d) representation): the most recent annual and quarterly
consolidated financial statements of PNC Bank Corp.
(c) Other documents to be delivered by CSS to PNC are as follows:--
(i) Concurrently with the execution and delivery of this Agreement, CSS
shall deliver to PNC the following items, each of which shall be in
form and substance reasonably satisfactory to PNC, and which is covered
by the Section 3(d) representation; Evidence of the authority and
incumbency of, and a specimen signature of, each person executing this
Agreement or any other document in connection with this Agreement on
behalf of CSS and of each person authorised to execute Confirmations on
behalf of CSS.
(ii) With respect to any Transaction, CSS shall furnish to PNC the
following items (each of which shall be in form and substance
reasonably satisfactory to PNC, and which are covered by the
Section 3(d) representation) from time to time at the written
request of PNC, as soon as reasonably practical after receipt
of such request. Evidence of the authority and incumbency of,
and a specimen signature of, each person executing the
Confirmation with respect to such Transaction on behalf of CSS.
(iii) Promptly following request in writing from time to time by PNC,
CSS shall furnish to PNC the following items (which are covered
by the Section 3(d) representation) the most recent annual and
quarterly consolidated financial statements of CSS.
20
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a) of this
Agreement:--
Address for notices or communications to PNC:
Address: One PNC Plaza, 9th Floor
249 Fifth Avenue
Pittsburgh, PA 15222-2707
Attention: Swap Operations
Facsimile No.: 412-762-8667
Telephone No.: 412-762-1375
Address for notices or communications to CSS:
Address: 1845 Walnut Street, Suite 800
Philadelphia, PA 19103-4755
Attention: Clifford E. Pietrafitta, VP-
Finance
Facsmile No.: 215-569-9979
Telephone No.: 215-569-9900
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:--
PNC appoints as its Process Agent: Not Applicable.
CSS appoints as its Process Agent: Not Applicable.
(c) Offices. The provisions of Section 10(a) will not apply to this
Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this
Agreement:--
PNC is not a Multibranch Party.
CSS is not a Multibranch Party.
(e) Calculation Agent. Unless otherwise specified in a Confirmation in
relation to the relevant Transaction, the Calculation Agent is PNC.
(f) Credit Support Document. Details of any Credit Support Document:--
"Credit Support Document" means in relation to PNC, none.
"Credit Support Document" means in relation to CSS, each agreement and
instrument, now or hereafter existing, of any kind or nature which secures,
guarantees or otherwise provides direct or indirect assurance of payment or
performance of any existing or future obligation of CSS under this Agreement,
made by or on behalf of any person or entity (including, without limiting the
generality of the foregoing, any agreement or instrument granting any lien,
security interest, assignment, charge or encumbrance to secure any such
obligation, any guaranty, suretyship, letter of credit, put option or
subordination agreement relating to any such obligation and any "keep well" or
other financial support agreement relating to CSS).
(g) Credit Support Provider.
"Credit Support Provider" means in relation to PNC, none.
"Credit Support Provider" means in relation to CSS, any person or entity
(other than CSS), that now or hereafter secures, guarantees or otherwise
provides direct or indirect assurance of payment or performance of any
existing or future obligation of CSS under this Agreement.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the law of the State of New York (without reference to choice
of law doctrine).
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement
will not apply to the following Transactions or groups of Transactions (in
each case starting from the date of this Agreement); all Transactions.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
21
Part 5. Other Provisions.
(a) Conditions Precedent. The condition precedent in Section 2(a)(iii)(1) does
not apply to a payment and delivery owing by a party if the other party shall
have satisfied in full all its payment or delivery obligations under Section
2(a)(i) of this Agreement and shall at the relevant time have no future
payment or delivery obligations, whether absolute or contingent, under Section
2(a)(i).
(b) Consent to Recording. Each party (i) consents to the recording, by the
other party or its agents, of telephone conversations between officers,
employees or agents of the consenting party or its Affiliates and officers,
employees or agents of the other party or its Affiliates who quote on, agree
to or otherwise discuss terms of Transactions or potential Transactions, or
other matters relating to this Agreement or any Credit Support Document, and
(ii) agrees to give notice of such recording to such officers, employees and
agents of it and its Affiliates.
(c) Confirmations. As provided in Section 9(e)(ii)of this Agreement, the
parties intend that they shall be legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). The terms of a Transaction subject to this Agreement orally agreed
to shall be deemed to constitute a "Confirmation" as referred to in this
Agreement, even if not so specified by the parties. As promptly as practicable
after any such oral agreement, the parties shall enter into a definitive
Confirmation with respect to such Transaction in accordance with the Section
9(e)(ii) of this Agreement, whereupon such definitive Confirmation shall
supersede and replace such oral agreement and such oral agreement shall have
no further legal force or effect.
(d) Additional Representations and Warranties. The specified party represents
and warrants to the other party (which representations and warranties will be
deemed to be repeated on each date on which a Transaction is entered into) as
follows:
(i) In the case of PNC, PNC is a national banking association duly organized
under the federal laws of the United States of America.
(ii) In the case of CSS, CSS is a corporation, partnership or limited
liability company duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization.
(iii) In the case of each party, such party is entering into this
Agreement and each Transaction for its own account as principal (and not
as agent or in any other capacity, fiduciary or otherwise).
(iv) In the case of each party:
(A) Such party intends and acknowledges that this Agreement,
including all Transactions hereunder, shall qualify for the
exemption from the provision of the Commodity Exchange Act, as
amended, provided by 17 C.F.R. Part 35 as in effect on the date
of this Agreement (or any successor provision of similar
import) (the "CFTC Swap Regulations"). Without limiting the
generality of the foregoing: (1) such party is an "eligible
swap participant" as defined in the CFTC Swap Regulations, (2)
this Agreement, including all Transactions hereunder,
constitutes a "swap agreement" as defined in the CFTC Swap
Regulations, (3) neither this Agreement nor any Transaction
hereunder is one of a fungible class of agreements that are
standardized as to their material economic terms, and (4) the
creditworthiness of the other party is a material consideration
in entering into or determining the terms of this Agreement and
each Transaction hereunder, including pricing, cost or credit
enhancement terms.
(B) Such party is entering into this Agreement, including all
Transactions hereunder, in connection with a line of its
business.
(C) With respect to any Transaction that constitutes, or that
has the economic effect of, a commodity option, the party which
is the offeree of such option represents and warrants as to
itself that it is a producer, processor or commercial user of,
or a merchant handling, the commodity which is the subject of
such Transaction (or by-products of such commodity), and that
it is entering into such Transaction solely for purposes
related to its business as such.
22
(v)
(A) In the case of CSS it intends and acknowledges that this
Agreement, including all Transactions hereunder, shall
constitute a "swap agreement" as defined in 11 U.S.C.
ss.101(53B) as in effect on the date of this Agreement (or any
successor provision of similar import).
(B) In the case of PNC: (1) it intends and acknowledges that
this Agreement, including all Transactions hereunder, shall
constitute a "qualified financial contract" and a "swap
agreement," as those terms are defined in 12 U.S.C.
ss.1821(o)(8)(D) as in effect on the date of this Agreement (or
any successor provision of similar import) (2) without limiting
the generality of Section 3(a)(i), PNC, by corporate action, is
authorised under applicable non-insolvency law to enter into
and perform its obligations under this Agreement, each Credit
Support Document (if any) to which it is party and each
Transaction hereunder, (3) it will, at all times during the
term of this Agreement, maintain as part of its official books
and records a copy of this Agreement (including all
Confirmations from time to time and all other supplements
hereto and documents incorporated by reference herein) and each
Credit Support Document (if any) to which it is party, and
evidence of its authorization of the foregoing, and (4) this
Agreement, each Confirmation, each Credit Support Document (if
any) to which it is party, and any other documentation relating
to this Agreement to which it is a party or that it is required
to deliver will be executed and delivered by an officer of PNC
of the level of Vice President or higher.
(vi) In the case of each party:
(A) It is acting for its own account, and it has made its own
independent decisions to enter into this Agreement and each
Transaction and as to whether this Agreement and each
Transaction is appropriate or proper for it based upon its own
judgment and upon advice from such advisers as its 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 Agreement or any Transaction;
it being understood that information and explanations related
to the terms and conditions of this Agreement or any
Transaction shall not be considered investment advice or a
recommendation to enter into this Agreement or such
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 Agreement or any
Transaction.
(B) 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
this Agreement and each Transaction. It is also capable of
assuming, and assumes, the risks of this Agreement and each
Transaction.
(C) The other party is not acting as a fiduciary for or an
adviser to it in respect of this Agreement or any Transaction.
(vii) In the case of each party, such party intends and acknowledges
that this Agreement, including all Transactions hereunder, shall be
commercial transactions and shall not be transactions in "securities"
for purposes of any securities law (including without limitation the
Securities Exchange Act of 1934, as amended, and the Securities Act of
1933, as amended).
(viii) In the case of CSS, CSS and its Affiliates have reviewed the
areas within their business and operations which could be adversely
affected by, and have developed or are developing a program to address
on a timely basis, the risk that certain computer applications used by
CSS or its Affiliates (or any of their respective material suppliers,
customers or vendors) may be unable to recognize and perform properly
date-sensitive functions involving dates prior to and after December
31, 1999 (the "Year 2000 Problem"). The Year 2000 Problem will not
result, and is not reasonably expected to result, in any material
adverse effect on the business, properties, assets, financial
condition, results of operations or prospects of CSS or any Affiliate,
or the ability of CSS or any Affiliate, as applicable, to duly and
punctually pay or perform its obligations hereunder and under any
Credit Support Document or Credit Agreement.
(e) Accuracy of Specified Information. Section 3(d) is modified by deleting
the period at the end thereof and appending thereto the following; "or, in the
case of audited or unaudited financial statements, a fair presentation
23
of the financial condition, results of operations or cash flows (as
applicable) of the relevant person for the dates and periods specified therein
in conformity with generally accepted accounting principles in the United
States."
(f) Set-off, Section 6 is modified by adding the following Section 6(f)
thereto:
(f) Set-off. Any amount (the "Early Termination Amount") payable to one
party (the "Payee") by the other party (the "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)(iv) 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 its set-off
against any amount(s) (the "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 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 any
affiliate of the Payer or instrument(s) or undertaking(s) issued or
executed by one party (or if applicable to the context hereto, any
Affiliate thereof) to, or in favor of, the other party (or if applicable
to the context hereto, any Affiliate thereof) (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 Section 6(f).
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.
If an obligation is unascertained, X may in good faith estimate that
obligation and set-off in respect of the estimate, subject to the
relevant party accounting to the other when the obligation is
ascertained.
Nothing in this Section 6(f) shall be effective to create a charge or
other security interest. This Section 6(f) 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).
(g) Jurisdiction. Section 13(b)(i) is modified by deleting the words "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,"
and replacing them with the words "non-exclusive jurisdiction of the courts of
the State of New York and the Commonwealth of Pennsylvania and the United
States District Courts located in the Borough of Manhattan in New York City
and in Allegheny County, Pennsylvania,".
(h) Existing and Future Credit Agreements.
(i) As used in this Agreements, the following terms shall have the
following meanings:
"Financing" shall mean any loan, extension of credit or
financial accommodation (including, without limiting the
generality of the foregoing, any commitment relating to any of
the foregoing).
"Credit Agreement" means that certain Loan Agreement dated as
of April 30, 2001 by and among CSS, the Lending Institutions
listed therein, PNC, as Administrative Agent, PNC Capital
Markets, Inc., as Lead Arranger, and Fleet National Bank and
First Union Bank, as Co-Documentation Agents (the "Existing
Credit Agreement") and without regard to (A) any termination or
cancellation thereof, whether by reason of payment of all
obligations of CSS thereunder or otherwise, or (B) unless
consented to in writing by PNC or any Affiliate thereof, any
amendment, modification, supplement, waiver or consent thereto
or thereof; provided, however, that if at any time the Existing
Credit Agreement is replaced or otherwise succeeded by a
Successor Credit Agreement (as hereinafter defined), or if at
any time any Successor Credit Agreement is replaced, or
otherwise succeeded by a Successor Credit Agreement, then
"Credit Agreement" means the Successor Credit Agreement most
recently executed and delivered. "Successor Credit Agreement"
means any loan agreement to which CSS and PNC (or any Affiliate
of PNC) are parties that have entered into after the date of
this Agreement, as the same exists on the date of execution
thereof and without regard to (A) any termination or
cancellation, thereof, whether by reason of payment of all
obligations of CSS thereunder or
24
otherwise, or (B) unless consented to in writing by PNC or any
Affiliate thereof, any amendment, modification, supplement,
waiver or consent thereto or thereof.
(ii) Until all obligations of CSS, under this Agreement, now
existing or hereafter arising, have been paid in cash and
performed in full and all Transactions under the Master
Agreement have terminated, CSS will at all times perform,
comply with and observe all covenants and agreements of each
Credit Agreement applicable to it, which covenants and
agreements, together with related definitions and ancillary
provisions, are incorporated (and upon execution of any future
Credit Agreement shall automatically be deemed incorporated) by
reference herein and, for the avoidance of doubt, shall be
construed to apply hereunder for the benefit of PNC as though
(A) all references therein to any party (or parties) extending
Financing were to PNC and (B) for any such covenants and
agreements that are conditioned on or relate to either the
existence of such Financing or CSS having any obligations
arising out of or in connection therewith, all references to
such Financing or obligations were to CSS's obligations under
this Agreement.
(iii) Section 5(a)(vi) is amended by deleting the semicolon at the
end thereof and replacing it with the following: "or (3) in
respect of CSS only, any default, event of default or similar
condition or event (however described) under any Credit
Agreement;"
(i) Service of Process. CSS hereby irrevocably consents to service of any
summons, complaint or other legal process on it in any suit, action or
proceedings relating to this Agreement, any Credit Support Document or
any Transaction by registered or certified U.S. mail, postage prepaid,
to it at its address for notices described herein, and agrees that such
service shall constitute in every respect valid and effective service
(but nothing herein shall affect the validity or effectiveness of
process served in any other manner permitted by law).
(j) Facsimiles. For purpose of this Agreement, any Credit Support Document
or any Transaction, any execution counterparts delivered by facsimile
transmission shall be effective as delivery of an original counterpart
thereto and shall be deemed to be an original signature thereto.
(k) WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDINGS RELATING TO
THIS AGREEMENT, ANY CREDIT SUPPORT DOCUMENT OR ANY TRANSACTION.
(l) Limitation of Liability. To the fullest extent permitted by law, no
claim may be made by CSS against PNC or any affiliate, director,
officer, employee, attorney or agent of PNC for any special, indirect,
consequential or punitive damages in respect of any claim arising from
or relating to this Agreement, any Credit Support Document or any
Transaction or any statement, course of conduct, act, omission or event
in connection with any of the foregoing (whether based on breach of
contract, tort or any other theory of liability); and CSS hereby
waives, releases and agrees not to sue upon any claim for any such
damages, whether or not accrued and whether or not known or suspected
to exist.
(m) Incorporation of Protocol Terms. The parties agree that the definitions
and provisions contained in Annexes 1 to 5 and Section 6 of the EMU
Protocol published by the International Swaps and Derivatives
Association, Inc. on 6th May, 1998 are incorporated into and apply to
this Agreement. References in those definitions and provisions to any
"ISDA Master Agreement" will be deemed to be references to this
Agreement.
The parties hereto have executed the Master Agreement referred to in the
caption of this Schedule and have agreed to the contents of this Schedule.
PNC BANK, NATIONAL ASSOCIATION CSS INDUSTRIES,
INC.
By: . . . . . . . . . . . . . . . . . . . . . . . . . . . By: . . . . . .
Name: Charlotte B. McLaughlin . . . . . . . .
Title: Senior Vice President . . . . . . . .
. . . . .
Name: C.
Pietrafitte
Title: VP -
FINANCE
25