[CSS]
FOURTH AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
This FOURTH AMENDMENT (this "Amendment"), dated as of June 1, 2004, is
among CSS FUNDING LLC, a Delaware limited liability company, as seller (the
"Seller"), CSS INDUSTRIES, INC., a Delaware corporation ("CSS"), as initial
servicer (in such capacity, together with its successors and permitted assigns
in such capacity, the "Servicer"), MARKET STREET FUNDING CORPORATION, a Delaware
corporation (together with its successors and permitted assigns, the "Issuer"),
and PNC BANK, NATIONAL ASSOCIATION, a national banking association ("PNC"), as
administrator (in such capacity, together with its successors and assigns in
such capacity, the "Administrator").
RECITALS
1. The Seller, the Servicer, the Issuer and the Administrator are
parties to the Receivables Purchase Agreement, dated as of April 30, 2001 (as
amended, supplemented or otherwise modified from time to time, the "Agreement").
2. The Seller, the Servicer, the Issuer and the Administrator desire to
amend the Agreement as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. Amendments to the Agreement.
1.1 Clause (a) of Section 1.2 of the Agreement is hereby amended by
deleting the phrase "two Business Days" therein and substituting the phrase "one
Business Day" therefor.
1.2 Clause (d)(i) of Section 1.2 of the Agreement is hereby amended by
adding the phrase "(excluding Sold Receivables)" immediately following the
phrase "all Pool Receivables" therein.
1.3 Clause (f)(i) of Section 1.4 of the Agreement is hereby amended and
restated in its entirety as follows:
the Seller shall give the Administrator and the Servicer written notice
in the form of Annex C (A) at least one Business Day prior to the date
of such reduction for any reduction of Capital less than or equal to
$20,000,000, (B) at least two Business Days prior to the date of such
reduction for any reduction of Capital greater than $20,000,000 and
less than or equal to $40,000,000 and (C) at least three Business Days
prior to the date of such reduction for any reduction of Capital
greater than $40,000,000 in each case such notice shall include the
amount of such proposed reduction and the proposed date on which such
reduction will commence;
1.4 A new Section 1.10 is hereby added to the Agreement, to be and to
read as follows:
Section 1.10 Converted Receivables. (a) The Servicer may from
time to time convert certain Delinquent Receivables (which Delinquent
Receivables the Servicer shall have identified in a written notice to
the Administrator) from accounts receivable to notes receivable and in
conjunction with such conversion otherwise modify the terms of such
Delinquent Receivable (the "Converted Receivables"); provided, however,
(i) the aggregate Outstanding Balance of Converted Receivables shall
not exceed (a) if Capital is greater than $0, 5.0% of the Outstanding
Balance of all Receivables or (b) if Capital equals $0, $10,000,000 and
(ii) the cumulative amount of Converted Receivables over the last
twelve months shall not exceed $15,000,000, in each case as calculated
at the time of such conversion; provided, further, the Servicer shall
deliver a pro forma Information Package representing the performance of
the Receivables Pool for the calendar month preceding such conversion
and showing that after giving effect to such conversion the aggregate
outstanding Capital of the Purchased Interest will not exceed 100%. Any
Converted Receivable shall (i) be a Delinquent Receivable for all
purposes of each Transaction Document and (ii) continue to age from the
date of the pro forma Information Package described in the preceding
sentence.
(b) At its expense, the Seller shall mark (or cause the
Servicer to mark) the note evidencing any Converted Receivable with the
following legend (or the substantive equivalent thereof): "A purchase
of or security interest in this note will violate the rights of PNC
Bank, National Association, as secured party for the benefit of Market
Street Funding Corporation under the Receivables Purchase Agreement
dated as of April 30, 2001 (as amended, restated, supplemented or
otherwise modified from time to time), among CSS Funding Corporation,
as seller, CSS Industries, Inc., as initial servicer, Market Street
Funding Corporation and PNC Bank, National Association, as
administrator."
1.5 A new Section 1.11 is hereby added to the Agreement, to be and to
read as follows:
Section 1.11 Sold Receivables. The Seller may from time to
time sell certain Receivables (which Receivables the Seller shall have
identified in a written notice to the Administrator and the sale of
which the Administrator shall have consented to in writing in
substantially the form attached as Annex D) to an unrelated third party
(the "Sold Receivables"); provided, however, (i) the aggregate
Outstanding Balance of any Receivables being sold on any one day shall
not exceed $10,000,000 and (ii) the cumulative amount of Sold
Receivables over the last twelve months shall not exceed $15,000,000,
in each case as calculated at the time of such sale; provided, further,
the Servicer shall deliver a pro forma Information Package representing
the performance of the Receivables Pool for the calendar month
preceding such sale and showing that after giving effect to such sale
the aggregate outstanding Capital of the Purchased Interest will not
exceed 100%. Any Sold Receivable shall be a Defaulted Receivable for
all purposes of each Transaction Document.
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1.6 The proviso in Section 4.2(a) of the Agreement is hereby amended by
deleting the phrase "for purposes of this Agreement" therein and substituting
the phrase "for purposes of this Agreement and except as otherwise permitted in
Section 1.10" therefor.
1.7 Clause (m) of the definition of "Eligible Receivable" set forth in
Exhibit I to the Agreement is hereby amended and restated in its entirety as
follows:
(m) that is neither a Defaulted Receivable, a Converted
Receivable, a Sold Receivable or a Delinquent Receivable,
1.8 Clause (a) of the definition of "Facility Termination Date" set
forth in Exhibit I to the Agreement is hereby amended by deleting the date "July
26, 2004" therein and substituting the date "July 25, 2009" therefor.
1.9 The definition of "Paper Magic" set forth in Exhibit I to the
Agreement is hereby amended by deleting the phrase "The Paper Magic Group, Inc."
therein and substituting the phrase "Paper Magic Group, Inc. (f/k/a The Paper
Magic Group, Inc.)" therefor.
1.10 The definition of "Purchase Limit" set forth in Exhibit I to the
Agreement is hereby amended and restated in its entirety as follows:
"Purchase Limit" means (a) $100,000,000 for the period from
July 26 of each year from 2004 through 2008 through January 31 of each
such following year and (b) for the period from February 1 through July
25 of each year from 2005 through 2009, $25,000,000, in each case as
such amount may be reduced pursuant to Section 1.1(b) of the Agreement.
References to the unused portion of the Purchase Limit shall mean, at
any time, the Purchase Limit minus the then outstanding Capital.
1.11 Paragraphs 1(d) and (e) of Exhibit IV to the Agreement are hereby
amended by deleting the phrase "The Seller shall" therein and substituting the
phrase "Except as otherwise permitted under Section 1.11, the Seller shall"
therefor.
1.12 Paragraph 1(e) of Exhibit V to the Agreement is hereby amended by
adding the phrase "except as otherwise permitted under Section 1.11,"
immediately at the beginning thereof.
1.13 A new Annex D is hereby added to the Agreement, to be and to read
as set forth in Annex D attached hereto.
SECTION 2. Conditions to Effectiveness.
This Amendment shall become effective as of July 26, 2004 subject to
the condition precedent that the Administrator shall have received the
following, each duly executed and dated as of the date hereof (or such other
date satisfactory to the Administrator), in form and substance satisfactory to
the Administrator:
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(a) counterparts of this Amendment (whether by facsimile or
otherwise) executed by each of the parties hereto; and
(b) such other documents and instruments as the Administrator
may reasonably request.
SECTION 3. Effect of Amendment; Ratification. Except as specifically
amended hereby, the Agreement is hereby ratified and confirmed in all respects,
and all of its provisions shall remain in full force and effect. After this
Amendment becomes effective, all references in the Agreement (or in any other
Transaction Document) to "the Receivables Purchase Agreement", "this Agreement",
"hereof", "herein", or words of similar effect, in each case referring to the
Agreement, shall be deemed to be references to the Agreement as amended hereby.
This Amendment shall not be deemed to expressly or impliedly waive, amend, or
supplement any provision of the Agreement other than as specifically set forth
herein.
SECTION 4. Counterparts. This Amendment may be executed in any number
of counterparts and by different parties on separate counterparts, and each
counterpart shall be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
SECTION 5. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of New York without
regard to any otherwise applicable conflict of laws principles.
SECTION 6. Section Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or the Agreement or any provision hereof or thereof.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
CSS FUNDING LLC
By: _______________________________
Name: _________________________
Title: ________________________
CSS INDUSTRIES, INC.
By: _______________________________
Name: _________________________
Title: ________________________
S-1 Fourth Amendment to RPA (CSS)
BERWICK OFFRAY LLC
(f/k/a Berwick Industries LLC),
as a Subservicer
By: _______________________________
Name: _________________________
Title: ________________________
CLEO INC,
as a Subservicer
By: _______________________________
Name: _________________________
Title: ________________________
LION RIBBON COMPANY, INC.,
as a Subservicer
By: _______________________________
Name: _________________________
Title: ________________________
PAPER MAGIC GROUP, INC.
(f/k/a The Paper Magic Group, Inc.),
as a Subservicer
By: _______________________________
Name: _________________________
Title: ________________________
S-2 Fourth Amendment to RPA (CSS)
MARKET STREET FUNDING CORPORATION
By: _______________________________
Name: _________________________
Title: ________________________
S-3 Fourth Amendment to RPA (CSS)
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By: _______________________________
Name:__________________________
Title:_________________________
S-4 Fourth Amendment to RPA (CSS)
ANNEX D
NOTICE, CONSENT AND ASSIGNMENT
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Reference is made to (i) the Receivables Purchase Agreement, dated as
of April 30, 2001 (as the same may be amended, supplemented, amended and
restated or modified from time to time, the "Receivables Purchase Agreement"),
among CSS Funding LLC ("Funding"), CSS Industries, Inc. ("CSS"), Market Street
Funding Corporation ("MSFC") and PNC Bank, National Association (the
"Administrator") and (ii) the Purchase and Sale Agreement, dated as of April 30,
2001 (as the same may be amended, supplemented and restated or otherwise
modified from time to time, the "Purchase and Sale Agreement"), between CSS, the
Originators signatory thereto and Funding. Unless otherwise defined herein,
capitalized terms used herein have the meanings provided in Appendix A to the
Receivables Purchase Agreement.
Funding is the owner of certain Receivables with respect to which
[Customer] ("[Customer]") is the Obligor (the "[Customer] Receivables").
[[Customer] is the debtor in a Chapter 11 bankruptcy proceeding that was
commenced on [Date] in the United States Bankruptcy Court for the District of
[Court](Case No. _________).] The [Customer] Receivables consist of
approximately $_________ of Receivables generated out of sales made by the
Originators to [Customer] before [Date].
Based on available information, Funding believes that there is great
uncertainty as to what portion, if any, of the [Customer] Receivables Funding
will be able to collect from [Customer]. In order to maximize collection of the
[Customer] Receivables, Funding desires to sell and assign all of its right,
title and interest in and to the [Customer] Receivables to third party investors
(the "Purchasers") for a consideration equal to that amount set forth in that
certain [trade confirmation/agreement], dated as of [Date] between CSS Funding,
LLC assignee of [Originator] and [Buyer] (the "Consideration"). The Purchasers
are not in any way related to or affiliated with Funding.
The sale of the [Customer] Receivables satisfies the requirement of
Section 1.11 of the Receivables Purchase Agreement. Attached is the pro forma
Information Package required by Section 1.11 of the Receivables Purchase
Agreement.
At the request of Funding, the Administrator and MSFC, pursuant to
Section 1.11 of the Receivables Purchase Agreement, hereby consent to the sale
of the [Customer] Receivables by Funding to the Purchasers. The Consideration
received by Funding in connection with the sale of the [Customer] Receivables
shall be applied as Collections in accordance with applicable provisions of the
Receivables Purchase Agreement and the other Transaction Documents.
By execution of this Notice, Consent and Assignment, the Administrator
and MSFC hereby sell, assign and transfer unto Funding and its successors and
assigns all of their right, title and interest, and release any security
interest, of the Administrator and MSFC in and to the following:
Annex D-1
(a) each [Customer] Receivable;
(b) All rights to all Related Security relating to any
[Customer] Receivables;
(c) all monies due or to become due with respect to any of
the foregoing, save and except for the Consideration to
be paid by the Purchasers to Funding in respect of the
[Customer] Receivables;
(d) all books and records related exclusively to any of the
foregoing; and
(e) all proceeds thereof (as defined by the UCC) received
on or after the date hereof including, without
limitation, all funds which either are received by
Funding or the Servicer from or on behalf of [Customer]
in payment of any amounts owed (including, without
limitation, finance charges, interest and all other
charges) in respect of the [Customer] Receivables, or
are applied to such amounts owed by [Customer]
(including without limitation, insurance payments, if
any, that Funding or the Servicer applies in the
ordinary course of its business to amounts owed in
respect of any [Customer] Receivable), excluding,
however, the Consideration to be paid by the Purchasers
to Funding with respect to the [Customer] Receivables.
THIS NOTICE, CONSENT AND ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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Annex D-2
IN WITNESS WHEREOF, the undersigned has caused this Notice, Consent and
Assignment to be duly executed and delivered by its duly authorized officer this
______ day of ________.
CSS FUNDING LLC
By:________________________________
Title:_____________________________
Consented and Agreed:
MARKET STREET FUNDING
CORPORATION
By:________________________________
Title:_____________________________
PNC BANK, NATIONAL ASSOCIATION
as Administrator
By:________________________________
Title:_____________________________
Annex D-3