EXHIBIT 10.4
SCHEDULE TO THE
ISDA MASTER AGREEMENT
DATED AS OF MARCH 8, 2001, BETWEEN
SUNTRUST BANK
("PARTY A")
AND
POST, XXXXXXX, XXXXX & XXXXXXXX, INC.
("PARTY B")
Part 1
Definitions
1. "Affiliate" shall have the meaning assigned to such term in Section 14
of this Agreement.
2. "Calculation Agent" shall mean Party A.
3. "Shareholders' Equity" means with respect to any entity, at any time,
the sum (as shown in the most recent annual audited financial
statements of such entity) of (i) its capital stock (including
preferred stock) outstanding, taken at par value, (ii) its capital
surplus and (iii) its retained earnings, minus (iv) treasury stock,
each to be determined in accordance with generally accepted accounting
principles.
4. "Specified Entity" shall mean for the purposes of Sections 5(a)(v),
(vi), and (vii), and Section 5(b)(iv) of this Agreement, in the case of
Party A, not applicable, and in the case of Party B, not applicable.
5. "Specified Indebtedness" shall, with respect to Party A, have the
meaning assigned to such term in Section 14 of this Agreement, but
shall not include indebtedness in respect of deposits received; and
with respect to Party B, shall mean the Loan Agreement as specified in
the relevant Confirmation of each such transaction.
6. "Specified Transaction" shall have the meaning assigned to such term in
Section 14 of this Agreement.
7. "Termination Currency" shall mean United States Dollars.
8. "Threshold Amount" shall mean, for purposes of Section 5(a)(vi) of this
Agreement, (a) with respect to Party A, an amount equal to three
percent (3%) of its Shareholders' Equity, determined in accordance with
generally accepted accounting principles in such party's jurisdiction
of incorporation or organization, consistently applied, as at the end
of such party's most recently completed fiscal year, and (b) with
respect to Party B, $0.00.
Part 2
Representations
1. Tax Representations. None.
2. The following paragraph is added as Section 3(g) of this Agreement:
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"(g) Eligible Swap Participant. It is an "eligible swap participant"
within the meaning of 17 C.F.R. sec. 35.1(b)(2)."
Part 3
Agreements
1. Documents to be delivered. For purposes of Section 4(a) of this
Agreement, each party agrees to deliver the following documents as
applicable:
(a) Certified copies of all documents evidencing necessary
corporate authorizations, as well as other authorizations and
approvals with respect to the execution, delivery and
performance by the party of this Agreement and any Credit
Support Document.
Party required to deliver: Party B
Date by which to be delivered: Upon execution of this
Agreement
Covered by Section 3(d) Representation: Yes
(b) An incumbency certificate of an authorized officer of the
party certifying the names, true signatures and authority of
the officers of the party signing this Agreement and any
Credit Support Document.
Party required to deliver: Party B
Date by which to be delivered: Upon execution of this
Agreement
Covered by Section 3(d) Representation: Yes
(c) Such other document as the other party may reasonably request
In connection with each Transaction.
Party required to deliver: Party B
Date by which to be delivered: Promptly upon request
Covered by Section 3(d) Representation: Yes
(d) Such other written information respecting the condition or
operations, financial or otherwise, of Party B as Party A may
reasonably request from time to time.
Party required to deliver: Party B
Date by which to be delivered: Promptly upon request
Covered by Section 3(d) Representation: Yes
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Part 4
Termination Provisions
1. Cross Default. The "Cross Default" provisions of Section 5(a)(vi) of
this Agreement shall apply to each of Party A and Party B.
2. Credit Event Upon Merger. The "Credit Event Upon Merger" provisions of
Section 5(b)(iv) of this Agreement shall apply to each of Party A and
Party B.
3. Automatic Early Termination. The "Automatic Early Termination"
provision of Section 6(a) of this Agreement shall not apply to either
Party A or Party B.
4. Payments on Early Termination. For purposes of Section 6(e) of this
Agreement, Second Method and Loss shall apply.
5. Additional Termination Event shall not apply. Notwithstanding the
foregoing, with respect to Party B, if the indebtedness under the Loan
Agreement, as defined in the Confirmation, is (for whatever reason, in
whatever manner) partially or fully paid or discharged. Party A shall
have the right but, not the obligation to terminate partially, or in
full, any Transaction identifying such Loan Agreement within its
Confirmation, and will be entitled to receive or will be required to
pay from or to Party B the fair market value for such termination, as
determined by Party A in good faith and in accordance with market
practice and its own customary procedures.
6. Incorporation by Reference of Terms of Loan Agreement. The covenants,
terms and provisions of, including all representations and warranties
of Party B contained in, the Loan Agreement, as in effect from time to
time, are hereby incorporated by reference in, and made part of, this
Agreement to the same extent as if such covenants, terms, and
provisions were set forth in full herein. Party B hereby agrees that,
during the period commencing with the date of this Agreement through
and including such date on which all of Party B's obligations under
this Agreement are fully performed, Party B shall observe, perform, and
fulfill each and every such covenant, term, and provision applicable to
Party B, as such covenants, terms, and provisions, may be amended from
time to time after the date of this Agreement. In the event the Loan
Agreement terminates or becomes no longer binding on Party B prior to
the termination of this Agreement, such covenants, terms, and
provisions (other than those requiring payments in respect of amounts
owed under the Loan Agreement) shall remain in force and effect for
purposes of this Agreement as though set forth in full herein until the
date on which all of Party B's obligations under this Agreement are
fully performed, and this Agreement is terminated.
Part 5
Miscellaneous
1. Notices. For purposes of Section 12 of this Agreement:
(a) The address for notice or communication to Party A is:
SunTrust Equitable Securities Corporation
Financial Risk Management, Operations
000 Xxxxxxxxx Xxxxxx, X.X.
23rd Floor, Center Code 3913
Xxxxxxx, XX 00000
000-000-0000 (phone)
000-000-0000 (fax)
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(b) The address for notice or communication to Party B is:
Xx. Xxxxxxx X. Xxxxxxx, C.P.A.
Senior Executive Vice President
& Chief Financial Officer
Post, Xxxxxxx, Xxxxx & Xxxxxxxx, Inc.
0000 X.X. 000xx Xxxxxx
Xxxxx, XX 00000-0000
000-000-0000, x230 (phone)
000-000-0000 (fax)
2. Governing Law. Section 13(a) of this Agreement is hereby restated as
follows:
"(a) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York
without reference to choice of law doctrine."
3. Jurisdiction. Section 13(b)(i) of this Agreement is hereby restated as
follows.
"(i) submits to the nonexclusive Jurisdiction of the courts of
the State of Georgia and the United States District Court
located in Atlanta, Georgia; and"
4. Process Agent. Process Agent shall not apply to this Agreement.
5. Offices. The provisions of Section 10(a) of this Agreement shall not
apply to either party.
6. Multibranch Party. For purposes of Section 10(c) of this Agreement,
neither Party A nor Party B is a Multibranch Party.
7. Credit Support Provider.
Credit Support Provider means in relation to Party A: Not applicable.
Credit Support Provider means in relation to Party B: The party, as of
any particular time and as may be acceptable to Party A, whose
undertakings or assets under the Credit Support Document secure the
timely performance of Party B's obligations under this Agreement.
8. Credit Support Document.
Credit Support Document means in relation to Party A: Not applicable.
Credit Support Document means in relation to Party B: Any guaranty,
letter of credit, credit agreement, security agreement, mortgage, deed
of trust, pledge agreement, assignment agreement, investment agreement,
surety bond, or other credit enhancement device, or any combination
thereof issued as security for the timely performance of Party B's
obligations under this Agreement, as may be acceptable to Party A,
including, without limitation, any amendments, supplements,
restatements, or other modifications, or any substitutions or
replacements thereto in form and substance satisfactory to Party A.
Part 6
Additional Agreements
1. Recording of Conversations. Each party (i) consents to the monitoring
or recording, at any time and from time to time, by the other party of
any and all communications between officers or employees
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of the parties, (ii) waives any further notice of such monitoring or
recording, and (iii) agrees to notify (and, if required by law, obtain
the consent of) its officers and employees with respect to such
monitoring or recording.
2. Jury Trial. Each party hereby waives, to the fullest extent lawful, its
respective right to jury trial with respect to any legal proceeding
arising under, or in connection with, this Agreement or any
Confirmation.
3. Mediation and Arbitration. Notwithstanding anything to the contrary
contained herein, the parties agree to submit to mediation and, should
settlement through mediation not occur, to arbitration any and all
claims, disputes, and controversies between them (and their respective
employees, officers, directors, affiliates, attorneys, and other
agents) resulting from or arising out of this Agreement. Such mediation
and arbitration shall proceed in the jurisdiction where Party A is
located, shall be governed by the law specified in this Agreement, and
shall be conducted (a) in accordance with such rules as may be agreed
upon by the parties or (b) in the event the parties do not reach an
agreement as to such rules within thirty (30) days after a notice of
dispute, in accordance with the Commercial Mediation Rules and
Commercial Arbitration Rules of the American Arbitration Association.
If, within thirty (30) days after service of a written demand for
mediation, the mediation does not result in settlement of the dispute,
then any party may demand arbitration, and the decision of the
arbitrator(s) shall be binding on the parties. Judgment upon the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction. It is agreed that the arbitrators shall have no authority
to award treble, exemplary, or punitive damages of any type under any
circumstances, whether or not such damages may be available under state
or federal law, or under the Federal Arbitration Act, or under the
Commercial Arbitration Rules of the American Arbitration Association,
the parties hereby waiving their right, if any, to recover any such
damages.
4. By signing this Schedule, Party B acknowledges that it has received and
understands the SunTrust Bank "Terms of Dealing for OTC Risk Management
Transactions" and the "Risk Disclosure Statement for OTC Risk
Management Transactions" (each attached hereto and incorporated by
reference into this Agreement).
Please confirm your agreement to the terms of the foregoing Schedule by signing
below.
SUNTRUST BANK POST, XXXXXXX, XXXXX & XXXXXXXX, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------- ----------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice-President Title: Sr. Executive Vice President
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SUNTRUST BANK ("SUNTRUST")
TERMS OF DEALING FOR OTC RISK MANAGEMENT TRANSACTIONS
In connection with the negotiation, entry into, and performance from time to
time of over-the-counter ("OTC") risk management transactions, please be advised
that:
SunTrust acts as principal only and does not act as advisor, agent, broker, or
fiduciary for or with respect to any counterparty (unless otherwise expressly
agreed in a written engagement letter).
SunTrust expects that its counterparties have the authority and capacity to
enter into and perform their obligations under their OTC risk management
transactions with SunTrust, and SunTrust relies on the express and implied
representations of its counterparties with respect thereto.
SunTrust expects that its counterparties possess adequate knowledge and
experience to assess independently, or with the assistance of their own
advisors, the merits and risks of each OTC risk management transaction that the
counterparty may from time to time enter into, amend, or terminate.
SunTrust endeavors to maintain the confidentiality of all confidential
counterparty information and expects its counterparties to do the same. Unless a
counterparty gives SunTrust written notice to the contrary, each counterparty
authorizes SunTrust and all SunTrust affiliates, including SunTrust Equitable
Securities Corporation (STES), to share with each other confidential information
concerning a counterparty and/or its accounts for marketing or other purposes
from time to time. Any trade ideas, term sheets, and other similar documents
sent to counterparties by SunTrust are not to be shared with others.
SunTrust may pay fees, commissions, and other amounts to agents, brokers, and/or
other third parties in connection with OTC risk management transactions entered
into with counterparties. SunTrust considers the amount of such fees,
commissions, and other amounts to be confidential and does not disclose the same
to its counterparties.
SunTrust may from time to time receive orders for similar or identical
transactions, and SunTrust makes no representation with respect to execution
priorities.
STES's Authorized Officers have the authority to bind SunTrust in connection
with OTC risk management transactions. A current list of Authorized Officers may
be obtained from STES upon request.
OTC risk management obligations of SunTrust are not FDIC insured.
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SUNTRUST BANK ("SUNTRUST")
RISK DISCLOSURE STATEMENT FOR OTC RISK MANAGEMENT TRANSACTIONS
Over-the-counter ("OTC") risk management transactions, like other financial
transactions, involve a variety of significant potential risks. OTC risk
management transactions generally include options, forwards, swaps, swaptions,
caps, floors, collars, combination and variations of such instruments, and other
executory contractual arrangements, and may involve interest rates, currencies,
securities, commodities, equities, credit, indices, and other underlying
interests.
Before entering into any OTC risk management transaction, you should carefully
consider whether the transaction is appropriate for you in light of your
experience, objectives, financial and operational resources, and other relevant
circumstances. You should also ensure that you fully understand the nature of
the transaction and contractual relationship into which you are entering and the
nature and extent of your exposure to risk of loss, which may significantly
exceed the amount of any initial payment or investment by you.
The specific risks presented by a particular OTC risk management transaction
necessarily depend upon the character of the specific transaction and your
circumstances. In general, however, all OTC risk management transactions involve
the risk of adverse or unanticipated market developments, risk of illiquidity
and credit risk, and may involve other material risks. Equity risk management
transactions may increase or decrease in value with a change in, among other
things, stock prices and interest rates which could result in unlimited loss. In
addition, you may be subject to internal operational risks in the event that
appropriate internal systems and controls are not in place to monitor the
various risks and funding requirements to which you are subject by virtue of
your activities in the OTC risk management and related markets. OTC risk
management transactions frequently are tailored to permit parties to customize
transactions to accomplish complex financial and risk management objectives.
Such customization can also introduce significant risk factors of a complex
character.
As in any financial transaction, you must understand the requirements (including
investment restrictions), if any, applicable to you that are established by your
regulators or by your Board of Directors or other governing body. You should
also consider the tax and accounting implications of entering into any risk
management or other transaction. To the extent appropriate in light of the
specific transaction and your circumstances, you should consider consulting such
advisers as may be appropriate to assist you in understanding the risks
involved. If you are acting in the capacity of financial adviser or agent, you
must evaluate the foregoing matters in light of the circumstances applicable to
your principal.
In entering into any OTC risk management transaction, you should also take into
consideration that, unless you and SunTrust have established in writing an
express financial advisory or other fiduciary relationship or you and SunTrust
have expressly agreed in writing that you will be relying on SunTrust's
recommendations as the primary basis for making your trading or investment
decisions, SunTrust is acting solely in the capacity of an arm's-length
contractual counterparty and not in the capacity of your financial advisor or
fiduciary. In addition, SunTrust or its affiliates may from time to time have
substantial long or short positions in and may make a market in or otherwise buy
or sell instruments identical or economically related to the OTC risk management
transaction entered into with you or may have an investment banking or other
commercial relationship with the issuer of any security or financial instrument
underlying an OTC risk management transaction entered into with you.
THIS BRIEF STATEMENT DOES NOT DISCLOSE ALL OF THE RISKS AND OTHER SIGNIFICANT
ASPECTS OF ENTERING INTO OTC RISK MANAGEMENT TRANSACTIONS. YOU SHOULD REFRAIN
FROM ENTERING INTO ANY SUCH TRANSACTION UNLESS YOU FULLY UNDERSTAND ALL SUCH
RISK AND HAVE INDEPENDENTLY DETERMINED THAT THE TRANSACTION IS APPROPRIATE FOR
YOU.
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