EXHIBIT 10.2
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CREDIT AGREEMENT
BETWEEN
WKI HOLDING COMPANY, INC.,
AS BORROWER
AND
BORDEN, INC.,
AS LENDER
DATED AS OF AUGUST 25, 2000
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Table of Contents
Page
SECTION 1. Definitions......................................................1
SECTION 2. Amount and Terms of Credit.......................................4
2.1 Commitments.......................................................4
2.2 Procedure for Borrowing...........................................4
2.3 Minimum Amount of Each Borrowing; Maximum Number of Borrowings....5
2.4 Repayment of Loans; Evidence of Debt..............................5
2.5 Conversions and Continuations.....................................5
2.6 Interest..........................................................6
2.7 Interest Periods..................................................7
2.8 Increased Costs...................................................7
SECTION 3. Fees; Commitments................................................8
3.1 Fees..............................................................8
3.2 Voluntary Reduction of Revolving Credit Commitments...............8
3.3 Mandatory Termination of Commitment...............................8
SECTION 4. Payments.........................................................8
4.1 Voluntary Payments................................................8
4.2 Method and Place of Payment.......................................9
4.3 Net Payments......................................................9
4.4 Computations of Interest and Fees................................10
SECTION 5. Conditions Precedent to Closing.................................10
5.1 Credit Documents.................................................10
5.2 Closing Certificate..............................................10
5.3 Fees.............................................................10
SECTION 6. Conditions Precedent to each Loan...............................10
6.1 No Default; Representations and Warranties.......................11
6.2 Notice of Borrowing..............................................11
SECTION 7. Representations, Warranties and Agreements.......................11
SECTION 8. Affirmative Covenants...........................................11
8.1 Additional Guarantors............................................11
8.2 Amendments to WKI Credit Agreement...............................12
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SECTION 9. Negative Covenants..............................................12
SECTION 10. Events of Default..............................................12
SECTION 11. Miscellaneous..................................................12
11.1 Amendments and Waivers..........................................12
11.2 Notices.........................................................12
11.3 No Waiver; Cumulative Remedies..................................13
11.4 Survival of Representations and Warranties......................13
11.5 Payment of Expenses and Taxes...................................13
11.6 Successors and Assigns; Participations and Assignments..........14
11.7 Incorporation by Reference......................................16
11.8 Set-off.........................................................16
11.9 Counterparts....................................................16
11.10 Severability...................................................16
11.11 Integration....................................................16
11.12 GOVERNING LAW..................................................17
11.13 Submission to Jurisdiction, Waivers............................17
11.14 Acknowledgments................................................17
11.15 WAIVERS OF JURY TRIAL..........................................18
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SCHEDULES
Schedule 1.1 Commitment
EXHIBITS
Exhibit A Form of Guarantee
iii
CREDIT AGREEMENT dated as of August 25, 2000, between WKI HOLDING
COMPANY, INC, a Delaware corporation (the "BORROWER"), and BORDEN, INC., a New
Jersey corporation (the "LENDER").
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Lender make
available a credit facility;
WHEREAS, the Lender is willing to make such credit facility
available upon and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein but not
defined herein shall have the meaning assigned thereto in the WKI Credit
Agreement unless otherwise indicated. As used herein, the following terms shall
have the meanings specified in this Section 1 unless the context otherwise
requires (it being understood that defined terms in this Agreement shall include
in the singular number the plural and in the plural the singular):
"AABR" shall mean, for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/ 16 of I%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such day
plus 2 of 1 %. Any change in the ABR due to a change in the Prime Rate,
the Three-Month Secondary CD Rate or the Federal Funds Effective Rate
shall be effective as of the opening of business on the effective day of
such change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
"AABR LOAN" shall mean any Loan bearing interest at a rate
determined by reference to the ABR.
"AGREEMENT" shall mean this Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"APPLICABLE ABR MARGIN" shall mean 3.00%.
"APPLICABLE EURODOLLAR MARGIN" shall mean 4.00%.
"BASE CD RATE" shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which
is one and the
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denominator of which is one minus the C/D Reserve Percentage and (b) the
C/D Assessment Rate.
"BORDEN CREDIT AGREEMENT" shall mean the Credit Agreement, amended
and restated as of July 14, 1997, among Borden, Inc., the other parties
thereto and Citibank, N.A., as Administrative Agent, as amended from time
to time.
"BORROWER" shall have the meaning provided in the preamble to
this Agreement.
"BORROWING" shall mean the incurrence of a given Type of Loan on a
given date.
"C/D ASSESSMENT RATE" shall mean for any day as applied to any ABR
Loan, the annual assessment rate in effect on such day that is payable by
a member of the Bank Insurance Fund maintained by the Federal Deposit
Insurance Corporation or any successor thereto (the "FDIC") classified as
well-capitalized and within supervisory subgroup "B" (or a comparable
successor assessment risk classification) within the meaning of 12 C.F.R.
ss.327.4(a) (or any successor provision) to the FDIC for the FDIC's
insuring time deposits at offices of such institution in the United
States.
"C/D RESERVE PERCENTAGE" shall mean for any day as applied to any
ABR Loan, the percentage (expressed as a decimal) that is in effect on
such day, as prescribed by the Board, for determining the reserve
requirement for a Depositary Institution (as defined in Regulation D of
the Board) in respect of new non-personal time deposits in Dollars having
a maturity that is 30 days or more.
"CHASE" shall mean The Chase Manhattan Bank, a New York banking
corporation.
"COMMITMENT" shall mean, with respect to the Lender, the amount set
forth opposite the Lender's name on Schedule 1.1.
"CREDIT DOCUMENTS" shall mean this Agreement, the Guarantee and any
promissory notes security agreements or other documents or instruments
issued or delivered by the Borrower hereunder from time to time.
"CREDIT PARTY" shall mean each of the Borrower and the Guarantors.
"EURODOLLAR LOAN" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
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"EURODOLLAR RATE" shall mean, in the case of any Loan, with respect
to each day during each Interest Period pertaining to such Loan, the rate
of interest determined on the basis of the rate for deposits in Dollars
for a period equal to such Interest Period commencing on the first day of
such Interest Period appearing on Page 3750 of the Telerate screen as of
11:00 A.M. London time two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750
of the Telerate Service (or otherwise on such service), the "Eurodollar
Rate" for the purposes of this paragraph shall be determined by reference
to such other publicly available service for displaying eurodollar rates
as may be selected by the Lender.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average of the per annum rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York.
"GUARANTEE" shall mean and include each Guarantee, in the form of
Exhibit A, made by each Guarantor in favor of the Lender, as the same may
be amended, supplemented or otherwise modified from time to time.
"INCREASED COSTS" shall mean, with respect to any Loan, any
additional costs to Borden with respect to any borrowing (under the Borden
Credit Agreement or otherwise) of the funds used to make and maintain such
Loan, other than any regular interest and fees charged with respect to
such borrowing, including increased costs charged to Borden by the
applicable lenders and breakage costs, if any, in respect of the relevant
loans.
"INTEREST PERIOD" shall mean, with respect to any Loan, the interest
period applicable thereto, as determined pursuant to Section 2.6.
"LENDER" shall have the meaning provided int he preamble to this
Agreement.
"LOAN" shall have the meaning provided in Section 2.1.
"MATURITY DATE" shall mean December 31, 2000.
"MINIMUM BORROWING AMOUNT" shall mean, with respect to any Loan,
$100,000.
"NON-EXCLUDED TAXES" shall have the meaning provided in Section
4.3(a).
"OBLIGATIONS" shall mean all monetary amounts of every type or
description at any time owing to the Lender pursuant to the terms of this
Agreement or any other Credit Document.
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"PARTICIPANT" shall have the meaning provided in Section 11.6(ii).
"THREE-MONTH SECONDARY CD RATE" shall mean, for any day, the
secondary market rate, expressed as a per annum rate, for three-month
certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day) by
the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of
the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day).
"TYPE" shall mean, as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"WKI CREDIT AGREEMENT" shall mean the Amended and Restated Credit
Agreement, dated as of November 12, 1999, among WKI Holding Company, Inc.
(as the successor to CCPC Holding Company, Inc.), the several lenders from
time to time party thereto, Chase, as Administrative Agent, Citibank,
N.A., as Syndication Agent, and Bankers Trust Company, as Documentation
Agent, as amended through the date hereof and as in effect on the date
hereof.
SECTION 2. AMOUNT AND TERMS OF CREDIT.
2.1 COMMITMENTS. Subject to and upon the terms and conditions herein
set forth, the Lender agrees to make a loan or loans (each, a "LOAN" and,
collectively, the "LOANS") to the Borrower, which Loans (i) shall be made at any
time and from time to time on and after the Closing Date and prior to the
Maturity Date, (ii) may, at the option of the Borrower, be incurred and
maintained as, and/or converted into, ABR Loans or Eurodollar Loans (provided
that the Loans made by the Lender pursuant to the same Borrowing shall, unless
otherwise specifically provided herein, consist entirely of Loans of the same
Type), (iii) may be repaid and reborrowed in accordance with the provisions
hereof and (iv) the outstanding amount of which shall not exceed at any time the
Commitment of the Lender. The Loans shall be repaid in full on the Maturity
Date.
2.2 PROCEDURE FOR BORROWING. (a) Whenever the Borrower desires to
incur Loans hereunder, it shall give the Lender, (i) prior to 10:30 A.M. (New
York time) at least three Business Days' prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing of Eurodollar Loans and
(ii) written notice prior to 10:30 A.M. (New York time) on the Business Day on
which the Borrowing is to occur (or telephonic notice promptly confirmed in
writing) of each Borrowing of ABR Loans. Each such notice shall be irrevocable
and shall specify (i) the aggregate principal amount of the Loans to be made
pursuant to such Borrowing,
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(ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the
respective Borrowing shall consist of ABR Loans or Eurodollar Loans.
(b) Without in any way limiting the obligation of the Borrower to
confirm in writing any notice it may give hereunder by telephone, the Lender may
act prior to receipt of written confirmation without liability upon the basis of
such telephonic notice believed by the Lender in good faith to be from an
Authorized Officer of the Borrower. In each such case the Borrower hereby waives
the right to dispute the Lender's record of the terms of any such telephonic
notice.
2.3 MINIMUM AMOUNT OF EACH BORROWING; MAXIMUM NUMBER OF BORROWINGS.
The principal amount of each Borrowing of Loans shall be in a multiple of
$100,000 and shall not be less than the Minimum Borrowing Amount. More than one
Borrowing may be incurred on any date, PROVIDED that at no time shall there be
outstanding more than four Borrowings of Eurodollar Loans under this Agreement.
2.4 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower shall
repay to the Lender, on the Maturity Date, the then-unpaid amount of the Loans.
(b) The Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to the Lender
resulting from each Loan, including the amounts of principal and interest
payable and paid to the Lender from time to time under this Agreement.
(c) The entries made in the accounts maintained pursuant to
paragraph (b) of this Section 2.4 shall, to the extent permitted by applicable
law, be prima facie evidence of the existence and amounts of the obligations of
the Borrower therein recorded; PROVIDED, HOWEVER, that the failure of the Lender
to maintain such accounts, or any error therein, shall not in any manner affect
the obligation of the Borrower to repay (with applicable interest) the Loans
made to the Borrower in accordance with the terms of this Agreement.
2.5 CONVERSIONS AND CONTINUATIONS. (a) The Borrower shall have the
option on any Business Day to convert all or a portion equal to at least the
Minimum Borrowing Amount of the outstanding principal amount of Loans of one
Type into a Borrowing or Borrowings of another Type or to continue the
outstanding principal amount of any Eurodollar Loans as Eurodollar Loans for an
additional Interest Period, PROVIDED that (i) no partial conversion of
Eurodollar Loans shall reduce the outstanding principal amount of Eurodollar
Loans made pursuant to a single Borrowing to less than the Minimum Borrowing
Amount, (ii) ABR Loans may not be converted into Eurodollar Loans if a Default
or Event of Default is in existence on the date of the conversion and the Lender
has determined in its sole discretion not to permit such conversion, (iii)
Eurodollar Loans may not be continued as Eurodollar Loans for an additional
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Interest Period if a Default or Event of Default is in existence on the date of
the proposed continuation and the Lender has determined in its sole discretion
not to permit such continuation and (iv) Borrowings resulting from conversions
pursuant to this Section 2.5 shall be limited in number as provided in Section
2.3. Each such conversion or continuation shall be effected by the Borrower by
giving the Lender prior to 11:30 A.M. (New York time) at least three Business
Days' (or one Business Day's notice in the case of a conversion into ABR Loans)
prior written notice (or telephonic notice promptly confirmed in writing) (each
a "NOTICE OF CONVERSION OR CONTINUATION") specifying the Loans to be so
converted or continued and the Type of Loans to be converted or continued into.
(b) If any Default or Event of Default is in existence at the time
of any proposed continuation of any Eurodollar Loans and the Lender has
determined in its sole discretion not to permit such continuation, such
Eurodollar Loans shall be automatically converted on the last day of the current
Interest Period into ABR Loans. If upon the expiration of any Interest Period in
respect of Eurodollar Loans, the Borrower has failed to elect a new Interest
Period to be applicable thereto as provided in paragraph (a) above, the Borrower
shall be deemed to have elected to convert such Borrowing of Eurodollar Loans
into a Borrowing of ABR Loans effective as of the expiration date of such
current Interest Period.
2.6 INTEREST. (a) The unpaid principal amount of each ABR Loan shall
bear interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum that shall at all times be the
Applicable ABR Margin in effect from time to time plus the ABR in effect from
time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum that shall at all times be the
Applicable Eurodollar Margin in effect from time to time plus the relevant
Eurodollar Rate.
(c) If all or a portion of (i) the principal amount of any Loan or
(ii) any interest payable thereon shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum that is (x) in the case of overdue principal, the
rate that would otherwise be applicable thereto PLUS 2% or (y) in the case of
any overdue interest, to the extent permitted by applicable law, the rate
described in Section 2.5(a) PLUS 2% from and including the date of such
non-payment to but excluding the date on which such amount is paid in full
(after as well as before judgment).
(d) Interest on each Loan shall accrue from and including the date
of any Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each ABR Loan, monthly in arrears on the last day of
each month, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto, and (iii) in respect of
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each Loan (except, in the case of prepayments, any ABR Loan), on any prepayment
(on the amount prepaid), at maturity (whether by acceleration or otherwise) and,
after such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 4.4.
(f) The Lender, after determining the interest rate for any
Borrowing of Eurodollar Loans, shall promptly notify the Borrower thereof. Each
such determination shall, absent clearly demonstrable error, be final and
conclusive and binding on the parties hereto.
2.7 INTEREST PERIODS. The Interest Period for each Eurodollar Loan
shall be one month, PROVIDED that the initial Interest Period may be for a
period less than one month if agreed upon by the Borrower and the Lender.
Notwithstanding the foregoing:
(a) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period expires;
(b) if any Interest Period begins on the last Business Day of a
calendar month or begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period, such Interest Period shall end on the last Business Day of the
calendar month at the end of such Interest Period;
(c) if any Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, PROVIDED that if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day; and
(d) the Borrower shall not be entitled to elect any Interest Period
in respect of any Eurodollar Loan if such Interest Period would extend
beyond the Maturity Date.
2.8 INCREASED COSTS. If the Lender at any time reasonably determines
that it has suffered Increased Costs, the Lender shall so notify the Borrower.
In such case, the Borrower shall pay to the Lender, promptly after receipt of
written demand therefor, an amount equal to such Increased Costs (such amount to
be calculated by the Lender and to be conclusive and binding on the Borrower
absent manifest error).
SECTION 3. FEES; COMMITMENTS.
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3.1 FEES. (a) The Borrower agrees to pay to the Lender a commitment
fee for each day from and including the Closing Date to but excluding the
Maturity Date. Such commitment fee shall be payable in arrears (i) on the last
day of each month and (ii) on the Maturity Date (for the period ended on such
date for which no payment has been received pursuant to clause (i) above), and
shall be computed for each day during such period at a rate per annum of 0.425%
on the unused portion of the Commitment on such day.
(b) The Borrower agrees to pay to the Lender, on the Closing Date,
the fees in the amounts and on the dates previously agreed to by the Borrower
and the Lender.
3.2 VOLUNTARY REDUCTION OF REVOLVING CREDIT COMMITMENTS. Upon at
least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) to the Lender, the Borrower shall have the right, without
premium or penalty, on any day, permanently to terminate or reduce the
Commitment in whole or in part, PROVIDED that (a) any partial reduction pursuant
to this Section 3.2 shall be in the amount of at least $100,000 and (b) after
giving effect to such termination or reduction and to any prepayments of the
Loans made on the date thereof in accordance with this Agreement, the aggregate
outstanding principal amount of the Loans shall not exceed the Commitment.
3.3 MANDATORY TERMINATION OF COMMITMENT. The Commitment shall
terminate at 5:00 P.M. (New York time) on the Maturity Date.
SECTION 4. PAYMENTS.
4.1 VOLUNTARY PAYMENTS. The Borrower shall have the right to prepay
the Loans, without premium or penalty, in whole or in part from time to time on
the following terms and conditions: (a) the Borrower shall give the Lender
written notice (or telephonic notice promptly confirmed in writing) of its
intent to make such prepayment and the amount of such prepayment, which notice
shall be given by the Borrower no later than 10:00 A.M. (New York time) on the
date of such prepayment; and (b) each partial prepayment shall be in a multiple
of $100,000 and in an aggregate principal amount of at least $100,000; PROVIDED
that (i) no partial prepayment of Eurodollar Loans made pursuant to a single
Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount and (ii) no
prepayment of Eurodollar Loans may occur on any date other than the last day of
an Interest Period.
4.2 METHOD AND PLACE OF PAYMENT. (a) Except as otherwise
specifically provided herein, all payments under this Agreement shall be made to
the Lender, without set-off, counterclaim or deduction of any kind, not later
than 12:00 Noon (New York time) on the date when due and shall be made in
immediately available funds and in lawful money of the United
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States of America, in accordance with instructions specified by the Lender to
the Borrower from time to time.
(b) Any payments under this Agreement that are made later than 2:00
P.M. (New York time) shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be
due on a day that is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
4.3 NET PAYMENTS. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any current or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu
of net income taxes) imposed on the Lender and (ii) any taxes imposed on the
Lender as a result of a current or former connection between the Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Lender having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement). If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings ("NON-EXCLUDED TAXES") are required to be
withheld from any amounts payable to the Lender hereunder, the amounts so
payable to the Lender shall be increased to the extent necessary to yield to the
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement. Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the Lender a
certified copy of an original official receipt received by the Borrower showing
payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit to the Lender the required
receipts or other required documentary evidence, the Borrower shall indemnify
the Lender for any incremental taxes, interest, costs or penalties that may
become payable by the Lender as a result of any such failure. The agreements in
this Section 4.3(a) shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
(b) If the Borrower determines in good faith that a reasonable basis
exists for contesting any taxes for which indemnification has been demanded
hereunder, the Lender shall cooperate with the Borrower in challenging such
taxes at the Borrower's expense if so requested by the Borrower. If the Lender
receives a refund of a tax for which a payment has been made by the Borrower
pursuant to this Agreement, which refund in the good faith judgment of the
Lender is attributable to such payment made by the Borrower, then the Lender
shall reimburse the Borrower for such amount as the Lender determines to be the
proportion of the refund as will
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leave it, after such reimbursement, in no better or worse position than it would
have been in if the payment had not been required. The Lender shall claim any
refund that it determines is available to it, unless it concludes in its
reasonable discretion that it would be adversely affected by making such a
claim. The Lender shall not be obliged to disclose any information regarding its
tax affairs or computations to the Borrower in connection with this paragraph
(b) or any other provision of this Section 4.3.
4.4 COMPUTATIONS OF INTEREST AND FEES. (a) Interest on Eurodollar
Loans and, except as provided in the next succeeding sentence, ABR Loans shall
be calculated on the basis of a 360-day year for the actual days elapsed.
Interest on ABR Loans in respect of which the rate of interest is calculated on
the basis of the Prime Rate and interest on overdue interest shall be calculated
on the basis of a 365- (or 366-, as the case may be) day year for the actual
days elapsed.
(b) The Commitment Fee shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days elapsed.
SECTION 5. CONDITIONS PRECEDENT TO CLOSING.
The effectiveness of this Agreement and the obligation of the Lender
to make any Loans hereunder on the Closing Date is subject to the satisfaction
of the following conditions precedent:
5.1 CREDIT DOCUMENTS. The Lender shall have received this Agreement,
executed and delivered by a duly authorized officer of the Borrower, and the
Guarantee, executed and delivered by each Guarantor.
5.2 CLOSING CERTIFICATE. The Lender shall have received a Closing
Certificate of the Borrower in the form previously agreed between the Lender and
the Borrower.
5.3 FEES. The Lender shall have received the fees referred to in
Section 3.1(b) to be received on the Closing Date.
SECTION 6. CONDITIONS PRECEDENT TO EACH LOAN. The agreement of the
Lender to make any Loan requested to be made by it on any date (including the
Closing Date) is subject to the satisfaction of the following conditions
precedent:
6.1 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of each
Loan and also after giving effect thereto (a) there shall exist no Default or
Event of Default and (b) all representations and warranties made by any Credit
Party contained herein or in the other Credit
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Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of
the date of such Loan (except where such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects as of such
earlier date).
6.2 NOTICE OF BORROWING. The Lender shall have received a notice of
the relevant Borrowing (whether in writing or by telephone) meeting the
requirements of Section 2.2.
The acceptance of the benefits of each Loan shall constitute a representation
and warranty by each Credit Party to the Lender that all the applicable
conditions specified above exist as of that time.
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order to
induce the Lender to enter into this Agreement and to make and continue the
Loans, the Borrower makes, to and for the benefit of the Lender, the
representations and warranties and agreements set forth in Section 8 of the WKI
Credit Agreement, all of which shall survive the execution and delivery of this
Agreement and the making of the Loans, and which are incorporated by reference
herein as if fully set forth herein.
SECTION 8. AFFIRMATIVE COVENANTS. On the Closing Date and
thereafter, for so long as this Agreement is in effect and until the Loans,
together with interest and all other Obligations incurred hereunder, are paid in
full and the Commitment is terminated, the Borrower hereby makes, with and for
the benefit of the Lender, the covenants and agreements set forth in Section 9
of the WKI Credit Agreement, which covenants and agreements are incorporated by
reference herein as if fully set forth herein, including the agreements therein
to deliver to the Lender all reports and notices as set forth therein (provided
that any requirement in such Section 9 that the Borrower pledge any collateral
to the Lender shall not apply to this Agreement), and makes the following
additional covenants:
8.1 ADDITIONAL GUARANTORS. Except with respect to any Subsidiary
that is not required to become a "Guarantor" as defined in and pursuant to the
WKI Credit Agreement, the Borrower will cause (a) any direct or indirect
Domestic Subsidiary (other than any Unrestricted Subsidiary or Acquisition
Subsidiary) formed or otherwise purchased or acquired after the date hereof and
(b) any Subsidiary (other than any Unrestricted Subsidiary or Acquisition
Subsidiary) that is not a Domestic Subsidiary on the date hereof but
subsequently becomes a Domestic Subsidiary (other than any Unrestricted
Subsidiary or Acquisition Subsidiary), in each case to execute a supplement to
the Guarantee, in form and substance reasonably satisfactory to the Lender, in
order to become a Guarantor.
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8.2 AMENDMENTS TO WKI CREDIT AGREEMENT. If the Borrower shall enter
into any amendment to the WKI Credit Agreement which is favorable to the lenders
thereunder, or shall otherwise agree to any accommodation or other agreement for
the benefit of the lenders under the WKI Credit Agreement in connection with any
waiver, consent or modification in connection therewith, the Borrower shall
concurrently therewith enter into corresponding arrangements with the Lender
under this Agreement and execute any necessary amendments or documents to
reflect such arrangement, unless the Lender shall otherwise agree in its sole
discretion.
SECTION 9. NEGATIVE COVENANTS. On the Closing Date and thereafter,
for so long as this Agreement is in effect and until the Loans, together with
interest and all other Obligations incurred hereunder, are paid in full and the
Commitment is terminated, the Borrower hereby makes, with and for the benefit of
the Lender, the covenants and agreements set forth in Section 10 of the WKI
Credit Agreement, which covenants and agreements are incorporated by reference
herein as if fully set forth herein (provided that any requirement in such
Section 10 that the Borrower pledge any collateral to the Lender shall not apply
to this Agreement).
SECTION 10. EVENTS OF DEFAULT. Upon the occurrence of any of the
Events of Default specified in Section 11 of the WKI Credit Agreement, each of
which are incorporated by reference herein as if fully set forth herein, then,
and in any such event, and at any time thereafter, if any Event of Default shall
then be continuing, the Lender shall, by written notice to the Borrower, take
any or all of the following actions, without prejudice to the rights of the
Lender to enforce its claims against the Borrower, except as otherwise
specifically provided for in this Agreement (PROVIDED that, if an Event of
Default specified in Section 11.5 of the WKI Credit Agreement shall occur, the
result that would occur upon the giving of written notice by the Lender as
specified below shall occur automatically without the giving of any such
notice): declare the Commitment to be terminated and any accrued but unpaid
Commitment Fee to be immediately due and payable and the principal of and any
accrued interest in respect of all Loans and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
SECTION 11. MISCELLANEOUS.
11.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any other
Credit Document, nor any terms hereof or thereof may be amended, supplemented or
modified except pursuant to a written instrument executed by the Borrower and
the Lender.
11.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered, or three days after
being deposited in the mail, postage prepaid, or, in the case of
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telecopy notice, when received, addressed as follows, or to such other address
as may be hereafter notified by the respective parties hereto:
The Borrower: WKI Holding Company, Inc..
One Pyrex Place
P.O. 1555
Elmira, New York 14902-1555
Attention: General Counsel
Fax: (607) 377-8958
The Lender: Borden, Inc.
180 East Broad Street
Columbus, Ohio 43215
Attention: Ronald Starkman
Fax: (614) 225-4421
PROVIDED that any notice, request or demand to or upon the Lender pursuant to
Sections 2.3 and 4.1 shall not be effective until received.
11.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Lender, any right, remedy, power or
privilege hereunder or under the other Credit Documents shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
11.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder, in the other Credit Documents and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
making of the Loans hereunder.
11.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to pay
or reimburse the Lender for all its reasonable out-of-pocket costs and expenses
incurred in connection with the preparation and execution of, and any amendment,
supplement or modification to, this Agreement and the other Credit Documents and
any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees, disbursements and
other charges of counsel to the Lender, (b) to pay or reimburse the Lender for
all its reasonable and documented costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the other
Credit Documents and
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any such other documents, including, without limitation, the reasonable fees,
disbursements and other charges of counsel to the Lender, (c) to pay, indemnify,
and hold harmless the Lender from, any and all recording and filing fees and any
and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, that may be payable or determined
to be payable in connection with the execution and delivery of, or consummation
or administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Credit Documents and any such other documents, and (d)
to pay, indemnify, and hold harmless the Lender and its directors, officers,
employees, trustees and agents from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever, including, without
limitation, reasonable and documented fees, disbursements and other charges of
counsel, with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Credit Documents and any such other
documents, including, without limitation, any of the foregoing relating to the
violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower, any of its Subsidiaries or any of
the Properties (all the foregoing in this clause (d), collectively, the
"INDEMNIFIED LIABILITIES"), PROVIDED that the Borrower shall have no obligation
hereunder to the Lender nor any of its directors, officers, employees and agents
with respect to indemnified liabilities arising from (i) the gross negligence or
willful misconduct of the party to be indemnified or (ii) disputes between the
Lender and its transferee(s). The agreements in this Section 11.5 shall survive
repayment of the Loans and all other amounts payable hereunder.
11.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (i)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lender and their respective successors and assigns, except that the Borrower
may not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Lender.
(ii) The Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in its Commitment or its Loans
or any other interest of the Lender hereunder and under the other Credit
Documents (including to loan derivative counterparties in respect of swaps or
similar arrangements having the practical or economic effect thereof). In the
event of any such sale by the Lender of a participating interest to a
Participant, the Lender's obligations under this Agreement shall remain
unchanged, the Lender shall remain solely responsible for the performance
thereof, the Lender shall remain the holder of the Loans for all purposes under
this Agreement and the other Credit Documents, and the Borrower shall continue
to deal solely and directly with the Lender in connection with the Lender's
rights and obligations under this Agreement and the other Credit Documents. In
no event shall any Participant under any such participation have any right to
approve any amendment or waiver of any provision of any Credit Document, or any
consent to any departure by any Credit Party therefrom, except to
15
the extent that such amendment, waiver or consent would directly forgive any
principal of the Loans or reduce the stated rate, or forgive any portion, or
postpone the date for the payment, of any interest or fee payable hereunder
(other than as a result of waiving the applicability of any post-default
increase in interest rates), or increase the aggregate amount of the Commitment
or postpone the date of the final scheduled maturity of the Loans, in each case
to the extent subject to such participation. The Borrower agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall, to the maximum extent permitted by applicable law, be
deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as the Lender under this
Agreement.
(iii) The Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Affiliate (with the consent of the Borrower if any increased costs would result
therefrom) of the Lender or, with the consent of the Borrower (which shall not
be unreasonably withheld, it being understood that, without limitation, the
Borrower shall have the right to withhold its consent to any assignment if, in
order for such assignment to comply with applicable law, the Borrower would be
required to obtain the consent of, or make any filing or registration with, any
Governmental Authority), to a bank or fund that is regularly engaged in making,
purchasing or investing in loans or securities or financial institution (an
"ASSIGNEE") all or any part of its rights and obligations under this Agreement
and the other Credit Documents pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit F to the WKI Credit Agreement, with such
changes thereto as are appropriate for this Credit Agreement, executed by such
Assignee, the Lender (and, in the case of an Assignee that is not an Affiliate
of the Lender, by the Borrower), PROVIDED that, except in the case of an
assignment of all of the Lender's interests under this Agreement, unless
otherwise agreed to by the Borrower, no such assignment to an Assignee (other
than any Affiliate of the Lender) shall be in an aggregate principal amount of
less than $5,000,000. Upon such execution, delivery and acceptance, from and
after the effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of the Lender
hereunder with a Commitment as set forth therein and (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of the assigning
Lender's rights and obligations under this Agreement, the assigning Lender shall
cease to be a party hereto). Notwithstanding any provision of this Agreement to
the contrary, the consent of the Borrower shall not be required for any
assignment that occurs at any time when any of the events described in Section
11.5 of the WKI Credit Agreement shall have occurred and be continuing with
respect to the Borrower. In the case of any assignment by the Lender pursuant to
this paragraph (iii) of less than all of its interest under this Credit
Agreement,
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the Borrower, the Lender and the Assignee shall cooperate to make appropriate
amendments to this Credit Agreement to make customary provision for multiple
lenders hereunder.
11.7 INCORPORATION BY REFERENCE. The incorporation by reference
herein of provisions of the WKI Credit Agreement shall be deemed to include any
modifications to the terms so incorporated necessary to reflect the intent of
such incorporation, including deeming references therein to "Administrative
Agent" and "Lenders" to be references to the Lender hereunder, and including, as
appropriate, not giving effect to specific terms of such incorporated provisions
inapplicable to the transactions under this Agreement, including the pledge of
any collateral and any use of proceeds or other requirement relating to the
Acquisitions contemplated by the introductory statement to the WKI Credit
Agreement.
11.8 SET-OFF. After the occurrence and during the continuance of an
Event of Default, in addition to any rights and remedies of the Lender provided
by law, the Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
setoff and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by the Lender to or for the credit or the account of the Borrower.
The Lender agrees promptly to notify the Borrower after any such set-off and
application made by the Lender, PROVIDED that the failure to give such notice
shall not affect the validity of such set-off and application.
11.9 COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
11.10 SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.11 INTEGRATION. This Agreement and the other Credit Documents
represent the agreement of the Borrower and the Lender with respect to the
subject matter hereof, and there are no promises, undertakings, representations
or warranties by the Lender relative to subject matter hereof not expressly set
forth or referred to herein or in the other Credit Documents.
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11.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.13 SUBMISSION TO JURISDICTION, WAIVERS. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts
of the State of New York, the courts of the United States of America for
the Southern District of New York and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 11.2 or at such other address
of which the Lender shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section 11.13 any special, exemplary, punitive or consequential
damages.
11.14 ACKNOWLEDGMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents; and
(b) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby between the Borrower and the Lender.
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11.15 WAIVERS OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
WKI HOLDING COMPANY, INC.
By___________________________________
Name:
Title:
BORDEN, INC.
By___________________________________
Name:
Title:
Schedule 1.1 to
Credit Agreement
COMMITMENT
Borden, Inc. $40,000,000