CONSENT, WAIVER AND AMENDMENT NO. 1 TO CREDIT AGREEMENT
This Consent, Waiver and Amendment No. 1 to Credit Agreement (this
"Agreement") dated as of September 18, 2002 is made by and among JARDEN
CORPORATION (successor by name change to Alltrista Corporation), a Delaware
corporation (the "Borrower"), BANK OF AMERICA, N.A., a national banking
association organized and existing under the laws of the United States ("Bank of
America"), in its capacity as administrative agent for the Lenders (as defined
in the Credit Agreement (as defined below)) (in such capacity, the
"Administrative Agent"), and each of the Lenders signatory hereto, and each of
the Guarantors (as defined in the Credit Agreement) signatory hereto.
W I T N E S S E T H:
-------------------
WHEREAS, the Borrower, the Administrative Agent and the Lenders have
entered into that certain Credit Agreement dated as of April 24, 2002 (as hereby
amended and as from time to time hereafter further amended, modified,
supplemented, restated, or amended and restated, the "Credit Agreement"; the
capitalized terms used in this Agreement not otherwise defined herein shall have
the respective meanings given thereto in the Credit Agreement), pursuant to
which the Lenders have made available to the Borrower various revolving credit
and term loan facilities, including a letter of credit facility and a swing line
facility; and
WHEREAS, each of the Guarantors has entered into a Facility Guaranty
pursuant to which it has guaranteed certain or all of the obligations of certain
or all of the Borrower under the Credit Agreement and the other Loan Documents;
and
WHEREAS, the Borrower has advised the Administrative Agent and the
Lenders that it desires to acquire the business of Diamond Brands Operating
Corp. (the "Target") through a stock and asset purchase after the consummation
of which all of the assets of the Target will be owned by one or more existing,
acquired or created Subsidiaries of the Borrower, each of which shall be
wholly-owned (directly or indirectly) by the Borrower (collectively, such
transaction is referred to herein as the "Proposed Acquisition"), which Proposed
Acquisition requires consent under the terms of the Credit Agreement; and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders waive the application of certain provisions of the Credit Agreement
to permit the Proposed Acquisition, as set forth below, and the Administrative
Agent and the Required Lenders signatory hereto are willing to effect such a
waiver on the terms and conditions contained in this Agreement; and
WHEREAS, the Borrower has further advised the Administrative Agent and
the Lenders that it desires to amend certain provisions of the Credit Agreement
as set forth below, and the Administrative Agent and the Required Lenders
signatory hereto are willing to effect such amendment on the terms and
conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and further valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Amendments to Credit Agreement. Subject to the terms and
conditions set forth herein, the Credit Agreement is hereby amended as follows:
(a) The following new definition is hereby added to Article I in the
proper alphabetical order:
"Available Repurchase Amount" means, at any time of measurement
thereof, (a) $10,000,000, minus (b) the aggregate amount of Bond
Repurchases (as defined in Section 7.19) made during the then-current
fiscal year of the Borrower pursuant to part (y) of the proviso to
Section 7.19, minus (c) the aggregate amount of Restricted Payments
made pursuant to Section 7.07(c) during the then-current fiscal year
of the Borrower.
(b) Section 7.07(c) is hereby deleted in its entirety and replaced
with the following:
(c) the Borrower may repurchase shares of its own stock at
any time so long as both immediately before and after the making
of any such repurchase, and pro forma for each such stock
repurchase, (i) the Available Repurchase Amount is not less than
$0, (ii) the Total Leverage Ratio is less than or equal to 1.75
to 1.00, (iii) the excess of the Aggregate Revolving Credit
Commitments over the aggregate Outstanding Amount of all
Revolving Loans, Swing Line Loans and L/C Obligations shall equal
or exceed $25,000,000, and (iv) no Default or Event of Default
shall have occurred and be continuing.
(c) The proviso to Section 7.19 is hereby deleted in its entirety and
replaced with the following:
provided that (x) to the extent the issuance of the Exchange
Notes in accordance with the terms of the Subordinated Indenture
would otherwise violate any part of Section 7.19(a) or (b) above,
such issuance of the Exchange Notes in accordance with the terms
of the Subordinated Indenture is expressly permitted, and (y) at
any time the Borrower may prepay, redeem, purchase, repurchase,
defease or otherwise satisfy prior to the scheduled maturity
thereof (each such event a "Bond Repurchase") a principal amount
of Subordinated Indebtedness so long as both immediately before
and after the making of any such Bond Repurchase, and pro forma
for each such Bond Repurchase, (i) the Available Repurchase
Amount is not less than $0, (ii) the Total Leverage Ratio is less
than or equal to 1.75 to 1.00, (iii) the excess of the Aggregate
Revolving Credit Commitments over the aggregate Outstanding
Amount
2
of all Revolving Loans, Swing Line Loans and L/C Obligations
shall equal or exceed $25,000,000, and (iv) no Default or Event
of Default shall have occurred and be continuing.
2. Consent and Waiver.
(a) The Administrative Agent and the Lenders signatory hereto, by
their execution and delivery of this Agreement, hereby consent to the Borrower,
either directly or through one or more Guarantors, consummating the Proposed
Acquisition, and waive any Default or Event of Default under the Credit
Agreement that would otherwise occur as a result of the Proposed Acquisition,
including without limitation as a result of the violation of Section 7.14 of the
Credit Agreement, provided that the portion of the Cost of Acquisition to be
paid other than with the capital stock, warrants or options to acquire capital
stock of the Borrower or any Subsidiary shall not exceed:
(i) $98,000,000 with respect to the initial offer made for the
Proposed Acquisition, to be made on or about September 19, 2002 (such
date of the initial offer, the "Initial Bid Date"); and
(ii) for any subsequent offer made for the Proposed
Acquisition on any date after the Initial Bid Date (any such date, a
"Subsequent Bid Date"), the sum of (x) $98,000,000 and (y) the Excess
Cash Amount (as defined below).
For purposes of this Section 2(a), the "Excess Cash Amount," on any Subsequent
Bid Date on which such amount is calculated, equals (A) cash on the balance
sheet of the Borrower on the Subsequent Bid Date, net of the aggregate
Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C Obligations
on the Subsequent Bid Date, MINUS (B) cash on the balance sheet of the Borrower
on the Initial Bid Date, net of the aggregate Outstanding Amount of all
Revolving Loans, Swing Line Loans and L/C Obligations on the Initial Bid Date;
provided that notwithstanding the foregoing, in the event that the cash on the
balance sheet of the Target is less than $15,500,000 on the Subsequent Bid Date,
or on the most recent date prior to the Subsequent Bid Date for which such
information is available, the Excess Cash Amount shall equal $0.
(b) The Administrative Agent and the Lenders signatory hereto, by
their execution and delivery of this Agreement, hereby waive any Default or
Event of Default under the Credit Agreement that results from the calculations
of the financial covenants as of and for the period ended June 30, 2002, as (i)
reported and certified in that certain Compliance Certificate delivered with
respect to such period in accordance with Section 6.02(b) of the Credit
Agreement, and (ii) corrected and disclosed to the Lenders on or prior to the
date hereof.
3. Conditions Precedent. The effectiveness of this Agreement, and
the amendments to the Credit Agreement provided in Section 1 hereof and the
consent and waiver provided for in Section 2 hereof, are all subject to the
satisfaction of each the following conditions precedent:
3
(a) The Administrative Agent shall have received each of the
following documents or instruments in form and substance reasonably
acceptable to the Administrative Agent:
(i) thirteen (13) original counterparts of this
Agreement, duly executed by the Borrower, the Administrative
Agent, each Guarantor and the Required Lenders;
(ii) pro forma historical financial statements as of the
end of the most recently completed fiscal year of the Borrower
and most recent interim fiscal quarter giving effect to the
Proposed Acquisition;
(iii) a certificate substantially in the form of Exhibit D
to the Credit Agreement prepared on a historical pro forma basis
as of the date of the Audited Financial Statements or, if later,
as of the most recent date for which financial statements have
been furnished pursuant to Section 6.01(b) of the Credit
Agreement giving effect to the Proposed Acquisition, which
certificate shall demonstrate that no Default or Event of Default
shall have occurred and be continuing either immediately prior to
or immediately after giving effect to the Proposed Acquisition;
(iv) such other documents, instruments, opinions,
certifications, undertakings, further assurances and other
matters as the Administrative Agent shall reasonably require;
(b) Notwithstanding the 30-day time limit provided therein, and
notwithstanding any limitation or waiver of the requirements thereof
that might otherwise be determined to result from the terms of this
Agreement, substantially simultaneously with the consummation of the
Proposed Acquisition the Borrower shall have complied, and shall have
caused each of its Subsidiaries (determined after giving effect to the
Proposed Acquisition) to comply, fully with the requirements of
Section 6.14 of the Credit Agreement, including with respect to any
new assets acquired in the Proposed Acquisition;
(c) All fees and expenses payable to the Administrative Agent
and the Lenders (including the reasonable fees and expenses of counsel
to the Administrative Agent) accrued to date shall have been paid in
full.
4. Consent the Guarantors. Each of the Guarantors has joined in the
execution of this Agreement for the purposes of consenting hereto and for the
further purpose of confirming its guaranty of the Obligations of the Borrower
pursuant to the Guaranty to which such Guarantor is party. Each Guarantor hereby
consents, acknowledges and agrees to the amendments of the Credit Agreement and
the consent and waiver set forth herein and hereby confirms and ratifies in all
respects the Guaranty to which such Guarantor is a party and the enforceability
of such Guaranty against such Guarantor in accordance with its terms.
4
5. Representations and Warranties. In order to induce the
Administrative Agent and the Lenders party hereto to enter into this Agreement,
the Borrower represents and warrants to the Administrative Agent and such
Lenders as follows:
(a) The representations and warranties made by the Borrowers in
Article V of the Credit Agreement (after giving effect to this
Agreement) and in each of the other Loan Documents to which it is a
party are true and correct in all material respects on and as of the
date hereof, except to the extent that such representations and
warranties expressly relate to an earlier date;
(b) There has been no occurrence of any event or events which
could reasonably be expected to have a Material Adverse Effect since
the date of the most recent financial reports of the Borrowers
delivered pursuant to Section 4.01(a)(ix) or Section 6.01 of the
Credit Agreement, as applicable;
(c) The Persons appearing as Guarantors on the signature pages
to this Agreement constitute all Persons who are required to be
Guarantors pursuant to the terms of the Credit Agreement and the other
Loan Documents, including without limitation all Persons who became
Subsidiaries or were otherwise required to become Guarantors after the
Closing Date as a result of any merger, acquisition or other
reorganization, and each such Person has executed and delivered a
Guaranty; and
(d) No Default or Event of Default has occurred and is
continuing.
6. Entire Agreement. This Agreement, together with all the Loan
Documents (collectively, the "Relevant Documents"), sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and not one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as otherwise expressly stated in the Relevant Documents, no representations,
warranties or commitments, express or implied, have been made by any party to
the other. None of the terms or conditions of this Agreement may be changed,
modified, waived or canceled orally or otherwise, except as permitted pursuant
to Section 10.01 of the Credit Agreement.
7. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects by each party hereto
and shall be and remain in full force and effect according to their respective
terms.
8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument.
5
9. Governing Law. This Agreement shall in all respects be governed
by, and construed in accordance with, the laws of the state of New York.
10. Enforceability. Should any one or more of the provisions of this
Agreement be determined to be illegal or unenforceable as to one or more of the
parties hereto, all other provisions nevertheless shall remain effective and
binding on the parties hereto.
11. References. All references in any of the Loan Documents to the
"Credit Agreement" shall mean the Credit Agreement, as amended hereby.
12. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent and each of the
Guarantors and Lenders, and their respective successors, assigns and legal
representatives; provided, however, that neither any Borrower nor any Guarantor,
may assign any rights, powers, duties or obligations hereunder without complying
with the requirements for such an action contained in the Credit Agreement.
13. Expenses. The Borrower agrees to pay to the Administrative Agent
all reasonable out-of-pocket expenses incurred or arising in connection with the
negotiation and preparation of this Agreement.
14. Authorization of Agent by Required Lenders. By its execution and
delivery hereof, each Lender signatory hereto hereby authorizes the
Administrative Agent, upon receipt of the signature pages hereto from the
Required Lenders, to modify this Agreement in Section 2(a) only to refer to the
purchase price submitted by the Borrower in connection with the Proposed
Acquisition which complies with the terms of Section 2(a) herein and to delete
the proviso now appearing therein, and to execute and deliver this Agreement as
so modified on its behalf to the Borrower for its use in submitting its purchase
price for the Proposed Acquisition.
[SIGNATURE PAGES FOLLOW.]
6
IN WITNESS WHEREOF, the parties hereto have caused this Consent, Waiver
and Amendment No. 1 to Credit Agreement to be made, executed and delivered by
their duly authorized officers as of the day and year first above written.
BORROWER:
--------
JARDEN CORPORATION (successor by name change
to Alltrista Corporation)
By: /s/ Desiree DeStefano
----------------------
Name: Desiree DeStefano
Title: Vice President
Signature Page 1
GUARANTORS:
----------
HEARTHMARK, INC., an Indiana corporation
ALLTRISTA PLASTICS CORPORATION, an Indiana
corporation
ALLTRISTA NEWCO CORPORATION, an Indiana
corporation
UNIMARK PLASTICS, INC., a Pennsylvania
corporation
TRIENDA CORPORATION (f/k/a TRIENDA NEWCO,
INC.), a Indiana corporation
TILIA, INC. (successor by name change to
Alltrista Acquisition I, Inc.), a
Delaware corporation
TILIA DIRECT, INC. (successor by name change
to Alltrista Acquisition II, Inc.), a
Delaware corporation
TILIA INTERNATIONAL, INC. (successor by name
change to Alltrista Acquisition III,
Inc.), a Delaware corporation
By: /s/ Desiree DeStefano
----------------------
Name: Desiree DeStefano
Title: Vice President
ALLTRISTA ZINC PRODUCTS, L.P., an Indiana
limited partnership
By: Alltrista Newco Corporation, a Indiana
corporation, its general partner
By: /s/ Desiree DeStefano
-----------------------
Name: Desiree DeStefano
Title: Vice President
QUOIN CORPORATION, a Delaware corporation
By: /s/ Ian G. H. Ashken
--------------------
Name: Ian G. H. Ashken
Title: Treasurer
Signature Page 2
ADMINISTRATIVE AGENT:
--------------------
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
By: /s/ Igor Suica
-------------------------------------------
Name: Igor Suica
-----------------------------------------
Title: Vice President
----------------------------------------
Signature Page 3
LENDERS:
-------
BANK OF AMERICA, N.A., as a Lender, L/C Issuer
and Swing Line Lender
By: /s/ Igor Suica
-------------------------------------------
Name: Igor Suica
-----------------------------------------
Title: Vice President
----------------------------------------
Signature Page 4
CIBC INC.
By: /s/ Dean J. Decker
-------------------------------------------
Name: Dean J. Decker
-----------------------------------------
Title: Managing Director
CIBC World Markets Corp., as Agent
----------------------------------------
Signature Page 5
NATIONAL CITY BANK OF INDIANA
By: /s/ David G. McNeely
-------------------------------------------
Name: David G. McNeely
-----------------------------------------
Title: Corporate Banking Officer
----------------------------------------
Signature Page 6
THE BANK OF NEW YORK
By: /s/ Maurice A. Campbell
-------------------------------------------
Name: Maurice A. Campbell
-----------------------------------------
Title: Assistant Vice President
----------------------------------------
Signature Page 7
FLEET NATIONAL BANK
By: /s/ W. Lincoln Schoff, Jr.
-------------------------------------------
Name: W. Lincoln Schoff, Jr.
-----------------------------------------
Title: SVP
----------------------------------------
Signature Page 8
HARRIS TRUST AND SAVINGS BANK
By: /s/ Kirby M. Law
-------------------------------------------
Name: Kirby M. Law
-----------------------------------------
Title: Vice President
----------------------------------------
Signature Page 9
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Daniel R. Kraus
-------------------------------------------
Name: Daniel R. Kraus
-----------------------------------------
Title: Assistant Vice President
----------------------------------------
Signature Page 10
ALLFIRST BANK
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
Signature Page 11
TRANSAMERICA BUSINESS CAPITAL CORPORATION
By: /s/ Steve Goetschius
-------------------------------------------
Name: Steve Goetschius
-----------------------------------------
Title: Senior Vice President
----------------------------------------
Signature Page 12
UNION FEDERAL BANK OF INDIANAPOLIS
By: /s/ Julia C. Schneider
-------------------------------------------
Name: Julia C. Schneider
-----------------------------------------
Title: Commercial Loan Officer
----------------------------------------
Signature Page 13