AMENDMENT NO. 3 TO CREDIT AGREEMENT AND WAIVER
This Amendment No. 3 to Credit Agreement (this "Agreement") dated as of
January 31, 2003 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
amended by that certain Consent, Waiver and Amendment No. 1 to Credit Agreement,
dated as of September 18, 2002, as further amended by Amendment No. 2 to Credit
Agreement and Amendment No. 1 to Security Agreement dated as of September 27,
2002 (as so amended, 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 Guaranty pursuant to
which it has guaranteed certain or all of the obligations 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 has entered into that certain Asset Purchase Agreement dated as
of November 27, 2002 (the "APA") with Diamond Brands, Incorporated ("DBI"),
Diamond Brands Operating Corp. ("DBOC"), Diamond Brands Kansas, Inc. ("DBK") and
Forster, Inc. ("Forster" and together with DBI, DBOC and DBK, the "Target"),
pursuant to which the Borrower, through certain of its existing or newly created
Subsidiaries, will acquire such assets of the Target as set forth in the APA
(such acquisition is referred to herein as the "Proposed Acquisition"); and
WHEREAS, the Borrower has requested that the maximum principal amount
of the Revolving Credit Facility be increased by $20,000,000 and that the
maximum principal amount of the Term Loan Facility be increased by $10,000,000,
and such additional amount of the Term Loan Facility be advanced at the
consummation of the APA, and the Administrative Agent and the Lenders are
willing to amend the Credit Agreement to provide for such increased principal
amounts on the terms and conditions contained in this Agreement; and
WHEREAS, the APA has been submitted to the classes of creditors of DBI
and DBOC entitled to vote as part of the Joint Plan of Reorganization of Diamond
Brands Operating Corp.
and Its Debtor Affiliates Proposed by the Debtors and Jarden Corporation, filed
with the Bankruptcy Court of the State of Delaware on November 27, 2002 (the
"Plan"); and
WHEREAS, after the consummation of the APA, as modified by the
Confirmation Order (as defined in the APA), substantially all of the assets of
the Target will be owned by one or more existing or newly created Subsidiaries
of the Borrower, each of which shall be wholly-owned (directly or indirectly) by
the Borrower; and
WHEREAS, Tilia International, Inc., a Subsidiary of the Borrower, has
entered into that certain Intellectual Property Assignment Agreement with
Intropack, a Korean corporation, and Kyul Joo Lee, an individual, dated as of
November 27, 2002 (the "Intropack Agreement") pursuant to which the Borrower is
purchasing certain intellectual property rights related to its business and
products, for an amount not to exceed $10,000,000 in the aggregate over the life
of the Intropack Agreement; and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders waive the application of certain provisions of the Credit Agreement,
as set forth below, and the Administrative Agent and the Lenders 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
related to the Intropack Agreement and otherwise as set forth below, and the
Administrative Agent and the Lenders 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 definitions are hereby added to Article I of the
Credit Agreement in their respective proper alphabetical order:
"Diamond Acquisition" means the Acquisition by the Borrower
and certain of its Subsidiaries of all or substantially all of the
assets of Diamond Brands Operating Corp. and certain of its affiliates
pursuant to that certain Asset Purchase Agreement dated as of November
27, 2002, by and among the Borrower, Diamond Brands, Inc., Diamond
Brands Operating Corp., Diamond Brands Kansas, Inc. and Forster, Inc.
"Intropack" means Intropack, a Korean corporation.
"Intropack Agreement" means that certain Intellectual Property
Assignment Agreement by and between Tilia International, Inc.,
Intropack, a Korean corporation, and Kyul Joo Lee, an individual, dated
as of November 27,
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2002, pursuant to which Tilia International, Inc., a Guarantor, has
acquired, and will acquire, certain intellectual property useful in the
business of the Borrower and its Subsidiaries.
(b) The definition of "Consolidated EBITDA" in Article I of the Credit
Agreement is hereby amended by replacing the parenthetical in part (a) of such
definition with the following: "(net of up to $10,000,000 of nonrecurring gains
not otherwise excluded in the calculation of Consolidated Net Income as used in
this definition, and net of up to $6,000,000 of reorganization expenses incurred
in connection with the Diamond Acquisition not otherwise excluded in the
calculation of Consolidated Net Income as used in this definition)".
(c) The amount "$10,000,000" in the definition of "Letter of Credit
Sublimit" in Article I of the Credit Agreement is hereby replaced with
"$15,000,000".
(d) The amount "$50,000,000" in the definition of "Revolving Credit
Facility" in Article I of the Credit Agreement is hereby replaced with
"$70,000,000".
(e) The definition of "Term Loan" in Article I of the Credit Agreement
is hereby deleted in its entirety and replaced with the following:
"Term Loan" means the loan made pursuant to the Term Loan
Facility in accordance with Section 2.01 or otherwise in connection
with any amendment to this Agreement providing for an increase in the
Term Loan Facility and an advance at a date after the Closing Date.
(f) The definition of "Term Loan Facility" in Article I of the Credit
Agreement is hereby deleted in its entirety and replaced with the following:
"Term Loan Facility" means (a) the facility described in
Section 2.01 providing for a Term Loan to the Borrower by the Lenders
in an original principal amount of $50,000,000 as of the Closing Date,
and (b) any increase in the then-existing principal amount of the Term
Loan, or other adjustment to such facility, in any amendment to this
Agreement, provided that such additional principal amount shall not
exceed $10,000,000.
(g) The amount "$5,000,000" in the definition of "Threshold Amount" in
Article I of the Credit Agreement is hereby replaced with "$7,500,000".
(h) The table in Section 2.08(c) is hereby deleted in its entirety and
replaced with the following:
Date Amount
---- ------
September 30, 2002 $1,250,000.00
December 31, 2002 $1,250,000.00
March 31, 2003 $1,513,157.89
June 30, 2003 $1,513,157.89
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September 30, 2003 $2,269,736.84
December 31, 2003 $2,269,736.84
March 31, 2004 $2,269,736.84
June 30, 2004 $2,269,736.84
September 30, 2004 $3,026,315.79
December 31, 2004 $3,026,315.79
March 31, 2005 $3,026,315.79
June 30, 2005 $3,026,315.79
September 30, 2005 $3,782,894.74
December 31, 2005 $3,782,894.74
March 31, 2006 $3,782,894.74
June 30, 2006 $3,782,894.74
September 30, 2006 $4,539,473.68
December 31, 2006 $4,539,473.68
March 31, 2007 $4,539,473.68
Stated Maturity Date All remaining Outstanding
Amounts of the Term Loan
(i) Section 2A.03(a) is hereby amended by replacing the phrase "are
currently located" in the fourth line thereof with "are located as of the
Closing Date".
(j) Section 2A.03(b) is hereby amended by replacing the phrase
"complete list of (i)" with "complete list as of the Closing Date of (i)".
(k) Section 2A.03(c) is hereby amended by replacing the phrase "since
April 1, 1997" with "from April 1, 1997 to the Closing Date".
(l) Section 5.13 is hereby deleted in its entirety and replaced with
the following:
5.13 SUBSIDIARIES. The Borrower (i) has no Subsidiaries other
than those specifically disclosed in Part (a) of Schedule 5.13 and
additional Subsidiaries created or acquired after the Closing Date in
compliance with Section 6.14; and (ii) has no equity investments in any
other corporation or entity other than those specifically disclosed in
Part (b) of Schedule 5.13 and additional equity investments made after
the Closing Date in accordance with the terms of this Agreement.
(m) The table in Section 7.15 is hereby deleted in its entirety and
replaced with the following, including the proviso at the end of such table:
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--------------------------------------------------------------
Fiscal Year Ending Maximum Capital Expenditures
--------------------------------------------------------------
December 31, 2002 $12,000,000
--------------------------------------------------------------
December 31, 2003 $16,000,000
--------------------------------------------------------------
December 31, 2004 $18,000,000
--------------------------------------------------------------
December 31, 2005 $20,000,000
--------------------------------------------------------------
December 31, 2006 $22,000,000
--------------------------------------------------------------
; provided that Capital Expenditures made by any of Diamond Brands,
Inc., Diamond Brands Operating Corp., Diamond Brands Kansas, Inc. and
Forster, Inc. on or after January 1, 2003 but prior to the consummation
of the Diamond Brands Acquisition, with respect to assets acquired by
the Borrower or one of its Subsidiaries pursuant to the Diamond
Acquisition, shall constitute Capital Expenditures made by the Borrower
and its Subsidiaries in the fiscal year of the Borrower ending December
31, 2003.
(n) The following new Section 7.22 is hereby added to the Credit
Agreement:
7.22 INTROPACK AGREEMENT. Make payments in excess of $7,500,000 in the
aggregate pursuant to Section 2.2 of the Intropack Agreement (excluding any
payments made prior to this Section 7.22 becoming an effective part of the
Credit Agreement); provided that so long as such payments do not exceed
$7,500,000 in the aggregate over the life of the Intropack Agreement (excluding
any payments made prior to this Section 7.22 becoming an effective part of the
Credit Agreement), such payments shall be deemed permitted under this Agreement
and shall not be deemed to be Investments or Capital Expenditures hereunder.
(o) Schedule 1.01(a) to the Credit Agreement is hereby deleted and
replaced with the revised Schedule 1.01(a) attached to this Agreement as
Exhibit A.
2. Consents, Waivers and Agreements.
(a) The Administrative Agent and the Lenders hereby consent to the
Borrower, either directly or through one or more Subsidiaries (each of which is
a Guarantor except as specifically excepted in this Agreement), consummating the
Proposed Acquisition, and waive any Default or Event of Default under the Credit
Agreement and the other Loan Documents that would otherwise occur as a result
of, and immediately upon the consummation of, the Proposed Acquisition,
including without limitation a violation of Section 7.14 of the Credit
Agreement, provided that:
(i) the Proposed Acquisition is consummated in accordance with
the APA, a copy of which is attached hereto as Exhibit B, without
waiver or delay of any condition precedent thereto in any material
respect (unless the Administrative Agent is given notice
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of and approves such material waiver or delay in its sole discretion),
and without modification or amendment of the APA in any material
respect since the date of execution thereof except to the extent such
amendment or modification is expressly set forth in the Confirmation
Order and is satisfactory to the Administrative Agent in its sole
discretion;
(ii) the principal amount outstanding under the DIP Loan
Agreement (as defined in the APA), which amount is required to be
retired by the Borrower pursuant to Section 3.1(i)(b) of the APA, shall
not exceed $84,100,000, provided that the parties agree that such
maximum principal amount shall not include (x) any interest due and
payable with respect to such principal amount outstanding under the DIP
Loan Agreement, even if classified as additional principal as a result
of a default under the DIP Loan Agreement or otherwise, (y) any amount
due by the Borrower or one of its Subsidiaries pursuant to the APA or
the Plan in connection with the Interest Rate Swap Agreement (as
defined in the Plan), or (z) amounts constituting attorneys or bank
fees and related fees to be paid in connection with the payment of the
outstanding principal amount of the DIP Loan Agreement;
(iii) the portion of the purchase price defined as "Additional
Consideration" in the APA shall not be paid by the Borrower or any
Subsidiary in cash unless (A) after making such cash payment, the
Aggregate Revolving Credit Commitments exceeds the aggregate
Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C
Obligations by not less than $20,000,000, and (B) no Default or Event
of Default exists, either before or after the making of such payment;
(iv) the Confirmation Order approving the Plan and the APA has
been entered as a Final Order (as defined in the APA), and demonstrates
that the assets acquired in the Proposed Acquisition are acquired by
the Borrower and/or its Subsidiaries free and clear of all Liens (other
than those Liens defined as "Permitted Liens" in the APA); and
(v) the Borrower has delivered to the Administrative Agent a
copy of the Confirmation Order together with a certificate of the
Secretary or Assistant Secretary of the Borrower stating that (A) such
copy of the Confirmation Order is a true and correct copy, (B) such
Confirmation Order is a Final Order and satisfies the condition
precedent set forth in Section 4.3.2 of the APA, and (C) all conditions
precedent to the effectiveness of the APA and the Plan have been
satisfied in full without waiver or delay thereof in any material
respect, unless the Administrative Agent has approved such material
waiver or delay in its sole discretion.
So long as the conditions set forth in this Paragraph 2(a) are and continue to
be satisfied, the Proposed Acquisition shall be disregarded in calculating the
dollar limitations on Acquisitions provided in Section 7.14 of the Credit
Agreement. In the event that any of the conditions to the waiver and consent
contained in this Paragraph 2(a) is violated or otherwise fails, whether
occurring at or after the consummation of the Proposed Acquisition, then an
Event of Default shall be deemed to have immediately occurred under the Credit
Agreement, notwithstanding any other waiver or consent to the Proposed
Acquisition given by the Lenders prior to the date of this Agreement.
6
(b) With respect to a new Subsidiary (the "Real Estate Subsidiary")
created by the Borrower for the sole purpose of acquiring, in connection with
the Proposed Acquisition and pursuant to the APA, that certain Assumed Owned
Real Property (as defined in the APA) set forth on Schedule 2.1.1.7 of the APA
as of November 27, 2002, without regard to any later modification or amendment
to the APA or Schedule 2.1.1.7 thereto, the Administrative Agent and the Lenders
hereby waive the requirements of Section 6.14 of the Credit Agreement and
provisions of the other Loan Documents applicable to newly created or organized
Subsidiaries, provided that, and only so long as, the Real Estate Subsidiary
holds no assets other than the Assumed Owned Real Property and conducts no
business other than the maintenance and/or sale of the Assumed Owned Real
Property. So long as the proviso in the preceding sentence remains true, the
parties hereto agree that the Real Estate Subsidiary will not be required (i) to
become a Guarantor, (ii) to enter into a Security Agreement or any other
Security Instrument, (iii) to have its stock or other equity interests pledged,
or (iv) otherwise to provide Collateral or other security pursuant to any
provisions of the Credit Agreement or the other Loan Documents. In the event
that the Real Estate Subsidiary holds assets other than the Assumed Owned Real
Property and/or conducts business other than the maintenance and/or sale of the
Assumed Owned Real Property, the Borrower shall give prompt written notice, but
in any case within not less than 10 Business Days of such holding of assets or
conduct of business, to the Administrative Agent and the requirements of Section
6.14 of the Credit Agreement shall become immediately applicable and shall be
satisfied within 10 Business Days of the Administrative Agent's receipt of such
notice, and any provisions of any other Loan Documents waived by this Paragraph
2(b) shall become immediately effective and shall be satisfied within 10
Business Days of the Administrative Agent's receipt of such notice.
(c) In the event that the Borrower or one of its Subsidiaries issues
Equity Securities that would give rise to a prepayment obligation pursuant to
Section 2.06(e)(ii) of the Credit Agreement, the Administrative Agent and the
Lenders hereby consent to the Borrower excluding from the calculation of Net
Proceeds therefrom, on a one-time basis, (A) that portion of the proceeds from
such issuance of Equity Securities used to pay the Additional Consideration (as
defined in the APA), not to exceed $6,000,000 in the aggregate, and (B) an
additional amount from the proceeds of such issuance of Equity Securities of up
to $5,000,000 (the total amount so to be excluded, including the Additional
Consideration and the additional amount up to $5,000,000, is referred to herein
as the "Permitted Excluded Amount"), provided that:
(i) not later than 10 Business Days after the receipt of
proceeds from the issuance of Equity Securities, the Borrower gives
written notice to the Administrative Agent of its intent to use a
portion of such proceeds (not to exceed $6,000,000) to pay the
Additional Consideration and of its intent to exclude from the
calculation of Net Proceeds the Permitted Excluded Amount, which notice
may be included in and delivered with the calculation of Net Proceeds
required to be delivered pursuant to Section 2.06(e)(ii), and which
notice will include the calculation of the amount of the Permitted
Excluded Amount, which may not exceed the amount used to pay the
Additional Consideration in cash (up to $6,000,000) plus $5,000,000;
(ii) the Borrower is entitled at such time to make the payment
of Additional Consideration in cash pursuant to Paragraph 2(a)(iii) of
this Agreement;
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(iii) not later than the last day on which the payment of the
Additional Consideration may be made pursuant to the terms of the APA,
the Borrower makes the payment of Additional Consideration in cash; and
(iv) at all times from the date of such Equity Issuance until
the proceeds are used to make the payment of Additional Consideration,
no Default or Event of Default shall have occurred and be continuing.
The condition in Paragraph 2(c)(i) above must be satisfied in order for any of
the Permitted Excluded Amount to be excluded from the calculation of Net
Proceeds in calculating the prepayment required by Section 2.06(e)(ii) of the
Credit Agreement. In the event that one of the conditions in Paragraphs
2(c)(ii), (iii) and (iv) above fails after the Borrower has made a prepayment
required by Section 2.06(e)(ii) of the Credit Agreement and excluded the
Permitted Excluded Amount from the Net Proceeds in calculating such prepayment,
the Borrower shall give prompt written notice thereof, and in any case within 10
Business Days of the failure of any such condition, to the Administrative Agent,
which notice shall include a calculation of the amount of the prepayment avoided
by the earlier exclusion from the calculation of Net Proceeds of the amount to
be used to pay the Additional Consideration (but not the additional amount up to
$5,000,000), and such notice shall be accompanied by the payment of such
previously avoided prepayment set forth in such notice.
(d) In the event that the Borrower, directly or through one or more
Subsidiaries, at any time Disposes of any or all of the Assumed Owned Real
Property, the Administrative Agent and the Lenders hereby consent, so long as no
Default or Event of Default has occurred and is continuing at the time of such
Disposition, to the Borrower excluding from the prepayment requirements of
Section 2.06(e)(iii) up to an aggregate amount of $500,000 of Net Proceeds from
all such Dispositions.
(e) With respect to assets acquired by the Borrower and its
Subsidiaries pursuant to the Proposed Acquisition, to the extent that the Credit
Agreement and the other Loan Documents require that prior notice be given of the
location of tangible assets of the Borrower or any Subsidiary, of trade names,
trademarks or other trade styles, and/or similar information, including without
limitation the requirements of Section 2A.03 of the Credit Agreement and
Sections 7(f), 7(h), 7(i), 9(e)(iii), 9(f)(iii) and 9(j) of the Security
Agreement, the Borrower shall not be required to give the Administrative Agent
such notice until the date that is 30 days after the consummation of the
Proposed Acquisition.
(f) The parties hereto agree that, so long as accomplished in
compliance with the terms of the Intropack Agreement, the acquisition of
intellectual property pursuant to the Intropack Agreement by Tilia
International, Inc., and the related transactions contemplated by the Intropack
Agreement, shall not constitute an "Acquisition" under the Credit Agreement.
(g) The parties hereto agree that, with respect to any patent, patent
application, trademark, trademark application, copyright registration or
copyright application acquired prior to the effective date of this Agreement
pursuant to the Intropack Agreement (the "Intropack IP"), the requirements of
the IP Security Agreement that relate to a Grantor (as defined in the IP
Security Agreement) giving notice of the acquisition of such newly acquired
intellectual
8
property, taking perfection action with respect thereto, and/or delivering
revised Schedules I, II and III with respect thereto, and related requirements,
including without limitation Sections 5 and 20 of the IP Security Agreement, the
Borrower and its applicable Subsidiaries shall have 30 days after the date of
this Agreement to deliver such notices and schedules and to take such perfection
action.
3. Effectiveness; Conditions Precedent. The effectiveness of this
Agreement, and the amendments to the Credit Agreement provided in Paragraph 1
hereof and the consents and waivers provided for in Paragraph 2 hereof, are all
subject to the satisfaction of each the following conditions precedent:
(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 each of the Lenders, together with
all schedules and exhibits thereto duly completed;
(ii) resolutions of the Board of Directors of the
Borrower authorizing the Proposed Acquisition and the related
transactions, certified by the Secretary or Assistant
Secretary of Borrower;
(iii) 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;
(iv) 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 and this Agreement;
(v) the Advance Notice (as defined in Paragraph 4
below), along with each of the documents required as a
condition to the consent to the Proposed Acquisition described
in Paragraph 2(a) hereof; and
(vi) such other documents, instruments, opinions,
certifications, undertakings, further assurances and other
matters as the Administrative Agent shall reasonably request.
(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, but subject to the exclusion set forth in Paragraph
2(b) hereof with respect to the Real Estate Subsidiary, substantially
9
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 have complied, 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 fees and expenses of counsel to the
Administrative Agent) estimated to date shall have been paid in full
(without prejudice to final settling of accounts for such fees and
expenses).
4. Advance of the Term Loan.
(a) Attached as Exhibit C hereto is the additional commitment of each
Lender providing for an increase in the aggregate amount of $10,000,000 of the
existing principal amount of the Term Loan, as permitted in the definitions of
"Term Loan" and "Term Loan Facility" in the Credit Agreement, as such terms are
amended by Paragraph 1 of this Agreement.
(b) Subject to the terms and conditions of this Agreement, including
the satisfaction of the conditions precedent to the effectiveness of this
Agreement contained in Paragraph 3 hereof and the conditions to the consent and
waiver with respect to the Proposed Acquisition found in Paragraphs 2(a)(i),
(ii), (iv) and (v) hereof, each Lender committing to an increased amount of the
Term Loan severally agrees to make an advance of its share of the increase in
the Term Loan, as set forth on Exhibit C hereto, in Dollars to the Borrower, at
the time set forth in Paragraph 4(c) below.
(c) The advance of the increase in the Term Loan shall be made upon the
Borrower giving written notice (the "Advance Notice") to the Administrative
Agent that the conditions to the consent to the Proposed Acquisition in
Paragraph 2 hereof have been satisfied (the date of the delivery of the Advance
Notice is referred to herein as the "Advance Notice Date"), which Advance Notice
shall be given not later than the latest of (x) 1:00 P.M. the day after the
consummation of the APA and (y) 1:00 P.M. the day after the Confirmation Order
becomes a Final Order. In the event that the Administrative Agent has received
the Advance Notice not later than 12:00 Noon New York time on the Advance Notice
Date, the Administrative Agent shall immediately give each Lender committing to
an increased amount of the Term Loan notice of the receipt of the Advance
Notice, and each such Lender shall make the amount of its advance as set forth
on Exhibit C hereto available by wire transfer to the Administrative Agent
within one hour of receipt of such notice from the Administrative Agent;
provided that if the Advance Notice is received by the Administrative Agent
after 12:00 Noon on the Advance Notice Date, each Lender shall make its advance
amount available by wire transfer no later than 10:00 A.M. the next morning.
Such wire transfer shall be directed to the Administrative Agent at the
Administrative Agent's Office and shall be in the form of Same Day Funds in
Dollars. The amount so received by the Administrative Agent shall, subject to
the terms and conditions of this Agreement, be made available to the Borrower by
delivery of the proceeds thereof as shall be directed in writing by the
Responsible Officer of the Borrower and reasonably acceptable to the
Administrative Agent. The initial Borrowing of the increased amount of the Term
Loan shall be a single Base Rate Segment, subject to Conversion after the
Advance Notice Date in accordance
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with a Term Loan Interest Rate Selection Notice delivered on the Advance Notice
Date pursuant to Section 4.01(a) of the Credit Agreement (or, if a Term Loan
Interest Rate Selection Notice is not delivered on the Advance Notice Date,
thereafter in accordance with Section 2.03 of the Credit Agreement).
(d) The parties hereto agree that upon being advanced, the additional
amounts shall be part of the "Term Loan" and the "Term Loan Facility" under the
Credit Agreement, without regard to any effect the advance thereof after the
Closing Date might otherwise have on the terms or interpretation of the
provisions of the Credit Agreement.
5. Consent of the Guarantors. Each Guarantor hereby consents,
acknowledges and agrees to the amendments, consents and waivers set forth herein
and hereby confirms and ratifies in all respects the Guaranty to which such
Guarantor is a party (including without limitation the continuation of such
Guarantor's payment and performance obligations thereunder upon and after the
effectiveness of this Agreement and the amendments, waivers and consents
contemplated hereby) and the enforceability of such Guaranty against such
Guarantor in accordance with its terms.
6. Representations and Warranties. In order to induce the
Administrative Agent and the Lenders to enter into this Agreement, the Borrower
represents and warrants to the Administrative Agent and the Lenders as follows:
(a) The representations and warranties made by the Borrower in
Article V of the Credit 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, including after giving effect to
the Proposed Acquisition, except (i) to the extent that such
representations and warranties expressly relate to an earlier date, and
(ii) the representations and warranties contained in the IP Security
Agreement that refer to Schedule I, II or III to the IP Security
Agreement related to such schedules without giving effect to the
acquisition of any of the Intropack IP;
(b) Since the date of the most recent financial reports of the
Borrower delivered pursuant to Section 4.01(a)(ix) or Section 6.01 of
the Credit Agreement, as applicable, no act, event, condition or
circumstance has occurred or arisen which, singly or in the aggregate
with one or more other acts, events, occurrences or conditions
(whenever occurring or arising), has had or could reasonably be
expected to have a Material Adverse Effect;
(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, and each of such Persons has become and remains a party
to a Guaranty as a Guarantor;
(d) This Agreement has been duly authorized, executed and
delivered by the Borrower and Guarantors party hereto and constitutes a
legal, valid and binding
11
obligation of such parties, except as may be limited by general
principles of equity or by the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally; and
(e) After giving effect to this Agreement, no Default or Event
of Default has occurred and is continuing.
7. 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 relating to such subject matter. No promise, condition, representation
or warranty, express or implied, not set forth in the Relevant Documents shall
bind any party hereto, and no such party 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 in writing
and in accordance with Section 10.01 of the Credit Agreement.
8. 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 and shall be and
remain in full force and effect according to their respective terms.
9. 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.
10. Governing Law. This Agreement shall in all respects be governed by,
and construed in accordance with, the laws of the State of New York applicable
to contracts executed and to be performed entirely within such State, and shall
be further subject to the provisions of Sections 10.16(b) and 10.17 of the
Credit Agreement.
11. 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.
12. References. All references in any of the Loan Documents to the
"Credit Agreement" shall mean the Credit Agreement, as amended hereby.
13. 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, legal representatives,
and assignees to the extent such assignees are permitted assignees as provided
in Section 10.07 of the Credit Agreement.
[SIGNATURE PAGES FOLLOW.]
12
IN WITNESS WHEREOF, the parties hereto have caused this instrument 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.), an
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
----------------------------------------
Signature Page 5
NATIONAL CITY BANK OF INDIANA
By: /s/ David G. McNeely
-------------------------------------------
Name: David G. McNeely
-----------------------------------------
Title: Assistant Vice President
----------------------------------------
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: Senior Vice President
----------------------------------------
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: /s/ Terence S. Dougherty
-------------------------------------------
Name: Terence S. Dougherty
-----------------------------------------
Title: Officer, Senior Credit Analyst
----------------------------------------
Signature Page 11
TRANSAMERICA BUSINESS CAPITAL CORPORATION
By: /s/ Stephen K. Goetschius
-------------------------------------------
Name: Stephen K. Goetschius
-----------------------------------------
Title: Senior Vice President
----------------------------------------
Signature Page 12
UNION FEDERAL BANK OF INDIANAPOLIS
By: /s/ Julia Schneider
-------------------------------------------
Name: Julia Schneider
-----------------------------------------
Title: Commercial Loan Officer
----------------------------------------
Signature Page 13