CONSOLIDATED AMENDMENT TO
GUARANTY AND SECURITY INSTRUMENTS
This Consolidated Amendment to Guaranty and Security Instruments (this
"Amendment") dated as of September 2, 2003 is made by and among JARDEN
CORPORATION, a Delaware corporation (the "Borrower"), and EACH OF THE
UNDERSIGNED SUBSIDIARIES OF THE BORROWER (each a "Guarantor" and a "Grantor",
collectively with the Borrower, the "Grantors"), and BANK OF AMERICA, N.A., a
national banking association, as Administrative Agent (the "Administrative
Agent") for each of the lenders (the "Lenders" and collectively with the
Administrative Agent and certain other Persons parties to Related Swap
Contracts, the "Secured Parties"), now or hereafter party to the Credit
Agreement (as defined below). All capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned thereto in the Credit
Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Borrower (previously known as Alltrista Corporation), the
Administrative Agent, Canadian Imperial Bank of Commerce, as Syndication Agent,
National City Bank of Indiana, as Documentation Agent and the Lenders have
agreed to amend and restate that certain Credit Agreement dated as of April 24,
2002, as amended prior to the date hereof (the "Existing Credit Agreement"), in
order to, among other things, add a new term loan B facility to the Existing
Credit Agreement pursuant to that certain Amended and Restated Credit Agreement
dated as of the date hereof by and among the Borrower, the Administrative Agent,
Canadian Imperial Bank of Commerce, as Syndication Agent and National City Bank
of Indiana and Fleet National Bank, as Co-Documentation Agents and the Lenders
(as from time to time further amended, modified, supplemented, restated, or
amended and restated, the "Credit Agreement"); and
WHEREAS, each of the Guarantors has entered (either initially or by a
Guaranty Joinder Agreement) into that certain Guaranty Agreement dated April 24,
2003 (the "Guaranty") in favor of the Administrative Agent on behalf of the
Lenders pursuant to which each Guarantor has guaranteed the payment and
performance of the obligations of the Borrower under the Credit Agreement and
the other Loan Documents; and
WHEREAS, each of the Grantors has entered into one or more various Loan
Documents (either initially or by a Security Joinder Agreement, IP Security
Joinder Agreement or Pledge Joinder Agreement, as applicable), dated April 24,
2002, with the Administrative Agent as set forth in Schedule I hereto (as
amended, restated, modified, supplemented or amended and restated prior to the
date hereof, collectively, the "Security Instruments"); and
WHEREAS, the Grantors and the Administrative Agent desire to amend, and
it is necessary to amend, certain provisions of the Guaranty and the Security
Instruments as set forth below to conform to the Credit 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 THE GUARANTY AND SECURITY INSTRUMENTS. Subject to the
terms and conditions set forth herein, the Guaranty and Security Instruments are
hereby amended as follows:
(a) Defined Terms.
(i) All references to "Credit Agreement" (unless specified otherwise)
in each of the Guaranty and the Security Instruments shall hereby refer
to that certain Amended and Restated Credit Agreement, by and among the
Borrower, the Administrative Agent, Canadian Imperial Bank of Commerce,
as Syndication Agent, National City Bank of Indiana and Fleet National
Bank, as Co-Documentation Agents and the Lenders, dated as of
September___, 2003, as from time to time further amended, modified,
supplemented, restated, or amended and restated.
(ii) All references to "Alltrista Corporation" (unless specified
otherwise) in each place it appears throughout each of the Guaranty and
the Security Instruments is hereby deleted and replaced with the words
"Jarden Corporation" in each instance.
(iii) All references to "Secured Parties" or "Secured Party" in each of
the Guaranty and the Security Instruments shall hereby refer to,
collectively or individually as the context may require, each Lender,
the Administrative Agent and each other Person party to a Related Swap
Contract.
(iv) The definition of "Non-Material Accounts" in the Security
Agreement is hereby deleted in its entirety and replaced as follows:
" "Non-Material Accounts" means all Deposit Accounts and
securities accounts with respect to which the sum of (a) the amounts on
deposit in all such Deposit Accounts, plus (b) the value of the
securities entitlements in all such securities accounts, does not
exceed $2,000,000."
(v) A new definition of "Non-Material Locations" shall be added to
Section 1 of the Security Agreement, to read in its entirety as
follows:
" "Non-Material Locations" means those leased or other
third-party locations at which tangible personal property Collateral is
located, where the aggregate value of all Collateral located at all
such locations is less than three percent (3%) of Consolidated Current
Assets."
(vi) A new definition of "Non-Material Domain Names" shall be added to
Section 1 of the Security Agreement, to read in its entirety as
follows:
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" "Non-Material Domain Names" means those domain names
registered to any Grantor which, in the aggregate for all such domain
names, account for or are used in connection with less than one percent
(1%) of the consolidated annual sales of Borrower and its
Subsidiaries."
(b) Recitals.
(i) The first paragraph of each Witnesseth section in the Guaranty and
each Security Instrument is hereby deleted in its entirety and restated
as follows:
"WHEREAS, the Borrower, the Administrative Agent, Canadian
Imperial Bank of Commerce, as Syndication Agent, National City Bank of
Indiana and Fleet National Bank, as Co-Documentation Agents and the
Lenders are party to that certain Credit Agreement dated as of April
24, 2002 (as amended up to (but excluding) September ___, 2003, the
"Existing Credit Agreement"), pursuant to which the Lenders have made
available to the Borrower a term loan facility and a revolving credit
facility with a letter of credit sublimit and a swing line facility;
and"
(ii) The following paragraph shall be added as the second paragraph of
the Witnesseth section of the Guaranty and each Security Instrument, to
read in its entirety as follows:
"WHEREAS, the parties have amended and restated the Existing
Credit Agreement in order to, among other things, add a new term loan B
facility to the Existing Credit Agreement pursuant to that certain
Amended and Restated Credit Agreement dated as of September __, 2003 by
and among the Borrower, the Administrative Agent, Canadian Imperial
Bank of Commerce, as Syndication Agent, National City Bank of Indiana
and Fleet National Bank, as Co-Documentation Agents and the Lenders (as
from time to time further amended, revised, modified, supplemented,
amended and restated or replaced, renewed, refunded or refinanced, the
"Credit Agreement"); and"
(c) Rules of Interpretation. The references to "Sections 1.02 and 1.05" or
"Sections 1.02 through 1.05" in the first sentence of each of Section
27 of the Security Agreement, Section 31 of the IP Security Agreement,
Section 16 of the Guaranty and Section 24 of the Pledge Agreement is
hereby deleted and replaced with "Sections 1.03 and 1.06."
(d) Related Swap Contracts.
(i) Section 17 of the Pledge Agreement is hereby deleted in its
entirety and restated as follows:
"17. RELATED SWAP CONTRACTS. All obligations of each Pledgor
under or in respect of Related Swap Contracts (which are not prohibited
under the terms of the Credit Agreement) to which any Lender or any
Affiliate of any Lender is a party, shall be deemed to be Secured
Obligations secured hereby, and each Lender or Affiliate of a Lender
party to any such Related Swap Contract shall be deemed to be a Secured
Party hereunder with respect to such Secured Obligations; provided,
however, that such
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obligations shall cease to be Secured Obligations at such time, prior
to the Facility Termination Date, as such Person (or Affiliate of such
Person) shall cease to be a "Lender" under the Credit Agreement.
No Person who obtains the benefit of any Lien by virtue of the
provisions of this Section shall have any right to notice of any action
or to consent to, direct or object to any action hereunder or under any
other Loan Document or otherwise in respect of the Collateral
(including the release or impairment of any Collateral) other than in
its capacity as a Lender and only to the extent expressly provided in
the Loan Documents. Each Secured Party not a party to the Credit
Agreement who obtains the benefit of this Pledge Agreement by virtue of
the provisions of this Section shall be deemed to have acknowledged and
accepted the appointment of the Administrative Agent pursuant to the
terms of the Credit Agreement, and that with respect to the actions and
omissions of the Administrative Agent hereunder or otherwise relating
hereto that do or may affect such Secured Party, the Administrative
Agent and each Agent-Related Person shall be entitled to all the
rights, benefits and immunities conferred under Article IX of the
Credit Agreement."
(ii) Section 21 of the Security Agreement and Section 26 of the IP
Security Agreement are hereby deleted in their entirety and restated as
follows (with the appropriate section number at the start of each
section):
"[21][26]. RELATED SWAP CONTRACTS. All obligations of each
Grantor under or in respect of Related Swap Contracts (which are not
prohibited under the terms of the Credit Agreement) to which any Lender
or any Affiliate of any Lender is a party, shall be deemed to be
Secured Obligations secured hereby, and each Lender or Affiliate of a
Lender party to any such Related Swap Contract shall be deemed to be a
Secured Party hereunder with respect to such Secured Obligations;
provided, however, that such obligations shall cease to be Secured
Obligations at such time, prior to the Facility Termination Date, as
such Person (or Affiliate of such Person) shall cease to be a "Lender"
under the Credit Agreement.
No Person who obtains the benefit of any Lien by virtue of the
provisions of this Section shall have any right to notice of any action
or to consent to, direct or object to any action hereunder or under any
other Loan Document or otherwise in respect of the Collateral
(including the release or impairment of any Collateral) other than in
its capacity as a Lender and only to the extent expressly provided in
the Loan Documents. Each Secured Party not a party to the Credit
Agreement who obtains the benefit of this Security Agreement by virtue
of the provisions of this Section shall be deemed to have acknowledged
and accepted the appointment of the Administrative Agent pursuant to
the terms of the Credit Agreement, and that with respect to the actions
and omissions of the Administrative Agent hereunder or otherwise
relating hereto that do or may affect such Secured Party, the
Administrative Agent and each Agent-Related Person shall be entitled to
all the rights, benefits and immunities conferred under Article IX of
the Credit Agreement."
(iii) Section 19 of the Guaranty is hereby deleted in its entirety and
restated as follows:
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"19. RELATED SWAP CONTRACTS. All obligations of the Borrower
under Related Swap Contracts to which any Lender or its Affiliates are
a party shall be deemed to be Borrower's Liabilities, and each Lender
or Affiliate of a Lender party to any such Swap Contract shall be
deemed to be a Secured Party hereunder with respect to such Borrower's
Liabilities; provided, however, that such obligations shall cease to be
Borrower's Liabilities at such time, prior to the Facility Termination
Date, as such Person (or Affiliate of such Person) shall cease to be a
"Lender" under the Credit Agreement.
No Person who obtains the benefit of this Guaranty Agreement
by virtue of the provisions of this Section shall have, prior to the
Facility Termination Date, any right to notice of any action or to
consent to, direct or object to any action hereunder or under any other
Loan Document or otherwise in respect of the Guarantors' Obligations
(including the release or modification of any Guarantors' Obligations
or security therefor) other than in its capacity as a Lender and only
to the extent expressly provided in the Loan Documents. Each Secured
Party not a party to the Credit Agreement who obtains the benefit of
this Guaranty Agreement by virtue of the provisions of this Section
shall be deemed to have acknowledged and accepted the appointment of
the Administrative Agent pursuant to the terms of the Credit Agreement,
and that with respect to the actions and omissions of the
Administrative Agent hereunder or otherwise relating hereto that do or
may affect such Secured Party, the Administrative Agent and each
Agent-Related Person shall be entitled to all the rights, benefits and
immunities conferred under Article IX of the Credit Agreement."
(e) Section 7 of the Security Agreement.
(i) Section 7(e) is hereby deleted in its entirety and restated as
follows:
"(e) Upon and after the filing of certain UCC termination
statements and related releases or amendments obtained (i) on or about
April 24, 2002 in connection with the closing of the Transaction
(including the payoff of Union Bank of California's credit facility
with the Tilia Sellers) and the termination of that certain Credit
Agreement dated as of April 26, 1999, among the Borrower, the lenders
named therein and Bank One Indiana, N.A. (as successor by merger to NBD
Bank, N.A.), as agent; and (ii) on or about September ___, 2003 in
connection with the closing of the Lehigh Acquisition and the payment
in full and termination or assignment and assumption of all the Lehigh
Indebtedness, and the acceptance and filing of such UCC termination
statements, UCC amendments and related releases by the appropriate
jurisdictions and Governmental Authorities, no effective financing
statement securing a valid security interest or other Perfection
Document securing a valid security interest similar in effect, nor any
other Perfection Action securing a valid security interest, covering
all or any part of the Collateral purported to be granted or taken by
or on behalf of such Grantor (or by or on behalf of any other Person
and which remains effective as against all or any part of the
Collateral) will be on file or in any recording office or will have
been delivered to another Person for filing (whether upon the
occurrence of a contingency or otherwise), or otherwise taken, as the
case may be, except such as pertain to Permitted Liens and such
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as may have been filed for the benefit of, delivered to, or taken in
favor of, the Administrative Agent for the benefit of the Secured
Parties in connection with the security interests conferred hereunder."
(ii) Section 7(h) of the Security Agreement is hereby amended to add
the following proviso at the end of such Section:
"provided, however, that the Grantor shall not be required to
deliver a Qualifying Control Agreement with respect to any Non-Material
Location."
(iii) Section 7(i) of the Security Agreement is hereby amended to add
the following proviso at the end of such Section:
"provided, however, that the lessor of any Non-Material
Location shall not be required to acknowledge the Lien in favor of the
Administrative Agent for the benefit of the Secured Parties or waive
its statutory and consensual liens and rights with respect to the
Collateral at such Non-Material Location."
(f) Section 9 of the Security Agreement. Section 9(j) of the Security
Agreement is hereby amended as follows:
(i) Subsection (i) is amended to add the following at the end of clause
(t) therein: "other than Non-Material Domain Names".
(i) Subsection (ii) is hereby deleted in its entirety and restated to
read as follows:
"(ii) Such Grantor shall cause to be delivered to the
Administrative Agent at or prior to the Closing Date with respect to
each internet domain name registered to such Grantor, other than
Non-Material Domain Names, an undated transfer document, duly executed
in blank by such Grantor and in the form required by the applicable
internet domain name registrar, sufficient to effect the transfer of
each internet domain name to the transferee thereof named in such
transfer form upon delivery to such registrar. Without limiting the
generality of the foregoing, no Grantor shall acquire any rights to any
internet domain name not listed on Schedule 9(j) attached hereto (other
than a Non-Material Domain Name) except in each case upon giving not
less than thirty (30) days' prior written notice thereof to the
Administrative Agent, which notice shall be accompanied by an
appropriate supplement to Schedule 9(j) reflecting such additional
name, the delivery of additional executed internet domain name transfer
documents executed in blank with respect thereto, and taking or causing
to be taken at such Grantor's expense all such Perfection Action,
including the delivery of such Perfection Documents, as may be
reasonably requested by the Administrative Agent to perfect or protect,
or maintain the perfection and priority of, the Lien of the
Administrative Agent for the benefit of the Secured Parties in
Collateral contemplated hereunder. Without limiting the foregoing, each
Grantor shall furnish to the Administrative Agent and the Lenders such
supplements to Schedule 9(j) from time to time as shall be necessary to
keep such Schedule true and complete at all times."
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(g) Section 11 of the Security Agreement. The last paragraph of Section 11
of the Security Agreement is hereby amended to replace the reference to
"Section 2.13" therein with "Section 8.03."
(h) Section 5 of the IP Security Agreement. Section 5(e) of the IP Security
Agreement is hereby deleted in its entirety and restated to read as
follows:
"(e) Each Grantor agrees that, should it have or obtain an
ownership interest in any United States patent or patent application
that is not now identified on Schedule I, any trademark or trademark
application that is not now identified on Schedule II or any copyright
registration or copyright application that is not now identified on
Schedule III: (i) the provisions of this IP Security Agreement shall
automatically apply to such item, and such item shall automatically
become part of the Collateral; (ii) such Grantor shall, within one
month after acquiring or becoming aware of such ownership interest, (A)
give written notice thereof to the Administrative Agent (unless such
item is a Non-Material Patent or Non-Material Trademark (as each such
term is defined below), (B) take all commercially reasonable and
appropriate steps to protect such Patents, Trademarks and Copyrights,
as, for example, by filing applications for their registration with the
Patent and Trademark Office or the Copyright Office, as applicable, and
(C) with respect to such Patents and Trademarks (other than
Non-Material Patents and Non-Material Trademarks) and Copyrights,
prepare, execute and file in the Patent and Trademark Office or the
Copyright Office, as applicable, within the requisite time period, all
documents that are known by such Grantor to be necessary or that the
Administrative Agent, on behalf of the Secured Parties, reasonably
requests in order to perfect the Security Interest of the
Administrative Agent, on behalf of the Secured Parties, therein,
including delivery to the Administrative Agent of an executed IP
Assignment. Each Grantor authorizes the Administrative Agent, on behalf
of the Secured Parties, to execute and file (subject in the case of the
filing of IP Assignments, to the limitation contained in Section 4
above) such a document in the name of such Grantor if such Grantor
fails to do so."
(i) Section 7 of the IP Security Agreement. Sections 7(a) and (b) of the IP
Security Agreement are hereby deleted in its entirety and restated to
read as follows:
"(a) It is the sole, legal and beneficial owner of the entire
right, title and interest in and to the Patents purported to be granted
by it hereunder, free and clear of any Lien, security interest, option,
charge, pledge, registered user agreement, assignment (whether
conditional or not), or covenant, or any other encumbrance, except for
non-exclusive licenses as to which such Grantor is the licensor,
Permitted Liens, and the Security Interests created by this IP Security
Agreement. Upon and after the filing of certain UCC termination
statements and related releases or amendments obtained (i) on or about
April 24, 2002 in connection with the closing of the Transaction
(including the payoff of Union Bank of California's credit facility
with the Tilia Sellers) and the termination of that certain Credit
Agreement dated as of April 26, 1999, among the Borrower, the lenders
named therein and Bank One Indiana, N.A. (as successor by merger to NBD
Bank, N.A.), as agent, and (ii) on or about September 2, 2003 in
connection with the closing of the Lehigh Acquisition and the payment
in full and termination or assignment and assumption of all the Lehigh
Indebtedness, and the
7
acceptance and filing of such UCC termination statements, UCC
amendments and related releases by the appropriate jurisdictions and
Governmental Authorities, no effective financing statement securing a
valid security interest or other instrument similar in effect covering
all or any part of the Patents purported to be granted by such Grantor
hereunder shall be on file in any recording office, including, without
limitation, the Patent and Trademark Office, except such as may have
been filed in favor of the Administrative Agent, for the benefit of the
Secured Parties.
(b) Set forth on Schedule I is a list of all of the Patents
(other than those Patents which, when aggregated with the Non-Material
Trademarks (as defined below) account for or are connected with less
than one percent (1%) of consolidated sales of the Borrower and its
Subsidiaries (the "Non-Material Patents") owned by such Grantor and
utilized in the conduct of its business as currently conducted and
material in such Grantor's operations or in the selling or marketing of
such Grantor's products or services."
(j) Section 8 of the IP Security Agreement. Sections 8(a) and (b) of the IP
Security Agreement is hereby deleted in its entirety and restated to
read as follows:
"(a) It is the sole, legal and beneficial owner of the entire
right, title and interest in and to the Trademarks purported to be
granted by it hereunder, free and clear of any Lien, security interest,
option, charge, pledge, registered user agreement, assignment (whether
conditional or not), or covenant, or any other encumbrance, except for
non-exclusive licenses as to which such Grantor is the licensor,
Permitted Liens, and the Security Interests created by this IP Security
Agreement. Upon and after the filing of certain UCC termination
statements and related releases or amendments obtained (i) on or about
April 24, 2002 in connection with the closing of the Transaction
(including the payoff of Union Bank of California's credit facility
with the Seller) and the termination of that certain Credit Agreement
dated as of April 26, 1999, among the Borrower, the lenders named
therein and Bank One Indiana, N.A. (as successor by merger to NBD Bank,
N.A.), as agent, and (ii) on or about September 2, 2003 in connection
with the closing of the Lehigh Acquisition and the payment in full and
termination or assignment and assumption of all the Lehigh
Indebtedness, and the acceptance and filing of such UCC termination
statements, UCC amendments and related releases by the appropriate
jurisdictions and Governmental Authorities, no effective financing
statement securing a valid security interest or other instrument
similar in effect covering all or any part of the Trademarks purported
to be granted by such Grantor hereunder shall be on file in any
recording office, including, without limitation, the Patent and
Trademark Office, except such as may have been filed in favor of the
Administrative Agent, for the benefit of the Secured Parties.
(b) Set forth on Schedule II is a list of all of the
Trademarks (other than those Trademarks which, when aggregated with the
Non-Material Patents, account for or are connected with less than one
percent (1%) of consolidated sales of the Borrower and its Subsidiaries
(the "Non-Material Trademarks") owned by such Grantor and utilized in
the conduct of its business as currently conducted and material in such
Grantor's operations or in the selling or marketing of such Grantor's
products or services."
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(k) Section 9 of the IP Security Agreement. Section 9(a) of the IP Security
Agreement is hereby deleted in its entirety and restated to read as
follows:
"(a) It is the sole, legal and beneficial owner of the entire
right, title and interest in and to the Copyrights purported to be
granted by it hereunder, free and clear of any Lien, security interest,
option, charge, pledge, registered user agreement, assignment (whether
conditional or not), or covenant, or any other encumbrance, except for
the Permitted Liens, Security Interests created or permitted by this IP
Security Agreement or the Credit Agreement. Upon and after the filing
of certain UCC termination statements and related releases or
amendments obtained (i) on or about April 24, 2002 in connection with
the closing of the Transaction (including the payoff of Union Bank of
California's credit facility with the Seller) and the termination of
that certain Credit Agreement dated as of April 26, 1999, among the
Borrower, the lenders named therein and Bank One Indiana, N.A. (as
successor by merger to NBD Bank, N.A.), as agent, and (ii) on or about
September 2, 2003 in connection with the closing of the Lehigh
Acquisition and the payment in full and termination or assignment and
assumption of all the Lehigh Indebtedness, and the acceptance and
filing of such UCC termination statements, UCC amendments and related
releases by the appropriate jurisdictions and Governmental Authorities,
no effective financing statement securing a valid security interest or
other instrument similar in effect covering all or any part of the
Copyrights purported to be granted by such Grantor hereunder shall be
on file in any recording office, including, without limitation, the
Copyright Office, except such as may have been filed in favor of the
Administrative Agent, for the benefit of the Secured Parties."
(l) Section 15 of the IP Security Agreement. Section 15(c) of the IP
Security Agreement is hereby amended to replace the reference to
"Section 2.13" therein with "Section 8.03."
(m) Section 5 of the Pledge Agreement. Section 5 of the Pledge Agreement is
hereby amended to replace the reference to "Section 2.13" therein with
"Section 8.03."
(n) Section 22 of the Guaranty. The reference to "Facility Guaranty" in the
first sentence of Section 22 is hereby deleted and replaced by a
reference to "Guaranty".
2. RELEASE OF IMMATERIAL SUBSIDIARIES. The Borrower hereby represents and
warrants that the Grantors listed on Schedule 2 qualify as Immaterial
Subsidiaries as determined in accordance with the definition thereof in the
Credit Agreement. In reliance thereon and subject to the provisions of Section
6.14 of the Credit Agreement, the Administrative Agent hereby releases (i) any
Lien conferred by each such Immaterial Subsidiary under any Security Instrument
to which such Immaterial Subsidiary is a party, and (ii) each such Immaterial
Subsidiary from any and all obligations and liabilities under each of the
Security Agreement, IP Security Agreement, Guaranty or any other Loan Document
to which it is a party, except to the extent that such obligation or liability
specifically survives termination in accordance with the terms of such
applicable Loan Document.
3. CONSENT OF THE GUARANTORS. Each Guarantor hereby consents, acknowledges and
agrees to the amendments 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
9
Guarantor's payment and performance obligations thereunder upon and after the
effectiveness of this Amendment and the amendments contemplated hereby) and the
enforceability of such Guaranty against such Guarantor in accordance with its
terms.
4. REPRESENTATIONS AND WARRANTIES. In order to induce the Administrative Agent
and the Lenders to enter into this Amendment, 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, except to the extent that such
representations and warranties expressly relate to an earlier date;
(b) Since the execution of the Credit Agreement, 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 Amendment 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 Amendment has been duly authorized, executed and
delivered by the Borrower and Guarantors party hereto and constitutes a
legal, valid and binding 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 Amendment, no Default or Event
of Default has occurred and is continuing.
5. ENTIRE AGREEMENT. This Amendment, 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 Amendment may be changed, modified, waived or
canceled orally or otherwise, except in writing and in accordance with Section
10.01 of the Credit Agreement.
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6. 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.
7. COUNTERPARTS. This Amendment 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.
8. GOVERNING LAW. This Amendment 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 10.17(b) and 10.18 of the Credit
Agreement.
9. ENFORCEABILITY. Should any one or more of the provisions of this Amendment 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.
10. REFERENCES. All references in the Credit Agreement or any of the Loan
Documents to the "Guaranty" or any "Security Instrument" shall mean the Guaranty
and each Security Instrument, as amended hereby.
11. SUCCESSORS AND ASSIGNS. This Amendment 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.]
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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: Senior Vice President
----------------------------------
GUARANTORS:
HEARTHMARK, INC., an Indiana corporation
ALLTRISTA PLASTICS CORPORATION, an Indiana
corporation
ALLTRISTA NEWCO CORPORATION, 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
QUOIN CORPORATION, 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
----------------------------------
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
By: /s/ Timothy Cassidy
--------------------------------------
Name: Timothy E. Cassidy
------------------------------------
Title: Vice President
-----------------------------------
Schedule 1
Intellectual Property Security Agreement dated as of April 24, 2002, by
and among the Borrower, one or more of the Guarantors and the Administrative
Agent (as supplemented by the execution and delivery of IP Security Joinder
Agreements).
Securities Pledge Agreement dated as of April 24, 2002, by and among
the Borrower, certain Guarantors and the Administrative Agent (as supplemented
by the execution and delivery of Pledge Joinder Agreements and Pledge Agreement
Supplements).
Security Agreement dated as of April 24, 2002, by and among the
Borrower, each Guarantors and the Administrative Agent (as supplemented by the
execution and delivery of Security Joinder Agreements).
Schedule 2
Immaterial Subsidiaries
Trienda Corporation (f/k/a TriEnda Newco, Inc.)
O.W.D., Incorporated
Tupper Lake Plastics, Incorporated