AMENDMENT NO. 1 TO AMENDED & RESTATED CREDIT AGREEMENT
This Amendment No. 1 to Amended & Restated Credit Agreement (this
"Agreement") dated as of September 25, 2003 is made by and among JARDEN
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 Amended & Restated Credit Agreement dated as of
September 2, 2003 (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 requested that the Administrative Agent and
the Lenders agree to amend certain terms of the Credit Agreement, which the
Administrative Agent and the Lenders party hereto are willing to do 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) Each of the following definitions is hereby deleted from Article I
of the Credit Agreement: (i) Non-Scheduled Acquisition B Equity Issuance, and
(ii) Scheduled Acquisition B Equity Issuance.
(b) The following new definition is hereby added to Article I of the
Credit Agreement in its proper alphabetical order:
"Permitted Equity Issuance" means one issuance of Equity
Securities of the Borrower to occur not later than January 31, 2004
with gross proceeds not to exceed $120,000,000.
(c) The definition of "Non-Exempt Net Proceeds" in Article I of the
Credit Agreement is hereby deleted in its entirety and replaced with the
following:
"Non-Exempt Net Proceeds" means (a) during the period of 180
days after the date of the Permitted Equity Issuance, $0, and (b)
thereafter, the difference (but not less than $0) of (i) the aggregate
Net Proceeds of the Permitted Equity Issuance, minus (ii) the aggregate
amount of the Net Proceeds of the Permitted Equity Issuance utilized
within 180 days of such issuance to pay Costs of Acquisition of
consummated Permitted Acquisitions (but including the Cost of
Acquisition of Scheduled Acquisition A, even if it is consummated prior
to the occurrence of the Permitted Equity Issuance) and the Scheduled
Acquisition B, minus (iii) $50,000,000.
(d) Section 2.06(e)(ii) is hereby deleted in its entirety and replaced
with the following:
(ii) The Borrower shall make, or shall cause each applicable
Subsidiary to make, a prepayment with respect to each private or public
offering of Equity Securities of the Borrower or any Subsidiary (other
than Equity Securities issued to the Borrower or a Guarantor) in an
amount equal to (x) in the case of the issuance of any Equity
Securities other than the Permitted Equity Issuance, fifty percent
(50%) of the Net Proceeds of each such issuance of Equity Securities of
the Borrower or any Subsidiary, and (y) in the case of the Permitted
Equity Issuance, (A) one hundred percent (100%) of the first
$50,000,000 of the Non-Exempt Net Proceeds thereof and (B) fifty
percent (50%) of any remaining Non-Exempt Net Proceeds thereof. Each
prepayment provided for in this Section 2.06(e)(ii) will be made within
ten (10) Business Days of receipt of such proceeds (or, in the case of
Non-Exempt Net Proceeds, within ten (10) Business Days of the
expiration of the 180-day period following the Permitted Equity
Issuance) and upon not less than five (5) Business Days' prior written
notice to the Administrative Agent, which notice shall include a
certificate of a Responsible Officer of the Borrower setting forth in
reasonable detail the calculations utilized in computing the Net
Proceeds of such issuance and the amount of such prepayment; provided
that no prepayment shall be required hereunder of the first $20,000,000
of Net Proceeds in each fiscal year of the Borrower realized from (x)
the issuance of Equity Securities in connection with the exercise of
any option, warrant or other convertible security of the Borrower or
any Subsidiary or (y) the issuance, award or grant of Equity Securities
to eligible participants under a stock plan of the Borrower.
(e) Section 5.11 is hereby amended to replace the reference to
"Scheduled B Equity Issuance" therein with "Permitted Equity Issuance."
(f) Schedule 1.02(d) is hereby amended by deleting the line in the
labeled "Scheduled Acquisition B Equity Issuance" and replacing it with the
following:
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Permitted Equity Issuance: That portion of the gross proceeds used
to consummate the Scheduled Acquisition
B (a) is to be not less than an amount
sufficient so that (after giving effect
to the Permitted Equity Issuance, the
consummation of the Scheduled
Acquisition B, the consummation of all
Permitted Acquisitions from the Closing
Date to the date of the Scheduled
Acquisition B, and all borrowings and
incurrences of debt in connection with
all such transactions) the Total
Leverage Ratio (pro forma for all such
transactions) does not exceed 3.20 to
1.00, and (b) results from the issuance
of common stock of the Borrower.
- --------------------------------------------------------------------------------
2. Effectiveness; Conditions Precedent. The effectiveness of this
Agreement and the amendments to the Credit Agreement provided in Paragraph 1
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) four (4) original counterparts of this Agreement,
duly executed by the Borrower, the Administrative Agent, each
Guarantor and the Required Lenders, together with all
schedules and exhibits thereto duly completed;
(ii) such other documents, instruments, opinions,
certifications, undertakings, further assurances and other
matters as the Administrative Agent shall reasonably request.
(b) 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).
3. Consent of the Guarantors. Each Guarantor hereby consents,
acknowledges and agrees to the amendments and other matters 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.
4. 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, except to the extent that such
representations and warranties expressly relate to an earlier date;
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(b) Since June 30, 2003, 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 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.
5. 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.
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 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.
8. 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 10.17(b) and 10.18 of the
Credit Agreement.
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9. 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.
10. References. All references in any of the Loan Documents to the
"Credit Agreement" shall mean the Credit Agreement, as amended hereby.
11. 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.]
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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
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
LEHIGH CONSUMER PRODUCTS
CORPORATION, a Pennsylvania
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/ Tim Cassidy
-----------------------
Name: Tim Cassidy
Title: Vice President
LENDERS:
-------
BANK OF AMERICA, N.A., as a Lender,
L/C Issuer and Swing Line
Lender
By: /s/ Tim Cassidy
-----------------------
Name: Tim Cassidy
Title: Vice President
CIBC INC.
By: /s/ Dean J. Decker
------------------
Name: Dean J. Decker
Title: Managing Director
CIBC World Markets Corp.
As agent for CIBC INC.
NATIONAL CITY BANK OF INDIANA
By: /s/ David G. McNeely
---------------------------
Name: David G. McNeely
Title: Assistant Vice President
THE BANK OF NEW YORK
By: /s/ Maurice A. Campbell
---------------------------
Name: Maurice A. Campbell
Title: Vice President
FLEET NATIONAL BANK
By: /s/ W. Lincoln Schoff, Jr.
---------------------------
Name: W. Lincoln Schoff, Jr.
Title: Senior VP
HARRIS TRUST AND SAVINGS BANK
By: /s/ Thad D. Rasche
---------------------------
Name: Thad D. Rasche
Title: Vice President
SUNTRUST BANK
By: /s/ Heidi M. Khambatta
---------------------------
Name: Heidi M. Khambatta
Title: Vice President
TRANSAMERICA BUSINESS CAPITAL
CORPORATION
By: /s/ Stephen Goetschius
---------------------------
Name: Stephen Goetschius
Title: Senior Vice President
APEX (IDM) CDO I LTD.
By: David L. Babson & Company Inc.,
as Collateral Manager
By: /s/ David P. Wells
---------------------------
Name: David P. Wells, CFA
Title: Managing Director
BABSON CLO LTD. 2003-1
By: David L. Babson & Company Inc.
as Manager
By: /s/ David P. Wells
---------------------------
Name: David P. Wells, CFA
Title: Managing Director
BILL & MELINDA GATES FOUNDATION
By: David L. Babson & Company Inc.
as Investment Adviser
By: /s/ David P. Wells
---------------------------
Name: David P. Wells, CFA
Title: Managing Director
CHIRON CDO I LTD.
By: /s/ John Randolph Watkins
---------------------------
Name: John Randolph Watkins
Title: Executive Director
DENALI CAPITAL CLO III LTD.
Denali Capital LLC, managing
member of DC Funding Partners,
portfolio manager for DENALI
CAPITAL CLO III, LTD., or an
affiliate
By: /s/ John P. Thacker
---------------------------
Name: John P. Thacker
Title: Chief Credit Officer
EAST WEST BANK
By: /s/ Nancy A. Moore
---------------------------
Name: Nancy A. Moore
Title: Senior Vice President
ELC (CAYMAN) LTD, 2000-1
By: David L. Babson & Company Inc.
as Collateral Manager
By: /s/ David P. Wells
---------------------------
Name: David P. Wells, CFA
Title: Managing Director
ELC CAYMAN LTD. 1999-II
By: David L. Babson & Company Inc.
as Collateral Manager
By: /s/ David P. Wells
---------------------------
Name: David P. Wells, CFA
Title: Managing Director
ELC CAYMAN LTD. 1999-III
By: David L. Babson & Company Inc.
as Collateral Manager
By: /s/ David P. Wells
---------------------------
Name: David P. Wells, CFA
Title: Managing Director
FLAGSHIP CLO 2001-1
By: Flagship Capital Management,
Inc.
By: /s/ Colleen Cunniffe
---------------------------
Name: Colleen Cunniffe
Title: Director
FLAGSHIP CLO II
By: Flagship Capital Management,
Inc.
By: /s/ Colleen Cunniffe
---------------------------
Name: Colleen Cunniffe
Title: Director
FRANKLIN CLO IV, LIMITED
By: /s/ Tyler Chan
---------------------------
Name: Tyler Chan
Title: Vice President
FRANKLIN FLOATING RATE DAILY
ACCESS
By: /s/ Tyler Chan
---------------------------
Name: Tyler Chan
Title: Vice President
FRANKLIN FLOATING RATE MASTER
By: /s/ Tyler Chan
---------------------------
Name: Tyler Chan
Title: Vice President
GENERAL ELECTRIC CAPITAL CORP.
By: /s/ Brian P. Schwinn
---------------------------
Name: Brian P. Schwinn
Title: Duly Authorized Signatory
ING PRIME RATE TRUST
By: Aeltus Investment Management,
Inc. as its investment manager
By: /s/ Brian S. Horton
---------------------------
Name: Brian S. Horton
Title: Vice President
ING SENIOR INCOME FUND
By: Aeltus Investment Management,
Inc. as its investment manager
By: /s/ Brian S. Horton
---------------------------
Name: Brian S. Horton
Title: Vice President
LIBERTY FLOATING RATE ADVANTAGE
FUND
By: Columbia Management Advisors,
Inc. (f/k/a Stein Roe & Farnham
Incorporated), As Advisor
By: /s/
---------------------------
Name:
Title:
MAPLEWOOD (CAYMAN) LIMITED
By: David L. Babson & Company Inc.
under delegated authority from
Massachusetts Mutual Life
Insurance Company as Investment
Manager
By: /s/ David P. Wells
---------------------------
Name: David P. Wells, CFA
Title: Managing Director
MASSACHUSETTS MUTUAL LIFE
INSURANCE CO.
By: David L. Babson & Company Inc.
as Investment Adviser
By: /s/ David P. Wells
---------------------------
Name: David P. Wells, CFA
Title: Managing Director
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD.
By: ING Investments, LLC
as its investment manager
By: /s/ Brian S. Horton
---------------------------
Name: Brian S. Horton
Title: Vice President
PINEHURST TRADING INC.
By: /s/ Diana M. Himes
---------------------------
Name: Diana M. Himes
Title: Assistant Vice President
PPM-SHADOW CREEK FUNDING LLC
By: /s/ Diana M. Himes
---------------------------
Name: Diana M. Himes
Title: Assistant Vice President
PPM-SPYGLASS FUNDING TRUST
By: /s/ Diana M. Himes
---------------------------
Name: Diana M. Himes
Title: Authorized Agent
SIMSBURY CLO LIMITED
By: David L. Babson & Company Inc.
under delegated authority from
Massachusetts Mutual Life Insurance
Company as Collateral Manager
By: /s/ David P. Wells
---------------------------
Name: David P. Wells, CFA
Title: Managing Director
SRF 2000 INC.
By: /s/ Diana M. Himes
---------------------------
Name: Diana M. Himes
Title: Assistant Vice President
SRF TRADING INC.
By: /s/ Diana M. Himes
---------------------------
Name: Diana M. Himes
Title: Assistant Vice President
STANWICH LOAN FUNDING LLC
By: /s/ Diana M. Himes
---------------------------
Name: Diana M. Himes
Title: Assistant Vice President
STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY
By: Columbia Management Advisors,
Inc. (f/k/a Stein Roe & Farnham
Incorporated), As Advisor
By: /s/
---------------------------
Name:
Title:
SUFFIELD CLO LIMITED
By: David L. Babson & Company Inc.
as Collateral Manager
By: /s/ David P. Wells
---------------------------
Name: David P. Wells, CFA
Title: Managing Director
TORONTO DOMINION (NEW YORK), INC.
By: /s/ Stacey Malek
---------------------------
Name: Stacey Malek
Title: Vice President
TRUMBULL THC LTD.
By: /s/ Stacey Malek
---------------------------
Name: Stacey Malek
Title: Attorney In Fact