AMENDMENT NO. 2 TO AMENDED & RESTATED CREDIT AGREEMENT
This Amendment No. 2 to Amended & Restated Credit Agreement (this
"Agreement") dated as of December 3, 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 amended by Amendment No. 1 to Amended & Restated Credit
Agreement dated as of September 25, 2003 (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 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) The definition of "Consolidated EBITDA" is hereby deleted in its
entirety and replaced with the following:
"Consolidated EBITDA" means, for any period, for the Borrower and
its Subsidiaries, an amount equal to the sum of (a) Consolidated Net
Income (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), (b) Consolidated Interest Charges, (c) the amount of
taxes, based
on or measured by income, used or included in determining such
Consolidated Net Income, (d) the amount of depreciation and
amortization expense deducted in determining such Consolidated Net
Income, (e) the amount of nonrecurring expenses incurred after the
Original Closing Date and during such period not to exceed $10,000,000,
to the extent such net expenses are deducted in determining
Consolidated Net Income, (f) up to $5,000,000 of net non-recurring
expenses incurred during such period in connection with (but not after)
the consummation of the Lehigh Acquisition, to the extent such net
expenses are deducted during such period in determining Consolidated
Net Income, (g) if Scheduled Acquisition B has occurred, up to
$10,000,000 of net non-recurring expenses incurred during such period
in connection with (but not after) the consummation of the Scheduled
Acquisition B, to the extent such net expenses are deducted during such
period in determining Consolidated Net Income, and (h) up to
$25,000,000 in any Four-Quarter Period in non-cash compensation
expenses related to the issuance or vesting, or lapsing of restrictions
with respect to the exercise, of restricted stock or stock options to
employees of the Borrower to the extent such expenses are deducted
during such period in determining Consolidated Net Income, all
determined on a consolidated basis in accordance with GAAP, subject (in
connection with the calculation of the Senior Leverage Ratio and the
Total Leverage Ratio only) to Acquisition Adjustments.
(b) The definition of "Non-Exempt Net Proceeds" in Article I of the
Credit Agreement is hereby deleted in its entirety.
(c) 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 the Permitted Equity Issuance and Equity Securities issued to the
Borrower or a Guarantor) in an amount equal to fifty percent (50%) of
the Net Proceeds of each such issuance of Equity Securities of the
Borrower or any Subsidiary. Each prepayment provided for in this
Section 2.06(e)(ii) will be made within ten (10) Business Days of
receipt of such proceeds 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.
(d) Exhibit D to the Credit Agreement is hereby deleted in its entirety
and replaced by the revised Exhibit D set forth as Annex I to this Agreement.
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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;
(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
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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.
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
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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/ Simon Wood
--------------------------------------------
Name: Simon Wood
------------------------------------------
Title: Vice President of Finance and Controller
-----------------------------------------
Amendment No. 2
Signature Page 1
GUARANTORS:
HEARTHMARK, LLC, a Delaware limited
liability company
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, LLC, a Delaware limited liability
company
By: /s/ Simon Wood
-----------------------------------------
Name: Simon Wood
---------------------------------------
Title: Vice President
--------------------------------------
ALLTRISTA ZINC PRODUCTS, L.P., an Indiana
limited partnership
By: Alltrista Newco Corporation, a Indiana
corporation, its general partner
By: /s/ Simon Wood
--------------------------------
Name: Simon Wood
------------------------------
Title: Vice President
-----------------------------
Amendment No. 2
Signature Page 2
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., AS ADMINISTRATIVE
AGENT
By: /s/ Tim Cassidy
-----------------------------------------
Name: Tim Cassidy
--------------------------------------
Title: Vice President
-------------------------------------
Amendment No. 2
Signature Page 3
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
--------------------------------------
Amendment No. 2
Signature Page 4
CIBC INC.
By: /s/ Dean J. Decker
-----------------------------------------
Name: Dean J. Decker
---------------------------------------
Title: Managing Director
--------------------------------------
Amendment No. 2
Signature Page 5
FLEET NATIONAL BANK
By: /s/ W. Lincoln Schoff, Jr.
-----------------------------------------
Name: W. Lincoln Schoff, Jr.
---------------------------------------
Title: Senior Vice President
--------------------------------------
Amendment No. 2
Signature Page 6
HARRIS TRUST AND SAVINGS BANK
By: /s/ Thad D. Rasche
-----------------------------------------
Name: Thad D. Rasche
---------------------------------------
Title: Vice President
--------------------------------------
Amendment No. 2
Signature Page 7
NATIONAL CITY BANK OF INDIANA
By: /s/ David G. McNeely
-----------------------------------------
Name: David G. McNeely
---------------------------------------
Title: Assistant Vice President
--------------------------------------
Amendment No. 2
Signature Page 8
SUNTRUST BANK
By: /s/ Heidi M. Khambatta
-----------------------------------------
Name: Heidi M. Khambatta
---------------------------------------
Title: Vice President
--------------------------------------
Amendment No. 2
Signature Page 9
THE BANK OF NEW YORK
By: /s/ Maurice Campbell
-----------------------------------------
Name: Maurice Campbell
---------------------------------------
Title: Vice President
--------------------------------------
Amendment No. 2
Signature Page 10
TRANSAMERICA BUSINESS CAPITAL CORPORATION
By: /s/ Steve Goetschius
-----------------------------------------
Name: Steve Goetschius
---------------------------------------
Title: Senior Vice President
--------------------------------------
Amendment No. 2
Signature Page 11
APEX (IDM) CDO I LTD.
BY: DAVID L. BABSON & COMPANY INC. AS
COLLATERAL MANAGER
By: /s/ David P. Wells
-------------------------------------
Name: David P. Wells
-----------------------------------
Title: Managing Director
----------------------------------
Amendment No. 2
Signature Page 15
BABSON CLO LTD. 2003-1
BY: DAVID L. BABSON & COMPANY INC. AS
COLLATERAL MANAGER
By: /s/ David P. Wells
-------------------------------------
Name: David P. Wells
-----------------------------------
Title: Managing Director
----------------------------------
Amendment No. 2
Signature Page 16
BILL & MELINDA GATES FOUNDATION
BY: DAVID L. BABSON & COMPANY INC., AS
COLLATERAL MANAGER
By: /s/ David P. Wells
-------------------------------------
Name: David P. Wells
-----------------------------------
Title: Managing Director
----------------------------------
Amendment No. 2
Signature Page 18
COLUMBUS FLOATING RATE ADVANTAGE FUND
By: /s/ Kathleen A. Zarn
-----------------------------------------
Name: Kathleen A. Zarn
---------------------------------------
Title: Senior Vice President
--------------------------------------
Amendment No. 2
Signature Page 31
COLUMBUS FLOATING RATE LIMITED
By: /s/ Kathleen A. Zarn
-----------------------------------------
Name: Kathleen A. Zarn
---------------------------------------
Title: Senior Vice President
--------------------------------------
Amendment No. 2
Signature Page 32
DENALI CAPITAL CLO III LTD.
By: /s/ John P. Thacker
-----------------------------------------
Name: John P. Thacker
---------------------------------------
Title: Chief Credit Officer
--------------------------------------
Amendment No. 2
Signature Page 38
EAST WEST BANK
By: /s/ Nancy A. Moore
-----------------------------------------
Name: Nancy A. Moore
---------------------------------------
Title: Senior Vice President
--------------------------------------
Amendment No. 2
Signature Page 39
ELC (CAYMAN) LTD. 2000-1
BY: DAVID L. BABSON & COMPANY INC., AS
COLLATERAL MANAGER
By: /s/ David P. Wells
-------------------------------------
Name: David P. Wells
-----------------------------------
Title: Managing Director
----------------------------------
Amendment No. 2
Signature Page 40
ELC CAYMAN LTD. 1999-II
BY: DAVID L. BABSON & COMPANY INC., AS
COLLATERAL MANAGER
By: /s/ David P. Wells
-------------------------------------
Name: David P. Wells
-----------------------------------
Title: Managing Director
----------------------------------
Amendment No. 2
Signature Page 41
ELC CAYMAN LTD. 1999-III
BY: DAVID L. BABSON & COMPANY INC., AS
COLLATERAL MANAGER
By: /s/ David P. Wells
-------------------------------------
Name: David P. Wells
-----------------------------------
Title: Managing Director
----------------------------------
Amendment No. 2
Signature Page 42
FRANKLIN CLO IV, LIMITED
By: /s/ Tyler Chan
-----------------------------------------
Name: Tyler Chan
---------------------------------------
Title: Vice President
--------------------------------------
Amendment No. 2
Signature Page 46
FRANKLIN FLOATING RATE DAILY ACCESS
By: /s/ Tyler Chan
-----------------------------------------
Name: Tyler Chan
---------------------------------------
Title: Asst. Vice President
--------------------------------------
Amendment No. 2
Signature Page 47
FRANKLIN FLOATING RATE MASTER
By: /s/ Tyler Chan
-----------------------------------------
Name: Tyler Chan
---------------------------------------
Title: Asst. Vice President
--------------------------------------
Amendment No. 2
Signature Page 48
LANDMARK III CDO LIMITED
By: Aladdin Capital Management
-----------------------------------------
By: /s/ Thomas Eggenschwiler
-----------------------------------------
Name: Thomas Eggenschwiler
---------------------------------------
Title: Director
--------------------------------------
Amendment No. 2
Signature Page 56
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
-----------------------------------
Title: Managing Director
----------------------------------
Amendment No. 2
Signature Page 60
MASSACHUSETTS MUTUAL LIFE INSURANCE CO.
BY: DAVID L. BABSON & COMPANY INC., AS
INVESTMENT MANAGER
By: /s/ David P. Wells
-------------------------------------
Name: David P. Wells
-----------------------------------
Title: Managing Director
----------------------------------
Amendment No. 2
Signature Page 61
PINEHURST TRADING INC.
By: /s/ Ann E. Morris
-----------------------------------------
Name: Ann E. Morris
---------------------------------------
Title: Asst. Vice President
--------------------------------------
Amendment No. 2
Signature Page 69
PPM-SHADOW CREEK FUNDING LLC
By: /s/ Ann E. Morris
-----------------------------------------
Name: Ann E. Morris
---------------------------------------
Title: Asst. Vice President
--------------------------------------
Amendment No. 2
Signature Page 70
PPM-SPYGLASS FUNDING TRUST
By: /s/ Ann E. Morris
-----------------------------------------
Name: Ann E. Morris
---------------------------------------
Title: Authorized Agent
--------------------------------------
Amendment No. 2
Signature Page 71
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
-----------------------------------
Title: Managing Director
----------------------------------
Amendment No. 2
Signature Page 74
SRF 2000 INC.
By: /s/ Ann E. Morris
-----------------------------------------
Name: Ann E. Morris
---------------------------------------
Title: Asst. Vice President
--------------------------------------
Amendment No. 2
Signature Page 75
SRF TRADING INC.
By: /s/ Ann E. Morris
-----------------------------------------
Name: Ann E. Morris
---------------------------------------
Title: Asst. Vice President
--------------------------------------
Amendment No. 2
Signature Page 76
SUFFIELD CLO LIMITED
BY: DAVID L. BABSON & COMPANY INC. AS
COLLATERAL MANAGER
By: /s/ David P. Wells
-------------------------------------
Name: David P. Wells
-----------------------------------
Title: Managing Director
----------------------------------
Amendment No. 2
Signature Page 80
VENTURE CDO 2002 LTD.
By: /s/
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Amendment No. 2
Signature Page 86
VENTURE II CDO 2002, LIMITED
By: /s/
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Amendment No. 2
Signature Page 87