AMENDMENT NO. 3 TO
SECURITY AGREEMENT
This Amendment No. 3 to Security Agreement (this "Amendment") dated as
of June 11, 2004 is made by and among JARDEN CORPORATION, a Delaware corporation
(the "Borrower"), and EACH OF THE UNDERSIGNED SUBSIDIARIES OF THE BORROWER (each
a "Grantor" and collectively with the Borrower, the "Grantors"), and CANADIAN
IMPERIAL BANK OF COMMERCE, 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),
and is made with reference to that certain Security Agreement dated as of April
24, 2002, as amended by that certain Amendment No. 2 to Credit Agreement and
Amendment No. 1 to Security Agreement dated as of September 27, 2002, and that
certain Consolidated Amendment to Guaranty and Security Instruments dated as of
September 2, 2003 (as so amended, the "Security Agreement"). 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, the Administrative Agent, Citicorp North
America, Inc., as Syndication Agent, National City Bank of Indiana and Bank of
America, N.A., as Co-Documentation Agents and the Lenders have agreed to amend
and restate that certain Amended and Restated Credit Agreement dated as of
September 2, 2003, 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 Second Amended and
Restated Credit Agreement dated as of the date hereof by and among the Borrower,
the Administrative Agent, Citicorp North America, Inc., as Syndication Agent and
National City Bank of Indiana and Bank of America, N.A., as Co-Documentation
Agents and the Lenders (as from time to time further amended, modified,
supplemented, restated, or amended and restated, the "Second Amended and
Restated Credit Agreement" or the "Credit Agreement"); and
WHEREAS, each of the Grantors has entered (either initially or by a
Security Joinder Agreement) into the Security Agreement in favor of the
Administrative Agent on behalf of the Lenders pursuant to which each Grantor has
granted a security interest in all of its personal property and assets as
provided in the Security Agreement; and
WHEREAS, the Grantors and the Administrative Agent desire to amend, and
it is necessary to amend, certain provisions of the Security Agreement as set
forth below;
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 SECURITY AGREEMENT
1.1. AMENDMENTS TO SECTION 2: GRANT OF SECURITY INTEREST.
Section 2 of the Security Agreement is hereby amended by
deleting the proviso at the end of such Section in it entirety and substituting
in place thereof the following:
"provided that neither the grant in this Section 2 nor any definition
included in any of subsection (a) through (m) above shall include any
Grantor's interest or power to transfer rights in either of (w) that
certain promissory note dated as of January 24, 2002 by Martin Franklin
in favor of the Borrower in the initial principal amount of $3,282,000,
(y) that certain promissory note dated as of January 24, 2002 by Ian
Ashken in favor of the Borrower in the initial principal amount of
$1,641,000 (collectively, the 'Manager Notes'), (x) any license issued
by any Governmental Authority or Gaming Authority to the extent the
grant of a security interest in such license is not permitted by, or is
prohibited by applicable Laws, or any interest in a license issued by
any Governmental Authority or Gaming Authority to the extent the grant
of a security interest in any such interest in a license is not
permitted by, or is prohibited by applicable Laws (collectively,
'Governmental Licenses'), or (z) any slot machine to the extent the
grant of a security interest in such slot machine is not permitted by,
or is prohibited by applicable Laws, or any interest in a slot machine
issued by any Governmental Authority or Gaming Authority to the extent
the grant of a security interest in any such interest in a license is
not permitted by, or is prohibited by applicable Laws. All of the
property and interests in property described in subsections (a) through
(m), but subject to the immediately preceding proviso relating to the
Manager Notes and the Governmental Licenses, are herein collectively
referred to as the 'Collateral.'"
1.2. AMENDMENTS TO SECTION 7: STATUS OF GRANTORS AND COLLATERAL
GENERALLY.
Section 7(d) of the Security Agreement is hereby amended by
(i) deleting the "and" at the end of clause (y) of such Section, and (ii) adding
the following new clauses (z) and (aa) at the end of such Section:
", (z) for the grant of any security interest in an ownership interest
in a gaming licensee (including, but not limited to a gaming license,
suppliers license, and key person business entity occupational
license), for which approval or consent is required by the applicable
Gaming Authority, and (aa) the limitations and requirements specified
on Schedule 7(d) with respect to the Governmental Licenses set forth
thereon, which schedule may be supplemented from time to time by the
Borrower with the consent of the Administrative Agent".
1.3. AMENDMENTS TO SECTION 11: RIGHTS AND REMEDIES UPON EVENT OF
DEFAULT.
Section 11 of the Security Agreement is hereby amended by
adding the following new paragraph at the end of such Section:
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"Provided, however, that notwithstanding the foregoing, any
rights and remedies upon event of default granted under this section
with respect to any pledge, hypothecation of, or grant of any security
interest in an ownership interest of a gaming licensee are subject to
the additional requirement that no such ownership interest may be
transferred in any way pursuant to any pledge, hypothecation or
security interest without satisfying the requirements of the applicable
Gaming Authority."
1.4. ADDITION OF SCHEDULE 7(D).
The Security Agreement is hereby amended by adding a new
Schedule 7(d) in the form of Schedule 7(d) to this Amendment.
2. REPRESENTATIONS AND WARRANTIES OF GRANTORS. In order to induce the Secured
Parties to enter into this Amendment and thereby amend the Security Agreement in
the manner provided herein, each Grantor represents and warrants to Secured
Party that the following statements are true, correct and complete:
2.1. CORPORATE POWER AND AUTHORITY. Each Grantor has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Security
Agreement as amended by this Amendment (as so amended, the "AMENDED AGREEMENT").
2.2. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of each Grantor.
2.3. NO CONFLICT. The execution and delivery by each Grantor of this
Amendment and the performance by each Grantor of the Amended Agreement do not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to each Grantor or any of its Subsidiaries, the
Certificate or Articles of Incorporation or Bylaws of each Grantor or any of its
Subsidiaries or any order, judgment or decree of any court or other agency of
government binding on each Grantor or any of its Subsidiaries; (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of each Grantor or any of its
Subsidiaries; (iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of each Grantor or any of its Subsidiaries;
or (iv) require any approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of each Grantor or any of its
Subsidiaries.
2.4. GOVERNMENTAL CONSENTS. Except as set forth on Schedule 7(d), the
execution and delivery by each Grantor of this Amendment and the performance by
each Grantor of the Amended Agreement do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body.
2.5. BINDING OBLIGATION. This Amendment and the Amended Agreement,
together, are the legal, valid and binding obligation of each Grantor,
enforceable against it in accordance with their terms, except as enforcement may
be limited by bankruptcy, insolvency,
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reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles, and any instrument or agreement
required hereunder or by the Amended Agreement, in each case, when executed and
delivered, will be similarly valid, binding and enforceable.
2.6. ABSENCE OF DEFAULT. After giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing.
3. REFERENCE TO AND EFFECT ON THE SECURITY AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
3.1. On and after the Effective Date, each reference in the Security
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Security Agreement, and each reference in the other Loan
Documents or other any other documents entered pursuant to the Security
Agreement to the "Security Agreement", "thereunder", "thereof" or words of like
import referring to the Security Agreement shall mean and be a reference to the
Amended Agreement.
3.2. Except as specifically amended by this Amendment, the Security
Agreement and the other documents entered pursuant to the Security Agreement
shall remain in full force and effect and are hereby ratified and confirmed.
3.3. The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any provision
of, or operate as a waiver of any right, power or remedy.
4. COUNTERPARTS; EFFECTIVENESS. 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. This Amendment shall become effective as of the
Effective Date of the Second Amended and Restated Credit Agreement (the
"EFFECTIVE DATE") upon the execution of a counterpart hereof by each Grantor and
the Administrative Agent for the Secured Parties and receipt by each Grantor and
the Administrative Agent for the Secured Parties of written or telephonic
notification of such execution and authorization of delivery thereof.
5. 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.
6. APPLICATION OF GAMING REGULATIONS. This Amendment and the Security Agreement
are subject to Gaming Laws applicable to the Borrower and its Subsidiaries with
respect to Gaming Authorizations that the Borrower and its Subsidiaries are
required to hold in connection with their respective businesses. Without
limiting the foregoing, each of the Lenders and the Secured Parties acknowledges
that (i) it is subject to being called forward by the Gaming Authorities, in
their discretion, for licensing or a finding of suitability or to file or
provide other information, and (ii) all rights, remedies and powers in or under
this Amendment and Security Agreement may be exercised only to the extent that
the exercise thereof does not violate any applicable provisions of Gaming Laws
applicable to the Borrower and its Subsidiaries with respect to
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Gaming Authorizations that the Borrower and its Subsidiaries are required to
hold in connection with their respective businesses and only to the extent that
required approvals (including prior approvals) are obtained from the requisite
Gaming Authorities. Each of the Lenders and the Secured Parties agrees to
cooperate with the Gaming Authorities in connection with the provision of such
documents and other information as may be requested by such Gaming Authorities
relating to the Borrower and its Subsidiaries or to this Amendment and the
Security Agreement.
7. 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.
8. 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.
9. EXPENSES. The Borrower agrees to pay to the Administrative Agent all
reasonable out-of-pocket expenses incurred or arising in connection with the
negotiation and preparation of this Agreement.
[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
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Name: Desiree DeStefano
Title: Senior Vice President
GRANTORS:
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
LOEW-CORNELL, INC., a New Jersey
corporation
JARDEN ACQUISITION I, 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, an
Indiana corporation, its general
partner
By: /s/ Desiree DeStefano
------------------------------
Name: Desiree DeStefano
Title: Vice President
ADMINISTRATIVE AGENT:
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CANADIAN IMPERIAL BANK OF COMMERCE, AS
ADMINISTRATIVE AGENT FOR THE SECURED
PARTIES
By: /s/ Dean J. Decker
----------------------------------
Dean J. Decker
Managing Director
CIBC World Markets Corp., AS AGENT