EXHIBIT 10.1
011602-0089-08380-NY02.2122898.4
EXECUTION COPY
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CREDIT AGREEMENT
BETWEEN
WKI HOLDING COMPANY, INC.,
AS BORROWER
AND
BORDEN, INC.,
AS LENDER
DATED AS OF SEPTEMBER 25, 2001
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TABLE OF CONTENTS
PAGE
SECTION 1. Definitions 1
SECTION 2. Amount and Terms of Credit 3
2.1 Facility 3
2.2 Procedure for Borrowing 3
2.3 Minimum Amount of Each Borrowing; Maximum Number of Borrowings 4
2.4 Repayment of Loans; Evidence of Debt 4
2.5 [Intentionally Omitted] 4
2.6 Interest 4
2.7 [Intentionally Omitted] 5
2.8 Increased Costs 5
2.9 Voluntary Reduction of Facility Amount ERROR! BOOKMARK NOT DEFINED.
2.10 Mandatory Termination of Facility 5
2.11 Optional Termination of Facility by Lender 5
SECTION 3. Payments. 5
3.1 Voluntary Payments 5
3.2 Method and Place of Payment 5
3.3 Net Payments 6
3.4 Computations of Interest 7
SECTION 4. Conditions Precedent to Closing. 7
4.1 Credit Documents 7
4.2 Closing Certificate 7
SECTION 5. Conditions Precedent to each Loan 7
5.1 No Default; Representations and Warranties 7
5.2 Notice of Borrowing 7
SECTION 6. Representations, Warranties and Agreements 8
SECTION 7. Affirmative Covenants 8
7.1 Additional Guarantors 8
SECTION 8. Negative Covenants 8
SECTION 9. Events of Default 9
SECTION 10. Miscellaneous. 9
10.1 Amendments and Waivers 9
10.2 Notices 9
10.3 No Waiver; Cumulative Remedies 10
10.4 Survival of Representations and Warranties 10
10.5 Payment of Expenses and Taxes 10
10.6 Successors and Assigns; Participations and Assignments 11
10.7 Incorporation by Reference 12
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10.8 Set-off 12
10.9 Counterparts 12
10.10 Severability 13
10.11 Integration 13
10.12 GOVERNING LAW 13
10.13 Submission to Jurisdiction, Waivers 13
10.14 Acknowledgments 14
10.15 WAIVERS OF JURY TRIAL 14
SCHEDULES
Schedule 1.1 Facility Amount
EXHIBITS
Exhibit A Form of Guarantee
ii
CREDIT AGREEMENT dated as of September 19, 2001, between WKI HOLDING
COMPANY, INC, a Delaware corporation (the "Borrower"), and BORDEN, INC., a New
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Jersey corporation (the "Lender").
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W I T N E S S E T H :
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The parties hereto agree as follows:
SECTION 1. Definitions
. Capitalized terms used herein but not defined herein shall have the
meaning assigned thereto in the WKI Credit Agreement unless otherwise indicated.
As used herein, the following terms shall have the meanings specified in this
Section 1 unless the context otherwise requires (it being understood that
defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular):
"ABR" shall mean, for any day, a rate per annum (rounded upwards, if
---
necessary, to the next 1/ 16 of I%) equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Base CD Rate in effect on such day plus
1% and (c) the Federal Funds Effective Rate in effect on such day plus of 1
%. Any change in the ABR due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be effective as
of the opening of business on the effective day of such change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"Agreement" shall mean this Credit Agreement, as the same may be
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amended, supplemented or otherwise modified from time to time.
"Applicable Margin" shall mean 3.00%.
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"Base CD Rate" shall mean the sum of (a) the product of (i) the
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Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which
is one and the denominator of which is one minus the C/D Reserve Percentage
and (b) the C/D Assessment Rate.
"Borden Credit Agreement" shall mean the Credit Agreement, amended and
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restated as of July 14, 1997, among Borden, Inc., the other parties thereto
and Citibank, N.A., as Administrative Agent, as amended from time to time.
"Borrower" shall have the meaning provided in the preamble to this
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Agreement.
"Borrowing" shall mean the incurrence of a Loan on a given date.
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"C/D Assessment Rate" shall mean for any day as applied to any Loan,
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the annual assessment rate in effect on such day that is payable by a
member of the Bank Insurance Fund maintained by the Federal Deposit
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Insurance Corporation or any successor thereto (the "FDIC") classified as
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well-capitalized and within supervisory subgroup "B" (or a comparable
successor assessment risk classification) within the meaning of 12 C.F.R.
Sec. 327.4(a) (or any successor provision) to the FDIC for the FDIC's
insuring time deposits at offices of such institution in the United States.
"C/D Reserve Percentage" shall mean for any day as applied to any
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Loan, the percentage (expressed as a decimal) that is in effect on such
day, as prescribed by the Board, for determining the reserve requirement
for a Depositary Institution (as defined in Regulation D of the Board) in
respect of new non-personal time deposits in Dollars having a maturity that
is 30 days or more.
"Chase" shall mean The Chase Manhattan Bank, a New York banking
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corporation.
"Credit Documents" shall mean this Agreement, the Guarantee and any
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promissory notes or other documents or instruments issued or delivered by
the Borrower hereunder from time to time.
"Credit Party" shall mean each of the Borrower and the Guarantors.
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"Facility" shall mean the agreement of the Lender pursuant to Section
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2.1.
"Facility Amount" shall mean, with respect to the Lender, the amount
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set forth opposite the Lender's name on Schedule 1.1.
"Facility Termination Date" shall mean the earliest of the Scheduled
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Facility Termination Date, the date on which the Lender terminates the
Facility in accordance with Section 2.11 and the date on which the Facility
shall otherwise terminate in accordance with this Agreement.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
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average of the per annum rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank
of New York.
"Guarantee" shall mean and include each Guarantee, in the form of
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Exhibit A, made by each Guarantor in favor of the Lender, as the same may
be amended, supplemented or otherwise modified from time to time.
"Increased Costs" shall mean, with respect to any Loan, any additional
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costs to the Lender with respect to any borrowing (under the Borden Credit
Agreement or otherwise) of the funds used to make and maintain such Loan,
other than any regular interest and fees charged with respect to such
borrowing, including increased costs charged to the Lender by the
applicable lenders and breakage costs, if any, in respect of the relevant
loans.
"Lender" shall have the meaning provided in the preamble to this
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Agreement.
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"Loan" shall have the meaning provided in Section 2.1.
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"Minimum Borrowing Amount" shall mean, with respect to any Loan,
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$100,000.
"Non-Excluded Taxes" shall have the meaning provided in Section
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3.3(a).
"Obligations" shall mean all monetary amounts of every type or
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description at any time owing to the Lender pursuant to the terms of this
Agreement or any other Credit Document.
"Participant" shall have the meaning provided in Section 10.6(ii).
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"Scheduled Facility Termination Date" shall mean October 25, 2001.
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"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
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market rate, expressed as a per annum rate, for three-month certificates of
deposit reported as being in effect on such day (or, if such day shall not
be a Business Day, the next preceding Business Day) by the Board through
the public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day).
"WKI Credit Agreement" shall mean the Amended and Restated Credit
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Agreement, dated as of April 12, 2001, among WKI Holding Company, Inc. (as
the successor to CCPC Holding Company, Inc.), the several lenders from time
to time party thereto, Chase, as Administrative Agent, Citibank, N.A., as
Syndication Agent, and Bankers Trust Company, as Documentation Agent, as
amended through the date hereof and as in effect on the date hereof.
SECTION 2. Amount and Terms of Credit
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2.1 Facility
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. Subject to and upon the terms and conditions herein set forth, the
Lender may, at the Lender's election in its sole discretion, make a loan or
loans (each, a "Loan" and, collectively, the "Loans") to the Borrower from time
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to time on and after the effectiveness hereof and prior to the Facility
Termination Date. Such Loans, if made, may be prepaid in accordance with the
provisions hereof and the outstanding amount of which shall not exceed at any
time the Facility Amount. The Loans shall be repaid in full on the Facility
Termination Date.
2.2 Procedure for Borrowing
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. (a) Whenever the Borrower desires to request Loans hereunder, it
shall give the Lender written notice prior to 10:30 A.M. (New York time) on the
Business Day on which the Borrowing is requested to occur (or telephonic notice
promptly confirmed in writing) of each Borrowing. Each such notice shall be
irrevocable and shall specify the aggregate principal amount of the Loans
requested to be made pursuant to such Borrowing and the date of Borrowing (which
shall be a Business Day).
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(b) Without in any way limiting the obligation of the Borrower to confirm
in writing any notice it may give hereunder by telephone, the Lender may act
prior to receipt of written confirmation without liability upon the basis of
such telephonic notice believed by the Lender in good faith to be from an
Authorized Officer of the Borrower. In each such case the Borrower hereby waives
the right to dispute the Lender's record of the terms of any such telephonic
notice.
2.3 Minimum Amount of Each Borrowing; Maximum Number of Borrowings
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. The principal amount of each Borrowing of Loans shall be in a
multiple of $100,000 and shall not be less than the Minimum Borrowing Amount.
2.4 Repayment of Loans; Evidence of Debt
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. (a) The Borrower shall repay to the Lender, on the Facility
Termination Date, the then-unpaid amount of the Loans.
(b) The Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to the Lender
resulting from each Loan, including the amounts of principal and interest
payable and paid to the Lender from time to time under this Agreement.
(c) The entries made in the accounts maintained pursuant to paragraph
(b) of this Section 2.4 shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded; provided, however, that the failure of the Lender to
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maintain such accounts, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower in accordance with the terms of this Agreement.
2.5 [Intentionally Omitted]
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.
2.6 Interest
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. (a) The unpaid principal amount of each Loan shall bear interest
from the date of the Borrowing thereof until maturity (whether by acceleration
or otherwise) at a rate per annum that shall at all times be the Applicable
Margin in effect from time to time plus the ABR in effect from time to time.
(b) If all or a portion of (i) the principal amount of any Loan or (ii)
any interest payable thereon shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum that is the rate that would otherwise be applicable thereto
plus 2% from and including the date of such non-payment to but excluding the
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date on which such amount is paid in full (after as well as before judgment).
(c) Interest on each Loan shall accrue from and including the date of
any Borrowing to but excluding the date of any repayment thereof and shall be
payable monthly in arrears on the last day of each month, on any prepayment (on
the amount prepaid), at maturity (whether by acceleration or otherwise) and,
after such maturity, on demand.
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(d) All computations of interest hereunder shall be made in accordance
with Section 3.4.
2.7 [Intentionally Omitted]
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.
2.8 Increased Costs
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. If the Lender at any time reasonably determines that it has suffered
Increased Costs, the Lender shall so notify the Borrower. In such case, the
Borrower shall pay to the Lender, promptly after receipt of written demand
therefor, an amount equal to such Increased Costs (such amount to be calculated
by the Lender and to be conclusive and binding on the Borrower absent manifest
error).
2.9 [Intentionally Omitted]
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.
2.10 Mandatory Termination of Facility
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. The Facility shall terminate at 5:00 P.M. (New York time) on the
Facility Termination Date.
2.11 Optional Termination of Facility by Lender
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. The Lender shall have the option, in its sole discretion on demand,
to terminate the Facility on any Business Day prior to the Scheduled Facility
Termination Date.
SECTION 3. Payments.
3.1 Voluntary Payments
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. The Borrower shall have the right to prepay the Loans, without
premium or penalty, in whole or in part from time to time on the following terms
and conditions: (a) the Borrower shall give the Lender written notice (or
telephonic notice promptly confirmed in writing) of its intent to make such
prepayment and the amount of such prepayment, which notice shall be given by the
Borrower no later than 10:00 A.M. (New York time) on the date of such
prepayment; and (b) each partial prepayment shall be in a multiple of $100,000
and in an aggregate principal amount of at least $100,000.
3.2 Method and Place of Payment
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. (a) Except as otherwise specifically provided herein, all payments
under this Agreement shall be made to the Lender, without set-off, counterclaim
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or deduction of any kind, not later than 12:00 Noon (New York time) on the date
when due and shall be made in immediately available funds and in lawful money of
the United States of America, in accordance with instructions specified by the
Lender to the Borrower from time to time.
(b) Any payments under this Agreement that are made later than 2:00 P.M.
(New York time) shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be
due on a day that is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
3.3 Net Payments
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. (a) All payments made by the Borrower under this Agreement shall be
made free and clear of, and without deduction or withholding for or on account
of, any current or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding (i) net
income taxes and franchise taxes (imposed in lieu of net income taxes) imposed
on the Lender and (ii) any taxes imposed on the Lender as a result of a current
or former connection between the Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable to
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the Lender hereunder, the amounts so payable to the Lender shall be increased to
the extent necessary to yield to the Lender (after payment of all Non-Excluded
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement. Whenever any Non-Excluded Taxes are
payable by the Borrower, as promptly as possible thereafter the Borrower shall
send to the Lender a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Lender the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lender for any incremental taxes,
interest, costs or penalties that may become payable by the Lender as a result
of any such failure. The agreements in this Section 3.3(a) shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
(b) If the Borrower determines in good faith that a reasonable basis
exists for contesting any taxes for which indemnification has been demanded
hereunder, the Lender shall cooperate with the Borrower in challenging such
taxes at the Borrower's expense if so requested by the Borrower. If the Lender
receives a refund of a tax for which a payment has been made by the Borrower
pursuant to this Agreement, which refund in the good faith judgment of the
Lender is attributable to such payment made by the Borrower, then the Lender
shall reimburse the Borrower for such amount as the Lender determines to be the
proportion of the refund as will leave it, after such reimbursement, in no
better or worse position than it would have been in if the payment had not been
required. The Lender shall claim any refund that it determines is available to
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it, unless it concludes in its reasonable discretion that it would be adversely
affected by making such a claim. The Lender shall not be obliged to disclose any
information regarding its tax affairs or computations to the Borrower in
connection with this paragraph (b) or any other provision of this Section 3.3.
3.4 Computations of Interest
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. Except as provided in the next succeeding sentence, interest on
Loans shall be calculated on the basis of a 360-day year for the actual days
elapsed. Interest on Loans in respect of which the rate of interest is
calculated on the basis of the Prime Rate and interest on overdue interest shall
be calculated on the basis of a 365- (or 366-, as the case may be) day year for
the actual days elapsed.
SECTION 4. Conditions Precedent to Closing.
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The effectiveness of this Agreement is subject to the satisfaction of
the following conditions precedent:
4.1 Credit Documents
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. The Lender shall have received this Agreement, executed and
delivered by a duly authorized officer of the Borrower, and the Guarantee,
executed and delivered by each Guarantor.
4.2 Closing Certificate
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. The Lender shall have received a Closing Certificate of the Borrower
in the form previously agreed between the Lender and the Borrower.
SECTION 5. Conditions Precedent to each Loan
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. The agreement of the Lender to make any Loan requested to be made by
it on any date (including on the date of the effectiveness hereof) is subject to
the satisfaction of the following conditions precedent:
5.1 No Default; Representations and Warranties
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. At the time of each Loan and also after giving effect thereto (a)
there shall exist no Default or Event of Default and (b) all representations and
warranties made by any Credit Party contained herein or in the other Credit
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of
the date of such Loan (except where such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects as of such
earlier date).
5.2 Notice of Borrowing
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. The Lender shall have received a notice of the relevant Borrowing
(whether in writing or by telephone) meeting the requirements of Section 2.2.
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For the avoidance of doubt, notwithstanding the satisfaction of the foregoing
conditions, the Lender shall have not obligation to make any Loan hereunder
except as it shall elect in accordance with Section 2.1. The acceptance of the
benefits of each Loan shall constitute a representation and warranty by each
Credit Party to the Lender that all the applicable conditions specified above
exist as of that time.
SECTION 6. Representations, Warranties and Agreements
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. In order to induce the Lender to enter into this Agreement and to
make and continue the Loans, the Borrower makes, to and for the benefit of the
Lender, the representations and warranties and agreements set forth in Section 8
of the WKI Credit Agreement, all of which shall survive the execution and
delivery of this Agreement and the making of the Loans, and which are
incorporated by reference herein as if fully set forth herein.
SECTION 7. Affirmative Covenants
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. On the effectiveness hereof and thereafter, for so long as this
Agreement is in effect and until the Loans, together with interest and all other
Obligations incurred hereunder, are paid in full and the Commitment is
terminated, the Borrower hereby makes, with and for the benefit of the Lender,
the covenants and agreements set forth in Section 9 of the WKI Credit Agreement
(other than the covenants and agreements set forth in Sections 9.1(j), 9.11,
9.12 and 9.13), which covenants and agreements are incorporated by reference
herein as if fully set forth herein, including the agreements therein to deliver
to the Lender all reports and notices as set forth therein, and makes the
following additional covenants:
7.1 Additional Guarantors
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. Except with respect to any Subsidiary that is not required to become
a "Guarantor" as defined in and pursuant to the WKI Credit Agreement, the
Borrower will cause (a) any direct or indirect Domestic Subsidiary (other than
any Unrestricted Subsidiary or Acquisition Subsidiary) formed or otherwise
purchased or acquired after the date hereof and (b) any Subsidiary (other than
any Unrestricted Subsidiary or Acquisition Subsidiary) that is not a Domestic
Subsidiary on the date hereof but subsequently becomes a Domestic Subsidiary
(other than any Unrestricted Subsidiary or Acquisition Subsidiary), in each case
to execute a supplement to the Guarantee, in form and substance reasonably
satisfactory to the Lender, in order to become a Guarantor under the Guarantee.
SECTION 8. Negative Covenants
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. On the effectiveness hereof and thereafter, for so long as this
Agreement is in effect and until the Loans, together with interest and all other
Obligations incurred hereunder, are paid in full and the Commitment is
terminated, the Borrower hereby makes, with and for the benefit of the Lender,
the covenants and agreements set forth in Section 10 of the WKI Credit
Agreement, which covenants and agreements are incorporated by reference herein
as if fully set forth herein (provided that any requirement in such Section 10
that the Borrower pledge any collateral to the Lender shall be subject to the
Intercreditor Agreement and Junior Security Agreement and Section 9.1 hereof.).
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SECTION 9. Events of Default
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. Upon the occurrence of any of the Events of Default specified in
Section 11 of the WKI Credit Agreement, each of which are incorporated by
reference herein as if fully set forth herein, then, and in any such event, and
at any time thereafter, if any Event of Default shall then be continuing, the
Lender shall, by written notice to the Borrower, take any or all of the
following actions, without prejudice to the rights of the Lender to enforce its
claims against the Borrower, except as otherwise specifically provided for in
this Agreement (provided that, if an Event of Default specified in Section 11.5
of the WKI Credit Agreement shall occur, the result that would occur upon the
giving of written notice by the Lender as specified below shall occur
automatically without the giving of any such notice): declare the Facility to be
terminated and any accrued but unpaid Commitment Fee to be immediately due and
payable and the principal of and any accrued interest in respect of all Loans
and all Obligations owing hereunder and thereunder to be, whereupon the same
shall become, forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
SECTION 10. Miscellaneous.
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10.1 Amendments and Waivers
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. Neither this Agreement nor any other Credit Document, nor any terms
hereof or thereof may be amended, supplemented or modified except pursuant to a
written instrument executed by the Borrower and the Lender.
10.2 Notices
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. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by facsimile
transmission), and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when delivered, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows, or to such other address as may be hereafter
notified by the respective parties hereto:
The Borrower: WKI Holding Company, Inc.
One Pyrex Place
P.O. 1555
Elmira, New York 14902-1555
Attention: General Counsel
Fax: (607) 377-8958
The Lender: Borden, Inc.
180 East Broad Street
Columbus, Ohio 43215
Attention: Ronald Starkman
Fax: (614) 225-4421
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provided that any notice, request or demand to or upon the Lender pursuant to
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Sections 2.3 and 4.1 shall not be effective until received.
10.3 No Waiver; Cumulative Remedies
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. No failure to exercise and no delay in exercising, on the part of
the Lender, any right, remedy, power or privilege hereunder or under the other
Credit Documents shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 Survival of Representations and Warranties
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. All representations and warranties made hereunder, in the other
Credit Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution and
delivery of this Agreement and the making of the Loans hereunder.
10.5 Payment of Expenses and Taxes
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. The Borrower agrees (a) to pay or reimburse the Lender for all its
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Credit Documents and any other documents prepared
in connection herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including, without limitation,
the reasonable fees, disbursements and other charges of counsel to the Lender,
(b) to pay or reimburse the Lender for all its reasonable and documented costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Credit Documents and any such other
documents, including, without limitation, the reasonable fees, disbursements and
other charges of counsel to the Lender, (c) to pay, indemnify, and hold harmless
the Lender from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other similar taxes, if any, that may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Credit Documents and any such other documents, and (d)
to pay, indemnify, and hold harmless the Lender and its directors, officers,
employees, trustees and agents from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever, including, without
limitation, reasonable and documented fees, disbursements and other charges of
counsel, with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Credit Documents and any such other
documents, including, without limitation, any of the foregoing relating to the
violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower, any of its Subsidiaries or any of
the Properties (all the foregoing in this clause (d), collectively, the
"indemnified liabilities"), provided that the Borrower shall have no obligation
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hereunder to the Lender nor any of its directors, officers, employees and agents
with respect to indemnified liabilities arising from (i) the gross negligence or
willful misconduct of the party to be indemnified or (ii) disputes between the
Lender and its transferee(s). The agreements in this Section 10.5 shall survive
repayment of the Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments
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. (i) This Agreement shall be binding upon and inure to the benefit
of the Borrower, the Lender and their respective successors and assigns, except
that the Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Lender.
(ii) The Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in its Facility Amount or its
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Loans or any other interest of the Lender hereunder and under the other Credit
Documents (including to loan derivative counterparties in respect of swaps or
similar arrangements having the practical or economic effect thereof). In the
event of any such sale by the Lender of a participating interest to a
Participant, the Lender's obligations under this Agreement shall remain
unchanged, the Lender shall remain solely responsible for the performance
thereof, the Lender shall remain the holder of the Loans for all purposes under
this Agreement and the other Credit Documents, and the Borrower shall continue
to deal solely and directly with the Lender in connection with the Lender's
rights and obligations under this Agreement and the other Credit Documents. In
no event shall any Participant under any such participation have any right to
approve any amendment or waiver of any provision of any Credit Document, or any
consent to any departure by any Credit Party therefrom, except to the extent
that such amendment, waiver or consent would directly forgive any principal of
the Loans or reduce the stated rate, or forgive any portion, or postpone the
date for the payment, of any interest or fee payable hereunder (other than as a
result of waiving the applicability of any post-default increase in interest
rates), or increase the aggregate amount of the Facility Amount or postpone the
date of the final scheduled maturity of the Loans, in each case to the extent
subject to such participation. The Borrower agrees that if amounts outstanding
under this Agreement are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed
to have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as the Lender under this
Agreement.
(iii) The Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Affiliate (with the consent of the Borrower if any increased costs would result
therefrom) of the Lender or, with the consent of the Borrower (which shall not
be unreasonably withheld, it being understood that, without limitation, the
Borrower shall have the right to withhold its consent to any assignment if, in
order for such assignment to comply with applicable law, the Borrower would be
required to obtain the consent of, or make any filing or registration with, any
Governmental Authority), to a bank or fund that is regularly engaged in making,
purchasing or investing in loans or securities or financial institution (an
"Assignee") all or any part of its rights and obligations under this Agreement
--------
and the other Credit Documents pursuant to an Assignment and Acceptance,
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substantially in the form of Exhibit F to the WKI Credit Agreement, with such
changes thereto as are appropriate for this Credit Agreement, executed by such
Assignee, the Lender (and, in the case of an Assignee that is not an Affiliate
of the Lender, by the Borrower), provided that, except in the case of an
assignment of all of the Lender's interests under this Agreement, unless
otherwise agreed to by the Borrower, no such assignment to an Assignee (other
than any Affiliate of the Lender) shall be in an aggregate principal amount of
less than $500,000. Upon such execution, delivery and acceptance, from and after
the effective date determined pursuant to such Assignment and Acceptance, (x)
the Assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of the Lender
hereunder with a Facility Amount as set forth therein and (y) the assigning
Lender thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of
the assigning Lender's rights and obligations under this Agreement, the
assigning Lender shall cease to be a party hereto). Notwithstanding any
provision of this Agreement to the contrary, the consent of the Borrower shall
not be required for any assignment that occurs at any time when any of the
events described in Section 11.5 of the WKI Credit Agreement shall have occurred
and be continuing with respect to the Borrower. In the case of any assignment by
the Lender pursuant to this paragraph (iii) of less than all of its interest
under this Credit Agreement, the Borrower, the Lender and the Assignee shall
cooperate to make appropriate amendments to this Credit Agreement to make
customary provision for multiple lenders hereunder.
10.7 Incorporation by Reference
----------------------------
. The incorporation by reference herein of provisions of the WKI
Credit Agreement shall be deemed to include any modifications to the terms so
incorporated necessary to reflect the intent of such incorporation, including
deeming references therein to "Administrative Agent" and "Lenders" to be
references to the Lender hereunder, and including, as appropriate, not giving
effect to specific terms of such incorporated provisions inapplicable to the
transactions under this Agreement, including provisions requiring mandatory
prepayments.
10.8 Set-off
-------
. After the occurrence and during the continuance of an Event of
Default, in addition to any rights and remedies of the Lender provided by law,
the Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
setoff and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by the Lender to or for the credit or the account of the Borrower.
The Lender agrees promptly to notify the Borrower after any such set-off and
application made by the Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
10.9 Counterparts
------------
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. This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by facsimile
transmission), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
10.10 Severability
------------
. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.11 Integration
-----------
. This Agreement and the other Credit Documents represent the
agreement of the Borrower and the Lender with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Credit Documents.
10.12 GOVERNING LAW
--------------
. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
10.13 Submission to Jurisdiction, Waivers
--------------------------------------
. The Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States of America for the
Southern District of New York and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 10.2 or at such other address
of which the Lender shall have been notified pursuant thereto;
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(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section 10.13 any special, exemplary, punitive or consequential
damages.
10.14 Acknowledgments
---------------
. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents; and
(b) no joint venture is created hereby or by the other Credit Documents or
otherwise exists by virtue of the transactions contemplated hereby between the
Borrower and the Lender.
10.15 WAIVERS OF JURY TRIAL
------------------------
. THE BORROWER AND THE LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
WKI HOLDING COMPANY, INC.
By
----------------------------------
Name:
Title:
BORDEN, INC.
By
----------------------------------
Name:
Title:
Schedule 1.1 to
Credit Agreement
FACILITY AMOUNT
Borden, Inc. $3,000,000