Exhibit 10.1
AMENDMENT NO. 1
This AMENDMENT NO. 1, dated as of April 11, 2005 (this
"AMENDMENT"), among JARDEN CORPORATION, a Delaware corporation (the "BORROWER")
and Canadian Imperial Bank of Commerce ("CIBC"), as Administrative Agent (as
defined below), on behalf of each Lender executing a Lender Consent (as defined
below) amends certain provisions of the CREDIT AGREEMENT, dated as of January
24, 2005 (as amended, supplemented, restated or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among the Borrower, the Lenders and the L/C
Issuers (each as defined therein) party thereto from time to time, CIBC, as
administrative agent for the Lenders and the L/C Issuers (in such capacity, and
as agent for the Secured Parties under the Collateral Documents, together with
its successors in such capacity, the "ADMINISTRATIVE AGENT"), CITICORP USA,
INC., as syndication agent for the Lenders and the L/C Issuers, and BANK OF
AMERICA, N.A., NATIONAL CITY BANK OF INDIANA and SUNTRUST BANK, as
co-documentation agents for the Lenders and L/C Issuers. Unless otherwise
specified herein, all capitalized terms used in this Amendment shall have the
meanings ascribed to such terms in the Credit Agreement.
W I T N E S S E T H:
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WHEREAS, the Borrower desires to increase the amount of
Indebtedness permitted to be incurred by Foreign Subsidiaries under the Credit
Agreement; and
WHEREAS, certain Foreign Subsidiaries intend to incur
Indebtedness from lenders located in their respective jurisdictions of
organization or formation (each, a "LOCAL CREDIT FACILITY");
WHEREAS, the Borrower desires to guaranty the obligations of
each Foreign Subsidiary under its respective Local Credit Facility and to permit
such guarantees to be guaranteed and secured on a pari passu basis with the
Obligations; and
WHEREAS, in connection with the incurrence of the Local Credit
Facilities, the applicable Foreign Subsidiaries intend to repatriate funds to
the Borrower in the form of one or more dividends (such dividends, collectively,
the "REPATRIATION"); and
WHEREAS, the Borrower and its Subsidiaries expect to realize
tax benefits from the incurrence of the Local Credit Facilities and the
Repatriation; and
WHEREAS, pursuant to Section 2.01(b) (Facilities Increase) of
the Credit Agreement, the Borrower has delivered a Facilities Increase Notice
(the "FIRST FACILITIES INCREASE NOTICE") to the Agents requesting a Facilities
Increase in an aggregate principal amount of $100,000,000 (the "FIRST FACILITIES
Increase"); and
WHEREAS, the Borrower has requested that the Required Lenders
waive the yield maintenance requirements specified in Section 4.04(d) (Yield
Maintenance) of the Credit Agreement applicable to the First Facilities Increase
and the Incremental Term Loans borrowed pursuant thereto; and
WHEREAS, the Borrower desires to increase the maximum number
of Facilities Increases permitted to be made under the Credit Agreement and the
maximum aggregate principal amount of the Incremental Term Loans that may be
borrowed pursuant thereto (inclusive of the First Facilities Increase and the
Incremental Term Loans borrowed pursuant thereto); and
WHEREAS, pursuant to Section 10.01(a) (Amendments, Etc.) of
the Credit Agreement, the consent of the Required Lenders is required to effect
the waiver and amendments set forth herein; and
WHEREAS, each Lender party to a Lender Consent (collectively
constituting the Required Lenders) and the Administrative Agent agree, subject
to the limitations and conditions set forth herein, to waive the yield
maintenance requirements specified in Section 4.04(d) (Yield Maintenance) of the
Credit Agreement applicable to the First Facilities Increase and the Incremental
Term Loans borrowed pursuant thereto and further amend the Credit Agreement as
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Waiver of Yield Maintenance Requirement. Effective as of the
Effective Date (as defined below) and subject to the satisfaction of the
conditions set forth in Section 4 (Conditions to Effectiveness) hereof, the
Lenders executing Lender Consents, constituting the Required Lenders, and the
Administrative Agent hereby waive the yield maintenance requirements specified
in Section 4.04(d) (Yield Maintenance) of the Credit Agreement applicable to the
First Facilities Increase and the Incremental Term Loans borrowed pursuant
thereto solely to the extent necessary to permit the Incremental Term Loans
borrowed pursuant to the First Facilities Increase to bear interest at the same
rate of interest applicable to the Closing Date Term Loans.
Section 2. Repayment of Incremental Term Loans. Pursuant to Section
2.08(e) (Repayment of Loans), as of the Effective Date, the Borrower promises to
repay the Incremental Term Loans made pursuant to the First Facilities Increase
on the dates and in the amounts specified in the First Facilities Increase
Notice.
Section 3. Amendments to the Credit Agreement. As of the Effective
Date:
(a) Section 1.01 (Defined Terms) of the Credit Agreement is
hereby amended by inserting the following definitions in such Section 1.01 in
the appropriate place to preserve the alphabetical order of the definitions in
such Section 1.01 (and, if applicable, the following definitions shall replace
in their entirety existing definitions for the corresponding terms in such
section):
"CLOSING RELATED DOCUMENTS" means, collectively, the Sponsor
Equity Documents, the AHI Acquisition Documents and from and after the
First Amendment Effective Date, each Local Credit Facility Guaranty.
"FIRST AMENDMENT" means that certain Amendment No. 1 to this
Agreement, dated as of April 11, 2005, among the Borrower and the
Administrative Agent.
"FIRST AMENDMENT EFFECTIVE DATE" means the date on which the
First Amendment shall have become effective in accordance with its
terms.
"FIRST FACILITIES INCREASE" means that certain Facilities
Increase effectuated on the First Amendment Effective Date providing
for Incremental Term Loans in an aggregate principal amount of
$100,000,000.
"LOCAL CREDIT FACILITY" means each loan or line of credit (x)
made available by a Local Lender to a Foreign Subsidiary of the
Borrower pursuant to the applicable Local Credit Documents and (y)
guaranteed by the Borrower pursuant to a Local Credit Facility
Guaranty.
"LOCAL CREDIT FACILITY DOCUMENTS" means, with respect to any
Local Credit Facility, each promissory note, loan agreement, Local
Credit Facility Guaranty and each other material transaction document
or instrument entered into or delivered by the applicable Foreign
Subsidiary,
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the Borrower and any other Subsidiary relating to or in connection with
such Local Credit Facility, each in form and substance satisfactory to
the Agents.
"LOCAL CREDIT FACILITY GUARANTY" means each guaranty agreement
entered into by the Borrower in favor of a Local Lender, in form and
substance satisfactory to the Agents, as amended, restated,
supplemented or otherwise modified from time to time in accordance with
this Agreement.
"LOCAL CREDIT FACILITY GUARANTY OBLIGATIONS" means the
obligations, covenants and duties of the Borrower under each Local
Credit Facility Guaranty.
"LOCAL LENDER" means each bank or other financial institution
(in each case, reasonably acceptable to the Agents) that is located in
the jurisdiction of organization or formation of the applicable Foreign
Subsidiary to which such Local Lender makes a Local Credit Facility
available.
"OBLIGATIONS" means (x) the Loans, the L/C Obligations and all
other amounts, obligations, covenants and duties owing by the Borrower
to the Administrative Agent, the Syndication Agent, the Foreign
Currency Fronting Lender, any Syndicated Lender, any L/C Issuer, any
Affiliate of any of them or any Indemnitee, of every type and
description (whether by reason of an extension of credit, opening or
amendment of a letter of credit or payment of any draft drawn or other
payment thereunder, loan, guaranty, indemnification, foreign exchange
or currency swap transaction, interest rate hedging transaction or
otherwise), present or future, arising under this Agreement, any other
Loan Document (including Cash Management Documents and Related Swap
Contracts that are Loan Documents) and (y) solely for the purposes of
the Guaranty and the Collateral Documents, the Local Credit Facility
Guaranty Obligations owing by the Borrower to the applicable Local
Lenders, and in the case of each of the foregoing clauses (x) and (y),
whether such Obligations are direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising and however acquired (including
interest that accrues after the commencement by or against the Borrower
or any Affiliate thereof of any proceeding under any Debtor Relief Laws
naming such Person as the debtor in such proceeding) and whether or not
evidenced by any note, guaranty or other instrument or for the payment
of money, including all letter of credit, cash management and other
fees, interest, charges, expenses, Attorney Costs, Cash Management
Obligations and other sums chargeable to the Borrower under this
Agreement, any other Loan Document (including Cash Management Documents
and Related Swap Contracts that are Loan Documents) and all obligations
of the Borrower under any Loan Document to Cash Collateralize any L/C
Obligation.
"TERM LOAN FACILITY" means the Term Loan Commitments, the
facility described in Section 2.01(a) (Term Loan; Facilities Increase)
providing for a Term Loan to the Borrower by the Term Loan Lenders on
the Closing Date in an aggregate principal amount of $850,000,000 and
the facility described in Section 2.01(b) (Term Loan; Facilities
Increase) providing for one or more Incremental Term Loans to the
Borrower by the Term Loan Lenders in an aggregate principal amount not
to exceed $400,000,000.
(b) Clause (i) of Section 2.01(b)(Facilities Increase) is
hereby amended and restated in its entirety to read as follows:
(i) The Borrower shall have the right to send to the Agents,
after the Closing Date, a Facilities Increase Notice to request an
increase in the aggregate principal amount of the Term Loan Facility
(each a "FACILITIES INCREASE") to be effectuated by the disbursement of
one or more
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additional Term Loans (each, an "INCREMENTAL TERM LOAN") in excess of
the Closing Date Term Loan, in a principal amount not to exceed
$400,000,000 (inclusive of the First Facilities Increase) in the
aggregate for all such requests; provided, however, that (A) no
Facilities Increase in the Term Loan Facility shall be effective later
than three years prior to Stated Closing Date Term Loan Maturity Date,
(B) no Facilities Increase shall be effective earlier than 10 days
after the delivery of the Facilities Increase Notice to the Agents in
respect of such Facilities Increase and (C) no more than four
Facilities Increases shall be made pursuant to this Section 2.01(b).
Nothing in this Agreement shall be construed to obligate any Lender to
negotiate for (whether or not in good faith), solicit, provide or
consent to any increase in the Term Loan Commitments, and any such
increase may be subject to changes in any term of this Agreement
reasonably acceptable to the Agents and the Borrower.
(c) Clause (iii) of Section 4.04(c) (Conditions Precedent to
Each Facilities Increase) is amended by deleting the reference therein to
Section 6.14 (Financial Covenants) and inserting in lieu thereof a reference to
Section 7.13 (Financial Covenants).
(d) Clause (k) of Section 7.03 (Indebtedness) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
(k) Indebtedness incurred by (i) the Borrower or any Domestic
Subsidiary of the Borrower, in an aggregate outstanding principal
amount for all such Persons not to exceed the Dollar Equivalent
$25,000,000 at any time, (ii) any Foreign Subsidiary of the Borrower to
the extent that the Dollar Equivalent of the aggregate outstanding
principal amount of such Indebtedness (including any Indebtedness
incurred pursuant to a Local Credit Facility) for all such Persons does
not exceed the Dollar Equivalent of $120,000,000 at any time and (iii)
Local Guaranty Obligations of the Borrower in respect of any Local
Credit Facility permitted under this Agreement; provided, however, that
neither the incurrence of any Local Credit Facility nor the incurrence
of any Local Credit Facility Guaranty Obligations shall be permitted
unless, both immediately before and after the incurrence thereof, (A)
the Borrower shall be in compliance with the financial covenants
specified in Section 7.13 (Financial Covenants) on a pro forma basis
after giving effect to such Indebtedness, (B) no Default or Event of
Default shall have occurred and be continuing or would result therefrom
and (C) all representations and warranties contained in Article V
(Representations and Warranties) and in the other Loan Documents shall
be true and correct in all material respects;
(e) Section 7.11 (Burdensome Agreements) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
SECTION 7.11. BURDENSOME AGREEMENTS. Enter into any
Contractual Obligation that limits the ability (a) of any Subsidiary to
make Restricted Payments, loans or advances to the Borrower or any
Guarantor or to otherwise transfer property to the Borrower or any
Guarantor, other than (solely to the extent required by any Local
Lender pursuant to the applicable Local Credit Facility Documents)
customary restrictions in any Local Credit Facility Documents
reasonably acceptable to the Agents or (b) of the Borrower or any
Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person, other than (i) standard and customary negative
pledge provisions in property acquired with the proceeds of any Capital
Lease or purchase money financing that extend and apply only to such
acquired property and (ii) solely to the extent required by any Local
Lender pursuant to the applicable Local Credit Facility Documents,
limitations on the ability of the applicable Foreign Subsidiary to
create, incur, assume or suffer to exist Liens on the property of such
Foreign Subsidiary reasonably acceptable to the Agents.
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(f) Clause Fifth of Section 8.03 (Application of Funds) of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
Fifth, ratably among the Administrative Agent, the Lenders and
the Local Lenders in proportion to the respective amounts described in
this clause Fifth held by them, to (i) the payment of that portion of
the Obligations constituting unpaid principal of the Loans, L/C
Borrowings and Local Credit Facility Guaranty Obligations, (ii) the
Administrative Agent for the account of the L/C Issuers to Cash
Collateralize that portion of L/C Obligations comprised of the
aggregate undrawn amount of Letters of Credit; provided that if the
amounts available are insufficient to make all payments provided for in
this clause Fifth, that portion allocable to clause (ii) shall be
applied first to pay Outstanding Amounts of Loans, L/C Borrowings and
Local Credit Facility Guaranty Obligations under clause (i) before
being utilized to Cash Collateralize L/C Obligations, (iii) to the
payment of that portion of the Obligations constituting Cash Management
Obligations owing to the Administrative Agent, any Lender or any
Affiliate of any Lender and (iv) to the payment of Swap Termination
Values owing to any Lender or any Affiliate of any Lender arising under
Related Swap Contracts that shall have been terminated and as to which
the Administrative Agent shall have received notice of such termination
and the Swap Termination Value thereof from the applicable Lender or
Affiliate of a Lender;
Section 4. Conditions to Effectiveness. This Amendment shall become
effective as of the date (the "EFFECTIVE DATE") on which each of the following
conditions precedent shall have been satisfied:
(a) Certain Documents. The Agents shall have received each of
the following, dated as of the Effective Date (unless otherwise agreed to by the
Agents), in form and substance satisfactory to Agents:
(i) this Amendment duly executed by the Borrower and the
Administrative Agent;
(ii) the Consent and Agreement in the form attached hereto as
Exhibit A, executed by each of the Guarantors;
(iii) the Acknowledgment and Consents, in the form set forth
hereto as Exhibit B (each, a "Lender Consent"), executed by the Lenders
constituting the Required Lenders;
(iv) a favorable opinion of Xxxx Xxxxxxx, P.C., counsel to the
Borrower, in form and substance reasonably satisfactory to the Agents,
addressed to the Agents and the Lenders and addressing such matters
relating to this Amendment and the First Facilities Increase as any
Lender through the Administrative Agent may reasonably request; and
(v) such additional documentation as the Lenders party to a
Lender Consent may reasonably require.
(b) Corporate and Other Proceedings. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Amendment shall be
satisfactory in all respects to the Agents and the Required Lenders.
(c) Representations and Warranties; No Defaults. The Agents,
for the benefit of the Agents and the Lenders, shall have received a certificate
of a Responsible Officer of the Borrower certifying that both before and after
giving effect to this Amendment (including, without limitation, the waiver set
forth in Section 1 (Waiver of Yield Maintenance Requirement)):
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(i) each of the representations and warranties set forth in
Article V (Representations and Warranties) of the Credit Agreement and
in the other Loan Documents shall be true and correct in all material
respects on and as of the Effective Date with the same effect as though
made on and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date, in which case such
representation and warranties shall have been true and correct in all
material respects as of such earlier date; provided, however, that
references therein to the Credit Agreement shall be deemed to refer to
the Credit Agreement as amended by this Amendment and after giving
effect to the waiver set forth herein; and
(ii) no Default or Event of Default shall have occurred and be
continuing, either on the date hereof or on the Effective Date.
(d) Fees and Expenses. The Borrower shall have paid all fees
and expenses of the Agents due and payable by the Borrower pursuant to the Loan
Documents as of the date hereof, including, without limitation, all costs, fees
and expenses of the Agents in connection with the preparation, execution and
delivery of this Amendment, including the reasonable fees and out-of-pocket
expenses of counsel for the Agents with respect thereto.
Section 5. Representations and Warranties. The Borrower, on behalf of
itself and the other Loan Parties, hereby represents and warrants to the
Administrative Agent and each Lender as follows:
(a) The execution, delivery and performance by each Loan Party
of this Amendment have been duly authorized by all requisite corporate or other
action on the part of such Loan Party and will not violate any of the
certificates of incorporation or by-laws (or equivalent constituent documents)
of such Loan Party.
(b) This Amendment has been duly executed and delivered by
each Loan Party, and each of this Amendment and the Credit Agreement as amended
or otherwise modified hereby constitutes the legal, valid and binding obligation
of such Loan Party, enforceable against such Loan Party in accordance with their
terms, except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization and other similar Laws relating to or
affecting creditors' rights generally and by the application of general
equitable principles (whether considered in proceedings at Law or in equity).
Section 6. Reference to and Effect on the Loan Documents.
(a) As of the Effective Date, each reference in the Credit
Agreement and the other Loan Documents to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import shall mean and be a reference to the
Credit Agreement as amended by this Amendment and after giving effect to the
waiver set forth in Section 1 (Waiver of Yield Maintenance Requirement).
(b) Except with respect to the waiver set forth in Section 1
(Waiver of Yield Maintenance Requirement) and to the extent amended hereby, the
Credit Agreement and all of the other Loan Documents shall remain in full force
and effect and are hereby ratified and confirmed.
(c) Except with respect to the waiver set forth in Section 1
(Waiver of Yield Maintenance Requirement) and to the extent amended hereby, the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any Default or Event of Default or any right, power, privilege or
remedy of any Agent, any Lender or any L/C Issuer under the Credit Agreement or
any Loan Document, or constitute a waiver of any provision of the Credit
Agreement or any Loan Document.
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(d) The Borrower hereby confirms that the security interests
and Liens granted pursuant to the Loan Documents continue to secure the
Obligations and that such security interests and Liens remain in full force and
effect.
Section 7. Costs and Expenses. As provided in Section 10.04 (Attorney
Costs, Expenses and Taxes) of the Credit Agreement, the Borrower agrees to
reimburse the Agents for all reasonable fees, costs and out-of-pocket expenses,
including the Attorney Costs for advice, assistance, or other representation in
connection with this Amendment.
Section 8. Governing Law. This Amendment and the rights and obligations
of the parties hereto shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
Section 9. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
Section 10. Severability. The fact that any term or provision of this
Agreement is held invalid, illegal or unenforceable as to any person in any
situation in any jurisdiction shall not affect the validity, enforceability or
legality of the remaining terms or provisions hereof or the validity,
enforceability or legality of such offending term or provision in any other
situation or jurisdiction or as applied to any person
Section 11. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
Receipt by the Administrative Agent of a facsimile copy of an executed signature
page hereof shall constitute receipt by the Administrative Agent of an executed
counterpart of this Amendment.
Section 12. Waiver of Jury Trial. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO
THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, this Amendment has been duly executed on
the date set forth above.
JARDEN CORPORATION,
as Borrower
By: /s/ Xxxxxxx XxXxxxxxx
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Name: Xxxxxxx XxXxxxxxx
Title: Executive Vice President of
Finance and Treasurer
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Name: Xxxxxxx X. Xxxxx, Xx.
Title: Managing Director
