EXHIBIT 10(P)
TEMPORARY WAIVER AGREEMENT
This TEMPORARY WAIVER AGREEMENT (this "Waiver"), entered into as of
December 23, 2003, is among THE DIAL CORPORATION, a Delaware corporation (the
"Borrower"), certain Domestic Subsidiaries of the Borrower, as Guarantors (the
"Guarantors" and together with the Borrower, the "Credit Parties"), the several
banks and other financial institutions parties hereto (the "Lenders") and
WACHOVIA BANK, NATIONAL ASSOCIATION (FORMERLY KNOWN AS FIRST UNION NATIONAL
BANK), as Administrative Agent for the Lenders hereunder (in such capacity, the
"Administrative Agent"). Capitalized terms used herein and not otherwise defined
shall have the respective meanings given to them in the Credit Agreement (as
defined below).
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and the
Administrative Agent have entered into that certain 364-Day Credit Agreement,
dated as of March 27, 2002 (as previously amended and extended, and as further
amended, modified, supplemented, extended or replaced from time to time, the
"Credit Agreement");
WHEREAS, Xxxxxx KGaA, a German corporation ("Henkel"), has entered into
a contract with the Borrower to purchase the Capital Stock of the Borrower;
WHEREAS, an Event of Default has occurred under Section 8.1(h) of the
Credit Agreement as a result of the Borrower entering into a contract with
Henkel that, upon consummation, will result in Henkel holding greater than 40%
of the Voting Stock of the Borrower (the "Acknowledged Event of Default");
WHEREAS, the Credit Parties have requested that the Required Lenders
temporarily waive the Acknowledged Event of Default; and
WHEREAS, the Required Lenders have agreed to such temporary waiver,
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Waiver.
(a) The Borrower acknowledges that the Acknowledged Event
of Default has occurred. The Required Lenders hereby temporarily waive
the Acknowledged Event of Default until April 30, 2004 (the "Temporary
Waiver Termination Date") subject to the satisfaction of all of the
terms and conditions set forth in this Waiver.
(b) Except for the specific temporary waiver set forth in
clause (a) above, nothing contained herein shall be deemed to
constitute a waiver of (i) any rights or remedies the Administrative
Agent or any Lender may have under the Credit Agreement or any other
Credit Document or under applicable law or (ii) the Credit Parties'
obligation to comply fully with any duty, term, condition, obligation
or covenant contained in the Credit Agreement and the other Credit
Documents. The specific temporary waiver set forth herein is a one-time
waiver and shall be effective only in this specific instance and only
until the Temporary Waiver Termination Date, and shall not obligate the
Lenders to waive any Default or Event of Default, now existing or
hereafter arising other than this temporary waiver of the Acknowledged
Event of Default.
(c) It is acknowledged and agreed that if and when Henkel
consummates its planned acquisition of the Borrower, an Event of
Default under Section 8.1(h) of the Credit Agreement shall have
occurred (the "Potential Event of Default"), separate and distinct from
the Acknowledged Event of Default, as a result of Henkel having
acquired beneficial ownership of the Borrower. Nothing contained herein
shall (i) be deemed to constitute a waiver of the Potential Event of
Default or (ii) obligate the Lenders to waive the Potential Event of
Default if and when it materializes.
(d) Notwithstanding anything in this Waiver to the
contrary, it is acknowledged and agreed that on the earlier of (i) the
Temporary Waiver Termination Date, (ii) the occurrence of any Default
or Event of Default (excluding the Acknowledged Event of Default but
including the Potential Event of Default) or (iii) any breach by the
Borrower of the terms of this Waiver, the temporary waiver set forth in
clause (a) above shall be void and no longer in effect, an Event of
Default shall exist as a result of a Change of Control having occurred
under Section 8.1(h) of the Credit Agreement, and the Administrative
Agent and the Lenders shall have all rights under the Credit Agreement
with respect thereto.
2. Conditions Precedent. This Waiver shall become effective as of
the date hereof when the Administrative Agent shall have received counterparts
of this Waiver duly executed by the Credit Parties and the Required Lenders (the
"Effective Date").
3. Miscellaneous.
(a) Representation and Warranty. Each of the Credit
Parties represents and warrants to the Lenders that no event has
occurred and is continuing which constitutes a Default or an Event of
Default (other than the Acknowledged Event of Default).
(b) Acknowledgement. The Credit Parties acknowledge that,
pursuant to the terms of Section 4.2(a) to the Credit Agreement, the
obligation of the Lenders to make Loans under the Credit Agreement is
subject to the representations and warranties of the Credit Parties
contained in Section 5 of the Credit Agreement being true and correct
in all
2
material respects on and as of the date such Loans are to be made
(except for those which expressly relate to an earlier date).
(c) Counterparts/Telecopy. This Waiver may be executed in
any number of counterparts, each of which when so executed and
delivered shall be an original, but all of which shall constitute one
and the same instrument. Delivery of executed counterparts by telecopy
shall be effective as an original and shall constitute a representation
that an original will be delivered if requested.
(d) Expenses. The Borrower agrees to pay all reasonable
costs and expenses of the Administrative Agent in connection with the
preparation, negotiation, execution and delivery of this Waiver,
including, without limitation, the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx, PLLC.
(e) Entirety. This Waiver, the Credit Agreement and the
other Credit Documents embody the entire agreement between the parties
and supersede all prior agreements and understandings, if any, relating
to the subject matter hereof. These Credit Documents represent the
final agreement between the parties and may not be contradicted by
evidence of prior, contemporaneous or subsequent oral agreements of the
parties.
(f) GOVERNING LAW. THIS WAIVER AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA.
(g) Successors and Assigns. This Waiver shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
THE DIAL CORPORATION
364-DAY CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Waiver to be duly executed and delivered as of the date first above
written.
BORROWER: THE DIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
& Chief Financial Officer
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer & Controller
GUARANTORS: DIAL BRANDS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer & Controller
DIAL BRANDS HOLDING, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Treasurer & Controller
DIAL INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer & Controller
[Signature Pages Continue]
THE DIAL CORPORATION
364-DAY CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
GUARANTORS CONT.: DIAL BENEFITS MANAGEMENT CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer & Controller
DIAL POST-RETIREMENT LIABILITIES
MANAGEMENT COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer & Controller
[Signature Pages Continue]
THE DIAL CORPORATION
364-DAY CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly known First Union National Bank),
individually in its capacity as
a Lender and in its capacity as
Administrative Agent
By: /s/ Xxxxx X. Xxxxxxx III
-----------------------------------
Name: Xxxxx X. Xxxxxxx III
Title: Director
THE DIAL CORPORATION
364-DAY CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
THE DIAL CORPORATION
364-DAY CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
BANK ONE, NA
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
THE DIAL CORPORATION
364-DAY CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
BNP PARIBAS
By: /s/ Scan X.Xxxxxx
-------------------------
Name: Scan X.Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
THE DIAL CORPORATION
364-DAY CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
TEMPORARY WAIVER AGREEMENT
This TEMPORARY WAIVER AGREEMENT (this "Waiver"), entered into as of
December 23, 2003, is among THE DIAL CORPORATION, a Delaware corporation (the
"Borrower"), certain Domestic Subsidiaries of the Borrower, as Guarantors (the
"Guarantors" and together with the Borrower, the "Credit Parties"), the several
banks and other financial institutions parties hereto (the "Lenders") and
WACHOVIA BANK, NATIONAL ASSOCIATION (FORMERLY KNOWN AS FIRST UNION NATIONAL
BANK), as Administrative Agent for the Lenders hereunder (in such capacity, the
"Administrative Agent"). Capitalized terms used herein and not otherwise defined
shall have the respective meanings given to them in the Credit Agreement (as
defined below).
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and the
Administrative Agent have entered into that certain Three-Year Credit Agreement,
dated as of March 27, 2002 (as previously amended and modified, and as further
amended, modified, supplemented, extended or replaced from time to time, the
"Credit Agreement");
WHEREAS, Xxxxxx KGaA, a German corporation ("Henkel"), has entered into
a contract with the Borrower to purchase the Capital Stock of the Borrower;
WHEREAS, an Event of Default has occurred under Section 8.1(h) of the
Credit Agreement as a result of the Borrower entering into a contract with
Henkel that, upon consummation, will result in Henkel holding greater than 40%
of the Voting Stock of the Borrower (the "Acknowledged Event of Default");
WHEREAS, the Credit Parties have requested that the Required Lenders
temporarily waive the Acknowledged Event of Default; and
WHEREAS, the Required Lenders have agreed to such temporary waiver,
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Waiver.
(a) The Borrower acknowledges that the Acknowledged Event
of Default has occurred. The Required Lenders hereby temporarily waive
the Acknowledged Event of Default until April 30, 2004 (the "Temporary
Waiver Termination Date") subject to the satisfaction of all of the
terms and conditions set forth in this Waiver.
(b) Except for the specific temporary waiver set forth in
clause (a) above, nothing contained herein shall be deemed to
constitute a waiver of (i) any rights or remedies the Administrative
Agent or any Lender may have under the Credit Agreement or any other
Credit Document or under applicable law or (ii) the Credit Parties'
obligation to comply fully with any duty, term, condition, obligation
or covenant contained in the Credit Agreement and the other Credit
Documents. The specific temporary waiver set forth herein is a one-time
waiver and shall be effective only in this specific instance and only
until the Temporary Waiver Termination Date, and shall not obligate the
Lenders to waive any Default or Event of Default, now existing or
hereafter arising other than this temporary waiver of the Acknowledged
Event of Default.
(c) It is acknowledged and agreed that if and when Henkel
consummates its planned acquisition of the Borrower, an Event of
Default under Section 8.1(h) of the Credit Agreement shall have
occurred (the "Potential Event of Default"), separate and distinct from
the Acknowledged Event of Default, as a result of Henkel having
acquired beneficial ownership of the Borrower. Nothing contained herein
shall (i) be deemed to constitute a waiver of the Potential Event of
Default or (ii) obligate the Lenders to waive the Potential Event of
Default if and when it materializes.
(d) Notwithstanding anything in this Waiver to the
contrary, it is acknowledged and agreed that on the earlier of (i) the
Temporary Waiver Termination Date, (ii) the occurrence of any Default
or Event of Default (excluding the Acknowledged Event of Default but
including the Potential Event of Default) or (iii) any breach by the
Borrower of the terms of this Waiver, the temporary waiver set forth in
clause (a) above shall be void and no longer in effect, an Event of
Default shall exist as a result of a Change of Control having occurred
under Section 8.1(h) of the Credit Agreement, and the Administrative
Agent and the Lenders shall have all rights under the Credit Agreement
with respect thereto.
2. Conditions Precedent. This Waiver shall become effective as of
the date hereof when the Administrative Agent shall have received counterparts
of this Waiver duly executed by the Credit Parties and the Required Lenders (the
"Effective Date").
3. Miscellaneous.
(a) Representation and Warranty. Each of the Credit
Parties represents and warrants to the Lenders that no event has
occurred and is continuing which constitutes a Default or an Event of
Default (other than the Acknowledged Event of Default).
(b) Acknowledgement. The Credit Parties acknowledge that,
pursuant to the terms of Section 4.2(a) to the Credit Agreement, the
obligation of the Lenders to make Loans under the Credit Agreement is
subject to the representations and warranties of the Credit Parties
contained in Section 5 of the Credit Agreement being true and correct
in all material respects on and as of the date such Loans are to be
made (except for those which expressly relate to an earlier date).
2
(c) Counterparts/Telecopy. This Waiver may be executed in
any number of counterparts, each of which when so executed and
delivered shall be an original, but all of which shall constitute one
and the same instrument. Delivery of executed counterparts by telecopy
shall be effective as an original and shall constitute a representation
that an original will be delivered if requested.
(d) Expenses. The Borrower agrees to pay all reasonable
costs and expenses of the Administrative Agent in connection with the
preparation, negotiation, execution and delivery of this Waiver,
including, without limitation, the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx, PLLC.
(e) Entirety. This Waiver, the Credit Agreement and the
other Credit Documents embody the entire agreement between the parties
and supersede all prior agreements and understandings, if any, relating
to the subject matter hereof. These Credit Documents represent the
final agreement between the parties and may not be contradicted by
evidence of prior, contemporaneous or subsequent oral agreements of the
parties.
(f) GOVERNING LAW. THIS WAIVER AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA.
(g) Successors and Assigns. This Waiver shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
THE DIAL CORPORATION
THREE YEAR CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Waiver to be duly executed and delivered as of the date first above
written.
BORROWER: THE DIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
& Chief Financial Officer
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer & Controller
GUARANTORS: DIAL BRANDS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer & Controller
DIAL BRANDS HOLDING, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Treasurer & Controller
DIAL INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer & Controller
[Signature Pages Continue]
THE DIAL CORPORATION
THREE YEAR CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
GUARANTORS CONT.: DIAL BENEFITS MANAGEMENT CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer & Controller
DIAL POST-RETIREMENT LIABILITIES
MANAGEMENT COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer & Controller
[Signature Pages Continue]
THE DIAL CORPORATION
THREE YEAR CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly known First Union National Bank),
individually in its capacity as
a Lender and in its capacity as
Administrative Agent
By: /s/ Xxxxx X. Xxxxxxx III
-----------------------------------
Name: Xxxxx X. Xxxxxxx III
Title: Director
THE DIAL CORPORATION
THREE YEAR CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
THE DIAL CORPORATION
THREE YEAR CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
BANK ONE, NA
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
THE DIAL CORPORATION
THREE YEAR CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
BNP PARIBAS
By: /s/ Scan X.Xxxxxx
---------------------------
Name: Scan X.Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
THE DIAL CORPORATION
THREE YEAR CREDIT AGREEMENT
TEMPORARY WAIVER AGREEMENT
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
