Exhibit 10.1
Execution
Version
AMENDMENT NO. 4 TO AMENDED AND
RESTATED LOAN AGREEMENT
THIS
AMENDMENT NO. 4 TO AMENDED AND
RESTATED LOAN AGREEMENT (this
“Amendment” ) is made and entered into as
of July 2, 2009, with respect to that certain Amended and
Restated Loan Agreement dated as of August 8, 2007 (as
amended, restated, supplemented or otherwise modified from time to
time, the “Loan Agreement” ), by and
among JARDEN RECEIVABLES, LLC, a Delaware limited liability
company, as “Borrower” , JARDEN
CORPORATION, a Delaware corporation, as “Jarden
” or “Servicer” , THREE PILLARS
FUNDING LLC, a Delaware limited liability company (together with
its successors and permitted assigns), as
“Lender ”, and SUNTRUST ROBINSON
HUMPHREY, INC., a Tennessee corporation, as
“Administrator ”. Capitalized terms used
and not otherwise defined herein are used with the meanings
attributed thereto in the Loan Agreement.
BACKGROUND
The parties wish to amend the Loan
Agreement on the terms and subject to the conditions hereinafter
set forth.
NOW, THEREFORE,
in consideration of the premises and
the mutual agreements herein contained, the parties hereto agree as
follows:
1. Amendments.
The Loan Agreement is hereby amended
as follows:
(a) The definitions of the terms
“Business Day”, “Contractual Dilution”,
“Dilution Horizon Ratio” “Federal Funds
Rate” “Interest Period”, “Liquidity
Termination Date”, “Loss Horizon Ratio”,
“Scheduled Commitment Termination Date”, “Stress
Factor” “Weighted Average Credit Terms” and
“Weighted Average Credit Percentage” in
Section 1.1 of the Loan Agreement are amended and restated to
read in their entirety as follows:
“Business
Day” means
(a) any day on which commercial banks in New York, New York,
and Atlanta, Georgia, are not authorized or required to be closed
and The Depository Trust Company of New York is open for business,
(b) when determined in connection with notices and
determinations in respect of any LIBOR Loan, any day specified in
clause (a) which is also a day banks are open for business in
London, England, and (c) when determined in connection with
notices and determinations in respect of any CP Loan, any day
specified in clause (a) which is also a day on which
commercial paper markets in the United States are open.
“Contractual
Dilution” means, with respect to any Receivable, the
applicable Obligor’s right to receive (a) any rebate for
cash payment, (b) any rebate for volume purchases or co-op
advertising programs, and (c) any credit issued for guaranteed
sale product return.
“Dilution Horizon
Ratio” means,
for any Calculation Period, the ratio (expressed as a percentage)
computed as of the most recent Calculation Date by dividing
(a) an amount equal to the sum of (i) Credit Sales for
the Calculation Period ending on
such Calculation Date plus
(ii) Credit Sales for the Calculation Period immediately
preceding the Calculation Period described in clause (i) plus
(iii) 40% of the Credit Sales for the Calculation Period
immediately preceding the Calculation Period described in clause
(ii) by (b) an amount equal to the Net Receivables
Balance as of such Calculation Date.
“Federal Funds
Rate” means,
for any period, the per annum rate equal, for any day during
such period, to the greater of (i) the average rate per annum
as determined by the Bank at which overnight Federal funds are
offered to the Bank for such day by major banks in the interbank
market, and (ii) if the Bank is borrowing overnight federal
funds from one or more members of the Federal Reserve System that
day, the average rate per annum at which such overnight borrowings
are made on that day. Each determination of the Federal Funds Rate
by the Bank shall be conclusive and binding on the Borrower except
in the case of manifest error.
“Interest
Period” means:
(a) with respect to any CP Loan,
(A) at all times prior to August 1, 2009,
(i) initially, the period commencing on the date of the
initial funding of such Loan by the Lender and ending on (but
excluding) the next following Distribution Date, (ii) prior to
the Distribution Date occurring in August 2009, each period
commencing on (and including) the Distribution Date and ending on
(but excluding) the next following Distribution Date, and
(iii) for the Distribution Date occurring in August 2009, the
period commencing on the Distribution Date occurring in July 2009
and ending on (and including) the last day of the calendar month;
and (B) on August 1, 2009 and at all times thereafter,
(i) initially, the period commencing on the date of the
initial funding of such Loan by the Lender and ending on (and
including) the last day of the calendar month and
(ii) thereafter, each period commencing on (and including) the
first day of each calendar month and ending on (and including) the
last calendar day of such month;
(b) with respect to any Base Rate
Loan: (A) at all times prior to August 1, 2009,
(i) initially, the period commencing on the date of the
initial funding of such Loan by any Liquidity Bank or the Bank, as
the case may be, and ending on (but excluding) the next following
Distribution Date, (ii) prior to the Distribution Date
occurring in August 2009, each period commencing on (and including)
the Distribution Date and ending on (but excluding) the next
following Distribution Date, and (iii) for the Distribution
Date occurring in August 2009, the period commencing on the
Distribution Date occurring in July 2009 and ending on (and
including) the last day of the calendar month; and (B) on
August 1, 2009 and at all times thereafter,
(i) initially, the period commencing on the date of the
initial funding of such Loan by any Liquidity Bank or the Bank, as
the case may be, and ending on (and including) the last day of the
calendar month and (ii) thereafter, each period commencing on
(and including) the first day of each calendar month and ending on
(and including) the last calendar day of such month; and
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(c) with respect to any LIBOR Loan,
(i) initially, the period commencing on the date of the
initial funding of such Loan by any Liquidity Bank or the Bank, as
the case may be, and ending on (but excluding) the next following
Distribution Date, and (ii) thereafter, each period commencing
on (and including) the Distribution Date and ending on (but
excluding) the next following Distribution Date;
provided
, however , that if
any Interest Period for any Loan that commences before the
Commitment Termination Date would otherwise end on a date occurring
after such Commitment Termination Date, such Interest Period shall
end on such Commitment Termination Date and the duration of each
such Interest Period that commences on or after the Commitment
Termination Date, if any, shall be of such duration as shall be
selected by the Administrator.
“Liquidity Termination
Date” means the
earlier to occur of (a) July 1, 2010, as such date may be
extended from time to time by the Lender’s Liquidity Banks in
accordance with the Liquidity Agreement, and (b) the
occurrence of an Event of Bankruptcy with respect to the
Lender.
“Loss Horizon
Ratio” means,
for any Calculation Period, the ratio (expressed as a percentage)
computed as of the most recent Calculation Date by dividing
(A) the sum of (i) Credit Sales for such Calculation
Period, plus (ii) Credit Sales for the immediately
preceding Calculation Period plus (iii) Credit Sales
for the second (2nd) immediately preceding Calculation Period
plus (iv) the product of (x) Credit Sales for the
third (3rd) immediately preceding Calculation Period
multiplied by (y) the sum of (1) 23.3% plus
(2) the Weighted Average Credit Percentage by
(B) the Net Receivables Balance as of the most recent
Calculation Date.
“Scheduled Commitment
Termination Date” means July 1, 2010, as extended from time
to time by mutual agreement of the parties hereto.
“Stress
Factor” means
2.25.
“Weighted Average Credit
Terms” means
the greater of (a) 60 and (b) the weighted average of
payment terms granted in invoices for Receivables outstandings as
of such periodic calculation date as reported by Sunbeam Products,
Inc., a Delaware corporation, The Coleman Company, Inc., a Delaware
corporation, Pure Fishing, Inc., an Iowa corporation, and Rawlings
Sporting Goods Company, Inc., a Delaware corporation.
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“Weighted Average Credit
Percentage” means, on any date of determination, the greater
of (a) 0% and (b) the percentage determined pursuant to
the following formula:
where :
WACT = the Weighted Average Credit
Terms for the most recent month.
(b) The definition of the term
“Aggregate Eligible Balance” in Section 1.1 of the
Loan Agreement is amended by replacing the phrase “(a) the
aggregate Unpaid Balance of all Eligible Receivables at such time
minus (b) all Contractual Dilutions” with the
phrase “(a) the aggregate Unpaid Balance of all Eligible
Receivables at such time minus (b) the product of
(1) all Contractual Dilutions times ,
(2) 1.2”
(c) The definition of the term
“Broken Funding Costs” in Section 1.1 of the Loan
Agreement is amended by:
(i) deleting the phrase “which
(i) has its principal reduced on any date other than the last
day of the applicable CP Tranche Period or (ii)” in its
entirety from paragraph (a) thereof;
(ii) deleting the phrase “or
CP Tranche Periods” in its entirety from paragraph
(a) thereof; and
(iii) amending and restating
paragraph (b) thereof to read in its entirety as
follows:
“(b) for any CP Loan or LIBOR
Loan (i) which is not prepaid following delivery of any
prepayment notice or (ii) which is prepaid without adhering to
the notice period required by Section 4.1(a) , the
reasonable expenses, if any, actually incurred by the applicable
the Lender following receipt of such prepayment
