Exhibit 10.1
EXTENDED REVOLVING CREDIT
SUB-COMMITMENT AGREEMENT
Date: August 4,
2009
Jarden Corporation
555 Theodore Fremd Avenue, Suite
B-302
Rye, New York 10580-1455
Attention: Chief Financial Officer
Re Extended Revolving Credit
Sub-Commitment
Ladies and Gentlemen:
Reference is hereby made to the
Credit Agreement, dated as of January 24, 2005 (as amended,
modified, restated and/or supplemented from time to time, the
“ Credit Agreement ”), among Jarden
Corporation, a Delaware corporation (the “
Borrower ” or “ you
”), the Lenders and L/C Issuers party thereto, Deutsche Bank
AG New York Branch, as administrative agent (in such capacity, the
“ Administrative Agent ”), Citicorp USA,
Inc., as syndication agent (in such capacity, the “
Syndication Agent ”), and Bank of America,
N.A., National City Bank of Indiana and SunTrust Bank, as
co-documentation agents. Unless otherwise defined herein,
capitalized terms used herein shall have the meanings set forth in
the Credit Agreement.
Each Lender (each, an “
Extending Revolving Lender ”) party to this
letter agreement (this “ Agreement ”)
hereby severally agrees to provide the Extended Revolving Credit
Sub-Commitment set forth opposite its name on Annex I attached
hereto. Each Extended Revolving Credit Sub-Commitment provided
pursuant to this Agreement shall be subject to the terms and
conditions set forth in the Credit Agreement, including
Section 2.01(b) (Facilities Increase) and
Section 4.04 (Conditions Precedent to Each Facilities
Increase) thereof.
Each Extending Revolving Lender
acknowledges and agrees that the Extended Revolving Credit
Sub-Commitments provided pursuant to this Agreement, in the
aggregate amount as set forth in Annex I hereto, shall constitute
Extended Revolving Credit Sub-Commitments under, and as defined in,
the Credit Agreement and become part of the Revolving Credit
Commitments as contemplated by the Credit Agreement. Each Extending
Revolving Lender agreeing to provide an Extended Revolving Credit
Sub-Commitment pursuant to this Agreement, the Borrower and the
Administrative Agent acknowledge and agree that, upon the
incurrence of Revolving Loans pursuant to the Extended Revolving
Credit Sub-Commitments provided pursuant to this Agreement, such
Revolving Loans shall constitute Revolving Loans for all purposes
of the Credit Agreement and the other Loan Documents.
Each Extending Revolving Lender and
the Borrower further agree that, with respect to the Extended
Revolving Credit Sub-Commitment provided by such Extending
Revolving Lender pursuant to this Agreement, such Extending
Revolving Lender shall receive a non-refundable upfront fee (each,
an “ Upfront Fee ”) equal to 0.25% of the
amount of the Extended Revolving Credit Sub-Commitment of such
Extending Revolving Lender, which upfront fee shall be due and
payable on the Agreement Effective Date (as defined
below).
Each Extending Revolving Lender
party to this Agreement (i) confirms that it has received a
copy of the Credit Agreement and the other Loan Documents, together
with copies of the financial statements referred to therein and
such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this
Agreement and, to the extent applicable, to become a Lender under
the Credit Agreement, (ii) agrees that it will, independently
and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement,
(iii) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers
under the Credit Agreement and the other Loan Documents as are
delegated to the Administrative Agent, by the terms thereof,
together with such powers as are reasonably incidental thereto,
(iv) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender,
(v) to the extent not already a Lender under the Credit
Agreement, confirms it has provided to the Borrower and the
Administrative Agent two properly completed Forms W-8BEM, W-8ECI or
successor form prescribed by the Internal Revenue Service of the
United States, certifying that it is entitled to receive all
payments under the Credit Agreement and the Notes payable to it
without deduction or withholding of any United States federal
income taxes, (vi) specifies as its Domestic Lending Office
(and address for notices) and Eurodollar Lending Office the offices
set forth beneath its name on the signature pages hereof and
(vii) represents and warrants that it is an Eligible
Assignee.
On and after the Agreement Effective
Date, Wachovia, N.A., in its capacity as L/C Issuer, agrees, for
its part and notwithstanding Section 2.04(a)(iv)(C) ( The
Letter of Credit Commitment ) of the Credit Agreement, to
issue, amend, extend and renew Letters of Credit which (after
giving effect thereto) have expiry dates occurring after the
Initial Revolving Credit Maturity Date (but on or prior to the
Letter of Credit Expiration Date), in each case subject to the
terms and conditions of the Credit Agreement (and, by its execution
hereof, each Extending Revolving Lender acknowledges the
foregoing).
Upon the date of (i) the
execution of a counterpart of this Agreement by such Extending
Revolving Lenders, the Administrative Agent and the Borrower and
the delivery thereof to the Administrative Agent (including by
facsimile or other electronic transmission), (ii) the payment
of any fees required in connection herewith and (iii) the
satisfaction of any conditions precedent set forth in Sections 4, 5
and 6 of Annex I hereto (such date, the “ Agreement
Effective Date ”), each Extending Revolving Lender
party hereto agreeing to provide an Extended Revolving Credit
Sub-Commitment pursuant to this Agreement (x) shall become a
party to the Credit Agreement, (y) shall be obligated to
provide the Extended Revolving Credit Sub-Commitments required to
be provided by it (and make Revolving Loans pursuant thereto) as
provided in this Agreement on the terms, and subject to the
conditions, set forth herein and in the Credit Agreement and
(z) to the extent provided in this Agreement, shall have the
rights and obligations of a Lender thereunder and under the other
Loan Documents.
The Borrower agrees that the
supplemental terms contained in Annex I attached hereto constitute
terms applicable to the Extended Revolving Credit Sub-Commitments
provided hereunder (and all related Obligations).
The Borrower acknowledges and agrees
that (i) it shall be liable for all Obligations with respect
to the Extended Revolving Credit Sub-Commitments provided hereby
(including, without limitation, any Revolving Loans, Swing Line
Loans or Letters of Credit made or issued, as applicable, pursuant
thereto) and (ii) all such Obligations (including any such
Loans) shall be entitled to the benefits of the Collateral
Documents.
Each Guarantor acknowledges and
agrees that all Obligations with r
