Domestic Branded

EX-10.P 6 p68844exv10wp.txt EX-10.P 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, Henkel 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 Moore & Van Allen, 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/ Conrad A. Conrad ----------------------------------- Name: Conrad A. Conrad Title: Executive Vice President & Chief Financial Officer By: /s/ David M. Riddiford ----------------------------------- Name: David M. Riddiford Title: Treasurer & Controller GUARANTORS: DIAL BRANDS, INC. By: /s/ David M. Riddiford ----------------------------------- Name: David M. Riddiford Title: Treasurer & Controller DIAL BRANDS HOLDING, INC. By: /s/ David M. Riddiford ----------------------------------- Name: David M. Riddiford Treasurer & Controller DIAL INTERNATIONAL, INC. By: /s/ David M. Riddiford ----------------------------------- Name: David M. Riddiford Title: Treasurer & Controller [Signature Pages Continue] THE DIAL CORPORATION 364-DAY CREDIT AGREEMENT TEMPORARY WAIVER AGREEMENT GUARANTORS CONT.: DIAL BENEFITS MANAGEMENT CORPORATION By: /s/ David M. Riddiford ----------------------------------- Name: David M. Riddiford Title: Treasurer & Controller DIAL POST-RETIREMENT LIABILITIES MANAGEMENT COMPANY By: /s/ David M. Riddiford ----------------------------------- Name: David M. Riddiford 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/ Lonis K. Beasley III ----------------------------------- Name: Lonis K. Beasley III Title: Director THE DIAL CORPORATION 364-DAY CREDIT AGREEMENT TEMPORARY WAIVER AGREEMENT BANK OF AMERICA, N.A. By: /s/ Thomas R. Durham ------------------------- Name: Thomas R. Durham Title: Managing Director THE DIAL CORPORATION 364-DAY CREDIT AGREEMENT TEMPORARY WAIVER AGREEMENT BANK ONE, NA By: /s/ Kandis A. Jaffrey ------------------------ Name: Kandis A. Jaffrey Title: Director THE DIAL CORPORATION 364-DAY CREDIT AGREEMENT TEMPORARY WAIVER AGREEMENT BNP PARIBAS By: /s/ Scan T.Conlon ------------------------- Name: Scan T.Conlon Title: Managing Director By: /s/ Mitchell M. Ozawa ------------------------- Name: Mitchell M. Ozawa Title: Managing Director THE DIAL CORPORATION 364-DAY CREDIT AGREEMENT TEMPORARY WAIVER AGREEMENT THE NORTHERN TRUST COMPANY By: /s/ Jeffrey B. Clark ------------------------- Name: Jeffrey B. Clark 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, Henkel 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 Moore & Van Allen, 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/ Conrad A. Conrad ----------------------------------- Name: Conrad A. Conrad Title: Executive Vice President & Chief Financial Officer By: /s/ David M. Riddiford ----------------------------------- Name: David M. Riddiford Title: Treasurer & Controller GUARANTORS: DIAL BRANDS, INC. By: /s/ David M. Riddiford ----------------------------------- Name: David M. Riddiford Title: Treasurer & Controller DIAL BRANDS HOLDING, INC. By: /s/ David M. Riddiford ----------------------------------- Name: David M. Riddiford Treasurer & Controller DIAL INTERNATIONAL, INC. By: /s/ David M. Riddiford ----------------------------------- Name: David M. Riddiford Title: Treasurer & Controller [Signature Pages Continue] THE DIAL CORPORATION THREE YEAR CREDIT AGREEMENT TEMPORARY WAIVER AGREEMENT GUARANTORS CONT.: DIAL BENEFITS MANAGEMENT CORPORATION By: /s/ David M. Riddiford ----------------------------------- Name: David M. Riddiford Title: Treasurer & Controller DIAL POST-RETIREMENT LIABILITIES MANAGEMENT COMPANY By: /s/ David M. Riddiford ----------------------------------- Name: David M. Riddiford 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/ Lonis K. Beasley III ----------------------------------- Name: Lonis K. Beasley III Title: Director THE DIAL CORPORATION THREE YEAR CREDIT AGREEMENT TEMPORARY WAIVER AGREEMENT BANK OF AMERICA, N.A. By: /s/ Thomas R. Durham ---------------------- Name: Thomas R. Durham Title: Managing Director THE DIAL CORPORATION THREE YEAR CREDIT AGREEMENT TEMPORARY WAIVER AGREEMENT BANK ONE, NA By: /s/ Kandis A. Jaffrey -------------------------- Name: Kandis A. Jaffrey Title: Director THE DIAL CORPORATION THREE YEAR CREDIT AGREEMENT TEMPORARY WAIVER AGREEMENT BNP PARIBAS By: /s/ Scan T.Conlon --------------------------- Name: Scan T.Conlon Title: Managing Director By: /s/ Mitchell M. Ozawa --------------------------- Name: Mitchell M. Ozawa Title: Managing Director THE DIAL CORPORATION THREE YEAR CREDIT AGREEMENT TEMPORARY WAIVER AGREEMENT DEUTSCHE BANK AG NEW YORK BRANCH By: /s/ Frederick W. Laird ----------------------------------- Name: Frederick W. Laird Title: Managing Director By: /s/ Iain Stewart ----------------------------------- Name: Iain Stewart Title: Director