Exhibit 10.1
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EXECUTION COPY
PLAYTEX PRODUCTS, INC.
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated
as of June 30, 1999 and entered into by and among Playtex Products, Inc., a
Delaware corporation (the "Borrower"), the financial institutions listed on the
signature pages hereof ("Lenders"), DLJ Capital Funding, Inc., as the
Syndication Agent for Lenders ("Syndication Agent"), and Xxxxx Fargo Bank, N.A.,
as administrative agent for the Lenders ("Administrative Agent"), and, for
purposes of Section 4 hereof, the Credit Support Parties (as defined in Section
4 hereof) listed on the signature pages hereof, and is made with reference to
that certain Credit Agreement dated as of July 21, 1997, as amended by the First
Amendment dated as of January 28, 1998 (as so amended, the "Credit Agreement"),
by and among the Borrower, Lenders, Syndication Agent and Administrative Agent.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, the Borrower has advised Lenders that the Borrower desires to
directly acquire (the "Acquisition") certain business assets pertaining to the
manufacturing, marketing and selling of products under the Baby Magic brand name
(the "Baby Magic Business") for an aggregate cash purchase price of
approximately $93 million, including the payment of approximately $3 million in
related fees and expenses;
WHEREAS, the Borrower proposes to pay for the Acquisition and related
fees and expenses through the borrowing of up to $100 million of senior secured
debt consisting of additional Term A Loans funded under the Credit Agreement;
WHEREAS, the Borrower proposes to amend the Credit Agreement to reset
the permitted acquisition basket at $150 million following the Acquisition and
to increase the permitted amount of annual capital expenditures to $30 million;
WHEREAS, the Borrower has requested Lenders to amend the Credit
Agreement to (i) increase the outstanding Term A Loans by $100 million, (ii)
permit the Borrower to make the Acquisition and subsequently reset the permitted
acquisition basket at $150 million, (iii) increase the permitted amount of
annual capital expenditures under the Credit Agreement to $30 million and (iv)
make other related amendments as set forth below;
WHEREAS, subject to the terms and conditions set forth in this
Amendment, the Lenders are willing to agree to such amendments.
NOW, THEREFORE, in consideration of the premises and the agreements,
covenants and other provisions herein contained, the parties hereto agree as
follows:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Cover Page
The cover page of the Credit Agreement is hereby amended by deleting
the reference to "$170,000,000" set forth thereon and substituting
"$270,000,000" therefor.
1.2 Amendments to Section 1: Definitions
A. Subsection 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definitions, which shall be inserted in proper
alphabetical order:
"'Baby Magic Business': assets to be acquired by the Borrower on the
Second Amendment Effective Date pertaining to the manufacturing,
marketing, and selling of products under the Baby Magic (R) brand name
in the United States, Canada and Puerto Rico.
'Information Systems and Equipment of Borrower': all computer hardware
and software, as well as other information processing systems and any
equipment containing embedded microchips which are directly owned,
licensed, leased, operated or otherwise controlled by the Borrower or
any of its Subsidiaries (including through third-party service
providers), and which, in whole or in part, are used, operated, relied
upon or integral to the Borrower's or any of its Subsidiaries' conduct
of their business.
'New Term A Loan Lenders': those financial institutions making Term A
Loans to the Borrower on the Second Amendment Effective Date and
identified as New Term A Loan Lenders on Schedule 1.1. Upon the
effectiveness of the Second Amendment and the making of such Term A
Loan to the Borrower each New Term A Loan Lender shall become a Lender
for all purposes under the Credit Agreement to the same extent as if
originally a party thereto, and each reference to the term "Lender" in
the Credit Agreement shall include without limitation the New Term A
Loan Lenders.
'Second Amendment': the Second Amendment to Credit Agreement dated as
of June 30, 1999, by and among the Borrower, Lenders, Syndication Agent
and Administrative Agent.
'Second Amendment Effective Date': the date on which the conditions
precedent to the effectiveness of the Second Amendment as set forth in
Section 2 thereof shall have been satisfied.
'Year 2000 Compliant': all Information Systems and Equipment of
Borrower accurately process date data (including, but not limited to,
calculating, comparing and sequencing) before, during and after the
year 2000, as well as same-century and multi-century dates, or between
the years 1999 and 2000,
taking into account all leap years, including the fact that the year
2000 is a leap year, and further, that when used in combination with,
or interfacing with, other Information Systems and Equipment of
Borrower, shall accurately accept, release and exchange date data, and
shall in all material respects continue to function in the same manner
as it performs on the date hereof and shall not otherwise impair the
accuracy or functionality of Information Systems and Equipment of
Borrower."
B. Subsection 1.1 of the Credit Agreement is hereby further amended by
deleting the definition of "Applicable ABR Margin" therefrom and by substituting
the following therefor:
"'Applicable ABR Margin': as of any date of determination, a percentage
per annum determined by the Funded Debt Ratio set forth on the most
recent Level Determination Certificate as shown below; provided that
for the six months immediately following the funding of the Term A
Loans on the Second Amendment Effective Date, the Applicable ABR Margin
shall be deemed to be 0.25% per annum.
Funded Debt Ratio ABR Margin
------ ---- ----- --- ------
Greater than 5.25:1.0 0.25%
Greater than 4.5:1.0 and less than or equal to 0.00%
5.25:1.0
Greater than 4.0:1.0 and less than or equal to 4.5:1.0 0.00%
Less than or equal to 4.0:1.0 0.00%"
C. Subsection 1.1 of the Credit Agreement is hereby further amended by
deleting the definition of "Applicable Eurodollar Margin" therefrom and by
substituting the following therefor:
"'Applicable Eurodollar Margin': as of any date of
determination, a percentage per annum determined by the Funded
Debt Ratio set forth on the most recent Level Determination
Certificate as shown below; provided that for the six months
immediately following the funding of the Term A Loans on the
Second Amendment Effective Date, the Applicable Eurodollar
Margin shall be deemed to be 1.50% per annum.
Funded Debt Ratio Eurodollar Margin
------ ---- ----- ---------- ------
Greater than 5.25:1.0 1.50%
Greater than 4.5:1.0 and less than or equal to 1.25%
5.25:1.0
Greater than 4.0:1.0 and less than or equal to 4.5:1.0 1.00%
Less than or equal to 4.0:1.0 0.75%"
D. Subsection 1.1 of the Credit Agreement is hereby further amended by
deleting the definition of "Term A Loan Commitment" therefrom and by
substituting the following therefor:
"'Term A Loan Commitment': as to any Lender, the obligation of such
Lender to make a Term A Loan to the Borrower on the Closing Date, or on
the Second Amendment Effective Date, as the case may be, in a principal
amount not to exceed the amount set forth opposite such Lender's name
on Schedule 1.1 under the heading 'Term A Loan Commitment'."
1.3 Amendments to Section 5: Term A Loans
A. Subsection 5.1(a) of the Credit Agreement is hereby amended by
adding the following sentence at the end thereof:
"Subject to the terms and conditions hereof, each New Term A Loan
Lender severally agrees to make a Term A Loan to the Borrower upon the
Second Amendment Effective Date in an amount not to exceed the amount
of the Term A Loan Commitment of such New Term A Loan Lender as set
forth on Schedule 1.1 hereto."
B. Subsection 5.1(c) of the Credit Agreement is hereby amended by
adding the following sentence at the end thereof:
"The proceeds of the Term A Loans made by the New Term A Loan Lenders
upon the Second Amendment Effective Date shall be used to finance the
purchase of the Baby Magic Business by the Borrower and to pay related
fees and expenses in an aggregate amount of approximately $3,000,000,
and to the extent of any monies remaining, to reduce the outstanding
Revolving Credit Loans, without reduction of the Revolving Credit
Commitments."
C. Subsection 5.2 of the Credit Agreement is hereby amended
(i) by adding the phrase "or the Second Amendment Effective Date, as the case
may be" to such subsection after each place the phrase "Closing Date" appears
therein and (ii) in the second to last sentence thereof, by deleting the phrase
"of its Term A Loans" and by substituting therefor the phrase "of the Term A
Loans to be made available on such date".
1.4 Amendments to Section 3: General Provisions
Subsection 6.1 of the Credit Agreement is hereby amended by adding a
new clause (e) at the end thereof as follows:
"(e) The Borrower shall pay to the Arranger and the Syndication Agent
on the Second Amendment Effective Date such fees as have been
separately agreed upon by the Arranger, the Syndication Agent and the
Borrower. After receipt of such fees from the Borrower, the Arranger
shall pay on the Second Amendment Effective Date to each New Term A
Loan Lender such amounts as have been separately agreed upon by the
Arranger and such New Term A Loan Lender. On the Second Amendment
Effective Date,
the Borrower shall pay to the Administrative Agent, for distribution to
each Lender consenting to the Second Amendment, and party to the Credit
Agreement prior to the Second Amendment Effective Date, an amendment
fee in an amount equal to 0.125% of the sum of such Lender's Term A
Loans and Revolving Credit Commitments prior to the Second Amendment
Effective Date."
1.5 Amendments to Section 7: Representations and Warranties
Section 7 of the Credit Agreement is hereby amended by inserting the
following subsection 7.21 directly after subsection 7.20 thereof:
"7.21 Year 2000 Compliance. The Borrower has (i) initiated a review and
assessment of its and its Subsidiaries' business and operations (including those
affected by suppliers and vendors) that the Borrower believes could be adversely
affected by the "Year 2000 Problem" (that is, the risk that computer
applications used by the Borrower or its Subsidiaries (or suppliers and vendors)
may be unable to recognize and perform properly date-sensitive functions
involving certain dates prior to, and including, and after the date December 31,
1999), (ii) developed a plan and timeline for addressing the Year 2000 Problem
on a timely basis, and (iii) to date, implemented that plan substantially in
accordance with that timetable. The Borrower believes that all Information
Systems and Equipment of Borrower that are material to its or its Subsidiaries'
business and operations are on a timely basis to be Year 2000 Compliant and able
to perform properly date-sensitive functions for all dates before and after
January 1, 2000, except to the extent that a failure to do so could not
reasonably be expected to have a Material Adverse Effect."
1.6 Amendments to Section 9: Affirmative Covenants
Section 9 of the Credit Agreement is hereby amended by inserting the
following subsection 9.9 directly after subsection 9.8 thereof:
"9.9 Year 2000 Compliance. The Borrower will promptly notify the
Administrative Agent in the event the Borrower discovers or determines that any
Information Systems and Equipment of Borrower that is material to its or any of
its Subsidiaries' business and operations will not be Year 2000 Compliant as of
January 1, 2000, except to the extent that such failure could not reasonably be
expected to have a Material Adverse Effect. Additionally, the Borrower shall
provide the Administrative Agent and any Lender with such information about its
Year 2000 readiness (including, without limitation, information as to
contingency plans, budgets and testing results) as the Administrative Agent or
such Lender shall reasonably request."
1.7 Amendments to Section 10: Negative Covenants
A. Subsection 10.8 of the Credit Agreement is hereby amended by
deleting the number "$20,000,000" from each place where it appears therein and
by substituting the number "$30,000,000" therefor and by deleting the number
$10,000,000 from the last sentence of such subsection and by substituting the
number $15,000,000 therefor.
B. Subsection 10.9(h) of the Credit Agreement is hereby amended by
inserting after the phrase "not to exceed $150,000,000 in the aggregate", the
following:
", commencing as of the Second Amendment Effective Date subsequent to
the Borrower's acquisition of the Baby Magic Business"
1.8 Substitution of Schedules
A. Schedule 1.1: Addresses for Notice, Commitments. Schedule 1.1 to the
Credit Agreement is hereby amended by deleting said Schedule 1.1 in its entirety
and substituting in place thereof a new Schedule 1.1 in the form of Annex A to
this Amendment.
B. Schedule 6.2: Amortization of Term A Loans. Schedule 6.2 to the
Credit Agreement is hereby amended by deleting said Schedule 6.2 in its entirety
and substituting in place thereof a new Schedule 6.2 in the form of Annex B to
this Amendment.
C. Schedule 7.20: Uniform Commercial Code Filing Locations. Schedule
7.20 to the Credit Agreement is hereby amended by deleting said Schedule 7.20 in
its entirety and substituting in place thereof a new Schedule 7.20 in the form
of Annex C to this Amendment.
Section 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (such date of
satisfaction being referred to herein as the "Second Amendment Effective Date"):
A. On or before the Second Amendment Effective Date, the Borrower shall
deliver to Lenders (or to the Administrative Agent for Lenders with sufficient
originally executed copies, where appropriate, for each Lender and its counsel)
the following with respect to the Borrower, each, unless otherwise noted, dated
the Second Amendment Effective Date:
1. Certified copies of its Articles or Certificate of
Incorporation, or a certificate by its corporate secretary or an
assistant secretary certifying that there has been no change in the
Articles or Certificate of Incorporation subsequent to the First
Amendment Effective Date, except as disclosed in such certificate and
attaching thereto copies of any such amendments certified by the
Secretary of State of the
jurisdiction of its incorporation, together with a good standing
certificate from the Secretary of State of the jurisdiction of its
incorporation and the jurisdiction in which its principal place of
business is located, each dated a recent date prior to the Second
Amendment Effective Date;
2. Copies of its Bylaws, certified as of the Second Amendment
Effective Date by its corporate secretary or an assistant secretary, or
a certificate by such secretary or assistant secretary certifying that
there has been no change in the Bylaws subsequent to the First
Amendment Effective Date;
3. Resolutions of the Executive Committee of its Board of
Directors approving and authorizing: (i) the execution, delivery and
performance of this Amendment, (ii) the borrowing of the Term A Loans
on the Second Amendment Effective Date and (iii) the delivery and
payment of the Notes issued to the New Term A Loan Lenders (the "New
Term A Loan Notes"), certified as of the Second Amendment Effective
Date by its corporate secretary or an assistant secretary as being in
full force and effect without modification or amendment;
4. Signature and incumbency certificates of its officers
executing this Amendment and the New Term A Loan Notes;
5. This Amendment executed by the Borrower and the Credit
Support Parties and the New Term A Loan Notes executed by the Borrower
and drawn to the order of the New Term A Loan Lenders;
6. An officer's certificate of a Responsible Officer of the
Borrower to the effect that: (i) there has been no material adverse
change in the business, assets, debt service capacity, tax position,
liabilities (including environmental liabilities), financial condition,
operations or prospects of the Borrower and its Subsidiaries and of the
assets and operations purchased in the Acquisition, in each case taken
as a whole since December 31, 1998, (ii) there exists no pending or
threatened materially adverse litigation as to the Borrower or its
Subsidiaries or pertaining to the assets purchased in the Acquisition
and (iii) immediately upon the funding of the Term A Loans on the
Second Amendment Effective Date, the Borrower will consummate the
Acquisition and will deliver any security documents, liens or
guarantees, as applicable, to the Administrative Agent, together with
such other documents and certificates as may be required under the Loan
Documents, including without limitation UCC-1 Financing Statements;
7. The Lenders shall have received: (i) the audited financial
statements for the Borrower as of December 31, 1998, (ii) capsulized
unaudited income statement information for the assets of the business
acquired by the Borrower in the Acquisition (a) for the years ended
December 31, 1997 and December 31, 1998 and (b) for the quarter ended
March 31, 1999, to the extent available, and (iii) an unaudited pro
forma opening balance sheet of the Borrower as of the Second
Amendment Effective Date, giving effect to the Acquisition and the
payment of all fees related thereto; and
8. Any existing indebtedness of the business and operations
acquired in the Acquisition shall have paid in full, including the
release of any liens and collateral or other security interests
associated therewith, and any necessary consents and approvals shall
have been obtained.
B. On or before the Second Amendment Effective Date, Lenders and their
respective counsel shall have received originally executed copies of one or more
favorable written opinions of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel
to the Borrower, and of Xxxx X. Yestrumakas, general counsel and secretary of
the Borrower, in form and substance reasonably satisfactory to the Lead Arranger
and the Administrative Agent and their counsel, dated as of the Second Amendment
Effective Date, substantially in the forms set forth in Annex D hereto and as to
such other matters as the Lead Arranger or the Administrative Agent may
reasonably request.
C. On or before the Second Amendment Effective Date, Required Lenders
shall have delivered to Lead Arranger and Administrative Agent originally
executed copies of this Amendment.
D. On or before the Second Amendment Effective Date, all corporate and
other proceedings taken or to be taken in connection with this Amendment and all
documents incidental thereto not previously found acceptable by Lead Arranger
and Administrative Agent and its counsel shall be reasonably satisfactory in
form and substance to Lead Arranger and Administrative Agent and such counsel,
and Lead Arranger and Administrative Agent and such counsel shall have received
all such counterpart originals or certified copies of such documents as Lead
Arranger and Administrative Agent may reasonably request.
Section 3. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, the Borrower represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. Corporate Power and Authority. The Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "Amended Agreement") and to issue
the New Term A Loan Notes.
B. Authorization of Agreements. The execution and delivery of this
Amendment and of the New Term A Loan Notes and the performance of the Amended
Agreement and the payment of the New Term A Loan Notes have been duly authorized
by all necessary corporate action on the part of the Borrower.
C. No Conflict. The execution and delivery by the Borrower of this
Amendment and the New Term A Loan Notes and the performance by the Borrower of
the Amended Agreement and the payment of the New Term A Loan Notes do not and
will not (i) violate any provision of any law or any governmental rule or
regulation applicable to the Borrower or any of its Subsidiaries, the
Certificate or Articles of Incorporation or Bylaws of the Borrower or any of its
Subsidiaries or any order, judgment or decree of any court or other agency of
government binding on the Borrower or any of its Subsidiaries; (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of the Borrower or any of its
Subsidiaries; (iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of the Borrower or any of its Subsidiaries
(other than Liens created under any of the Loan Documents in favor of the
Collateral Agent on behalf of Lenders); or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of the Borrower or any of its Subsidiaries.
D. Governmental Consents. The execution and delivery by the Borrower of
this Amendment and the New Term A Loan Notes and the performance by the Borrower
of the Amended Agreement and the payment of the New Term A Loan Notes do not and
will not require any registration with, consent or approval of, notice to, or
other action to, with or by, any federal, state or other governmental authority
or regulatory body.
E. Binding Obligation. This Amendment and the New Term A Loan Notes
have been duly executed and delivered by the Borrower and this Amendment, the
New Term A Loan Notes and the Amended Agreement are the legally valid and
binding obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
F. Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 7 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Second Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
G. Absence of Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Default.
Section 4. ACKNOWLEDGEMENT AND CONSENT
Each Subsidiary Guarantor is a party to the Subsidiaries Guarantee and
the other Security Documents to which such Credit Support Parties are parties
pursuant to which such Subsidiary Guarantor has (i) guarantied the Borrower's
obligations under the Loan Documents and (ii) created Liens in favor of
Collateral Agent on certain Collateral to secure the obligations of such
Subsidiary Guarantor under the Subsidiaries Guarantee. The Subsidiary Guarantors
are collectively referred to herein as the "Credit Support Parties", and the
Subsidiaries Guarantee and the other Security Documents are collectively
referred to herein as the "Credit Support Documents".
Each Credit Support Party hereby acknowledges that it has reviewed the
terms and provisions of the Credit Agreement and this Amendment and consents to
the amendment of the Credit Agreement effected pursuant to this Amendment. Each
Credit Support Party hereby confirms that each Credit Support Document to which
it is a party or otherwise bound and all Collateral encumbered thereby will
continue to guaranty or secure, as the case may be, to the fullest extent
possible the payment and performance of all "Obligations" (as such term is
defined in the applicable Credit Support Document), including without limitation
the payment and performance of all such "Obligations" in respect of the Borrower
now or hereafter existing under or in respect of the Amended Agreement and the
New Term A Loan Notes defined therein. Without limiting the generality of the
foregoing, each Credit Support Party hereby acknowledges and confirms the
understanding and intent of such party that, upon the effectiveness of this
Amendment, and as a result thereof, the definition of "Obligations" contained in
the Amended Agreement includes the obligations of the Borrower under the New
Term A Loan Notes.
Each Credit Support Party acknowledges and agrees that any of the
Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties contained in the
Amended Agreement and the Credit Support Documents to which it is a party or
otherwise bound are true, correct and complete in all material respects on and
as of the Second Amendment Effective Date to the same extent as though made on
and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
Each Credit Support Party acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Credit Support Party is not required by the terms of the Credit Agreement
or any other Loan Document to consent to the amendments to the Credit Agreement
effected pursuant to this Amendment and (ii) nothing in the Credit Agreement,
this Amendment or any other Loan Document shall be deemed to require the consent
of such Credit Support Party to any future amendments to the Credit Agreement.
Section 5. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
(i) On and after the Second Amendment Effective Date, each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import referring to the Credit Agreement, and
each reference in the other Loan Documents to the "Credit Agreement,"
"thereunder," "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
the Syndication Agent or the Administrative Agent or any Lender under,
the Credit Agreement or any of the other Loan Documents.
B. Fees and Expenses. The Borrower acknowledges that all costs, fees
and expenses as described in subsection 13.5 of the Credit Agreement, as
amended, incurred by any of the Lead Arranger, the Administrative Agent or the
Agents and their counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of the Borrower.
C. Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. 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 and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are
physically attached to the same document.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER: PLAYTEX PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxx
-----------------------
Title: Executive Vice President & Chief
Financial Officer
CREDIT SUPPORT PARTIES: Playtex Investment Corp.
Playtex International Corp.
Playtex Manufacturing, Inc.
Playtex Sales & Services, Inc.
Sun Pharmaceuticals Corp.
Smile-Tote, Inc.
Personal Care Holdings, Inc.
Personal Care Group, Inc.
Carewell Industries, Inc.
TH Marketing Corp.,
(for purposes of Section 4 only)
as Credit Support Parties
By: /s/ Xxxxxxx X. Xxxx
-----------------------
Title: Executive Vice President & Chief
Financial Officer
LENDERS: XXXXX FARGO BANK, N.A.,
individually and as Administrative Agent
By: /s/ Xxxx Xxxxxxx
--------------------
Title: Relationship Manager
DLJ CAPITAL FUNDING, INC.,
individually and as Syndication Agent
By: /s/ Xxxx Xxxxxxx
--------------------
Title: Managing Director
AMSOUTH BANK N.A.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Title: Vice President
TORONTO-DOMINION BANK
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Title: Vice President
CREDIT LYONNAIS New York Branch
By: /s/ Xxxxxxxx Xxxxx
----------------------
Title: First Vice President - Manager
MITSUBISHI TRUST & BANKING
CORP.
By: /s/ Xxxxxxxxx Xxxxxxx
-------------------------
Title: Senior Vice President
COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENNE
By: /s/ Xxxx Xxxxxxx
--------------------
Title: First Vice President
By: /s/ Xxxxxx Xxxxxx
---------------------
Title: Vice President
BANCO POPULAR NORTH AMERICA
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Title: Assistant Vice President
ABN AMRO BANK, N.V.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Title: Vice President
By: /s/ Xxxx Bezdenejnykk Guille
--------------------------------
Title: Assistant Vice President
ERSTE BANK
By: /s/ Xxxx Xxxxxxxxxx
-----------------------
Title: Vice President
By: /s/ Xxxx Xxxxxx
-------------------
Title: Assistant Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxx
-------------------
Title: First Vice President
By: /s/ Xxxx XxXxxxx
--------------------
Title: Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED, NEW YORK
BRANCH
By: /s/ Nozami Move
-------------------
Title: Deputy General Manager
SOCIETE GENERALE
By: /s/ Xxxxxxxxxxx Xxxxxx
--------------------------
Title: Director-Head SG Dallas
IMPERIAL BANK
By: /s/ Xxx Xxxxxxx
-------------------
Title: Senior Vice President
PEOPLE'S BANK
By: /s/ Xxxxxxx X. Schewighoffer
--------------------------------
Title: Vice President
IKB DEUTSCHE INDUSTRIEBANK AG,
LUXEMBOURG BRANCH
By: /s/ Xxxxx Xxxxxx
--------------------
Title: Executive Director
By: /s/ Xxxxxxx Ziwey
---------------------
Title: Director
DG BANK
By: /s/ Xxxxx Xxxxxx
--------------------
Title: Vice President
By: /s/ Xxxxx Xxxxxxx
---------------------
Title: AVP
CHEVY CHASE BANK
By: /s/ Xxxx Xxx Xxxxxxx
------------------------
Title: Vice President
NATEXIS BANQUE BFCE
By: /s/ Xxxxx X. Xxxxxx, Xx.
----------------------------
Title: Vice President & Group Manager
By: /s/ Xxxxxx Xxxxxx
---------------------
Title: Associate
TORONTO DOMINION (NEW YORK), INC
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Title: Vice President
Annex A
I. Closing Date
Schedule 1.1 - Addresses for Notice, Commitments
Working Cap. Revolving
LENDERS Term A Loan Acq. Revolving Credit Credit
------- ----------- --------------------- ----------------------
DLJ Capital Funding, Inc. $49,823,527.00 $36,235,296.00 $67,941,177.00
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Xxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Xxxxx Fargo Bank, N.A. $5,176,473.00 $3,764,704.00 $7,058,823.00
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to:
Xxxx Xxxxxxxx
Xxxxx Fargo Bank
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
TOTAL: $55,000,000.00 $40,000,000.00 $75,000,000.00
===== ============== ============== ==============
A-1
II. Second Amendment Effective Date
New Term A Loan Lenders:
------------------------
LENDERS Term A Loan
------- -----------
People's Bank 13,500,000.00
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
IKB Deutsche Industriebank 13,500,000.00
AG
X.X. Xxx 000000
0000 Xxxxxxxxxx
Xxxxxxx
Attention: Xxxxxx Xxxxxx
Telephone: 011-49-211-
0000-0000
Telecopy: 011-49-211-8221-
2887
DG Bank 13,500,000.00
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Compagnie Financiere de 13,500,000.00
CIC et de l'Union
Europeenne
000 Xxxxxxx Xxxxxx,
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
00000
Attention: Xxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Chevy Chase Bank 13,500,000.00
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
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Natexis Banque BFCE 5,000,000.00
Corporate Finance Group
000 Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
New Term A Loan Lenders (continued from previous page):
-------------------------------------------------------
LENDERS Term A Loan
------- -----------
ABN AMRO Bank, N.V. 5,000,000.00
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Attention: Xxxxxxx
Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to:
000 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx
Xxxxxxxxxx Telephone: 312-
000-0000
Telecopy: 000-000-0000
DLJ Capital Funding, Inc. $22,500,000.00
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Xxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
TOTAL: $100,000,000.00
====== ===============
A-3
Annex B
Schedule 6.2 - Amortization of Term A Loans
-------------------------------------------
Amortization of Term A Loans
----------------------------
Payment Date Amount
------------ ------
September 15, 1999 $1,937,500
December 15, 1999 1,937,500
March 15, 2000 1,937,500
June 15, 2000 1,937,500
September 15, 2000 8,718,750
December 15, 2000 8,718,750
March 15, 2001 8,718,750
June 15, 2001 8,718,750
September 15, 2001 12,593,750
December 15, 2001 12,593,750
March 15, 2002 12,593,750
June 15, 2002 12,593,750
September 15, 2002 15,500,000
December 15, 2002 15,500,000
March 15, 2003 15,500,000
June 15, 2003 15,500,000
------------
TOTAL $155,000,000
X-0
Xxxxx X
Xxxxxxxx 0.00 - Xxxxxxx Xxxxxxxxxx Code Filing Locations
--------------------------------------------------------
1. Secretary of State of Alabama
2. Secretary of State of Arizona
3. Secretary of State of California
4. Secretary of State of Connecticut
5. Secretary of State of Delaware
6. Secretary of State of Florida
7. DeKalb County, Georgia
8. Xxxxxx County, Georgia
9. Gwinnett County, Georgia
10. Secretary of State of Idaho
11. Secretary of State of Illinois
12. Secretary of State of Indiana
13. Secretary of State of Iowa
14. Secretary of State of Kentucky
15. Department of Assessments & Taxation, Maryland
16. Secretary of State of Massachusetts
17. City of Boston, Massachusetts
18. Town of Easton, Massachusetts
19. Town of Leominster, Massachusetts
20. Town of Rowley, Massachusetts
21. Secretary of State of Michigan
22. Kent County, Michigan
23. Secretary of State of Missouri
24. Franklin County, Missouri
25. Xxxxxx County, Missouri
26. Xxxxxxxxx xx Xxxxx xx Xxx Xxxxxx
00. Secretary of State of New York
28. Albany County, New York
29. New York County, New York
30. Orange County, New York
31. Rensselaer County, New York
32. Rockland County, New York
33. Westchester County, New York
34. Xxxxxxxxx xx Xxxxx xx Xxxxx Xxxxxxxx
00. New Hanover County, North Carolina
36. Secretary of State of Ohio
37. Cuyahoga County, Ohio
38. Franklin County, Ohio
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39. Geauga County, Ohio
40. Guernsey County, Ohio
41. Xxxxxxxx County, Ohio
42. Ohio Xxxx County, Ohio
43. Xxxxxxxxxx County,
44. Portage County, Ohio
45. Shelby County, Ohio
46. Tuscarawas County, Ohio
47. Xxxxx County, Ohio
48. Oklahoma County, Oklahoma
49. Secretary of State of Oregon
50. Secretary of the Commonwealth of Pennsylvania
51. Xxxxx County Prothonotary, Pennsylvania
52. Berks County Prothonotary, Pennsylvania
53. Cumberland County, Pennsylvania
54. Erie County, Pennsylvania
55. Lancaster County, Pennsylvania
56. Lebanon County Prothonotary, Pennsylvania
57. Lehigh County, Pennsylvania
58. Xxxxxxxxxx County, Pennsylvania
59. North Hampton County, Pennsylvania
60. Somerset County, Pennsylvania
61. York County, Pennsylvania
62. Xxxxxxxxx xx Xxxxx xx Xxxxx Xxxxxx
00. Xxxxxxxxx xx Xxxxx xx Xxxxx Xxxxxxxx
00. Secretary of State of Tennessee
65. Shelby County, Tennessee
66. Secretary of State of Texas
67. Secretary of State of Utah
68. Secretary of State of Virginia
69. Virginia Beach Independent City, Virginia
70. Department of Licensing, Washington
71. Secretary of State of Wisconsin
C-2
Annex D
[Form of Legal Opinion]
June __, 1999
To the Lenders party to the
Credit Agreement referred
to below, DLJ Capital
Funding, Inc., as Syndication Agent,
and Xxxxx Fargo Bank, N.A.,
as Administrative Agent
Ladies and Gentlemen:
We have acted as special counsel to Playtex Products, Inc., a Delaware
corporation (the "Borrower"), in connection with the Second Amendment to the
Credit Agreement (the "Second Amendment") dated as of June __, 1999 among the
Borrower, the financial institutions listed on the signature pages thereof (the
"Lenders"), DLJ Capital Funding, Inc., as Syndication Agent (the "Syndication
Agent"), and Xxxxx Fargo Bank, N.A., as Administrative Agent (the
"Administrative Agent"). Capitalized terms used herein and not otherwise defined
have the respective meanings given those terms in the Credit Agreement dated as
of July 21, 1997, as amended by the First Amendment dated as of January 28, 1998
(as so amended, the "Credit Agreement") among the Borrower, Lenders, Syndication
Agent and Administrative Agent and as amended by the Second Amendment on the
date hereof (the "Amended Credit Agreement"). This opinion is being furnished to
you at the request of the Borrower pursuant to Section 2.B of the Second
Amendment.
D-1
In connection with this opinion, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents, each dated as of the date hereof (collectively, the "Documents"):
1. The Amended Credit Agreement;
2. The Borrower Security Agreement;
3. The Second Amendment; and
4. The New Term A Loan Notes executed by the Borrower on the Second
Amendment Effective Date.
In addition, we have examined: (i) such corporate records of the
Borrower as we have considered appropriate, including copies of the certificate
of incorporation, as amended, and by-laws, as amended, of the Borrower certified
as in effect on the date hereof (collectively, the "Charter Documents") and
certified copies of resolutions of the board of directors of the Borrower and of
the executive committee of the board of directors of the Borrower; and (ii) such
other certificates, agreements and documents as we deemed relevant and necessary
as a basis for the opinions hereinafter expressed.
In our examination of the aforesaid documents, we have assumed, without
independent investigation, (i) the genuineness of all signatures, (ii) the
enforceability of the documents against each party thereto other than the
Borrower, (iii) the legal capacity of all individuals who have executed any of
the documents and (iv) the authenticity of all documents submitted to us as
originals, the conformity to the original documents of all
D-2
documents submitted to us as certified, photostatic, reproduced or conformed
copies of valid existing agreements or other documents and the authenticity of
all such latter documents.
In expressing the opinions set forth herein, we have relied upon the
factual matters contained in the representations and warranties of the Borrower
made in the Documents and upon certificates of public officials and officers of
the Borrower.
Based upon the foregoing, and subject to the assumptions, exceptions
and qualifications set forth herein, we are of the opinion that:
1. The Borrower (i) is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and (ii)
has the corporate power and authority to own and operate its property and
assets, to lease the property it operates as lessee and to carry on its
respective businesses as now conducted.
2. The Borrower has all necessary corporate power and authority to
execute, deliver and perform its obligations under each Document and the
execution, delivery and performance by the Borrower of each of the Documents has
been duly authorized by all necessary corporate action on the part of the
Borrower.
3. Each Document has been duly executed and delivered by the Borrower
and constitutes the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms.
D-3
4. The execution and delivery by the Borrower of each of the Documents
and the consummation by the Borrower of the transactions contemplated thereby
does not (i) violate or result in a breach of or default under the Borrower's
Charter Documents, or any material applicable law or regulation of the United
States (including Regulations T, U or X of the Board of Governors of the Federal
Reserve System of the United States) or the State of New York or the General
Corporation Law of the State of Delaware (the "GCL") (other than any state
securities or "blue sky" laws, as to which we express no opinion), or any order,
writ, injunction or decree of which we have knowledge (without investigation) of
any court or governmental authority or agency of the United States or the State
of New York binding upon the Borrower or to which the Borrower is subject or any
instrument or document listed on Schedule 1 hereto to which the Borrower is a
party to or by which the Borrower is bound or (ii) result in the creation or
imposition of any Liens upon the assets of the Borrower pursuant to the terms of
any such agreement or instrument (except for Liens in favor of the Collateral
Agent contemplated by the Loan Documents).
5. The execution and delivery by the Borrower of each of the Documents
and the consummation by the Borrower of the transactions contemplated thereby
(a) does not violate, or constitute a default under, any of the material
Contractual Obligations of the Borrower and (b) will not result in or require
the creation or imposition of any Lien on any of its respective properties or
revenues, except the security interests created pursuant to the
D-4
Borrower Security Agreement.*
6. Except for (i) filings which are necessary to perfect the security
interest granted under the Documents, (ii) filings, authorization or approvals
relating to state securities or "blue sky" laws (as to which we express no
opinion) and (iii) such other filings, authorizations or approvals as are
specifically contemplated by the Documents and the Amended Credit Agreement, no
authorization or approvals of, and no filings with, any governmental or
regulatory authority or agency of the United States or the State of New York, or
under the GCL, are necessary for the execution, delivery or performance by the
Borrower of the Documents.
7. The Borrower is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
8. The Borrower Security Agreement dated as of July 21, 1997, as
supplemented as of the date hereof (as so supplemented, the "Borrower Security
Agreement"), creates a valid security interest in favor of the Collateral Agent,
for the benefit of the Lenders, in all right,
---------------------------------
* Can be delivered by Borrower's General Counsel.
D-5
title and interest of the Borrower in and to the Collateral to the extent that
Article 9 of the NY-UCC is applicable thereto. The UCC-1 financing statements
listed on Schedule 2 hereto (the "New York Financing Statements") are in
appropriate form for filing, and the filing offices listed on said Schedule 2
(the "New York Filing Offices") are all of the offices in New York in which
filings are required to perfect the security interest of the Collateral Agent
for the benefit of the Lenders in the Collateral to the extent that security
interests in the Collateral can be perfected by filing under the NY-UCC.
Assuming such New York Financing Statements have been duly presented for filing
to the New York Filing Officers with the appropriate filing fees tendered, or
duly accepted for filing by the appropriate filing officers in each New York
Filing Office, then to the extent that security interests in the Collateral may
be perfected by filing under the NY-UCC, such filings have resulted in the
perfection of such security interests.
9. The obligations of the Borrower under the Amended Credit Agreement
and the other Loan Documents constitute "Senior Indebtedness" and "Designated
Senior Indebtedness" as such terms are defined in the Senior Subordinated
Indenture.
The foregoing opinion is subject to the following assumptions,
exceptions and qualifications:
(a) The enforceability of the Documents may be: (i) subject to
D-6
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors' rights generally; (ii) subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity); and (iii) subject to the
qualification that certain remedial provisions of the Borrower Security
Agreement are or may be unenforceable in whole or in part under the laws of the
State of New York, but the inclusion of such provisions does not make the
remedies afforded by the Borrower Security Agreement inadequate for the
practical realization of the rights and benefits purported to be provided
thereby except for the economic consequences resulting from any delay imposed
by, or any procedure required by, applicable New York laws, rules, regulations
and court decisions and by constitutional requirements in and of the State of
New York.
(b) We express no opinion as to: (i) the enforceability of any
provisions contained in the Documents that purport to establish (or may be
construed to establish) evidentiary standards; (ii) the enforceability of any
provisions contained in the Borrower Security Agreement that constitute waivers
which are prohibited under the NY-UCC prior to default; or (iv) the
enforceability of forum selection clauses in the federal courts.
(c) In giving the opinions set forth in paragraph 8 above, we
express no opinion as to: (i) the Borrower's right, title or interest in or to
any Collateral or
D-7
the description of such Collateral in the Borrower Security Agreement; (ii) the
laws of any other state or the perfection and effect of perfection or
non-perfection of a security interest in the Collateral subject to the laws of
any state other than New York; (iii) the perfection of security interests in
fixtures, equipment used in farming operations, farm products, consumer goods,
timber or minerals or the like, or accounts resulting from the sale thereof; or
(iv) the creation, validity, perfection, priority or enforceability of any
security interest sought to be created in any patents, trademarks, trade names,
service marks, copyrights, deposit accounts, insurance policies, real property
or any other items of property to the extent that a security interest therein is
excluded from the coverage of Article 9 of the NY-UCC. In addition, except as
specifically set forth in paragraph 8 above, we express no opinion as to the
perfection of any security interest.
(d) We wish to point out that in the case of proceeds (as
defined in Article 9 of the NY-UCC), the continuation of perfection of any
security interest therein (i) is limited to the extent set forth in Section
9-306 of the NY-UCC, and (ii) if such proceeds consist of property in which a
perfected security interest cannot be obtained or maintained by the filing of
the New York Financing Statements in the New York Filing Offices, will require
additional compliance with applicable provisions of the NY-UCC.
(e) We call to your attention the fact that (i) Article 9 of
the NY-UCC requires the filing of continuation statements within the period of
six months prior
D-8
to the expiration of each five year period from the date of the original filing
of financing statements, as applicable, in order to maintain the effectiveness
of the filings referred to in this opinion, and (ii) additional filings may be
necessary if the Borrower or any subsidiary of the Borrower changes its name,
identity or corporate structure or the jurisdictions in which its places of
business, its chief executive office or the Collateral are located.
Our opinions expressed above are limited to the laws of the State of
New York, the GCL and the Federal laws of the United States. Please be advised
that no member of this firm is admitted to practice in the State of Delaware.
Our opinions are rendered only with respect to the laws, and the rules,
regulations and orders thereunder, which are currently in effect.
D-9
This letter is furnished by us solely for your benefit in connection
with the transactions referred to in the Amended Credit Agreement and may not be
circulated to, or relied upon by, any other Person, except that this letter may
be circulated to any prospective Lender under the Amended Credit Agreement and,
subject to the following sentence, may be relied upon by any person who, in the
future, becomes a Lender to the Amended Credit Agreement. This opinion speaks
only as of the date hereof and we have no responsibility or obligation to update
this opinion, to consider its applicability or correctness to other than its
addressees, or to take into account changes in law, facts or any other
development of which we may later become aware.
Very truly yours,
D-10
