EX-1
First Amendment to Loan Agreement
DEL LABORATORIES, INC.
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FIRST AMENDMENT
TO LOAN AGREEMENT
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FIRST AMENDMENT, dated as of March 31, 1997 (this
"Amendment"), to the Loan Agreement, dated as of May 26, 1993
(the "Loan Agreement"), by and among Del Laboratories, Inc., a
Delaware corporation (the "Company"), Xxxxxxx National Life
Insurance Company, a Michigan insurance corporation and Xxxxxxx
National Life Insurance Company of Michigan, a Michigan insurance
corporation (Xxxxxxx National Life Insurance Company and Xxxxxxx
National Life Insurance Company of Michigan are collectively
referred to herein as "Lenders").
R E C I T A L S:
WHEREAS, the Company has requested that Lenders consent to
modify the Loan Agreement in order to increase the ability of the
Company to redeem certain of its capital stock; and
WHEREAS, Lenders have agreed that upon this Amendment
becoming effective certain provisions of the Loan Agreement will
be amended as provided below;
NOW, THEREFORE, the parties agree as follows:
A. Defined Terms. Terms defined in the Loan Agreement and
used herein shall have the same meanings given to them in the
Loan Agreement.
B. Amendments to Loan Agreement.
1. Clause (A) in Section 5.8 of the Loan Agreement
shall be deleted in its entirety and replaced with the following:
"(A) the aggregate amount of all Restricted Payments made
during the period commencing on January 1, 1993, and ending on
and including the date of any action (the "Computation Period")
shall not exceed the sum of
(1) $6,000,000, plus
(2) 50% (or, in the case of a net loss, minus 100%)
of Consolidated Net Income for the Computation Period, plus
(3) the amount of the net proceeds, in excess of the
first $6,500,000 of net proceeds, received by the Company at any
time during the period commencing on January 1, 1997, and ending
on and including the date of such Restricted Payment, directly
from the issuance of any of the Company's shares of capital
stock, including but not limited to the net proceeds received by
the Company upon the exercise of any stock options or other
rights to purchase capital stock of the Company, less the amount
of all outstanding loans and advances made by the Company or any
of its Affiliates to employees of the Company or other Persons
during such period for the purpose of permitting such Persons to
purchase shares or exercise stock options of the Company, and
less the amount of all purchases, redemptions and retirements of
shares of the Company effected substantially concurrently with
the issuance of any shares of the capital stock of the Company
during such period which do not qualify as a "Restricted Payment"
by virtue of Section (B)(2) of the definition thereof, plus
(4) the amount of all Restricted Payments made by the
Company, up to a maximum of $6,500,000, either directly or
indirectly through a registered broker-dealer or an employee
stock ownership trust (an "ESOT"), to purchase, repurchase or
redeem shares of capital stock of the Company held by employees
or former employees of the Company and its Subsidiaries (or their
respective heirs, personal representatives, successors or
assigns) during the period commencing on October 1, 1996, and
ending on and including the date of the Restricted Payment,
provided that
(a) the total amount of all payments made to,
and stock purchase made from, Xxxxxx X. Xxxxxx not exceed
$1,500,000 (any excess payment being a prohibited Restricted
Payment),
(b) any such payment or purchase of capital stock
is otherwise made in compliance with the terms of the Loan Agreement, and
(c) payments made in cash to any employee or former
employee of the Company or any of its Subsidiaries (or to such person's
heirs, personal representatives, successors or assigns) in
satisfaction of such employee's or former employee's account
balances under the Company's ESOT shall not be considered
Restricted Payments for purposes of this Agreement provided that
such cash payments are made consistent in all respects with the
terms of the ESOT and its past practices and are not made for the
purpose, directly or indirectly, of purchasing or redeeming
capital stock of the Company, and".
2. Section 5.14 of the Loan Agreement shall be
amended by adding the following clause at the end of that
Section:
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"provided, however, that with respect to purchases of
shares of the capital stock of the Company from Affiliates, any
purchase made for cash at a price not greater than the average
daily closing price of such shares on all national securities
exchanges and/or reported through the automated quotation system
of a registered securities association during the ten
business day period immediately preceding the date of the
purchase shall be deemed to have been made on an arm's length
basis."
C. Conditions to Effectiveness. This Amendment shall become
effective on the date (the "Amendment Effective Date") on which
the following conditions precedent have been satisfied or waived:
1. The Company shall have executed and delivered this
Amendment to the Lenders.
2. The Lenders shall have received a Later Date
Certificate, dated as of the Amendment Effective Date, signed by
the Secretary of the Company, certifying such facts concerning
the Company, the incumbency of its officers, and its authority to
enter into this Amendment as the Lenders may reasonably require.
3. The Lenders shall have received the executed legal
opinion, dated the Amendment Effective Date, of Zimet, Haines,
Xxxxxxxx & Xxxxxx, counsel to the Company, or such other law firm
as may be acceptable to the Lenders, satisfactory in form and
substance to the Lenders, which shall cover such matters incident
to this Amendment or the other loan documents as the Lenders
may reasonably require.
D. General.
1. Representation and Warranties. To induce the
Lenders to enter into this Amendment, the Company hereby
represents and warrants to the Lenders as of the Amendment
Effective Date that:
(a) No Material Adverse Change or Default. Since May
26, 1993, there has been no development or event nor any
prospective development or event, which has had or could
reasonably be expected to have a material adverse effect on the
assets, business or financial condition of the Company. No Event
of Default has occurred and will be continuing after giving
effect to this Amendment.
(b) Corporate Power; Authorization; Enforceable
Obligations.
(i) The Company has the corporate power and
authority, and the legal right, to make and deliver this
Amendment and to perform all of its obligations under the Loan
Agreement, as amended by this Amendment, and the other loan
documents, and has taken all
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necessary corporate action to authorize the execution and
delivery of this Amendment and the performance of the loan
documents, as so amended.
(ii) No consent or authorization of, approval by,
notice to, filing with or other act by or in respect of, any
governmental authority or any other Person is required in
connection with the execution and delivery of this Amendment or
with the performance, validity or enforceability of the loan
documents, as amended by this Amendment.
(iii) When executed and delivered, this Amendment and
the Loan Agreement, as amended by this Amendment, will constitute
a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting the enforcement of creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing.
(c) No Legal Bar. The execution and delivery of this
Amendment and the performance of the Company's obligations under
the loan documents, as amended by this Amendment, will not
violate any statute, rule, law, ordinance, regulation or order
(statutes, rules, laws, ordinances, regulations and orders
are collectively referred to as, "Governmental Rule") applicable
to the Company or any material contractual obligation of the
Company and will not result in, or require, the creation or
imposition of any Encumbrance on any of its properties or
revenues pursuant to any such Governmental Rule or contractual
obligation which could reasonably be expected to have a material
adverse effect on the assets, business or financial condition of
the Company.
(d) Representation and Warranties. The
representations and warranties made by the Company in the Loan
Agreement and in Exhibit B thereto are true and correct in all
material respects on and as of the Amendment Effective Date,
before and after giving effect to the effectiveness of this
Amendment, as if made on and as of the Amendment Effective Date,
other than those that relate to an earlier or specific date
provided, however, that the Company makes no representation as to
the continued accuracy of the information contained in Schedules
D-1 through D-8 of the Loan Agreement.
2. Payment of Expenses. The Company agrees to pay or
reimburse Lenders for all of their out-of-pocket costs and
reasonable expenses incurred in connection with this Amendment,
any other documents prepared in connection herewith and the
transactions contemplated hereby, including, without limitation,
the reasonable fees and disbursements of counsel to Lenders.
3. No Other Amendments; Confirmation.
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(a) Except as expressly amended, modified and supplemented
hereby, the provisions of the Loan Agreement and each of the
other loan documents are and shall remain in full force and
effect. The Company may not rely in any way upon the Lenders'
willingness to enter into this Amendment or assume that the
Lenders will agree to any future amendment of the Loan Agreement
or other loan documents.
(b) The Company hereby confirms its obligations under the
Loan Agreement and acknowledges that it has no defenses, claims
or set-offs to the enforcement by the Lenders of any of the
Company's stated obligations thereunder.
4. Governing Law; Counterparts.
(a) This Amendment and the rights and obligations of
the parties hereto shall be governed by, and construed and
interpreted in accordance with, the internal, substantive laws of
the State of Illinois without regard to its conflicts of law
doctrine.
(b) This Amendment may be executed by one or more of
the parties to this Amendment on any number of separate
counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument. A set of the
copies of this Amendment signed by all the parties shall be
lodged with the Company and with the Lenders. This Amendment may
be delivered by facsimile transmission of the relevant signature
pages hereof.
[The next page is the signature page]
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IN WITNESS HEREOF, the parties hereto have caused
this First Amendment to be duly executed and delivered by their
respective proper and duly authorized officers as of the date and
year first above written.
DEL LABORATORIES, INC. a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
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Its: Vice President, Finance
XXXXXXX NATIONAL LIFE INSURANCE
COMPANY, a Michigan insurance corporation
By: PPM America, Inc., its agent
By: /s/ X.X. Xxxxxxx
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Its: Senior Vice President
XXXXXXX NATIONAL LIFE INSURANCE
COMPANY as successor by merger to
XXXXXXX NATIONAL LIFE INSURANCE
COMPANY OF MICHIGAN, a Michigan
insurance corporation
By: PPM America, Inc., its agent
By: /s/ X.X. Xxxxxxx
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Its: Senior Vice President
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