Exhibit 10.2
PLAYTEX PRODUCTS, INC.
SECOND AMENDMENT TO TERM LOAN AGREEMENT
This SECOND AMENDMENT TO TERM LOAN AGREEMENT (this "Amendment") is
dated as of December 15, 2000, and entered into by and among Playtex Products,
Inc., a Delaware corporation ("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 facility manager for the Lenders ("FACILITY MANAGER"), 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
Term Loan Agreement dated as of July 21, 1997, as amended by a First Amendment
dated as of January 28, 1998 (as so amended, the "TERM LOAN AGREEMENT"), by and
among Borrower, Lenders, Syndication Agent and Facility Manager. Capitalized
terms used herein without definition shall have the same meanings herein as set
forth in the Term Loan Agreement.
RECITALS
WHEREAS, Borrower has advised Lenders that Borrower desires to amend
the Credit Agreement in certain respects and that in connection therewith
Borrower has agreed to amend the Term Loan Agreement to (i) increase the
interest rate under the Term Loan Agreement and (ii) make certain other related
amendments as set forth below;
WHEREAS, subject to the terms and conditions of this Amendment,
Lenders are willing to agree to such amendments.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE TERM LOAN AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS
A. Subsection 1.1 of the Term Loan Agreement is hereby amended by
adding thereto the following definitions, which shall be inserted in proper
alphabetical order:
"`FUNDED DEBT RATIO': Borrower's "Funded Debt Ratio" as defined in,
and as determined in accordance with, the Credit Agreement as in effect on
the Second Amendment Effective Date.
`LEVEL DETERMINATION CERTIFICATE': Borrower's "Level Determination
Certificate" as defined in the Credit Agreement as in effect on the Second
Amendment Effective Date.
`SECOND AMENDMENT': the Second Amendment to Term Loan Agreement
dated as of December 15, 2000, by and among Borrower, Lenders, Syndication
Agent and Facility Manager.
`SECOND AMENDMENT EFFECTIVE DATE': December 15, 2000; provided that
the conditions precedent to the effectiveness of the Second Amendment as
set forth in Section 2 thereof shall have been satisfied on or prior to
such date."
B. Subsection 1.1 of the Term Loan Agreement is hereby further
amended by deleting the definitions of "Applicable ABR Margin" and "Applicable
Eurodollar Margin"" therefrom and by substituting therefor the following:
"`APPLICABLE ABR MARGIN': as at any date of determination (i) prior
to the Second Amendment Effective Date, a percentage per annum equal to
0.25%, and (ii) on and after the Second Amendment Effective Date, a
percentage per annum determined by the Funded Debt Ratio set forth on the
most recent Level Determination Certificate as shown below:
FUNDED DEBT RATIO ABR MARGIN
----------------- ----------
Greater than 4.5:1.0 0.75%
Greater than 4.0:1.0 and
less than or equal to 4.5:1.0 0.50%
Less than or equal to 4.0:1.0 0.25%
; PROVIDED that in the event that any of Borrower's debt ratings are
lowered by either of Standard & Poor's Ratings Group or Xxxxx'x
Investor Service, Inc. from those in effect on the Second Amendment
Effective Date, each of the percentages set forth above for the ABR
Margin shall be increased, effective as of the date such change in
ratings is announced, by an additional 0.25% per annum; PROVIDED
further that in the event that any, or if both such ratings services
lowered Borrower's debt ratings all, of such lowered debt ratings
are thereafter raised to ratings which are not less than those in
effect on the Second Amendment Effective Date, the percentages set
forth above for the ABR Margin shall again be in effect without
regard to such 0.25% per annum increase, such change to be effective
as of the date Borrower's debt ratings are not less than those in
effect on the Second Amendment Effective Date."
`APPLICABLE EURODOLLAR MARGIN': as at any date of determination (i)
prior to the Second Amendment Effective Date, a percentage per annum equal
to 1.50%, and (ii) on and after the Second Amendment Effective Date, a
percentage per annum determined by the Funded Debt Ratio set forth on the
most recent Level Determination Certificate as shown below:
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FUNDED DEBT RATIO APPLICABLE EURODOLLAR MARGIN
----------------- ----------------------------
Greater than 4.5:1.0 2.00%
Greater than 4.0:1.0 and
less than or equal to 4.5:1.0 1.75%
Less than or equal to 4.0:1.0 1.50%"
; PROVIDED that in the event that any of Borrower's debt ratings are
lowered by either of Standard & Poor's Ratings Group or Xxxxx'x
Investors Service, Inc. from those in effect on the Second Amendment
Effective Date, each of the percentages set forth above for the
Eurodollar Margin shall be increased, effective as of the date such
change in ratings is announced, by an additional 0.25% per annum;
PROVIDED further that in the event that any, or if both such ratings
services lowered Borrower's debt ratings all, of such lowered debt
ratings are thereafter raised to ratings which are not less than
those in effect on the Second Amendment Effective Date, the
percentages set forth above for the Eurodollar Margin shall again be
in effect without regard to such 0.25% per annum increase, such
change to be effective as of the date Borrower's debt ratings are
not less than those in effect on the Second Amendment Effective
Date."
1.2 AMENDMENTS TO SECTION 3: GENERAL PROVISIONS
Subsection 3.6 of the Term Loan Agreement is hereby amended by
adding the following paragraph (g) at the end thereof:
"(g) Upon delivery of the Level Determination Certificate by
the Borrower to the Facility Manager pursuant to subsection 6.2(c),
the Applicable Eurodollar Margin and the Applicable ABR Margin shall
automatically be adjusted in accordance with the Funded Debt Ratio
in effect as determined by such Level Determination Certificate,
such adjustment to become effective on the next succeeding Business
Day after the receipt by the Facility Manager of such Level
Determination Certificate; PROVIDED that if a Level Determination
Certificate is not delivered at the time required pursuant to
subsection 6.2(c), the Applicable ABR Margin shall be 0.50% per
annum and the Applicable Eurodollar Margin shall be 1.75% per annum,
from such time until delivery of such Level Determination
Certificate; PROVIDED FURTHER that if a Level Determination
Certificate erroneously indicates margin more favorable to the
Borrower than should be afforded by the actual calculation of the
Funded Debt Ratio, the Borrower shall promptly pay additional
interest to correct for such error."
1.3 AMENDMENTS TO SECTION 6: AFFIRMATIVE COVENANTS
Subsection 6.2(c) of the Term Loan Agreement is hereby amended by
deleting it in its entirety and by substituting therefor the following:
"(c) not later than 45 days following the end of each fiscal
quarter of the Borrower, the Borrower shall deliver (i) a copy of
the Level Determination Certificate for such fiscal quarter
delivered to the Agents under the Credit
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Agreement and (ii) a certificate of a Responsible Officer for any
fiscal quarter in which aggregate Asset Sales exceed $5,000,000
describing in reasonable detail such Asset Sales and the derivation
and intended application of the Net Cash Proceeds thereof;"
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, Borrower shall
deliver to Lenders (or to Facility Manager 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. Signature and incumbency certificates of its officers
executing this Amendment; and
2. This Amendment executed by the Borrower and the Credit
Support Parties.
B. On or before the Second Amendment Effective Date, Required
Lenders shall have delivered to Agents originally executed copies of this
Amendment.
C. 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 the Agents,
and its counsel shall be reasonably satisfactory in form and substance to the
Agents and such counsel, and the Agents and such counsel shall have received all
such counterpart originals or certified copies of such documents as the Agents
may reasonably request.
SECTION 3. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Term Loan Agreement in the manner provided herein, Borrower represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. CORPORATE POWER AND AUTHORITY. 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 Term Loan
Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of Borrower.
C. NO CONFLICT. The execution and delivery by Borrower of this
Amendment and the performance by Borrower of the Amended Agreement do not and
will not (i) violate any
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provision of any law or any governmental rule or regulation applicable to
Borrower or any of its Subsidiaries, the Certificate or Articles of
Incorporation or Bylaws of Borrower or any of its Subsidiaries or any order,
judgment or decree of any court or other agency of government binding on
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 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 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 Borrower or any of its
Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by Borrower of
this Amendment and the performance by Borrower of the Amended Agreement 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 have been duly executed and
delivered by Borrower and this Amendment and the Amended Agreement are the
legally valid and binding obligations of Borrower, enforceable against 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 TERM LOAN
AGREEMENT. The representations and warranties contained in Section 4 of the Term
Loan 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) guaranteed
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 Term Loan Agreement and this Amendment and
consents to the
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amendment of the Term Loan 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
Notes defined therein.
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 Term Loan
Agreement or any other Loan Document to consent to the amendments to the Term
Loan Agreement effected pursuant to this Amendment and (ii) nothing in the Term
Loan 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
Term Loan Agreement.
SECTION 5. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE TERM LOAN AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
(i) On and after the Second Amendment Effective Date, each reference
in the Term Loan Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import referring to the Term
Loan Agreement, and each reference in the other Loan Documents to
the "Term Loan Agreement," "thereunder," "thereof" or words of like
import referring to the Term Loan Agreement shall mean and be a
reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Term Loan
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 Facility Manager or any
Lender under, the Term Loan Agreement or any of the other Loan
Documents.
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B. FEES AND EXPENSES. Borrower acknowledges that all costs, fees and
expenses as described in subsection 10.5 of the Term Loan Agreement, incurred by
any of the Collateral 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 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.
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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/ XXXXX X. XXXXXX
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Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
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CREDIT SUPPORT PARTIES:
Playtex Investment Corp.
Playtex International Corp.
Playtex Manufacturing, Inc.
Playtex Sales & Services, Inc.
Sun Pharmaceuticals Corp.
Smile-Tote, Inc.
TH Marketing Corp.
Personal Care Holdings, Inc.
Personal Care Group, Inc.
Carewell Industries, Inc.
(for purposes of Section 4 only)
as Credit Support Parties
By: /s/ XXXXX X. XXXXXX
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Title:
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LENDERS:
By:
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Title:
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