EXHIBIT 10.1
------------
PLAYTEX PRODUCTS, INC.
SECOND AMENDMENT
TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is dated
as of June 26, 2003 and entered into by and among Playtex Products, Inc., a
Delaware corporation (the "BORROWER"), the Persons listed on the signature pages
hereto as Guarantors, the financial institutions listed on the signature pages
hereto as Lenders and Credit Suisse First Boston, acting through its Cayman
Islands Branch, as Administrative Agent for the Lenders (the "ADMINISTRATIVE
AGENT"), and is made with reference to that certain Credit Agreement dated as of
May 22, 2001 (as heretofore amended and as may be further amended, modified or
supplemented from time to time, the "CREDIT AGREEMENT"), by and among the
Borrower, the Lenders and the 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 and the Lenders constituting Required Lenders
desire to amend the Credit Agreement to (i) amend certain of the negative
covenants, (ii) amend the interest rate margins for the Revolving Credit Loans
and the Term C Loans and (iii) make certain other changes in the Credit
Agreement, all as more specifically set forth herein.
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 CREDIT AGREEMENT
1.1 AMENDMENTS TO SUBSECTION 1.1: DEFINED TERMS
A. Subsection 1.1 of the Credit Agreement is hereby amended by
deleting in its entirety the definition of the term "Applicable ABR Margin" and
inserting in lieu thereof the following:
"`APPLICABLE ABR MARGIN': as of any date of determination, the
applicable rate per annum set forth below under the caption
"Applicable ABR Margin for Revolving Credit Loans" or
"Applicable ABR Margin for Term C Loans", as the case may be,
based upon the ratings by Xxxxx'x (which, as of the Second
Amendment Date, shall be Xxxxx'x senior implied issuer rating)
and S&P (which, as of the Second Amendment Date, shall be
S&P's corporate credit rating), respectively, applicable on
such date to the Loans hereunder:
-------------- ---------------------- --------------------------- ---------------------------
Applicable ABR Margin for Applicable ABR Margin for
Level Credit Rating Revolving Credit Loans Term C Loans
-------------- ---------------------- --------------------------- ---------------------------
Level I BBB- or above /Baa3 1.75% 1.75%
or above
Level II BB+/Ba1 2.00% 1.75%
Level III BB/Ba2 2.25% 1.75%
Level IV BB-/Ba3 2.50% 1.75%
Level V less than BB- 3.00% 2.25%"
/ less than Ba3
For purposes of the foregoing, (i) if either Xxxxx'x or S&P
shall not have in effect a rating for the Loans hereunder
(other than by reason of the circumstances referred to in the
second to last sentence of this definition), then such rating
agency shall be deemed to have established a rating in Level
V; (ii) if the ratings established or deemed to have been
established by Xxxxx'x and S&P for the Loans shall fall within
different Levels, the Applicable ABR Margin shall be based on
the lower of the two ratings; and (iii) if the ratings
established or deemed to have been established by Xxxxx'x and
S&P for the Loans shall be changed (other than as a result of
a change in the rating system of Xxxxx'x or S&P), such change
shall be effective as of the date on which it is first
announced by the applicable rating agency. Each change in the
Applicable ABR Margin shall apply during the period commencing
on the effective date of such change and ending on the date
immediately preceding the effective date of the next such
change. If the rating system of Xxxxx'x or S&P shall change,
or if either such rating agency shall cease to be in the
business of rating corporate debt obligations, the Borrower
and the Administrative Agent shall negotiate in good faith to
amend this definition to reflect such changed rating system or
the unavailability of ratings from such rating agency and,
pending the effectiveness of any such amendment, the
Applicable ABR Margin shall be determined by reference to the
rating most recently in effect prior to such change or
cessation, or if there shall be only one available rating for
any reason other than one attributable to circumstances
related to the Borrower and its Subsidiaries or their
businesses, assets, liabilities, financial condition or
operations, then for purposes of the preceding clause (i), the
Level shall be determined by reference to the other then
available rating. Notwithstanding the foregoing, (i) if
proceeds from the issuance by the Borrower of (a) Permitted
Subordinated Indebtedness in accordance with the terms of
subsection 10.2(p) or (b) Capital Stock (or received as a
result of a capital contribution by a holder of the Capital
Stock of the Borrower) are applied to prepay the Term C Loans
in an aggregate amount exceeding $100,000,000 subsequent to
the Second Amendment Date, the Applicable ABR Margin in the
case of Revolving Credit Loans and Term C Loans shall mean, as
of any date of determination, the Applicable ABR Margin as
determined in accordance with the terms of this Agreement
MINUS 0.25% per annum or (ii) if the Leverage Ratio, as
calculated on a quarterly basis in
2
connection with determining compliance with subsection
10.1(b), is less than 4.50 to 1.00 for any fiscal quarter, the
Applicable ABR Margin in the case of Revolving Credit Loans
and Term C Loans shall mean, during the next succeeding fiscal
quarter only, the Applicable ABR Margin as determined in
accordance with the terms of this Agreement MINUS 0.25% per
annum; PROVIDED that the overall reduction in the Applicable
ABR Margin pursuant to the preceding clauses (i) and (ii)
shall not exceed 0.25% at any one time."
B. Subsection 1.1 of the Credit Agreement is hereby further
amended by (i) deleting the introductory portion of the definition of the term
"Applicable Commitment Fee Percentage" that appears before the gird referenced
therein and inserting in lieu thereof the following:
"`APPLICABLE COMMITMENT FEE PERCENTAGE': as of any date of
determination, the applicable rate per annum set forth below
under the caption "Applicable Commitment Fee Percentage",
based upon the ratings by Xxxxx'x (which, as of the Second
Amendment Date, shall be Xxxxx'x senior implied issuer rating)
and S&P (which, as of the Second Amendment Date, shall be
S&P's corporate credit rating), respectively, applicable on
such date to the Loans hereunder:"
and (ii) by deleting the phrase "Senior Secured Facility" contained in the first
row of the second column of the grid referenced therein.
C. Subsection 1.1 of the Credit Agreement is hereby further
amended by deleting in its entirety the definition of the term "Applicable
Eurodollar Margin" and inserting in lieu thereof the following:
"`APPLICABLE EURODOLLAR MARGIN': as of any date of
determination, the applicable rate per annum set forth below
under the caption "Applicable Eurodollar Margin for Revolving
Credit Loans" or "Applicable Eurodollar Margin for Term C
Loans", as the case may be, based upon the ratings by Xxxxx'x
(which, as of the Second Amendment Date, shall be Xxxxx'x
senior implied issuer rating) and S&P (which, as of the Second
Amendment Date, shall be S&P's corporate credit rating),
respectively, applicable on such date to the Loans hereunder:
-------------- ---------------------- --------------------------- ---------------------------
Applicable Eurodollar
Margin for Revolving Applicable Eurodollar
Level Credit Rating Credit Loans Margin for Term C Loans
-------------- ---------------------- --------------------------- ---------------------------
Level I BBB- or above /Baa3 2.75% 3.00%
or above
Level II BB+/Ba1 3.00% 3.00%
Level III BB/Ba2 3.25% 3.00%
Level IV BB-/Ba3 3.50% 3.00%
Level V less than BB- 4.00% 3.50%"
/ less than Ba3
3
For purposes of the foregoing, (i) if either Xxxxx'x or S&P
shall not have in effect a rating for the Loans hereunder
(other than by reason of the circumstances referred to in the
second to last sentence of this definition), then such rating
agency shall be deemed to have established a rating in Level
V; (ii) if the ratings established or deemed to have been
established by Xxxxx'x and S&P for the Loans shall fall within
different Levels, the Applicable Eurodollar Margin shall be
based on the lower of the two ratings; and (iii) if the
ratings established or deemed to have been established by
Xxxxx'x and S&P for the Loans shall be changed (other than as
a result of a change in the rating system of Xxxxx'x or S&P),
such change shall be effective as of the date on which it is
first announced by the applicable rating agency. Each change
in the Applicable Eurodollar Margin shall apply during the
period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of
the next such change. If the rating system of Xxxxx'x or S&P
shall change, or if either such rating agency shall cease to
be in the business of rating corporate debt obligations, the
Borrower and the Administrative Agent shall negotiate in good
faith to amend this definition to reflect such changed rating
system or the unavailability of ratings from such rating
agency and, pending the effectiveness of any such amendment,
the Applicable Eurodollar Margin shall be determined by
reference to the rating most recently in effect prior to such
change or cessation, or if there shall be only one available
rating for any reason other than one attributable to
circumstances related to the Borrower and its Subsidiaries or
their businesses, assets, liabilities, financial condition or
operations, then for purposes of the preceding clause (i), the
Level shall be determined by reference to the other then
available rating. Notwithstanding the foregoing, (i) if
proceeds from the issuance by the Borrower of (a) Permitted
Subordinated Indebtedness in accordance with the terms of
subsection 10.2(p) or (b) Capital Stock (or received as a
result of a capital contribution by a holder of the Capital
Stock of the Borrower) are applied to prepay the Term C Loans
in an aggregate amount exceeding $100,000,000 subsequent to
the Second Amendment Date, the Applicable Eurodollar Margin in
the case of Revolving Credit Loans and Term C Loans shall
mean, as of any date of determination, the Applicable
Eurodollar Margin as determined in accordance with the terms
of this Agreement MINUS 0.25% per annum or (ii) if the
Leverage Ratio, as calculated on a quarterly basis in
connection with determining compliance with subsection
10.1(b), is less than 4.50 to 1.00 for any fiscal quarter, the
Applicable Eurodollar Margin in the case of Revolving Credit
Loans and Term C Loans shall mean, during the next succeeding
fiscal quarter only, the Applicable Eurodollar Margin as
determined in accordance with the terms of this Agreement
MINUS 0.25% per annum; PROVIDED that the overall reduction in
the Applicable Eurodollar Margin pursuant to the preceding
clauses (i) and (ii) shall not exceed 0.25% at any one time."
D. Subsection 1.1 of the Credit Agreement is hereby further
amended by deleting the grid that appears in the definition of "Applicable
Prepayment Percentage" and replacing it with the following grid:
4
--------------------------------------------------------------
LEVERAGE RATIO APPLICABLE PREPAYMENT PERCENTAGE
--------------------------------------------------------------
> 5.50 to 1:00 100%
--------------------------------------------------------------
< 5.50 to 1.00 75%
-
> 4.00 to 1.00
-
--------------------------------------------------------------
< 4.00 to 1.00 50%
-
> 3.00 to 1.00
-
--------------------------------------------------------------
< 3.00 to 1.00 0%
--------------------------------------------------------------
E. Subsection 1.1 of the Credit Agreement is hereby further
amended by deleting in its entirety the definition of the term "Leverage Ratio"
and inserting in lieu thereof the following:
"`LEVERAGE RATIO': as of any Test Date or other date of
determination, the ratio of (x) Consolidated Total Debt on
such date MINUS, to the extent that all or any part of the
original $75,000,000 amount of the Receivables Facility
received off-balance sheet treatment under GAAP on the Closing
Date and is thereafter required to be included on Borrower's
consolidated balance sheet, or to the extent that all or any
part of the original $75,000,000 amount of the Receivables
Facility is terminated, an amount equal to such part of such
Receivables Facility receiving such on-balance sheet treatment
or which has been so terminated PROVIDED that in no event
shall the amount so deducted for purposes of this clause
exceed $75,000,000 DIVIDED by (y) Consolidated EBITDA of the
Borrower for the most recently ended four fiscal quarter
period of the Borrower for which financial statements are
available on or prior to such date of determination."
F. Subsection 1.1 of the Credit Agreement is hereby further
amended by (i) deleting the word "and" immediately preceding clause (b) in the
definition of "Net Cash Proceeds" and replacing it with the phrase "," and (ii)
adding the following as clause (c) at the end thereof:
"and (c) in connection with the issuance of any Capital Stock
or any capital contribution by a holder of Capital Stock the
cash proceeds received from such issuance or contribution, net
of all reasonable investment banking fees, legal fees,
consulting fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses, actually
incurred and satisfactorily documented in connection
therewith".
G. Subsection 1.1 of the Credit Agreement is hereby further
amended by deleting in its entirety the definition of the term "Senior Debt
Leverage Ratio" and inserting in lieu thereof the following:
"`SENIOR DEBT LEVERAGE RATIO': as of any date of
determination, the ratio of (x) Consolidated Total Debt on
such date, MINUS the sum of (i) all Indebtedness that is not
secured, in amounts determined on a consolidated basis in
accordance with GAAP, including, without limitation, the
Indebtedness in respect of the Senior
5
Subordinated Notes, the Convertible Notes, the Apparel Notes
and any Permitted Subordinated Indebtedness and acquisition
Indebtedness, PLUS (ii) to the extent that all or any part of
the original $75,000,000 amount of the Receivables Facility
received off-balance sheet treatment under GAAP on the Closing
Date and is thereafter required to be included on Borrower's
consolidated balance sheet, or to the extent that all or any
part of the original $75,000,000 amount of the Receivables
Facility is terminated, an amount equal to such part of such
Receivables Facility receiving such on-balance sheet treatment
or which has been so terminated PROVIDED that in no event
shall the amount so deducted for purposes of this clause (ii)
exceed $75,000,000 DIVIDED by (y) Consolidated EBITDA of the
Borrower for the most recently ended four fiscal quarter
period of the Borrower for which financial statements are
available on or prior to such date of determination.
Notwithstanding the foregoing, for the purpose of calculating
the Senior Debt Leverage Ratio as of the date of a borrowing
in connection with a borrowing notice delivered pursuant to
subsection 2.2, Consolidated Total Debt shall be calculated
after giving effect to the proposed borrowing referenced in
such notice."
H. Subsection 1.1 of the Credit Agreement is hereby further
amended to add the following definitions in the correct alphabetical order:
"Second Amendment": the Second Amendment to Credit Agreement,
dated as of June 26, 2003, by and among the Borrower, the
Guarantors, the Lenders party thereto and the Administrative
Agent.
"Second Amendment Date": June 26, 2003 or such later date on
which the conditions set forth in the Second Amendment shall
be satisfied.
1.2 AMENDMENTS TO SECTION 2: AMOUNT AND TERMS OF REVOLVING CREDIT
COMMITMENTS
A. Subsection 2.2 of the Credit Agreement is hereby amended by
(a) deleting the word "and" immediately preceding clause (iv) of the first
sentence thereof and replacing it with the phrase "," and (b) adding the
following as clause (v) immediately after clause (iv) of such first sentence
thereof:
"and (v) that the Borrower is in compliance with the maximum
Senior Debt Leverage Ratio permitted pursuant to subsection
10.1(c) (provided that for the purpose of this clause (v), the
maximum Senior Debt Leverage Ratio permitted pursuant to
subsection 10.1(c) shall be the ratio stated in such
subsection that corresponds to the most recent fiscal quarter
period for which a certificate demonstrating compliance with
subsection 10.1(c) has been delivered to Administrative Agent)
on the date of such notice and on the date of the proposed
borrowing (as demonstrated by providing the actual
calculations necessary to determine the Senior Debt Leverage
Ratio as of the date of such notice and after giving effect to
the proposed borrowing)".
6
1.3 AMENDMENTS TO SECTION 6: GENERAL PROVISIONS
A. Subsection 6.3(b) of the Credit Agreement is hereby amended by
deleting it in its entirety and inserting in lieu thereof the following:
"(b)(i) If, subsequent to the Closing Date, the
Borrower or any of its Subsidiaries shall incur any
Indebtedness other than any Indebtedness permitted pursuant to
subsection 10.2 as in effect on the Closing Date, 100% of the
Net Cash Proceeds of any such incurrence of Indebtedness
shall, on the third Business Day after receipt, be applied
toward the prepayment of the Term Loans.
(ii) If, subsequent to the Closing Date, the
Borrower or any of its Subsidiaries shall issue any Capital
Stock or shall receive a capital contribution from any holder
of its Capital Stock, 50% of the Net Cash Proceeds thereof
shall, on the third Business Day after receipt, be applied
toward the prepayment of the Term Loans; PROVIDED that if the
Leverage Ratio on the date such Net Cash Proceeds are received
by the Borrower or any of its Subsidiaries is greater than or
equal to 4:50 to 1:00, 75% of such Net Cash Proceeds shall, on
the third Business Day after receipt, be applied toward the
prepayment of the Term Loans; PROVIDED FURTHER that to the
extent any such Net Cash Proceeds are used to consummate an
acquisition or investment as permitted by subsection 10.9(h)
or are used to redeem or repurchase any of the Convertible
Notes as permitted by subsection 10.10(a)(i), then a
prepayment of the Term Loans shall not be required."
B. Subsection 6.3(c) of the Credit Agreement is hereby amended by
adding the following at the end thereof:
"Notwithstanding the foregoing, if (i) the Leverage Ratio
shall be greater than or equal to 4.50 to 1.00 as of any date
on which Net Cash Proceeds from any Material Asset Sale are
received by the Borrower or any of its Subsidiaries and (ii)
the aggregate Net Cash Proceeds received in connection with
Material Asset Sales from the Closing Date through any date of
determination exceed $10,000,000, then 100% of such Net Cash
Proceeds in excess of $10,000,000 shall be applied toward the
prepayment of the Term Loans."
1.4 AMENDMENTS TO SECTION 10: NEGATIVE COVENANTS
A. Subsection 10.1(a) of the Credit Agreement is hereby amended
by deleting it in its entirety and substituting the following in lieu thereof:
"INTEREST COVERAGE. Permit for any period of four consecutive
fiscal quarters ending on or about the last day of a fiscal
quarter the ratio (the "INTEREST COVERAGE RATIO") of (i)
Consolidated EBITDA of the Borrower for such period to (ii)
Consolidated Interest Expense of the Borrower for such period
to be less than the ratio set forth opposite the periods
referenced below that include such fiscal quarter end:
PERIOD MINIMUM INTEREST COVERAGE RATIO
------ -------------------------------
Closing Date to
September 25, 2004 2.00 to 1.00
7
PERIOD MINIMUM INTEREST COVERAGE RATIO
------ -------------------------------
September 26, 2004 2.25 to 1.00"
and thereafter
B. Subsection 10.1(b) of the Credit Agreement is hereby amended
by deleting it in its entirety and substituting the following in lieu thereof:
"(b) LEVERAGE RATIO. Permit for any period of four consecutive
fiscal quarters ending on or about the last day of a fiscal
quarter (each, a "TEST DATE") the Leverage Ratio to be greater
than the ratio set forth opposite the periods referenced below
that include such fiscal quarter end:
PERIOD MAXIMUM LEVERAGE RATIO
------ ----------------------
Closing Date to
March 29, 2003 5.25 to 1.00
March 30, 2003 to
September 26, 2003 6.90 to 1.00
September 27, 2003 to
December 26, 2003 7.10 to 1.00
December 27, 2003 to
March 26, 2004 6.95 to 1.00
March 27, 2004 to June
25, 2004 6.90 to 1.00
June 26, 2004 to
September 24, 2004 6.60 to 1.00
September 25, 2004 to
December 24, 2004 6.40 to 1.00
December 25, 2004 to
April 1, 2005 6.25 to 1.00
April 2, 2005 to July 1,
2005 6.15 to 1.00
July 2, 2005 to
September 30, 2005 5.80 to 1.00
October 1, 2005 to
December 30, 2005 5.70 to 1.00
8
PERIOD MAXIMUM LEVERAGE RATIO
------ ----------------------
December 31, 2005 to
June 30, 2006 5.50 to 1.00
July 1, 2006 to
September 29, 2006 5.40 to 1.00
September 30, 2006 to
December 29, 2006 5.25 to 1.00
December 30, 2006 to
March 30, 2007 5.00 to 1.00
March 31, 2007 and
thereafter 4.00 to 1.00"
C. Subsection 10.1 of the Credit Agreement is hereby amended by
adding the following subsection 10.1(c) at the end thereof:
"(c) SENIOR DEBT LEVERAGE RATIO. Permit the Senior Debt
Leverage Ratio at any time during any fiscal quarter to be greater than the
ratio set forth opposite the periods referenced below that include such fiscal
quarter:
MAXIMUM SENIOR DEBT
QUARTER LEVERAGE RATIO
------- --------------
March 30, 2003 to
September 26, 2003 3.95 to 1.00
September 27, 2003 to
December 26, 2003 4.00 to 1.00
December 27, 2003 to
March 26, 2004 3.90 to 1.00
March 27, 2004 to
June 25, 2004 3.95 to 1.00
June 26, 2004 to
September 24, 2004 3.75 to 1.00
September 25, 2004 to
December 24, 2004 3.60 to 1.00
December 25, 2004 to
April 1, 2005 3.50 to 1.00
9
MAXIMUM SENIOR DEBT
QUARTER LEVERAGE RATIO
------- --------------
April 2, 2005 to July 1,
2005 3.40 to 1.00
July 2, 2005 to
September 30, 2005 3.20 to 1.00
October 1, 2005 to
December 30, 2005 3.10 to 1.00
December 31, 2005 to
June 30, 2006 2.90 to 1.00
July 1, 2006 to
September 29, 2006 2.80 to 1.00
September 30, 2006 to
December 29, 2006 2.70 to 1.00
December 30, 2006 and
thereafter 2.50 to 1.00"
D. Subsection 10.2 of the Credit Agreement is hereby amended by
(i) deleting the word "and" at the end of subclause (n) thereof, (ii) by
deleting the phrase "." at the end of subclause (o) thereof and replacing it
with the phrase "; and", and (iii) by adding the following subclause (p) at the
end thereof:
"(p) Indebtedness of the Borrower in respect of Permitted
Subordinated Indebtedness to the extent such Indebtedness is
used to repay the Term Loans pursuant to subsection
6.3(b)(i)."
E. Subsection 10.8 of the Credit Agreement is hereby amended by
deleting it in its entirety and inserting in lieu thereof the following:
"10.8 LIMITATION ON CAPITAL EXPENDITURES. Make or commit to
make any Consolidated Capital Expenditures, except for
expenditures in the ordinary course of business in any fiscal
year in an amount not exceeding $30,000,000; PROVIDED that any
portion of such permitted Consolidated Capital Expenditures
not expended in any fiscal year (up to a maximum of 50% of
such amount for such fiscal year) may be carried forward into
the next succeeding fiscal year."
F. Subsection 10.9(h) of the Credit Agreement is hereby amended
by adding after the phrase "so long as" at the beginning thereof the phrase "the
Leverage Ratio, after giving pro forma effect to any such acquisition or
investment and any Indebtedness incurred or assumed in connection therewith, is
not greater than 4.50 to 1.00 and".
10
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent:
A. On or before the Second Amendment Date, the Borrower shall
deliver to the Administrative Agent the following, each, unless otherwise noted,
dated the Second Amendment Date:
(i) Signature and incumbency certificates of its officers
executing this Amendment;
(ii) Copies of this Amendment executed by the Borrower and
each Guarantor;
(iii) Resolutions of the Board of Directors of the Borrower
approving the execution, delivery and performance of this Amendment;
(iv) An opinion of counsel to the Borrower reasonably
satisfactory to the Administrative Agent; and
(v) A good standing certificate for the Borrower and each
Guarantor issued by the Secretary of State of their respective
jurisdictions of organization.
B. On or before the Second Amendment Date, all corporate and
other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by the Administrative Agent, acting on behalf of Lenders, and its
counsel shall be reasonably satisfactory in form and substance to the
Administrative Agent and such counsel, and the Administrative Agent and such
counsel shall have received all such counterpart originals or certified copies
of such documents as the Administrative Agent may reasonably request.
C. Required Lenders shall have executed and delivered copies of
this Amendment to the Administrative Agent.
D. The Administrative Agent shall have been paid the fees as
separately agreed by the Borrower and the Administrative Agent, including an
amendment fee for the benefit of each Lender with Revolving Credit Loan Exposure
and/or Term C Loan Exposure that approves this Amendment by 5:00 P.M. New York
City time on June 25, 2003 equal to 0.25% of the outstanding amount of the
Revolving Credit Loan Exposure and/or Term C Loan Exposure, as the case may be,
of such Lender.
E. On or before the Second Amendment Date, Borrower shall deliver
to Administrative Agent a certificate demonstrating compliance as of March 31,
2003 with the Senior Debt Leverage Ratio required under subsection 10.1(c) of
the Credit Agreement (as amended by this Amendment), as calculated after giving
effect to this Amendment. The parties hereby agree that such compliance
certificate shall be, until the next compliance certificate demonstrating
compliance with subsection 10.1(c) of the Credit Agreement (as amended by this
Amendment) is delivered to Administrative Agent, the compliance certificate
referenced in subsection 2.2(v) of the Credit Agreement (as amended by this
Amendment) for the purpose of determining the appropriate fiscal quarter for
which the Senior Debt Leverage Ratio must be complied with in order to make a
borrowing.
11
SECTION 3. 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 and each
Guarantor represent and warrant to each Lender that the following statements are
true, correct and complete in all material respects:
A. Corporate Power and Authority. Each of the Borrower and the
Guarantors has the corporate power and authority, and the legal right, 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").
B. Authorization of Agreement. Each Loan Party has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Amendment and the performance of the Amended Agreement.
C. No Conflict. The execution, delivery and performance of this
Amendment, the performance of the Amended Agreement and the consummation of the
transactions contemplated thereby will not violate any Requirement of Law or
Contractual Obligation of Holdings, the Borrower or of any of its Subsidiaries
except for violations in the aggregate which would not be reasonably likely to
have a Material Adverse Effect and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation
(other than Liens (i) created or permitted by the Security Documents and (ii)
which in the aggregate would not reasonably be expected to have a Material
Adverse Effect).
D. Governmental Consents. No consent or authorization of, filing
with, notice to or other act by or in respect of, any Governmental Authority or
any other Person is required in connection with the execution, delivery,
performance, validity or enforceability of this Amendment, or the consummation
of the transactions contemplated thereby other than those the failure to obtain
or make would not be reasonably likely to have a Material Adverse Effect.
E. Binding Obligation. Each of this Amendment and the Amended
Agreement constitutes a legal, valid and binding obligation of the Borrower
(and, in the case of this Amendment, each Guarantor), enforceable against the
Borrower (and, in the case of this Amendment, each Guarantor) in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally, and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law) and an implied covenant of good faith and fair dealing.
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 Date to the same extent as though
made on and as of that date, except to the extent such representations
12
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 execution, delivery or performance of this Amendment that
would constitute an Event of Default or a Default.
SECTION 4. ACKNOWLEDGEMENT AND CONSENT
The Borrower is a party to the certain Security Documents, pursuant to
which the Borrower has created Liens in favor of the Administrative Agent on
certain Collateral to secure the Obligations. Each Guarantor is party to a
Guarantee and certain Security Documents specified in the Credit Agreement, in
each case as amended through the Second Amendment Date, pursuant to which such
Guarantor has (i) guarantied the Obligations pursuant to a Guarantee and (ii)
granted a security interest in and pledged certain Collateral to the
Administrative Agent to secure the obligations of such Guarantor under such
Guarantee pursuant to such Security Documents.
Each Loan Party hereby acknowledges that it has reviewed the terms and
provisions of the Credit Agreement and the other Loan Documents and this
Amendment and consents to the amendment of the Credit Agreement effected
pursuant to this Amendment. Each Loan Party hereby confirms that each Loan
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" and "Secured
Obligations," as the case may be (in each case as such terms are defined in the
applicable Loan Document), including without limitation the payment and
performance of all such "Obligations" or "Secured Obligations," as the case may
be, in respect of the Obligations of the Borrower and the Guarantors now or
hereafter existing under or in respect of the Amended Agreement and the Notes.
Each Loan Party acknowledges and agrees that the Loan 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 Guarantor acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Amendment, it 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 Guarantor 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 Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import
13
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 Administrative Agent or any Lender under, the Credit
Agreement or any of the other Loan Documents.
B. 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.
C. 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.
D. 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]
14
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWER: PLAYTEX PRODUCTS, INC.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
GUARANTORS: PLAYTEX INVESTMENT CORP.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
PLAYTEX INTERNATIONAL CORP.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
PLAYTEX MANUFACTURING, INC.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
PLAYTEX SALES AND SERVICES, INC.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
SUN PHARMACEUTICALS CORP.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
S-1
SMILE-TOTE, INC.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
TH MARKETING CORP.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
PERSONAL CARE HOLDINGS, INC.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
PERSONAL CARE GROUP, INC.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
CAREWELL INDUSTRIES, INC.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
S-2
LENDERS: CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH,
individually and as Administrative Agent
By /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
By /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Associate
S-3
LENDERS:
XXXXX FARGO BANK, N.A.
By /s/ Xxxxxxxx X. Xxxxxxxxx, III
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx, III
Title: Vice President
S-4
LENDERS:
FIDELTIY ADVISOR SERIES II: FIDELITY ADVISOR
FLOATING RATE HIGH INCOME FUND
By /s/ Xxxxxxx X. Know, Jr.
-------------------------------------
Name: Xxxxxxx X. Xxxx, Xx.
Title:
S-5
LENDERS:
SEABOARD CLO 2000 LTD.
By: ORIX Capital Markets, LLC
Its Collateral Manager
By /s/ Xxxxxxxx X.X. Xxxxx, Xx.
-------------------------------------
Name: Xxxxxxxx X.X. Xxxxx, Xx.
Title: Managing Director
S-6
LENDERS:
BLUE SQUARE FUNDING SERIES 3
Deutsche Bank Trust Co. Americas
FKA Bankers Trust Co.
By /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
S-7
LENDERS:
EMERALD ORCHARD LIMITED
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney in Fact
S-8
LENDERS:
FIRST DOMINION FUNDING I
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
S-9
LENDERS:
FIRST DOMINION FUNDING II
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
S-10
LENDERS:
FIRST DOMINION FUNDING III
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
S-11
LENDERS:
CSAM FUNDING I
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
S-12
LENDERS:
CSAM FUNDING II
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
S-13
LENDERS:
ATRIUM CDO
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
S-14
LENDERS:
KZH CNC LLC
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
S-15
LENDERS:
KZH CYPRESSTREE-I LLC
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
S-16
LENDERS:
KZH ING-2 LLC
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
S-17
LENDERS:
KZH PONDVIEW LLC
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
S-18
LENDERS:
KZH SOLEIL LLC
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
S-19
LENDERS:
KZH SOLEIL-2 LLC
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
S-20
LENDERS:
KZH STERLING LLC
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
S-21
LENDERS:
KZH WATERSIDE LLC
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
S-22
LENDERS:
APEX (TRIMARAN) CDO I, LTD.
By Trimaran Advisors, L.L.C.
By /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
S-23
LENDERS:
BALLYROCK CDO I LIMITED,
By: BALLYROCK Investment Advisors, LLC,
as Collateral
By /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Assistant Treasurer
S-24
LENDERS:
ALLSTATE INSURANCE COMPANY
By /s/
-------------------------------------
Name:
Title:
By /s/
--------------------------------------
S-25
LENDERS:
AIMCO CDO SERIES 2000-A
By /s/
-------------------------------------
Name:
Title:
By /s/
--------------------------------------
S-26
LENDERS:
AIMCO CLO SERIES 2001-A
By /s/
-------------------------------------
Name:
Title:
By /s/
--------------------------------------
S-27
LENDERS:
SRF TRADING, INC.
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
S-28
LENDERS:
SRF 2000, INC.
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
S-29
LENDERS:
XXXXX XXX & FARNHAM CLO I LTD.
By: Columbia Management Advisors, Inc.
(f/k/a Xxxxx Xxx & Xxxxxxx Incorporated),
As Portfolio Manager
By /s/ Xxxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President
S-30
LENDERS:
AURUM CLO 2002-1 LTD.
By: Columbia Management Advisors, Inc.
(f/k/a Xxxxx Xxx & Farnham Incorporated),
As Investment Manager
By /s/ Xxxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President
S-31
LENDERS:
CREDIT INDUSTRIEL ET COMMERCIAL
By /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: First Vice President
By /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
S-32
LENDERS:
HANOVER SQUARE CLO LTD.
By: Blackstone Debt Advisors L.P.
As Collateral Manager
By /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
S-33
LENDERS:
NOVA CDO 2001, LTD.
By /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
S-34
LENDERS:
MARINER CDO 2002, LTD.
By /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
S-35
LENDERS:
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
S-36
LENDERS:
PPM SPYGLASS FUNDING TRUST
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Agent
S-37
LENDERS:
HARBOUR TOWN FUNDING LLC
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Agent
S-38
LENDERS:
NOMURA BOND & LOAN
By /s/ Xxxxxxxxx XxxXxxx
-------------------------------------
Name: Xxxxxxxxx XxxXxxx
Title: Director
By: UFJ Trust Bank Limited,
as Trustee
By: Nomura Corporate Research and
Asset Management Inc.
Attorney in Fact
S-39
LENDERS:
XXXXXXX XXXXX CAPITAL, a division of Xxxxxxx
Xxxxx Business Financial Services Inc.
By /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
S-40
LENDERS:
TRIX FINANCIAL SERVICES, INC>
By /s/ Xxxx Nowakolski
-------------------------------------
Name: Xxxx Nowakolski
Title: Vice President
S-41
LENDERS:
C-SQUARED CDO LTD.
By: TCW Advisors, Inc., as its
Portfolio Manager
By /s/ G. Xxxxxx Xxxxx
-------------------------------------
Name: G. Xxxxxx Xxxxx
Title: Senior Vice President
S-42
LENDERS:
SANKATY ADVISORS, INC., as Collateral
Manager for Xxxxx Point CBO
1999-1 LTD., as Term Lender
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
S-43
LENDERS:
SANKATY ADVISORS, INC., as Collateral
Manager for Castle Hill I - INGOTS, Ltd.,
as Term Lender
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
S-44
LENDERS:
SANKATY ADVISORS, INC., as Collateral
Manager for Castle Hill II - INGOTS,
Ltd., as Term Lender
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
S-45
LENDERS:
SANKATY ADVISORS, INC., as Collateral
Manager for Great Point CLO 1999-1
LTD., as Term Lender
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
S-46
LENDERS:
SANKATY ADVISORS, INC., as Collateral
Manager for RacePoint CLO, Limited,
as Term Lender
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
S-47
LENDERS:
SANKATY ADVISORS, INC., as Collateral
Manager for Race Point II CLO,
Limited, as Term Lender
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
S-49
LENDERS:
SANKATY HIGH YIELD PARTNERS III, L.P.
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
S-50
LENDERS:
GALAXY CLO 1999-1 LITD.
By /s/ Xxxxxx X. Oh
-------------------------------------
Name: Xxxxxx X. Oh
Title: Managing Director
S-51
LENDERS:
SUNAMERICA LIFE INSURANCE COMPANY
By /s/ Xxxxxx X. Oh
-------------------------------------
Name: Xxxxxx X. Oh
Title: Managing Director
S-52
LENDERS:
NATIONAL CITY BANK
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
S-53
LENDERS:
IKB CAPITAL CORPORATION
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
S-54
LENDERS:
BANK OF MONTREAL
By /s/ X. Xxxxx
-------------------------------------
Name: X. Xxxxx
Title: Managing Director
S-55
LENDERS:
TRANSAMERICA BUSINESS CAPITAL CORPORATON
By /s/ Xxxxxxx Goetschrus
-------------------------------------
Name: Xxxxxxx Goetschrus
Title: Senior Vice President
S-56
LENDERS:
ING PRIME RATE TRUST
By: ING Investments, LLC
as its investment manager
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
S-57
LENDERS:
ING SENIOR INCOME FUND
By: ING Investments, LLC
as its investment manager
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
S-58
LENDERS:
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
S-59
LENDERS:
BALANCED HIGH-YIELD FUND II, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
S-60
LENDERS:
ENDURANCE CLO I, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
S-61
LENDERS:
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
S-62
LENDERS:
ORYX CLO, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
S-63
LENDERS:
PROMETHEUS INVESTMENT
FUNDING NO. 1 LTD
By: HVB Credit Advisors, LLC
By /s/ Xxxxx X. Xx
-------------------------------------
Name: Xxxxx X. Xx
Title: Associate Director
S-64
