EXHIBIT 10.1
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EXECUTION COPY
PLAYTEX PRODUCTS, INC.
FIRST AMENDMENT
TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is
dated as of May 29, 2002 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, 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 (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 permit the Borrower to incur
additional Indebtedness in the form of an additional $450,000,000 of Term Loans,
to amend certain covenants and prepayment provisions, and to make certain other
related changes in the Credit Agreement and the Security Agreement, all as more
specifically set forth herein;
WHEREAS, the proceeds of such additional Term Loans, together
with approximately $21,800,000 of cash on hand of the Borrower, will be utilized
by the Borrower to make an optional prepayment of the Term A Loans and the Term
B Loans in full.
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 definitions of the terms "Borrowing Date", "Class",
"Commitments", "Consolidated Excess Cash Flow", "Required Class Lenders", "Term
Loan Commitment", "Term Loan Exposure" and "Term Loans" and inserting the
following in lieu thereof:
"BORROWING DATE": any Business Day specified in a notice
pursuant to subsection 2.2, 2.4, 4.2, 5.2 or 5.4 as a date on
which the Borrower requests the Lenders to make Loans
hereunder.
"CLASS": as applied to the Lenders, means each of the
following classes of Lenders: (i) Lenders having Revolving
Credit Loan Exposure, (ii) Lenders having Term A Loan
Exposure, (iii) Lenders having Term B Loan Exposure, (iv)
Lenders having Term C Loan Exposure, and (v) any other Term
Loan Lenders having any other Term Loan Exposure.
"COMMITMENTS": the collective reference to the Revolving
Credit Commitments, the Swing Line Commitment, the Term A Loan
Commitments, the Term B Loan Commitments, the Term C Loan
Commitments and any Increased Commitments pursuant to
subsection 2.5.
"CONSOLIDATED EXCESS CASH FLOW": for any period, an amount (if
positive) equal to (i) the sum, without duplication, of the
amounts for such period of (a) Consolidated EBITDA and (b) the
Consolidated Working Capital Adjustment MINUS (ii) the sum,
without duplication, of the amounts for such period of (a)
voluntary and scheduled repayments of Consolidated Total Debt
(including repurchases and redemptions of Convertible Notes
and other Indebtedness, but excluding (1) repayments of
Revolving Credit Loans except to the extent the Revolving
Credit Commitments are permanently reduced in connection with
such repayments and (2) payment of the Convertible Notes with
funds on deposit in the Excess Cash Flow Account), (b)
Consolidated Capital Expenditures (net of any proceeds of any
related financings with respect to such expenditures), (c)
Consolidated Interest Expense, and (d) the provision for
current taxes based on income of Company and its Subsidiaries
and payable in cash with respect to such period.
"REQUIRED CLASS LENDERS": at any time of determination (i) for
the Class of Lenders having Revolving Credit Loan Exposure,
Lenders having or holding more than 50% of the aggregate
Revolving Credit Loan Exposure of all Lenders, (ii) for the
Class of Lenders having Term A Loan Exposure, Lenders having
or holding more than 50% of the aggregate Term A Loan Exposure
of all Lenders, (iii) for the Class of Lenders having Term B
Loan Exposure, Lenders having or holding more than 50% of the
aggregate Term B Loan Exposure of all Lenders, (iv) for the
Class of Lenders having Term C Loan Exposure, Lenders having
or holding more than 50% of the aggregate Term C Loan Exposure
of all Lenders, and (v) for any other Class of Lenders having
any other Term Loan Exposure, the Lenders having or holding
more than 50% of such other aggregate Term Loan Exposure of
such other Lenders.
"TERM LOAN COMMITMENT": as to any Lender, the obligation of
such Lender to make Term A Loans pursuant to subsection 4.1,
to make Term B Loans pursuant to subsection 5.1, to make Term
C Loans pursuant to subsection 5.3, and to make other Term
Loans pursuant to subsection 2.5 and any Increased Commitment
Agreement, and "Term Loan Commitments" means such commitments
of all Term Loan Lenders in the aggregate.
"TERM LOAN EXPOSURE": at any time of determination, (i) the
Term A Loan Exposure of any Lender, (ii) the Term B Loan
Exposure of any Lender, (iii) the Term C Loan Exposure of any
Lender and (iv) with respect to any other Lender, (a) prior to
the funding of any Term Loans other than Term A Loans, Term B
Loans or Term C Loans, that Lender's Term Loan Commitment with
respect to such other Term Loans, and (b), after the funding
of such other Term Loans, the outstanding principal amount of
such other Term Loans of that Lender.
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"TERM LOANS": the Term A Loans, the Term B Loans, the Term C
Loans and term loans made to the Borrower pursuant to
subsection 2.5 and any Increased Commitments Agreement.
B. Subsection 1.1 of the Credit Agreement is hereby
further amended by adding the following at the end of the definition of the term
"Applicable ABR Margin":
"In the case of Term C Loans, the Applicable ABR Margin shall
mean, as of any date of determination, 1.00% per annum."
C. Subsection 1.1 of the Credit Agreement is hereby
further amended by the following at the end of the definition of the term
"Applicable Eurodollar Margin":
"In the case of Term C Loans, the Applicable Eurodollar Margin
shall mean, as of any date of determination, 2.25% per annum."
D. Subsection 1.1 of the Credit Agreement is hereby
further amended to add the following definitions:
"EXCESS CASH FLOW ACCOUNT": the account in the name, and under
the sole dominion and control, of the Administrative Agent
into which amounts shall be deposited by the Borrower as
provided in subsection 6.3(d) and which shall be utilized as
provided in subsection 6.15.
"FIRST AMENDMENT": the First Amendment to Credit Agreement,
dated as of May 29, 2002, by and among the Borrower, the
Guarantors, the Lenders party thereto and the Administrative
Agent.
"FIRST AMENDMENT DATE": May 29, 2002 or such later date on
which the conditions precedent set forth in the First
Amendment shall be satisfied.
"TERM C LOAN": as defined in subsection 5.3(a).
"TERM C LOAN COMMITMENT": as to any Lender, the obligation of
such Lender to make a Term C Loan to the Borrower on the First
Amendment Date or on the date provided for in any Increased
Commitments Agreement, in a principal amount not to exceed the
amount set forth opposite such Lender's name on Schedule 1.1
under the heading "Term C Loan Commitment".
"TERM C LOAN COMMITMENT PERCENTAGE": as to any Lender at any
time, the percentage which such Lender's Term C Loan
Commitment then constitutes of the aggregate Term C Loan
Commitments (or, at any time after the Term C Loan Commitments
shall have expired or been terminated, the percentage which
the aggregate principal amount of such Lender's Term C Loans
then outstanding constitutes of the aggregate principal amount
of all Term C Loans then outstanding).
"TERM C LOAN EXPOSURE": with respect to any Lender, means, as
of any date of determination (i) prior to the funding of the
Term C Loans, that Lender's Term C Loan
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Commitment, and (ii), after the funding of the Term C Loans,
the outstanding principal amount of the Term C Loan of that
Lender.
"TERM C LOAN MATURITY DATE": May 31, 2009.
"TERM C LOAN NOTE": as defined in subsection 6.2(e).
1.2 AMENDMENTS TO SECTION 5: TERM B LOANS AND TERM C
LOANS
SECTION 5 of the Credit Agreement is hereby amended by
retitling it `TERM B LOANS AND TERM C LOANS' and inserting the following as
subsections 5.3 and 5.4:
"5.3 TERM C LOANS.
(a) Subject to the terms and conditions hereof, each
Lender having a Term C Loan Commitment severally agrees to make a
tranche C term loan (each a "TERM C LOAN"; collectively, the "TERM C
LOANS") to the Borrower on the First Amendment Date or on the date
provided for in any Increased Commitments Agreement, in an amount not
to exceed the amount of the Term C Loan Commitment of such Lender as
set forth on SCHEDULE 1.1 hereto.
(b) The Term C Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with subsections 5.4 and 6.4.
5.4 PROCEDURE FOR CLOSING DATE TERM C LOAN BORROWING. The
Term C Loans may be borrowed in a single drawing on the First Amendment
Date. To borrow the Term C Loans, the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 1:00 P.M., New York City time),
(a) three Business Days prior to the First Amendment Date, if all or
any part of the Term C Loans are to be initially Eurodollar Loans, or
(b) one Business Day prior to the First Amendment Date, if the Term C
Loans are to be initially ABR Loans, in each case requesting that the
Lenders make the Term C Loans on the First Amendment Date, and
specifying (i) the amount to be borrowed, (ii) whether the Term C Loans
are to be initially Eurodollar Loans, ABR Loans or a combination
thereof, and (iii) if the Term C Loans are to be entirely or partly
Eurodollar Loans, the respective amounts of each such Type of Loan and
the respective lengths of the initial Interest Periods therefor. Upon
receipt of such notice the Administrative Agent shall promptly notify
each Lender having a Term C Loan Commitment thereof. Not later than
10:00 A.M. on the First Amendment Date, each Lender shall make
available to the Administrative Agent at its office specified in
subsection 13.3 the amount of such Lender's Term C Loan Commitment
Percentage of the Term C Loans to be made available on such date in
immediately available funds. The Administrative Agent shall on such
date credit the account of the Borrower on the books of such office of
the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds
as received by the Administrative Agent."
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1.3 AMENDMENTS TO SECTION 6: GENERAL PROVISIONS
A. Subsection 6.2(a) of the Credit Agreement is hereby
amended by (a) deleting the word "and" immediately preceding clause (iii) of the
first sentence thereof and (b) adding the following as clause (iv) at the end of
the first sentence thereof:
"and (iv) the principal amount of the Term C Loans of such
Lender, in 14 semi-annual installments, commencing November
30, 2002, each such installment in an amount equal to such
Lender's Term C Loan Commitment Percentage of the respective
amounts set forth for the Term C Loans in Schedule 6.2 for
such installment (or the then unpaid principal amount of such
Term C Loans, on the date that the Term B Loans become due and
payable pursuant to SECTION 11)."
B. Subsection 6.2(e) of the Credit Agreement is hereby
amended by (a) deleting the word "and" immediately preceding clause (iv) thereof
and (b) deleting clause (iv) thereof and substituting the following in lieu
thereof:
"(iv) a promissory note of the Borrower evidencing the Term C
Loan of such Lender, substantially in the form of Exhibit A-5
hereto, with appropriate insertions as to date and principal
amount (a "TERM C LOAN NOTE"), payable to the order of such
Lender and representing the obligation of the Borrower to pay
a principal amount equal to the amount of the Term C Loan of
such Lender, with interest on the unpaid principal amount
thereof from time to time outstanding under such Term C Loan
Note as set forth in subsection 6.6 and (v) a promissory note
of the Borrower evidencing any other Term Loan of such Lender
as provided for in any Increased Commitments Agreement (such
promissory note, together with the Term A Loan Notes, the Term
B Loan Notes and the Term C Loan Notes, the "TERM LOAN
NOTES")."
C. Subsection 6.3(a) of the Credit Agreement is hereby
amended by adding the following immediately prior to the last sentence thereof:
"Any voluntary prepayments of the Term C Loans shall be
applied to reduce the scheduled installments of principal
thereof set forth on Schedule 6.2 on either a pro rata basis
(in accordance with the respective outstanding principal
amounts thereof) to each remaining scheduled installment of
principal of the Term C Loans set forth on Schedule 6.2 or, at
the Borrower's election made by giving written notice thereof
to the Administrative Agent when such prepayment is made, in
forward chronological order."
D. Subsection 6.3(d) of the Credit Agreement is hereby
amended by deleting it in its entirety and inserting in lieu thereof the
following:
"(d)(i) If on the date for prepayment of the Term Loans
specified in this subsection 6.3(d)(i) any principal amount of
the Term A Loans and/or the Term B Loans remains outstanding,
in the event that there shall be Consolidated Excess Cash Flow
for any fiscal year of the Borrower (commencing with the
fiscal year ending in December, 2002), the Borrower shall, no
later than 90 days after the end of such fiscal year, prepay
the Term Loans in an aggregate amount equal to the Applicable
Prepayment Percentage of such Consolidated Excess Cash Flow.
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(ii) If on the date for deposit into the Excess
Cash Flow Account or prepayment of the Term Loans specified in
this subsection 6.3(d)(ii) no principal amount of the Term A
Loans or the Term B Loans remains outstanding, in the event
that there shall be Consolidated Excess Cash Flow for any
fiscal year of the Borrower (commencing with the fiscal year
ending in December, 2002), the Borrower shall, no later than
90 days after the end of such fiscal year, (A) if and to the
extent that (1) the Convertible Notes remain outstanding, (2)
amounts on deposit in the Excess Cash Flow Account are less
than the lesser of $50,000,000 or the then outstanding
principal amount of the Convertible Notes and (3) the Borrower
elects to make a deposit into the Excess Cash Flow Account in
lieu of prepaying the Term Loans, deposit an aggregate amount
equal to the Applicable Prepayment Percentage of such
Consolidated Excess Cash Flow LESS any amount used on such
date to prepay the Term Loans pursuant to clause (B) below
into the Excess Cash Flow Account or (B) if and to the extent
that (1) the Convertible Notes are no longer outstanding, (2)
amounts on deposit in the Excess Cash Flow Account are equal
to or greater than the lesser of $50,000,000 or the then
outstanding principal amount of the Convertible Notes or (3)
the Borrower elects to prepay the Term Loans in lieu of making
a deposit into the Excess Cash Flow Account, prepay the Term
Loans in an aggregate amount equal to the Applicable
Prepayment Percentage of such Consolidated Excess Cash Flow
LESS any amount deposited on such date into the Excess Cash
Flow Account pursuant to clause (A) above."
E. Subsection 6.3(e)(iv) of the Credit Agreement is
hereby amended by adding the following immediately following the first sentence
thereof:
"Any mandatory prepayments of the Term C Loans shall be
applied to reduce the scheduled installments of principal of
the Term C Loans set forth on Schedule 6.2 in forward
chronological order."
F. Subsection 6.8(b) of the Credit Agreement is hereby
amended by inserting "5.4" in the list of subsections of the Credit Agreement
appearing in the second sentence thereof.
G. SECTION 6 of the Credit Agreement is hereby further
amended by adding the following as subsection 6.15 thereof:
"6.15 EXCESS CASH FLOW ACCOUNT. The Excess Cash Flow Account
shall be held by, and in the name of, the Administrative Agent under
its sole dominion and control pursuant to the provisions of the
Security Documents. At any time, upon written request of the Borrower
to the Administrative Agent, if no Default or Event of Default has
occurred and is then continuing, amounts on deposit in the Excess Cash
Flow Account shall be made available to the Borrower to pay the
outstanding principal amount of the Convertible Notes. If, upon payment
of all outstanding principal of the Convertible Notes, amounts remain
on deposit in the Excess Cash Flow Account, such amounts shall be
utilized to prepay the Term Loans as provided in subsection
6.3(e)(iv)."
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1.4 AMENDMENTS TO SECTION 7: REPRESENTATIONS AND
WARRANTIES
Subsection 7.17 of the Credit Agreement is hereby amended by
adding the following as subsection (d):
"(d) On the First Amendment Date, the proceeds of the Term
C Loans shall be utilized in full by the Administrative Agent
to prepay the Term A Loans and the Term B Loans pursuant to
subsection 6.3(a)."
1.5 AMENDMENTS TO SECTION 10: NEGATIVE COVENANTS
A. 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
the fiscal quarters (each, a "TEST DATE") set forth below the
Leverage Ratio to be greater than the ratio set forth opposite
such fiscal quarter end below:
PERIOD MAXIMUM LEVERAGE RATIO
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Closing Date to
March 30, 2002 5.25 to 1.00
March 31, 2002 to 5.25 to 1.00
June 28, 2003
June 29, 2003 to
September 27, 2003 5.10 to 1.00
September 28, 2003 to
December 28, 2003 5.00 to 1.00
December 29, 2003 to
March 27, 2004 4.90 to 1.00
March 28, 2004 to
June 26, 2004 4.75 to 1.00
June 27, 2004 to
September 25, 2004 4.60 to 1.00
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September 26, 2004 to
December 25, 2004 4.50 to 1.00
December 26, 2004 to
March 26, 2005 4.25 to 1.00
March 27, 2005 and
thereafter 4.00 to 1.00"
B. Subsection 10.10(a)(ii) of the Credit Agreement is
hereby amended by deleting it in its entirety and substituting the following in
lieu thereof:
"(ii) the Borrower may redeem or purchase any of the
Convertible Notes from any funds available therefor (including, without
limitation, (a) amounts on deposit in the Excess Cash Flow Account and
(b) if at such time the Borrower's Senior Debt Leverage Ratio measured
on a PRO FORMA basis, immediately after giving effect to such
redemption or purchase, would not exceed 2.25 to 1.00, proceeds of
Revolving Credit Loans), if no Default or Event of Default has occurred
or is continuing both immediately prior to and after giving effect to
such redemption or purchase;"
1.6 AMENDMENTS TO SECTION 13: MISCELLANEOUS
Subsection 13.3 of the Credit Agreement is hereby amended by
inserting "5.4" in the list of subsections of the Credit Agreement therein.
1.7 AMENDMENTS TO SCHEDULES AND EXHIBITS
A. Schedule 1.1 to the Credit Agreement is amended by
adding thereto the information set forth in Schedule 1.1 hereto.
B. Schedule 6.2 to the Credit Agreement is amended by
adding thereto the information set forth in Schedule 6.2 hereto.
C. The Credit Agreement is further amended by adding, as
Exhibit A-5 and Exhibit I thereto, Exhibit A-5 and Exhibit I attached hereto.
D. The Security Agreement shall be amended by the
amendment in the form attached hereto (the "SECURITY AGREEMENT AMENDMENT").
SECTION 2. CONFORMING MODIFICATIONS OF COLLATERAL DOCUMENTS AND
SUBSIDIARY GUARANTY AND AGREEMENT OF JOINDER
By their execution and delivery of this Amendment, the Lenders
constituting Required Lenders, the Borrower and Guarantors approve, consent and
agree that the lenders providing the Term C Loans shall, upon executing and
delivering counterparts to this Amendment
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and the funding of the Term C Loans, become Lenders for all purposes of the Loan
Documents entitled to the benefits of the Security Documents, the Guarantees and
the other Loan Documents.
SECTION 3. CONDITIONS TO EFFECTIVENESS
Sections 1 and 2 of this Amendment shall become effective only
upon the satisfaction of all of the following conditions precedent:
A. On or before the First Amendment Date, the Borrower
shall deliver to the Administrative Agent the following, each, unless otherwise
noted, dated the First Amendment Date:
1. Signature and incumbency certificates of its officers
executing this Amendment (which may be included in
the certificate delivered pursuant to clause 4
below);
2. Copies of this Amendment and the Security Agreement
Amendment executed by the Borrower and each
Guarantor;
3. Resolutions of the Board of Directors of the Borrower
approving the incurrence of the Term C Loans and this
Amendment;
4. A certificate of the Borrower, dated the First
Amendment Date, substantially in the form of Exhibit
I hereto, with appropriate insertions and
attachments, reasonably satisfactory in form and
substance to the Administrative Agent, executed by
the President or any Vice President of the Borrower;
and
5. An opinion of counsel to the Borrower reasonably
satisfactory to the Administrative Agent.
B. On or before the First 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.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement and the other Loan Documents 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:
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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 the Security Agreement Amendment and to carry
out the transactions contemplated by, and perform its obligations under, the
Credit Agreement as amended by this Amendment and the Security Agreement as
amended by the Security Agreement Amendment (the "AMENDED AGREEMENTS"). The
Borrower has the corporate power and authority, and the legal right, to borrow
the Term C Loans and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of Amended Agreements.
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 Security Agreement Amendment and the
performance of the Amended Agreements.
C. NO CONFLICT. The execution, delivery and performance
of this Amendment, the Term C Notes, if any, and the Security Agreement
Amendment, the performance of the Amended Agreements, the borrowings of the Term
C Loans and the use of the proceeds thereof and the consummation of the
transactions contemplated hereby 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 borrowings of
the Term C Loans or in connection with the execution, delivery, performance,
validity or enforceability of this Amendment, the Security Agreement Amendment,
the Amended Agreements or the Term C Notes, if any, or the consummation of the
transactions contemplated hereby other than (i) any filings required in order to
perfect and/or insure the priority of Liens created pursuant to the Security
Documents and (ii) 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, the
Security Agreement Amendment, the Term C Notes, if any, and the Amended
Agreements constitutes a legal, valid and binding obligation of the Borrower
(and, in the case of this Amendment and the Security Agreement Amendment, each
Guarantor), enforceable against the Borrower (and, in the case of this Amendment
and the Security Agreement 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 First Amendment Date to the same extent as though made
on and as of that date, except to the extent such
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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 5. 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 First 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, this
Amendment and the Security Agreement Amendment and consents to the amendment of
the Credit Agreement and the other Loan Documents effected pursuant to this
Amendment and the Security Agreement 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
Agreements 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 and the Security Agreement 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 6. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS.
(i) On and after the First Amendment Date, each reference
in the Credit Agreement or the other Loan Documents amended hereby or
by the Security Agreement
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Amendment to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement or such other Loan
Document shall mean and be a reference to the Amended Agreements.
(ii) Except as specifically amended by this Amendment and
the Security Agreement 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 and the Security Agreement 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]
12
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, individually
and as Administrative Agent
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
By: /s/ Xxxxxx Xxxx
-----------------------------------
Name: Xxxxxx Xxxx
Title: Director
LENDERS: ABBEY NATIONAL TREASURY SERVICES plc
(U.S. Branch)
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Chief Executive Officer
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
LENDERS: NEW ALLIANCE GLOBAL CDO, LIMITED
By: Alliance Capital Management L.P.,
as Sub-Advisor
By: Alliance Capital Management
Corporation, as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
LENDERS: AIMCO CLO SERIES 2001-A
By: /s/
-----------------------------------
Name:
Title:
By: /s/
-----------------------------------
LENDERS: AMERICAN EXPRESS CERTIFICATE COMPANY
By: American Express Asset Management
Group Inc.,
As Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
LENDERS: CENTURION CDO II, LTD.
By: American Express Asset Management
Group Inc.,
As Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
LENDERS: CENTURION CDO III, LIMITED
By: American Express Asset Management
Group Inc.,
As Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
LENDERS: IDS LIFE INSURANCE COMPANY
By: American Express Asset Management
Group Inc.,
As Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
LENDERS: KZH ING-2 LLC
By: /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
LENDERS: KZH STERLING LLC
By: /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
LENDERS: KZH CNC LLC
By: /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
LENDERS: KZH CYPRESS TREE - 1 LLC
By: /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
LENDERS: KZH ING - 3 LLC
By: /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
LENDERS: KZH WATERSIDE LLC
By: /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
LENDERS: KZH PONDVIEW LLC
By: /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
LENDERS: KZH SOLEIL-2 LLC
By: /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
LENDERS: KZH SOLEIL LLC
By: /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
LENDERS: SEQUILS - CENTURION V, LTD.
By: American Express Asset Management
Group Inc.,
As Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
LENDERS: ARES LEVERAGED INVESTMENT FUND II, L.P.
By: Ares Management II, L.P.
Its: General Partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
LENDERS: ARES III CLO LTD.
By: Ares CLO Management, LLC
Its: Investment Manager
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
LENDERS: ARES IV CLO LTD.
By: Ares CLO Management IV, L.P.
Its: Investment Manager
By: Ares CLO XX XX, LLC
Its: Managing Member
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
LENDERS: ARES V, CLO LTD.
By: Ares CLO Management V, L.P.
Its: Investment Manager
By: Ares Clo GP V, LLC
Its: Managing Member
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
LENDERS: BNP PARIBAS
By: /s/ Xxxxx X. March
-----------------------------------
Name: Xxxxx X. March
Title: Vice President
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Director
LENDERS: CARYLYE HIGH YIELD PARTNERS II, LTD.
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Principal
LENDERS: CARYLYE HIGH YIELD PARTNERS III, LTD.
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Principal
LENDERS: STANWICH LOAN FUNDING LLC
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
LENDERS: JUPITER FUNDING TRUST
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Agent
LENDERS: WINGED FOOT FUNDING TRUST
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Agent
LENDERS: PROMETHEUS INVESTMENT FUNDING NO. 1 LTD
By: CPF Asset Advisors LLC as Investment
Manager
By: /s/ Xxxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
LENDERS: MASSSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: Xxxxx X. Xxxxxx & Co. Inc, under
delegated authority from Massachusetts
Mutual Life Insurance Company as
Investment Manager
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Managing Director
LENDERS: MASSSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: Xxxxx X. Xxxxxx & Co. Inc, as
Investment Adviser
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Managing Director
LENDERS: COSTANTINUS XXXXX XXXXX CDO V, LTD.
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
LENDERS: XXXXX XXXXX CDO III, LTD.
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
LENDERS: XXXXX XXXXX CDO IV, LTD.
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
LENDERS: XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
LENDERS: XXXXX XXXXX INSTITUTIONAL SENIOR LOAN
FUND
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
LENDERS: XXXXXXX & CO
By: Boston Management and Research as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
LENDERS: OXFORD STRATEGIC INCOME FUND
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
LENDERS: SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
LENDERS: ERSTE BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, New York Branch
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director, New York
Branch
LENDERS: BALLYROCK CDO I LIMITED
By: BALLYROCK Investment Advisors LLC,
as Collateral Manager
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Assistant Treasurer
LENDERS: FIDELITY ADVISOR SERIES II:
FIEDLITY ADVISOR FLOATING RATE HIGH
INCOME FUND
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
LENDERS: FRANKLIN CLO II, LTD
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
LENDERS: FRANKLIN FLOATING RATE MASTER SERIES
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
LENDERS: FRANKLIN FLOATING RATE TRUST
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
LENDERS: FRANKLIN FLOATING RATE DAILY ACCESS
FUND
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
LENDERS: GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Duly Authorized Signatory
LENDERS: HARCH CLO I, LTD.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
LENDERS: SRV-HIGHLAND, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
LENDERS: BLUE SQUARE FUNDING SERIES 3
By: Deutsche Bank Trust Co. Americas
Formerly known as Bankers Trust Co.
By: /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Assistant Vice President
LENDERS: EMERALD ORCHARD LIMITED
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney in Fact
LENDERS: IKB CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: President
LENDERS: ARCHIMEDES FUNDING IV (CAYMAN), LTD.
By: ING Capital Advisors, LLC, as
Collateral Manager
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
LENDERS: PILGRIM CLO 1999 - 1 LTD.
By: ING Investments, LLC
as its Investment Manager
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
LENDERS: ML CLO XV PILGRIM AMERICA (CAYMAN) LTD
By: ING Investments, LLC
as its Investment Manager
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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
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
LENDERS: NEMEAN CLO, LTD.
By: ING Capital Advisors, LLC, as
Investment Manager
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
LENDERS: AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management,
Inc.
as Portfolio Advisor
By: /s/ Xxxx X. XxXxxxxx
-----------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
LENDERS: AVALON CAPITAL LTD
By: INVESCO Senior Secured Management,
Inc.
as Portfolio Advisor
By: /s/ Xxxx X. XxXxxxxx
-----------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
LENDERS: CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management,
Inc.
as Investment Advisor
By: /s/ Xxxx X. XxXxxxxx
-----------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
LENDERS: DIVERSIFIED CREDIT PORTFOLIO LTD.
By: INVESCO Senior Secured Management,
Inc.
as Investment Advisor
By: /s/ Xxxx X. XxXxxxxx
-----------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
LENDERS: OASIS COLLATERALIZED HIGH INCOME
PORTFOLIOS-1, LTD.
By: INVESCO Senior Secured Management,
Inc.
as Subadvisor
By: /s/ Xxxx X. XxXxxxxx
-----------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
LENDERS: SEQUILS-LIBERTY, LTD.
By: INVESCO Senior Secured Management,
Inc.
as Collateral Manager
By: /s/ Xxxx X. XxXxxxxx
-----------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
LENDERS: CONTINENTAL CASUALTY COMPANY
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
LENDERS: NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
LENDERS: NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
LENDERS: HARBOURVIEW CLO IV
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
LENDERS: XXXXXXXXXXX SENIOR FLOATING RATE
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
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
LENDERS: SANKATY ADVISORS, LLC, 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
LENDERS: SANKATY HIGH YIELD ASSET PARTNERS II,
L.P.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
LENDERS: SANKATY HIGH YIELD PARTNERS III, L.P.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
LENDERS: SANKATY ADVISORS, LLC, as Collateral
Manager for Race Point CLO, Limited, as
Term Lender
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
LENDERS: PPM SHADOW CREEK FUNDING TRUST
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Agent
LENDERS: PPM SPYGLASS FUNDING TRUST
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Agent
LENDERS: HARBOUR TOWN FUNDING TRUST
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Agent
LENDERS: XXXXX XXX & XXXXXXX CLO I LTD.
By: Xxxxx Xxx & Farnham Incorporated, as
Portfolio Manager
By: /s/ Xxxxxxxx X. Zam
-----------------------------------
Name: Xxxxxxxx X. Zam
Title: Vice President
LENDERS: TORONTO DOMINION (NEW YORK), INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
LENDERS: TEXTRON FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Director
LENDERS: TRANSAMERICA BUSINESS CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
LENDERS: XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxxxx, III
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx, III
Title: Vice President
S-3
TERM C LENDERS: ANCHOR NATIONAL LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxx, III
-----------------------------------
Name: Xxxx X. Xxxxxx, III
Title: Authorized Agent
TERM C LENDERS: NEW ALLIANCE GLOBAL CDO, LIMITED
By: Alliance Capital Management L.P.,
as Sub-advisor
By: Alliance Capital Management
Corporation, as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
TERM C LENDERS: BNP PARIBAS
By: /s/ Xxxxx X. March
-----------------------------------
Name: Xxxxx X. March
Title: Vice President
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Director
TERM C LENDERS: DENALI CAPITAL LLC, managing member of
DC Funding Partners LLC, portfolio
manager for DENALI CAPITAL CLO I, LTD.
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Credit Officer
TERM C LENDERS: HARCH CLO I, LTD.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
TERM C LENDERS: IKB CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: President
TERM C LENDERS: NATIONAL CITY PARK
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
TERM C LENDERS: OAK HILL CREDIT PARTNERS I, LIMITED
By: Oak Hill CLO Management, LLC
as Investment Manager
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Authorized Signatory
TERM C LENDERS: OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MGP, Inc.
its General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
TERM C LENDERS: OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II, L.P.
its General Partner
By: Oak Hill Securities MGP II, Inc.
its General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
TERM C 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
TERM C LENDERS: SANKATY ADVISORS, LLC, 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
TERM C LENDERS: SANKATY ADVISORS, LLC, as Collateral
Manager for Race Point CLO, Limited, as
Term Lender
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
TERM C LENDERS: SANKATY HIGH YIELD ASSET PARTNERS II,
L.P.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
TERM C LENDERS: SANKATY HIGH YIELD PARTNERS III, L.P.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
TERM C LENDERS: GALAXY CLO 1999-1 Ltd.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
TERM C LENDERS: SUNAMERICA LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxx, III
-----------------------------------
Name: Xxxx X. Xxxxxx, III
Title: Authorized Agent
S-4
EXHIBIT A-5 TO
CREDIT AGREEMENT
----------------
TERM C LOAN NOTE
$____________ New York, New York
_________ __, 2002
FOR VALUE RECEIVED, the undersigned, PLAYTEX PRODUCTS, INC., a Delaware
corporation (the "BORROWER"), hereby unconditionally promises to pay to the
order of __________ (the "LENDER") at the office of Credit Suisse First Boston,
Eleven Madison Avenue, New York, New York 10010-3629, Attention: Syndicated
Finance Agency Group Manager, in lawful money of the United States of America
and in immediately available funds, the principal amount of __________ DOLLARS
($__________), or, if less, the unpaid principal amount of the Term C Loan made
by the Lender pursuant to subsection 5.3 of the Credit Agreement, as hereinafter
defined. The principal amount of the Term C Loan made by the Lender shall be
paid in the amounts and on the dates specified in subsection 6.2 of the Credit
Agreement. The Borrower further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time outstanding at
the rates and on the dates specified in subsection 6.6 of the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of the Term
C Loan and the date and amount of each payment or prepayment of principal with
respect thereto, each conversion of all or a portion thereof to another Type,
each continuation of all or a portion thereof as the same Type and, in the case
of Eurodollar Loans, the length of each Interest Period with respect thereto.
Each such endorsement shall constitute PRIMA FACIE evidence of the accuracy of
the information endorsed. The failure to make any such endorsement or any error
therein shall not affect the obligations of the Borrower in respect of such Term
C Loan.
This Note (a) is one of the Term C Loan Notes referred to in the Credit
Agreement, dated as of May 22, 2001 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
Lender, the other banks and financial institutions from time to time parties
thereto, and Credit Suisse First Boston, as Administrative Agent, (b) is subject
to the provisions of the Credit Agreement and (c) is subject to optional and
mandatory prepayment in whole or in part as provided in the Credit Agreement.
This Note is secured and guaranteed as provided in the Loan Documents. Reference
is hereby made to the Loan Documents for a description of the properties and
assets in which a security interest has been granted, the nature and extent of
the security and the guarantees, the terms and conditions upon which the
security interests and each guarantee were granted and the rights of the holder
of this Note in respect thereof.
Upon the occurrence and continuation of any one or more Events of
Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS
AND PROVISIONS OF THE CREDIT AGREEMENT. TRANSFERS OF THIS NOTE MUST BE RECORDED
IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF
THE CREDIT AGREEMENT.
PLAYTEX PRODUCTS, INC.
By: ____________________________
Name: __________________________
Title: _________________________
2
SCHEDULE
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
====================================================================================================================================
Date Amount of ABR Amount Amount of Amount of ABR Loans Unpaid Principal Notation
Loans Converted to Principal of Converted to Balance of ABR Made By
ABR Loans ABR Loans Eurodollar Loans Loans
Repaid
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SCHEDULE
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
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Date Amount of Amount Interest Period Amount of Amount of Unpaid Notation
Eurodollar Converted to and Eurodollar Principal of Eurodollar Principal Made By
Loans Eurodollar Rate with Eurodollar Loans Converted Balance of
Loans Respect Thereto Loans Repaid to Eurodollar
ABR Loans Loans
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EXHIBIT I
BORROWING CERTIFICATE
PLAYTEX PRODUCTS, INC.
(a Delaware corporation)
Pursuant to Section 3(A)(4) of the First Amendment to Credit
Agreement, dated as of May __, 2002 (the "AMENDMENT"), by and among Playtex
Products, Inc., a Delaware corporation (the "BORROWER"), the Persons listed on
the signature pages thereto as Guarantors, the financial institutions listed on
the signature pages thereto as Lenders and Credit Suisse First Boston, as
Administrative Agent for the Lenders, amending that certain Credit Agreement
dated as of May 22, 2001 (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 or the Amendment, as the context requires), the undersigned __________
of the Borrower hereby certifies on behalf of the Borrower as of the date hereof
as follows:
1. Each of the representations and warranties of the
Borrower and each other Loan Party set forth in Section 4 of the
Amendment or which are contained in any certificate, document or
financial or other statement furnished by or on behalf of the Borrower
or any other Loan Party pursuant to or in connection with the Amendment
are true and correct in all material respects on and as of the date
hereof with the same effect as if made on the date hereof except for
representations and warranties stated to related to a specific earlier
date, in which case such representations and warranties are true and
correct in all material respects as of such earlier date; and
2. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by the
Amendment that would constitute an Event of Default or a Default.
IN WITNESS WHEREOF, I have signed this certificate as of the
date written below.
PLAYTEX PRODUCTS, INC.
__________________________________
Name:
Title:
Date: May __, 2002
SCHEDULE 1.1
------------
LENDER COMMITMENT
------ ----------
Credit Suisse First Boston $450,000,000 Term C Loan
SCHEDULE 6.2
------------
TERM C LOAN INSTALLMENTS
------------------------
The Borrower shall make principal payments on the Term C Loans in installments
on the dates and in the amounts below:
DATE AMOUNT
---- ------
November 30, 2002 $2,250,000
May 31, 2003 $2,250,000
November 30, 2003 $2,250,000
May 31, 2004 $2,250,000
November 30, 2004 $2,250,000
May 31, 2005 $2,250,000
November 30, 2005 $2,250,000
May 31, 2006 $2,250,000
November 30, 2006 $2,250,000
May 31, 2007 $2,250,000
November 30, 2007 $2,250,000
May 31, 2008 $2,250,000
November 30, 2008 $211,500,000
May 31, 2009 $211,500,000
------------
$450,000,000
AMENDMENT NO. 1 TO
SECURITY AGREEMENT
AMENDMENT NO. 1 effective as of May 29, 2002 (this
"AMENDMENT"), to SECURITY AGREEMENT, dated as of May 22, 2002 (as heretofore
amended and as may be further amended, modified or supplemented from time to
time, the "SECURITY AGREEMENT"), among the Grantors named therein (each a
"GRANTOR" and collectively, the "GRANTORS") and Credit Suisse First Boston, as
Secured Party (the "SECURED PARTY") for the lenders party to the Credit
Agreement (the "LENDERS"), dated as of May 22, 2001, among Playtex Products,
Inc., the Lenders, and Credit Suisse First Boston, as Administrative Agent (as
amended, modified or supplemented from time to time in accordance with its
terms, the "CREDIT AGREEMENT") and (ii) the Interest Rate Exchangers (as such
term is defined in the Security Agreement).
WHEREAS, a security interest has been granted by the Grantors
pursuant to the Security Agreement in all deposit accounts of each Grantor,
together with (i) all amounts on deposit from time to time in such deposit
accounts and (ii) all interest, cash, instruments, securities and other property
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the foregoing;
WHEREAS, the Borrower, the Lenders and the Secured Party have
agreed to amend the Credit Agreement in certain respects, including the
establishment of a deposit account to be known as the Excess Cash Flow Account
to be held by the Secured Party pursuant to the provisions of the Security
Agreement and administered as provided in the Credit Agreement and the Security
Agreement; and
WHEREAS, the Grantors and the Secured Party desire to amend
certain provisions of the Security Agreement in connection with the Excess Cash
Flow Account;
NOW, THEREFORE, the Grantors and the Secured Party hereby
agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used herein and not defined
shall have the respective meanings assigned to such terms in the Credit
Agreement and the Security Agreement.
SECTION 2. AMENDMENTS TO THE SECURITY AGREEMENT. The Security Agreement
is hereby amended as follows:
A. Section 12 of the Security Agreement is hereby
amended by adding the following paragraph thereto:
"Secured Party is hereby authorized to establish and maintain
in the name of Company and under the sole dominion and control of Secured Party,
a restricted blocked deposit account designated as "Playtex Products, Inc.
Excess Cash Flow Account". All amounts at any time held in the Excess Cash Flow
Account shall be beneficially owned by Grantors but shall be held in the name of
Secured Party hereunder, for the benefit of Lenders, as collateral security for
the Secured Obligations upon the terms and conditions set forth herein. Except
as set forth in the Credit Agreement and this Agreement, Grantors shall have no
right to withdraw, transfer or
otherwise receive any funds deposited into the Excess Cash Flow Account.
Anything contained herein to the contrary notwithstanding, the Excess Cash Flow
Account shall be subject to such applicable laws, and such applicable
regulations of the Board of Governors of the Federal Reserve System and of any
other appropriate banking or governmental authority, as may now or hereafter be
in effect. All deposits of funds in the Excess Cash Flow Account shall be made
by wire transfer (or, if applicable, by intra-bank transfer from another account
of a Grantor) of immediately available funds, in each case addressed in
accordance with instructions of Secured Party. Each Grantor shall, promptly
after initiating a transfer of funds to the Excess Cash Flow Account, give
notice to Secured Party by telefacsimile of the date, amount and method of
delivery of such deposit. Cash held by Secured Party in the Excess Cash Flow
Account shall be invested by Secured Party in Cash Equivalents at the request of
the Borrower, and otherwise shall be maintained as a cash deposit in the Excess
Cash Flow Account pending application thereof as provided in subsections 6.3(d)
and 6.15 of the Credit Agreement or as elsewhere provided in this Agreement. To
the extent permitted under Regulation Q of the Board of Governors of the Federal
Reserve System, any cash held in the Excess Cash Flow Account and not invested
as provided above shall bear interest at the standard rate paid by Secured Party
to its customers for deposits of like amounts and terms. Subject to Secured
Party's rights hereunder, any interest earned on deposits of cash in the Excess
Cash Flow Account shall be deposited directly in, and held in, the Excess Cash
Flow Account."
B. Section 16 of the Security Agreement is hereby
amended by adding the following as subsection (d):
`(d) EXCESS CASH FLOW ACCOUNT. If an Event of Default has
occurred and is continuing, at the direction of Required Lenders,
amounts on deposit in the Excess Cash Flow Account shall be applied as
provided in subsection 6.9(b) of the Credit Agreement.'
SECTION 3. MISCELLANEOUS.
3.1 This Amendment shall become effective upon the execution and
delivery of counterparts hereof by the Grantors and the Secured Party.
3.2 Except as specifically amended by this Amendment, the Security
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
3.3 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.
3.4 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.
3.5 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.
3.6 All references to the Security Agreement contained in the
Security Agreement and the other Loan Documents and the other documents and
instruments delivered pursuant to or in connection therewith shall mean the
Security Agreement, as amended hereby and as may in the future be amended,
restated, supplemented or modified from time to time.
3.7 The parties hereto shall, at any time and from time to time
following the execution of this Amendment, execute and deliver all such further
instruments and take all such further actions as may be reasonably necessary or
appropriate in order to carry out the provisions of this Amendment.
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.
GRANTORS: PLAYTEX PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title: Executive Vice President
--------------------------------
PLAYTEX INVESTMENT CORP.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title: Executive Vice President
--------------------------------
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
--------------------------------
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
--------------------------------
SECURED PARTY: CREDIT SUISSE FIRST BOSTON, as Secured
Party
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Director
