Exhibit 10(b)(1)
PLAYTEX PRODUCTS, INC.
FIRST AMENDMENT TO TERM LOAN AGREEMENT
This FIRST AMENDMENT TO TERM LOAN AGREEMENT (this "Amendment") is
dated as of January 28, 1998 and entered into by and among Playtex Products,
Inc., a Delaware corporation ("Borrower"), the financial institutions listed on
the signature pages hereof ("Lenders"), DLJ Capital Funding, Inc., as the
Syndication Agent for Lenders ("Syndication Agent") and Xxxxx Fargo Bank, N.A.,
as facility manager for the Lenders ("Facility Manager"), and, for purposes of
Section 4 hereof, the Credit Support Parties (as defined in Section 4 hereof)
listed on the signature pages hereof, and is made with reference to that certain
Term Loan Agreement dated as of July 21, 1997 (the "Term Loan Agreement"), by
and among Borrower, Lenders, Syndication Agent and Facility Manager. Capitalized
terms used herein without definition shall have the same meanings herein as set
forth in the Term Loan Agreement.
RECITALS
WHEREAS, Borrower has advised Lenders that Borrower desires to
acquire (the "Acquisition") 100% of the stock of Personal Care Holdings, Inc.
("PCH") by way of merger of PCH with and into PCG Acquistition Corp., a Delaware
corporation and wholly owned subsidiary of Borrower to be subsequently renamed
PCH, for an aggregate purchase price of approximately $191.4 million, including
the refinancing of approximately $60 million in existing debt and the payment of
approximately $8 million in related fees and expenses;
WHEREAS, Borrower proposes to pay for the Acquisition through (i)
the issuance of approximately 9,257,375 shares of its common stock and (ii) the
borrowing of up to $100 million of senior secured debt;
WHEREAS, Borrower has requested Lenders to amend the Term Loan
Agreement to (i) permit Borrower to borrow such an additional $100 million in
senior secured debt under the Term Loan Agreement (the "Additional Debt") and
(ii) make certain other related amendments as set forth below;
WHEREAS, subject to the terms and conditions of this Amendment,
Lenders are willing to agree to such amendments.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE TERM LOAN AGREEMENT
1.1 Amendments to Cover Page
The cover page of the Term Loan Agreement is hereby amended by
deleting the reference to "$150,000,000" contained thereon and substituting
"$250,000,000" therefor.
1.2 Amendments to Section 1: Definitions
A. Subsection 1.1 of the Term Loan Agreement is hereby amended by
adding thereto the following definitions, which shall be inserted in proper
alphabetical order:
"'First Amendment': the First Amendment to Term Loan Agreement dated
as of January 28, 1998, by and among Borrower, Lenders, Syndication Agent
and Facility Manager.
`First Amendment Effective Date': the date on which the conditions
precedent to the effectiveness of the First Amendment as set forth in
Section 2 thereof shall have been satisfied.
`New Lenders': those financial institutions making Loans to the
Borrower on the First Amendment Effective Date and identified as New
Lenders on Schedule 1.1. Upon the effectiveness of the First Amendment,
each New Lender will become a Lender for all purposes under the Term Loan
Agreement to the same extent as if originally a party thereto.
`PCH': Personal Care Holdings, Inc., a Delaware corporation, to be
acquired by the Borrower on the First Amendment Effective Date."
B. Subsection 1.1 of the Term Loan Agreement is hereby further
amended by deleting the definition of "Commitment" therefrom and by substituting
therefor the following:
"'Commitment': as to any Lender, the obligation of such Lender to
make a Loan to the Borrower on the Closing Date or on the First Amendment
Effective Date, as the case may be, in a principal amount not to exceed
the amount set forth opposite such Lender's name on Schedule 1.1 under the
heading `Term Loan.'"
C. Subsection 1.1 of the Term Loan Agreement is hereby further
amended by deleting the "." from the end of the definition of "Lender" and
substituting therefor the following:
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"and includes without limitation the New Lenders."
1.3 Amendments to Section 2: Loans
A. Subsection 2.1(a) of the Term Loan Agreement is hereby amended by
adding the following sentence at the end thereof:
"Subject to the terms and conditions hereof, each New Lender
severally agrees to make a Loan to the Borrower upon the First
Amendment Effective Date in an amount not to exceed the amount of
the Commitment of such New Lender."
B. Subsection 2.1(c) of the Term Loan Agreement is hereby amended by
adding the following sentence at the end thereof:
"The proceeds of the Loans made by the New Lenders upon the
First Amendment Effective Date shall be used, together with
approximately 9,257,375 of common stock shares issued by the
Borrower, to acquire 100% of the stock of PCH by way of merger of
PCH with and into PCG Acquisition Corp., a wholly owned subsidiary
of Borrower to be subsequently renamed PCH, to refinance
approximately $60 million of existing debt of PCH and to pay
transaction costs and fees in an approximate amount of $8,000,000."
C. Subsection 2.2 of the Term Loan Agreement is hereby amended (i)
by adding the phrase "or the First Amendment Effective Date, as the case may be"
to such subsection after each place the phrase "Closing Date" appears therein
and (ii) in the second and third sentences thereof by deleting the words
"Lender" or "Lenders" each place they appear and by substituting therefor the
phrase "Lender or New Lender, as the case may be," or "Lender's or New Lender's,
as the case may be," respectively.
1.4 Amendments to Section 3: General Provisions
A. Subsection 3.1 of the Term Loan Agreement is hereby amended by
adding a new clause (c) at the end thereof as follows:
"(c) The Borrower shall pay to the Arranger and the
Syndication Agent the amounts set forth in the letter agreement
dated December 20, 1997 among the Arranger, the Syndication Agent
and the Borrower in the amounts and on the dates set forth therein.
The Arranger shall pay on the First Amendment Effective Date to each
New Lender such amounts as have been agreed upon by the Arranger and
such New Lender."
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B. Subsection 3.2(a) of the Term Loan Agreement is hereby amended by
(i) deleting therefrom the number "25" and substituting therefor the number "23"
and (ii) deleting therefrom the date "September 15, 1997" and substituting
therefor the date "March 15, 1998."
1.5 Substitution of Schedules
A. Schedule 1.1: Address for Notice, Commitments. Schedule 1.1 to
the Term Loan Agreement is hereby amended by deleting said Schedule 1.1 in its
entirety and substituting in place thereof a new Schedule 1.1 in the form of
Annex A to this Amendment.
B. Schedule 3.2: Amortization of Term Loans. Schedule 3.2 to the
Term Loan Agreement is hereby amended by deleting said Schedule 3.2 in its
entirety and substituting in place thereof a new Schedule 3.2 in the form of
Annex B to this Amendment.
C. Schedule 4.15: Subsidiaries of Playtex Products, Inc. Schedule
4.15 to the Term Loan Agreement is hereby amended by deleting said Schedule 4.15
in its entirety and substituting in place thereof a new Schedule 4.15 in the
form of Annex C to this Amendment.
D. Schedule 4.20: Uniform Commercial Code Filing Locations. Schedule
4.20 to the Term Loan Agreement is hereby amended by deleting said Schedule 4.20
in its entirety and substituting in place thereof a new Schedule 4.20 in the
form of Annex D to this Amendment.
Section 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (such date of
satisfaction being referred to herein as the "First Amendment Effective Date"):
A. On or before the First Amendment Effective Date, Borrower shall
deliver to Lenders (or to Agent for Lenders with sufficient originally executed
copies, where appropriate, for each Lender and its counsel) the following with
respect to the Borrower, each, unless otherwise noted, dated the First Amendment
Effective Date:
1. Certified copies of its Articles or Certificate of
Incorporation, or a certificate by its corporate secretary or an assistant
secretary certifying that there has been no change in the Articles or
Certificate of Incorporation subsequent to the Closing Date, except as
disclosed in such certificate and attaching thereto copies of any such
amendments certified by the Secretary of State of the jurisdiction of its
incorporation, together with a good standing certificate from the
Secretary of State of the jurisdiction
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of its incorporation and the jurisdiction in which its principal place of
business is located, each dated a recent date prior to the First Amendment
Effective Date;
2. Copies of its Bylaws, certified as of the First Amendment
Effective Date by its corporate secretary or an assistant secretary or a
certificate by such secretary or assistant secretary certifying that there
has been no change in the Bylaws subsequent to the Closing Date;
3. Resolutions of the Executive Committee of its Board of
Directors approving and authorizing the execution, delivery and
performance of this Amendment and the incurrence of the Additional Debt
under the Term Loan Agreement and approving and authorizing the execution,
delivery and payment of the Notes issued to New Lenders (the "New Notes"),
certified as of the First Amendment Effective Date by its corporate
secretary or an assistant secretary as being in full force and effect
without modification or amendment;
4. Signature and incumbency certificates of its officers
executing this Amendment and the New Notes;
5. This Amendment executed by the Borrower and the Credit
Support Parties and the New Notes executed by the Borrower and drawn to
the order of the New Lenders;
6. An officer's certificate of a Responsible Officer of the
Borrower to the effect that (i) there has been no material adverse change
in the business, assets, debt service capacity, tax position, liabilities
(including environmental liabilities), financial condition, operations or
prospects of Borrower and its subsidiaries, since December 31, 1996, (ii)
there has been no material adverse change in the business, results of
operations, properties, assets or condition (financial or otherwise) of
PCH and its subsidiaries, in each case taken as a whole, since December
31, 1996, (iii) there exists no pending or threatened materially adverse
litigation as to the Borrower or PCH and (iv) immediately upon the funding
of the Additional Debt, the Borrower will consummate the acquisition of
PCH and will deliver to Collateral Agent or to Facility Manager, as the
case may be, a Subsidiaries Guarantee and Security Documents executed by
each of PCH and its Subsidiaries, together with such other documents and
certificates as may be required under the Loan Documents, including
without limitation UCC-1 Financing Statements;
7. The Lenders shall have received (i) such financial
statements and related documents for PCH as received by Borrower and as
agreed upon as necessary and sufficient by Borrower and Lenders and (ii) a
pro forma opening balance sheet of the Borrower as of the First Amendment
Effective Date giving effect to the contemplated transactions;
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8. The First Amendment to the Credit Agreement in
substantially the form attached hereto as Annex F shall have been executed
by the required parties under the Credit Agreement;
9. PCH shall have paid in full its existing indebtedness,
including the release of any liens and collateral or other security
interests associated therewith and shall have delivered to Collateral
Agent appropriate UCC-3 Termination Statements with respect thereto; and
10. Borrower shall have delivered to Collateral Agent or to
Facility Manager, as the case may be, a Subsidiaries Guarantee and
Security Documents executed by each of Carewell Industries Inc. and its
Subsidiaries, together with such other documents and certificates as may
be required under the Loan Documents, including without limitation UCC-1
Financing Statements.
B. On or before the First Amendment Effective Date, Lenders and
their respective counsel shall have received originally executed copies of one
or more favorable written opinions of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx,
counsel to the Borrower and of Xxxx X. Yestrumakas, general counsel and
secretary of the Borrower, in form and substance reasonably satisfactory to the
Arranger and the Facility Manager and their counsel, dated as of the First
Amendment Effective Date, substantially in the forms set forth in Annex E hereto
and as to such other matters as the Arranger or the Facility Manager may
reasonably request; provided it is understood and agreed that any such opinions
or portions of such opinions which relate to PCH and its Subsidiaries and any
Subsidiaries Guarantee and Security Documents to be executed by PCH and its
Subsidiaries will not be delivered until immediately after the Borrower has
consummated the acquisition of PCH and its Subsidiaries.
C. On or before the First Amendment Effective Date, Required Lenders
shall have delivered to Arranger and Facility Manager originally executed copies
of this Amendment and each New Lender shall have delivered to Arranger and
Facility Manager originally executed copies of this Amendment.
D. The Arranger and each New Lender shall have received the fees
payable by Borrower on the First Amendment Effective Date in such amounts as
have been separately agreed upon.
E. On or before the First Amendment Effective Date, all corporate
and other proceedings taken or to be taken in connection with this Amendment and
all documents incidental thereto not previously found acceptable by the Arranger
and the Facility Manager, and its counsel shall be reasonably satisfactory in
form and substance to the Arranger and the Facility Manager and such counsel,
and the Arranger and the Facility Manager and such counsel shall have received
all such counterpart originals or certified copies of such documents as the
Arranger and the Facility Manager may reasonably request.
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Section 3. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Term Loan Agreement in the manner provided herein, Borrower represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. Corporate Power and Authority. Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Term Loan
Agreement as amended by this Amendment (the "Amended Agreement") and to issue
the New Notes.
B. Authorization of Agreements. The execution and delivery of this
Amendment and the New Notes and the performance of the Amended Agreement and the
payment of the New Notes have been duly authorized by all necessary corporate
action on the part of Borrower.
C. No Conflict. The execution and delivery by Borrower of this
Amendment and the New Notes and the performance by Borrower of the Amended
Agreement and the payment of the New Notes do not and will not (i) violate any
provision of any law or any governmental rule or regulation applicable to
Borrower or any of its Subsidiaries, the Certificate or Articles of
Incorporation or Bylaws of Borrower or any of its Subsidiaries or any order,
judgment or decree of any court or other agency of government binding on
Borrower or any of its Subsidiaries; (ii) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Borrower or any of its Subsidiaries; (iii) result in
or require the creation or imposition of any Lien upon any of the properties or
assets of Borrower or any of its Subsidiaries (other than Liens created under
any of the Loan Documents in favor of the Collateral Agent on behalf of
Lenders); or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Borrower or any of its
Subsidiaries.
D. Governmental Consents. The execution and delivery by Borrower of
this Amendment and the New Notes and the performance by Borrower of the Amended
Agreement and the payment of the New Notes do not and will not require any
registration with, consent or approval of, notice to, or other action to, with
or by, any federal, state or other governmental authority or regulatory body.
E. Binding Obligation. This Amendment and the New Notes have been
duly executed and delivered by Borrower and this Amendment, the New Notes and
the Amended Agreement are the legally valid and binding obligations of Borrower,
enforceable against Borrower in accordance with their respective terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
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F. Incorporation of Representations and Warranties From Term Loan
Agreement. The representations and warranties contained in Section 4 of the Term
Loan Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
G. Absence of Default. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Default.
Section 4. ACKNOWLEDGEMENT AND CONSENT
Each Subsidiary Guarantor is a party to the Subsidiaries Guarantee
and the other Security Documents to which such Credit Support Parties are
parties pursuant to which such Subsidiary Guarantor has (i) guarantied
Borrower's obligations under the Loan Documents and (ii) created Liens in favor
of Collateral Agent on certain Collateral to secure the obligations of such
Subsidiary Guarantor under the Subsidiaries Guarantee. The Subsidiary Guarantors
are collectively referred to herein as the "Credit Support Parties", and the
Subsidiaries Guarantee and the other Security Documents are collectively
referred to herein as the "Credit Support Documents".
Each Credit Support Party hereby acknowledges that it has reviewed
the terms and provisions of the Term Loan Agreement and this Amendment and
consents to the amendment of the Term Loan Agreement effected pursuant to this
Amendment. Each Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all Collateral encumbered
thereby will continue to guaranty or secure, as the case may be, to the fullest
extent possible the payment and performance of all "Obligations" (as such term
is defined in the applicable Credit Support Document), including without
limitation the payment and performance of all such "Obligations" in respect of
the Borrower now or hereafter existing under or in respect of the Amended
Agreement and the Notes defined therein. Without limiting the generality of the
foregoing, each Credit Support Party hereby acknowledges and confirms the
understanding and intent of such party that, upon the effectiveness of this
Amendment, and as a result thereof, the definition of "Obligations" contained in
the Amended Agreement includes the obligations of Borrower under the New Notes.
Each Credit Support Party acknowledges and agrees that any of the
Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit Support
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Party represents and warrants that all representations and warranties contained
in the Amended Agreement and the Credit Support Documents to which it is a party
or otherwise bound are true, correct and complete in all material respects on
and as of the First Amendment Effective Date to the same extent as though made
on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
Each Credit Support Party acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Credit Support Party is not required by the terms of the Term Loan
Agreement or any other Loan Document to consent to the amendments to the Term
Loan Agreement effected pursuant to this Amendment and (ii) nothing in the Term
Loan Agreement, this Amendment or any other Loan Document shall be deemed to
require the consent of such Credit Support Party to any future amendments to the
Term Loan Agreement.
Section 5. MISCELLANEOUS
A. Reference to and Effect on the Term Loan Agreement and the Other
Loan Documents.
(i) On and after the First Amendment Effective Date, each reference
in the Term Loan Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import referring to the Term Loan Agreement, and
each reference in the other Loan Documents to the "Term Loan Agreement,"
"thereunder," "thereof" or words of like import referring to the Term Loan
Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Term Loan
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of the
Syndication Agent or the Facility Manager or any Lender under, the Term
Loan Agreement or any of the other Loan Documents.
B. Fees and Expenses. Borrower acknowledges that all costs, fees and
expenses as described in subsection 10.5 of the Term Loan Agreement, incurred by
any of the Arranger, the Collateral Agent or the Agents and their counsel with
respect to this Amendment and the documents and transactions contemplated hereby
shall be for the account of Borrower.
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C. Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
BORROWER: PLAYTEX PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Title: Executive Vice President
and CFO
CREDIT SUPPORT PARTIES: Playtex Investment Corp.
Playtex International Corp.
Playtex Beauty Care, Inc.
Playtex Manufacturing, Inc.
Playtex Sales & Services, Inc.
Sun Pharmaceuticals Corp.
Smile-Tote, Inc.
TH Marketing Corp.,
(for purposes of Section 4 only)
as Credit Support Parties
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Title: Executive Vice President
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