AMENDMENT
Exhibit 99.1
AMENDMENT
AMENDMENT,
dated as of June 3, 2008 (this “Amendment”), to the
Amended and Restated Credit Agreement, dated as of December 23, 2005 (as amended
from time to time prior to the date hereof, the “Credit Agreement”),
among CHURCH & XXXXXX CO., INC., a Delaware corporation (the “Borrower”), the
several banks and other financial institutions or entities from time to time
parties to the Credit Agreement (the “Lenders”), THE BANK
OF NOVA SCOTIA, BANK OF AMERICA, N.A. and NATIONAL CITY BANK, each as a
documentation agent (in such capacity, the “Documentation
Agents”), CITICORP NORTH AMERICA, INC., as syndication agent (in such
capacity, the “Syndication Agent”)
and JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, the
“Administrative
Agent”).
W I T N E S S E T
H:
WHEREAS,
pursuant to the Credit Agreement, the Lenders have agreed to make, and have
made, certain loans and other extensions of credit to the Borrower;
WHEREAS,
in connection with the Coty Acquisition (as defined below), the Borrower intends
to borrow Additional Tranche A Term Loans of up to $250,000,000 (the “2008 Additional Tranche A
Term Loans”) as contemplated by Section 2.23 of the Credit
Agreement;
WHEREAS,
the Borrower has requested certain amendments to the Credit Agreement as more
fully set forth herein; and
WHEREAS,
the Lenders are willing to agree to such amendments on the terms and subject to
the conditions contained in this Amendment.
NOW,
THEREFORE, the parties hereto hereby agree as follows:
SECTION
1. Defined Terms. Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
SECTION
2. Amendments to Section
1.1. (a) Section 1.1 of the Credit Agreement is
hereby amended by adding the following defined terms in their proper
alphabetical order:
The
defined term “Consolidated EBITDA”
contained in Section 1.1 of the Credit Agreement is hereby amended by (i)
deleting the comma after the word “Margin” in clause (ix) of such definition and
replacing such comma with the parenthetical “(A)” and (ii) adding the following
words after the word “calculations” in clause (ix) of such
definition:
and (B)
for any fiscal quarter including or following the Coty Acquisition and until
June 30, 2009, pro forma synergies realized by June 30, 2009 by the Borrower as
a result of the Coty Acquisition so long as such synergies are factually
supportable and are certified by the chief financial officer with summary
supporting calculations
(b)
“Coty
Acquisition”: the acquisition of the OTC pharmaceutical
business of Coty, Inc.
(c) The
defined term “L/C
Commitment” contained in Section 1.1 of the Credit Agreement is hereby
amended by deleting the amount “$50,000,000” and replacing such amount with the
amount “$25,000,000”.
(d) The
defined term “Revolving Termination
Date” contained in Section 1.1 of the Credit Agreement is hereby amended
by deleting the words “May 28, 2009” and replacing such words with “August 31,
2012”.
SECTION
3. Amendment to the
Preamble. The parties hereto acknowledge and agree that under
the Credit Agreement (i) Citicorp North America, Inc. shall be a Documentation
Agent and shall not be the Syndication Agent and (ii) Bank of America, N.A.
shall be the Syndication Agent and shall not be a Documentation
Agent.
SECTION
4. Amendment to Section
2.11. Section 2.11(a) of the Credit Agreement is hereby amended by
deleting the words “Section 7.2(g) and”.
SECTION
5. Amendment to Section
2.23. (a) Section 2.23(a) of the Credit Agreement is hereby
amended by (i) deleting the amount “$500,000,000” and replacing such amount with
the amount “$750,000,000” and (ii) replacing the parenthetical after the amount
“$750,000,000” with the following parenthetical:
(including
the 2006 Additional Tranche A Term Loans, as defined in the Amendment dated as
of August 17, 2006 to this Agreement and the 2008 Additional Tranche A Term
Loans, as defined in the Amendment dated as of June 3, 2008)
(b)
Section 2.23(a) of the Credit Agreement is hereby further amended by deleting
the last sentence of Section 2.23(a) and replacing such sentence of such Section
2.23(a) with the following sentence:
The
Additional Tranche A Term Loans (other than the 2006 Additional Tranche A Term
Loans and the 2008 Additional Tranche A Term Loans) cannot (i) mature prior to
the maturity of the 2006 Additional Tranche A Term Loans or the 2008 Additional
Tranche A Term Loans the and (ii) the average life of the Additional Tranche A
Term Loans (other than the 2006 Additional Tranche A Term Loans and the 2008
Additional Tranche A Term Loans) cannot be shorter than that of the 2006
Additional Tranche A Term Loans or the 2008 Additional Tranche A Term
Loans.
SECTION
6. Amendment to Section
7.2(e). Section 7.2(e) of the Credit Agreement is hereby
amended by (i) adding the words “or any other fixed asset secured financing”
after the word “Obligations” and (ii) deleting the amount “$10,000,000” and
replacing such amount with the amount “$100,000,000”.
SECTION
7. Amendment to Section
7.2(g). Section 7.2(g) of the Credit Agreement is hereby
amended by deleting the words “, so long as the Net Cash Proceeds of any such
receivables securitization shall be applied as set forth in Section
2.11(a)”.
SECTION
8. Amendment to Section
7.2(h). Section 7.2(h)(A)(III) of the Credit Agreement is
hereby amended by deleting the parenthetical following the words “Section
2.11(a)” and replacing such parenthetical with the following
parenthetical:
|
|
(except
that if after giving effect to such Indebtedness the Borrower is in pro forma
compliance with Section 7.1 hereof, up to $400,000,000 of the Net Cash
Proceeds of such unsecured notes, and if subordinated, all of the Net Cash
Proceeds from such unsecured notes, shall not be subject to the mandatory
prepayment requirements of Section 2.11(a); provided, that
no scheduled principal payment shall be permitted on such unsecured or
subordinated notes prior to August 31,
2012.)
|
SECTION
9. Amendment to Section
7.2(j). Section 7.2(j) of the Credit Agreement is hereby
amended by deleting the amount “$30,000,000” and replacing such amount with the
amount “$50,000,000”.
SECTION
10. Amendment to Section
7.2(k). Section 7.2(k) of the Credit Agreement is hereby
amended by deleting the amount “$25,000,000” and replacing such amount with the
amount “$50,000,000”.
SECTION
11. Amendment to Section
7.3(l). Section 7.3(l) of the Credit Agreement is hereby
amended by deleting the amount “$10,000,000” and replacing such amount with the
amount “$25,000,000”.
SECTION
12. Amendment to Section
7.7. Section 7.7 of the Credit Agreement is hereby amended by
deleting the words “not exceeding $75,000,000 in any fiscal year” and replacing
such words with “not exceeding $100,000,000 in 2008, $200,000,000 in 2009 and
$100,000,000 in any fiscal year thereafter”.
SECTION
13. 2008 Additional Tranche A
Term Loans. The parties hereto acknowledge and agree that the
terms of the 2008 Additional Tranche A Term Loans are as follows:
(a) Maturity Date: August
31, 2012.
(b) Repayment of 2008 Additional
Tranche A Term Loans: the 2008 Tranche A Term Loans shall
mature in 17 consecutive quarterly installments as set forth below:
|
Installment
|
Principal Amount
|
|
September
30, 2008
|
$1,793,360
|
|
December
31, 2008
|
$2,676,660
|
|
March
31, 2009
|
$2,676,660
|
|
June
30, 2009
|
$2,676,660
|
|
September
30, 2009
|
$2,676,660
|
|
December
31, 2009
|
$6,250,000
|
|
March
31, 2010
|
$6,250,000
|
|
June
30, 2010
|
$6,250,000
|
|
September
30, 2010
|
$6,250,000
|
|
December
31, 2010
|
$15,625,000
|
|
March
31, 2011
|
$15,625,000
|
|
June
30, 2011
|
$15,625,000
|
|
September
30, 2011
|
$15,625,000
|
|
December
31, 2011
|
$37,500,000
|
|
March
31, 2012
|
$37,500,000
|
|
June
30, 2012
|
$37,500,000
|
|
August
31, 2012
|
$37,500,000
|
(c) Interest: the
Applicable Margin for the 2008 Additional Tranche A Term Loans shall be the same
as the Applicable Margin for the Tranche A Term Loans and interest thereon shall
be payable on the same basis; provided that until
the first Adjustment Date after the Effective Date (as defined below), Level III
(as set forth in the Pricing Grid) will apply.
(d) Mandatory
Prepayments: the 2008 Additional Tranche A Term Loans shall share ratably
in all mandatory prepayments with all of the Tranche A Term Loans.
(e) Other
provisions of the Credit Agreement shall apply to the 2008 Additional Tranche A
Term Loans to the same extent as they apply to the Tranche A Term
Loans.
SECTION
14. Conditions to
Effectiveness. This Amendment shall become effective upon the
date (the “Effective
Date”) upon satisfaction of the following conditions
precedent:
(a) each Loan
Party shall have executed and delivered this Amendment;
(b) each
existing Loan Party, other than the Borrower, shall have executed and delivered
an Acknowledgment and Consent, in the form set forth at the end of this
Amendment (such Acknowledgements and Consents, together with this Amendment, the
“Amendment
Documents”);
(c) the
Administrative Agent shall have received written consents from the requisite
Lenders under the Credit agreement to the execution of this Amendment;
and
(d) the
Lenders, the Administrative Agent and the Arrangers shall have received all fees
required to be paid, and all expenses for which invoices have been presented, on
or before the Effective Date.
Without
prejudicing the remainder of the amendments hereunder, (i) the amendments to the
definitions of “Consolidated EBITDA” and “Coty Acquisition” and the amendments
set forth in Section 5 of this Amendment and the acknowledgment and agreement of
terms set forth in Section 13 of this Amendment shall not become effective
unless (A) the Coty Acquisition shall be consummated in accordance with its
terms and with applicable law and no provision of the acquisition agreement and
related documentation shall have been waived, amended, supplemented or otherwise
modified in any respect materially adverse to the Borrower or the Lenders, (B)
all government and material third party approvals necessary in connection with
the Acquisition, the financing thereof and the continuing operations of the
Borrower shall have been obtained on terms reasonably satisfactory to the
Administrative Agent and (C) the 2008 Additional Tranche A Term Loans shall have
been borrowed and all requirements relating thereto in Section 2.23 of the
Credit Agreement shall have been fulfilled and (ii) the extension of the
Revolving Termination Date shall only be effective with respect to any Revolving
Lender upon receipt of written consent thereto by such Revolving Lender; on the
Effective Date the Revolving Commitments set forth on Schedule 1.1A shall be
deemed to be amended and restated to reflect the Revolving Commitments of each
Revolving Lender, confirmed by the Revolving Lenders with the Administrative
Agent, including the Revolving Commitments of any bank, financial institution or
other entity which may elect to become a party to the Credit Agreement by
executing an agreement substantially similar to a New Lender
Supplement. The Administrative Agent shall notify the Borrower and
the Lenders of the Effective Date, and such notice shall be conclusive and
binding.
SECTION
15. Post-Effectiveness
Covenants. Not later than 30 days following the Effective
Date,
(a) each new
domestic Subsidiary of the Borrower resulting from the Coty Acquisition or
formed in connection therewith that is required to become a Loan Party shall
execute and deliver an Assumption Agreement to the Guarantee and Collateral
Agreement and the Administrative Agent shall receive all documents, instruments
and filings reasonably requested by the Administrative Agent and consistent with
the existing Security Documents (the “Assumption Agreement
Documents”) and
(b) the
Administrative Agent shall receive (i) the certificates representing the shares
of Capital Stock pledged pursuant to the Guarantee and Collateral Agreement as a
result of the Coty Acquisition, together with an undated stock power (or other
equivalent document) for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof (limited in the case of foreign
Subsidiaries to 65% of the Capital Stock of foreign Subsidiaries) and (ii) each
promissory note (if any) pledged to the Administrative Agent pursuant to the
Guarantee and Collateral Agreement as a result of the Coty Acquisition, endorsed
(without recourse) in blank (or accompanied by an executed transfer form in
blank) by the pledgor thereof.
SECTION
16. Representations and
Warranties.
(a) In order
to induce the Administrative Agent and the Lenders to enter into this Amendment,
each of the Loan Parties hereby represents and warrants to the Administrative
Agent and the Lenders that, after giving effect to this Amendment, the
representations and warranties of such entity made in the Loan Documents are
true and correct in all material respects on and as of the Effective Date (after
giving effect hereto) as if made on and as of the Effective Date (except where
such representations and warranties expressly relate to an earlier date in which
case such representations and warranties were true and correct in all material
respects as of such earlier date); provided that all references to the “Credit
Agreement” in any Loan Document shall be and are deemed to mean the Credit
Agreement as amended hereby. Except as could not reasonably be expected to have
a Material Adverse Effect, no consent or authorization of, approval by, notice
to, filing with or other act by or in respect of, any Governmental Authority or
any other Person is required in connection with the execution and delivery of
the Amendment Documents or with the performance, validity or enforceability of
the Loan Documents, as amended by the Amendment Documents.
(b) Each of
the Loan Parties hereby represents and warrants that: as of the date hereof it
has all necessary corporate power and authority to execute and deliver the
Amendment Documents; the execution and delivery by such party of the Amendment
Documents have been duly authorized by all necessary corporate action on its
part; and the Amendment Documents have been duly executed and delivered by such
party and constitute such party’s legal, valid and binding obligation,
enforceable in accordance with its terms.
SECTION
17. Continuing Effect of the
Credit Agreement. This Amendment shall not constitute an amendment or
waiver of or consent to any provision of the Credit Agreement not expressly
referred to herein and shall not be construed as an amendment, waiver or consent
to any action on the part of the Borrower that would require an amendment,
waiver or consent of the Administrative Agent or the Lenders except as expressly
stated herein. Except as expressly amended hereby, the provisions of the Credit
Agreement are and shall remain in full force and effect in accordance with its
terms.
SECTION
18. Counterparts. This
Amendment may be executed by one or more of the parties to this Amendment on any
number of separate counterparts (including by facsimile), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
SECTION
19. GOVERNING
LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[The
remainder of this page is intentionally left blank.]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective proper and duly authorized officers
as of the day and year first above written.
|
CHURCH
& XXXXXX CO., INC.
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx | ||
|
Name:
Xxxxxxx X. Xxxxxxx
|
|||
|
Title:
Executive Vice President Finance and Chief Financial
Officer
|
|||
|
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
|
|||
|
By:
|
/s/ Xxxx Xxxx | ||
|
Name:
Xxxx Xxxx
|
|||
|
Title:
Vice President
|
|||
|
ANTARES
FUNDING, L.P.
as
Lender
|
|||
|
By:
|
The Bank of New York Trust Company, N.A., as Trustee of the Antares Funding Trust created under the Trust Agreement dated as of November 30, 1999, as a Lender | ||
| By: | /s/ Xxxxxx Xxxxxxx | ||
| Name: | Xxxxxx Xxxxxxx | ||
| Title: | AVP | ||
|
BANK
OF AMERICA, N.A.
as Lender
|
|||
|
By:
|
/s/
Xxxxxxxxx Xxxxxx
|
||
|
Name:
|
Xxxxxxxxx
Xxxxxx
|
||
|
Title:
|
Vice
President
|
||
|
The
Bank of Nova Scotia,
as
Lender
|
|||
|
By:
|
/s/
Xxxx Xxxxxx
|
||
|
Name:
|
Xxxx
Xxxxxx
|
||
|
Title:
|
Managing
Director
|
||
|
Bank
of Tokyo-Mitsubishi Trust Company,
as
Lender
|
|||
|
By:
|
/s/
Xxxxxx Xxxxxxxxxx
|
||
|
Name:
|
Xxxxxx
Xxxxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
|
BMO
Capital Market Financing, Inc,
as
Lender
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxxxxx
|
||
|
Name:
|
Xxxxxxx
Xxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
|
BNP
Paribas,
as
Lender
|
|||
|
By:
|
/s/
Xxxxxxx Vialatou
|
||
|
Name:
|
Xxxxxxx
Vialatou
|
||
|
Title:
|
Managing
Director
|
||
| By: | /s/ Xxxxxx Xxxxxxx-Xxxxxx | ||
| Name: | Xxxxxx Xxxxxxx-Xxxxxx | ||
| Title: | Director | ||
|
Capital
One Leverage Finance Corp.
as
Lender
|
|||
|
By:
|
/s/
Xxx Xxxxxx
|
||
|
Name:
|
Xxx
Xxxxxx
|
||
|
Title:
|
Vice
President
|
||
|
Credit
Industriel et Commercial,
as
Lender
|
|||
|
By:
|
/s/
Xxxxx X'Xxxxx
|
||
|
Name:
|
Xxxxx
X'Xxxxx
|
||
|
Title:
|
Managing
Director
|
||
| By: | /s/ Xxxxxxx Xxxx | ||
| Name: | Xxxxxxx Xxxx | ||
| Title: | Managing Director | ||
|
DZ
Bank AG Deutsche Zentral-Genossenschaftsbank Frankfurt am Main, New York
Branch,
as
Lender
|
|||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
||
|
Title:
|
Vice
President
|
||
| By: | /s/ Xxxxxx Xxxxxxxxxxx | ||
| Name: | Xxxxxx Xxxxxxxxxxx | ||
| Title: | Senior Vice President | ||
|
Erste
Banke,
as
Lender
|
|||
|
By:
|
/s/
Xxxx Xxxxxxx
|
||
|
Name:
|
Xxxx
Xxxxxxx
|
||
|
Title:
|
Executive
Director
|
||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: | Xxxxx Xxxxx | ||
| Title: | Managing Director | ||
|
FIRSTRUST
BANK
as
Lender
|
|||
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxx
|
||
|
Title:
|
Senior
Vice President
|
||
ACKNOWLEDGMENT AND
CONSENT
Reference
is made to the Credit Agreement described in the foregoing Amendment (the “Credit Agreement”;
terms defined in the Credit Agreement being used in this Acknowledgement and
Consent with the meanings given to such terms in the Credit Agreement). Each of
the undersigned parties to the Guarantee and Collateral Agreement and/or one or
more other Security Documents, in each case as amended, supplemented or
otherwise modified from time to time, hereby (a) consents to the foregoing
Amendment and the transactions contemplated thereby and (b) acknowledges and
agrees that the guarantees and grants of security interests contained in the
Guarantee and Collateral Agreement and other Security Documents are, and shall
remain, in full force and effect after giving effect to the foregoing Amendment
and all prior modifications to the Credit Agreement.
|
GREENWOOD VILLAGE,
INVESTMENTS,
LLC,
|
CHURCH
& XXXXXX VIRGINIA CO.,
as
a Subsidiary Guarantor
|
|||
|
as
a Subsidiary Guarantor
|
||||
|
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
By:
|
/s/
Xxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxxx
|
Name:
Xxxxx X. Xxxxxxx
|
|||
|
Title:
Secretary
|
Title:
Secretary
|
|||
|
C&D
CHEMICAL PRODUCTS, INC.,
|
XXXXXX
INTERNATIONAL CORPORATION
|
|||
|
as
a Subsidiary Guarantor
|
as a Subsidiary Guarantor | |||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
Name:
Xxxxxxx X. Xxxxxxx
|
|||
|
Title:
Vice President
|
Title:
Vice President
|
|||
|
ARMKEL
DIAGNOSTICS LLC,
|
ARMKEL
DROPS, LLC
|
|||
|
as
a Subsidiary Guarantor
|
as
a Subsidiary Guarantor
|
|||
| By: CHURCH & XXXXXX CO., INC. | By: CHURCH & XXXXXX CO., INC. | |||
| Title: Sole Member | Title: Sole Member | |||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
Name:
Xxxxxxx X. Xxxxxxx
|
|||
|
Title:
Vice President
|
Title:
Vice President
|
|||
|
ARMKEL
PRODUCTS, LLC
|
ARMKEL
FINANCE, INC.
|
|||
|
as
a Subsidiary Guarantor
|
as
a Subsidiary Guarantor
|
|||
| By: CHURCH & XXXXXX CO., INC. | By: | /s/ Xxxxxxx X. Xxxxxxx | ||
| Title: Sole Member | Name: Xxxxxxx X. Xxxxxxx | |||
| Title: Vice President | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Vice President | ||||
|
ARMKEL
CONDOMS, LLC
|
ARMKEL
CRANBURY, LLC
|
|||
|
as
a Subsidiary Guarantor
|
as
a Subsidiary Guarantor
|
|||
|
By:
CHURCH & XXXXXX CO., INC.
|
By:
CHURCH & XXXXXX CO., INC.
|
|||
|
Title:
Sole Member
|
Title:
Sole Member
|
|||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
Name:
Xxxxxxx X. Xxxxxxx
|
|||
|
Title:
Vice President
|
Title:
Vice President
|
|||
|
ARMKEL
DENTURES, LLC
|
ARMKEL
DELIPATORIES, LLC
|
|||
|
as
a Subsidiary Guarantor
|
as
a Subsidiary Guarantor
|
|||
|
By:
CHURCH & XXXXXX CO., INC.
|
By:
CHURCH & XXXXXX CO., INC.
|
|||
|
Title:
Sole Member
|
Title:
Sole Member
|
|||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
Name:
Xxxxxxx X. Xxxxxxx
|
|||
|
Title:
Vice President
|
Title:
Vice President
|
|||
