EXHIBIT 10.1
EXECUTION VERSION
FIRST AMENDMENT, dated as of February 23, 2006 (this
"AMENDMENT"), to the Credit Agreement dated as of December 29, 2005 (as further
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among DLI HOLDING II CORP., a Delaware corporation ("HOLDINGS"),
DEL LABORATORIES, 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"), ▇.▇. ▇▇▇▇▇▇ SECURITIES, INC. as sole lead
arranger and sole bookrunner (in such capacity, the "ARRANGER") and JPMORGAN
CHASE BANK, N.A., as administrative agent (in such capacity, the "ADMINISTRATIVE
AGENT").
The parties hereto hereby agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein,
capitalized terms which are defined in the Credit
Agreement are used herein as therein defined.
2. AMENDMENTS. The Credit Agreement shall be, and hereby
is, amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended
by inserting the following definition in appropriate
alphabetical order:
"INVENTORY": as defined in Article 9 of the UCC.
(b) Section 9.7 of the Credit Agreement is hereby amended
by inserting the parenthetical "(other than the
Arranger)" immediately after the words "each Agent"
in the first sentence thereof.
(c) Section 10.1 of the Credit Agreement is hereby
amended:
(i) by deleting the language "of more than 80% of the
Lenders" at the end of clause b(iv) of the first
paragraph and inserting the language "of the holders
of more than 80% of the Revolving Commitments then in
effect or, if the Revolving Commitments have been
terminated, the Revolving Extensions of Credit then
outstanding" in place thereof;
(ii) by inserting immediately after clause (b)(iv) of
the first paragraph the following new clause
(b)(iv-A):
"(iv-A) (a) increase any advance rate set forth in the definition of "Borrowing
Base" or (b) amend or modify Section 2.15(a) to increase the amount of
Protective Advances permitted beyond the amount of Protective Advances that
would have been permitted under Section 2.15(a) as in effect on the Closing
Date, in each case, without the written consent of the holders of more than
66-2/3 of the Revolving Commitments then in effect or, if the Revolving
Commitments have been terminated, the Revolving Extensions of Credit then
outstanding"
; and
(iii) by deleting the last paragraph of Section 10.1
in its entirety.
3. EFFECTIVENESS. This Amendment shall become effective on the
date on which the Administrative Agent has received (a) this Amendment, executed
and delivered by the Administrative Agent, Holdings, the Borrower and the
Required Lenders and (b) the Consent (attached hereto), executed and delivered
by the Subsidiary Guarantors. The Borrower confirms it is obligated for the
Administrative Agent's expenses associated with this Amendment as provided in
Section 10.5 of the Credit Agreement.
4. REPRESENTATION AND WARRANTIES. Each of Holdings and the
Borrower hereby represents and warrants that, after giving effect to the
provisions of this Amendment, (a) each of the representations and warranties
made by any Loan Party in or pursuant to the Loan Documents are true and correct
in all material respects on and as of the date hereof as if made on and as of
such date, except to the extent that such representations and warranties refer
to an earlier date, in which case they are true and correct in all material
respects as of such earlier date, and (b) no Default or Event of Default has
occurred and is continuing.
5. CONTINUING EFFECT OF THE CREDIT AGREEMENT. This Amendment
shall not constitute an amendment of any provision of the Credit Agreement not
expressly referred to herein and shall not be construed as a waiver or consent
to any Default, Event of Default or future action on the part of any Loan Party
that would require the consent of the Lenders or the Administrative Agent. As
expressly amended hereby, the provisions of the Credit Agreement are and shall
remain in full force and effect.
6. COUNTERPARTS. This Amendment may be executed by the parties
hereto in any number of separate counterparts (including facsimiled
counterparts), each of which shall be deemed to be an original, and all of which
taken together shall be deemed to constitute one and the same instrument.
7. EXPENSES. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation and execution of this
Amendment, including, without limitation, the reasonable fees and disbursements
of counsel to the Administrative Agent.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS 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 proper and duly authorized
officers as of the day and year first above written.
DLI HOLDING II CORP.
By:
Name:
Title:
DEL LABORATORIES, INC
By:
Name:
Title:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, N.A.,
as Administrative Agent and as
Lender
By:
Name:
Title:
CONSENT
DATED AS OF FEBRUARY 23, 2006
The undersigned, as Subsidiary Guarantors under the Guarantee
and Collateral Agreement and, as applicable, as parties to the other Security
Documents hereby consent and agree to the foregoing First Amendment and hereby
confirm and agree that (i) each of the Guarantee and Collateral Agreement and
the other Security Documents is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects except that, upon
the effectiveness of, and on and after the date of, said First Amendment, each
reference therein to the "Credit Agreement", "thereunder", "thereof" and words
of like import referring to the Credit Agreement, shall mean and be a reference
to the Credit Agreement as amended by said First Amendment and (ii) each of the
Guarantee and Collateral Agreement and the other Security Documents and the
Collateral described therein does, and shall continue to, secure the payment and
performance of all of the Obligations as defined in the Guarantee and Collateral
Agreement, after giving effect to said First Amendment.
DEL PHARMACEUTICALS, INC.
By:
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Name:
Title:
DEL PROFESSIONAL PRODUCTS, INC.
By:
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Name:
Title:
ROYCE & ▇▇▇▇▇, INC.
By:
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Name:
Title:
565 BROAD HOLLOW REALTY CORP.
By:
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Name:
Title:
PARFUMS SCHIAPARELLI, INC.
By:
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Name:
Title:
Signature page to the First
Amendment, dated as of February
23, 2006, to the DEL LABORATORIES,
INC. Credit Agreement
Wachovia Bank, N.A.
By:
Name:
Title: